People v. Terry, No. H026576.

• Court: California Court of Appeals
• Writing for the Court: Elia
• Citation: 26 Cal.Rptr.3d 71,127 Cal.App.4th 750
• Parties: The PEOPLE, Plaintiff and Respondent, v. Harry Adolphus TERRY, Defendant and Appellant.
• Docket Number: No. H026576.
• Decision Date: 17 March 2005

26 Cal.Rptr.3d 71 127 Cal.App.4th 750 The PEOPLE, Plaintiff and Respondent,
v.
Harry Adolphus TERRY, Defendant and Appellant. No. H026576. Court of Appeal, Sixth District. March 17, 2005. Rehearing Denied April 7, 2005.

[26 Cal.Rptr.3d 74]

Randi Covin, Willits, Under Appointment by the Court of Appeal, In association with the Sixth District Appellate Program, for Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Christina Vom Saal and Catherine E. Rivlin, Deputy Attorneys General, for Respondent.

[26 Cal.Rptr.3d 75]

ELIA, J.

127 Cal.App.4th 756

Following a court trial, defendant Harry Adolphus Terry was found guilty of eight counts of committing lewd acts upon a child under the age of 14 (Pen.Code, § 288, subd. (a))¹ and one count of continuous sexual abuse of a child (§ 288.5, subd. (a)) against the same victim. Defendant was ineligible for probation because the court found the section 1203.066, subdivision (a)(8), allegations with respect to counts one and two to be true and defendant admitted the section 1203.066, subdivision (a)(5), allegations with respect to counts three through nine.² The trial court imposed a total sentence of 28 years to be served consecutive to the 22-year prison term previously imposed in a Fresno County case in which defendant was convicted of sex crimes (§§ 288.5, 288, subd. (b)(1)).

On appeal, defendant Terry contends that (1) counts four through nine were time-barred, (2) application of subdivisions (f) and (g) of section 803 to counts one through eight and possibly count nine would violate the constitutional prohibition against ex post facto laws, (3) his constitutional right of due process was violated by the admission of evidence under Evidence Code section 1108, and (4) separate punishment on each of the nine counts is impermissible to the extent that those counts involved the "same conduct."

Although we do not agree with any assignment of error, we conclude that the matter must be remanded for a determination whether prosecution of counts four through nine was in fact timely.

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A. Procedural History

A felony complaint charging three counts of committing lewd acts upon Jane Doe, a child under the age of 14, (§ 288, subd. (a)) was filed on October 21, 2002. Counts one and two charged defendant with an offense committed on or about or between November 7, 1990 to November 6, 1993 and count three charged him with an offense committed on or about or between January 1, 1995 to November 6, 1996. It was further alleged that a complaint containing the offenses charged in counts one and two had been filed within one year of the April 12, 2002 report to the San Jose Police Department by Jane Doe, a child under 18 years of age, that she was a victim of a crime described in section 288, any applicable limitation period specified in sections 800 or 801 had expired, the crimes involved substantial sexual conduct (§ 1203.066, subd. (b)) excluding masturbation that was not mutual, and there was independent evidence that clearly and convincingly corroborated the victim's allegation.

An information, which charged the same three offenses and six additional counts, was filed on July 3, 2003. Counts four through eight charged that defendant had committed a lewd act upon Jane Doe, a child under the age of 14 (§ 288, subd. (a)), and count nine charged that defendant had committed the crime of continuous sexual

26 Cal.Rptr.3d 76

abuse of a child under 14 (§ 288.5, subd. (a)). Those six additional counts were alleged to have been committed on or about and between January 1, 1995 and November 6, 1996. It was further alleged that a complaint containing the offenses charged in counts one and two had been filed within one year of the April 12, 2002 report to the San Jose Police Department by Jane Doe, a child under 18 years of age, that she was a victim of a crime described in section 288, any applicable limitation period specified in sections 800 and 801 had expired with respect to at least one alleged offense, and defendant had committed at least one violation of section 288 against the victim within the limitation period specified in sections 800 or 801.

