Opinion
F060881 Super. Ct. No. F08900642
01-19-2012
THE PEOPLE, Plaintiff and Respondent, v. PHILLIP ARELLANO, Defendant and Appellant.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Edward Sarkisian, Jr., Judge.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.
On June 10, 2010, a jury found Phillip Arellano (appellant) guilty of two counts of forcible lewd acts on a child (Pen. Code, § 288, subd. (b)(1)) alleged to have occurred between August 27, 2001, and April 15, 2002. It acquitted him of one count of continuous sexual abuse while residing with a child, allegedly occurring between April 15, 2003, and May 15, 2004. (Pen. Code, § 288.5.) The trial court sentenced appellant to the midterm of six years in state prison.
Appellant was a minor at the time of the offenses charged against him but was an adult at the time of trial. He was tried in criminal court pursuant to Welfare and Institutions Code section 602, subdivision (b)(2)(D).
Appellant contends the trial court erred and violated his constitutional rights when it excluded evidence that the victim claimed she had been molested by another person, in addition to the molestation of which she accused appellant. He also contends there is insufficient evidence that the forcible lewd act convictions occurred within the time frame pled in the information. We reject the argument regarding the sufficiency of the evidence, but we agree the trial court erred in excluding the other-molestation evidence. We will remand for an Evidence Code section 782 hearing regarding that evidence.
Further statutory references are to the Evidence Code unless otherwise noted.
FACTS
A. was 18 years old when she testified at appellant's trial. A.'s father, Domingo, and appellant's mother, Frances, married each other when appellant was eight years old, in March of 1996. At that time, A., who was born in April of 1992, was almost four years old. During their nine-year marriage, Frances and Domingo had four daughters together.
According to A's testimony, appellant first touched her inappropriately when A. was six years old—sometime between April 1998 and April 1999. He touched her on her vaginal area underneath her clothing and told her not to tell anyone about it. This act was not charged against appellant.
A. also testified that appellant touched her inappropriately when she was eight years old, which would have been between April of 2000 and April of 2001. At that time, according to A., appellant was babysitting and the two were under a blanket together. Appellant got on top of A., pinned her down, and had sexual intercourse with her. A. was "too afraid" to tell her father. Neither was this act charged against appellant.
In the year after A.'s ninth birthday in April of 2001, according to her testimony, appellant had forced sexual intercourse with her on more than three but less than five occasions. She recalled that these events did not take place in the summer, because her stepmother was at home. Instead, they occurred after she went to a new school. In counts 1 and 2 of the information, appellant was charged with two violations of Penal Code section 288, subdivision (b) occurring between August 27, 2001, and April 15, 2002. The jury found appellant guilty of both of those charges.
When A. was 11, between April 2003 and April 2004, her grandmother moved in with the family for six months. On the day the grandmother was in the process of moving in, when she left to get another load of belongings, appellant again forced A. into sexual intercourse. While that was occurring, A. saw her younger sister, Q., in the doorway watching them. A. testified that the next time appellant "assaulted" her, her grandmother had moved out. Appellant "assaulted" A. on two more occasions, months apart, but stopped after A. began her menstrual cycles at the age of 12. In count 3 of the information, appellant was charged with continuous sexual abuse of a child (Pen. Code, § 288.5), occurring between April 15, 2003, and May 15, 2004. The jury acquitted appellant of that charge.
A.'s best friend and school classmate, Cindy G., testified that, when they were in sixth grade, A. told her what appellant had done to her. Cindy said that A. told her appellant had either touched A. or "put his private part in her." A. told Cindy that appellant had touched her in a way "that wasn't normal" and was "[u]ncomfortable." A. told Cindy she was afraid to tell her father and would never tell him.
By October of 2005, appellant and A. no longer lived in the same household because their parents had separated. In May of 2007, A. told her father's girlfriend what appellant had done. She then told her father, who called the police. A.'s father also told appellant's mother, who asked her four daughters if appellant had ever touched any of them. Q., the oldest, started to cry and said she had seen appellant on top of A. and that appellant had hit her and warned her not to tell.
Clinical psychologist Randall Robinson, an expert in Child Sexual Abuse Accommodation Syndrome, testified that children who do not physically resist sexual abuse rarely disclose the abuse immediately.
