Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB051034. Ronald M. Christianson, Judge.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
A jury made the following findings: As to count 1, defendant David Najera Gaytan willfully committed a lewd and lascivious act upon Jane Doe, a child under the age of 14. (Pen. Code, § 288, subd. (a).) In regard to counts 2 and 3, defendant attempted to willfully commit lewd and lascivious acts upon Jane Doe, a child under the age of 14. (§§ 664, 288, subd. (a).) As to counts 4 and 5, defendant raped C.N., a child under the age of 14. (§§ 269, subd. (a)(1), 261, subd. (a)(2).) In regard to count 6, defendant forcibly committed a lewd and lascivious act upon C.N., a child under the age of 14. (§ 288, subd. (b)(1).) As to count 7, defendant willfully committed a lewd and lascivious act upon C.N., a child under the age of 14. (§ 288, subd. (a).) Concerning count 8, defendant caused or permitted C.N., a child, to suffer, or inflicted unjustifiable physical pain or mental suffering on C.N., under circumstances other than those likely to produce great bodily harm or death. (§ 273a, subd. (b).) In regard to count 9, defendant forcibly committed a lewd and lascivious act upon B.N., a child under the age of 14. (§ 288, subd. (b)(1).) As to count 11, defendant, under circumstances likely to produce great bodily harm or death, willfully caused or permitted B.N., a child, to suffer, or inflicted unjustifiable physical pain or mental suffering on B.N. (§ 273a, subd. (a).) Additionally, defendant personally inflicted great bodily injury upon B.N. (§ 12022.7, subd. (a).) Concerning counts 12 and 13, defendant sexually penetrated G.N., a child under the age of 14. (§§ 269, subd. (a)(5), 289, subd. (a).) In regard to count 14, defendant forcibly committed a lewd and lascivious act upon G.N., a child under the age of 14. (§ 288, subd. (b)(1).) As to count 15, defendant willfully committed a lewd and lascivious act upon G.N., a child under the age of 14. (§ 288, subd. (a).) Concerning count 16, defendant, under circumstances likely to produce great bodily harm or death, willfully caused or permitted G.N., a child, to suffer, or inflicted unjustifiable physical pain or mental suffering on G.N. (§ 273a, subd. (a).) Further, defendant personally inflicted great bodily injury upon G.N. (§ 12022.7, subd. (a).) In regard to count 17, defendant caused or permitted D.N., a child, to suffer, or inflicted unjustifiable physical pain or mental suffering on D.N., under circumstances other than those likely to produce great bodily harm or death. (§ 273a, subd. (b).) As to all the counts on which defendant was found guilty, with the exception of counts 8, 10, 11, 16, and 17, the jury found true the allegations that defendant committed the offenses against more than one victim. (§ 667.61, subd. (e)(5).) The trial court sentenced defendant to state prison for a determinate term of 19 years 4 months, and an indeterminate term of 105 years to life. Additionally, the trial court sentenced defendant to San Bernardino County Jail for a consecutive term of 180 days.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant makes seven contentions. First, defendant asserts substantial evidence does not support the findings that he committed the crimes in counts 5, 6, 7, 9, 13, 14, and 15. Second, defendant argues substantial evidence does not support the findings in counts 11 and 16 that he inflicted great bodily injury. Alternatively, defendant contends the sentences for the great bodily injury enhancements in counts 11 and 16 should have been stayed pursuant to section 654. Third, defendant contends his convictions in counts 8, 11, and 17 are barred by the statute of limitations. Fourth, defendant argues the trial court abused its discretion by permitting expert testimony on the subject of Child Sexual Abuse Accommodation Syndrome. Fifth, defendant contends the trial court erred by not instructing the jury on the lesser included offenses in counts 2, 3, 4, 5, 9, 12, 13, 14, and 15. Sixth, defendant asserts the trial court erred by not staying his sentences for counts 2 and 3. Alternatively, defendant contends the trial court violated his constitutional rights to a jury trial and to proof beyond a reasonable doubt. Seventh, defendant asserts the trial court violated his constitutional rights to a jury trial and to proof beyond a reasonable doubt by imposing the upper term sentence for count 11 and consecutive sentences for all counts. We reverse counts 8 and 17, but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
I. JANE DOE
Jane Doe (Jane) was born in January 1992. In October 2004, Jane was staying with her aunt in San Bernardino. Defendant lived in the house next door to Jane’s aunt. On October 24, 2004, Jane was babysitting her two cousins, who were approximately five years old. Defendant’s son, D.N., asked Jane and her cousins to come to defendant’s house, which they did. At defendant’s house, Jane’s cousins and D.N. played videogames. Defendant asked Jane if she wanted to play on his computer, in his bedroom. Jane went to defendant’s bedroom and drew moons and stars on the computer’s paint program.
As Jane was drawing, defendant shut the bedroom door and asked Jane if he could massage her, and she agreed. Defendant massaged Jane’s back and bare thighs with a hand massager. Jane was wearing elastic jean shorts. Defendant asked Jane to move to the bed, and she said, “no.” Defendant said, “why don’t you just move to the bed.” Jane was afraid, so she moved to the bed, and defendant laid her down. Defendant asked Jane if she had a boyfriend and she said, “no.” Defendant “started” kissing Jane’s neck. Jane was scared and she tried to leave. As Jane was moving away from defendant, one of her cousins knocked on the bedroom door. Defendant told Jane’s cousin to “go away.” Defendant put his hand inside Jane’s shorts and underwear. Defendant tried to touch Jane’s “private part.” Jane pushed defendant’s hand away and began to run. Defendant tried to pull Jane towards him, but she ran to her aunt’s house. Jane called her mother and grandmother, and told them what had happened.
San Bernardino County Sheriff’s Deputy Roger Loftis investigated Jane’s report that defendant touched her in a lewd manner. Jane told the deputy that defendant massaged her breasts over her clothing and placed his hand inside her underwear. After talking to Jane, Deputy Loftis went to defendant’s house. Deputy Loftis found that Jane’s description of defendant’s bedroom was accurate. Also, Deputy Loftis looked at defendant’s computer screen, and it was open to the paint program, which reflected a drawing of moons and stars. Deputy Loftis found defendant had a hand-held massager.
Defendant told Deputy Loftis that he used the massager to massage Jane’s arm while they were in the living room. Further, defendant said Jane had not been in his bedroom that evening, but she had been in his room on a previous occasion.
II. DEFENDANT’S FAMILY
A. E.N.
Defendant and E.N. are married, but they separated in 1993 or 1994, due to defendant “beating” E.N. Defendant and E.N. share five children: D.N., G.N., B.N., M.N., and C.N. (the children). After defendant and E.N. separated, the children stayed with E.N. Later, E.N. left the children with defendant’s mother, and defendant took the children from his mother. E.N. believed defendant took the children around 2001. According to E.N., defendant constantly moved so that E.N. would not be able to find the children.
In August 2005, after defendant was arrested in connection with Jane’s allegations, the children went to live with E.N. After approximately one week of living with E.N., C.N. told E.N. that defendant physically and sexually abused her. E.N. then spoke to all of the children.
B. C.N.
C.N. was born in May 1988. C.N. is defendant’s daughter. C.N. believed she stopped living with E.N. and began living solely with her father and siblings between fifth and sixth grade, which would have been May or June 1999. Defendant hit C.N. on almost a daily basis, with a hanger, shoe, broom stick, extension cord, water hose, or his hands. C.N. said defendant had been hitting the children since they were “little kids.” C.N. recalled one incident, when she was approximately 13 or 14, in which defendant slapped her and hit her with a belt. C.N. fell on a bed, and defendant climbed on top of her and punched her face with his fists. C.N. had a scar on her leg from where defendant kicked her with a steel-toed boot.
When C.N. was in third grade, in approximately 1996, defendant came into the room where she was sleeping. C.N. was wearing a pajama top, pajama pants, and underwear. Defendant was wearing a towel. Defendant laid down on the bed next to C.N., and removed the towel, so that he was naked. Defendant touched C.N. all over her body, underneath her clothes, with his hand. Defendant touched C.N.’s breasts and vagina. Defendant told C.N. that if she screamed or said anything, then he would kill her and her siblings. Defendant climbed on top of C.N., placed his penis in her vagina, and had intercourse with her for 10 to 15 minutes. The contact hurt C.N. and caused her to bleed. C.N. cried, and then defendant told her to take a shower.
Defendant continued to engage in intercourse with C.N. until she was 15 years old. The intercourse occurred “every other day or sometimes... once a week or [a] couple times a month.” C.N. recalled an incident when she was in sixth grade, in which defendant placed his mouth on her vagina and performed oral sex. C.N. cried. The last time defendant performed oral sex on C.N., she was 14.
Defendant threatened to kill C.N. if she ever told anyone what he did to the children.
C. B.N.
B.N. was born in April 1990. B.N. is defendant’s daughter. B.N. recalled defendant hitting the children with a belt, stick, racquet, hanger and his hands. Defendant hit B.N. “mostly every day.” B.N. recalled that, when she was 14, the family lived on Dwight Way. Prior to living on Dwight Way, the family lived on Tippecanoe Avenue.
C.N. recalled an incident that occurred when the family was living on Tippecanoe, just before the family moved to Dwight Way, in late 2004. The incident involved defendant becoming angry with B.N. because she was blocking the television. Defendant grabbed B.N. and began punching her face and stomach. B.N.’s nose began to bleed, and then her face became “all bloody.” B.N. went unconscious. C.N. and M.N. picked B.N. up and took her to the bathroom to wash her face. When B.N. awoke, she remembered one punch, but could not remember what else had happened to her.
B.N. remembered the same incident. B.N. recalled that she answered the telephone for defendant. Defendant was upset because the telephone wire was tangled. B.N. fainted as defendant’s fist came towards her. The next thing B.N. could recall, her sisters were washing blood from her face. B.N. believed the incident occurred around 2003, when she was 13.
G.N. also recalled the incident. G.N. believed defendant began hitting B.N. because B.N. tripped over the phone cord. G.N. remembered defendant hitting B.N. until B.N.’s eyes rolled back and she had a seizure. M.N. also remembered defendant hitting B.N. until she had a seizure, because B.N. tripped over a phone cord. M.N. recalled she and C.N. pushed defendant off of B.N., and took her to the restroom.
On several occasions, when the family was living on Dwight Way, defendant tried to touch B.N.’s breasts and vagina, but she would push his hand away. Defendant would tell B.N. to lie down, and he would lie down next to her and hug her. Defendant would then try to “feel up” on B.N. or try to lick her. B.N. would tell defendant to stop, and she would move away; however, on one occasion, defendant did touch her breasts.
