P. v. Sam

 

 

 

 

 

 

 

 

 

Filed 9/23/13  P. v. Sam 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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

(Yolo)

----

 

 

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   NANG SAM,                           Defendant and Appellant.

C069687   (Super. Ct. No. CRF11620)

 

 

            name="_BA_ScanRange">This case involves sexual abuse by defendant Nang Sam of
his younger sister (the victim). 
Defendant was entrusted with caring for her and his other younger
siblings because their mother was largely absent.  Defendant violated that trust for years by
sexually abusing the victim, culminating in his prosecution and guilty verdict
of 36 counts of lewd acts and sexual penetration.  The court sentenced him to a determinate term
of 10 years in prison plus an indeterminate term of 40 years to life. 

            On appeal, defendant raises four
contentions dealing with (1) juror excusal, (2) sufficiency of evidence, (3)
instructional error resulting in ex post facto violations, and (4) shackling.  Finding merit only in defendant’s contention
of instructional error resulting in ex post facto violations
(which the People concede), we reverse defendant’s convictions for two counts
of sexual penetration.  (This reversal
has no practical effect on defendant’s sentence, because the trial court
sentenced defendant to concurrent sentences on those counts, which were counts
23 and 24.) 

FACTUAL AND PROCEDURAL BACKGROUND

            The victim, who was born in May
1996, is the youngest of seven siblings, who as relevant here included
defendant, Ny, Chun, and Danny. 
Defendant is the oldest, born in February 1984.  Their mother was “never home,” so defendant
was entrusted with caring for the other children.  Below is an abbreviated recitation of the
facts, which will be recounted in greater detail in the discussions of
sufficiency of evidence ( ADDIN BA xc <@osdv> xl 7 s
JSQSSR000017 xpl 1 l "part II" part II) and instructional error ( ADDIN BA xc <@osdv> xl 8 s
JSQSSR000018 xpl 1 l "part III" part III).

            Defendant started sexually abusing
the victim when she was about six or seven years old, after the entire family
had moved to a home on Casselman Drive (the first Casselman home) on
May 1, 2003.  Her other brothers had
gone out and she wanted to go with them, but defendant made her stay home with
him.  Defendant touched her “private
areas.”  During other times, defendant
would use the ruse of hide and seek to capture the victim and touch her private
parts.  The touchings progressed to
penetration of the victim’s vagina and anus with defendant’s penis and
fingers.  These touchings and
penetrations continued when the family moved four houses down to another house
on Casselman
Drive
(the second Casselman house) on July 1, 2005.

            The last time defendant touched the
victim was when he came into the room she shared with her brother Chun.  As defendant 
“was touching [her],” he noticed there was “blood so he went out [of]
the room . . . .” 
The victim had started menstruating when she was 12. 

            In November 2010, the victim
reported the molests to Sophy Dong, who was the fiancé of the victim’s brother
Ny. 

            In
early December 2010, Dong texted defendant, stating (without elaborating) that
what he had done to the victim was very “sick and wrong.”  Defendant responded that he thought of
killing himself every day, he never wanted “that” to happen, and what he did
was “very sinful.” 

            In mid-December 2010, Dong drove the
victim to the police department to report the molests. 

            In January 2011, the victim was
interviewed at the Multi Disciplinary Interview Center for a couple hours by a
police officer.  (We will refer to this
person later as the interviewer.) 

            In February 2011, defendant
voluntarily participated in a police interview where he admitted to Detective
Eric Angle some of the sexual conduct with the victim.

            At trial, defendant did not testify
and his defense in closing argument was that the victim’s story “d[id]n’t wash”
because somebody would have witnessed the molests and there was no evidence
defendant “penetrated [the victim] in any fashion.” 

DISCUSSION

I

The
Court Was Within Its Discretion

To
Deny Defendant’s Request To Excuse Juror No. 8

            Defendant contends the trial court
erred in failing to excuse Juror No. 8. 
He argues the juror committed misconduct because she intentionally
concealed that she had been a child molest victim; the trial court erred in
failing to apply the presumption of prejudice that arises when such misconduct
comes to light; and the judgment must be reversed because the People cannot
rebut the presumption of prejudice that arises from the misconduct.

