Opinion
A166111
10-29-2024
THE PEOPLE, Plaintiff and Respondent, v. JAVIER JESUS NAALMAY, Defendant and Appellant.
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC205272A.
STEWART, P.J.
Javier Jesus Naalmay was convicted of sexually abusing Jane Doe when she was five to seven years old. The nine counts he was alleged and found to have committed were based on three incidents described by the victim, each incident involving the same three offenses. Naalmay contends that five of the convictions must be reversed due to insufficiency of the evidence and/or violation of the constitutional prohibition against ex post facto laws, and that his attorney rendered ineffective assistance of counsel by failing to object to the prosecutor's questioning of police officer witnesses about their opinions of Doe's and Naalmay's credibility. We conclude that two of Naalmay's convictions must be reversed as unsupported by sufficient evidence and otherwise affirm.
BACKGROUND
I.
Factual Background
A. Prosecution's Case
Jane Doe, born on December 6, 2002, was 19 years old at the time of trial. Her mother's cousin, Patricia C., is Naalmay's wife. Naalmay and Patricia C. are Doe's godparents and Doe referred to them as her uncle and aunt.
Doe testified that when she was five to eight years old, she lived with her parents, younger sisters, an aunt and her cousins. Naalmay, Patricia C. and their baby lived nearby, and Doe had sleepovers at their house every other weekend. Doe's mother testified that Patricia C. would ask for Doe to spend the night at their house and "since she was little, she got to know them that way." These were the only sleepovers Doe's mother allowed; she did not permit Doe to have sleepovers at the homes of kids her age. Naalmay and Patricia C. had lived with Doe's family for a few years before they moved to their own apartment in 2007, when Doe was around five.
Doe testified that Naalmay touched her inappropriately on three occasions when she was between five and seven years old. Asked how she knew she was five when it started, she testified that a photograph from her fifth birthday, with Naalmay and his baby daughter, marked the timing for her because she remembered "how scared [she] was" and that she did not want the picture taken, as Naalmay had "already touched" her when she was "like, four." Asked if the picture could have been taken at her sixth birthday rather than her fifth, she testified that she was not sure, then after looking at a transcript of her prior testimony she testified that she was turning six. She knew the abuse ended when she was around seven because she went to Mexico when she was seven and turned eight there.
The first incident Doe described happened when her aunt had gone out to do laundry. Naalmay took her to his room, took off her pants and underwear, lay her on the bed, spread her legs, and touched her vagina with his fingers and with his mouth. He then took her off the bed, told her to kneel and made her touch his penis. He "eventually" made her put his erect penis in her mouth but was only able to put it in "[i]n a way" because "since my mouth was really tiny, I couldn't." Doe was "terrified." Naalmay told her not to tell anyone. She remembered the "horrible" smell when she had to put his penis in her mouth and had nightmares about it, including one where "it was kind of underwater that I had to do that to someone, and it just-that smell . . . was so vivid that I could even remember that imagery."
The second incident Jane described happened when she was six, again when her aunt had gone out. Doe asked Naalmay, "what if she comes," thinking this would make him stop, but he took her to his room. He had put pornography on the TV; she remembered seeing "a lady do the same things that I would have to do" and it made her feel uncomfortable. Naalmay did the same things as in the first incident: He took off her pants and underwear, touched her vagina with his fingers, put his mouth on her vagina and made her put his penis in her mouth. Doe was scared and "just wished someone would stop it." Naalmay told her not to tell her parents or it would "ruin our bond."
Doe was asked whether there was a third incident and responded, "I believe, yes, there was." Asked if there was any doubt in her mind about whether it happened more than two times, she testified, "This happened more than two times." Doe testified that she did not remember a third incident with as much detail as the other two she described. She testified that "there was this time where it had happened, but it was late at night. [¶] . . . [¶] So he had taken me home or was going to take me home, and I was in his car. And then he had given me money. And . . . I wish I had said something about it because . . . now that I'm older, obviously, I try not to think about it and it all kind of . . . combines. So it's like I know that there was more incidents but I try to forget about them." Asked if Naalmay touched her in the car, she testified that he did not and "it had probably already happened in his apartment." She was asked about another incident and testified that there was a time when her aunt had gone out to get food, Naalmay wanted to touch her and she was so scared she started crying; she remembered wanting the kids playing outside to "call me out so I wouldn't have to be there with him."
