(Super. Ct. No. P06CRF0473) APPEAL from a judgment of the Superior Court of El Dorado County, James R. Wagoner, Judge. Affirmed as modified.
The opinion of the court was delivered by: Nicholson , J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant was convicted by jury of molesting a victim from the time she was eight years old until she turned 15. Sentenced to 18 years in state prison, he appeals.
On appeal, defendant raises issues concerning (1) the statute of limitations, (2) jury instructions, (3) restitution, and (4) sentencing. Except for the need to make some minor modifications to the judgment, we find no merit in defendant's contentions of error. We therefore modify and affirm the judgment.
The district attorney charged defendant by information with one count of committing a lewd act on a child under 14 (count I; committed between January 1, 1987, and August 10, 1988; Pen. Code, § 288, subd. (a))*fn2 and one count of continuous sexual abuse (count II; committed between August 11, 1988, and August 9, 1993; § 288.5). A jury found defendant guilty of both counts.
The trial court sentenced defendant to the upper term of 16 years in state prison on the continuous sexual abuse count and a consecutive two years (one-third the middle term) on the lewd act count, for a total state prison term of 18 years. The court also ordered various fines and fees, as well as victim restitution in an amount to be determined later.
Defendant filed a timely notice of appeal from the judgment. (Case No. C062191.)
After a hearing on the amount of victim restitution, the trial court ordered defendant to pay the victim $753,265, consisting of $3,265 in economic damages and $750,000 in non-economic damages. The court noted that a total of $79,210.68 had been lodged with the court on behalf of defendant. The court ordered that the funds lodged with the court, including interest accrued, be distributed to the victim. The court also issued an abstract of judgment and writ of execution for the total amount of restitution ($753,265).
Defendant filed a timely notice of appeal from the restitution order. (Case No. C063545.)
We consolidated the two appeals.
The victim, Jane Doe, was born on August 10, 1979. She met defendant at the age of eight, in 1988, when he started dating her mother. Doe's mother and defendant were married in 1992 and divorced in 2000.
When Doe was eight years old, defendant routinely babysat her at his trailer while Doe's mother worked. Dropped off at defendant's trailer after school, Doe would stay with defendant until Doe's mother picked her up in the evening. During Doe's visits to defendant's trailer, defendant would lift her onto the kitchen counter and touch Doe's chest, stomach, neck, and back, over and under her clothing, eventually doing so when Doe was wearing her underwear only. Defendant also digitally penetrated Doe's vagina when she was eight years old.
The molestation continued after Doe turned nine years old and beyond. As Doe recalls, "[b]asically every day" when she was alone with defendant, she was molested. He had her take off all of her clothes, and he touched her, grabbing her waist, stomach, and chest.
Doe moved into an apartment with her mother and defendant when she was 10 years old, and the molestations continued there, during the day, when Doe was alone with defendant. When she was 12 years old, defendant began digitally penetrating her vagina regularly.
Doe started homeschooling when she was 11 years old and continued with homeschooling through high school. The homeschooling was defendant's idea, and defendant was responsible for her during school time.
When Doe was 13 years old, she and her mother moved with defendant to a home in Ione. Doe's mother slept in the master bedroom, and defendant slept on a cot in the living room. As Doe grew through puberty, defendant focused more on her chest. Defendant routinely had Doe join him on the cot at night, both undressed. He touched her chest, buttocks, and vagina, while he had her touch his chest and stomach.
When Doe was 14 years old, defendant began orally copulating Doe, and, when Doe was 16 years old, defendant began penetrating Doe's vagina with his penis, which occurred almost every day. During a trip to Disneyland to celebrate Doe's graduation from high school, defendant had Doe orally copulate him while Doe's mother slept in the other bed.
Defendant took more than 800 naked pictures of Doe while she was a minor, starting when she was eight years old. He commonly destroyed the pictures after two or three weeks so that he would not get caught with them. One of the pictures, however, was found by defendant's sister. It was admitted as evidence at trial.
