P. v. Butler

Filed 3/12/07 P. v. Butler CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County,

Barbara R. Johnson, Judge. Affirmed.

Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________

Michael Butler appeals from the judgment entered after a jury convicted him of two counts of committing a lewd or lascivious act on a child under the age of 14 years and found the acts to have been committed on more than one victim. He was sentenced to two current terms of 15 years to life in state prison. Butler contends the court erred by instructing with CALJIC No. 2.20.1 and by sentencing him to life terms under Penal Code section 667.61.^[1] We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Charges

Butler was charged by information with committing a lewd or lascivious act on Swannika B. (count 1) and Ashley B. (count 2), children under the age of 14 ( 288, subd. (a)). As to each count, the information specially alleged there were multiple victims. ( 667.61, subd. (e)(5).) Butler pleaded not guilty and denied the special allegations.

2. Summary of the Evidence Presented at Trial^[2]

a. The Peoples Evidence

Twelve-year-old Swannika B. testified that she lived with her father Butler, step-mother Catrice, sister Ashley and other siblings. When Swannika B. was four years old, Butler began fondling her vagina; by the time she was ten years old, he was frequently having sexual intercourse with her. On February 23, 2003, Swannika B.s 10th birthday, Butler placed her on a blanket on the living room floor, removed her pants, and inserted his penis into her vagina. He ignored his daughters crying and ejaculated onto the blanket.^[3] Butler sometimes insulted and slapped Swannika B. while molesting her. He also threatened her with harm if she told anyone about the molestations.

Nine-year-old Ashley B. testified that some time before February 23, 2003, Butler took her into his bedroom, removed her clothes, and began touching her vagina with his hands and penis. She and Swannika B. further testified that when Ashley B. was eight, he molested both girls at the same time. As he did with Swannika B., Butler threatened Ashley B. with harm if she reported the molestations to anyone.

Over defense objection 15-year-old Ashanti F, who is also Butlers daughter, testified pursuant to Evidence Code section 1108 about her fathers attempts to have sexual intercourse with her. On one occasion, Butler told then 12-year-old Ashanti F. that if boys were having sex with her then he could too. Butler tried to remove his daughters pants, but she resisted, and he stopped. On another occasion, Butler awakened Ashanti F. before school and inserted his penis into her vagina, causing her pain. Butler became upset and slapped Ashanti F. In 2002 Ashanti F. moved in with her aunt to get away from Butler.

Dr. Sara Thompson, pediatrician and medical director of the Child Crisis Center at the Harbor UCLA Medical Center, testified that up to 95 percent of all medical examinations of sexually abused children have normal or nonspecific results because genital injuries heal very rapidly. The only definitive indications of child sexual abuse are pregnancy or the presence of a sexually transmitted disease. Following separate interviews and examinations of the girls, Dr. Thompson concluded Swannika B.s examination was normal, which was not inconsistent with her claims of sexual abuse, and Ashley B.s examination revealed a notch in her hymen that was either congenital or the result of sexual abuse.

b. The Defenses Evidence

Butler did not testify in his defense. Dr. Earl Fuller, a professor of obstetrics and gynecology at the University of California at Irvine testified that he did not interview or examine Swannika B. and Ashley B. Instead, he relied on Dr. Thompsons reports of her examinations. Dr. Fuller opined that while the girls examinations were consistent with some types of sexual abuse, they were not consistent with repeated vaginal penetration by fingers or an adult penis. Dr. Fuller explained that with recent abuse, he would expect to see lacerations, abrasions, bruises and swelling and that with protracted abuse, he would expect to see scarring and distortions of the anatomy.^[4] No such signs of trauma were indicated in the examination reports.

3. Jury Instructions and Verdict Forms

Among the jury instructions was CALJIC No. 2.20.1, evaluating the testimony of a child under the age of 10 years (Ashley B.). The jury was not instructed on the multiple-victim circumstance allegation of section 667.61.

The verdict forms specified a separate victim for each count as charged in the information, and requested the jury expressly to find whether the acts had been committed on more than one victim under section 667.61.^[5]

4. The Jurys Verdict and Sentencing

The jury found Butler guilty on both counts of committing a lewd or lascivious act on a child under the age of 14 years. As to each count, the jury also found the acts had been committed on more than one victim under section 667.61.

The trial court sentenced Butler to two concurrent indeterminate terms of 15 years to life in state prison.

DISCUSSION

1. CALJIC No. 2.20.1

The trial court instructed the jury on how to evaluate the testimony of a child under the age of 10 years (Ashley B.) in accordance with CALJIC No. 2.20.1 which reads: In evaluating the testimony of a child [ten years of age or younger] you should consider all of the factors surrounding the childs testimony, including the age of the child and any evidence regarding the childs level of cognitive development. A child[,] because of age and level of cognitive development[,] may perform differently than an adult as a witness, but that does not mean that a child is any more or less believable than an adult. You should not discount or distrust the testimony of a child solely because he or she is a child. [] Cognitive means the child's ability to perceive, to understand, to remember, and to communicate any matter about which the child has knowledge.

Butler contends the trial court denied him his constitutional rights to due process and trial by jury. Specifically, he asserts the language of the instruction lessened the prosecutions burden of proof.