When Doe was eight years old, her family went to Mexico for a year. After they returned, she would see Naalmay at family gatherings but always avoided him, and the sleepovers stopped. When she was 12, there was a moment when she and Naalmay were alone briefly, and he asked her if she wanted to "do it again." She knew what he meant and immediately said no and went home.
Doe testified that she "always felt different" and "so alone," but she did not tell anyone about the molestation until 2018, when she was about 15 and her parents confronted her after catching her with a marijuana "pen." She knew her parents "felt like they had failed as parents" and she wanted them to understand it was not because of them but "from everything" she had experienced and kept inside. She testified that she "felt super anxious all the time," was "always scared," and "wanted to stop feeling." As her parents questioned her, she "broke down" and told them that she had been molested.
She was hesitant to tell them who had molested her, but they kept asking and she told them. Her parents took her to the police the next day.
Doe acknowledged telling the police officer who interviewed her that she could not remember the first time she was molested, and she testified that she did not think she would ever remember the first time "or how it even started." Asked how she had come to remember two specific incidents since her police interview, she testified that she "figured out how to kind of separate those two" incidents because they were the "most vivid." Although she had not described the incidents that way to the police officer, they had become more crystallized in her mind in part because people asking her questions helped her remember; before then, "it was just based on . . . little memories." She testified that her memories became clearer as she got older and understood more about what sexual abuse is.
The police officer who interviewed Doe, Officer Robert Henkle, testified that she described two specific incidents of sexual abuse in detail and said she had "vague recollections of at least three incidents and maybe more, but three that she could recall." After that interview, Corporal Chris Fuller and Officer Carlos Maldonado met with Doe to conduct a pretext phone call, a recording of which was played for the jury. The officers testified that when Doe confronted Naalmay with allegations that he touched her vagina and put his penis in her mouth, he initially denied everything and told Doe she needed therapy. Naalmay was worried about the phone call being recorded, repeatedly asked to talk to Doe in person, and made her swear no one was listening. He then admitted all the acts Doe had described, including touching her vagina with his hand, putting his penis in her mouth, making her grab his penis, and putting on pornography. He told Doe she enjoyed it when he touched her vagina and he asked for her forgiveness. Fuller testified that there was no script for the pretext call and that "probably 90 percent" of what Doe said was "her own words and her own phrases," with occasional notes from the officers when they needed her to ask something specific. Maldonado testified that, to his surprise, he did not have to write many notes because Doe asked the questions he would have asked himself.
Doe and Naalmay spoke in Spanish and the jurors were given a transcript in both English and in Spanish. Maldonado was fluent in Spanish; Fuller was not.
Naalmay was arrested and interviewed at the police station by Officer Maldonado. After waiving his Miranda rights, he said he made the admissions during the call to see what Doe's reaction would be and "go along with the conversation." He gave the same explanation when asked about specific statements, including why he admitted rubbing his penis on Doe's vagina and told Doe that he put his penis in her mouth for about 30 seconds. He said he did not know when asked why he told Doe it would excite him when she sat on his lap.
B. Defense
Patricia C. testified that when she and Naalmay lived with Doe's family, there was a television in their bedroom, but when they moved to their own apartment in September 2007, their only television was in the living room. She remembered Doe sleeping at their house only once and testified that Doe's mother would not allow other sleepovers. Patricia C. did not remember doing laundry or leaving Doe alone with Naalmay during the sleepover. After Doe returned from Mexico, her interactions with Naalmay at family events seemed normal. Patricia C. testified that in the birthday photograph that Doe testified about, which was from December 2007, Naalmay was holding their then two-month-old daughter. The photo was on their refrigerator and Doe never reacted abnormally to it.