Defense
Defense investigator Marcelino Morales testified that he interviewed Q. in February of 2008, and she told him she did not see what had happened between appellant and A. According to Morales, Q. said she did not remember reporting that she saw appellant put his private part into A.'s private part and could not explain why she had made such a statement. She also said she loved her brother. Q. had testified earlier that what she told Morales was not true and that she had changed her story because she did not want anything to happen to her brother.
Appellant's grandmother testified that she lived with appellant and his family in the summer of 2003 or 2004, that she lived there for six months, and that she was there "all the time" because she was the babysitter.
Appellant testified in his own defense that he had been a Marine for five years, that he had earned the rank of lance corporal and that, by 2010, he was married and had a daughter. He recalled moving in with A.'s family in 1994 or 1995, and stated he first learned of A.'s allegations in 2007 when he was deployed to Iraq.
Appellant denied ever sexually abusing A. and thought that maybe Q. had made up the allegations due to the divorce between her mother and father.
DISCUSSION
1. Did the trial court properly exclude evidence that the victim had made another similar accusation?
Approximately six months prior to trial in this matter, A. gave a statement to district attorney investigator Shelly Sweeton in which she said that she recently recalled having been sexually molested by her biological brother, Jonathan, when she was six years old. Appellant contends the trial court erred when it excluded evidence of this accusation. He also contends the trial court erred in failing to hold a hearing pursuant to section 782. He argues the proffered evidence was critical to his defense (1) because it contradicted statements also made by A. that she had never seen male genitalia before appellant allegedly raped her when she was eight; (2) because the acts occurred around the same time as those involving appellant and, therefore, A. might be accusing appellant of her biological brother's wrongdoings; and (3) because the evidence would have combined with other claims by A., that she had been molested by still other people, to cast doubt on her testimony as improbable. He also contends that the evidence should have been admitted as a prior false accusation of molestation under section 1103, subdivision (a)(1).
In relevant part, section 782 provides: "(a) In [a prosecution under section 288 of the Penal Code], if evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness under Section 780 [considerations in determining credibility of a witness], the following procedure shall be followed: [¶] (1) A written motion shall be made by the defendant to the court and prosecutor stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the complaining witness proposed to be presented and its relevancy in attacking the credibility of the complaining witness. [¶] (2) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated.... [¶] (3) If the court finds that the offer of proof is sufficient, the court shall order a hearing ... and ... allow the questioning of the complaining witness regarding the offer of proof made by the defendant. [¶] (4) [I]f the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant pursuant to Section 780, and is not inadmissible pursuant to Section 352, the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted...."
Section 1103, subdivision (a)(1) provides: "In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character."
A. Procedural History
1. The In Limine Motion
Prior to trial, appellant moved pursuant to sections 782 and 1103, subdivision (a)(1) to be allowed to introduce evidence that A. accused her biological brother Jonathan of molesting her when she was six years old. According to the defense's offer of proof, Shelly Sweeton would testify that, while Sweeton was investigating the current case, A. told her that she had recovered repressed memories of being forced to orally copulate Jonathan. Appellant argued two of the theories of relevance that he argues here. First, he noted this evidence was inconsistent with another of A.'s statements—that she had never seen male genitalia before appellant allegedly raped her when she was eight—and argued the evidence was relevant to A.'s credibility. Second, he asserted that, because A. vacillated as to when various incidents of abuse occurred and the allegations against Jonathan were similar to those she made against appellant, the evidence involving Jonathan was relevant to prove that A. might be accusing appellant of wrongdoings actually committed by Jonathan.
The prosecution argued to exclude the evidence involving Jonathan because the incident had never been investigated or charged and, further, the defense could not show the accusation was false or inaccurate because Jonathan was now dead, the victim of a murder. In order to show that the evidence was admissible under section 1103, subdivision (a)(1), the defense was required to show that the accusation against Jonathan was false. (People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 598-599.)
Following argument on appellant's motion, the trial court stated that "this is truly an Evidence Code section 210 [relevance], and particularly an Evidence Code Section 352 consideration." The court then excluded the evidence on four grounds: (1) that appellant failed to make an offer of proof establishing relevance and triggering a hearing under section 782; (2) that there was no way of knowing whether the accusation was true or false and therefore it was not admissible under section 1103, subdivision (a)(1); (3) that the alleged acts were "'so dissimilar to the charged crimes'"; and (4) that the evidence "even if minimally relevant, which the Court does not find" would "give rise to an undue consumption of time, confuse the issues, and mislead the jury" under section 352.
