The opinion of the court was delivered by: Hoch , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Todd Allen Simmons was convicted by jury of four counts of committing a lewd or lascivious act on a minor under the age of 14 years (Counts 1, 4-6), one count of forcible sexual penetration (Count 2), one count of forcible oral copulation (Count 3), and one count of exhibiting harmful matter to a minor for purposes of seduction (Count 7). Counts 1 through 3 involved crimes committed in 1988 against D.C., his then-girlfriend's six-year-old niece. Count 4 involved defendant's victimization of S.D., his then-wife's 10- or 11-year-old daughter, between 1997 and 1998. Counts 5 through 7 involved crimes committed against D.R., his then-girlfriend's six-year-old son, between 1999 and 2000. With respect to Counts 1 through 6, the jury found a multiple-victim special allegation to be true. With respect to Counts 5 and 6, the jury found a substantial sexual conduct special allegation to be true. The trial court sentenced defendant to an indeterminate term of 45 years to life plus a consecutive determinate term of 20 years in state prison.
On appeal, defendant contends: (1) Counts 4 and 7 were barred by the statute of limitations as a matter of law; (2) the People presented insufficient evidence to prove that the crimes alleged in Counts 1 through 3 were committed before the statute of limitations expired; (3) the trial court prejudicially erred and violated his constitutional rights by failing to instruct the jury, sua sponte, to determine whether the crimes alleged in Counts 1 through 3 were committed before the statute of limitations expired; (4) defendant's trial counsel rendered ineffective assistance by failing to raise the statute of limitations issue with respect to Counts 1 through 3; (5) the trial court's imposition of full-term consecutive sentences on Counts 1 and 7 was not authorized by statute; (6) the trial court was not authorized to impose a sentence of 15 years to life on both Count 5 and Count 6; and (7) the trial court's imposition of consecutive sentences on Counts 4 through 6 must be vacated because the trial court erroneously believed consecutive terms were required by statute.
The Attorney General concedes that the trial court was not authorized to impose full-term consecutive sentences on Counts 1 and 7. The Attorney General also concedes that the trial court was not authorized to impose a life sentence on both Count 5 and Count 6. We accept these concessions because they are correct. With respect to defendant's remaining contentions, we conclude that prosecuting defendant for committing a lewd or lascivious act against S.D., as alleged in Count 4, was not barred by the statute of limitations. However, prosecuting defendant for exhibiting harmful matter to D.R., as alleged in Count 7, was barred by the statute of limitations. Defendant's claims with respect to Counts 1 through 3 have been forfeited by his failure to raise these issues in the trial court. And defendant has not carried his burden of persuading us that he was prejudiced by his trial counsel's failure to preserve these issues. Finally, the record does not demonstrate the trial court erroneously believed it was required to impose consecutive terms on Counts 4 through 6.
Thus, we must reverse defendant's conviction in Count 7. His remaining convictions are affirmed. In light of the sentencing errors noted above, we vacate defendant's sentence in its entirety and remand the matter to the trial court with directions to impose sentence in accordance with the views expressed in this opinion.
Sexual Abuse of D.C. (Counts 1 through 3)
In January 1988, D.C. was six years old and periodically stayed the night at her grandmother's house in Palo Cedro, a small town east of Redding. The house had three bedrooms, one occupied by D.C.'s grandmother, another occupied by her aunt Shirley, and a guest bedroom. D.C. stayed in the guest bedroom, as did several cousins who were also staying at the house. Defendant, 20 years old at the time, worked for D.C.'s father and was dating Shirley. He routinely stayed the night at the house.
One night, defendant came into the guest bedroom while D.C. was sleeping, pulled back the covers, and crawled into bed with her. D.C. was wearing a shirt and underwear. At first, she thought defendant "just needed a place to sleep, like for whatever reason he couldn't sleep in the living room." Defendant then started rubbing her legs with his hands, pushed up her shirt, and pulled down her underwear. Defendant told D.C. "how soft [her] skin was." He then positioned his upper body on top of D.C., started rubbing the inside of her legs with his hands, and penetrated her vagina with his fingers. Defendant then "put his mouth on [D.C.'s] vagina[l area]" and told her that "he wanted [her] to do the same for him." D.C., who had been quiet up to this point, "told him no and tried to get out from under him." Defendant told her to "be quiet" and not to "tell anybody about what happened because he would hurt [her] parents." Defendant then got out of bed, retrieved a towel from the bathroom, and cleaned up something on the bed. D.C. put her underwear on and went back to sleep.