            As we explain, defendant has
forfeited the issue of whether Juror No. 8 intentionally concealed the
information, and the trial court acted within its discretion in concluding she
was not biased.

A

Facts
Behind Defendant’s Request To Remove Juror No. 8

            Each prospective juror filled out a
questionnaire that asked about qualifications to sit on this case.  Question 27 asked the following:  “Everyone has some biases, prejudices or
preconceived ideas.  Do you believe you
have any which would interfere with your ability to fairly decide this
case?”  Juror No. 8 checked “yes” and in
the lines asking, “If yes, please explain,” Juror No. 8 wrote, “I have known an
individual who (as a minor) was abuse[d] by a sibling, a potential bias.”  Question 43 asked, “Have you, a family
member, or a friend, ever been a witness to a sexual assault or sexual
misconduct . . . .?” 
Defendant checked “yes.”  In the lines
asking, “If yes, please explain,” Juror No. 8 wrote, “would prefer not to
explain.”  In the lines asking, “What
action did you take, if any, as a result of what you witnessed or what you were
told,” Juror No. 8 wrote, “no action.” 
On the day of jury selection, August 2, 2011, nobody questioned
Juror No. 8 about her responses.  Defense
counsel did not object to her for cause, either, and she was seated as a juror.

            On August 2, 2011, Juror No. 8
submitted the following note to the court: 
“In my question[nai]re I had filled out that I had personal reasons for
which I believe I would be biased in this case. 
These reasons are of a very personal nature and I had hoped I would not
have to discuss them.  As a youth I had
been molested by a family member.  This
was not something I had ever discussed with anyone and would prefer not to
discuss it further.  I am not sure I
would be biased in either side but this case would bring me much emotional
trauma, considering my situation.  I
would please ask you to dismiss me f[rom] this trial.  I have worked many years to cope with my
situation, please understand.”

            First thing on August 3, 2011,
the court questioned Juror No. 8 with both sides present.  The court asked, “Are the views you expressed
in the letter you sent me yesterday still your views today?”  Juror No. 8 responded, “Yes, I think I could
be non-biased, but I do think that it would be more emotionally draining than
-- I understand that’s not really a good reason, but that still stands.”  She continued, “Like I said, I mean, I really
do think that I could be non-biased.  I
just wanted to let it be known to both of the attorneys and to yourself the
situation and it will just be difficult emotionally.”

            The juror then left the courtroom
and the court told the attorneys the following: 
“It’s my belief that [Juror No. 8] will do everything she can to abide
by her oath, and for that reason, I do not find good cause at this point to
excuse her . . . .” 
Defense counsel then stated, “Just to recite my position in chambers was
that she should be replaced by an alternate given the letter which appears to
state that she cannot be unbiased and she cannot be fair.”  The prosecutor responded, “That is not what
the letter states.”  The court concluded,
“She said she could be unbiased, but that it was going to be very
emotional.  The letter speaks for
itself.”

B

Defendant
Has Forfeited His Argument That Juror No. 8 Intentionally Concealed Facts; The
Trial Court Was Within Its Discretion To Conclude Juror No. 8 Was Not Biased

            Defendant’s contention of error
begins with an argument that Juror No. 8 committed misconduct in violation of
his right to trial by an unbiased, impartial jury by “intentionally
conceal[ing] the fact that she herself was a molest victim.”  Defendant has forfeited this argument by
failing to raise it in the trial court. 
(
ADDIN BA xc <@cs> xl 50 s JSQSSR000001 xhfl Rep xpl 1 l "People v.
Esquibel(2008) 166 Cal.App.4th 539"
People
v. Esquibel (2008) 166 Cal.App.4th 539, 556 [the failure to object in the
trial court, even to errors of constitutional dimension, may lead to forfeiture
of the claim on appeal].)  In the trial
court, defendant argued the court should discharge Juror No. 8 “given the
letter which appears to state that she cannot be unbiased and she cannot be
fair.”  Intentional concealment and bias
are two separate issues for the trial court, each of which when raised the
appellate court analyzes separately. 
(See  ADDIN BA xc <@cs> xl 46 s
JSQSSR000002 xhfl Rep xpl 1 l ">People v. McPeters(1992) 2 Cal.4th 1148" People
v. McPeters (1992) 2 Cal.4th 1148, 1175 [noting the two issues as separate
and then analyzing  whether a juror’s
nondisclosure was inadvertent and then analyzing under an abuse of discretion
standard whether the juror was biased].) 
By failing to raise the issue of whether the nondisclosure was
intentional, defendant deprived the trial court of the opportunity to assess
the issue of whether the concealment was intentional, which was critical,
because a trial judge “is in the best position to assess the state of mind of a
juror or potential juror on voir dire examination.”  ( ADDIN BA xc <@$id> xl 5 s ID xpl
1 Ibid.)

