People v. Smith CA3

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…