Opinion
D072055
03-23-2018
THE PEOPLE, Plaintiff and Respondent, v. ISMAEL MACHADO SEPULVEDA, Defendant and Appellant.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Marvin E. Mizell, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD259311) APPEAL from a judgment of the Superior Court of San Diego County, Michael T. Smyth, Judge. Affirmed. Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Marvin E. Mizell, Deputy Attorneys General for Plaintiff and Respondent.
A jury found defendant Ismael Machado Sepulveda guilty of lewd acts against B.Z., a child under the age of 14 (Pen. Code, § 288, subd. (a), counts 1-6), and against P.M., also a child under the age of 14 (id., counts 7-9). The jury found true the multiple victim allegation on each count (§ 667.61, subds. (b)(c) & (e)) and the "substantial sexual conduct" allegation on count 9 (§ 1203.066, subd. (a)(8)). Finally, the jury also found defendant's prosecution on counts 7-9 was timely commenced (former § 801.1, subd. (a)). The court sentenced defendant to 15 years to life.
All further statutory references are to the Penal Code unless otherwise noted.
On appeal, defendant contends the court erred when it instructed the jury in connection with counts 7-9 that the burden of proof to find defendant committed these offenses within the statute of limitations was by a preponderance of the evidence and not beyond a reasonable doubt. Defendant also contends the court prejudicially erred in failing to give sua sponte the jury a unanimity instruction in connection with counts 7 and 8. As we explain, we reject these contentions and affirm his judgment of conviction.
FACTUAL OVERVIEW
This overview is limited to victim P.M., as defendant has not challenged his convictions with respect to B.Z.
P.M. testified that she was born in August 1994; that her father, defendant herein, and mother divorced when she was very young; and that after her parents' divorce, she and her older twin brothers had visitations with defendant, particularly on weekends. P.M. testified that during some visits they would travel to Tijuana to visit defendant's family, where they often would stay overnight. P.M.'s last visit or contact with defendant took place in about late August 2002 when she was eight years old, about a week after she disclosed his "[s]exual molestations" of her.
P.M. testified that defendant molested her on "[m]ore than one occasion"; that these molestations took place both in Tijuana and in Chula Vista, where she lived; and that her first recollection of defendant molesting her was when they were at her grandparents' house in Tijuana on what she believed was New Year's Day because she recalled her brothers were setting off fireworks.
The jury was specifically instructed that defendant was not being charged with any incidents of sexual misconduct that took place in Tijuana, Mexico.
On that occasion, P.M. recalled that, while her brothers were outside, defendant took her into her grandparents' room, closed the door, and laid her on the bed. P.M. was fully clothed, as was defendant. According to P.M., defendant then laid on top of P.M., grabbed her arms, and held them near her head so she could not move them. Defendant next began rubbing his "his private part over [her] private part," which she identified as his "penis" on her "vagina," using his knees to exert pressure as he rubbed against her. When defendant finished, he told P.M. not to "say anything" including to her mother, as it was their "secret."
P.M. testified about an incident of sexual misconduct by defendant that took place in Chula Vista about a week before her disclosure. P.M. recalled it was a school day when defendant came to visit them at her mother's condominium. One of P.M.'s brothers called her to come outside and see defendant, who was sitting in the driver's seat of his parked car. Defendant next placed P.M. on his lap, with her legs "sitting across his legs." As she was "facing her brother," defendant began kissing P.M.'s ear and mouth, including putting his tongue inside both.
P.M. testified that she felt uncomfortable as defendant was kissing her ear and mouth; that she wanted her brother to see what their father was doing to her; that her brother instead was looking down at some "paper" while the kissing incident was taking place; and that her brother refused to look up and watch, and was instead "laughing." P.M. was eight years old when this incident occurred.
P.M. recalled another incident of sexual misconduct by defendant that took place inside her mother's condominium. During this incident, her brothers, but not her mother, were home. While her brothers were busy playing video games, defendant, who was seated on a couch, picked up P.M. and placed her on his lap, facing him. P.M. testified her legs were around defendant's hips. Defendant next "put a hold on [her] from [her] hips and . . . picked [her] up to his chest, or his stomach," and then dropped her so that her vagina was touching "his private part." Although defendant repeated this motion several times, according to P.M. her brothers did not see this activity because they were facing the other way. P.M. could not recall exactly when this incident occurred but knew it was before she turned eight years old.
