Opinion
E051183
08-17-2011
THE PEOPLE, Plaintiff and Respondent, v. DONALD EDWARD NELSON, Defendant and Appellant.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Jeffrey J. Koch, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIF093157)
OPINION
APPEAL from the Superior Court of Riverside County. Eric G. Helgesen, Judge. (Retired judge of the Tulare Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Jeffrey J. Koch, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Donald Edward Nelson appeals after he was convicted by a jury of 52 counts of child molestation. (Pen. Code, § 288, subd. (a).) He contends that the judgment should be reversed because it cannot be determined whether two of the convictions were based, at least in part, on acts that occurred outside the statute of limitations. We reject the contention and we affirm.
FACTS AND PROCEDURAL HISTORY
This is the second time this case has been appealed to this court.
The court, on its own motion, takes judicial notice of the record and decision in the earlier appeal, People v. Nelson (Dec. 16, 2002, E029509) nonpublished opinion.
Background
Defendant is the stepfather of the victim. The charges concern allegations that defendant molested the victim repeatedly, several times a week, over a period of several years when the victim was young. The charged offenses focus on a two-year period from 1988 through 1989.
The victim finally reported the molestations to police in late 1999, when she was about 19 or 20 years old. The victim told police that the incidents occurred between the ages of about five and 10 years old. The molestations occurred both during the day and at night. At night, defendant would commonly come into the victim's bedroom while other family members were asleep, and he would remove the covers and touch her inappropriately. The daytime incidents took place in the den, the living room, and defendant's bedroom. On some occasions, defendant would remove the victim's clothes and lick her vagina. Other times, he would hold her hand on his penis to stimulate himself. He would also touch her breasts and vagina with his hand. Defendant did not, to the victim's memory, have a job with regular hours. In any case, defendant was frequently at home during the day. Defendant would tell the victim's brothers to go outside and play and he would lock the doors to keep anyone from coming in; the victim would then be left inside the house with defendant.
The victim could not give any specific dates or times for these incidents. However, she testified that some combination of these incidents would take place three to four times a week. She stated that the incidents happened "so many times," "countless times," that even an estimate of 600 times was not too many.
The victim remembered two specific incidents in more detail. She remembered one time when defendant pulled her head toward his penis, as if she should orally copulate him. In another incident, the victim remembered that defendant took her into his bedroom, removed all her clothes, and lay down on top of her. She believed he attempted to have intercourse with her, but was unable to achieve actual penetration, and so stopped.
After the victim reported the molestations, the investigating officers arranged to have the victim meet with defendant while wearing a hidden microphone. After listening to the conversation, police approached and arrested defendant.
First Trial
The initial preliminary hearing took place in December 2000. Upon the victim's testimony, defendant was held to answer on one count of violation of Penal Code section 288, subdivision (b) (lewd or lascivious act on a child under age 14, with force or duress), and 51 counts of violation of Penal Code section 288, subdivision (a) (lewd or lascivious act on a child under age 14). Each offense alleged in the information was stated to have taken place between 1985 and 1989. Defendant was arraigned on the information on January 18, 2001.
Defendant filed a motion to dismiss the charges, on the grounds that the statute of limitations had expired, and that the prosecution violated his right to due process. As noted, the offenses were stated to have taken place between 1985 and 1989.
Under Penal Code section 800, the ordinary statute of limitations for sex offenses was six years. Penal Code section 803 contained exceptions to the ordinary statutes of limitations. By amendments in 1993 (Stats. 1993, ch. 390, § 1), 1996 (Stats. 1996, ch. 130, § 1), and 1997 (Stats. 1997, ch. 29, § 1), the Legislature created an exception for certain sex offenses that it found were subject to delayed reporting. These amendments authorized the filing of a criminal complaint within one year of the date of a report to a California law enforcement agency of a person of any age, alleging that he or she, while under the age of 18, had been the victim of certain enumerated offenses. Penal Code section 803, subdivision (g) (at that time; the provision has since been redesignated as § 803, subd. (f), but for convenience it will be referred to here as former § 803(g)), provided that this alternate statute of limitations applied only if the ordinary statute of limitations had expired, and the crime alleged had involved substantial sexual conduct for which corroborating evidence existed. Former section 803, subdivision (g)(3)(A), specifically provided that it was intended to revive expired causes of action, upon certain conditions. Defendant challenged this revival of expired statutes of limitation on ex post facto and due process grounds.
Defendant's motion to dismiss was denied and the matter proceeded to trial in March 2001. At the conclusion of the trial, the jury found defendant guilty of 52 counts of violating Penal Code section 288, subdivision (a) (the prosecutor had amended the information during trial to allege the lesser charge of Penal Code section 288, subd. (a)). The court denied probation and sentenced defendant to a state prison term of 110 years.
First Appeal
Defendant filed a notice of appeal in May 2001. On appeal, defendant raised a tangential challenge to the revival of the expired statute of limitations. His primary claim did not challenge former section 803(g) directly, however, inasmuch as the California Supreme Court had, in 1999, found the application of former section 803(g) to claims such as his did not violate ex post facto or due process principles. (People v. Frazer (1999) 21 Cal.4th 737, 742.) Instead, he urged that he had been denied due process because the jury had not been called upon to decide whether the statute of limitations had expired. This court found that the predicate factual issues had necessarily been resolved by the jury against defendant under other instructions.