Psychology professor Deborah Davis testified as an expert on interrogation, false confession and false memory. She testified that memory can fail at any of three stages: misperception or misinterpretation when something happens, errors in encoding, such as omitting details, and errors in retrieval. Memories may fade, change and distort over time, including remembering things differently and remembering things that did not happen at all. False memories may result from changes in beliefs or knowledge, and input from others or one's own inferences or expectations can alter the original memory. Encoding is affected by age and level of knowledge and understanding. If something is not understood correctly at the time, it will not get into memory correctly, and since a child encodes a memory with a lesser degree of knowledge, there may be misinterpretation when looking back at a memory in light of increased experience. Suggestion-an idea planted in a person's mind about what may have happened or what the other person expects or wants to hear-can cause a false memory, and false memories can persist forever.
Davis testified that false confessions can occur during police interrogations due to stress, inability to tolerate the distress or resist the interrogator, an attempt to maximize the outcome, or an attempt to protect others. An innocent person may falsely confess in a pretext call situation because of fear, shock or confusion, to make the caller feel better, or to avoid legal consequences.
II.
Procedural Background
An information filed on January 17, 2019, charged Naalmay with nine counts of sexual offenses committed on or about December 6, 2007, to December 6, 2010: three counts of oral copulation or sexual penetration with a foreign object of a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b)) (counts 1, 4, 7); three counts of oral copulation with a person under 14 years of age (former § 288a, subd. (c)(1)) (counts 2, 5, 8); and three counts of lewd act upon a child under 14 years of age (§ 288, subd. (a)) (counts 3, 6, 9). It was alleged as to counts 1, 3, 4, 6, 7 and 9 that the offenses were serious and violent felonies. (§§ 1192.7, subd. (c)(6) &(c)(7), 667.5, subd. (c)(6) &(c)(7), 1170.12, subds. (a), (b) &(c).) It was further alleged as to counts 3, 6 and 9 that in committing the offenses Naalmay engaged in substantial sexual conduct with a victim under 14 years of age. (§ 1203.066, subd. (a)(8).) Naalmay pleaded not guilty to all counts and denied the special allegations.
Former section 288a was amended and renumbered as section 287 in 2018. (Stats. 2018, ch. 423, § 49.)
After a trial in March 2022, the jury found Naalmay guilty of all the charged offenses. The verdicts indicate the jury was not asked to, and did not, make any findings on the substantial sexual conduct allegations.
A prior trial in August 2021 had ended in a mistrial.
On June 16, 2022, the court imposed a prison sentence of 45 years to life, consisting of consecutive terms of 15 years to life on each of counts 1, 4 and 7. The court imposed middle term sentences on the other counts, stayed pursuant to section 654.
Naalmay filed a timely notice of appeal on June 21, 2022.
DISCUSSION
I.
Substantial Evidence Supports the Convictions on Counts 7, 8 and 9.
As presented to the jury, counts 1, 2 and 3 pertained to the offenses described by Doe as the "first incident," counts 4, 5 and 6 pertained to the "second incident" and counts 7, 8 and 9 pertained to the "third incident." Naalmay contends the evidence was insufficient to support his convictions on counts 7, 8 and 9.
"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-evidence that is reasonable, credible and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
People v. Jones (1990) 51 Cal.3d 294 addressed the sufficiency of generic or nonspecific testimony by a child molestation victim to support a conviction. The court stated: "The victim, of course, must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., 'twice a month' or 'every time we went camping'). Finally, the victim must be able to describe the general time period in which these acts occurred (e.g., 'the summer before my fourth grade,' or 'during each Sunday morning after he came to live with us'), to assure the acts were committed within the applicable limitation period. Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim's testimony, but are not essential to sustain a conviction." (Id. at p. 316.)
Naalmay argues Doe's testimony concerning the third incident fails to meet these standards in that she did not describe the specific number or kinds of acts committed on this occasion. The People maintain the evidence was sufficient because although Doe did not remember a third incident in specific detail, she testified that Naalmay's "activities were similar each time he sexually assaulted her" and he admitted during the pretext call that he put his mouth on Doe's vagina, made her put his penis in her mouth, and touched her vagina with his hands.
