Opinion
A149856
11-29-2018
THE PEOPLE, Plaintiff and Respondent, v. JASON LOREN DEWEES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51519420)
A jury found defendant Jason Loren Dewees guilty of forcible rape (Pen. Code, § 261, subd. (a)(2), counts 1 and 2), assault with intent to commit rape or oral copulation on a victim under the age of 18 (§ 220, subd. (a)(2), counts 3 through 7), and a forcible lewd act upon a child (§ 288, subd. (b)(1), count 8). The jury also found a multiple victim allegation pursuant to section 667.61, subdivisions (a) and (e), true. The trial court sentenced Dewees to an aggregate term of 90 years to life.
All further statutory references are to the Penal Code.
Dewees now appeals raising five issues: (1) counts 3 through 7 must be reversed because the trial court prejudicially erred in not instructing sua sponte on the lesser included offense of simple assault (§ 240); (2) count 8 must be reversed because the trial court prejudicially erred in not instructing sua sponte on unanimity; (3) count 8 must be reversed because the trial court instructed with a modified version of CALCRIM No. 207 that did not require the jury to find the crime had been committed before the victim's 14th birthday; (4) section 1202.4, subdivision (f)(3)(F), did not authorize the trial court's award of $750,000 in restitution for non-economic losses suffered by Jane Doe 1; and (5) he is entitled to one additional day of custody credit.
We accept the People's concessions regarding the fourth and fifth arguments enumerated above and order the trial court to strike the $750,000 restitution award and give Dewees one additional day of actual custody credit. We conclude, however, that his remaining arguments lack merit. Therefore, in all other respects, the judgment is affirmed.
BACKGROUND
I.
The Trial
A. Evidence Concerning Jane Doe 1
Jane Doe 1 was born on May 28, 1996. When she was about 12 years old, she moved from foster care to the home of Dewees (her uncle) and her aunt, who became her legal guardians. Their first home together was in Sonoma County. While living there, Dewees behaved inappropriately towards Jane Doe 1, making comments about her breasts and her appearance, and showing her adult pornography. Jane Doe 1 responded by brushing these things off and walking away.
In the summer or fall of 2012, after she had turned 16, the family moved to Contra Costa County, where Dewees' inappropriate behavior escalated.
More than 10 times, Dewees hid under Jane Doe 1's bed, or in her closet, then came out, surprising Jane Doe 1 and grabbing her breasts while she was clothed. Jane Doe 1 asked him to stop, but he said it was just a game and did not relent.
More than seven times, Dewees went into the bathroom while Jane Doe 1 was showering and masturbated in front of the toilet next to the shower. He would try to move the shower curtain while doing this.
More than five times, Dewees brought Jane Doe 1 to the ground, face up, in various parts of the house. He sat on her chest in such a way that he pinned her arms and legs down, unzipped his pants, took out his penis and hit her face with it. During these incidents, Dewees also tried to grab her breasts and to reach around and remove her pants. These incidents ended when Dewees would "give up, or somebody would be coming home."
Dewees had forcible sexual intercourse with Jane Doe 1 about four times. The first time, Dewees yelled at Jane Doe 1 to get on the floor of the master bedroom, then pushed her all the way to the ground, face down, and forced himself on her. It also happened in the carpeted master bedroom closet. During these incidents, Dewees would use his hands to keep Jane Doe 1 down on the floor. After these incidents, Dewees would apologize, tell Jane Doe 1 not to tell anyone, and ask if he was going to prison.
Once in 2013, Dewees went into Jane Doe 1's room in the morning, got on her bed and touched her vagina, but one of his sons walked in, causing him to jump up and stand by the closet then leave. Within 10 minutes of his son leaving the room, Dewees found him and the only thing Dewees said was, "Are we cool?" The son recalled seeing Dewees on Jane Doe 1's bed, and that Dewees stood up when he entered the room. Later, when asked by the police if what he saw was Dewees and Jane Doe 1 having sex, the son replied, "I think so."
By the end of June 2014, Jane Doe 1 moved out of the home to attend college. By the time she left, her relationship with her aunt and uncle had deteriorated, and she had a dispute with them over about $350. Jane Doe 1 testified she had remained silent about the molestation for the duration of her time living with her aunt and uncle out of fear, but in August 2014, she disclosed the molestation to her boyfriend. Months later, she disclosed the molestation to a school counselor and later to her boyfriend's mother, who took her to the police.