2. The Midtrial Motion
At trial, A. surprised both the prosecutor and the defense when she testified on direct examination about being raped by appellant's friend when she was nine years old. The two boys, appellant and his friend, pulled down her pants and forced her into the house. Once inside, they touched A. with their penises. A.'s five-year-old stepsister Q. also was in the house. Appellant told A. to be quiet, while appellant's friend had forced sexual intercourse with her. A. had never mentioned this event before in any of numerous statements she had given to investigators.
A. also surprised both the prosecutor and the defense with testimony on cross-examination that, after a friend of appellant's named Daniel moved in with the family, Daniel made a comment about A.'s breasts and appellant said "[g]o ahead and pick one." A. did not testify as to when this occurred, but other testimony placed A.'s age at about 12 when Daniel lived with the family. A. had never before mentioned any incident involving Daniel.
Following this testimony, appellant renewed his motion to admit the evidence involving Jonathan under section 782 in order to impeach A. He argued that, after A.'s surprise testimony about being raped by appellant's friend and about the incident with Daniel, there was even more reason to place the evidence concerning Jonathan before the jury. The trial court, however, rejected the renewed motion. It stated:
"[T]he previous ruling will continue to be the order of the Court.... As stated in the previous ruling, after weighing all of the [section] 352 considerations, the Court concludes again that discretion must be exercised in disallowing reference to the victim's conduct and relationship, if any with Jonathan .... [¶] ... [¶] [T]he previous in limine ruling still stands. And ... for the reasons expressed therein any reference to Jonathan ... will continue to be disallowed."
The court then explained its view that A.'s surprise testimony about being raped by appellant's friend and accosted by Daniel served, in essence, as a substitute for a section 782 hearing and for admission of the proffered evidence relating to Jonathan because
"regarding when the victim first saw or was exposed to male genitalia[,] [i]n a sense through her direct examination she has presented or interjected that evidence regarding a person by the name of Daniel. [I]n light of its introduction on direct examination, to that extent [section] 782 evidence has already been received and heard by the jury ... and Defense Counsel has been afforded the opportunity to cross-examine the victim .... "
B. Section 782
Generally, a defendant may not question a witness who claims to be the victim of sexual assault about his or her prior sexual activity. (§ 1103, subd. (c)(1); People v. Woodward (2004) 116 Cal.App.4th 821, 831.) Section 782, however, provides an exception to this general rule. (See generally People v. Bautista (2008) 163 Cal.App.4th 762, 781-782; People v. Chandler (1997) 56 Cal.App.4th 703, 707-708; People v. Daggett (1990) 225 Cal.App.3d 751, 757.)
Section 782 requires a defendant seeking to introduce evidence of the witness's prior sexual conduct to file a written motion accompanied by an affidavit containing an offer of proof concerning the relevance of the proffered evidence. (§ 782, subd. (a)(1), (2).) The trial court is vested with broad discretion to weigh a defendant's proffered evidence, prior to its submission to the jury, "and to resolve the conflicting interests of the complaining witness and the defendant." (People v. Rioz (1984) 161 Cal.App.3d 905, 916.) "[T]he trial court need not even hold a hearing unless it first determines that the defendant's sworn offer of proof is sufficient." (Ibid.; see § 782, subd. (a)(2).)
If the offer of proof is sufficient, however, the court must conduct a hearing outside the presence of the jury and allow defense counsel to question the complaining witness regarding the offer of proof. (§ 782, subd. (a)(3); People v. Fontana (2010) 49 Cal.4th 351, 365-368.) "The defense may offer evidence of the victim's sexual conduct to attack the victim's credibility if the trial judge concludes following the hearing that the prejudicial and other effects enumerated in ... section 352 are substantially outweighed by the probative value of the impeaching evidence." (People v. Chandler, supra, 56 Cal.App.4th at p. 708; see § 783, subd. (a)(4).)
Section 782 has been found to apply where the defense seeks to introduce relevant evidence of prior sexual conduct by a child. (People v. Daggett, supra, 225 Cal.App.3d at p. 757.) As applied in child molestation cases, section 782 is designed to protect persons complaining of molestation from "embarrassing personal disclosures" unless the defense is able to show in advance that the witness's sexual conduct is relevant to his or her credibility. (People v. Harlan (1990) 222 Cal.App.3d 439, 447; People v. Bautista, supra, 163 Cal.App.4th at p. 782.)