            As to the issue defendant did raise
in the trial court, i.e., that Juror No. 8 was biased because she could not be
fair, the court was well within its discretion to conclude otherwise.  ( ADDIN BA xc <@$cs> xl 47 s
JSQSSR000002 xhfl Rep xpl 1 People v. McPeters, >supra, 2 Cal.4th 1148, 1175 [standard of
review].)  On the juror questionnaire,
she was advised to base her decision on only the evidence presented in
court.  When asked if she could do that,
she answered “yes.”  The same
questionnaire also advised her to follow the law as the judge explained it,
whether or not she agreed with it.  When
asked if she could do that, she again answered “yes.”  After she was selected as a juror, but before
presentation of the evidence, she submitted the letter to the court about her
prior molestation.  ( ADDIN BA xc <@$id> xl 14 s ID
xhfl Rep xpl 1 Id.
at p. 1175 [juror’s candid disclosure before the trial began supported the
trial court’s determination that the juror could be fair and impartial].)  Finally, when questioned by the court about
her letter, she twice stated she thought she could be “non-biased.”  On this record, the court was within its
discretion to conclude Juror No. 8 was not biased and therefore could remain on
the jury.

II

Sufficient
Evidence Supported The Verdicts

            Defendant contends there was
insufficient evidence of counts 2 and 3, 5 through 12, and 14 through 36
because the People failed to “prove[] the time-specific crimes with which it
chose to charge [him].”  He claims that
the evidence failed to establish that an offense occurred during any of the
time frames alleged in the information.

            We begin with a brief overview of
how the case was charged and a few basic propositions and then turn to the
specific evidence offered to support the at-issue counts.  The People’s theory of the case as stated in href="http://www.fearnotlaw.com/">closing
argument was “[s]ix counts a year for six years is
what the defendant is charged with.” 
Consistent with this argument, the information alleged 36 counts,
starting on May 1, 2003, each with a two-month time period (i.e., count 1
occurred “[o]n or about and between May 1, 2003 and July 6, 2003,”
count 2 occurred “[o]n or about and between July 7, 2003 and
September 6, 2003,” etc.).

            “[G]eneric testimony” regarding
child molestation “is sufficiently substantial from an evidentiary
standpoint.”  ( ADDIN BA xc <@cs> xl 45 s
JSQSSR000003 xhfl Rep xpl 1 l ">People v. Jones(1990)
51 Cal.3d 294" People
v. Jones (1990) 51 Cal.3d 294, 313-314.)  The victim must be able to describe (1) the
kind of act or acts committed with sufficient specificity to assure unlawful
conduct has occurred and to differentiate between types of conduct, (2) the
number of acts with sufficient certainty to support the number of counts, and
(3) the general time period to assure the acts were committed within the
applicable statute of limitations.  ( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Id.
at p. 316.)  “Where alibi is not a
defense, the prosecution need only prove the act was committed before the
filing of the information and within the period of the statute of
limitations.  [Citation.]  This is so because the precise time of a
crime need not be declared in the accusatory pleading except where time is a
material ingredient of the offense. 
[Citation.]  Time is essential if
the defense is alibi.”  ( ADDIN BA xc <@cs> xl 51 s
JSQSSR000004 xhfl Rep xpl 1 l ">People v. Obremski(1989) 207 Cal.App.3d 1346" People
v. Obremski (1989) 207 Cal.App.3d 1346, 1354.)  In  ADDIN
BA xc <@$cs> xl 8 s JSQSSR000004 Obremski,
the defendant was charged with 26 sex crimes and the jury found him guilty of
25.  ( ADDIN BA xc <@$id> xl 14 s ID
xhfl Rep xpl 1 Id.
at p. 1348.)  The crimes were
committed against his stepdaughter starting when she was 12 for five years when
they were living together.  ( ADDIN BA xc <@$id> xl 20 s ID
xhfl Rep xpl 1 Id.
at pp. 1348-1349.)  During this
period, they “had sexual intercourse at least once a week and as often as three
times a day.”  ( ADDIN BA xc <@$id> xl 14 s ID
xhfl Rep xpl 1 Id.
at p. 1349.)  “Appellant’s defense
was (1) he was physically incapable of having sex and (2) [the victim’s]
testimony was not credible.”  ( ADDIN BA xc <@$id> xl 14 s ID
xhfl Rep xpl 1 Id.
at p. 1350.)  The appellate court
affirmed the convictions, reasoning: 
“Since the exact times of the offenses are not material in the case
before us, in that appellant did not attempt to prove an alibi and had
uninterrupted access to the victim, the imprecise charges did not mislead him
and violate his right to due process.”  ( ADDIN BA xc <@$id> xl 14 s ID
xhfl Rep xpl 1 Id.
at p. 1354.)