That same month, D.C.'s mother, Terri C., became ill and was hospitalized for seven days.*fn1 The day Terri C. was released from the hospital, D.C. told her mother that defendant pulled her underwear down and touched her while she was staying at her grandmother's house. When Terri C. told her husband about D.C.'s accusation, he did not believe that defendant, one of his "best friends," had molested his daughter and told his wife not to talk to D.C. about the incident. About a year later, Terri C. took D.C. to Child Protective Services for an evaluation and told an acquaintance who worked for the sheriff's department about the incident. However, no official report was made to law enforcement until 2009, after defendant was arrested for the crimes committed against D.R., described below. When Terri C. saw the arrest on the local news, she called the Redding Police Department and reported that defendant had also molested her daughter.
Based on these facts, defendant was convicted of one count of committing a lewd or lascivious act on a minor under the age of 14 years, one count of forcible genital penetration, and one count of forcible oral copulation.
Sexual Abuse of S.D. (Count 4)
Defendant was married to W. D. for four months between 1997 and 1998. He lived with W. D. and her two daughters, S.D. and her older sister, in Shasta Lake City, a small town north of Redding. S.D. turned 11 years old during this time period.
One afternoon during the marriage, while W. D. was at work, defendant was cooking dinner in the kitchen. S.D. "was just running in there and bothering him and just playing around." Defendant unexpectedly pulled her pants and underwear down to her ankles. S.D., "thinking that [they] were playing," stepped out of her pants and underwear, ran to the bathroom, locked the door, and got into the shower. Defendant followed, unlocked the door, and came into the bathroom. S.D. then got out of the shower, ran back to the kitchen, and jumped up on the counter. Defendant again followed. S.D. sat on the counter with her legs hanging over the side. Defendant grabbed her knees, pushed them apart, and looked at her vagina. Smiling in a "[p]erverse" way, defendant commented that she was "starting to grow hair."
At this point, S.D. could hear the sound of her mother pulling into the driveway. S.D. went into the living room, found a pair of defendant's boxers, and put them on. When W. D. asked S.D. why she was wearing defendant's boxers, S.D. answered that she put them on after defendant took her pants off. At this point, defendant yelled S.D.'s name in a stern voice, "pretty much telling [her] to be quiet." S.D. stopped talking. A few minutes later, W. D. called S.D. into her bedroom, where S.D. revealed what happened.
Based on these facts, defendant was convicted of one count of committing a lewd or lascivious act on a minor under the age of 14 years.
Sexual Abuse of D.R. (Counts 5 through 7)
Defendant dated Debbie B. between 1999 and 2000. He lived with Debbie B. and her two sons, D.R. and C.R., in Redding for two or three months during this time period. D.R. was six years old. C.R. was four years old.
One day, while Debbie B. was out of the house, defendant and D.R. were in the living room watching television. Defendant asked D.R. to go into his mother's bedroom. D.R. followed defendant into the bedroom and sat on the bed. Defendant put on a pornographic movie depicting people having sex on a beach and then joined D.R. on the bed. Defendant told D.R. to take his clothes off, helped him do so, and started touching D.R.'s legs and penis, making the boy feel "[s]cared" and "[w]eird." Defendant then started touching his own penis, moved D.R.'s hand over to his penis, and said: "Here, do this." D.R. touched defendant's penis for a few minutes while defendant continued to touch D.R. Defendant then put D.R.'s penis in his mouth, asked D.R. if he "liked it," and told D.R. to continue touching him. A short time later, defendant took his mouth off of D.R.'s penis, masturbated himself to ejaculation, and turned off the movie. After telling D.R. not to tell anybody about what happened, defendant allowed D.R. to get dressed and return to the living room to watch television.
D.R. did not tell his mother about this incident for about two years. When he did so, he revealed only that defendant showed him a pornographic movie. He did not tell her more because he "was still scared" and "didn't want to tell anybody about it." Debbie B. took D.R. to the police station to report the incident. At the station, D.R. repeated what he had told his mother. At this point in time, defendant was living in Arkansas. He moved there shortly after he stopped dating Debbie B. and lived there for six years.
A few years after D.R. first told his mother about the incident, he told her more of what defendant had done to him. As Debbie B. explained, D.R. had taken a sexual education class at school and told her that he had a better understanding of what happened. This prompted Debbie B. to take D.R. back to the police station. D.R. told police that, in addition to playing a pornographic movie, defendant also touched D.R. and had D.R. touch him. D.R. did not tell police about the oral copulation. Around this time period, D.R. began to receive counseling and felt better able to discuss everything that happened.
Ultimately, in 2009, D.R. told police the full extent of what defendant had done to him. While at the police station, D.R. made a pretext call to defendant in an effort to elicit admissions concerning the abuse. Defendant said that "he didn't remember doing it," but never "said the words, I did not do this." Debbie B. also made a pretext call to ...