At the time Frazer was decided, former section 803(g) provided:
"(1) Notwithstanding any other limitation of time described in [section 799 et seq.], a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section 261, 286, 288, 288a, 288.5, 289, or 289.5.
"(2) This subdivision applies only if both of the following occur:
"(A) The limitation period specified in Section 800 or 801 has expired.
"(B) The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual, and there is independent evidence that clearly and convincingly corroborates the victim's allegation. No evidence may be used to corroborate the victim's allegation that otherwise would be inadmissible during trial. Independent evidence does not include the opinions of mental health professionals.
"(3)(A) This subdivision applies to a cause of action arising before, on, or after January 1, 1994, the effective date of this subdivision, and it shall revive any cause of action barred by Section 800 or 801 if any of the following occurred or occurs:
"(i) The complaint or indictment was filed on or before January 1, 1997, and it was filed within the time period specified in this subdivision.
"(ii) The complaint or indictment is or was filed subsequent to January 1, 1997, and it is or was filed within the time period specified within this subdivision.
"(iii) The victim made the report required by this subdivision to a law enforcement agency after January 1, 1994, and a complaint or indictment was not filed within the time period specified in this subdivision, but a complaint or indictment is filed no later than 180 days after the date on which either a published opinion of the California Supreme Court, deciding the question of whether retroactive application of this subdivision is constitutional, becomes final or the United States Supreme Court files an opinion deciding the question of whether retroactive application of this subdivision is constitutional, whichever occurs first.
"(iv) The victim made the report required by this subdivision to a law enforcement agency after January 1, 1994, and a complaint or indictment was filed within the time period specified in this subdivision, but the indictment, complaint, or subsequently filed information was dismissed, but a new complaint or indictment is filed no later than 180 days after the date on which either a published opinion of the California Supreme Court, deciding the question of whether retroactive application of this subdivision is constitutional, becomes final or the United States Supreme Court files an opinion deciding the question of whether retroactive application of this subdivision is constitutional, whichever occurs first.
"(B)(i) If the victim made the report required by this subdivision to a law enforcement agency after January 1, 1994, and a complaint or indictment was filed within the time period specified in this subdivision, but the indictment, complaint, or subsequently filed information was dismissed, a new complaint or indictment may be filed notwithstanding any other provision of law, including, but not limited to, subdivision (c) of Section 871.5 and subdivision (b) of Section 1238.
"(ii) An order dismissing an action filed under this subdivision, which is entered or becomes effective at any time prior to 180 days after the date on which either a published opinion of the California Supreme Court, deciding the question of whether retroactive application of this section is constitutional, becomes final or the United States Supreme Court files an opinion deciding the question of whether retroactive application of this subdivision is constitutional, whichever occurs first, shall not be considered an order terminating an action within the meaning of Section 1387.
"(iii) Any ruling regarding the retroactivity of this subdivision or its constitutionality made in the course of the previous proceeding, by any trial court or any intermediate appellate court, shall not be binding upon refiling."
(See People v. Frazer, supra, 21 Cal.4th at p. 748, fn. 12.)
To the extent that defendant did raise a secondary challenge to former section 803(g), this court was, of course, bound to follow Frazer, and we rejected defendant's ex post facto claim. Our opinion, filed on December 16, 2002, thus upheld all the convictions. (People v. Nelson (Dec. 16, 2002, E029509) [nonpub. opn.] [Fourth Dist., Div. 2].) The California Supreme Court denied review of that decision. (People v. Nelson, review den. March 5, 2003, S113082.) Stogner Decision and Defendant's Post-appeal Habeas Corpus Proceedings
However, on June 26, 2003, after this court's decision on appeal and the California Supreme Court's denial of review, the United States Supreme Court decided Stogner v. California (2003) 539 U.S. 607 [123 S.Ct. 2446, 156 L.Ed.2d 544]. The United States Supreme Court held that the application of section 803(g), to retroactively revive an otherwise already time-barred prosecution, violated the ex post facto clause under the federal Constitution. (Stogner, at pp. 611-612, 632-633.) Thus, the Supreme Court overruled Frazer.
Following the decision in Stogner, the People initiated further proceedings in defendant's case; in late 2003, defendant was transferred from prison to local custody and counsel was appointed to represent him in these further proceedings. After nearly two years of continuances, in August 2005, defense counsel moved to withdraw defendant's plea and interpose a demurrer to the information, on the ground that, the statute of limitations having expired as to all the charges, none of the charges constituted an offense. The People opposed the motion, asserting that, while defendant was permitted to seek postconviction relief, the trial court lacked jurisdiction to grant a motion to withdraw the plea. Rather, the superior court had jurisdiction to grant relief by way of a petition for writ of habeas corpus. The trial court denied the motion to withdraw the plea, and set a hearing on defendant's prospective habeas corpus petition. Within a few days, defendant duly filed his petition for writ of habeas corpus.