On August 19, 2003, an amended information was filed. It changed the time period alleged in counts three through eight (lewd acts) to "[o]n or about or between January 1, 1995 and December 31, 1995" and it changed the time period alleged in count nine (continuous sexual abuse) to "[o]n or about January 1, 1996 and November 6, 1996."³ The amended information contained

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the same further allegation regarding counts one and two made in the original information. The amended information contained no allegations regarding counts three through nine showing they were not time-barred.

Following a court trial, defendant Harry Adolphus Terry was found guilty of all counts.

B. Evidence

The victim testified that she was born in November 1984. At the time she testified, she was 18 years old. She was six years old when she first met defendant, who was dating her mother. Defendant lived with them at three different San Jose residences until defendant and the victim's mother separated when the victim was 12 years of age. Her brother, who was three years younger than the victim, also lived with them. The victim always had her own room in each of the three homes.

Defendant and the victim's mother both worked for the same employer, but he worked nights and she worked days. Defendant cared for the victim during the day while her mother was at work.

The victim described an incident that occurred at the first address when she was about six years old. While her mother was showering, defendant "started caressing [the victim's] vagina area over [her] clothes" as she sat on defendant's lap watching TV in the living room. He continued to rub her vagina for about 15 minutes.

The victim recalled that, after this first incident, defendant touched her this same way in this same room almost every day thereafter while they lived at the first address. They lived at the first address for approximately six months. After they moved to the second address, this type of vaginal touching by defendant over the victim's clothing continued and occurred mainly in the living room.

However, the victim recalled several other incidents that took place at the second address. The victim remembered defendant coming into her room one night, pulling down her pajama bottoms, and directly touching her vagina with his hand for about 15 minutes. She was seven or eight when this occurred. Defendant told

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her that it was their "little secret" and she should not tell anybody.

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The victim testified to a different incident at the second address that occurred about six months later when she was about eight or nine and while her mother was at work. The victim had come inside and gone to her mother's room, where defendant was lying down. Her little brother was still outside. Defendant told her to sit on his lap and had her rub his erect penis through the blanket. He held his hand over her hand and moved her hand up and down for about 15 minutes. She recalled saying that she did not want to do that but he continued.

The victim testified to a second similar incident in her mother's room when her mother was not home. The difference on this occasion was that there was no blanket covering the defendant's erect penis and she could see it. Defendant again put his hand over hers and moved it up and down his penis. This incident lasted for about the same length of time as the other penis-rubbing incident.

The victim testified that they moved to the third address when she was about 10 years old and halfway through fourth grade. She recalled that defendant continued to rub her vagina over her clothing every day, sometimes in the living room and sometimes in her room. He did not touch her breast area. The molestation stopped when defendant moved out. She was about "11, going to 12" years old. She thought it was sometime during her fifth grade school year. She turned 12 in November 1996.

When defendant was no longer living with the family, the victim revealed to her younger niece M., who was living with them at the time, that defendant had been touching her but she did not describe any details. Sometime in 2002, the victim told her sister T. about what had happened. Thereafter, when she was about 17 years old, the victim told her mother, her little brother, and her father that the defendant had touched her when she was little but did not give specifics. The victim's father subsequently brought her to the police station and, on April 12, 2002, she finally spoke to a police officer about being molested.

On April 12, 2002, the victim spoke to Officer Cortes of the San Jose Police Department. Prior to that date, she had spoken to only family members but not to any teachers or counselors. The victim explained that she did not tell the members of her family everything because she did not want them to be ashamed of her and she was afraid they would not believe her. She also did not tell Officer Cortes everything because she was afraid she would not be believed.

The victim's niece M. testified. M. stated that she had lived with the victim at the third address when M. was 12. At the time of her testimony, M. was 17

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years old. M. recalled hearing from the victim that defendant had touched her in a sexual way over her clothes. M. told her own mother, C., who was the victim's sister.

The victim's mother testified that defendant lived with her at the three residences for a total of about six years. She indicated that it could have been as late as 1996 that she lived with defendant. The victim's mother confirmed that defendant and she worked different shifts for the same employer and there were many times when defendant...