P. v. Apodaca

Filed 7/25/07 P. v. Apodaca CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant of two counts of lewd and lascivious acts upon a child under the age of 14. (Pen. Code, 288, subd. (a).) Sentenced to eight years in prison, he appeals.^[1] He contends there is insufficient evidence of count three; the evidence did not establish a violation of Penal Code section 288, subdivision (a) between October 28, 2004, and November 27, 2004. We find the generic evidence that defendant touched her almost every weekend sufficient and affirm.

FACTS

The victim, A.A., was 12 years old at the time of trial. Defendant is her grandfather. She testified defendant repeatedly molested her. It began three years earlier when her parents were on vacation and defendant was watching her and her brothers. Defendant took her to the backyard and told her not to tell anyone. The last time was late November or early December 2004 when they went to defendants house to get a CD for the computer. He touched her in the girl area or vagina with his finger. She made an excuse and tried to get away.

That touching was the last time it happened because the victim told her mother about it. She also told her best friend. She told her mother because I was sick of being touched.

On November 28, 2004, the victim told her mother that defendant touched her inappropriately. The victim was upset, crying and nervous. The mother questioned the victim to clarify what happened; the victim said defendant touched her top and bottom. The mother told her husband and he called the police.

Officer Jay Newton responded to the call. He spoke with the victim. She told him defendant touched her breasts and vagina that day. She said it had happened many times before, but she could not remember exact dates. The first time, defendant took the victim into the backyard and told her she could not tell or he would go to jail. Officer Newton made an appointment for the victim at UCD Medical Center.

The result of the medical exam was normal. The parties stipulated it was inconclusive as to whether there had been any molestation.

A few days later Detective Richard Bankie arranged for the victim to make a pretext call to defendant. A recording of the call was played at trial.

In the call the victim tells defendant he did not have to pick her up next Thursday because she was going to a friends house. She said the reason was because he touched her and she did not like it. She asked why he did it. Defendant said, I dont know. Well stop though. She asked defendant to say he was sorry and defendant did. The victim said, I didnt like your finger went inside there. It didnt feel right. Defendant responded, All right. We -- me and you help stop, well stop. No more. Defendant promised not to do it again. The victim asked why he did it and defendant said, I dont know, honey. Im sorry.

At trial the victim described in some detail the last touching when she and defendant were at his house looking for a CD. Many times before defendant put his finger in her girl part. He put his finger where the penis would go to make a baby. Defendant had also touched her on her tops, her breasts. He did it many times, more than likely every time like he went to my house or I went to his. He always touched her under her clothes. She remembered at least three times he touched her on the breast area.

The prosecutor then asked how many times defendant touched her based on the victims age at the time. The victim could not remember how many times he touched her when she was 10 or 11 years old. It happened almost every time he came over; one time it would not happen, but most of the time it happened every weekend. The victim recalled one time defendant touched her on my butt. She was 11 or 12 at the time. When asked if she remembered what time of year it was, she knew it was not winter. The victim claimed defendant touched her like every weekend.

The victims mother testified defendant babysat for them quite often. Their middle child was autistic and defendant was a paid respite worker. He also came over as a grandfather. He -- he basically came almost every weekend.

In defense, several members of defendants family testified they had never seen or heard anything about defendant inappropriately touching children.

In closing argument defense counsel argued defendants good character created a reasonable doubt as to his intent. She argued what happened was really sexual battery, although that was not charged. The first two counts, charged as happening on November 28, 2004, were easy, because we know that something happened. The problem was the remaining seven counts. There was no evidence to establish the time frame. The prosecutor failed to elicit specifics; it was a failure of proof.

Defendant was charged with nine counts of lewd and lascivious acts: two on November 28, 2004; one between October 28, 2004, and November 27, 2004, when the victim was 12 years old; five counts between October 28, 2003, and October 27, 2004, when the victim was 11 years old; and one between October 28, 2002, and October 27, 2003, when the victim was 10 years old.

