People v. Smith CA3

Filed 5/26/15 P. v. Smith CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin)

THE PEOPLE, C073881

Plaintiff and Respondent, (Super. Ct. No. MF034272A )

v.

LEON SMITH,

Defendant and Appellant.

A jury convicted defendant Leon Smith of forcible lewd acts upon a child under the age of 14 years (Pen. Code, § 288, subd. (b); count 1),1 continuous sexual abuse of a child under the age of 14 years (§ 288.5, subd. (a); count 2), and oral copulation or sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b); count 3). For counts 2 and 3, the trial court sentenced defendant to state prison for a total term of 31 years to life. On the prosecutor’s motion, the court dismissed count 1.

1 Undesignated statutory references are to the Penal Code.

1

Defendant appeals. He contends his conviction on count 3 violates ex post facto principles.2 We reject this contention and will affirm the judgment. FACTS AND PROCEDURAL HISTORY Count 3 charged defendant with violating section 288.7, subdivision (b) “[o]n or about September 21, 2006 through January 21, 2008.” Section 288.7, subdivision (b) provides: “Any person 18 years of age or older who engages in oral copulation or sexual penetration, as defined in Section 289, with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life.” Section 288.7 was added in 2006, and took effect immediately, on September 20, 2006. (Stats. 2006, ch. 337, §§ 9, 62, pp. 2584, 2590-2591, 2668.) The victim was born on January 22, 1997; thus, on January 22, 2008, the victim turned 11 years of age. Defendant was born on January 31, 1971. At trial, the prosecutor presented specific evidence of the dates, the victim’s ages and class (kindergarten to seventh grade), and the types of defendant’s conduct. The victim testified that defendant would lick her vagina at least once a week when she was 6, 7, 8, 9, 10, 11, 12, and 13 years of age, from 2003 to 2010. Defendant testified and denied having ever molested the victim and more particularly, denied having ever orally copulated her or sexually penetrated her. The jury was instructed on count 3 as follows: “The defendant is charged in Count 3 with engaging in oral copulation or sexual penetration with a child under 10 years of age or younger, in violation of Penal Code section 288.7[, subdivision] (b). [¶] To prove that the defendant is guilty of this crime,