C. Section 1103, subdivision (a)(1)
Pursuant to subdivision (a)(1) of section 1103, evidence that the victim in a sexual assault or child molestation case has previously made a false allegation against another person or the defendant is admissible to attack the victim's credibility. (People v. Burrell-Hart, supra, 192 Cal.App.3d at pp. 598-599.)
D. Analysis
A trial court's exercise of discretion in admitting or excluding evidence "will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10; People v. Chandler, supra, 56 Cal.App.4th at p. 711.) Here, for the following reasons, we hold that the trial court abused its discretion in denying appellant's motion for a section 782 hearing and in excluding appellant's proffered evidence.
First, it appears the court misinterpreted either appellant's primary theory of relevance (inconsistency regarding when A. first saw male genitalia) or the evidence presented regarding the rape by appellant's friend or the incident concerning Daniel. The court's comments when denying appellant's midtrial motion demonstrate the court thought that A.'s testimony about Daniel would serve as a substitute for the proffered evidence about Jonathan. There is no evidence in the record, however, about exactly what Daniel did, other than to comment about A.'s breasts. As for appellant's friend who forced A. to have sexual intercourse, that occurred when A. was nine years old, long after she would have seen appellant's and, perhaps, Jonathan's genitalia. The trial court's weighing of relevance against the other section 352 factors was thus flawed.
Second, the court appears to have misapplied the holding and rationale of People v. Daggett, supra, 225 Cal.App.3d 751. There the appellate court reversed a child molestation conviction where the trial court had refused to hold a hearing on the admissibility of evidence that the child victim had been molested by older children five years earlier. The court explained the relevance of the proffered evidence:
"A child's testimony in a molestation case involving oral copulation and sodomy can be given an aura of veracity by his accurate description of the acts. This is because knowledge of such acts may be unexpected in a child who had not been subjected to them. [¶] In such a case it is relevant for the defendant to show that the complaining witness had been subjected to similar acts by others in order to cast doubt upon the conclusion that the child must have learned of these acts through the defendant. Thus, if the acts involved in the prior molestation are similar to the acts of which the defendant stands accused, evidence of the prior molestation is relevant to the credibility of the complaining witness and should be admitted." (Id. at p. 757.)
The Daggett court concluded that the trial court should "have ordered a hearing to determine whether the acts of prior molestation were sufficiently similar to the acts alleged here. The court erred when it failed to do so." (People v. Daggett, supra, 225 Cal.App.3d at p. 757.)
The trial court here refused to hold a section 782 hearing, rejecting any evidence regarding Jonathan on the basis that the alleged acts relating to molestation by Jonathan "'were so dissimilar to the charged crimes...."' But the Daggett reliance on similarity was based on logical necessity; the proffered evidence logically was relevant only if it showed prior activity sufficiently similar to that charged to explain how a child could know about such things. (See also People v. Woodward, supra, 116 Cal.App.4th at p. 832 [trial court did not abuse its discretion in excluding evidence of victim's prior molestations because victim's prior sexual contacts were so dissimilar to charged crimes].) The similarity was the evidence "'from which the jury [was] asked to draw an inference about the witness's credibility.'" (People v. Tidwell (2008) 163 Cal.App.4th 1447, 1456.) Similarity here carried no such importance. The jury would have been asked to draw an inference regarding A.'s credibility not from evidence of similarity but, instead, from evidence that she made conflicting pretrial statements. It was not similarity but inconsistency that rendered the evidence important. (Cf. People v. Fontana, supra, 49 Cal.4th at p. 363 [evidence of victim's prior sexual conduct relevant, without similarity, to provide explanation of victim's injuries]; see also People v. Ewoldt (1994) 7 Cal.4th 380, 402 [similarity in context of § 1101 character evidence].) Again, the trial court's section 352 ruling here is rendered unreliable.
The prosecution had provided citation to Daggett in its points and authorities in opposition to the section 782 motion.
