The ex post facto clauses prohibit imposition of One Strike sentences (Pen. Code, § 667.61) for continuous sexual abuse of children (Pen. Code, § 288.5) that occurred entirely before 2006. A jury convicted defendant of a number of offenses arising from his sexual abuse of 15 children over nearly 30 years, including five counts of continuous sexual abuse of a child with a multiple-victim allegation for each count. For each count of continuous sexual abuse, the court imposed a consecutive term of 15 years to life under the One Strike law. Defendant appealed, arguing, inter alia, that four of the five One Strike sentences violated the ex post facto clauses of the state and federal constitutions because they concerned conduct that could have been completed before the One Strike law was amended in 2006 to apply to defendants convicted of continuous sexual abuse of a child. Held: Reversed in part. The People conceded that defendant’s One Strike sentences for continuous sexual abuse of two children between 1994 and 2004 violated the ex post facto clauses because those crimes were completed before the 2006 amendment. Defendant also challenged two One Strike sentences imposed for continuous sexual abuse of two other children alleged to have occurred between 2001 and 2010. According to defendant, the jury could have found that the requisite three acts of sexual abuse against each child occurred prior to the 2006 amendment. The Court of Appeal agreed that the trial court erred in failing to instruct the jury that it had to find that at least one act of sexual abuse against each child occurred after 2006 in order for a One Strike sentence to be imposed. (See Apprendi v. New Jersey (2000) 530 U.S. 466, 490; Blakely v. Washington (2004) 542 U.S. 293, 303; Alleyne v. United States (2013) __ U.S. __ .) But that error was harmless beyond a reasonable doubt because there was uncontradicted evidence that defendant’s abuse of both children continued to occur after 2006.

There was insufficient evidence to sustain a conviction for continuous sexual abuse of a child where there was no evidence that the abuse lasted at least three months. Defendant also argued that there was insufficient evidence to sustain one count of continuous sexual abuse because his sexual abuse of that particular victim (Denzel) began in May 2012 and ended July 12, 2012. The Court of Appeal agreed. A violation of section 288.5 requires proof of three acts of sexual misconduct with the child victim over a period of at least three months. Defendant’s conviction for the continuous sexual abuse of Denzel did not satisfy that test because he began molesting Denzel in May 2012 and he was reported to police on July 12, 2012, a period shorter than three months.

There was sufficient evidence that defendant acted with lewd intent when he hugged and kissed two children based on his unusual attachment to the boys that mirrored the courtship phase of his relationship with other boys that he molested. Defendant also argued that there was insufficient evidence to sustain two counts of lewd acts with children under 14 (Pen. Code, § 288, subd. (a)) based on his kissing and hugging young boys. The Court of Appeal disagreed. A violation of section 288, subdivision (a) requires proof that the defendant touched a child with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child. Any touching of a child under the age of 14 violates section 288, subdivision (a), even if the touching is outwardly innocuous and inoffensive, if it is accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator or the victim. The evidence reflected that defendant hugged and kissed two boys and was courting them in the same way he courted other child victims that he ultimately sexually abused. This was sufficient evidence to conclude he kissed and hugged the boys with the requisite intent.

Defendant’s acts of briefly hugging a child and kissing a child on the head were not objectively disturbing where defendant had a lengthy, close relationship with their family. The jury convicted defendant of annoying or molesting two different boys (Pen. Code, § 647.6, subd. (a)(1)) based on evidence that he hugged one boy and kissed another boy on the top of the head. Defendant argued that evidence was insufficient to sustain a conviction for annoying or molesting a child. The Court of Appeal agreed. Section 647.6 requires proof that the defendant engaged in conduct that is objectively disturbing. Here, defendant’s brief hugs and kiss were not objectively disturbing. He did not use his tongue when he kissed the one boy and there was no evidence suggesting that either the kiss or hugs were of any significant duration. “The evidence showed no more than the briefest peck or embrace such as might be exchanged by friends or family members as an expression of nonsexual affection.” Defendant also had a lengthy and close relationship with the family and the brief hugs and kiss were not objectively disturbing under these circumstances.