Defendant explained that he had been returned to local custody by the district attorney for further proceedings, but that his appointed counsel had been under the mistaken belief that the matter was before the trial court on remand from the Court of Appeal. However, counsel now presented the claim, based on Stogner, that the ordinary statute of limitations had expired before the effective date of the legislation authorizing the extended statute of limitations. The superior court issued an order to show cause (OSC) on the writ petition. The People did not file a response, and on November 18, 2005, the trial court granted the writ of habeas corpus.
After the writ was granted, defendant was admitted to bail, initially set at $75,000.00.
Preliminary Proceedings to the New Trial
Defendant then renewed his demurrer to the complaint on the ground of uncertainty, because the charges failed to allege specific facts to show that the alleged offenses occurred within a proper statute of limitations period.
The People responded to the demurrer by filing a second amended complaint on December 2, 2005. This pleading again alleged 52 counts of molestation in violation of Penal Code section 288, subdivision (a) and, as to each alleged count, specified that it had occurred between the dates of January 1, 1988, and December 31, 1989, or a period of 24 months.
This method of pleading was intended to respond to the Stogner decision; although Stogner had invalidated the revival of causes of action as to which the statute of limitations had expired before former section 803(g) was initially enacted, the United States Supreme Court had held that the extended statute of limitations could be applied to offenses as to which the ordinary statute of limitations had not yet expired at the time of its enactment. For these purposes, the Supreme Court treated the 1996 and 1997 amendments as extensions of the provision's initial enactment in 1994. Former section 803(g) had initially become effective on January 1, 1994. As to any offenses for which the ordinary statute of limitations had not yet expired, the Legislature was empowered to enact a new, extended statute of limitations. For offenses that had taken place on or before December 31, 1987 (i.e., six years before the effective date of former § 803(g)), ex post facto principles barred trial. For offenses occurring after December 31, 1987, however, the ordinary statute of limitations had not yet expired, and would thus be unaffected by Stogner. (See People v. Robertson (2003) 113 Cal.App.4th 389, 393-394 [so long as the original version of former § 803(g) predated the running of the statute of limitations on a particular underlying offense, the propriety of later legislation extending the statute of limitations is purely a question of state law, not subject to the holding in Stogner].)
The second amended complaint, as pleaded, did not purport to revive charges as to which the statute of limitations had already expired before the enactment of former section 803(g); rather, it was formulated to state causes of action as to which the statute of limitations had been extended before expiration. (See In re White (2008) 163 Cal.App.4th 1576, 1583.)
The court conducted a preliminary hearing on October 6, 2006, after which defendant was held to answer on all charges. The theory of pleading 52 counts was based on the victim's testimony that she had been subjected to various forms of molestation two or three times a week for years; acts that occurred during the charge period, between 1988 and 1989, were within the permissible statute of limitations. The information, like the second amended complaint, therefore alleged 52 counts, each stated to have taken place between January 1, 1988 and December 31, 1989. Defendant was arraigned on the new information on November 21, 2006, and pleaded not guilty to all counts.
The case was thereafter subjected to numerous continuances between November 2006 and December 2008.
Defendant's Flight to Israel Delays Trial for Nearly a Year
Then, in January 2009, on the eve of the anticipated second trial, defendant failed to appear. Defendant's bail bond was forfeited. Upon investigation, it was discovered that defendant had fled to Israel, but he was apprehended in approximately October 2009, and returned to California in December 2009. After his failure to appear, the court ordered that defendant was to be held without bail.
Second Trial
After further continuances to reprepare for trial, all parties announced ready on April 5, 2010, and jury trial commenced on April 8, 2010.
The victim had been almost 20 years old when she made her initial report to police in 1999. At the time of the second trial, in April 2010, she was approximately 30 years old. She testified that defendant became her stepfather when she was about four or five years old.
After defendant married the victim's mother, the family moved into a house in Corona. The victim described the layout of the home and several rooms therein, including the bedrooms, living room and den. At some point after the family began living in the Corona house, defendant began molesting the victim. According to her best memory, the molestations began when the victim was around five years old. She testified that, several times a week, defendant would take her into his bedroom and do sexual things to her.
The victim could remember some specific incidents, but could not put them into chronological order. One memorable incident happened in the den; on that occasion, defendant tried to make her perform oral sex on him. Both defendant and the victim were standing. He had his penis out, and he tried to force her head down with his hand. To the best of her memory, these incidents occurred when she was seven years old.
There were many incidents of touching; defendant touched the victim's breasts, her vagina, and her mouth. He also made her touch his penis with her hands. Things like this happened when the victim was five years old, and also continued happening when she was older.
The victim testified that the sexual incidents with defendant happened very often, "at least three times a week." The incidents happened with the same frequency when the victim was six, seven, eight, and nine years old. Some time during the victims's fourth grade year, the molestations stopped. She remembered that things stopped toward the end of her fourth-grade year, when she was 10 years old. At that time, the victim was becoming more aware of her own sexuality. She began resisting defendant's advances, telling him, "no," when he tried to do something. The victim had her own boyfriend. And that summer, between fourth and fifth grade, the victim arranged for a girlfriend to spend the night, "literally, like every night—so it wouldn't happen again."