Third, the trial court appears to have assumed the presence of factors weighing for exclusion of the evidence, in the section 352 balance, without requiring any real showing in support. At the hearing on appellant's in limine motion, the prosecutor noted there had never been any investigation of or charges stemming from the alleged molestation of A. by Jonathan, who now was dead. The trial court, in turn, predicted that admission of the evidence would cause undue consumption of time and confusion of the jury. We question, however, whether the trial court's prediction was correct. The proffered evidence that A. had claimed to have been molested by Jonathan was, in fact, admissible in the abstract whether her statement was true or not. If it was true, it was relevant as appellant contends—at the least, to show inconsistency about when A. first saw male genitalia; if it was false, it was relevant to impeach A.'s credibility on the basis of a prior false allegation. (§ 1103, subd. (a)(1); see People v. Tidwell, supra, 163 Cal.App.4th at p. 1456 ["the distinction between the attempt to impeach with prior sexual conduct and to impeach with prior false complaints of rape or molest"].) Thus, it seems at least as likely that the prosecution would not have chosen to explore this evidence in any detail but, rather, to avoid discussion of it as much as possible. Again, the propriety of the trial court's section 352 ruling is subject to question.
Finally, the trial court appears to have erred in failing to hold a section 782 hearing at which appellant would have been allowed to examine A. and/or Investigator Sweeten about A's accusation against Jonathan.
In People v. Fontana, supra, 49 Cal.4th 351, the Supreme Court found the trial court had erred in denying a section 782 evidentiary hearing where the defendant had given an offer of proof demonstrating the possible relevance of evidence concerning the sexual assault victim's sexual behavior with her boyfriend a few hours before the assault alleged against the defendant. The court noted that injuries suffered by the victim "could have happened" during the encounter with her boyfriend. (Fontana, at p. 364.) As to a particular kind of injury, the court rejected an assertion that the defendant was on a "fishing expedition," because the offer of proof "identified a specific basis" from which relevance could be inferred. (Id. at p. 367.) "Accordingly, ... the trial court erred in failing to conduct a hearing under ... section 782 to investigate whether" the victim's prior sexual conduct "could have" explained her injuries. (Id. at pp. 367-368.) A "chain of reasoning" demonstrating such a possibility, said the court, "could have created a reasonable doubt as to defendant's guilt ...." (Fontana, supra, at p. 366.)
Here, too, we think the trial court should have allowed a hearing at which it and the parties could have investigated appellant's offer of proof. Only then could the trial court have properly exercised its discretion to admit or exclude the proffered evidence. (People v. Fontana, supra, 49 Cal.4th at pp. 366-368.)
E. Prejudice
In People v. Fontana, supra, 49 Cal.4th 351, the trial court held a hearing on the defendant's posttrial motion for a new trial, at which it allowed the victim to be examined regarding the defendant's previous, section 782, offer of proof. Through the transcript of that hearing, the Supreme Court was able to determine that the denial of a section 782 hearing had not been prejudicial to the defendant. (Fontana, at p. 367.) Here we have no such opportunity to examine the proffered evidence. For that reason, we cannot conclude the error in denying an evidentiary hearing was harmless.
We do not, for example, know whether A.'s hearsay statement accused Jonathan of a single or multiple acts of abuse. At the hearing on appellant's in limine motion, both the prosecutor and defense counsel informed the court that there was confusion over that question.
Neither can we determine, under any standard of review, whether exclusion of the evidence—the precise nature of which we cannot know—was prejudicial. It may be that, at a hearing, it would have developed that A. made no inconsistent statements concerning when she first saw male genitalia, thus weakening appellant's theory of relevance. It may be that, at a hearing, after exploring the proffered evidence and the prosecution's response to it, the trial court would have excluded the evidence in a properly informed exercise of section 352 discretion.
For these reasons, we conclude that the proper remedy here is to remand this case to the trial court for a section 782 evidentiary hearing.
2. Is there sufficient evidence that the two counts of forcible lewd acts occurred within the limitation period?
The information alleged that appellant committed two separate acts of lewd conduct between August 27, 2001, and April 15, 2002. Appellant contends there is insufficient evidence to sustain his convictions because the incidents A. testified to did not occur during the time period alleged. We disagree. Despite our reversal of appellant's convictions on counts 1 and 2, we must consider appellant's contention because, if he were correct, retrial would not be allowed. (Burks v. United States (1978) 437 U.S. 1, 11 [retrial barred after reversal for evidentiary insufficiency].)
The August 27, 2001, date is appellant's 14th birthday. That date is significant because Welfare and Institutions Code section 602, subdivision (b) mandates criminal court jurisdiction of any minor 14 years of age or older facing any specified offenses, including Penal Code section 288, subdivision (b), for which he was charged here. The jury specifically asked whether appellant needed to be at least 14 years old at the time of the alleged crimes, and the trial court answered "Yes." By April 15, 2002, A. was 10.