The first paragraph of CALJIC No. 2.20.1 is an instruction the Legislature decided must be given upon request in any criminal proceeding in which a child 10 years of age or younger testifies. ( 1127f.) The last paragraph adds language in addition to that required by the Legislature. By enacting section 1127f, the Legislature adopted the modern view of criminal jurisprudence that rejects traditional notions of child witnesses as susceptible to leading questions, incapable of recalling prior events accurately, and neither reliable nor truthful. (People v. McCoy (2005) 133 Cal.App.4th 974, 978-979, citing People v. Jones (1999) 51 Cal.3d 294, 315.)

CALJIC No. 2.20.1 has been upheld consistently in the face of constitutional challenges, including those raised by Butler. (McCoy, supra, 133 Cal.App.4th at pp. 978-980; People v. Jones (1992) 10 Cal.App.4th 1566, 1572-1574; People v. Gilbert (1992) 5 Cal.App.4th 1372, 1392-1394; People v. Harlan (1990) 222 Cal.App.3d 439, 455-456.)  We reject Butlers challenges for the reasons set forth in those decisions.

2. Section 667.61

Butlers was sentenced to two life terms under section 667.61, also known as the One Strike law (People v. Mancebo (2002) 27 Cal.4th 735, 738), which sets forth an alternative and harsher sentencing scheme for certain enumerated sex crimes, among them committing a lewd or lascivious act on a child under the age of 14 years. ( 667.61, subd. (c)(4).) A conviction of an enumerated offense alone does not trigger the One Strike law. (People v. Wutzke (2002) 28 Cal.4th 923, 930.) The People also must plead and prove at least one special circumstance specified in section 667.61, subdivision (d) or (e). ( 667.61, subd. (i); People v. Mancebo, supra, 27 Cal.4th at pp. 743-744.) The trial court has a duty sua sponte to instruct on the circumstances alleged pursuant to the One Strike law. (People v. Jones (1997) 58 Cal.App.4th 693, 709.)

As relevant here, where only one circumstance under section 667.61, subdivision (e) of the statute is found for each conviction, the requisite state prison term is 15 years to life. ( 667.61, subd. (b).) One such circumstance is when the defendant is convicted of committing an enumerated offense against more than one victim. ( 667.61, subd. (e)(5).) Persons convicted of sex crimes against multiple victims within the meaning of section 667.61, subdivision (e)(5) are among the most dangerous from a legislative standpoint. (People v. DeSimone (1998) 62 Cal.App.4th 693, 698.) The One Strike sentencing scheme therefore contemplates a separate life term for each victim attacked on each separate occasion. (People v. Wutzke, supra, 28 Cal.4th at p. 931.)

Butler urges the trial courts failure to instruct on section 667.61 requires the jurys multiple victim circumstance findings to be reversed and his sentence of two life terms to be vacated. The use of a verdict form which required a jury finding without any instruction to the jury as to what was necessary to make that finding was clear error; however, under the factual circumstances present here, that error was harmless. (Chapman v. California (1967) 368 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705].)

Section 667.61 requires that the circumstances set forth be found true by the trier of fact if not admitted by the defendant. ( 667.61, subd. (i).) Where the jury here was asked to make the express findings of those circumstances without instructions, we cannot assume that they did so correctly. However, the jurys verdict of guilt on two counts, as to two victims, necessarily established the factual predicate for the finding that defendant was convicted of an enumerated offense against more than one victim. Thus, [t]he factual issue posed by the omitted instruction necessarily was resolved adversely to defendant under other properly given instructions. [Citations.] (People v. Marshall (1996) 13 Cal.4th 799, 852.) As a result, the error is not structural, and the required analysis is the harmless error analysis (ibid.). As in Marshall, where the omitted instruction concerned the multiple victim special circumstance for murder here too, the facts lead to the conclusion that there is no possibility the jury would not have found the required facts had they been properly submitted to it.^[6]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

We concur:

PERLUSS, P. J. JOHNSON, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

^[1] Undesignated statutory references are to the Penal Code.

^[2] The trial at issue in this case was Butlers second trial on the same counts and special allegation. His first trial resulted in a mistrial after the jury was unable to reach a verdict.

^[3] A DNA analysis of the blanket indicated it was stained with Butlers semen.

^[4] Butlers defense counsel argued to the jury the People had not proved their case beyond a reasonable doubt because the testimony of all three girls was suspect and probably influenced by their stepmother.

^[5] The Guilty Verdict forms for Counts 1 and 2 read: We the jury in the above-entitled action, find the defendant, MICHAEL JAMES BUTLER, Guilty of the crime of LEWD ACT UPON A CHILD, in violation of Penal Code section 288(a), a felony, who did willfully, unlawfully, and lewdly commit a lewd and lascivious act upon and with the body and certain parts and members thereof of [SWANNIKA B. for Count 1, ASHLEY for Count 2], a child under the age of fourteen years, with the intent of arousing, appealing to, and gratifying the lust, passions, and sexual desires of the said defendant and the said child, as Charged in Count 1 [or 2] of the information. [] We further find that pursuant to Penal Code section 667.61(b), as to defendant, Michael James Butler, that the following circumstances apply: The defendant in the present case or cases committed an offense specified in Penal Code section 667.61(c) against more than one victim to be _______________

TRUE/NOT TRUE.

^[6] See also People v. Jones (1997) 58 Cal.App.4th 693 in which the court found harmless error in a multiple victim case where the jury was neither instructed nor asked to make a finding under the statute, but where the facts necessary to such a finding were implicit in the jurys verdict.