(Super. Ct. No. 08F01922)
The opinion of the court was delivered by: Robie , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Saeng Fou Saechao guilty of four counts of sexual intercourse with his granddaughter, a child 10 years of age or younger (Pen. Code,*fn1 § 288.7, subd. (a)), and two counts of lewd acts on a child (§ 288, subd. (a)).
On appeal, defendant contends that two of his section 288.7 convictions must be reversed because they violate the ex post facto clauses of the state and federal Constitutions, in that they were alleged to have been committed before section 288.7 went into effect. The People concede the error, but contend that there was sufficient evidence to support convictions on the counts of violation of section 289 (sexual penetration of a child under 14 years of age), a lesser included offense. We agree, and order the judgment modified accordingly. In all other respects, we affirm.
In February 2008, when the victim was 11 years old, she told her mother defendant had engaged in intercourse with her more than 10 times since she was nine years old. The victim's mother arranged a pretext telephone call, during which defendant admitted the crime, told the victim he was sorry, and directed her not to tell anyone what had happened.
Defendant was charged with four counts of violating section 288.7, subdivision (a); two counts alleged commission of the crime between January 28, 2006, and January 27, 2007; the jury found defendant guilty of these crimes as alleged.
Section 288.7, however, did not become effective until September 20, 2006. (Stats. 2006, ch. 337, § 9.) Subdivision (a) of section 288.7 effectively increased the punishment for the conduct from three, six, or eight years in state prison to a term of 25 years to life in state prison: section 289, subdivision (j), under which the offenses could have been prosecuted before section 288.7 became effective, provides that "[a]ny person who participates in an act of sexual penetration with another person who is under 14 years of age and who is more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years."
Defendant contends that because the jury could have found him guilty on counts one and two based on events that occurred before to September 20, 2006, his convictions on those counts violated the ex post facto clauses ...