The jury found defendant guilty of counts one and three, both occurring when the victim was 12. The jury acquitted defendant of the last three counts. It could not reach a verdict on the remaining counts, which were later dismissed on motion of the prosecutor.

DISCUSSION

Defendant contends there is insufficient evidence to support count three, a charge of a lewd and lascivious act between October 28, 2004, and November 27, 2004, when the victim was 12 years old. Defendant contends the evidence does not meet the three-part test of People v. Jones (1990) 51 Cal.3d 294.

In Jones, the Supreme Court addressed the difficult proof problems presented when children are molested over a period of time by someone known to them. In such cases, the child may have no practical way of recollecting, reconstructing, distinguishing or identifying by specific incidents or dates all or even any of such incidents. (People v. Jones, supra, 51 Cal.3d 294, 305.) The court sought to balance competing concerns presented in such cases. A child molester should not be immunized from criminal liability merely because he molested his victim repeatedly over an extended time period. On the other hand, a defendant has a due process right to fair notice of the charges against him and a reasonable opportunity to defend against those charges. (Ibid.)

Rejecting the argument that generic testimony was inherently insufficient, the Jones court noted: It must be remembered that even generic testimony (e.g., an act of intercourse once a month for three years) outlines a series of specific, albeit undifferentiated, incidents, each of which amounts to a separate offense, and each of which could support a separate criminal sanction. (People v. Jones, supra, 51 Cal.3d at p. 314, original italics.) The court held a childs generic testimony about molestation was sufficient if the child described the kind of act or acts committed with sufficient specificity to differentiate between various types of conduct, described the number of acts with sufficient certainty to support each count, and described the general time period in which the acts occurred to assure the acts were committed within the applicable limitations period. (Id. at p. 316.)

The Jones court cited with approval, People v. Moore (1989) 211 Cal.App.3d 1400. (People v. Jones, supra, 51 Cal.3d 294, 316.) In Moore, defendant was charged with forcible rape between June 1, 1985, to August 31, 1985. The victim testified they moved to Signal Hill in the late spring of 1985 and lived in a series of hotels until some time in August. Defendant had sexual intercourse with her almost every night during this period. The victim was able to describe only one specific incident of rape on her birthday in May; that count was charged separately. (People v. Moore, supra, at p. 1409.) The court found the generic, almost every night testimony sufficient to support the rape charge. (Id. at p. 1412.)

In People v. Matute (2002) 103 Cal.App.4th 1437, defendant was charged with 15 counts of rape of his daughter over a 15-month period. The daughter was 15 and 16 when the assaults occurred. The daughter testified that since they moved to California, not a week went by that defendant did not force sexual intercourse upon her. (Id. at p. 1441.) On appeal, defendant claimed a conviction based on such generic testimony violated due process. The court disagreed, finding the reasons and conclusions of Jones applied fully even though the victim was not under 14 because she would understandably have difficulty in differentiating the continual rapes perpetrated by defendant. (Id. at p. 1447.) Given the strong evidence, the court found the failure to give a unanimity instruction harmless beyond a reasonable doubt. (Id. at p. 1450.)

Here, the generic testimony that defendant touched the victim almost every weekend, corroborated by the mothers testimony that defendant came over almost every weekend, was sufficient to support count three. This testimony is similar to that approved in Moore, where the child testified the molestation occurred almost every night over a three-month period. Here, the victim testified to lewd acts occurring almost every weekend over a month period. While the prosecutor could have done a better job in establishing the time frame, the evidence was sufficient for the jury to conclude beyond a reasonable doubt that defendant touched the victim with

lewd intent at least once in the month before she told her mother. Further, the jury was instructed it had to unanimously agree on the act committed.

DISPOSITION

The judgment is affirmed.

MORRISON , J.

We concur:

SIMS , Acting P.J.

NICHOLSON , J.

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^[1] This court granted defendants request to file a notice of appeal under the constructive filing doctrine.