As of January 1, 1988, the beginning of the limitation period, the victim would have just turned eight years old. The victim was in second grade in 1987-1988, and she was eight years old in the second half of that school year. The victim was ages eight and nine in her third-grade year, 1988-1989. She turned 10 years old in the second half of her fourth-grade year, 1989-1990. She remembered the molestation incidents ended some time during the latter part of the fourth grade year and, as she had explained, she contrived to have the incidents end by the expedient of having another person stay over during the entire summer after her fourth-grade year.
In the victim's fourth-grade year, from the time she started school until the incidents ended, defendant would perform acts of molestation multiple times a week. The incidents of licking her vagina happened at "no less than twice a week." He would also use his hands to rub her vagina "at least three times a week, if not more." The conduct of having her touch his penis happened "three times [a week], if not more" frequently. The victim explained that some days, defendant would combine all three types of molestation, and sometimes only one, like rubbing or touching, but he would do something sexual to her about three times a week. The frequency during the victim's third-grade year (1988-1989) was the same. Similarly, some combination of incidents took place around three times a week during the victim's second-grade year, and the same for earlier years when she was in kindergarten or first grade. To the best of her memory, "on an average," defendant would perform some act of molestation three days a week.
The molestations usually happened during the day. They would normally take place in the living room or defendant's bedroom. The victim's mother would be at work. Her brothers would be outside playing. Defendant would lock the boys out of the house, saying that he was napping or give some other excuse. However, sometimes things happened at night. The victim testified that night time was "when he would come into my room."
A tape recording of a conversation between the victim and defendant was played for the jury. During that conversation, defendant attempted to explain that what he did to the victim was not sexual, but for the purpose of manipulating her emotions. He wanted to get certain emotions from her that he did not feel he was getting. He found notes that she had written, saying, "I hate Dad." The victim said, "did it ever occur to you why I would hate you? Maybe because you were touching me? You would sneak into my room at night?" She told defendant that she still woke up at night, afraid. She remembered him coming into her room at night, and "waking up and have my covers lifted and you'd rub your hands up my legs. You think that I don't remember? . . . why do you think I would write notes like that . . ?" Later in the conversation, defendant admitted that, "I do remember coming into your room. I do remember lying next to you," although he said he did not remember ever trying to have sex with the victim.
Soon after the victim reported the matter to police in 1999, officers asked her to try to obtain some corroborating evidence to support her allegations. She telephoned defendant, whom she had not seen in several years, saying "I need to talk to you. I think you know why." She gave as a pretext that she was "having some troubles with my boyfriends and my mom and stuff like that, and I think some of it has to do with what happened when I was younger." The telephone conversation was recorded. Defendant was reluctant to talk on the telephone, however, so they arranged a face-to-face meeting.
The meeting took place a few days later. The victim wore a recording device, and this conversation was transcribed. In that conversation, defendant did not deny molesting the victim, but gave as an explanation that he had done what he did to "control [the victim's] emotions," because he felt rejected by her. Thus, in his view, "It had nothing to do with sex, even though the act was sexual." The victim wanted to hear him say that he had molested her, rather than minimizing or justifying it in his own mind. Defendant said, "No, . . . I'm not justifying anything. I said that I molested you. I was saying the vehicle in which I want to manipulate your . . . emotions was sexual. That's the same thing." He professed concern that he "didn't want to lessen the emotions that you carry with this by just coming up to you tonight and saying, You know what . . . I sexually molested you and I feel real bad about that." When the victim asked defendant if he remembered trying to have sex with her, or licking her in certain places, he claimed to have "blocked a lot of that out." He did remember some things, however. He remembered coming into her room and lying next to her; he did not remember trying to have sex with her, but remembered touching her. When she asked if he remembered licking her vagina, he said, "I remember kissing you, yes." The victim replied, "Oh, kissing me. That's what you call it."
The victim was upset during her testimony. She felt that defendant had taken away her childhood, and then she had to deal with the legal proceedings since she was 18 years old. She was now 30 years old, and felt revictimized by the process, having to remember things that had taken place so long ago. She had to explain many embarrassing things in front of a jury, strangers who did not know her. She felt it was "a huge slap in the face that he gets to sit here and watch me cry . . . with no emotion whatsoever. It's not fair. It's like, . . . ha, I got you when you were younger, and look at you. You're older and still have to deal with this."
The victim's brother corroborated her testimony that defendant would normally be at home in the early afternoon when the children arrived home from school. He also corroborated her testimony that defendant would frequently lock him and his brother outside the house in the afternoons. He stated that the pattern of being locked out of the house occurred "[a]ll through elementary school. It was frequent. . . . We just couldn't come in until a certain time. I never knew why." He agreed that this pattern took place two or three times a week. "[A] couple of times a week every week it was locked. Everything was locked—the windows, the front door, the sliding door—when [defendant] was home. And we would try to get in, and we couldn't get in. And he would say he was sleeping."