Naalmay's point is well taken. As related above, Doe testified that she was sure there were additional incidents beyond the two she described in detail, but she did not remember a third incident with as much detail. The prosecutor asked Doe, "did he touch you just those two times [¶] . . . [¶] or do you believe that he touched you more times? Was there a third incident?" Doe responded, "I believe, yes, there was." She was then asked whether there was any doubt in her mind that Naalmay "did this to you more than two times" and testified that "[t]his happened more than two times." After testifying that "there was this time where it had happened, but it was late at night" and she was in Naalmay's car, she testified, "He didn't touch me in the car. Like, it had probably already happened in his apartment." She then described her memory of a time when she was scared to be with Naalmay but said he did not touch her on this occasion. She agreed with the prosecutor's summary that "you remember the two incidents that we talked about in a lot of detail [¶] . . . [¶] [b]ut there's other incidents that you know happened, but you just don't remember them with as much detail."
In order to find Naalmay guilty on counts 7, 8 and 9, the jury had to conclude that he committed each of the specific charged acts on a third occasion separate from the first and second incidents Doe described.
Counts 7 and 8 each required the jury to find that Naalmay committed an act of oral copulation. The jury was instructed that"' "[o]ral copulation" is any contact no matter how slight between the mouth of one person and the sexual organ or anus of another person. Penetration is not required.' "
Count 7 charged Naalmay with oral copulation or sexual penetration with a foreign object of a child 10 years of age or younger (§ 288.7, subd. (b)); count 8 charged him with oral copulation with a person under 14 years of age (former § 288a, subd. (c)(1)).
Doe described the specific acts Naalmay committed during the first and second incidents: He touched her vagina with his fingers and with his mouth and put his penis in her mouth. Doe's testimony about the third incident was that Naalmay "touched" her, did "it" and did "this." While this testimony obviously referred to molestation, Doe was never asked, and did not say, what specific act or acts he committed on this third occasion or whether he committed each of the same acts on the third occasion as on the first two. Nor did Doe expressly testify that Naalmay's "activities were similar each time," as the People assert, and while Naalmay admitted committing each of the specific acts, he did not admit how many times he did so. The jury may well have assumed that Naalmay did exactly the same things in the third incident as he had in the others, but Doe's testimony that he "touched" her, did "this" or did "it" did not permit the jury to "differentiate between the various types of proscribed conduct" (People v. Jones, supra, 51 Cal.3d at p. 316) Naalmay may have committed on the third occasion. Accordingly, the evidence does not support a conclusion beyond a reasonable doubt that he specifically engaged in oral copulation during the additional incident Doe remembered and, therefore, does not support the convictions on counts 7 and 8. These convictions must be reversed.
In closing argument, the prosecutor told the jury that Doe said "the same thing had happened as the other two incidents which she remembers vividly. So this third incident . . . involves the same conduct as the other two." This characterization overstated Doe's testimony.
Count 9 is different. This count required the jury to find that Naalmay committed a lewd act, defined by the instructions as" 'willfully touch[ing] any part of a child's body either on the bare skin or through the clothing . . . with the intent of arousing, appealing to, or gratifying thelust, passions, or sexual desires of himself or the child ....'" Although Doe's testimony about a third incident was insufficiently specific to support a conclusion that Naalmay committed any specific sexual act, her general reference to molestation supported a reasonable inference that he willfully touched some part of her body with the requisite sexual intent. Substantial evidence includes reasonable inferences drawn from the evidence. (People v. Tice (2023) 89 Cal.App.5th 246, 256.) Since the willful touching of any part of a child's body with the requisite sexual intent constitutes a lewd act, the evidence was sufficient to support the jury's verdict on count 9.
Count 9 charged commission of a lewd act upon a child under 14 years of age (§ 288, subd. (a)).
II.
Naalmay Has Not Demonstrated Prejudicial Ineffective Assistance of Counsel.
During the direct testimony of police officers Henkle, Maldonado and Fuller, the prosecutor asked the witnesses if they found Doe and/or Naalmay credible. Naalmay contends these questions constituted prosecutorial misconduct and defense counsel's failure to object to three of the four such questions constituted ineffective assistance of counsel.
A. Background
After Officer Henkle related what Doe told him during her interview and testified that she was "calm" and "[s]eemed nervous and shy when discussing what we were talking about," the prosecutor asked, "What was your impression of her?" Henkle responded, "I thought she was credible. I thought a smart young girl and actually very brave for coming forward."