After Doe turned 18 years old, she moved out of the house. However, defendant frequently visited her and had sexual relations with her. When Doe needed money, defendant paid her for sex acts. The encounters continued until November 2005, when Doe was 26 years old.
Defendant lived with his father from 1997 until about the time of his arrest. He sent pictures of Doe to Playboy and encouraged her to become a stripper. When defendant's sister was cleaning up their father's house after his death, she found a naked picture of Doe and a printout of a Yahoo profile of a 15-year-old. On the back of the printout was written, "moms with daughters lesbian chat room."
In March 2006, Doe reported defendant's conduct to the El Dorado County Sheriff's Department. She told a detective, however, that defendant had never penetrated her vagina with his fingers or penis. At trial, she testified that she lied concerning this specific point because she "was not prepared to recollect the whole entire truth . . . ."
With the help of the detective, Doe made a pretext call to defendant. During the call, Doe told defendant she needed to talk to him because she had to deal with "some of the stuff that you did to me . . . ." Doe said: "I just want to know why you did some of the stuff you did to me in the past when I was a child." Defendant responded: "I don't know what to say at this point." Defendant was evasive, so Doe said that he needed to talk to her or she would go to the authorities. Defendant said: "[W]hat's going to say you're not going to go anyhow?" Defendant expressed discomfort with talking over the phone and said: "I just want to assure that it's just you and me talking." He wanted to be sure that their conversation was not being recorded.
Doe asked defendant, "Why did you start touching me when I was eight years old sexually and when I was a child and I didn't know what the hell was going on?" Defendant replied: "I don't know. It's probably not what you want to hear, but I don't know." Doe asked why defendant had sexual intercourse with her, and defendant said he thought it sounded like she was reading from a paper. Doe again asked why defendant had done "things" to her, and defendant answered: "Well, I didn't try to take advantage of you if that's what you're trying to say."
Doe asked defendant why he had tried to have sex with her and why he touched her chest and orally copulated her. Defendant said: "There's no explanation for anything that I can come up with right this instant. Or any other time." Doe persisted in seeking an explanation, and defendant expressed further suspicion that she was being prompted.
Doe accused defendant of touching her with sexual intentions, and defendant said: "Well, I didn't have sexual intentions with you, if that's what you're saying. I don't -- there's no way in heck I did." Doe pressed for an answer, and defendant continued to say he did not have an answer. He also continued to express his paranoia over talking to her about it on the phone and what he perceived as Doe's attempt to "entrap" him. He told Doe that he did not want her to go to the authorities because "it should be between you, me, and your mother, because your mother was right there too."
Doe asked: "Why did you touch my chest? Why did you touch my vagina? Why did you have attempted intercourse with me? Why did you . . . have any sexual contact with me?" And defendant said: "I -- I don't know why -- uh -- why anything would come up on that. There was -- there's no explanation for any of it other than the fact that we were living together and, you know, your mother and I and you, all three of us ran around in -- well, we probably shouldn't have either -- very open." He continued: "And unfortunately, you know, a lot of stuff started when your mother and I were first together, and I guess it just progressed, but it shouldn't have been."
Defendant said he was trying not to be attracted to Doe; he was attracted to her mother. Doe asked why he came to her, and defendant said: "I guess because you and I were getting closer overall."
Doe told defendant that she was worried that defendant would do those things to her future children. He said: "Never. Absolutely never." He also said, "I won't do it to anybody. I have never done it to anybody, and I tried to do is raise a daughter [sic], and I guess that was wrong too, right?"
Doe asked why he had touched her "in certain spots that you're not supposed to touch me as a father." Defendant said: "I don't know. There's no answers to anything. I don't know what to say to you. I'm sorry your life has been so screwed up, whether it was my fault, [Doe's boyfriend's] fault, or your mother's, or anybody else's."