The victim's brother noticed acutely that the victim seemed to get special treatment from defendant; defendant would give things to the victim, but not to the boys. The victim's brother "remember[ed] seeing favoritism. And I always wondered why she got special treatment." By contrast, defendant seemed to have no relationship at all with his stepsons: "There was no relationship. It wasn't because of my choosing. I was a child. It was because of his choosing. He never was a father figure at all. To me at least. Never asked about homework, never asked how things went at school. There was no discipline. There was nothing. There was no love."
Detective Scott Currie testified that he received the case shortly after the victim first reported it in 1999. He arranged for the initial telephone contact, but defendant "did not want to talk to [the victim] because he couldn't be sure that it was, in fact, her that he was talking to and he wanted to talk to her in person." Detective Currie then made arrangements for the victim to wear a recording device during the face-to-face contact. The encounter took place in front of a sporting goods store, and defendant made certain admissions, described above, during the conversation with the victim. The audio tape of the conversation was played for the jury. Based on defendant's admissions, Detective Currie arrested him on the spot.
Officer John Vasek testified that he worked in a fugitive apprehension law enforcement task force. He was on a team that had been dispatched to bring defendant back to the United States after defendant had fled to Israel.
At the close of the prosecution's case, defense counsel moved to dismiss all 52 counts against defendant. Counsel argued that only two specific acts were described in detail: one incident when defendant pulled the victim's head toward his penis, which took place in the den, and one incident of attempted vaginal intercourse, which took place in defendant's bedroom. The victim testified that she was age seven when these specific acts took place, which meant that they had to have occurred before January 1, 1988, and thus were outside the limitations period. Otherwise, none of the counts could be tied to any specific act; the victim's testimony was generically that defendant performed some sex act or combination of acts on the victim two or three times a week between the ages of five and 10. Counsel argued that such evidence was insufficient to support a conviction on any of the 52 counts.
The prosecutor responded that, after January 1, 1988, the limitation period "does include at least a year and a half to two years where she testified that on an average of two or three to maybe more times a week, he in some sort of [combination] either touched her vagina with his hand, tongue, or had her touch his penis during that time period at least two to three times a week. And that is well over 52 weeks, well over 52 incidents, and well within the statute of limitations." The court found that "there is ample evidence here from which a jury could find that it happened 52 times within the alleged time period," and denied the motion.
The defense case proceeded to introduce evidence from defendant's friends, to the effect that defendant and the victim, to all appearances, had a normal, happy family relationship. Defendant's friends had also put up part of the money for his bail. He did not tell them that he planned to flee the country, risking forfeiture of their bail money. Defendant also never disclosed to his friends that he had been recorded admitting that he had molested the victim.
Defendant testified in his own behalf at trial. After college he worked as a substitute teacher in Orange County. After he married the victim's mother, he was employed as a district executive by Boy Scouts of America from about 1985 to 1987. Typically, he would arrive home from work between 3:30 and 4:30 p.m. After that job, defendant worked as a staff counselor in a psychiatric hospital; he was later promoted to program director. There had been a gap of one or two months between the two jobs, but he worked at the psychiatric hospital for the next four years. Defendant's working hours at the psychiatric hospital were from 8:00 a.m. to 5:00 p.m. Daycare or after school care was provided by a neighbor, until either defendant or the victim's mother arrived home from work. Defendant adamantly denied that the children were locked out of the house after school. "The house was always open. They always had access to it." He did testify, however, that he normally arrived home 40 to 45 minutes before the victim's mother.
Defendant tried to explain the circumstances of his face-to-face meeting with the victim in 1999. He stated that there had been ongoing issues between himself and the victim's mother over the divorce and custody of the two daughters of the marriage. Defendant thought that he would be talking to the victim about these custody issues concerning the victim's younger sisters. Defendant simply went along with what the victim was saying to find out whether she was pursuing "an agenda that was put up to her by [her mother] because we were going through this acrimonious divorce." Defendant said he may have been "too over analytical regarding words. . . . I was thinking, well, what does she mean by 'molest'? And I was thinking, okay. That means to disturb the tranquility of something. And I thought, well, yes, I have done that. Brush your teeth, clean your room, consequences for this or that. And that's what I was thinking." Defendant denied ever touching the victim, or having her touch him, in a sexual way. Defendant never meant to admit sexually molesting the victim.
On cross-examination, the prosecutor established that, despite defendant's claim of many ongoing acrimonious custody disputes in the divorce from the victim's mother, the file in the family law proceeding did not reflect those incidents. Between 1995 and 1999, there had been a mediation. As to the one incident of an alleged threat, defendant never followed up to get a restraining order against the victim's mother. None of the alleged incidents had involved the victim. There were no filings in the family law action concerning custody of the minor children, aside from the arrangement of joint custody, which had been made by stipulation.
Defendant also admitted that it had been his free choice in late 2008 or early 2009 to board a plane for Israel, on the eve of the date set for trial in this case. He claimed that he did not recall whether he had been ordered to appear for trial, but he "kn[e]w we were getting close to a trial date." Defendant admitted he knew the normal process, whereby he would be ordered at the end of each hearing to appear for the next one. He knew he had been required to appear, before he chose to leave for Israel. Defendant did not tell anyone that he was leaving.