The prosecutor similarly asked Officer Maldonado about his impressions of Doe during the pretext call. He testified, "I thought she was very brave. She was very nervous, very scared, emotional. She was crying and sobbing throughout the entire-at times more, at times less, but very emotional." The prosecutor asked if Maldonado found Doe credible, and Maldonado testified that he did. The prosecutor then elicited Maldonado's testimony about his interview with Naalmay and asked whether he found Naalmay credible. Maldonado testified that he did. Defense counsel objected and, after a bench conference, the court sustained the objection, struck the answer and instructed the jury to disregard it.
The prosecutor asked Corporal Fuller whether Naalmay's confession during the pretext call seemed like a false confession, and Fuller testified that it did not. Fuller explained, "He went into details. He kept asking for forgiveness, and he spent the first half of the conversation denying everything and telling Jane Doe that . . . she needed to seek therapy and get help. And then she kept at it and kept asking him, 'Well, this is affecting me. Why did you do this to me? Like, I'm not the same after what you did to me.' [¶] And he, . . . halfway through that 53-minute conversation, basically does a 180, and all of a sudden he's apologizing and saying 'Yes, I did this. Yes, I did that.' He admitted to everything that she had told us in her initial interview with Officer Henkle.... [T]here wasn't a single thing that he did not admit to. [¶] And in my training and experience in doing pretext calls and doing sexual assault investigations, I believe 100 percent in our pretext phone calls and conversations that we do and in my experience they're not false confessions. Nothing led me to believe that."
With the one exception noted above, defense counsel did not object to the questions seeking the officers' opinions on Doe's and Naalmay's credibility.
B. Naalmay Was Not Prejudiced By the Officers' Opinion Testimony.
"[G]enerally a lay witness may not express an opinion about the veracity of another person's statement because the statement's veracity is for the jury to decide." (People v. Houston (2012) 54 Cal.4th 1186, 1221; People v. Melton (1988) 44 Cal.3d 713, 744.)"' "It is, of course, misconduct for a prosecutor to 'intentionally elicit inadmissible testimony.' [Citations.]" [Citation.]'" (People v. Trinh (2014) 59 Cal.4th 216, 248, quoting People v. Smithey (1999) 20 Cal.4th 936, 960.) Recognizing that "[t]o preserve a misconduct claim for review on appeal, a defendant must make a timely objection and, unless an admonition would not have cured the harm, ask the trial court to admonish the jury to disregard the prosecutor's improper remarks or conduct" (People v. Martinez (2010) 47 Cal.4th 911, 956), Naalmay contends the failure to object constituted ineffective assistance of counsel.
The same is true for expert witnesses: "The general rule is that an expert may not give an opinion whether a witness is telling the truth, for the determination of credibility is not a subject sufficiently beyond common experience that the expert's opinion would assist the trier of fact; in other words, the jury generally is as well equipped as the expert to discern whether a witness is being truthful." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82.)
"When challenging a conviction on grounds of ineffective assistance, the defendant must demonstrate counsel's inadequacy. To satisfy this burden, the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
"In considering a claim of ineffective assistance of counsel, it is not necessary to determine '" 'whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies .... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.'"' (In re Fields (1990) 51 Cal.3d 1063, 1079, quoting Strickland [v. Washington (1984)] 466 U.S. [668,] 697.)" (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)
Assuming it was improper for the prosecutor to elicit Henkle's testimony that he found Doe credible when he interviewed her, Maldonado's testimony that he found Doe credible during the pretext call and Fuller's testimony that Naalmay's confession during the pretext call did not seem false, none of this testimony could have been surprising: The very fact that the case went forward conveyed the message that the officers found Doe credible and did not believe Naalmay's confession was false. The prosecutor, in closing argument, did not emphasize or even mention the officers' testimony regarding Doe's and Naalmay's credibility. The jurors heard the pretext call and were able to draw their own conclusions as to Doe's and Naalmay's credibility based on what each said during the call and how each sounded, and they were able to evaluate Doe's credibility directly at trial based on her testimony and demeanor on the stand. Given the jury's opportunity to make its own credibility determinations and the fact that the prosecutor in no way emphasized the police officers' brief statements, there is no reasonable probability the result of this trial would have been different if defense counsel had objected to the prosecutor's questions.