B. Evidence Concerning Jane Doe 2
Jane Doe 2, who is Jane Doe 1's younger sister, was born August 28, 1999. When she was around six or seven years old, while at her aunt and uncle's house in Sonoma County, Dewees put Jane Doe 2 on his lap then moved her in a "humping way."
After the family moved to Contra Costa County, and when Jane Doe 2 was around 13 or 14, she lived with them for several months, short of a year. She shared a room with Jane Doe 1, and testified Dewees would hide under her bed or in her closet, then leave once Jane Doe 2 discovered him. She also testified she once found herself face up on the ground of an upstairs hallway, either because she fell or because Dewees pushed her, and Dewees, who was crouched over her, touched the cup of her bra, saying it was showing. When she relayed this incident to the police, Jane Doe 2 said Dewees was sitting on her stomach and smiling while she was on her back.
C. Evidence About the Police Investigation
During the police investigation, the police took carpet samples from the master bedroom and master bedroom closet of the home in Contra Costa County and found semen on two of the closet samples. A criminalist concluded the sperm found in one of the samples matched Dewees' DNA. On the same carpet sample, the criminalist also found nucleated epithelial cells—i.e., cells found in body cavities, such as the vagina or rectum, and also in the lining inside of a penis—but it was inconclusive whether any of those nucleated epithelial cells matched Jane Doe 1's DNA.
The police also searched Dewees' car and found two laptops in it and Jane Doe 1's high school identification card. A forensic examination of the hard drive of one computer revealed about 40 images of minors under the age of 18 in underwear and posing sexually. The examination also revealed a user had performed searches at various times in 2014 and 2015 using the terms "hot" and "teen" and accessed pornographic videos on pornhub.com under the website's subcategory for "teens."
D. Summary of the Defense Evidence
At trial, the defense presented testimony that several months before Jane Doe 1 made her accusations, she was in contact with her biological mother and at odds with her aunt and uncle due to her belief they lied to her about the reasons for her separation from her biological mother. Dewees' sons and his wife testified, among other things, that they looked at pornographic websites and at pornography depicting young girls on the family's computers. Two of Dewees' nieces testified as character witnesses.
Dewees testified on his own behalf and denied molesting Jane Doe 1 or Jane Doe 2, or looking at Jane Doe 1 in the shower.
DISCUSSION
I.
The Trial Court Did Not Err in Failing to Instruct the Jury on Simple Assault
As a Lesser Included Offense of Assault with Intent to Commit Rape
or Oral Copulation on a Minor.
Dewees was convicted in counts 3 through 7 of assault with intent to commit rape and/or oral copulation on victim Jane Doe 1, who was under the age of 18 (§ 220, subd. (a)(2)). The conduct underlying these charges was Dewees' acts of pinning Jane Doe 1 to the ground, face up, on more than five occasions and hitting her in the face with his exposed penis.
Dewees contends the trial court prejudicially erred in failing to instruct the jury sua sponte on the lesser included offense of simple assault because the evidence supported the conclusion he had no intent to commit rape and/or oral copulation during these incidents. He claims there was evidence supporting this lack of intent to commit rape and/or oral copulation because he did not rape Jane Doe 1 or force her to orally copulate him on these occasions, even though he could have done so, as evidenced by the fact that he did rape her on other occasions and accomplished those rapes in a different manner, i.e., by forcing her to the ground face down and promptly penetrating her.
There is no dispute between the parties that simple assault in violation of section 240 is a lesser included offense of assault with intent to commit specified sex offenses in violation of section 220, subdivision (a). (See People v. Elam (2001) 91 Cal.App.4th 298, 308.) As such, the trial court had a sua sponte obligation to instruct the jury on simple assault if substantial evidence supported Dewees' guilt only of that lesser offense. (People v. Breverman (1998) 19 Cal.4th 142, 154, 162.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury." (Id. at p. 162.) "Substantial evidence" in this context is evidence from which " ' "a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed." (Id. at p. 162.) Put another way, "[s]ubstantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive." (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.) "In deciding whether evidence is 'substantial' in this context, a court determines only its bare legal sufficiency, not its weight." (Breverman, at p. 177.)