B.N. recalled an incident on New Years, when the family lived on Tippecanoe, in which defendant repeatedly asked her if she plucked her eyebrows. B.N. repeatedly said, “no,” and defendant became angry. Defendant began hitting B.N. with his hands and a stick, and then defendant screamed at her to “take all [her] fucking clothes off.” Defendant continued to strike B.N. as she was wearing only her bra and underwear. Defendant tried to touch B.N. in a sexual manner, but she pushed his hands away and struggled with him. Defendant struck the back of B.N.’s head; she saw a “white flash” and urinated on herself. After B.N. urinated, defendant told her to urinate outside “like the fucking dogs.” Defendant continued to hit B.N. after she urinated. D.N. remembered defendant hit B.N. until B.N. fainted and was bleeding from her nose and mouth. M.N. remembered that B.N. was 13 when defendant became angry about B.N.’s eyebrows.
G.N. recalled one incident, when she was approximately 12 and B.N. was approximately 14, in which defendant told G.N. and B.N. to take their clothes off. The girls took their clothes off and stood in the living room in their underwear. Defendant threatened to take the girls outside; however, he eventually instructed G.N. to turn around, and he began striking B.N.
When B.N. tried to prevent defendant from touching her in a sexual manner, defendant would become upset. Defendant told B.N. that if she screamed or made noise when he tried to touch her he would make her watch while he killed her siblings, then he would kill her, and then kill himself.
D. G.N.
G.N. was born in January 1992. G.N. is defendant’s daughter. G.N. believed that she began living solely with defendant and her siblings in 2000. G.N. recalled defendant striking her with his hands, a broom, sticks, and a belt. G.N. remembered that defendant would hit at least one child every day. All the incidents involving G.N. occurred when she was 13 or younger, because defendant was arrested when G.N. was 13.
G.N. recalled that defendant would tell all four sisters to take their clothes off, then, as the girls stood in front of him, he would threaten to take them outside so people could rape and kill them. D.N. recalled that when he was nine or 10, defendant forced C.N., M.N., B.N., and G.N. to stand in their underwear in front of defendant and D.N.
G.N. remembered an incident, when she was 13 or 14, in which defendant threw a brick at her leg, punched her, and banged her head against a water cooler, causing her to bleed.
When G.N. was approximately 12 or 13, defendant grabbed her, pushed her down, pulled on her shirt, and touched her breast over her bra. As defendant straddled G.N., he grabbed her buttocks and tried to pull her shorts down. Defendant laughed as G.N. cried and told him stop. Defendant punched G.N. Defendant relented when he heard G.N.’s sisters arrive at the house.
G.N. recalled that defendant would tell her to lay down with him, and then he would touch her vagina with his hand. Defendant placed his fingers inside G.N.’s vagina on at least two occasions. G.N. believed defendant began touching her vagina when she was eight or nine. The last time defendant touched G.N.’s vagina, she was approximately 12 or 13. G.N. tried to push defendant’s hand away when he touched her inside her underwear; however, defendant would continue to touch her, or he would punch her.
Defendant told G.N. that if she told anyone what he had done to her then he would kill the children and himself.
E. D.N.
D.N. was born in January 1994. D.N. is defendant’s son. D.N. said he began living solely with defendant and his siblings when he was five or six years old. D.N. remembered living on Tippecanoe until 2004, when the family moved to Dwight Way. D.N. said the family lived on Tippecanoe for approximately one and a half years, and the family lived on Dwight Street for a year or less. D.N. was 11 when defendant was arrested in August 2005. Defendant hit D.N. with racquets, a baton, boots, hangers, a flyswatter, and his hands.
D.N. remembered one incident, when he was approximately 11, in which defendant became angry with D.N., because defendant instructed D.N. to park his van, and D.N. dented the van in the process. Defendant struck D.N.’s back with a flyswatter until his back was cut and purple. D.N. recalled that, in a separate incident, defendant threw a fan at D.N., which struck his arm
C.N. recalled an incident in 2005 when D.N. could not remember where he had left his money. Defendant became “super mad” and began hitting and kicking D.N.’s back. B.N. remembered the same incident. B.N. believed D.N. was nine or ten years old at the time. B.N. recalled defendant hitting D.N. with a belt, and the belt buckle breaking off. After the buckle broke, defendant slapped and punched D.N. G.N. also remembered defendant hitting D.N. with a belt until the buckle broke, because D.N. misplaced his money. G.N. recalled defendant punching D.N. after the buckle broke. M.N. remembered D.N.’s back bleeding after the incident.
G.N. remembered an occasion where defendant threw a portable air conditioner at D.N., because D.N. was taking too long to dress himself.
Defendant threatened to break D.N.’s arms or pull out D.N.’s tongue if D.N. ever told anyone about defendant abusing the children.
DISCUSSION
I. SUBSTANTIAL EVIDENCE—SUBSTANTIVE OFFENSES
Defendant asserts substantial evidence does not support the findings that he committed the crimes in counts 5, 6, 7, 9, 13, 14, and 15. We disagree.
“A substantial evidence inquiry examines the record in the light most favorable to the judgment and upholds it if the record contains reasonable, credible evidence of solid value upon which a reasonable trier of fact could have relied in reaching the conclusion in question. Once such evidence is found, the substantial evidence test is satisfied. [Citation.] Even when there is a significant amount of countervailing evidence, the testimony of a single witness that satisfies the standard is sufficient to uphold the finding.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1052, italics omitted.)
A. COUNT 5
In count 5, defendant was found guilty of aggravated sexual assault of a child (rape) of C.N. (§§ 269, subd. (a)(1) & 261, subd. (a)(2).) Defendant contends substantial evidence does not support the finding that he committed the offense through the use of force or duress. We disagree.
A defendant is guilty of aggravated sexual assault of a child if the defendant has sexual intercourse with a person against the person’s “will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.” (§ 261, subd. (a)(2); see § 269, subd. (a)(1).) “A plain reading of section 261 in its entirety supports a conclusion that the Legislature did not intend the term ‘force,’ as used in the rape statute, to be given any specialized legal definition. [Citation.]” (People v. Griffin (2004) 33 Cal.4th 1015, 1023.) The term force is commonly used to mean an act accomplished against the victim’s will. (Id. at p. 1029.) The element of force in the rape statute does not require proof that the defendant acted so as to “physically prevent[] the victim from resisting or thwarting the attack.” (Id. at p. 1025.) Rather, the element of force in the rape statute is similar to the element of force in the robbery statute—it is meant to insure an act of intercourse is undertaken against the victim’s will—the degree of force utilized is immaterial. (Id. at pp. 1025-1026.)
“Decisional law makes clear that the definition of the word ‘force’ in sexual offense statutes depends on the offense involved. To convict for committing a forcible lewd act against a child in violation of section 288, subdivision (b), the prosecution must prove that the defendant used physical force... substantially greater than that necessary to accomplish the lewd act itself. [Citation.] In contrast, the requisite amount of force for a rape conviction is the amount sufficient to overcome the victim’s will. [Citation.] This level of force also applies for convictions of aggravated sexual assault of a child by rape and by forcible oral copulation (§ 269, subds. (a)(1), (4)). [Citation.]” (In re Asencio (2008) 166 Cal.App.4th 1195, 1200, fn. omitted.)
When determining whether substantial evidence supports the finding that a defendant used force, “‘the reviewing court... looks to the circumstances of the case, including the presence of verbal or nonverbal threats, or the kind of force that might reasonably induce fear in the mind of the victim, to ascertain sufficiency of the evidence of a conviction [of forcible rape].’ [Citation.]” (People v. Griffin, supra, 33 Cal.4th at p. 1028.)
The prosecution elected the following act to constitute count 5: “Occurring on and between May 21, 1998[,] and May 21, 1999: Defendant inserts his penis into [C.N.’s] vagina two times per week.”
C.N. testified that defendant had intercourse with her until she was 15. C.N. testified that when defendant had intercourse with her, he would “always” instruct her not to tell anyone what he was doing, because the children would be separated and sent to foster homes. C.N. then testified, “So I guess you could say that I just took everything just for them.” A reasonable juror could infer that defendant’s threats, regarding the family being separated constituted force because C.N. felt she had to have sex with defendant in order to protect her siblings.
Further, C.N. testified that, when she was 11, which would have been in May 1999 to May 2000, defendant woke her up and began touching her. C.N. began crying, because she “was tired of it.” Defendant proceeded to engage in intercourse with C.N. A reasonable trier of fact could infer from C.N.’s crying that defendant engaged in intercourse against C.N.’s will. Accordingly, substantial evidence supports the conclusion that defendant used force when sexually assaulting (raping) C.N.
B. COUNT 6
In count 6, defendant was found guilty of forcibly committing a lewd and lascivious act upon C.N. (§ 288, subd. (b)(1).) Defendant contends substantial evidence does not support the finding that he committed the offense through the use of force or duress. We disagree.
Section 288, subdivision (b)(1), provides that it is a crime to willfully and lewdly commit any lewd or lascivious act upon a child who is under the age of 14 years with the intent of arousing the sexual desires of the actor or the child “by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.”
“For purposes of section 288, subdivision (b), ‘duress’ means ‘“a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.” [Citations.]’ [Citation.] ‘“The total circumstances, including the age of the victim, and [her] relationship to defendant are factors to be considered in appraising the existence of duress.” [Citation.]’ [Citations.] ‘Other relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family.’ [Citation.]” (People v. Veale (2008) 160 Cal.App.4th 40, 46 [Fourth Dist., Div. Two].)
The prosecution elected the following act to constitute count 6: “Occurring on and between May 21, 1996[,] and May 20, 2002: [C.N. is] 11 years old and in the 6th grade, defendant places his mouth on [C.N.’s] vagina.”
C.N. testified that, when she was 11 years old, defendant woke her up and began touching her. C.N. began crying because she was “tired of it.” Defendant proceeded to touch C.N.’s vagina with his mouth. C.N. said she did not tell anyone about defendant’s behavior because defendant threatened to kill C.N. and threatened that the siblings would be sent to separate foster homes.
A reasonable juror could find that defendant committed the offense through the use of duress due to (1) C.N. crying; (2) defendant’s threats that revealing the molestation would jeopardize the family; (3) C.N.’s young age; and (4) the parent-child relationship. Accordingly, we conclude substantial evidence supports the finding that defendant used duress when committing the offense in count 6.