P.M. described another incident that took place at her uncle's house in Tijuana. During this incident, defendant put his hand inside P.M.'s pants, under her underwear, and rubbed her vagina. P.M. could not recall when this incident took place, only that it was before she turned eight years old.
P.M. described these incidents as being the "most clear" in her mind. She testified the sexual misconduct by defendant was more or less "ongoing," but that her "mind ha[d] erased a lot of it." She further testified that she waited to disclose the sexual misconduct by defendant because she was "scared" of him, did not want him to be "mad" at her, and knew her mother would be upset.
However, in early September 2002, P.M. told an older cousin, Angela, about defendant's sexual misconduct. P.M. testified that Angela was pregnant and had recently moved into their family home for support; and that she looked up to Angela, much like an older sister. Because Angela was pregnant, P.M. testified that one night she asked Angela whether she (i.e., P.M.) could also become pregnant based on what defendant was "doing to [her]." On questioning by Angela, P.M. then reluctantly disclosed the sexual misconduct by defendant.
Although P.M. asked Angela not to tell P.M.'s mother about what defendant had done, Angela did in fact tell P.M.'s mother. The following day, P.M. returned home from school and found several police officers at her home. Crying, P.M.'s mother next took P.M. upstairs and asked P.M. what had happened. P.M. testified she then felt "ashamed" for not telling her mother about the sexual misconduct by defendant. P.M. recalled meeting with police officers and then going to the hospital to speak with a lady about what had happened. P.M. also recalled speaking to another lady from Child Protective Services (CPS) about defendant's sexual misconduct.
P.M. testified that detectives contacted her in 2014 and disclosed they were reinvestigating her 2002 case. This made P.M. "sad," as she and her mother had just moved to Spain, after P.M.'s depression and anxiety had worsened and P.M.'s doctor had expressed concerns about P.M.'s well-being.
Angela testified that in 2002, she lived with P.M.'s family for about six months; that at the time, she was about 18 years old and pregnant; and that she and P.M. were then close, as she would babysit P.M. when her aunt, P.M.'s mother, worked. Angela recalled in August/September 2002 P.M. was in her room shortly before bedtime. P.M. asked Angela, "Since you're pregnant, do you think I might be pregnant?" When Angela asked P.M., "Why would you ask that?" P.M. responded, "Well, this stuff that is happening to me. I don't know. That might lead to a pregnancy."
On further questioning, P.M. expressed concern about telling Angela "all [of] this" because P.M. was worried her mother might not believe her or even "blame" her for what defendant had been doing. P.M. then disclosed that "every time she went to visit with her father she felt very uncomfortable . . . because he would do stuff to her that she - she pretty much felt uncomfortable." According to Angela, P.M. then asked if Angela's father had kissed Angela on the "on the lips . . . and ears" with his tongue and had "ever touch[ed Angela]." When Angela asked where P.M.'s father had touched her, P.M., who was crying, pointed at her vagina and said her father would "put his hand under her underwear." Angela told P.M. that this touching was "not normal" and that they needed to tell P.M.'s mother because this was "very, very serious."
During this same conversation, P.M. also disclosed that when she and her brothers visited their father he would touch her "every time," including laying on top of her and moving his body in a way to "feel" her body, after her two brothers went outside to play. P.M. further disclosed to Angela that defendant used his tongue when he kissed P.M.; that he would watch P.M. dress and also touch her body while she was doing so; and that once he even got into the shower with her. P.M. confided that defendant had told her not to say "anything because what he was doing to [P.M.] was pretty bad."
Angela testified that as P.M. was disclosing the sexual misconduct, P.M. appeared angry and afraid. Angela in turn was "very, very . . . upset" and "confused" by P.M.'s disclosure. Angela testified that, during the time she lived with the family leading up to P.M.'s disclosure, Angela had "felt like something was going on" with P.M. and her father because "every time [P.M.] had to go to visit" defendant, P.M. would ask Angela, "Can you keep me? Can you baby-sit me? Can you tell Mom to keep me here? Because I want to stay with you."
Angela testified she told P.M.'s mother about the sexual misconduct by defendant the same night P.M. made this disclosure. Angela stated that P.M.'s mother, Alejandra C., was "very angry" at defendant and attempted to talk to P.M. that same night. P.M., however, did not want to talk to her mother about it and was, according to Angela, very afraid.