            With these points in mind, we turn
to the counts that defendant has alleged lack sufficient evidence.

A

Counts
2 And 3

            Count 2 and count 3 were lewd acts
on a child under 14, alleged to have occurred “[o]n or about and between”
July 7, 2003 and September 6, 2003 and September 7, 2003, and
November 6, 2003, respectively.  The
following was evidence of count 2:  The
first vaginal touching was at the first Casselman house.  Defendant touched the skin of her legs,
“boobs,” and “private parts.”  The family
moved to the first Casselman house on May 1, 2003 and lived there until
July 1, 2005, at which time they moved four houses down to another house
on that drive.  The following evidence
supported count 3:  The victim told the
interviewer that defendant “raped” her a “couple of weeks later,” and defined
rape as “t[a]k[ing] my virginity away.” 
Similarly, defendant told Detective Angle the first vaginal intercourse
happened at the first Casselman house, which he thought occurred a month after
the first sexual contact.

B

Counts
5 Through 12

            Count 5 alleged a lewd act “[o]n or
about and between January 7, 2004 and March 6, 2004.”  Defendant admitted to Detective Angle he
started molesting the victim when she was six or seven years old and he “did it
for a little bit.”  He would “take [his]
penis out . . . [and] just rub it a little bit” “around her
. . . vagina.”  During the time
period alleged in count 5, the victim was seven years old.

            Count 6 alleged a lewd act “[o]n or
about and between March 7, 2004 and April 30, 2004.”  The victim was still seven years old.  Defendant admitted to Detective Angle that he
rubbed his penis around the victim’s vagina more than once, i.e., he would get
“possessed again . . . and then it would happen again -- same thing.”


            Count
7 alleged a lewd act “[o]n or about and between May 1, 2004 and
July 7, 2004.”  Defendant admitted
to Detective Angle that he stuck his finger in the victim’s anus once and then
stopped, when the victim was eight years old. 
By May 1, 2004, the victim had turned eight.

            Count 8 alleged a lewd act “[o]n or
about and between July 8, 2004 and September 7, 2004.”  The victim told the interviewer defendant
made her “grab his dick and then go up and down on it” and that it happened at
the first Casselman house (in addition to happening at the second one).  They lived at the first house from
May 1, 2003 through July 1, 2005.

            Count 9 alleged a lewd act “[o]n or
about and between September 8, 2004 and November 7, 2004.”  The victim told the interviewer defendant
“put his fingers in [her] vagina and then rape[d] [her] there.”  Defendant admitted to Detective Angle he did
that to her once when she was eight years old. 
During the time period alleged in this count, the victim was eight years
old.

            Count 10 alleged a lewd act “[o]n or
about and between November 8, 2004 and January 7, 2005.”  This count is supported by evidence defendant
touched the victim’s private parts outside her clothing while playing hide and
seek “once in awhile” at the first Casselman house.  Similarly, one of the victim’s other brothers
(Chun) testified they all played hide and seek “[a]bout five times
. . . over six or seven months.” 
The family lived at the first Casselman house until July 1,
2005. 