III.
There Was No Violation of Ex Post Facto Prohibitions.
Naalmay was convicted in counts 1, 4 and 7 of violating section 288.7. This statute became effective on September 20, 2006, and "created a new offense which imposes an indeterminate life sentence for sexual intercourse, sodomy, oral copulation, or sexual penetration of a child who is 10 years of age or younger." (People v. Rojas (2015) 237 Cal.App.4th 1298, 1306 (Rojas); People v. Cornett (2012) 53 Cal.4th 1261, 1267; Stats. 2006, ch. 337, § 9.) Naalmay contends his convictions on these counts violate the constitutional prohibition against ex post facto laws because the prosecution failed to prove beyond a reasonable doubt that the offenses were committed subsequent to the effective date of section 288.7.
Both the federal and state constitutions prohibit ex post facto laws. (U.S. Const. art. I, § 10; Cal. Const., art. I, § 9; Rojas, supra, 237 Cal.App.4th at p. 1306.) "Any law that applies to events occurring before its enactment and which disadvantages the offender either by altering the definition of criminal conduct or increasing the punishment for the crime is prohibited as ex post facto." (Rojas, at p. 1306; People v. Delgado (2006) 140 Cal.App.4th 1157, 1163.) "[A]pplication of section 288.7 to conduct that occurred prior to September 20, 2006, is a violation of the state and federal ex post facto clauses." (Rojas, at p. 1306.)" '[I]t is the prosecution's responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant's punishment.'" (Ibid., quoting People v. Hiscox (2006) 136 Cal.App.4th 253, 256 (Hiscox).) An ex post facto claim may be raised for the first time on appeal. (Rojas, at p. 1306; Hiscox, at p. 258.)
The effective date of section 288.7 (September 20, 2006) was about two and one-half months before Doe's fourth birthday (December 6, 2006). Naalmay argues that Doe' testimony was insufficiently specific to establish that any of the alleged acts occurred after September 20, 2006. He points to Doe's testimony that the abuse" 'already had happened' when she was 'like, four,'" her use of generic language to describe the abuse (he "would" do the thing she described), and her testimony that she gradually developed her memories into separate occasions after initially giving an account to the police that did not include discrete incidents. He argues that the date of the second incident was uncertain and, based on Doe's description of a television in the bedroom, it must have occurred prior to "the latter part of 2007," and that the prosecutor told the jury that the dates alleged in the information did not matter as long Doe was under 10 years old.
Doe reiterated several times that the three incidents of abuse she remembered occurred when she was five to seven years old, consistent with the dates alleged in the information (December 6, 2007, to December 6, 2010). Her testimony that she knew this because she remembered that the abuse had already begun when the photograph from her fifth birthday was taken indicates that the specific incidents she described occurred subsequent to that birthday. Doe testified that Naalmay first started to abuse her before this, when she was "like, four." But she did not testify that any of the three incidents she described at trial was the first time Naalmay molested her. To the contrary, as Naalmay points out, she testified that she did not think she would ever remember the first time or how the abuse began. Nothing in Doe's testimony suggested that any of the three incidents might have occurred when she was three years old, her age when section 288.7 became effective. The verdicts for counts 1, 4 and 7 each state that the jury found Naalmay guilty of a violation of section 288.7 committed "on December 6, 2007, to December 6, 2010." Doe's testimony supports these findings.
Although Doe gave conflicting testimony as to whether the photo was from her fifth or sixth birthday, the age of Naalmay's baby in the birthday photograph shows it had to have been from Doe's fifth birthday in December 2007 and not her sixth. The baby was only two months old in the photograph and would have been over a year old by the time of Doe's sixth birthday in December 2008.
Naalmay relies on Hiscox, supra, 136 Cal.App.4th 253, in which the defendant was convicted of 11 counts of lewd and lascivious conduct with a child (§ 288) and, due to multiple victim findings, sentenced pursuant to section 667.61 to consecutive terms of 15 years to life pursuant on each count. (Hiscox, at p. 256.) The information charged that all 11 counts were committed" 'on or about the years of 1992 through 1996'" and the jury was instructed that the defendant was accused of committing the offenses" 'on or about a period of time between 1992 and 1996.'" (Id. at p. 257.) Section 661.61 became effective midway through the alleged time period, on November 30, 1994, and therefore could not constitutionally be applied to conduct occurring before that date. (Hiscox, at pp. 257, 261.)