Alejandra testified that she was married to defendant for about seven years until they divorced in 1995, when P.M. was about a year old. When Alejandra became pregnant with twins, her sister Norma D. and their mother came to San Diego to help Alejandra. Alejandra estimated Norma lived in their home for about two years, until one day Norma just left.
When her twins were about two years old, Alejandra asked Norma why she left their home and whether anything "had been going on while she was living there." Norma disclosed that defendant was "sexually abusing her" and that she was "very ashamed." Norma told Alejandra that after defendant would drop off Alejandra at work, he would come home and go into Norma's bedroom. Because Norma described this happening "several times," Norma made sure the lock on the door was working and even slept with a knife under her pillow.
Alejandra testified that, after Norma's disclosure, she confronted her husband, who "swore . . . nothing had happened." Alejandra at the time chose to believe her husband and not Norma.
After Alejandra and defendant separated, they agreed to a more formalized visitation schedule. As P.M. became a little older, somewhere between about six and eight years old, Alejandra noted that P.M. sometimes did not want to go on visits with defendant. In May 2002, a few months before P.M. disclosed the sexual misconduct by defendant, P.M. came home from a weekend visit with defendant and complained about having an "irritated vagina." Because P.M. in the past had made similar complaints about her vagina hurting, Alejandra took P.M. to the doctor, who suggested the irritation might be caused by P.M. rubbing herself too hard while bathing or by the soap P.M. was using.
Alejandra recalled when her niece, Angela, disclosed what P.M. had told Angela. Alejandra notified P.M.'s school and the police on both sides of the border. Alejandra testified that she attempted to speak with her daughter P.M. about the sexual misconduct, but that P.M. never wanted to open up to her. At some point after CPS became involved, Alejandra was informed no charges then would be filed against defendant. Defendant's visitation with his children, including P.M., was supervised. Even then, P.M. did not want to visit with him.
Norma testified that Alejandra is her older sister; that when she was about 14 years old, she came to the United States to help because Alejandra was having twins; and that she initially viewed defendant like a brother. After their birth, Norma was the twins' "nanny" when Alejandra worked.
As time went on, defendant began treating Norma like she was his "girlfriend." Norma testified that "[e]very day" defendant would tell her she was "pretty" and "attractive"; that he would make facial gestures toward her including "bit[ing] his lips" and "wink[ing]" at her; and that, as a result, Norma felt uncomfortable around defendant.
Norma testified that on one occasion defendant kissed her on the lips while she was sleeping on the couch. On another occasion while she was sleeping, Norma awakened only to find defendant next to her, fondling her breasts over a blanket. On this occasion, Norma got out of bed and went to the kitchen. According to Norma, defendant followed her into the kitchen and asked, "So, what's wrong with that?" and then stated, "There's nothing wrong with that."
Because she felt harassed and scared of defendant, Norma began sleeping in the twins' room. At one point, Norma noticed the "button to the lock" on the twins' door was missing, which caused her to become even more afraid. As a result, Norma began to hide a knife under pillow. She testified she hid the knife in case defendant tried to "force[] himself upon" her.
Norma was questioned by a CPS worker in October 2002. During that interview, Norma disclosed that defendant, while in his underwear, grabbed his penis, moved it side to side, and "lick[ed] his lips" while looking at Norma. Shortly after defendant touched her breasts, Norma moved out. Norma then did not disclose to her sister Alejandra why she had moved out. At some later point, Norma told Alejandra about defendant's sexual misconduct toward her. Alejandra did not believe Norma, however.
Norma recalled when she learned P.M. had disclosed that defendant had engaged in sexual misconduct toward P.M. Norma testified that she and P.M. have never spoken to each other about what defendant did to them.
Both of P.M.'s brothers testified at the trial. Her one brother, Ivan M., testified that he was about 12 years old when P.M. made the disclosure about being molested by defendant; and that, although at trial he could not recall making any statements to CPS during its initial investigation, in late April 2003 he told a social worker he had a "bad feeling" about, and suspected something was happening between, P.M. and their father, but that he then did not speak up because he did not know what that was.
Sergeant Matthew Botkin of the San Diego Police Department testified that in August 2013 he was assigned a sexual molest case involving victim B.Z.; that during B.Z.'s forensic interview, B.Z. disclosed that, while defendant was molesting her, he admitted "he had done the same thing to his daughter"; that on further investigation, Sergeant Botkin learned defendant had been arrested in 2002 but not charged for molesting M.P.; and that Sergeant Botkin thus decided to investigate simultaneously the cases involving B.Z. and M.P.