C. COUNT 7
In count 7, defendant was convicted of willfully committing a lewd and lascivious act upon C.N., a child under the age of 14. (§ 288, subd. (a).) Defendant contends substantial evidence does not support the finding that he committed the charged offense. We disagree.
Section 288, subdivision (a), provides that it is a felony for a person to willfully and lewdly commit any lewd or lascivious act upon the body of a child who was under the age of 14 years with the intent of arousing the sexual desires of the actor or the child.
In order to sustain a conviction for molestation, “[t]he 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 (1990) 51 Cal.3d 294, 316.)
The prosecution elected the following act to constitute count 7: “Occurring on and between [M]ay 21, 1996[,] and May 20, 2002: Defendant placed his mouth on [C.N.’s] vagina at least two additional times, and continued to place his penis in her vagina up to two times per week.”
C.N. testified that defendant placed his penis in her vagina every time he touched her sexually. C.N. said the intercourse with defendant occurred “every other day or sometimes... once a week or [a] couple times a month.” The sexual acts began when C.N. was in third grade and ended when she was 15. Generally, defendant engaged C.N. in intercourse during the night; however, C.N. recalled times when defendant sexually assaulted her during the day, such as when she stayed home from school when she was sick, and once on her birthday.
C.N.’s description of the type of act (intercourse), the number of acts committed (every other day), and the general time period (third grade to age 15), provides substantial evidence that defendant willfully and lewdly committed a lewd or lascivious act upon the body of a child who is under the age of 14 years with the intent of arousing his own sexual desires.
D. COUNT 9
In count 9, defendant was convicted of committing a lewd or lascivious act upon B.N., a child under the age of 14, through the use of force or duress. (§ 288, subd. (b)(1).) Defendant contends substantial evidence does not support the finding that B.N. was under the age of 14 at the time of the offense.
“In cases of sex crimes committed on children, the age of the child may be established by the child’s own testimony....” (People v. Crownover (1939) 34 Cal.App.2d 7, 8.)
The prosecution elected the following act to constitute count 9: “Occurring on and between April 12, 2002[,] and April 12, 2005: [Defendant] [h]it [B.N.] for plucking her eyebrows on [N]ew [Y]ears, [while they were] living on Tippecanoe, [and] made her remove her clothes, touched her stomach, [and] moved his hand up towards her breasts.”
B.N. testified that she was born in April 1990. B.N. stated defendant became angry with her about her eyebrows during New Years, when the family lived on Tippecanoe, and she believed it occurred “right before” the family moved to Dwight Way; however, she was unsure of the exact timeframe. B.N. said she was 14 when the family lived on Dwight Way. D.N. testified that defendant became angry about B.N.’s eyebrows when the family lived on Tippecanoe. D.N. said the family lived on Tippecanoe during 2004. D.N. believed he was eight or nine years old at the time of that incident; D.N. would have turned eight in January 2002, and turned nine in January 2003. M.N. testified that the family lived on Dwight Way in 2004 and 2005. M.N. stated that B.N. was “about [13]” when defendant became angry with B.N. about her eyebrows.
A reasonable juror could find that the offense occurred on December 31, 2003, or January 1, 2004, when B.N. was 13, because (1) M.N. testified B.N. was about 13; and (2) D.N. said the family lived on Tippecanoe in 2004, and B.N. would have been 13 in January 2004. Accordingly, we conclude substantial evidence supports the finding that B.N. was under the age of 14 at the time of the offense in count 9.
E. COUNT 13
In count 13, defendant was convicted of the aggravated sexual assault (sexual penetration) of G.N., a child under the age of 14. (§§ 269, subd. (a)(5), 289, subd. (a).) Defendant contends substantial evidence does not support his conviction because G.N.’s testimony was too vague. We disagree.
Aggravated sexual assault of a child (sexual penetration) occurs when any person commits an act of sexual penetration “against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person,” and the victim is a child under the age of 14. (§ 289, subd. (a); see § 269, subd. (a)(5).) The amount of force required to be found guilty of aggravated sexual assault of a child (sexual penetration) (§§ 269, subd. (a)(5), 289, subd. (a)), is the same as that required for aggravated sexual assault of a child (rape) (§§ 269, subd. (a)(1), 261, subd. (a)(2)), which is force sufficient to overcome the victim’s will, as noted ante. (In re Asencio, supra, 166 Cal.App.4th at pp. 1200, 1205.)
The prosecution elected the following act to constitute count 13: “Occurring on and between January 19, 2000[,] and January 19, 2002: Defendant places his finger in [G.N.’s] vagina at least one additional time during this time period.”
In count 12, defendant was also charged with the aggravated sexual assault (sexual penetration) of G.N. (§§ 269, subd. (a)(5), 289, subd. (a).) The act that constituted count 12 was the first incident where defendant placed his finger in G.N.’s vagina, when she was eight years old, and in the fourth grade.
G.N. testified that from the time she was eight until the time she was 12, defendant touched her vagina. G.N. said that after she turned eight, “it just kept happening.” On at least two occasions, defendant put his fingers inside G.N.’s vagina. G.N. believed she told an assessment counselor that defendant twice put his fingers into her vagina around the time that she was eight years old; however, on cross-examination, G.N. said she could only remember that defendant placed his fingers in her vagina when she was younger than 13. On direct examination, G.N. said she thought defendant stopped putting his fingers in her vagina when she was eight, because she threatened to tell E.N. what defendant was doing. In response, defendant grabbed G.N. and told her that he would find E.N. and kill her before she could report the crime, or if defendant was arrested, then he would send somebody to kill the children. On redirect examination, G.N. testified that she was “pretty sure” that she was nine or ten the second time defendant penetrated her with his fingers. G.N. said she pushed defendant’s hand away when he touched her sexually, “but his hand would just come back.” G.N. recalled that defendant would punch her if she used more force to try to stop defendant from touching her.
A reasonable trier of fact could conclude from G.N.’s testimony that defendant penetrated G.N.’s vagina with his finger on two occasions, when she was eight years old. Further, a reasonable juror could conclude that defendant used force to penetrate G.N., because she would push defendant’s hand away when he touched her, but he would not relent. Accordingly, we conclude substantial evidence supports the finding that defendant committed the aggravated sexual assault (sexual penetration) of G.N.
F. COUNTS 14 AND 15
In count 14, defendant was convicted of forcibly committing a lewd and lascivious act upon G.N., a child under the age of 14. (§ 288, subd. (b)(1).) In count 15, defendant was convicted of willfully committing a lewd and lascivious act upon G.N., a child under the age of 14. (§ 288, subd. (a).) Defendant contends substantial evidence does not support his convictions on counts 14 and 15, because the evidence was too vague. We disagree.
As noted ante, “[f]or purposes of section 288, subdivision (b), ‘duress’ means ‘“a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.” [Citations.]’ [Citation.] ‘“The total circumstances, including the age of the victim, and [her] relationship to defendant are factors to be considered in appraising the existence of duress.” [Citation.]’ [Citations.] ‘Other relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family.’ [Citation.]” (People v. Veale, supra, 160 Cal.App.4th at p. 46.)
The prosecution elected the following act to constitute count 14: “Occurring on and between January 1, 2000[,] and December 31, 2004: Defendant places his hand on [G.N.’s] vagina under her clothes, threatens to kill siblings if she tells.”
The prosecution chose the following act to constitute count 15: “Occurring on and between January 1, 2000[,] and December 31, 2004: Defendant places his hand on [G.N.’s] vagina, under her clothes, at least one additional time during this time period.”
G.N. testified that, starting at the age of eight, defendant would lay down next to G.N., put his hand inside her underwear, and touch her vagina. G.N. could recall at least four times defendant touched her vagina—twice he put his fingers inside her vagina (counts 12 and 13) and twice he touched the outside of her vagina (counts 14 and 15). G.N. said the four incidents occurred at “different times.” G.N. testified that when she threatened to report defendant, defendant said he would send someone to kill the children if he were arrested. Additionally, when G.N. tried to push defendant’s hand away, “his hand would just come back.” If G.N. used more force to stop defendant, then defendant would punch G.N. G.N. remembered defendant molested her until she was 12 years old. G.N. turned eight in January 2000, and turned 12 in January 2004.
As to count 14, a reasonable trier of fact could find defendant committed a lewd and lascivious act with a child under the age of 14, because G.N. could recall defendant touching the outside of her vagina on two separate occasions, when she was between the ages of eight and twelve. Further, a reasonable juror could find defendant committed the offense through the use of duress because (1) defendant threatened to retaliate against G.N.’s siblings if she reported the molestation; and (2) the parent-child relationship between defendant and G.N. Accordingly, we conclude substantial evidence supports the finding that defendant forcibly committed a lewd and lascivious act against G.N., a child under the age of 14.
In regard to count 15, a reasonable trier of fact could find that defendant willfully committed a lewd and lascivious act against a child under the age of 14, because G.N. testified that she recalled two separate incidents where defendant touched the outside of her vagina, when she was between the ages of eight and twelve. Accordingly, we conclude substantial evidence supports the finding that defendant willfully committed a lewd and lascivious act against a child under the age of 14.
II. SUBSTANTIAL EVIDENCE—ENHANCEMENTS
Defendant contends substantial evidence does not support the findings, in counts 11 and 16, that he inflicted great bodily injury. (§ 12022.7, subd. (a).) Alternatively, defendant contends the sentences for the great bodily injury enhancements in counts 11 and 16 should have been stayed pursuant to section 654. We disagree with defendant’s arguments.
A. SUBSTANTIAL EVIDENCE
“Great bodily injury ‘means a significant or substantial physical injury.’ [Citations.]” (People v. Cross (2008) 45 Cal.4th 58, 63-64.) “Proof that a victim’s bodily injury is ‘great’—that is, significant or substantial within the meaning of section 12022.7—is commonly established by evidence of the severity of the victim’s physical injury, the resulting pain, or the medical care required to treat or repair the injury. [Citations.]” (Id. at p. 66.) Our high court has “described great bodily injury as ‘substantial injury beyond that inherent in the offense’”; however, “the injury need not be so grave as to cause the victim ‘“permanent,” “prolonged,” or “protracted”’ bodily damage. [Citation.]” (Id. at p. 64.) ‘“A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description.”’ [Citations.] Where to draw that line is for the jury to decide.” (Ibid.)