Hiscox held that "[s]ince the jury was not asked to make findings on the time frame within which the offenses were committed, the verdicts cannot be deemed sufficient to establish the date of the offenses unless the evidence leaves no reasonable doubt that the underlying charges pertained to events occurring on or after November 30, 1994." (Hiscox, supra, 136 Cal.App.4th at p. 261.) The generic testimony was not sufficiently definite to satisfy this standard. (Ibid.) Testimony about where the offenses were committed did not pinpoint the dates because the defendant lived with the victims in three different residences during the alleged time period and none of the witnesses were certain about the dates of moves between the residences. (Ibid.) Testimony that the offense underlying one count was committed when the victim was in first grade was insufficient because there was no evidence of his age when he entered first grade and his testimony that the molestation began when he was" 'probably about first grade'" was indefinite. (Id. at pp. 261262.)
In the present case, the earliest date charged in the information was more than a year after the effective date of section 288.7. While the information left the date range somewhat flexible by alleging the offenses were committed "on or about" the stated date range, the jury's verdicts specified that it found the offenses were committed "on December 6, 2007, to December 6, 2010." Thus, unlike Hiscox, here the jury specifically found the offenses in counts 1, 4 and 7 were committed well after section 288.7 became effective.
Naalmay's reliance on Rojas, supra, 237 Cal.App.4th 1298, is no more availing. The defendant was convicted of sexually abusing his stepdaughter, including a violation section 288.7, subdivision (a), committed" 'on or about December 1, 2006, through August 5, 2011.'" (Id. at p. 1302.) This count was based on the victim's report that the defendant had sexually abused her on a number of occasions prior to a specific incident that occurred on or about August 6, 2011. (Ibid.) The only evidence of when these prior offenses occurred was the victim's statement to the police that the abuse began when she was three or four years old. (Ibid.) The jury was instructed that the defendant was alleged to have committed the offense on or about December 1, 2006, through August 5, 2011, and that he could be convicted if the jurors found the offense occurred subsequent to August 12, 2005 (apparently the earliest accrual point for the statute of limitations). (Id. at pp. 1303, 1306.)
Although the instruction stated that the offense was alleged to have occurred within a range of dates that was entirely subsequent to the September 20, 2006 effective date of section 288.7 ("on or about December 1, 2006, through August 5, 2011"), Rojas concluded that the reference to August 12, 2005, made the instruction confusing by indicating it was sufficient to find the offense occurred on or after that date. (Rojas, supra, 237 Cal.App.4th at p. 1307.) Since the jurors knew the victim was born in December 2002, they could have interpreted the 2005 date as related to her statement that the abuse began when she was three or four years old. (Ibid.) If the jurors believed the offense occurred when she was three, it could have been anytime between December 2005 and December 2006, most of which time preceded the effective date of section 288.7. Accordingly, Rojas found an ex post facto violation and reversed the conviction. (Ibid.)
The present case does not involve any such risk of confusion. There was no instruction analogous to the one in Rojas, and the verdicts expressly stated that the offenses occurred within a specific date range that began more than a year after section 288.7 became effective. Naalmay argues that the evidence and arguments in this case created "functionally the same result" as in Rojas because the evidence "put the first offense firmly before the dates alleged in the information." He cites Doe's testimony that "it had already happened" when she was four years old. Doe turned four on December 6, 2006, and the earliest date alleged in the information was December 6, 2007, her fifth birthday. As we have explained, however, Doe testified that Naalmay first touched her before her fifth birthday, when she was four. She did not testify that the incident including the conduct charged in count 1 was the first time he molested her. Doe consistently testified that the three discrete incidents she remembered happened when she was between five and seven years old, well after the effective date of section 288.7.
DISPOSITION
The convictions on counts 7 and 8 are vacated; the remaining convictions are affirmed. The matter is remanded for resentencing.
We concur. MILLER, J., DESAUTELS, J.