A violation of section 220, subdivision (a) is complete if, at any moment during the assault, the accused intended to commit a specified sex offense. (CALCRIM No. 890; People v. Trotter (1984) 160 Cal.App.3d 1217, 1223; People v. Meichtry (1951) 37 Cal.2d 385, 388-389.) Rape and/or oral copulation were the specified sex offenses at issue in this case.
Rape involves an act of sexual intercourse, and sexual intercourse is defined as "any penetration, no matter how slight, of the vagina or genitalia by the penis. [Ejaculation is not required.]" (CALCRIM No. 1000; see § 261, subd. (a).) "Oral 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." (CALCRIM No. 1015, italics omitted and added; see People v. Grim (1992) 9 Cal.App.4th 1240, 1243 [defining "oral copulation"]; People v. Dement (2011) 53 Cal.4th 1, 41-43 & fns. 18-19 [same], disapproved on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) "It has long been recognized that section 288a [oral copulation] proscribes unlawful oral-genital contact. [Citation.] The gravamen of the offense is the revulsion and harm suffered by one who is forced to unwillingly touch his or her mouth to the genitals of another." (People v. Catelli (1991) 227 Cal.App.3d 1434, 1450.)
Here, no substantial evidence supported a finding that Dewees was guilty only of simple assault. Stated otherwise, "there was no reason why the jury would have rejected the prosecution's evidence that defendant committed [assault with intent to commit oral copulation or rape]." (People v. Friend (2009) 47 Cal.4th 1, 51-52 [" ' "if there is no proof, other than an unexplainable rejection of the prosecution's evidence, that the offense was less than that charged, such instructions [on lesser included offenses] shall not be given" ' "].) The evidence concerning these charges showed Dewees brought Jane Doe 1 to the ground, face up, then sat on her chest and in such a way that he pinned down her arms. He then unzipped his pants, took out his penis and hit her in the face with it. The mouth is a facial feature unique from other facial features in its common use as an instrument for performing sex acts, and Dewees' acts of hitting Jane Doe 1 in the face with his penis strongly supports the inference that he intended, at least, to touch her mouth with his penis, which is all that is required for oral copulation. There was no evidence that Dewees was only trying to touch some other part of Jane Doe 1's face (e.g., her eyes, eyebrow, nose) with his penis. Further, Jane Doe 1's testimony provides strong evidence of his intent to rape her as well. Specifically, she testified that while pinning her down, he tried to turn around and remove her pants on these occasions, that he was unable to do so and that he either gave up or stopped because someone was coming home.
Dewees argues the fact he did not rape Jane Doe 1 or force her to orally copulate him is substantial evidence that he lacked the intent to do those things. This is unpersuasive for two reasons. Again, only minimal touching of the mouth with the penis is required for oral copulation and hitting her in the face with his exposed penis was highly likely to result in just that. Second, as to rape, his lack of success does not show lack of intent. Again, he tried, but failed to remove her pants on each of these occasions. She also testified that she struggled, trying to wiggle, kick and move her arms. There was no evidence that he stopped because he was satisfied. Rather, she testified, he simply gave up or stopped because someone came or was coming home. Her testimony strongly suggested that, at least at some point during these incidents, he intended to rape her. That is all that is required. (See People v. Maury (2003) 30 Cal.4th 342, 399-400 [offense of assault with intent to commit rape is complete if at any moment during the assault the accused intends to use whatever force may be required; the abandonment of that intent before consummation of the act will not erase the felonious nature of the assault].)
Dewees also contends substantial evidence supported a simple assault instruction because, when he did finally rape Jane Doe 1, he accomplished those rapes in a different manner, i.e., by forcing her to the ground, face down, and promptly penetrating her. This is a non sequitur. His success in raping her at other times, from a different position, is not substantial evidence he lacked intent to rape or engage in oral copulation with her during the earlier incidents. On the contrary, this shows that he learned from those incidents that when he pinned her down and sat on her facing the top half of her body he could not successfully remove her pants. His change of tactics, ordering her onto the floor, pushing her into a face-down position, removing her pants and then raping her from behind shows only that his determination to rape her did not dissipate.