In connection with his investigation of M.P.'s case, Sergeant Botkin initiated contact with, and interviewed, M.P.'s brothers, M.P., Alejandra, and Angela among others. Sergeant Botkin noted that even after more than a decade, it was "clearly a very difficult topic for [P.M.] to speak about" what defendant had done to her. According to Sergeant Botkin, neither of defendant's victims (i.e., B.Z. and M.P.) nor their families knew about the other when Sergeant Botkin began his simultaneous investigation into the molests.
Defendant testified in his own defense. Defendant testified that he was affectionate toward his daughter, would "hug" and "squeeze" her; would "give her kisses"; and would "tickle" her and "raise her up" while playing. When asked about the kissing, defendant stated he would give P.M. a "loud kiss" "on her little mouth." Defendant, however, denied using his tongue when kissing P.M., stating that "[n]ever" happened. He admitted to kissing P.M.'s ears occasionally, and noted he also kissed his two sons "in the same way" he kissed P.M.
When asked if he ever kissed P.M. with "any type of sexual intent," defendant testified, "Never." Defendant described how P.M. would "laugh" when he tickled her by "rub[bing his] beard on her neck" and when he "rub[bed]" and "bl[e]w bubbles" on her "tummy" during playtime. When again asked if he tickled P.M. with any type of sexual intent, defendant testified, "Never." Defendant provided the same testimony when asked about his "kiss[ing]" and "nibbl[ing]" of P.M.'s ears and when asked if he had ever used his tongue when kissing P.M.'s ears.
With regard to P.M.'s testimony that defendant molested her while she was sitting on his lap, defendant testified that he often sat P.M. on his lap and hugged her; that sometimes he would sit P.M. on his legs so she was facing him; and that he recalled P.M. sitting on his lap when they were on the couch during visits and when he was behind the driving wheel of his car, when the children would come outside and see him.
As before, defendant testified he never sat P.M. on his lap with the intention of becoming "arouse[d]," nor did he ever move P.M. in "any way in which her vagina would rub on any part of [his own] body," including his penis. Defendant reiterated he "[n]ever" had any sexual intent when he engaged in playtime with P.M., including when he would "bounc[e] her up and down" or throw her into the air and catch her. Other than when he "clean[ed]," "bathe[d]," and "change[d]" P.M. when she was very young, defendant denied any touching of P.M.'s vagina, including both under and outside her clothing. Defendant also denied sexually molesting anyone else, including his two sons; B.Z.; and Norma, whom defendant described as "[f]lirtatious."
Specifically, with regard to Norma's testimony that he felt her breasts over the blanket while she was "sleeping" in the twins' room, defendant testified, "That never happened." He admitted on direct examination that one morning when he went to kiss the twins before leaving for work, he saw Norma sleeping in the bed in the twins' room and had been "tempt[ed]" to "raise[] the blanket" and "see her," but that he had not in fact done so and instead only pulled the blanket on top of Norma as it was starting to fall to the floor.
DISCUSSION
I
A. Additional Background
The record shows the information alleged counts 7, 8, and 9 involving P.M. occurred between August 22, 2000 and September 6, 2002, when P.M. was between six and eight years old. The record further shows the prosecution of defendant on these counts commenced in October 2014 with the filing of a felony complaint.
Although the parties discussed the jury instructions including any proposed changes to them, the record shows the defense did not object to the court giving a modified version of CALCRIM No. 3250, titled "Statute of Limitations, Minor Victim, Filed before 28th Birthday," after the court referenced it along with the other instructions and asked the parties if they had any questions with respect to the instructions.
CALCRIM No. 3250, as modified by the court, provided:
CALCRIM No. 3250 is a "template" instruction that is used when "any enhancements, sentencing factors, or factual issues" are submitted to the jury that are not otherwise covered in previous instructions.
"The People have the burden of proving the defendant is guilty of the charged offenses beyond a reasonable doubt. If you find the defendant guilty of Lewd Act upon a Child, as charged in Counts 7 through 9, you must then decide whether, as to each crime, the People have proved the following factual allegation by a preponderance of the evidence: [¶] 1) The victim was under 18 when the crime occurred; and [¶] 2) This action commenced before the victim's 28th birthday.
"Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
"If the People have not met the burden of proving this allegation by a preponderance of the evidence, you must find that the allegation has not been proved.
"You must return a separate finding on the factual allegations required for each crime charged in Counts 7, 8, and 9."
As noted by defendant in his opening brief, the prosecution proceeded on the theory that former section 801.1 governed the statute of limitations with respect to P.M. and counts 7, 8, and 9. Former section 801.1 was enacted in 2004, effective January 1, 2005. (Stats. 2004, ch. 368 (A.B. 1667), § 1.) When originally enacted, this statute provided, "Notwithstanding any other limitation of time described in this chapter, prosecution for a felony offense described in subparagraph (A) of paragraph 2 of subdivision (a) of Section 290 shall be commenced within 10 years after commission of the offense."
When former section 801.1 became effective in 2005, defendant already was subject to a six-year statute of limitations for the crimes he committed against P.M. between August 2000 and September 2002. (See former § 800 [providing in part that a "prosecution for an offense punishable by imprisonment in the state prison for eight years or more shall be commenced within six years after commission of the offense" (italics added)]; & former § 288, subd. (a) [providing in part that a "person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years" with the requisite intent "is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years" (italics added)].) Because the applicable statute of limitations had not yet run against defendant when section 801.1 became effective in 2005, there is no ex post facto clause violation in this case, as defendant correctly recognizes. (See Stogner v. California (2003) 539 U.S. 607, 617-621, 632-633 (Stogner) [noting the ex post facto clause prohibits the revival of a time-barred prosecution, but not the extension of a limitations period before the prior limitations period has expired].)
Section 801.1 was amended a year later (Stats. 2005, ch. 479 (S.B. 111), § 2) to add subdivision (a), which is the provision relied on by the parties and the trial court in the instant case. It provides in relevant part, "Notwithstanding any other limitation of time described in this chapter, prosecution for a felony offense described in Section . . . 288 . . ., that is alleged to have been committed when the victim was under the age of 18 years, may be commenced any time prior to the victim's 28th birthday."
Section 801.1 was further amended in October 2007 (stats. 2007, ch. 579 (S.B. 172), § 40, eff. Oct. 13, 2007), but that amendment did not change subdivision (a) of former section 801.1. Effective January 1, 2017, current section 801.1, subdivision (a) provides the prosecution for a felony offense, including under section 288, which is alleged to have been committed when the victim was under 18 years of age "may be commenced any time prior to the victim's 40th birthday." (Stats. 2016, ch. 777 (S.B.813), § 2, italics added.)
B. Governing Law and Analysis
Here, we conclude there is substantial evidence in the record to support the jury's findings that the prosecution of counts 7, 8, and 9 was timely commenced under subdivision (a) of former section 801.1. (See People v. Ruiloba (2005) 131 Cal.App.4th 674, 681-682 [noting that when an issue involving a statute of limitations has been tried, as was the case here, an appellate court reviews the record to determine whether substantial evidence supports the findings of the trier of fact]; People v. Padfield (1982) 136 Cal.App.3d 218, 225-226 (Padfield) [noting that, when "it cannot be said that as a matter of law the statutory period has run, the issue is a question of fact for the trier of fact" and that on appeal, "the issue is tested by the substantial evidence standard"].)
Indeed, the record shows the offenses involving P.M. were alleged to have been committed between August 2000 and September 2002, when she was between six and eight years old. Moreover, as noted the prosecution was "commenced" for purposes of subdivision (a) of former section 801.1 in October 2014, when the felony complaint was filed, clearly well before P.M.'s 28th birthday. As such, we conclude the prosecution of counts 7, 8, and 9 was commenced within the applicable statute of limitations. (See former § 801.1, subd. (a).)
This conclusion does not end our analysis of this issue, however. As noted, defendant contends these findings were required to be made by the jury under the beyond a reasonable doubt standard. We disagree.
Initially, we note that none of the facts relevant to the statute of limitations, including its extension thereof, was a "fact necessary to constitute the crime with which [defendant was] charged." (See In re Winship (1970) 397 U.S. 358, 364 (Winship) [noting the United States Constitution "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he [or she] is charged"]; see also United States v. Booker (2005) 543 U.S. 220, 230 [same]; & People v. Linder (2006) 139 Cal.App.4th 75, 84 (Linder) [noting that, "[a]lthough the right to maintain the action is an essential part of the final power to pronounce judgment, that right 'constitutes no part of the crime itself' [citation]"].) Nor were any facts relevant to the statute of limitations used to establish or increase punishment. (See, e.g., Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [noting that every finding that increases the punishment possible for an offense must be submitted to the jury and proved beyond a reasonable doubt].)