            Count 11 alleged a lewd act “[o]n or
about and between January 8, 2005 and March 7, 2005.”  The victim told the interviewer when she was
eight years old, defendant woke her up, told her to go into the bathroom, and
then “[t]old [her] to put [her] hands on the toilet and . . . [h]e
pulled [her] pants down and then he stuck his wiener into [her] butthole.”  The victim was eight years old at the time
frame alleged.  She thought this was the
first time defendant sodomized her.

            Count 12 alleged a lewd act “[o]n or
about and between March 8, 2005 and April 30, 2005.”  The victim told the interviewer he would
sodomize her “[l]ike every other day or twice a week” or “just like whenever he
felt like doing it.”  Based on this evidence,
the jury could have found defendant sodomized her the few weeks following the
first incident.

C

Counts
14 Through 36

            Count 14 and beyond alleged conduct
during the time the family lived at the second Casselman house, as those counts
occurred “[o]n or about and between” July 9, 2005 and beyond, and the
family moved to the second house on July 1, 2005.

            Count 14 alleged a lewd act “[o]n or
about and between July 9, 2005, and September 8, 2005.”  The victim told the interviewer defendant
“raped [her] in [her] butt” when she and Chun slept in the living room.href="#_ftn1" name="_ftnref1" title="">[1]  She
explained he would do that “every other night” because it was “a[n] easy way
for him to come ‘cause . . . we didn’t have any doors there so he can
just come and then he would rape me right there and then - and then he’ll go
back inside his room.”

            The
victim’s statement that defendant raped her “every other night” also supported
defendant’s convictions for lewd acts or sexual penetration alleged in counts
15 through 22 and counts 25 and 28, since those counts all occurred on or
before January 2008 when Ny moved out and Chun and the victim got the bedroom
and a bunk bed.href="#_ftn2" name="_ftnref2" title="">[2]

            Counts 23 and 24 alleged defendant
engaged in two acts of sexual penetration with a child 10 years old or younger
“[o]n or about and between” January 10, 2007 to March 9, 2007 and
March 10, 2007 to April 30, 2007. 
The victim was 10 years old during these time frames.  The victim told the interviewer that while at
the second Casselman house, defendant would touch her “always with his
hands.  Like he would actually like mess
- like put his fingers in my vagina and then rape me there.  And then he would sometimes rape me in the
butt.  It was always switching off.  And then sometimes he would want to like rape
me from my vagina.  It was just like
always on and off, like different times.” 
When the interviewer asked her how many times defendant had put his
fingers in her vagina, she said, “I don’t know, a couple times.”href="#_ftn3" name="_ftnref3" title="">[3]

            Counts 29 through 31 and counts 33
through 35 alleged more lewd acts.  Count
29 alleged a lewd act “[o]n or about and between January 11, 2008 and
March 10, 2008.”  Count 30 alleged a
lewd act “[o]n or about and between March 11, 2008 and April 30,
2008.”  Count 31 alleged a lewd act “[o]n
or about and between May 1, 2008 and July 11, 2008.”  Count 33 alleged a lewd act “[o]n or about
and between September 12, 2008 and November 11, 2008.”  Count 34 alleged a lewd act “[o]n or about
and between November 12, 2008 and January 11, 2009.”  And count 35 alleged a lewd act “[o]n or
about and between” January 12, 2009 and March 11, 2009.  The victim told the interviewer that when she
and Chun shared a room, defendant “would always come in the room every night -
not every night but every time he wanted to touch me” and then “he would try to
touch me and then he would rape me and . . . I was just scared.”  Chun testified defendant came into his and
the victim’s room around midnight “once every few months.” As noted, the victim
and Chun shared a bedroom at the second Casselman home after Ny moved out,
which was January 2008.

            Count 32 alleged defendant committed
a lewd act “[o]n or about and between July 12, 2008 and September 11,
2008.”  The victim told the interviewer
that when they were at the second Casselman house, defendant “pulled [her]
underwear down and pulled his pants and [then] started raping [her]” with “his
wiener” in “[h]er . . . butthole.” 
It was during the summer when she was going into sixth grade, which
would have made it the summer of 2005 when she was 11.  However, the jury could have found, based on
other evidence, the crime took place in the summer of 2008, because the victim
also told the interviewer the incident took place at a time when Chun had a
room, which would have been after January 2008, when she and Chun took over
Danny and Ny’s room.