1. COUNT 11
In count 11, the jury found defendant inflicted great bodily injury upon B.N. (§ 12022.7, subd. (a)), during the incident in which defendant struck B.N. until she fainted. The substantive offense in count 11 was child abuse “under circumstances or conditions likely to produce great bodily harm or death.” (§ 273a, subd. (a).) The substantive offense does not include a “‘“requirement that the actual result be great bodily injury.”’” (People v. Valdez (2002) 27 Cal.4th 778, 784.)
C.N. recalled defendant punching B.N.’s face and stomach. B.N.’s nose began bleeding while defendant struck her, and B.N. “was all bloody on her face.” At one point during the beating, B.N. “just fell” and slipped into unconsciousness. C.N. and M.N. took B.N. into the bathroom to wash the blood off her face, and try to wake her up. When B.N. awoke, she asked, “what happened? what happened?” C.N. testified that B.N. was able to remember defendant’s first punch, but after that B.N. “blanked out.” B.N. testified that she was able to remember defendant’s fist coming at her, but after that she “blacked out.” The next thing B.N. remembered was defendant shaking her, trying to wake her up. G.N. testified that defendant “was hitting [B.N.] so badly that [B.N.’s] eyes rolled back, and she started having a seizure.” M.N. testified that while defendant was beating B.N., B.N. began “shaking, like having a seizure” and she “was bleeding.”
B.N.’s testimony and her siblings’ testimony provide substantial evidence that B.N. suffered a bloody face and seizure as a result of defendant’s attack. A reasonable trier of fact could find that B.N.’s bloody face and seizure constituted significant or substantial physical injuries beyond that inherent in the substantive offense, because the substantive offense does not require actual great bodily injury.
2. COUNT 16
In count 16, the jury found that defendant inflicted great bodily injury upon G.N. (§ 12022.7, subd. (a)) during the incident in which defendant banged G.N.’s head against a water cooler. The substantive offense in count 16 was child abuse “under circumstances or conditions likely to produce great bodily harm or death.” (§ 273a, subd. (a)), which does not include a “‘“requirement that the actual result be great bodily injury.”’” (People v. Valdez, supra, 27 Cal.4th at p. 784.)
G.N. recalled that defendant became angry with her because he saw a rat and wanted the children to catch it, but G.N. did not chase after the rat. Defendant threw a brick at G.N.’s leg, which scraped her shin. Defendant proceeded to punch G.N.’s face “a couple times,” and then grab the back of her head and bang it against a water cooler. After defendant slammed her head against the water cooler, G.N. was bleeding and felt dizzy. Defendant instructed G.N.’s sisters “to clean [her] up.” G.N. laid down, while her sister stayed by her side trying to stop G.N. from falling asleep. Eventually G.N. fell asleep. When G.N. awoke in the morning, her sister was still by her side, and her head wound was still bleeding. The injury from the water cooler left a scar above G.N.’s left eyebrow.
G.N.’s testimony provides substantial evidence that G.N. suffered a head wound as a result of defendant’s attack, which bled for hours and resulted in a scar. A reasonable trier of fact could find that G.N.’s head wound constituted a significant or substantial physical injury beyond that inherent in the substantive offense, because the substantive offense does not require actual great bodily injury.
B. SECTION 654
Defendant contends that if we conclude substantial evidence supports the jury’s findings that he inflicted great bodily injury upon B.N. and G.N., then the trial court should have stayed the sentences for the enhancements pursuant to section 654. For counts 11 and 16, the jury was instructed that the prosecutor must prove “‘the defendant willfully inflicted unjustifiable pain or mental suffering on a child.’” The trial court told the jury that a “child does not need to actually suffer great bodily harm. But if a child does suffer great bodily harm, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed the offense.” (CALCRIM No. 821.) Defendant contends the enhancement sentences must be stayed because the jury was instructed that the fact that defendant inflicted great bodily harm could be used to determine whether defendant committed the substantive offenses. Essentially, defendant argues B.N.’s and G.N.’s great bodily injuries became an element of the substantive child abuse offenses (§ 273a, subd. (a)), due to the manner in which the jury was instructed. In response, the People essentially request that this court reconsider its position on applying section 654 to enhancements. We are not persuaded by defendant’s or the People’s arguments.
There is currently a split of authority in the courts of appeal regarding whether section 654 is applicable to enhancements (see People v. Akins (1997) 56 Cal.App.4th 331, 337-338 [discussing split of authority]),and our Supreme Court has, thus far, expressly declined to decide the issue, except for the enhancements provided for in section 12022.53. (People v. Palacios (2007) 41 Cal.4th 720, 728.) Years ago, this court held that section 654 was generally applicable to enhancements (People v. Moringlane (1982) 127 Cal.App.3d 811, 817); that decision has served as a foundation for our more recent holdings on the subject. (See People v. Akins, supra, 56 Cal.App.4th at pp. 337-338; see also People v. Douglas (1995) 39 Cal.App.4th 1385, 1392-1393.)
Section 654 prohibits multiple punishments for a single criminal act and for a single indivisible course of conduct. (People v. Moseley (2008) 164 Cal.App.4th 1598, 1603.) Section 12022.7, subdivision (a), provides, in pertinent part, “Any person who personally inflicts great bodily injury on any person... in the commission of a felony... shall be punished by an additional and consecutive term of imprisonment....”
In People v. Chaffer (2003) 111 Cal.App.4th 1037, 1045, the reviewing court concluded: “Section 654 is a general statute that applies to all species of criminal conduct[, whereas s]ection 12022.7 is a narrowly crafted statute intended to apply to a specific category of conduct.” The appellate court found that if section 654 were applied to section 12022.7, then “it would nullify section 12022.7, because the enhancement and underlying offense always involve the same act.” (Chaffer, at p. 1045.) The Chaffer court held that section 12022.7, a specific statute, operates as an exception to the general provisions of section 654. (Chaffer, at pp. 1044-1046.) We agree with the reasoning of Chaffer, and therefore conclude that (1) we do not need to reconsider our position on whether section 654 should generally be applied to enhancements, and (2) the trial court did not err by not applying section 654 to the section 12022.7 enhancements.
III. STATUTE OF LIMITATIONS
Defendant contends his convictions for counts 8, 11, and 17 must be reversed because they are barred by the statute of limitations. The People concede defendant is correct as to count 8; however, the People assert defendant forfeited his appellate arguments concerning counts 11 and 17, and alternatively, any error related to count 11 is harmless. We conclude (1) defendant’s conviction in count 8 must be reversed because it is barred by the statute of limitations; (2) substantial evidence supports the finding that the offense in count 11 occurred within the statute of limitations; and (3) defendant’s conviction in count 17 must be reversed.
A. COUNT 8
In count 8, defendant was charged with the “wobbler” offense of abusing C.N. under circumstances likely to produce great bodily harm or death. (§ 273a, subd. (a).) However, the jury found defendant guilty of the necessarily included misdemeanor—abusing C.N. under circumstances other than those likely to produce great bodily harm or death. (§ 273a, subd. (b); People v. Mincey (1992) 2 Cal.4th 408, 453.) Specifically, the prosecution alleged that, between May 21, 1995, and May 21, 2000, defendant hit C.N. on a regular basis with his hands and various objects.
If an “offense is an alternative felony/misdemeanor (a ‘wobbler’) initially charged as a felony, the three-year statute of limitations for felonies (see § 801) applies, without regard to the ultimate reduction to a misdemeanor after the filing of the complaint. [Citation.] If, however, the initial charge is a felony but the defendant is convicted of a necessarily included misdemeanor, the one-year limitation period for misdemeanor[s] applies. (§ 805, subd. (b).)” (People v. Mincey, supra, 2 Cal.4th at p. 453.)
The offense in count 8 was alleged to have occurred between May 1995 and May 2000. The prosecution filed its felony information on August 18, 2006. Accordingly, defendant’s conviction for count 8 must be reversed, because it is barred by the statute of limitations, due to at least six years elapsing between the date of the alleged offense and the commencement of prosecution. (§ 804, subd. (a) [prosecution commences when information filed].)
B. COUNTS 11 AND 17
In count 11, defendant was convicted of abusing B.N. under circumstances likely to produce great bodily harm or death. (§ 273a, subd. (a).) Specifically, between April 12, 2002, and April 12, 2004, defendant struck B.N. until she fainted, which was the incident involving the tangled telephone cord. In count 17, defendant was convicted of abusing D.N. under circumstances other than those likely to produce great bodily harm or death. Specifically, between January 14, 2004, and January 1, 2006, defendant hit D.N.’s back with a flyswatter until it was cut and purple. The prosecution commenced on August 18, 2006, when the prosecutor filed the felony information. (§ 804, subd. (a).)
Defendant contends his conviction in count 11 must be reversed because the prosecutor alleged the crime may have occurred as early as April 12, 2002, but if the offense occurred prior to August 18, 2003, then it is barred by the statute of limitations. Additionally, defendant contends his conviction in count 17 must be reversed because the prosecutor alleged the crime may have occurred as early as January 14, 2004, but if the offense occurred prior to August 18, 2005, then it is barred by the statute of limitations. The People contend defendant forfeited his arguments by failing to raise them in the trial court. Defendant asserts that he did not forfeit his contentions because a defendant cannot inadvertently forfeit a statute of limitations argument.
1. COUNT 11
a) Forfeiture
We begin by determining whether defendant forfeited his statute of limitations argument as to count 11. In People v. Williams (1999) 21 Cal.4th 335, 339 (Williams), our Supreme Court considered “whether ‘the statute of limitations in a criminal case is an affirmative defense which is forfeited if not raised before or during trial.’” Our Supreme Court concluded that “a person convicted of a charged offense may raise the statute of limitations at any time.” (Id. at p. 341.)
Because a defendant may raise a statute of limitations issue at any time, we conclude defendant has not forfeited his statute of limitations contention, and we review the record to determine if the offense in count 11 occurred within the applicable statute of limitations. In reviewing the record, we keep in mind that the statute of limitations is not an element of the offense, and therefore, “the prosecutor need only demonstrate that the crime occurred within the applicable statute of limitations by a preponderance of the evidence.” (Smith, supra, 98 Cal.App.4th at p. 1187.)
b) Evidence
In count 11, defendant was convicted of striking B.N. between April 12, 2002, and April 12, 2004. (§ 273a, subd. (a).) If the offense occurred prior to August 18, 2003, then it is barred by the statute of limitations.