The prosecutor then questioned defendant in detail about the 1999 recorded conversation between defendant and the victim. Defendant claimed that he met with the victim because he wanted to talk with her about her younger sisters and the ongoing custody issues. However, defendant did not ask to talk about his other daughters and did not steer the conversation toward them. When the victim accused him of molesting her, he was taken aback. He did not deny anything because he decided, "I'm just going to go with this and see where this is going because there is something going on here that I have no idea what it's about." He did not ask the victim what she was talking about. When defendant responded to the victim, he said he wanted to talk about issues between them, not issues concerning his other daughters. Defendant was the one who used the word "transgress," explaining that "the only way I could manipulate and contrive and manufacture a relationship [with her] would be to transgress." Defendant testified that he meant that he had wanted to strengthen his relationship with the victim, but his actual words were that he wanted to manipulate, contrive and manufacture a relationship with her by transgressing. When the victim had accused defendant of touching her, he did not ask what she meant, or deny touching her; instead, he had responded that he "wanted to control." During the conversation, defendant was able to answer readily, "no," when the victim asked him whether he had molested her sisters. Similarly, at trial, he was quite capable of answering simply, "no," when counsel asked him whether he had ever sexually molested the victim. However, when the victim asked defendant in the confrontation why he had molested her, he made no denial. In fact, he admitted molesting her. He explained that he was simply going along with whatever she might mean by molestation, in the broadest possible sense, such that any innocent touching is capable of being construed as sexual. Thus, for example, a hug could be construed as sexual, putting an arm around a child could be construed as sexual, and so on. This explanation was inconsistent, however, with his other behavior in the same conversation. As to his other two daughters, defendant flatly denied any touching or molestation. Defendant agreed he was perfectly capable of denying accusations he did not agree with. Defendant's explanation was also inconsistent with his admission during the conversation that his acts toward the victim were sexual: "It had nothing to do with sex, even though the act was sexual." Defendant asserted that he meant only that he had been trying to be affectionate with the victim.
The People called Detective Currie in rebuttal as an expert in the behavior of child sex abuse victims. He testified that it is rare for a child victim to report sexual abuse within a short period after it occurred. Much more commonly, there is a significant gap in time between the events and the report to law enforcement. Children often do not report molestation for a variety of reasons, including guilt and shame. While keeping their secret, the child victims often will attempt to carry on a normal life in other respects. The child may appear normal, even when observed "around the very person who is violating them." Although victims do sometimes retract their allegations, in this case, the victim never retracted her accusations against defendant, and never "wavered from her contention that the defendant, her stepfather, molested her on a more than weekly basis from as early as kindergarten through fourth grade."
At the close of the evidence, the court instructed the jury on the law applicable to the case, including the requisite findings on each count to ensure that it came within the proper statute of limitations. In particular, the court instructed that, "Under no circumstances may you convict the defendant for any acts committed prior to January 1st, 1988."
During closing arguments, the prosecutor admonished the jury that the charged offenses were alleged to have occurred after January 1, 1988. The victim had testified that defendant performed acts on her, such as licking her vagina, rubbing her vagina with his hand, or having her rub his penis, up to three times a week for two years. "There is [sic]52 weeks in a year, roughly. So if we do the math there, we're talking about over 300 incidents. [¶] So why 52? . . . Simplicity. . . . at the very least, even if you give him the absolute benefit of the doubt—at the very least, we're talking about an entire year and at least once a week. . . . We're only asking you to find him guilty of at least one whole year of at least once a week." The requested verdicts were based solely on the generic allegations of defendant licking the victim, touching her vagina with his hand, and having her touch his penis with her hand, as well as various times that he did things with the victim in her bedroom at night. Anything that happened before January 1, 1988, "just fall[s] outside of what the law can cover. Anything that happened prior is outside the scope . . . ."
Defense counsel also argued that, "you have the date range between January 1st of 1988 and December 31st of 1989. And you need to think that way, and you need to be certain that these things have happened and that specific acts happened on specific[] dates and specific time ranges. And if you can't meet that standard, then again, you are bound to return a verdict of not guilty." Defense counsel argued that the generic testimony was simply not enough upon which to base a conviction, particularly because it had been shown that the victim's memory had been faulty in some respects. She remembered that the molestations had begun when she was five and the family lived in Corona. It was shown, however, that the family did not move to Corona until after she had turned six. There were time periods, when the victim's sisters were born, when her mother would have been at home, so there were gaps in defendant's alleged access to commit the molestations. A "queasy feeling" that "maybe something happened" did not satisfy the reasonable doubt standard. The 52 counts represented only an approximation, not specific evidence of something that happened at a specific time. The victim remembered only two incidents specifically; at most there could be evidence to convict defendant on two counts. There was otherwise simply not sufficient evidence to find the necessary elements as to each and every count.