Moreover, although the prosecution has the burden of proof of " 'every ingredient of an offense beyond a reasonable doubt' " (Sandstrom v. Montana (1979) 442 U.S. 510, 524; Winship, supra, 397 U.S. at p. 364), the statute of limitations is not an ingredient of an offense but a substantive matter for which the prosecution's burden of proof is a preponderance of the evidence. (See People v. Zamora (1976) 18 Cal.3d 538, 566, fn. 27 (Zamora) [noting that for the statute of limitations, the "proper burden is a preponderance of the evidence and thus when a limitation issue goes to the jury the preferable practice should be to carefully instruct the jury as to that burden making it clear the lesser burden applies solely to the limitation issue"]; People v. Mahoney (2013) 220 Cal.App.4th 781, 790 [noting the People had the burden to prove "by a preponderance of the evidence" that the defendant possessed child pornography within the 10-year statute of limitations applicable to a violation of section 311.11, subdivision (a)]; People v. Castillo (2008) 168 Cal.App.4th 364, 369 [noting that the People have the burden of proving the criminal action was commenced within the applicable limitations period and that this "burden of proof is by a preponderance of the evidence"]; People v. Smith (2002) 98 Cal.App.4th 1182, 1187 [noting that because a statute of limitations is not an element of the offense, the "prosecutor need only demonstrate that the crime occurred within the applicable statute of limitations by a preponderance of the evidence"]; People v. Le (2000) 82 Cal.App.4th 1352, 1360 [noting the statute of limitations is a "matter which the prosecution must prove by a preponderance of the evidence"], citing Cowan v. Superior Court (1996) 14 Cal.4th 367, 374; and Padfield, supra, 136 Cal.App.3d at p. 226 [noting the "People bear the burden of proof on the statute of limitations issue and that burden is one of preponderance of the evidence"].)
Thus, California law overwhelming rejects defendant's contention that a statute of limitations is an element of an offense and as such, that the burden of proof is beyond a reasonable doubt and not preponderance of the evidence. Despite this overwhelming legal authority, defendant contends the Supreme Court decision in Stogner, supra, 539 U.S. 607—which predates much of it—requires proof beyond a reasonable doubt that the prosecution was commenced within the applicable statute of limitations. We disagree.
In Stogner, the court held that a newly enacted statute of limitations for child molestation (§ 803, subd. (g)) could not be used to revive a time-barred prosecution without violating ex post facto principles. (Stogner, supra, 539 U.S. at pp. 618-619.) In so doing, the Stogner court disapproved of our high court's decision in People v. Frazer (1999) 21 Cal.4th 737, 763 (Frazer), which had concluded that "it makes no difference for ex post facto purposes whether a postcrime change in the statute of limitations 'revive[s] a prosecution already dead' or 'give[s] it a longer lease of life.' " In disagreeing with this aspect of Frazer, the Court in Stogner ruled the "resurrection of otherwise time-barred criminal prosecutions . . . enacted after pre-existing limitations periods ha[ve] expired" violates the ex post facto clause. (Stogner, at p. 609.)
Stogner merely involved the issue of whether a statute of limitations for a criminal prosecution that had expired could be revived by statute without violating the ex post facto clause. As noted (see fn. 5, ante), this is not an issue in the instant case because former section 801.1, subdivision (a) merely extended the unexpired statute of limitations for the criminal prosecution of defendant on counts 7, 8, and 9. (See Stogner, supra, 539 U.S. at p. 618 [noting that "courts have upheld extensions of unexpired statutes of limitations (extensions that our holding today does not affect [citation])"].) Stogner is thus inapposite in the instant case.
We conclude that, while the elements of former section 801.1, subdivision (a) were necessary to convict defendant on counts 7, 8, and 9 (see Linder, supra, 139 Cal.App.4th at p. 84), they did not need to be proven beyond a reasonable doubt "because they did not bear upon [defendant's] guilt vis-à-vis his innocence, such that there was the risk of an 'innocent [person] . . . being condemned.' " (See Renderos v. Ryan (2006) 469 F.3d 788, 796-797 [rejecting argument that jury should have been required to find beyond a reasonable doubt the elements to trigger an extension of the applicable statute of limitations and noting petitioner failed to "identify any Supreme Court precedent clearly establishing that statutes of limitations must be proved beyond a reasonable doubt"], citing Winship, supra, 397 U.S. at p. 364.) We thus reject defendant's contention that commencement of a criminal prosecution within an applicable statute of limitations must be proved under the beyond a reasonable doubt standard.