Defendant told Doe: "Well, I'm sorry whatever (inaudible) happens happened [sic]. I don't have an actual answer for you because I don't know what to say to you, or anybody else. I just don't know. I just wish you could do what you're saying, close this thing off and go on with your life."
Before they hung up, defendant told Doe that he was dating a woman without children, and that he had purposely found someone without children.
The prosecution presented evidence of defendant's conduct with other girls. Around 1989, when defendant was married to a woman other than Doe's mother, he fondled the breasts of his teenage stepdaughter over her clothing. On another occasion, defendant, in the presence of friends and family, made sexual remarks about the same stepdaughter, who was wearing a bikini.
In 2004, defendant gave a computer disk to his fianceee. He told her that he was being investigated and that the disk contained naked pictures of Doe which he had taken when, as an adult, she was trying to become a pole dancer. The fianceee never looked at the pictures and later destroyed the disk.
The fianceee ended her relationship with defendant when she learned that defendant had entered her home and tried to get into the bathroom when her 16-year-old daughter was showering.
Defendant testified at trial. He denied that he babysat Doe before they moved to Ione. He also denied that he ever molested Doe. Any touching between them was incidental and without sexual intent. However, he said that Doe hugged him when she was naked. He was shown one naked picture of Doe and was asked if he had taken the picture. He said no. He also denied paying her for sex.
Concerning the pretext call, defendant claimed he did not deny her accusations because he was trying to figure out what was going on. While defendant was being questioned by a detective about the accusations, defendant asked to speak to his father. In the interview room, defendant's father asked defendant where the conduct occurred, and defendant replied that it occurred in Placerville and Ione. Referring to the recording of the pretext call, defendant told his father: "If they run that tape, it's going to screw me down."
The standard statute of limitations for count I, a violation of section 288, subdivision (a), is six years because it falls within the category of crimes punishable by imprisonment for eight or more years.*fn3 (§ 800.) Here, the prosecution commenced more than six years after the alleged offense. (See § 804.) However, section 803, subdivision (f) provides for extension of the statute of limitations under specific circumstances. Defendant contends that (A) section 803, subdivision (f) does not apply in this case and (B) trial counsel was ineffective for not requesting a jury instruction on section 803, subdivision (f). We conclude that (A) the evidence produced at trial was sufficient to establish that the limitations period had not expired when this action was commenced against defendant and (B) defendant suffered no prejudice from any alleged deficiency in trial counsel's representation as to this issue.
Defendant did not raise the statute of limitations issue in the trial court. Neither did he request instructions so that the jury could make factual findings relevant to the statute of limitations. The failure to raise the statute of limitations issue did not forfeit consideration of the issue on appeal because the issue is jurisdictional and the charging document indicates on its face that the action is time-barred. (People v. Williams (1999) 21 Cal.4th 335, 340-341.) However, because defendant did not request jury instructions on the statute of limitations issues, he cannot argue on appeal that jury instructions should have been given. (People v. Smith (2002) 98 Cal.App.4th 1182, 1192-1193.)
Enacted effective January 1, 1994, section 803, subdivision (f)(1), states: "Notwithstanding any other limitation of time described in this chapter, 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 . . . 288 . . . ."*fn4 Thus, this law extends the applicable statute of limitations for specified crimes, so long as the crimes "were not time-barred on January 1, 1994 . . . ." (People v. Vasquez (2004) 118 Cal.App.4th 501, 504; see also Stogner v. California (2003) 539 U.S. 607, 618-619 [156 L.Ed.2d 544, 556] (Stogner) [section 803, subdivision (f) may extend limitations period only if limitations period had not yet expired when that provision became effective, applying ex post facto prohibition].)
Here, there is no Stogner ex post facto problem with applying the extension provision. Even though the information alleged acts before January 1, 1988 (six years before the January 1, 1994, enactment of the extension provision), the evidence at trial established that defendant did not ...