C.N. believed defendant hit B.N. until B.N. fainted or had a seizure “[t]owards the end of 2004.” B.N. thought the incident occurred in 2003, about the time she started eighth grade. B.N. testified that she began tenth grade in August 2005. The record does not explicitly reflect whether B.N.’s eighth grade school was on a traditional or year-round schedule; however, a reasonable inference from C.N.’s and B.N.’s testimony is that the school was on a traditional schedule, since C.N. remembered the incident occurring late in the year. Further, if B.N. began tenth grade in 2005, then she would have begun eighth grade in 2003, because B.N. only repeated one grade, which was fourth. From the foregoing evidence, we can infer that the incident occurred late in 2003, after B.N. began eighth grade. Accordingly, we conclude the record reflects, by a preponderance of the evidence, that the crime in count 11 occurred late in 2003, i.e., after August 18, 2003. Therefore, we conclude the conviction in count 11 is not barred by the statute of limitations.
2. COUNT 17
a) Facts
In count 17, defendant was charged with hitting D.N., between January 14, 2004, and January 1, 2006, with a flyswatter until D.N.’s back was cut and purple. (§ 273a, subd. (a).) The information charged defendant with the felony of willfully injuring a child under circumstances likely to produce great bodily harm or death (§ 273a, subd. (a)); however, defendant was found guilty of the lesser included misdemeanor of willfully injuring a child under circumstances other than those likely to produce great bodily harm or death (§ 273a, subd. (b)).
As a felony offense, the crime was properly pled as occurring within the three-year statute of limitations, i.e., after August 18, 2003. (§ 801.) However, as a misdemeanor offense, the crime was alleged to have occurred both within the statute of limitations and beyond the statute of limitations. Misdemeanors have a one-year statute of limitations. (§ 802, subd. (a).) Accordingly, August 18, 2005, would have been the earliest possible date for the crime to have occurred within the misdemeanor statute of limitations.
On the record, the trial court stated that it had informally discussed the jury instructions with the parties, off the record, in chambers. The trial court asked the parties to state, on the record, any objections they had to the jury instructions. Defendant’s trial attorney stated that she did not have any objections to the proposed instructions. The prosecutor objected to the trial court instructing the jury on any lesser included offenses. Defendant’s trial attorney argued that the trial court should instruct the jury on lesser included offenses; however, defendant’s trial attorney did not specifically refer to count 17.
In regard to counts 1, 2, 3, 7, 10, and 15, the trial court stated that a lesser included misdemeanor charge would be beyond the statute of limitations. The trial court remarked that it could instruct on a time-barred misdemeanor, if (1) the charged felony were not time-barred; (2) the defendant waived the statute of limitations; and (3) the prosecutor did not object. The trial court noted that defendant was willing to waive the statute of limitations in order for the court to instruct the jury on the lesser included offenses; however, count 17 was never mentioned during the discussion of the jury instructions.
b) Forfeiture
At oral argument, the People contended that defendant acquiesced to the trial court instructing the jury on the lesser included offense in count 17, and therefore defendant forfeited the statute of limitations argument for appeal. We disagree.
“‘[A] defendant forfeits the right to complain on appeal of conviction of a time-barred lesser included offense where the charged offense was not time-barred and the defendant either requested or acquiesced in the giving of instructions on the lesser offense.’ [Citation.]” (People v. Beasley (2003) 105 Cal.App.4th 1078, 1089-1090.) However, where a record is silent, in that nothing indicates whether the defendant requested or acquiesced in the court giving the instruction on the lesser included offense, then it would contravene the long-standing principle that a defendant may not inadvertently forfeit his statute of limitations argument to infer, from the silent record, that the defendant forfeited the argument. (Ibid.)
In this case, count 17 was never mentioned during the on-the-record discussion of jury instructions. Accordingly, the record is silent as to count 17. Therefore, this court cannot determine whether the lesser included offense instruction was given as a result of the trial court’s sua sponte duty to instruct on all theories of a lesser included offense that find substantial support in the evidence, even over defendant’s objection, or whether defendant requested the instruction. (People v. Beasley, supra, 105 Cal.App.4th at p. 1090.) It would be unwarranted speculation for this court to conclude, from the silent record, that defendant forfeited his statute of limitations defense; therefore, we conclude defendant did not waive or forfeit the statute of limitations argument for count 17. (Ibid.)
c) Evidence
We now examine whether the record supports a finding that the offense occurred within the statute of limitations. If the offense occurred prior to August 18, 2005, then it would be beyond the statute of limitations. D.N. was born in January 1994. D.N. remembered that defendant struck D.N.’s back with a flyswatter and hanger, when D.N. was “like” 11 years old. D.N. turned 11 in January 2005. It is unclear from the record when in 2005 the incident occurred. Accordingly, the record does not reflect whether the crime occurred within the statute of limitations. Therefore, we reverse defendant’s conviction for count 17.
IV. EXPERT TESTIMONY
A. FACTS
The prosecutor moved, in limine, to introduce expert testimony regarding Child Sexual Abuse Accommodation Syndrome (hereafter “CSAAS”). The prosecutor argued that the expert testimony was essential to assisting the jury with assessing the victims’ credibility, because the victims did not disclose the sexual abuse for such a long time. Defendant moved in limine to exclude the expert testimony.
At the hearing on the motions in limine, the trial court confirmed that the prosecution’s expert, Ms. Davio, did not know anything about the details of the instant case, and that she would only provide generic testimony about CSAAS. The trial court granted the prosecutor’s motion “to the extent that there will not be any testimony that there is any opinion by this expert that any of the victims are victims based on the evidence.” The court indicated that its ruling was based on the opinion in People v. Sanchez (1989) 208 Cal.App.3d 721, 735, which found that evidence of CSAAS is admissible “to dispel common misconceptions [the jury may hold] about how children react to abuse.”
Prior to the expert’s testimony, the trial court instructed the jury as follows: “You will hear testimony regarding [CSAAS]. Testimony about [CSAAS] is not evidence that the defendant committed any of the crimes charged against him. You may consider this evidence only in deciding whether or not any alleged victim’s conduct was not inconsistent with the conduct of someone who had been molested. And in evaluating the believability of their testimony.”
The expert testified that she was familiar with CSAAS, and explained the different stages or factors associated with the syndrome. The expert stated that she had not treated or met any of the victims in the instant case, and did not know any facts about the case, other than the victims’ names.
B. DISCUSSION
Defendant contends the trial court erred by permitting the prosecution to present expert testimony on the subject of CSAAS. First, defendant contends the expert’s testimony should have been excluded because it did not relate to a subject that was sufficiently beyond common experience. (Evid. Code, § 801, subd. (a).) Second, defendant asserts the expert testimony was more prejudicial than probative. (Evid. Code, § 352.) We disagree with both of defendant’s arguments.
A trial court’s decision “to admit expert testimony ‘will not be disturbed on appeal unless a manifest abuse of discretion is shown.’ [Citation.]” (People v. McAlpin (1991) 53 Cal.3d 1289, 1299.)
The opinion testimony of an expert witness is admissible if it is, among other things, “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact....” (Evid. Code, § 801, subd. (a).) “‘[T]he admissibility of expert opinion is a question of degree. The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission; if that were the test, little expert opinion testimony would ever be heard. Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would “assist” the jury. It will be excluded only when it would add nothing at all to the jury’s common fund of information, i.e., when “the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness.”’ [Citation.]” (People v. McAlpin, supra,53 Cal.3d at pp. 1299-1300.)
The expert’s testimony concerning CSAAS was helpful in explaining the different stages of reaction that victims progress through. (See People v. Patino (1994) 26 Cal.App.4th 1737, 1744 [CSAAS evidence admissible to disabuse misconceptions about how a child reacts to molestation].) Jurors may have an understanding that victims of abuse are reluctant to report the offense, but they may not understand the reasons for the delayed reporting, or why the victims did not retaliate. Accordingly, the trial court could reasonably find that the expert testimony would add to the jurors’ common fund of information regarding the reactions of abuse victims. Therefore, we conclude the trial court did not abuse its discretion in admitting the expert’s testimony.
Defendant argues that news reports of sexual abuse have become so widespread, since the time when the theory of CSAAS was first introduced, that the syndrome is no longer a proper subject of expert testimony. Defendant’s claim that the public has become so well informed about the behavior of child abuse victims as to obviate CSAAS evidence, is speculative and contrary to the controlling authority in this state. (See People v. Brown (2004) 33 Cal.4th 892, 906-907 [reaffirming earlier reasoning for admitting CSAAS evidence].)
Evidence Code section 352 permits the exclusion of relevant evidence where “its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
The victims in the instant case had difficulty remembering when the offenses occurred, they did not report the crimes for years, and they testified that they wrote letters to defendant while he was in jail. The testimony regarding CSAAS helped to explain what might appear to be odd reactions by abuse victims, because the testimony showed that such behavior is common. Accordingly, the evidence of CSAAS was probative on the issue of the victims’ credibility, because the victims displayed classic behavior patterns associated with CSAAS, and the testimony provided jurors with an understanding of those behavior patterns.
The testimony did not consume an undue amount of time, or create a risk of undue prejudice, of confusing the issues, or of misleading the jury. The expert said that she did not know the facts of the instant case, except for the victims’ names, which she learned for purposes of verifying that she did not know the victims. The expert’s testimony was relatively brief, consuming only 29 pages of the reporter’s transcript. On cross-examination, the expert conceded that children sometimes lie about being abused. Accordingly, we find little prejudice in the expert’s testimony: she did not discuss the facts of the instant case, she testified briefly, and she conceded that not all alleged victims are honest. Consequently, it is unlikely that the jury was unduly prejudiced, confused, or misled.
Defendant contends the CSAAS evidence was not probative because the expert testified that a delayed accusation is consistent with a child being molested, as well as with the child not being molested. Defendant asserts the testimony was contradictory, and therefore was not probative. We do not find this argument persuasive because the CSAAS evidence was probative on issues other than the victims’ delayed disclosure, such as why the victims wrote letters to defendant in jail, and why they could not remember the dates and details of some of the incidents.
Defendant contends the evidence was prejudicial because the expert referred to other child molestation cases to establish the basis of her knowledge, which led to juror confusion. We find this argument unpersuasive because defendant does not explain how the jurors might have become confused. We infer that defendant is asserting the jurors may have thought the expert was talking about the instant case when she discussed the reactions of other victims; however, the expert stated that she never spoke to defendant’s victims and did not know the facts of the case. Accordingly, it seems unlikely that the jurors would have been confused by references to other cases.
V. LESSER INCLUDED OFFENSE INSTRUCTIONS
Defendant contends the trial court erred by not instructing the jury on the lesser included offenses for counts 2-5, 9, and 12-15. We disagree.