Finally, Dewees did not testify that he put his penis on Jane Doe 1's face without intent to commit oral copulation or that he tried to take off her pants without intending to rape her. Rather, he simply denied ever having molested Jane Doe 1 at all. His testimony thus does not provide substantial evidence supporting an instruction on simple assault.
Having considered the entire record, we find there was no substantial evidence Dewees was guilty only of simple assault on the occasions when he pinned her down, took out his penis, hit her in the face with it and tried to remove her pants. The trial court thus did not err in failing to instruct the jury on simple assault as a lesser included offense of assault with intent to commit sexual acts.
Even if we concluded there was error in failing to instruct on simple assault, we would reject Dewees' instructional error argument on the ground that such error did not result in prejudice. " '[T]he failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility.' [Citation.] Under the state standard, 'such misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome.' [Citations.] 'The Supreme Court has emphasized "that a 'probability' in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility. [Citations.]" ' " (People v. Campbell (2015) 233 Cal.App.4th 148, 165.) Under this standard, "[t]here is a reasonable probability of a more favorable result . . . when there exists 'at least such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error affected the result.' " (People v. Mower (2002) 28 Cal.4th 457, 484, quoting People v. Watson (1956) 46 Cal.2d 818, 837.) The reviewing court may consider the relative strengths and weaknesses of the evidence supporting the greater and lesser instructions. (People v. Breverman, supra, 19 Cal.4th at pp. 177-178.)
Given the record in this case, it is not reasonably probable that a jury would have found Dewees did not, at some point during the assaults, intend at the very least to touch Jane Doe 1's mouth with his exposed penis. Therefore, the trial court's failure to instruct on simple assault was harmless.
II.
The Trial Court Did Not Err in Failing to Give a Unanimity Instruction for Count 8.
Dewees argues the evidence showed two acts that could have supported the charge of forcible lewd act on a child, Jane Doe 2, in violation of section 288, subdivision (b)(1): i.e., the incident when he allegedly sat Jane Doe 2 on his lap then moved her in a "humping way" at the house in Sonoma County, and the incident where he crouched over or sat on Jane Doe 2 while she was face up on the floor, and touched the cup of her bra at the house in Contra Costa County. As such, Dewees claims the trial court erred in failing to instruct the jury sua sponte that it was required to unanimously agree on which act constituted the offense. We find no error.
When a defendant is charged with a single offense but there is proof of several acts any one of which could support a conviction, either the prosecution must select the specific act relied upon to prove the charge, or the court must instruct the jury that all jurors must agree the defendant committed the same act. (People v. Thompson (1995) 36 Cal.App.4th 843, 850.) When the prosecutor does not make an election, the trial court has a sua sponte duty to instruct the jury on unanimity. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.)
Here, the prosecutor clearly relied on the incident where Dewees allegedly crouched over or sat on Jane Doe 2 and touched her bra cup as the act supporting count 8. The information, which was read to the jury at the start of trial, specifically charged count 8 as a forcible lewd act upon a child occurring on or between September 1, 2012, and September 1, 2013. The trial court instructed the jury with CALCRIM No. 207 that the alleged crimes occurred during the period from September 1, 2012, to September 1, 2013. The verdict form also states that the conduct count 8 was based on took place on or between September 1, 2012, and September 1, 2013. Further, when the prosecutor discussed count 8 during closing argument, he repeatedly and specifically indicated he was referring to the incident that occurred after Jane Doe 2 had moved into the Contra Costa County home at around 13 years old. Even the defense attorney told the jury during closing argument the alleged humping incident that took place at the house in Sonoma County years earlier was not a charged offense, but could be used to evaluate witness credibility.
The foregoing demonstrates that the crime alleged in count 8 was based on Dewees' crouching over or sitting on Jane Doe 2 and touching her bra cup. (See, e.g., People v. Mayer (2003) 108 Cal.App.4th 403, 418 [finding no unanimity instruction necessary where indictment, instructions, and verdict forms specified date of crime, and prosecutor made clear during opening and closing argument which act was basis for charge].) Because the prosecutor elected this incident as proof of count 8, the trial court did not err in not instructing on unanimity.
