People v. Smith

The facts underlying the convictions in the instant case involve defendant Vassar Williams Smith’s repeated lewd fondling and spanking of his son (Victim). A jury found defendant guilty of 11 counts of lewd or lascivious conduct on a child under the age of 14 (Pen. Code, § 288, subd. (a) [counts 1 & 3-12]), five counts of lewd or lascivious conduct on a child under the age of 14 by use of force, fear, violence, or duress (§288, subd. (b) [counts 13-17]), one count of continual sexual abuse of a child under the age of 14 (§ 288.5, subd. (a) [count 2]), and one misdemeanor count of possession of child pornography (§311.11, subd. (a) [count 18]). Defendant was sentenced to 68 years in state prison. On appeal he contends his convictions on counts 1 through 17 must be reversed because those charges were barred by the statute of limitations. Defendant claims the trial court erred by instructing pursuant to CALJIC No. 2.50.01 because it allows for conviction based solely upon uncharged offenses admitted under Evidence Code section 1108; alternatively, he argues the combined application of the instruction and Evidence Code section 1108 violated the federal prohibition upon ex…