A. COUNTS 4 AND 5
Defendant contends the trial court erred by not instructing the jury on the lesser included offense in counts 4 and 5. In counts 4 and 5, defendant was charged with the aggravated sexual assault (rape) of C.N., a child under the age of 14. (§§ 269, subd. (a)(1), 261, subd. (a)(2).) Defendant contends the trial court should have instructed the jury on the lesser included offense of unlawful sexual intercourse with a child under the age of 16.
In his opening brief, defendant asserts the trial court should have instructed “on the lesser included offense of non-forcible lewd acts upon a child (§ 288, subd. (a)),” in counts 5 and 6. In his supplemental opening brief, defendant acknowledges that section 288, subdivision (a), is not a lesser included offense of aggravated sexual assault of a child (§ 269, subd. (a)(1)), and instead contends the jury should have been instructed on the lesser included offenses of non-forcible sexual intercourse with a child under the age of 16 (§ 261.5, subd. (d)). Further, in his supplemental brief, defendant refers to counts 4 and 5. We infer that defendant intends his contention to relate to counts 4 and 5, as indicated in his supplemental brief, and not count 6, as indicated in his original brief, because count 6 does not charge defendant with aggravated sexual assault (§ 269).
We first address the question of whether unlawful sexual intercourse with a child under the age of 16 (§ 261.5, subd. (d)), is a lesser included offense of aggravated sexual assault (rape) of a child under the age of 14. (§§ 269, subd. (a)(1), 261, subd. (a)(2).)
There are “two alternative tests to determine whether a lesser offense is necessarily included in a greater offense. Under the elements test, we look to see if all the legal elements of the lesser crime are included in the definition of the greater crime, such that the greater crime cannot be committed without committing the lesser. Under the accusatory pleading test, by contrast, we look not to official definitions, but to whether the accusatory pleading describes the greater offense in language such that the offender, if guilty, must necessarily have also committed the lesser crime. [Citation.]” (People v. Moon (2005) 37 Cal.4th 1, 25-26.) A lesser offense is necessarily included in the greater offense if either the statutory elements test or the accusatory pleading test is satisfied. (People v. Birks (1998) 19 Cal.4th 108, 117-118.)
1. STATUTORY ELEMENTS TEST
First, we analyze defendant’s contention by applying the statutory elements test. Unlawful sexual intercourse with a child under the age of 16 occurs when “[a]ny person 21 years of age or older... engages in an act of... sexual intercourse with a minor who is under 16 years of age.” (§ 261.5, subd. (d).)
Aggravated sexual assault (rape) of a child under the age of 14 is committed when sexual intercourse is accomplished against the will of a person who is under 14 years of age and seven or more years younger than the defendant, “by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.” (§261, subd. (a)(2); see § 269, subd. (a)(1).)
If a victim were 12 years old, and the offender were 20 years old, then the crime would be aggravated sexual assault (rape), but it would not be unlawful sexual intercourse, because the offender must be at least 21 years old for the crime of unlawful sexual intercourse. Accordingly, unlawful sexual intercourse is not a lesser included offense of aggravated sexual assault under the statutory elements test.
2. ACCUSATORY PLEADING TEST
Second, we analyze defendant’s contention by applying the accusatory elements test. In count 4, the information alleged, “On or about May 21, 1996[,] through May 21, 1998,... the crime of aggravated sexual assault of a child [(§ 261, subd. (a)(2))], in violation of... section 269[, subdivision] (a)(1), a felony, was committed by [defendant], who did commit the following act upon victim, [C.N.,] who was under the age of 14 years, the defendant... being more than 10 years older than the victim....” Count 5 is identical to count 4, except for alleging that the crime occurred “[o]n or about May 21, 1998[,] through May 21, 1999.”
Unlawful sexual intercourse with a child under the age of 16 occurs when “[a]ny person 21 years of age or older... engages in an act of... sexual intercourse with a minor who is under 16 years of age.” (§ 261.5, subd. (d).)
The accusatory pleading indicates that C.N. was under the age of 14 at the time of the offense, and that defendant was more than 10 years older than C.N.; however, the pleading does not allege that defendant was 21 years of age or older. For instance, if C.N. were eight years old, then defendant could have been 19. Accordingly, the information does not describe the greater offense in language such that defendant must necessarily have also committed the lesser crime. Therefore, unlawful sexual intercourse is not a lesser included offense of aggravated sexual assault under the accusatory pleading test.
We recognize that the complaint and the first amended complaint both reflect that defendant was born in December 1965, and therefore, he was over the age of 21 at the time of the offenses. Nevertheless, the information, which is the charging document, i.e., the accusatory pleading, does not include defendant’s date of birth. (See People v. Moses (1996) 43 Cal.App.4th 462, 469-470 [the information is reviewed in the accusatory pleading test].)
3. CONCLUSION
We conclude the trial court did not err by not instructing the jury on unlawful sexual intercourse with a child under the age of 16 (§ 261.5, subd. (d)), because it is not a lesser included offense of aggravated sexual assault (rape) of a child under the age of 14. (§§ 269, subd. (a)(1), 261, subd. (a)(2).)
B. COUNTS 12 AND 13
Defendant contends the trial court erred in counts 14 and 15 by not instructing on the lesser included offense. In counts 12 and 13, defendant was charged with the aggravated sexual assault (sexual penetration) of G.N., a child under the age of 14. (§§ 269, subd. (a)(5), 289, subd. (a).) Defendant contends the jury should have been instructed on the offense of unlawful sexual penetration. (§ 289, subd. (j).)
In his opening brief, defendant asserts the trial court should have instructed “on the lesser included offense of non-forcible lewd acts upon a child (§ 288, subd. (a)),” in counts 13 and 14. In his supplemental opening brief, defendant acknowledges that section 288, subdivision (a), is not a lesser included offense of aggravated sexual assault of a child (§ 269, subd. (a)(1)), and instead contends the jury should have been instructed on the lesser included offenses of unlawful sexual penetration of a child under the age of 14 (§ 289, subd. (j)). However, in his argument, defendant refers to counts 12 and 13. We infer that defendant intends his contention to relate to counts 12 and 13, as indicated in his supplemental brief, and not count 14, as indicated in his original brief, because count 14 does not charge defendant with aggravated sexual assault (§ 269).
1. LESSER INCLUDED OFFENSE
We begin by considering whether unlawful sexual penetration (§ 289, subd. (j)), is a lesser included offense of aggravated sexual assault (sexual penetration) of a child. (§§ 269, subd. (a)(5), 289, subd. (a).)
a) Statutory Elements Test
First, we apply the statutory elements test. Unlawful sexual penetration occurs when a person sexually penetrates another person who is under 14 years of age, and the victim is more than 10 years younger than the offender. (§ 289, subd. (j).)
Aggravated sexual assault (sexual penetration) of a child under the age of 14 is committed when a person sexually penetrates another person who is under the age of 14 and seven or more years younger than the defendant, “against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.” (§ 261, subd. (a)(2); see § 269, subd. (a)(1).)
Unlawful sexual penetration is not a lesser included offense of aggravated sexual assault, because the defendant does not need to be more than 10 years older than the victim to be guilty of aggravated sexual assault. For instance, if a 19-year-old defendant forcibly penetrated an 11-year-old victim, then the defendant would be guilty of aggravated sexual assault, but not unlawful sexual penetration.
b) Accusatory Pleading Test
Second, we apply the accusatory pleading test. In counts 12 and 13, the information alleged, “On or about January 19, 2000[,] through January 19, 2002,... the crime of aggravated sexual assault of a child [(§ 289, subd. (a))], in violation of [section 269, subdivision (a)(5)], a felony, was committed by [defendant], who did commit an act upon victim, [G.N.], who was under the age of 14 years, the defendant... being more than 10 years older than the victim, in violation of [section 289, subdivision (a)].”
The elements of unlawful sexual penetration are met when (1) a person sexually penetrates another person; (2) the victim is under 14 years of age; and (3) the defendant is more than 10 years older than the victim. (§ 289, subd. (j).) The accusatory pleading alleged (1) defendant sexually penetrated the victim; (2) the victim was under the age of 14 years; and (3) defendant was more than 10 years older than G.N. Accordingly, under the accusatory pleading test, unlawful sexual penetration (§ 289, subd. (j)) is a lesser included offense of aggravated sexual assault of a child. (§§ 269, subd. (a)(5), 289, subd. (a).)
2. INSTRUCTING THE JURY
Next we consider whether the trial court erred by not instructing the jury on the crime of unlawful sexual penetration (§ 289, subd. (j)), in counts 12 and 13.
“An instruction on a lesser included offense must be given only when the evidence warrants such an instruction. [Citation.] To warrant such an instruction, there must be substantial evidence of the lesser included offense, that is, ‘evidence from which a rational trier of fact could find beyond a reasonable doubt’ that the defendant committed the lesser offense. [Citation.]” (People v. Mendoza (2000) 24 Cal.4th 130, 174.) “[A] lesser included instruction need not be given when there is no evidence that the offense is less than that charged.” (Ibid.) We independently review the question of whether the trial court should have given the instruction regarding the lesser included offense. (People v. Cole (2004) 33 Cal.4th 1158, 1215; People v. Waidla (2000) 22 Cal.4th 690, 733.)
G.N. testified that she could recall defendant placing his fingers in her vagina on two occasions. Around the time defendant first penetrated G.N.’s vagina, when she was approximately eight years old, G.N. threatened to tell E.N. about defendant’s actions. Defendant told G.N. that if she told E.N. he would “find her and kill her before she got to the authorities. Or if they took [defendant] away [then he] would... send somebody to kill [G.N. and her siblings].” G.N. said that when defendant touched her vagina, she tried to stop him by pushing his hand away. When G.N. tried to forcefully stop defendant from touching her, defendant would punch G.N.
In his defense, defendant presented relatives and friends who testified that (1) they never saw defendant abuse his children; (2) they never saw bruises or other signs of abuse on the children; and (3) the children did not complain of being abused. During closing arguments, in regard to counts 12 and 13, defendant’s trial attorney argued that defendant was innocent because (1) there was no physical evidence to support G.N.’s claims of sexual abuse; (2) G.N. could not recall the exact timing of the incidents; (3) G.N. was not credible because, while testifying, she constantly agreed with the prosecutor and defense attorney; and (4) G.N. spoke to the other children about defendant’s behavior, which “allowed them to get their stories straight.”