Trial court erred by instructing jury that the prosecution was not required to prove the defendant’s motive when one of the crimes (Pen. Code, § 647.6) required proof that defendant was motivated by an unnatural sexual interest in children. The trial court instructed the jury with both CALCRIM No. 1122 (which instructs that the prosecution must prove that the defendant acted with a sexual motive to prove a violation of section 647.6) and CALCRIM No. 370 (which instructs the jury the prosecution need not prove the defendant’s motive to commit the charged crimes). On appeal, defendant argued that the conflicting motive instructions allowed the prosecution to convict him of annoying or molesting a child (Pen. Code, § 647.6) without proving every element of the offense beyond a reasonable doubt. The Court of Appeal agreed. The instructions effectively removed the mental state element from the jury’s consideration. The People failed to show that the error was harmless beyond a reasonable doubt because defendant’s testimony was sufficient to support an alternative conclusion on the omitted element. (See People v. Mil (2012) 53 Cal.4th 400.) The court reversed the section 647.6 convictions.

Under Penal Code section 868.5, subdivision (b), the trial court is only required to admonish a support person not to “prompt, sway, or influence” the witness when the support person is also a witness at the trial. A number of witnesses at defendant’s trial testified with a professional victim advocate employed by the district attorney’s office. Defense counsel did not object to the presence of the support person and the trial court did not explain the presence of the victim advocate or her role to the jury. On appeal, defendant argued that the trial court erred by failing to give the admonishment in section 868.5. The Court of Appeal disagreed. Section 868.5 provides that witnesses in specified sex-crime cases “shall be entitled, for support, to the attendance of up to two” support persons. Section 868.5, subdivision (b) specifies the requirements if the chosen support person is also a witness. It goes on to state that “[i]n all cases, the judge shall admonish the support person or persons to not prompt, sway, or influence the witness in any way.” Initially, the Court of Appeal determined that defendant forfeited the admonishment issue by failing to object below. However, the court addressed the merits of the issue because defendant also argued that his trial counsel was ineffective for failing to object. Applying rules of statutory construction, the court concluded that the admonition requirement in section 868.5, subdivision (b) only applies to support persons who are also witnesses. The court also concluded that, notwithstanding the statutory language, the warnings may be more broadly required if they are necessary to protect the defendant’s constitutional rights. Here, the failure to admonish the victim advocate did not violate defendant’s constitutional rights, and counsel was not ineffective for failing to object.

Trial court erred in awarding noneconomic restitution (Pen. Code, § 1202.4, subd. (f)(3)(F)). At sentencing, the trial court awarded noneconomic restitution to each victim of defendant’s continuous sexual abuse (Pen. Code, § 288.5) and lewd acts (Pen. Code, § 288). Defendant challenged the restitution awards on appeal. The Court of Appeal reversed the entire noneconomic restitution order. First, the People conceded, and the court agreed, that section 1202.4, subdivision (f)(3)(F) does not authorize noneconomic damage awards to section 288.5 victims. Although section 1202.4, subdivision (f)(3)(F) authorizes a restitution award for noneconomic damages for felony violations of section 288, it does not include section 288.5 and the two statutes are not interchangeable. Second, the court concluded that the People did not present sufficient evidence to justify the noneconomic damage awards to the section 288 victims. The People’s sentencing memorandum cited People v. Smith (2011) 198 Cal.App.4th 415, and listed requested sums, apparently reached by multiplying each victim’s years of abuse by $50,000. No further support for the figures was provided. Based on the record, the trial court’s only apparent basis for the restitution award was Smith, which was distinguishable from this case because the victim in Smith had established serious, nonspeculative, emotional harm. Smith did not hold that all section 288 victims are entitled to noneconomic restitution of at least $50,000 per year of sexual abuse. The case was remanded for a new restitution hearing to determine appropriate victim-specific damages for the section 288 victims.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B255727.PDF