The role of the appellate court in reviewing the sufficiency of the evidence is limited.
"The court must 'review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence— that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.] [¶] ... But it is the jury, not the appellate court, which must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] Therefore, an appellant court may not substitute its judgment for that of the jury." (People v. Ceja ( 1993) 4 Cal.4th 1134, 1138-1139.)
Respondent does not contend that there was any evidence sufficient to fix the claimed incidents of lewd conduct with A. within the specific time period alleged but, instead, suggests such evidence is unnecessary as long as the evidence indicates guilt within the applicable limitation period. We agree.
In People v. Jones (1990) 51 Cal.3d 294, our Supreme Court held that "generic" testimony of child molestation—that is, "testimony describing a series of essentially indistinguishable acts of molestation"—can constitute substantial evidence supporting multiple child molestation convictions. (Id. at p. 300.) According to the high court, for the victim's "generic" testimony to constitute substantial evidence,
"The victim ... 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." (People v. Jones, at p. 316.)
We conclude there was sufficient evidence to meet the requirements for "generic" testimony set out in Jones. First, A. described various acts appellant committed with sufficient specificity to assure that unlawful conduct had occurred when she testified that, when she was nine years old, appellant forced sexual intercourse with her on more than three, but fewer than five, occasions; when she testified that, when she was 11, appellant forced sexual intercourse with her as her grandmother was in the process of moving into the house, an event that A.'s sister also witnessed; and when she testified that appellant touched her inappropriately on two more occasions after her grandmother moved out but before she began menstruating.
Second, A. described the number of acts appellant committed with sufficient certainty to support both of the counts alleged in the information when she testified that appellant had sexual intercourse with her on at least three, if not more, occasions, all occurring at the family home.
Third, A. adequately described the general time period in which appellant's lewd acts occurred so as to assure the charged acts were committed within the applicable limitation period. Aside from the acts that occurred before appellant turned 14, A. testified that she was nine when appellant had sexual intercourse with her on three, but less than five, occasions after the summer; that she was 11 when appellant had forced sexual intercourse with her before her grandmother moved in; and that appellant touched her inappropriately twice after her grandmother moved out but before she began menstruating at the age of 12.
A. testified that appellant began touching her inappropriately when she was six, that he had forced sexual intercourse with her when she was eight, and that soon after her ninth birthday, appellant and a friend of his chased her, pulled down her pants, touched her with their penises, and the friend then had forced sexual intercourse with her.
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Having concluded the Jones requirements were met, the only question that remains is whether the prosecution was required by some authority, other than the requirement that appellant was 14 years old at the time, to prove appellant committed the lewd acts on A. within the specific, narrow time frames charged in the information. Appellant identifies no such authority, nor have we found any that leads to the conclusion that the prosecution faced such a requirement.
Penal Code section 955 provides that "[t]he precise time at which [an] offense was committed need not be stated in the accusatory pleading, but it may be alleged to have been committed at any time before the finding or filing thereof, except where the time is a material ingredient in the offense." Even when the prosecution opts to allege a specific date or time period for the commission of the charged crime, it has long been the rule that "[w]here time is not of the essence of the crime it may be proved that the act was committed at any time before the information and within the period of limitations." (People v. Roebling (1936) 14 Cal.App.2d 586, 589 [prosecution for committing lewd act where information charged specific day]; see also People v. Becker (1934) 140 Cal.App. 162, 164-165.)
Here, there was sufficient evidence that appellant committed two lewd acts on A. within the periods of limitation—after appellant turned 14 and before A. turned 14—and it is immaterial whether those acts occurred before April 15, 2002, as alleged in the information. Appellant does not suggest that A. was over the age of 14 when any of the acts occurred. Thus, appellant's convictions on those two counts are supported by substantial evidence.
DISPOSITION
The judgment is reversed and the matter is remanded with the following directions: (1) the court shall hold a hearing on appellant's section 782 hearing; (2) if the court concludes, after conducting the section 782 evidentiary hearing, that the proffered evidence is admissible, appellant's conviction shall remain reversed and any new trial shall occur within the time proscribed by law; (3) if the court concludes that the proffered evidence is not to be admitted, the court shall reinstate the judgment of conviction.
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DAWSON, J.
WE CONCUR:
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WISEMAN, Acting P.J.
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GOMES, J.