There is no evidence that the offenses in counts 12 and 13 were less than aggravated sexual assault of a child. (§§ 269, subd. (a)(5), 289, subd. (a).) The evidence reflects only two possibilities: (1) defendant used threats and violence to force himself on G.N., or (2) defendant did not penetrate G.N. Substantial evidence does not support a finding that defendant penetrated G.N. without force. Accordingly, the lesser included offense instruction did not need to be given because there is no substantial evidence that the offenses were less than those charged. Consequently, we conclude the trial court did not err.
C. COUNT 9
Defendant contends the trial court erred by not instructing the jury on the lesser included offense in count 9. In count 9, defendant was charged with forcibly committing a lewd or lascivious act upon B.N., a child under the age of 14. (§ 288, subd. (b)(1).) Defendant contends the trial court erred by not instructing the jury on the lesser included offense of willfully committing a lewd or lascivious act upon a child of 14 or 15. (§ 288, subd. (c)(1).)
We begin by determining whether section 288, subdivision (c)(1), is a lesser included offense of section 288, subdivision (b)(1).
1. STATUTORY ELEMENTS TEST
First, we apply the statutory elements test. The elements of section 288, subdivision (b)(1), are as follows: (1) a defendant willfully commits a lewd or lascivious act upon or with the body of the victim; (2) the victim is under the age of 14 years; (3) defendant acts with the intent of arousing or gratifying the sexual desires of the defendant or the victim; and (4) the act is committed by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.
The elements of section 288, subdivision (c)(1), consist of: (1) a defendant willfully commits a lewd or lascivious act upon or with the body of the victim; (2) the victim is 14 or 15; (3) the defendant is at least 10 years older than the victim; and (4) the defendant acts with the intent of arousing or gratifying the sexual desires of the defendant or the victim.
Section 288, subdivision (c)(1), is not a lesser included offense of section 288, subdivision (b)(1), because (1) if the victim is under the age of 14, as required for subdivision (b)(1), then the victim could not be 14 or 15, as required for subdivision (c)(1); and (2) section 288, subdivision (b)(1), does not require that the defendant be at least 10 years older than the victim. Accordingly, it is possible to commit the crime in subdivision (b)(1), without committing the crime in subdivision (c)(1). For example, if a defendant molested a victim who was 15 years old, then the defendant would be guilty of violating section 288, subdivision (c)(1), but not section 288, subdivision (b)(1).
2. ACCUSATORY PLEADING TEST
Next, we apply the accusatory pleading test. Count 9 alleged as follows: “On or about April 12, 2002[,] through April 12, 2005,... the crime of forcible lewd act upon [a] child, in violation of [section 288, subdivision (b)(1)], a felony, was committed by [defendant], who did unlawfully, and lewdly commit a lewd and lascivious act upon and with the body and certain parts and members thereof of [B.N.], a child under the age of fourteen years, with the intent of arousing, appealing to, and gratifying the lust, passions, and sexual desires of the said defendant[] and the said child, by use of force, violence, duress, menace, and threat of great bodily harm.”
Section 288, subdivision (c)(1), is not a lesser included offense of section 288, subdivision (b)(1), under the accusatory pleading test because the information alleged that B.N. was under the age of 14, not that she was 14 or 15. Additionally, the information does not allege that defendant was 10 years older than B.N. Accordingly, the accusatory pleading does not describe the greater offense in language such that defendant must necessarily have also committed the lesser crime.
3. CONCLUSION
We conclude the trial court did not err by not instructing the jury on section 288, subdivision (c)(1), because section 288, subdivision (c)(1), is not a lesser included offense of section 288, subdivision (b)(1).
D. COUNTS 2, 3, 14, AND 15
1. FACTS
At the trial court, defendant requested that the court instruct the jury on the lesser included offense of battery (§ 242) “on all of the sex charges.” The court granted defendant’s request for the battery instruction as to counts 1, 9, and 10, because the court believed the evidence could support a finding of battery. The court denied defendant’s request as to the remaining charges because “[t]hose touchings did involve sexual intent, not just straight battery.”
2. DISCUSSION
Defendant contends the trial court erred by not instructing the jury on the lesser included offense of battery (§ 242) in counts 2, 3, 14, and 15. In counts 2, 3, 14, and 15, defendant was charged with committing lewd or lascivious acts upon Jane and G.N., children under the age of 14. (§ 288, subds. (a) & (b).) We disagree with defendant’s argument.
a) Lesser Included Offense
There is currently a split of authority in the courts of appeal as to whether battery (§ 242) constitutes a lesser necessarily included offense of section 288. (See People v. Thomas (2007) 146 Cal.App.4th 1278, 1293 [battery is a lesser included offense]; People v. Santos (1990) 222 Cal.App.3d 723, 729, 739 [battery is not a lesser included offense].) We assume, without deciding, that battery (§ 242) is a lesser necessarily included offense of lewd and lascivious acts with a child. (§ 288, subds. (a) & (b).)
b) Error
Next, we determine whether the trial court erred by not instructing the jury on the lesser included offense of battery (§ 242).
As noted ante, “An instruction on a lesser included offense must be given only when the evidence warrants such an instruction. [Citation.]” (People v. Mendoza, supra, 24 Cal.4th at p. 174.) “[A] lesser included instruction need not be given when there is no evidence that the offense is less than that charged.” (Ibid.) We independently review the question of whether the trial court should have given the instruction regarding the lesser included offense. (People v. Waidla, supra, 22 Cal.4th at p. 733.)
(1) Counts 2 and 3
In count 2, defendant was charged with kissing Jane’s neck. (§ 288, subd. (a).) In count 3, defendant was charged with putting his hand down the front of Jane’s pants. (§ 288, subd. (a).) Jane testified that, when she was in defendant’s room, defendant laid her down on the bed. As Jane lay on the bed, defendant asked Jane if she had a boyfriend. Defendant kissed Jane’s neck, or tried to kiss Jane’s neck. Jane moved away from defendant, but defendant placed his hand inside Jane’s underwear and touched her genitals, or tried to touch her genitals. During closing arguments, defendant argued that the evidence showed Jane was not credible, because she had a poor memory and contradictory testimony. Defendant also argued that if he tried to kiss Jane and touch her genitals, then he was only guilty of attempted lewd and lascivious acts, and if “there was some kind of touching that was against [Jane’s] will” then the jury could find him guilty of battery.
There is no evidence that the acts charged in counts 2 and 3 were less than the charged offense of lewd and lascivious acts with a child (§ 288, subd. (a)). Defendant trying to kiss Jane’s neck and putting his hand down her shorts as she lay on a bed showed that defendant had the intent of arousing or gratifying his or Jane’s sexual desires. There was no evidence that defendant had a non-sexual reason for attempting to kiss Jane or placing his hand in her shorts. Accordingly, we conclude the trial court did not err by not instructing the jury on the crime of battery (§ 242) in counts 2 and 3.
Defendant contends the battery instruction should have been given because the jury found defendant guilty of attempted lewd and lascivious acts with a child (§§ 664, 288, subd. (a)), in counts 2 and 3, rather than the charged offenses. Defendant’s argument is unpersuasive because even an attempted lewd and lascivious act requires a sexual or lustful intent. (§§ 664, 288, subd. (a).) Accordingly, our analysis remains the same—the evidence supported a finding that defendant had a sexual intent, and no evidence supported a finding of a simple battery.
(2) Count 14
In count 14, defendant was charged with touching G.N.’s vagina, under her clothes, and threatening to kill G.N.’s siblings if she reported the touching. (§ 288, subd. (b).) In count 15, defendant was charged with touching G.N.’s vagina, during a separate incident. (§ 288, subd. (a).)
G.N. testified that defendant told her to sleep with him on several occasions. Defendant wanted G.N. to sleep in a shirt and underwear, but no pajama pants. As G.N. lay next to defendant, he touched her buttocks. On at least two occasions, defendant placed his hand inside G.N.’s underwear and touched her vagina. During closing arguments, defendant argued that the evidence showed G.N. was not credible and, therefore, her claims should be viewed “with suspicion.”
There is no evidence that the acts charged in counts 14 and 15 were less than lewd and lascivious acts with a child. (§ 288, subds. (a) & (b).) Defendant touching G.N.’s vagina, as she lay next to him in bed, showed that he had the intent of arousing or gratifying his or G.N.’s sexual desires. Defendant did not present evidence that there was a non-sexual reason for touching G.N.’s vagina, such as a medical reason. Accordingly, we conclude the trial court did not err by not instructing the jury on the offense of battery (§ 242) in counts 14 and 15.
VI. SENTENCE FOR COUNTS 2 AND 3
Defendant contends the trial court erred by not staying his sentences for counts 2 and 3 pursuant to section 654. Alternatively, defendant contends that the imposition of separate punishments for counts 2 and 3 violated his rights to a jury trial and to proof beyond a reasonable doubt. We disagree with both arguments.
A. SECTION 654
In count 1, defendant was convicted of committing a lewd and lascivious act upon Jane, due to massaging Jane’s body. (§ 288, subd. (a).) In counts 2, and 3, defendant was convicted of attempted lewd and lascivious acts upon Jane, for “starting” to kiss Jane and placing his hand in Jane’s shorts. (§§ 664, 288, subd. (a).) Defendant contends the trial court should have stayed his sentences in counts 2 and 3 because the sexual acts were “committed for the purpose of fondling [Jane’s] vagina.”
Section 654 prohibits multiple punishments for (1) a single act, and (2) a course of conduct that violated more than one statute but which constituted an indivisible course of conduct. (People v. Perez (1979) 23 Cal.3d 545, 551 (Perez).) “Whether a course of conduct is indivisible depends upon the intent and objective of the actor. [Citation.] If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. [Citation.]” (Ibid.) The intent and objective in an attempted violation of section 288 is to arouse, appeal to, or gratify “the lust, passions, or sexual desires of [the perpetrator] or the child.” (§ 288, subds. (a).)
In Perez, our Supreme Court declared that an intent and objective to obtain sexual gratification “is much too broad and amorphous to determine the applicability of section 654.” (Perez, supra,23 Cal.3d at p. 552.) Accordingly, our high court held that section 654 “does not prohibit the imposition of multiple punishment for separate sexual offenses committed during a continuous attack, ‘even where closely connected in time.’ [Citations.]” (People v. Hicks (1993) 6 Cal.4th 784, 788, fn. 4.)