In closing, the prosecutor repeated that, as of January 1, 1988, the victim had just turned eight years old. Everything that happened before that time must be disregarded. After that date, however, the victim consistently testified to multiple acts of molestation that took place regularly several times a week. The choice of 52 counts was "exactly tailored to how many weeks there are in a typical year. [¶] . . . It's enough charges where we can feel comfortable that even though it may not be as many times as he actually did it, at least we know we're holding him accountable for a good chunk of what he did . . . ."
The jury then retired for deliberation. The jury reported that it had reached verdicts on three counts, but was unable to reach verdicts on the remaining 49 counts. The court polled the jurors, and at least two felt that further deliberation could help them reach a verdict. The court therefore returned the matter to the jury for further consideration. The jurors retired for further deliberations at 9:51 a.m., and returned with signed verdicts on all the remaining counts one and one-half hours later, at 11:21 a.m.
The court denied defendant's motion for a new trial, and ultimately sentenced defendant to 110 years in state prison: the aggravated term of eight years on the principal count (count 1) and two years consecutive on each of the remaining counts.
Defendant has again appealed.
ANALYSIS
I. Contention
Defendant contends that his federal and state constitutional rights to a fair trial and due process were violated, because two of the convictions might have been based on the only two specific acts described by the victim; both the specific acts occurred outside the statute of limitations period. Defendant argues, therefore, that two of the convictions must be vacated, either because they actually were based on barred incidents, or because of uncertainty, i.e., that it cannot be determined whether the two particularized acts were excluded from the verdicts.
Defendant has phrased his contention in terms of violation of constitutional rights, but the gist of the contention is an evidentiary one. Defendant's "attempt to inflate garden-variety evidentiary questions into constitutional ones is unpersuasive." (People v. Boyette (2002) 29 Cal.4th 381, 427.)
When an accusatory pleading on its face shows that the statute of limitations has run, the prosecution is barred. The matter is jurisdictional and, unless expressly waived, precludes any prosecution. (1 Witkin, Cal. Crim. Law (3d ed. 2000) Defenses, § 215, p. 576; see also People v. Chadd (1981) 28 Cal.3d 739, 756; People v. Bell (1996) 45 Cal.App.4th 1030, 1057.) When, however, the accusatory pleading is facially sufficient, whether the statute of limitations has run on a charged offense is solely an evidentiary one for determination by the trier of fact, and the sufficiency of the evidence on the issue does not raise a jurisdictional question. (1 Witkin, Cal. Crim. Law, supra, Defenses, § 217, p. 587; see People v. Padfield (1982) 136 Cal.App.3d 218, 225.) "The People bear the burden of proof on the statute of limitations issue and that burden is one of preponderance of the evidence. [Citation.] On appeal the issue is tested by the substantial evidence standard. [Citation.]" (Padfield, at pp. 225-226, citing People v. Zamora (1976) 18 Cal.3d 538, 564-565.)
Here, the pleading was facially sufficient. We turn now to a review of the sufficiency of the evidence to support the two questioned convictions.
II. Substantial Evidence Supported Defendant's Convictions
The statute of limitations was a significant matter in the case, and ultimately led to the retrial. The charging document in the second trial had been amended specifically to address the statute of limitations problem, and to ensure that defendant could be convicted only on offenses that occurred within the statute of limitations period. Thus, each and every count carefully alleged that defendant could be convicted only for acts he committed on and after January 1, 1988. The prosecution was required to plead and prove, by a preponderance of the evidence, the prosecution commenced within the specified statute of limitations period. (People v. Angel (1999) 70 Cal.App.4th 1141, 1146-1147.) To that end, the jury was given forms for special findings on all counts, to ensure that the foundational requirements for a timely prosecution were met. The jury duly returned the completed findings as to each count.
Nevertheless, defendant urges that two of the counts must be reversed, because it is possible that they were founded upon the specific incidents that the victim remembered, which occurred outside the limitations period, when she was seven years old.
In closing arguments, the prosecutor argued that the evidence proved that defendant was guilty of at least 52 acts of molestation, consisting of substantial sexual conduct, based on the victim's testimony that defendant performed certain kinds of acts (licking her genitals, touching her vagina with his hand, or having her touch his penis) at least two or three times a week. Her testimony made clear that the same kinds of acts, at the same frequency, took place not only before the limitations period, but all during the limitations period. The prosecution was based on this general testimony of the frequency and types of repeated acts, which took place from January 1, 1988 through December 31, 1989, a period of two years. The actual number of acts that occurred, based on the victim's testimony, far exceeded the number of counts charged. There was therefore no reliance in the presentation of the prosecution's case on the two specific instances of molestation the victim had remembered took place when she was seven. The prosecutor's argument similarly focused solely on acts that occurred generally within the two-year statutory period, all of which occurred after the victim turned eight years old.
Defense counsel's argument was that the general evidence the victim had presented was insufficient to support a conviction on any count. In his estimation, sufficient evidence for a conviction required specific evidence of a particular act at a particular time and place, but there was no such evidence except as to the two instances that the victim had clearly remembered. Thus, he argued, "If there is enough evidence to convict [defendant] of anything, it would be on two counts and two counts only. There is not enough here. . . . You need to be convinced by proof beyond a reasonable doubt of each and every element of each and every crime that is charged. And even if I acknowledge that you can get to that point, I'm telling you [that] you should only get to that point on two charges, two counts, if anything." He concluded that, "there is not proof beyond a reasonable doubt. For that reason, I'm asking you to return not guilty verdicts on all 52 counts . . . ." (Italics added.)