            Count 36 alleged defendant committed
a lewd act “[o]n or about and between March 12, 2009 and April 30,
2009.”  The victim told the interviewer
defendant came into the room she shared with Chun, “was touching [her],”
“noticed there was blood so he went out the room and . . . that’s the
last time.”  The victim started
menstruating when she was 12.  Since the
victim was born in May 1996, she was 12 during the alleged time frame.

            On this record, sufficient evidence
supported the verdicts.

III

The
Court Erred In Its Instructions Regarding Counts 21 Through 24,

And
The Error Was Prejudicial As To Counts 23 And 24

            Defendant contends his convictions
for counts 21 through 24 for sexual penetration must be reversed because the
trial court did not instruct the jury that it was required to find that the
offenses took place on or after the effective date of  ADDIN
BA xc <@st> xl 24 s JSQSSR000005 l "Penal Code section 288.7" Penal Code section 288.7, which was
September 20, 2006.  (Stats. 2006,  ADDIN
BA xc <@osdv> xl 12 s JSQSSR000019 xpl 1 l "ch. 337, § 9" ch. 337, § 9 [Sen. Bill 1128].)   ADDIN
BA xc <@st> xl 41 s JSQSSR000006 l "Penal Code section 288.7, subdivision (b)" Penal Code section 288.7, subdivision (b)
increased the punishment for sexual penetration from three, six, or eight years
to 15 years to life in prison.  (Cf.  ADDIN
BA xc <@st> xl 29 s JSQSSR000007 xpl 1 l "Pen. Code, § 288.7, subd. (b)" Pen. Code, § 288.7, subd. (b) [“Any
person 18 years of age or older who engages in . . . sexual
penetration . . . with a child who is 10 years of age or younger
. . . shall be punished by imprisonment in the state prison for a
term of 15 years to life”] with  ADDIN
BA xc <@st> xl 27 s JSQSSR000008 xpl 1 l "Pen. Code, § 289, subd. (j)" Pen. Code, § 289, subd. (j) [“Any
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]”.)  We agree there was href="http://www.fearnotlaw.com/">instructional
error and find that the error was prejudicial as
to counts 23 and 24.

A

The
Court’s Error

            Count 21 alleged a sexual
penetration “[o]n or about and between September 20, 2006 and
November 9, 2006.”

            Count 22 alleged a sexual
penetration “[o]n or about and between November 10, 2006, and
January 9, 2007.”

            Counts 23 alleged a sexual
penetration “[o]n or about and between January 10, 2007 to March 9,
2007.”

            Count 24 alleged a sexual
penetration “[o]n or about and between March 10, 2007 and April 30,
2007.”

            The court instructed the jury
pursuant to  ADDIN BA xc <@trt> xl 15 s
JSQSSR000009 l "CALCRIM No. 207"
CALCRIM No. 207 as follows:  “It is alleged that the crimes occurred on
various dates. The People are not required to prove that the crime took place
exactly on that day, but only that it happened reasonably close to that day.”

            During deliberations, the jury asked
the following question:  “No dates are
specifically mentioned in the instructions to the jury, only on the
charges.  The text of 288.7(a) and
288.7(b) charge that the defendant had intercourse with or penetrated a person
under the age of 10.  However, no dates
are mentioned in the text of the penal code.  [¶]  Are we supposed to
convict the defendant for breaking the penal code, or only for breaking the
penal code reasonably close to the dates the charges cover?”

            The court responded as follows:

            “The defendant is charged in each
count with committing the alleged crime ‘[o]n or about and between’ a specified
date and time.  I have provided you with
a chart that lists the particular time period associated with each count.

            “The
People have presented evidence of more than one act to prove that the defendant
committed the crimes during the period alleged. 
You must not find the defendant guilty unless you all agree that the
People have proved that the defendant committed at least one of the acts during
the period alleged and you all agree on which act he committed.”