Defendant’s intent in kissing Jane (count 2) and placing his hand in Jane’s pants (count 3) was to gratify his or Jane’s sexual desires. (§ 288, subd. (a); see also People v. Memro (1985) 38 Cal.3d 658, 697 [lewd intent is an element of an attempted lewd and lascivious act].) Furthermore, each offense was a separate and distinct act—not incidental to or the means by which another charged offense was accomplished. (Perez, supra, 23 Cal.3d at pp. 553-554.) Accordingly, section 654 is not applicable to counts 2 and 3.
Defendant asserts that section 654 is applicable to counts 2 and 3 because the acts were committed for the single purpose of fondling Jane’s vagina. Contrary to defendant’s position, a section 654 analysis does not include consideration of the ultimate act that defendant hoped to achieve, rather, the analysis focuses on defendant’s intent when committing each offense. The intent in section 288, subdivision (a), is to gratify sexual desires, and therefore, section 654 is not applicable. (Perez, supra,23 Cal.3d at p. 552.) Accordingly, we find defendant’s argument unpersuasive.
Next, defendant contends that the jury’s findings that the offenses in counts 2 and 3 were inchoate, rather than choate, shows that the jury found the offenses were meant to achieve the ultimate, singular goal of fondling Jane’s vagina, because they were only attempted lewd acts. Contrary to defendant’s position, the jury’s findings show that the jury credited Jane’s testimony that (1) defendant reached inside Jane’s shorts, but she stopped him before he touched her vagina; and (2) defendant “started” kissing Jane’s neck, but did not make contact, because Jane moved away. In other words, the jury’s findings mean that defendant did not make contact with Jane, because Jane thwarted defendant’s attempts; the findings do not mean that the acts were part of a single objective of fondling Jane’s vagina.
B. CONSTITUTIONAL RIGHTS
Defendant contends the trial court violated his Sixth and Fourteenth Amendment rights to a jury trial and to proof beyond a reasonable doubt by not applying section 654 to his sentences for counts 2 and 3 based upon facts that were not found by a jury to be true beyond a reasonable doubt. Defendant argues that the trial court’s factual determination that counts 2 and 3 constituted separate, divisible acts resulted in an increase in his sentence and, therefore, it is improper under Cunningham v. California (2007) 549 U.S. 270 (Cunningham). We disagree.
In Cunningham, the high court was concerned with issues regarding a defendant’s constitutional rights being violated when a judge imposes a sentence greater than the maximum she could have imposed, under state law, without the challenged factual findings. (Cunningham, supra, 549 U.S. at p. 274.) The application of section 654 does not raise the same concerns. (People v. Cleveland (2001) 87 Cal.App.4th 263, 270-271.) Section 654 reduces a defendant’s total prison term and a court’s decision not to apply section 654 does not increase a defendant’s sentence beyond that already anticipated by the jury’s findings. (Cleveland, at pp. 270-271.)
Accordingly, we conclude the trial court’s decision not to apply section 654 to counts 2 and 3 did not violate defendant’s Sixth and Fourteenth Amendment rights.
VI. SENTENCING
Defendant contends the trial count violated his Sixth and Fourteenth Amendment rights to a jury trial and to proof beyond a reasonable doubt by (1) sentencing him to the upper term for count 11, and (2) imposing consecutive sentences on all of the counts. We disagree.
A. UPPER TERM
1. FACTS
In count 11, defendant was convicted of child abuse likely to cause death or great bodily injury (§ 273a, subd. (a)), for striking B.N. until she fainted. Also in count 11, the jury found true the allegation that defendant inflicted great bodily injury upon B.N. (§ 12022.7, subd. (a).)
On February 15, 2008, the trial court sentenced defendant to the upper term of six years for the substantive offense, plus an additional three years for the enhancement. The trial court found the aggravated prison term was appropriate because defendant “is a serious danger to the children in our society [and defendant] took advantage of a position of trust in committing all of the offenses in this case.” The trial court designated the sentence for count 11 as the principle term.
2. DISCUSSION
Defendant contends that his sentence for count 11 was imposed based on a revised version of section 1170, which was not the law when he committed the offense in count 11, thus violating the constitutional prohibition against ex post facto laws. Defendant further contends that, under the version of section 1170 that was in effect when he committed the offense, the trial court could not impose the upper term for count 11 without additional factual findings by the jury; therefore, defendant asserts that the trial court violated his rights to a jury trial and to proof beyond a reasonable doubt by sentencing him to the upper term, based upon facts that were not admitted or found true by a jury.
The ex post facto clause prohibits legislation that creates more burdensome punishments for crimes that were committed prior to the legislation becoming effective. (People v. McVickers (1992) 4 Cal.4th 81, 84.)
We provide a brief summary of the recent changes to section 1170. In Cunningham, the United States Supreme Court concluded that the determinate sentencing scheme under former section 1170 violated the Sixth Amendment (jury trial guarantee) of the federal Constitution, because it allowed a judge, rather than a jury, to find facts that raised a defendant’s sentence above the midterm sentence, and the midterm was considered to be the relevant statutory maximum. (Cunningham, supra, 549 U.S. at p. 293.) On March 30, 2007, Senate Bill 40 amended section 1170 in response to Cunningham’s suggestion that California could comply with the federal jury trial guarantee, while still retaining determinate sentencing, by allowing trial judges to have broad discretion in selecting a prison term within a statutory range, thereby eliminating the requirement of a judge-found factual finding to justify an aggravated term. (Cunningham, supra, 549 U.S. at pp. 308-309.) (Sen. Bill No. 40; Stats. 2007, ch. 3, § 2, pp. 4-6.)
In Sandoval, our Supreme Court found that the trial court violated the defendant’s Sixth Amendment right to a jury trial by sentencing the defendant to the upper term based upon facts that were not admitted or found true by a jury (Cunningham error). (People v. Sandoval (2007) 41 Cal.4th 825, 837-838 (Sandoval).) Our high court concluded that the trial court’s error was not harmless, and remanded the case to the trial court for resentencing. (Id. at p. 843.) Our Supreme Court then considered whether defendant’s resentencing should proceed under the revised version of section 1170. (Sandoval, at p. 843.)
Our high court noted that it was unclear whether the Legislature intended for the revised version of section 1170 to apply retroactively. (Sandoval, supra, 41 Cal.4th at p. 845.) However, our high court determined that it did not need to decide if the revised version of section 1170 applied retroactively, because if it did not apply, then it would be the court’s responsibility to reform the statute, in order to create a constitutionally valid sentencing procedure. (Sandoval,at pp. 845-846, 849.) Our high court decided that a procedure identical to the procedure adopted in the revised version of section 1170 should apply to resentencing proceedings in cases where Cunningham errors were found. (Sandoval,at p. 846.) Our high court concluded that applying the judicially reformed sentencing procedures in resentencing proceedings would not violate ex post facto principles because the reformed procedures would not have “the effect of increasing the sentence for any particular crime.” (Id. at p. 855.) However, our high court also noted that the ex post facto clause applied exclusively to legislative enactments, and not to judicial decisions, therefore, since the resentencing procedures were created by judicial decision, the ex post facto clause was inapplicable. (Ibid.)
Accordingly, Sandoval did not specifically address whether the legislative revisions to section 1170 violated the ex post facto clause if applied to offenses committed prior to the legislation’s effective date. Nevertheless, Sandoval concluded that the changes made by the court’s sentencing reformation “never could result in a harsher sentence and affords the defendant the opportunity to attempt to convince the trial court to exercise its discretion to impose a lower sentence.” (Sandoval, supra, 41 Cal.4th at p. 855.)
Sandoval primarily discussed the Supreme Court’s reformation of section 1170. However, our Supreme Court’s ex post facto analysis, in the context of its reformation of section 1170, carries persuasive weight and we choose to follow that analysis because it demonstrates a reasoned examination of the issue and reflects compelling logic. (See People v. Smith (2002) 95 Cal.App.4th 283, 300.) Accordingly, we conclude that the trial court’s application of the revised version of section 1170 when sentencing defendant to the aggravated term for count 11, did not violate the ex post facto clause.
Further, to the extent any error could be found, it would be deemed harmless. (Sandoval, supra, 41 Cal.4th at p. 838.) In determining whether the trial court’s error is harmless we consider whether “the aggravating circumstances cited by the trial court in imposing the upper term sentence in the present case would have been found true by the jury beyond a reasonable doubt because each was supported by ‘largely uncontested or overwhelming evidence.’” (Id. at pp. 840-841.)
We cannot conclude beyond a reasonable doubt that the jury would have found defendant was “a serious danger to the children in our society.” Defendant’s crimes primarily involved his own children, and count 11 specifically involved defendant’s daughter, B.N. Accordingly, it is not clear that the jury would have found defendant presented a serious danger to children in general.
We can, however, conclude beyond a reasonable doubt that a jury would have found, beyond a reasonable doubt, that defendant took advantage of a position of trust in committing the offense in count 11. (Cal. Rules of Court, rule 4.421(a)(11).) Defendant was able to attack B.N. in her home because he was B.N.’s father. Further, defendant’s threats to harm B.N.’s siblings, if she reported the crime, were more credible because he was B.N.’s father and had access to B.N.’s siblings. Accordingly, overwhelming evidence supports the finding that defendant took advantage of a position of trust to commit the offense. Consequently, we conclude any error in sentencing defendant to the upper term for count 11 was harmless.
B. CONSECUTIVE SENTENCES
Defendant contends the trial court erred by sentencing him to consecutive sentences. Defendant asserts that when the trial court imposed consecutive sentences, it relied on its own findings, rather than the jury’s findings, that each offense constituted a separate, independent crime. Defendant contends that the trial court’s reliance on its own factual findings in imposing consecutive sentences violated his rights to a jury trial and to proof beyond a reasonable doubt as set forth in Apprendi v. New Jersey (2000) 530 U.S. 466, 490-492.
As defendant recognizes, this court is bound to follow our Supreme Court’s determination that Apprendi is not applicable to consecutive sentences. (People v. Black (2007) 41 Cal.4th 799, 821-823.) Defendant has raised this issue in order to preserve it for federal review; however, the United States Supreme Court has also concluded that Apprendi is not applicable to the imposition of consecutive sentences. (Oregon v. Ice (2009) ___ U.S. ___ [129 S.Ct. 711, 714-715, 718-719].) Accordingly, given the precedent cited ante, we find defendant’s argument unpersuasive.
DISPOSITION
Count 8 and count 17 are reversed. In all other respects, the judgment is affirmed.
We concur: RICHLI, Acting P. J., GAUT, J.