In light of our decision on the merits, we need not address respondent the People's alternate contention that defendant forfeited this claim of error by failing to object to CALCRIM No. 3250, as modified, which the trial court correctly patterned after former section 801.1, subdivision (a).
II
Defendant contends the court erred in failing sua sponte to instruct the jury that it must unanimously agree on the particular act or acts supporting his convictions on counts 7 and 8. The information shows that count 7 was charged in part as "to wit: kiss—first occasion" and that count 8 was charged in part as "to wit: kiss—last occasion."
Defendant has not asserted error for lack of a unanimity instruction on count 9, which involved the incident in P.M.'s condominium when defendant "put [P.M.] on his lap while the boys were playing video games." --------
A. Additional Background
During closing, the prosecutor argued as follows with respect to the acts that constituted the offenses in counts 7 and 8: "Count 7 is kissed, first occasion. [¶] Count 8 is the kiss the last occasion. What that means is essentially defendant kissed her on two different occasions just twice; okay? All you have to do is [sic] there's been evidence that it's happened multiple times, but all that's alleged is that he kissed her two times."
During deliberations, the jury sent a note asking for clarification regarding "when and where" counts 7 and 8, but not 9, occurred and for the "transcript" of P.M.'s testimony. The court responded it was unable to provide the jury with additional information "regarding date and location of the alleged offenses" in counts 7 and 8 and referred the jury back to the "To wit" language on the verdict forms for "some guidance" on the issue. The court also noted transcripts of P.M.'s testimony were not available, but the court reporter could readback P.M.'s testimony in the deliberation room if the jury was so inclined. The jury replied by note that it wanted the readback of P.M.'s testimony.
The record shows the readback began at 11:00 a.m. and, at the request of the jury, ended at 11:24 a.m., before the readback was concluded. Twelve minutes later, the jury notified the court it had reached a verdict.
B. Guiding Principles and Analysis
When the People charge a criminal statutory violation "and the evidence establishes several acts, any one of which could constitute the crime charged, either the state must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which act to base a verdict of guilty." (People v. Jennings (2010) 50 Cal.4th 616, 679.)
We need not decide in the instant case whether the court erred in failing to give a unanimity instruction because we conclude any such error is harmless beyond a reasonable doubt, as respondent the People contend. (See Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); People v. Smith (2005) 132 Cal.App.4th 1537, 1545 [noting there is a split of authority regarding the standard used to determine the effect of an erroneous failure to give a specific acts unanimity instruction, but further noting that "[s]ince 1983, this court has held that the error must be shown to be harmless beyond a reasonable doubt"].)
Applying Chapman, the failure to give a unanimity instruction is harmless "[w]here the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that [the] defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless." (People v. Thompson (1995) 36 Cal.App.4th 843, 853 (Thompson).)
Thus, where a defendant offers the same defense to all criminal acts, and "the jury's verdict implies that it did not believe the only defense offered," failure to give a unanimity instruction is harmless beyond a reasonable doubt. (See, e.g., People v. Diedrich (1982) 31 Cal.3d 263, 283.) The error is also harmless "[w]here the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him [or her] of any of the various offenses shown by the evidence." (Thompson, supra, 36 Cal.App.4th at p. 853.)
Here, as summarized ante, the record shows that defendant offered a unitary defense to counts 7 and 8 (and 9, which he has not challenged). Namely, that when he committed each alleged act, including by way of example only, a kiss, a hug, or tickling of P.M. between August 2000 and September 2002, he did so without the "intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child." (See CALCRIM No. 1110.) The jury clearly rejected this defense and resolved the credibility dispute in favor of P.M. and against defendant when it found him guilty on counts 7 and 8. As such, we conclude that, even if a unanimity instruction should have been given in the instant case, any such error was harmless beyond a reasonable doubt.
DISPOSITION
Defendant's judgment of conviction is affirmed.
BENKE, Acting P. J. WE CONCUR: O'ROURKE, J. AARON, J.