Dewees' reliance on People v. Diedrich (1982) 31 Cal.3d 263 and People v. Melhado (1998) 60 Cal.App.4th 1529 (Melhado) is misplaced. In Diedrich, the court found error in failing to instruct on unanimity because the record supported two distinct violations of the bribery statute (§ 165) "during the period alleged in that count." (Diedrich, at pp. 280, 282.) Here, by contrast, only one of the two acts that could have supported the charge occurred within the period alleged in count 8.
In Melhado, two distinct acts of misconduct supported a section 422 conviction: threats the defendant made to the victim at 9:00 a.m. and then at 11:00 a.m. the same day. (Melhado, supra, 60 Cal.App.4th at pp. 1533-1535.) The prosecutor in Melhado elected to rely on the 11:00 a.m. act, but communicated that election only to the trial judge, not to the jury. (Id. at p. 1535.) The prosecutor then discussed both incidents during closing argument. (Ibid.) When the defendant complained on appeal about the failure to give a unanimity instruction, the People claimed no such instruction was required because the prosecutor clearly relied on the 11:00 a.m. incident. (Id. at pp. 1532, 1535-1536.) The court rejected the People's argument, explaining: "It is possible to parse the prosecution's closing argument in a manner which suggests that more emphasis was placed on the 11 a.m. event than on the others. However, even assuming that this was so, we find that the argument did not satisfy the requirement that the jury either be instructed on unanimity or informed that the prosecution had elected to seek conviction only for the 11 a.m. event . . . ." (Id. at p. 1536.) Here, unlike Melhado, the prosecutor clearly specified the conduct he was relying on to prove count 8.
For the same reasons that we conclude no unanimity instruction was required for count 8, Dewees' further arguments that his counsel's failure to request such an instruction constituted ineffective assistance of counsel and that the failure to give such instruction violated his right to due process are without merit.
III.
Defendant Forfeited the Argument That the Modified Version of CALCRIM No. 207
Given for Count 8 Was Erroneous.
The trial court instructed with a modified version of CALCRIM No. 207. As read and given to the jury, it stated the crime occurred during the period from September 1, 2012, to September 1, 2013, and "[t]he People are not required to prove that the crime took place exactly on that day or during that time period, but only that it happened reasonably close to that day or time period." Jane Doe 2 was born on August 28, 1999, and thus during almost the entire time period for count 8 Jane Doe 2 was 13 years old. However, the end of the period included the three days after her 14th birthday.
Dewees argues count 8 should be reversed because, he contends, the instruction told the jury the People were not required to prove the charge was committed prior to Jane Doe 2's 14th birthday as long as it was committed reasonably close to that time period. We disagree.
First, Dewees forfeited this argument by not objecting to the trial court's modified version of CALCRIM No. 207 or requesting any modification or clarification of it below. "A trial court has no sua sponte duty to revise or improve upon an accurate statement of law without a request from counsel [citation], and failure to request clarification of an otherwise correct instruction forfeits the claim of error for purposes of appeal." (People v. Lee (2011) 51 Cal.4th 620, 638.) "CALCRIM No. 207 accurately states the general rule that when a crime is alleged to have occurred 'on or about' a certain date, it is not necessary for the prosecution to prove the offense was committed on that precise date, but only that it happened reasonably close to that date." (People v. Rojas (2015) 237 Cal.App.4th 1298, 1304.)
Dewees claims no forfeiture occurred and defense counsel did not need to object because the version of CALCRIM No. 207 given to the jury in this case was an erroneous statement of law concerning the element of the offense that required the People to prove the conduct on which count 8 was based was committed before Jane Doe 2's 14th birthday, which took place on August 28, 2013. Again, we disagree. The challenged instruction did not refer to Jane Doe 2 or to her birthday or her age. Nor was it a statement about the elements of the crime alleged in count 8. It was a general instruction that was correct, so far as it goes, and the jury was separately instructed on the elements of the crime.
Dewees having forfeited his right to challenge an instruction that was not an erroneous statement of the law, we review his claim of error only to determine if his substantial rights were affected, i.e., whether the error resulted in a miscarriage of justice such that it is reasonably probable he would have obtained a more favorable result absent the error. (Rojas, supra, 237 Cal.App.4th at p. 1304.) We conclude it is not reasonably probable he would have obtained a more favorable result absent the alleged error.
