People v. Scott CA1/5

Filed 8/4/14 P. v. Scott CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent, A139229

v. (Alameda County Super. Ct. No. H49457) DANIEL JAMES SCOTT,

Defendant and Appellant. ___________________________________|

A jury convicted Daniel James Scott of misdemeanor assault (Pen. Code, § 240)1 and felony continuous sexual abuse of his daughter, a child under 14 (§ 288.5, subd. (a)). The trial court sentenced him to state prison. Scott appeals. He contends the court erred by instructing the jury pursuant to CALCRIM No. 207 that the prosecution need not prove the crimes took place on specific dates, but rather “happened reasonably close to those dates.” Scott also claims the court erred by instructing the jury pursuant to CALCRIM No. 307 that the prosecution need not prove “the defendant had a motive to commit any of the crimes charged.” We disagree and affirm. FACTUAL AND PROCEDURAL BACKGROUND

1 Unless noted, all further statutory references are to the Penal Code. 1

The People charged Scott with aggravated sexual assault of his daughter, a child seven to 14 years old (§ 269, subd. (a)(5)) (count 1), forcible oral copulation (§ 288a, subd. (c)(2)) (count 2) and continuous sexual abuse of his daughter, a child under 14 (§ 288.5, subd. (a)) (count 3.) Trial Jane Doe was born in March 1995. Scott is Doe’s father. Scott sexually molested Doe about 500 times from 2002 — when she was seven — until December 2009 or January 2010, when she was 14. Doe reported the abuse in April 2010, shortly after she turned 15. Doe lived in a house with her paternal great grandmother from age four to 14. Scott moved into the house when Doe was four. When Doe was seven years old, Scott began touching her breasts. He did it at night, predominately in his room. When Doe turned nine, Scott began to “wrestle” with her by rubbing his penis against her vagina while he touched her breasts. Doe always tried — unsuccessfully — to stop the abuse; Scott sometimes pinned Doe’s arms down as he rubbed against her. The abuse escalated when Doe turned 10. Scott touched Doe’s vagina with his hand under her underwear and forced her to masturbate him. Around this time, Scott was molesting Doe “once or twice a month” and sometimes up to “seven times” a month. When Doe was 12 or 13, Scott digitally penetrated her; on another occasion, he pulled her head back and put his penis in her mouth, causing Doe to feel like she “was being choked.” Doe tried to avoid Scott, but she did not report the abuse because she was afraid no one would believe her and she “would have to go back to see [her father,] and he’d be angry.” Doe became depressed and started cutting herself with a knife. In April 2010, near the end of her freshman year in high school, Doe told classmates about the abuse. Doe also told her high school counselor Scott started abusing her when she “was about 7 years old” and “the last time that it took place [was] . . . December of 2009.” Doe repeated the allegations to a police officer and to a counselor at Child Abuse Listening, Interviewing and Coordination Center (CALICO).