            The court then recited the offense
dates alleged as to counts 21 through 24. 
The court then stated, “In order to convict the defendant of any of
these crimes, the prosecution must prove that the defendant committed the
charged crime on or about and between the dates specified for that particular
count.”

            As the People concede, the court’s
instruction was error because ex post facto principles prohibit a conviction
for these crimes unless they occurred on or after the effective date of the
statute, which was September 20, 2006. 
(See  ADDIN BA xc <@cs> xl 65 s
JSQSSR000010 xhfl Rep xpl 1 l ">Collins v. Youngblood(1990) 497 U.S. 37 [111 L.Ed.2d 30]" Collins
v. Youngblood (1990) 497 U.S. 37, 42 [111 L.Ed.2d 30, 39] [“ â€˜It is
settled, by decisions of this Court so well known that their citation may be
dispensed with, that any statute . . . which makes more burdensome
the punishment for a crime, after its commission, or which deprives one charged
with crime of any defense available according to law at the time when the act
was committed, is prohibited as ex post
facto’ â€].)

B

The
Court’s Error Was Harmless Beyond A Reasonable Doubt As To Counts 21 And 22,
But It Was Prejudicial As To Counts 23 And 24

            An ex post facto violation is
reviewed to determine whether the violation is harmless beyond a reasonable
doubt under  ADDIN BA xc <@cs> xl 124 s
JSQSSR000011 xhfl Rep l ">Chapman v. California(1967) 386 U.S. 18 [17 L.Ed.2d 705]. (People v. Hiscox (2006) 136 Cal.App.4th 253, 261.)" Chapman
v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705,
710-711].  (People v. Hiscox (2006) 136 Cal.App.4th 253, 261.)

1

Counts
21 And Counts 22

            Count 21 alleged a sexual
penetration “[o]n or about and between September 20, 2006 and
November 9, 2006,” and count 22 alleged a sexual penetration “[o]n or
about and between November 10, 2006, and January 9, 2007.”

            The victim told the interviewer that
defendant “raped [her] in [her] butt” when she and Chun slept in the living
room in the second Casselman house, which was from  July 1, 2005 (when the family first
moved to the second Casselman house) to January 2008 (when Ny moved out and
Chun and the victim got his bedroom). 
Based on the jury’s verdict finding defendant guilty on all counts, it
is clear the jury believed the victim’s testimony and not defendant’s.  Based on her testimony that defendant “raped
[her] in [her] butt” “every other night” (that would have encompassed the
charged dates), we find the error in failing to instruct the jury it had to
find the conduct occurred on or after September 20, 2006, harmless.

2

Counts
23 And 24

            Counts 23 alleged a sexual
penetration “[o]n or about and between January 10, 2007 to March 9,
2007.”  Count 24 alleged a sexual
penetration “[o]n or about and between March 10, 2007 and April 30,
2007.”  The victim was 10 years old
during these time frames.  And this was
during the time the family was in the second Casselman house.  The victim told the interviewer that
defendant would touch her “always with his hands.  Like he would actually like mess - like put
his fingers in my vagina and then rape me there.  And then he would sometimes rape me in the
butt.  It was always switching off.  And then sometimes he would want to like rape
me from my vagina.  It was just like
always on and off, like different times.” 
However, when the interviewer asked her how many times defendant had put
his fingers in her vagina, she said, “I don’t know, a couple times.”  The People argue the error was harmless.

            However, because the evidence left
open the possibility that defendant digitally penetrated the victim only twice
(unlike every other day with counts 21 and 22) over a long time period (from
July 1, 2005  during the time she
lived at the second Casselman house to the time Danny and Ny moved out, which
was January 2008), some of which predated the effective date of the statute, we
cannot declare the instructional error was harmless beyond a reasonable doubt.  As the jury question disclosed, the jury was
having trouble determining when the charged penetrations occurred.  “Since the jury was not asked to make
findings on the time frame within which the offenses were committed, the
verdicts cannot be deemed sufficient to establish the date of the offenses
unless the evidence leaves no reasonable doubt that the underlying charges
pertained to events occurring on or after [the statute’s effective date].  [Citation.] 
It would be inappropriate for us to review the record and select among
acts that occurred before and after that date, or to infer that certain acts
probably occurred after that date. 
[Defendant] has a constitutional right to be sentenced under the terms
of the laws in effect when he committed his offenses.  For a court to hypothesize which acts the
jury may have based its verdicts on, or what dates might be attached to certain
acts based on ambiguous evidence, would amount to ‘judicial impingement upon
the traditional role of the jury.’ â€ 
(
ADDIN BA xc <@cs> xl 50 s JSQSSR000012 xhfl Rep xpl 1 l "People v. Hiscox,supra, 136
Cal.App.4th" People
v. Hiscox, supra,
136 Cal.App.4th at p. 261.) 
Here, as we have noted, the evidence was ambiguous as to how many of
these penetrations occurred and also when they occurred and it is not for us to
decide on which acts the jury based its verdict. 

