237 Cal. App. 4th 1298
Cal. Ct. App.2015Background
- Defendant Benjamin Rojas was tried and convicted of: Count 1 (Pen. Code § 288.7(b) — oral copulation/sexual penetration of a child <10), Count 2 (§ 288.7(a) — intercourse/sodomy of a child <10), and Count 3 (§ 288.5 — continuous sexual abuse of a child <14).
- Allegations: discrete act on about Aug 6, 2011 (Count 1) and a course of conduct from Dec 1, 2006–Aug 5, 2011 (Counts 2 & 3); victim born Dec 2002.
- Evidence: mother found Rojas naked in victim’s room; victim described digital and penile penetration for the Aug 2011 event and earlier abuse; an officer testified to an unrecorded custodial admission; semen on bedding matched Rojas.
- Jury convicted on all counts; sentence imposed consecutively: 15-to-life (Count 1), 25-to-life (Count 2), and a stayed 12 years (Count 3) under § 654; total 40 years-to-life.
- On appeal Rojas challenged jury instructions (modified CALCRIM No. 207), asserted ex post facto error as to Count 2, raised unanimity and charging defects under § 288.5(c), and advanced sentencing claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Use of CALCRIM No. 207 ("on or about") for Count 1 | Instruction was proper and responsive to evidence; prosecution requested it. | Rojas: wording allowed conviction on same act as Count 2 and jury unanimity was inadequately provided in writing. | No miscarriage of justice; instruction correct; oral unanimity instruction given and omission of written copy inconsequential. |
| Ex post facto application of § 288.7 to Count 2 | Prosecution: time period alleged (Dec 1, 2006–Aug 5, 2011) established post-enactment timing. | Rojas: statute became effective Sept 20, 2006; jury was not required to find offense occurred after that date — applying law to pre-enactment acts is ex post facto. | Reversed Count 2 — record permits reasonable doubt the act occurred after Sept 20, 2006; failure to require a jury finding violated ex post facto principles (Chapman harmlessness test applied). |
| Unanimity instruction for Count 2 | Prosecution: not raised below; evidence supported convictions. | Rojas: absence of unanimity instruction for Count 2 deprived jury clarity on which act supported conviction. | Court did not reach merits because ex post facto error required reversal of Count 2. |
| Multiple convictions in violation of § 288.5(c) (dual convictions for continuous abuse and discrete acts) | Prosecution: issue forfeited by failure to demur; convictions may stand. | Rojas: cannot be convicted of continuous abuse and discrete offenses in same time period; remedy requires vacatur of one conviction. | Moot as to Count 2 (reversed); Count 3 (§ 288.5) affirmed; court declines further vacatur to avoid unwarranted windfall. |
Key Cases Cited
- People v. Jennings, 53 Cal.3d 334 (1991) ("on or about" date instruction improper only when evidence fixes a single date and alibi is at issue)
- People v. Gavin, 21 Cal.App.3d 408 (1971) (jury confusion over "on or about" language required clarification)
- People v. Hiscox, 136 Cal.App.4th 253 (2006) (prosecution must prove offense occurred on or after statute effective date; jury finding required)
- People v. Johnson, 28 Cal.4th 240 (2002) (§ 288.5(c) prohibits dual convictions for continuous abuse and discrete offenses in same period; remedy requires vacatur)
- People v. Torres, 102 Cal.App.4th 1053 (2002) (remedy for § 288.5(c) violation: leave defendant convicted of offenses commensurate with culpability, typically vacate lesser penalty conviction)
- People v. Cornett, 53 Cal.4th 1261 (2012) (§ 288.7 creates new life‑term offense for sexual penetration/intercourse with a child ≤10)
- People v. Duff, 50 Cal.4th 787 (2010) (stay under § 654 is procedural and contingent on the greater sentence remaining intact)
- People v. Delgado, 140 Cal.App.4th 1157 (2006) (ex post facto clause bars retroactive application of statute that increases punishment or criminalizes prior conduct)
- Chapman v. California, 386 U.S. 18 (1967) (harmless beyond a reasonable doubt standard for constitutional trial errors)
- Blakely v. Washington, 542 U.S. 296 (2004) (courts cannot judicially assign facts to increase punishment without jury determination)