Contrary to defendant's position on appeal, it is not at all clear that defense counsel below was asking for or inviting a conviction on the specific incidents that occurred outside the limitations period. Rather, the emphasis was upon the type or quantum of evidence that could satisfy the requirement to find guilt beyond a reasonable doubt. Counsel was contrasting the specific evidence of the two early incidents with the general evidence concerning the types of acts and the frequency with which defendant committed them, which were the foundation of the 52 charges. Thus, counsel argued for acquittal on all 52 counts, as the evidence on all of them was of the same general type.
The prosecutor responded in rebuttal that, despite defense counsel's disparagement of the selection of 52 counts, the number was reasonable and defensible. "According to the chart that we put up in her testimony, we already know that there are definitely enough incidents to form 52 or more offenses, 52 or more molests, but she could only name two specific incidents. So he is saying, all right. Fine. If you want to find the defendant guilty of two because there are only two specific ones, then that is also an option. But you know what? It doesn't have to be that specific." (Italics added.) He then went on to explain how the general nature of the victim's testimony did not obviate its truth. Again, a fair reading of the argument is not that the prosecutor was advocating that the jury could return verdicts based on the two specific incidents that had occurred outside the statute of limitations. Rather, he was acknowledging that defense counsel's argument could be seen as taking that position, but that position should be rejected because its premise—i.e., that only specific testimony as to particular incidents would satisfy the burden of proof—was flawed.
The only thing in support of defendant's contention on appeal is his interpretation of the closing arguments, coupled with the jury's initial deadlock on most of the counts. From these two data, defendant extrapolates the supposition that the arguments in fact advocated that the jury could return verdicts on the two specific acts, which were outside the limitations period, and that the jury must have been influenced by that argument in its initial inability to decide on all but three counts.
The problem with defendant's contention is that it is hypothesis founded upon speculation. An appellant bears the burden of affirmatively demonstrating error. (People v. Ledesma (2006) 39 Cal.4th 641, 746.) Mere speculation is insufficient to carry this burden.
Against defendant's construction of the argument, we place the evidence at trial, and the instructions of the trial court.
The evidence at trial made clear, over and over, that only acts that occurred after January 1, 1988, could form the basis for the charges. The evidence showed unequivocally and undisputedly that the limitations period began shortly after the victim turned eight years old. It was also undisputed that the only two specific incidents that the victim could remember happened when she was seven, i.e., before the dates of the charged offenses.
In addition to the evidence of the victim's trial testimony, the jury had defendant's own admissions, which he made during the recorded meeting between him and the victim. Defendant's attempts to explain away his admissions were flatly incredible. Moreover, his flight to Israel on the eve of trial betrayed a consciousness of guilt.
The jury instructions also militate against defendant's conjecture of impropriety. The court instructed on the general testimony supporting the charged offenses, and specifically told the jury that it could, under no circumstances, base any conviction on an act that took place before January 1, 1988. Further, the jury was plainly instructed that the arguments of counsel are not evidence. We must presume that the jury properly followed the court's instructions. (People v. Avila (2009) 46 Cal.4th 680, 719; People v. Ledesma, supra, 39 Cal.4th at p. 684.)
The jury's return of the verdicts does not provide any evidence to undermine the integrity of the process. The jury returned verdicts on three counts, and initially reported a deadlock on the remaining 49 counts. When the jurors were polled, however, at least two jurors felt that further deliberations would be helpful. The court ordered the jury to resume deliberations, and within a very short time, the jury returned with all the remaining verdicts and findings completed. Neither defendant nor this court has any idea what the jurors discussed, what initial difficulty may have arisen with some of the verdicts, the basis for the first three verdicts returned, or how the jurors resolved their differences. " '[S]peculation is not evidence. . .' " (People v. Waidla (2000) 22 Cal.4th 690, 735) and, thus, will not suffice to carry the affirmative burden to show error.
Defendant urges that both counsel made improper arguments, which misled the jury. The contention is unmeritorious. Defendant's position depends on a particular interpretation of the attorney's remarks, but their remarks are also reasonably susceptible to a wholly proper interpretation. Moreover, the jury was clearly instructed that the remarks of counsel are not evidence. The evidence itself overwhelmingly established defendant's guilt. The instructions unequivocally told the jurors that they could not base any conviction on an act that took place before January 1, 1988, and the evidence was uncontradicted that the only specific acts that the victim remembered happened before that date. The entire theory of the case was not that defendant had committed specific acts on specific dates at specific times, but that he had committed recurring acts of molestation of specific types with a repetitive frequency. Under the presumption that the jury has followed the court's proper instructions, there is nothing to support defendant's speculative contention that two of his convictions might somehow have been based on the excluded acts. Under these circumstances, no reversal is required.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
RICHLI
J.
CODRINGTON
J.