For the same reasons we conclude any error regarding the instruction was harmless, we also conclude the failure of his counsel to challenge the instruction was harmless.
" 'A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. [Citations.]' [Citation.] ' "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." [Citations.]' " (People v. Solomon (2010) 49 Cal.4th 792, 822.)
In this case, the trial court instructed the jury to consider all the instructions together. CALCRIM No. 207 told the jury the time period during which each of the crimes allegedly occurred and that the People did not need to prove a crime occurred on a specific date. The trial court then specifically instructed the jury regarding count 8 that the People had to prove the victim "was under the age of 14 years at the time of the act." The instruction for the offense also described the count as a charge of a "lewd or lascivious act by force or fear on a child under the age of 14 years." Further, during argument, the prosecutor noted the jury had to find the victim was under the age of 14 at the time of the offense and argued that the evidence showed she was under 14. "Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions." (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Here, there is nothing in the record suggesting the jury did not understand the People had to prove Jane Doe 2 was under the age of 14 at the time of the offense.
The cases Dewees cites—People v. Hiscox (2006) 136 Cal.App.4th 253 and People v. Riskin (2006) 143 Cal.App.4th 234—do not support his argument. Both involved ex post facto challenges to the imposition of sentences under the One Strike Law (§ 667.61). In Hiscox, the jury was not instructed it could only make findings under section 667.61 for acts committed after the effective date of that section. (Hiscox, at pp. 258, 261.) The Hiscox court found the verdicts insufficient to establish the dates of the offenses "[s]ince the jury was not asked to make findings on the time frame within which the offenses were committed." (Id. at p. 261.) In Riskin, the defendant claimed there was no proof beyond a reasonable doubt he committed the crime after the effective date of the One Strike Law. (Riskin, at pp. 243-244.) The Riskin court agreed the evidence did not establish beyond a reasonable doubt that the crime occurred after the effective date of the One Strike Law and overturned the sentence. (Id. at p. 245.)
Here, unlike the circumstances in Hiscox and Riskin, the trial court instructed with CALCRIM No. 1111, which required the jury to find the crime alleged in count 8 occurred when the victim was under the age of 14.
IV.
The $750 , 000 Restitution Award for Non-economic Losses Suffered by Jane Doe 1
Was Unauthorized and Dewees Is Entitled to One Additional Day of Custody Credit.
Dewees contends section 1202.4, subdivision (f)(3)(F), did not authorize the trial court's award of $750,000 in restitution for non-economic losses suffered by Jane Doe 1. The People concede the issue. We accept this concession. Section 1202.4, subdivision (f)(3)(F), permits a restitution award for "[n]oneconomic losses, including, but not limited to, psychological harm, for felony violations of Section 288, 288.5, or 288.7." Here, Dewees was not convicted under sections 288, 288.5, or 288.7. (See People v. Valenti (2016) 243 Cal.App.4th 1140, 1181-1182.) Nor could his convictions constitute "violations" of those statutes, since the jury convicted him of crimes involving Jane Doe 1 that occurred after her 16th birthday and, as relevant here, sections 288, 288.5, or 288.7 require younger victims. (See People v. McCarthy (2016) 244 Cal.App.4th 1096, 1109.)
Section 288 also covers mentally and physically disabled persons of any age in certain circumstances. (See § 288, subds. (b)(2) & (f)(1)-(3).)
Finally, Dewees claims the trial court erroneously awarded him 470 days of actual time credit for time in custody from July 16, 2015, to the October 28, 2016, rather than 471 days of credit. Again, the People concede the issue. We accept the concession and, in the interest of efficiency, direct the trial court to modify the judgment to reflect the extra day. (See People v. Jones (2000) 82 Cal.App.4th 485, 493.)
DISPOSITION
The trial court is ordered to prepare and to forward to the Department of Corrections and Rehabilitation an amended abstract of judgment that: (i) strikes the $750,000 restitution award for noneconomic losses to Jane Doe 1, and (ii) awards 471 days of actual custody credit. The judgment is affirmed in all other respects.
/s/_________
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.