            We then turn to the remedy.  The problem here was instructional error --
the court failed to instruct the jury that it must find the conduct occurred on
or after September 20, 2006.  But,
as we discussed in  ADDIN
BA xc <@$osdv> xl 7 s JSQSSR000017 part II, there was substantial evidence
defendant committed at least two acts of sexual penetration that could have
occurred within the time frame.  Because
there was sufficient evidence to support these counts, the trial court’s
erroneous instruction does not bar retrial of these counts, if the People so
choose.  ( ADDIN BA xc <@cs> xl 48 s
JSQSSR000013 xhfl Rep xpl 1 l ">People v. Hallock(1989) 208 Cal.App.3d 595" People
v. Hallock (1989) 208 Cal.App.3d 595, 607 [If there is sufficient evidence
to convict defendant of the crime but reversal is predicated on instructional
error, “double jeopardy principles do not come into play”].)

IV

Defendant
Has Failed To Establish He Was Shackled During Trial

            Defendant contends the trial court
erred in shackling him “during trial without justification.”  As we explain, defendant has not established
the preliminary fact that he was shackled during trial.

            “Perhaps the most fundamental rule
of appellate law is that the judgment challenged on appeal is presumed correct,
and it is the appellant's burden to affirmatively demonstrate error.”  ( ADDIN BA xc <@cs> xl 52 s
JSQSSR000014 xhfl Rep xpl 1 l ">People v. Sanghera(2006) 139 Cal.App.4th 1567" People
v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)  The only indication in the record that
defendant was in fact shackled at all (let alone during trial) was that the
court gave  ADDIN BA xc <@trt> xl 15 s JSQSSR000015
l "CALCRIM No. 204"
CALCRIM No. 204 which stated, “The fact that
physical restraints have been placed on the defendant is not evidence. Do not
speculate about the reason. You must completely disregard this circumstance in
deciding the issues in this case. Do not consider it for any purpose or discuss
it during your deliberations.”  Defendant
has not cited to, and we have not found, any indication he was shackled during
trial, such as a shackling order, a motion to shackle or unshackle defendant,
or any reference to defendant being physically restrained in court.

            What we have found is reference to
defendant being remanded to the sheriff’s custody at the end of trial each
day.  It is plausible the court gave the
shackling instruction to inform jurors not to draw any adverse inferences if
they saw defendant being transported to and from the court in restraints.  “The customary practice of utilizing physical
restraints while transporting a prisoner from place to place, e.g., from jail
to courtroom and back, is a matter of common knowledge and generally
acknowledged as acceptable for the protection of both the public and
defendant.  It has, in fact, been
established that it is legally permissible to transport a prisoner to the
courtroom in physical restraints.”  ( ADDIN BA xc <@cs> xl 49 s
JSQSSR000016 xhfl Rep xpl 1 l ">People v. Jacobs(1989)
210 Cal.App.3d 1135" People v. Jacobs
(1989) 210 Cal.App.3d 1135, 1141.)

            Thus, given defendant’s failure to
establish the preliminary fact that he was shackled during trial, we reject
defendant’s claim of error.

DISPOSITION

            Counts 23 and 24 are reversed and
the case is remanded to the trial court for proceedings consistent with this
opinion.  In all other respects,
defendant’s convictions are affirmed.

 

 

 

                                                                                       ROBIE          , J.

 

 

 

We concur:

 

 

 

         
HULL           , Acting P. J.

 

 

 

         
MAURO          , J.