P. v. Sumner

Filed 10/30/07 P. v. Sumner CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Albert J. Wojcik, Judge. Affirmed with directions.

Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Robin Derman, Deputy Attorney General, for Plaintiff and Respondent.

1. Introduction^[1]

A jury convicted defendant of five sexual offenses involving his five-year-old daughter. The trial court found true four additional enhancements, including that defendant was a habitual sexual offender. The court sentenced defendant to a total prison term of 325 years to life.

Charging instructional error, defendant challenges his conviction on count 1 for sexual penetration of a child under 14 years of age. ( 289, subd. (j).) Defendant also argues the trial court incorrectly exercised its discretion by denying his Romero^[2]motion.

The parties agree the abstract of judgment should be corrected to reflect that defendants restitution and parole revocation fines were $200 each, rather than $1,000 each. We also order the abstract of judgment corrected to reflect defendant should receive a consecutive, not a concurrent, prison term of five years under section 667, subdivision (a). (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.) Otherwise, we reject defendants contentions and affirm the judgment.

2. Facts

Defendants wife, K.S., testified she and defendant have two children, Jane Doe 1 (Jane 1) born in 1999 and her older sister born in 1993. In September 1995, defendant and K.S. were living in Santa Cruz, where defendant pleaded guilty to molesting their 12-year-old baby-sitter (Jane 2). Eventually defendant and K.S. moved back to southern California.

One condition of defendants probation was that he not be alone with their children. But K.S. did not believe defendant would molest his own daughters. In 2005, K.S. began working as a caretaker for the elderly. In November 2005, the school called K.S. to report Jane 1 and her sister had been removed by Child Protective Services (CPS).

After CPS removed the children, Jane 1 was initially interviewed at the sheriffs station. Jane 1 said defendant had touched her potty area or genitalia four times beneath her underwear. She touched the desk and made a rubbing motion. She also made a hole or donut with her left hand and demonstrated the fingers of her right hand moving inside the hole. That kind of touching occurred twice. Defendants penis emitted a wet, white liquid that he cleaned up.

During another interview by the Riverside Child Assessment Team (RCAT), Jane 1 stated defendant had touched her genitalia about 20 times with his hand and finger. He touched her [i]nside. [] . . . [] [w]hen I open my legs right there apparently referring to the surface genitalia. She described defendant rubbing her potty area 12 times until wet white stuff came from his private area.

At trial Jane 1 testified that, when she was five years old, her father had touched her private parts twice with his front private part, which emitted a white substance. He also touched her front private part with his finger one, two, or three times. Defendant removed her clothes in a bedroom and touched himself. Jane 1 could not remember or would not say whether defendant had hurt her slightly or not at all. She also could not remember whether he touched the top of [her] private part.

In an interview with the sheriffs investigator, defendant explained the incident with the Santa Cruz baby-sitter as a gruesome situation in which he fondled her. Because he was curious about whether the baby-sitter was a virgin, he spread the vaginal lips to see if the hymen was still intact. Defendant persistently denied having molested Jane 1 but he acknowledged he may have inadvertently rubbed her vagina^[3]as many as four times while bathing her.

Jane 2, the former baby-sitter now an adult, testified that, one night, defendant rubbed her in front and on the buttocks and inserted his finger in her vagina, causing her to be sore later.

A pediatrician performed a gynecological exam on Jane 1 and found the results normal. She testified that external genitalia include the clitoris, the labia majora, the labia minora, and the urethra. The vaginal opening and the vagina are internal: to insert your finger in the vaginal area, you need to pass through the hymen.

3. Instructional Error

Defendant was convicted on count 1 for violating section 289, subdivisions (j) and (k), for committing an act of sexual penetration on a person under 14 years of age. His other four convictions were for committing a lewd act upon a child. ( 228, subd. (a).)

Defendants first claim of instructional error is based on the trial courts modifications of CALJIC Nos. 10.60 and 4.71.5 in which the court referred to violations of section 288 and 289 as both involving the commission of lewd and lascivious acts against a child. CALJIC No. 10.60 addresses the lack of necessity for corroborating evidence. CALJIC No. 4.71.5 concerns the time period within which the offenses occurred. Specifically, the instructions read: It is not essential to a finding of guilt on a charge of lewd act with a child less than 14 years of age, in violation of Penal Code section 289, subdivision (J), and Penal Code section 288, subdivision (a), that the testimony of the witness who was the alleged victim of the alleged lewd act be corroborated by other evidence. [] Defendant is accused in Count 1 of having committed a crime of committing a lewd and lascivious act with the body of a child under the age of 14 years in violation of Penal Code section 289, subdivision (J), and in Counts II, III, IV and V of committing the acts of committing lewd and lascivious acts upon the body of child under the age of 14 years in violation of Penal Code section 288, subdivision (a) on or about a period of time between November 30, 2003 and November 30, 2005.

Defendant contends the modified versions of CALJIC Nos. 4.71.5 and 10.60 misled the jury into believing that a violation of section 289 was the same as a violation of section 288 and did not require a finding of penetration. We disagree.

In addition to the instructions about corroborating evidence and temporality, the court gave specific instructions about the elements of a violation of section 288, subdivision (a), and a violation of section 289, subdivision (j), based on CALJIC Nos. 10.41 and 10.50. CALJIC No. 10.50 expressly refers to sexual penetration as an element of the latter offense. Considering all the instructions given to the jury, it is not reasonably likely the jury misinterpreted the instructions in the manner proposed by defendant. (People v. Lewis (2001) 25 Cal.4th 610, 649; People v. Dieguez (2001) 89 Cal.App.4th 266, 276-277 (Dieguez).) Defendants reliance on Francis v. Franklin (1985) 471 U.S. 307, a case involving conflicting instructions, is not on point because the subject instructions do not conflict.

Defendants second claim of instructional error involves the meaning of sexual penetration. The court gave the jury an instruction based on CALJIC No. 10.50, stating that Sexual penetration is the act of causing the penetration, however slight, of the genital or anal opening of any person . . . . The comment to CALJIC No. 10.50 explains further: Penetration, however slight, does not require proof of vaginal penetration. It includes contact with the victims hymen, clitoris, and the other genitalia inside the exterior of the labia majora, citing People v. Quintana (2001) 89 Cal.App.4th 1362 (Quintana). An error was made in the instruction as given, referring to the other genitalia outside the exterior of the labia majora rather than the inside.

The Quintana case followed People v. Karsai (1982) 131 Cal.App.3d 224 (Karsai), in which the court rejected an accused rapists argument that vaginal penetration is necessary to commit rape. Said Karsai: The penetration which is required is sexual penetration and not vaginal penetration. Penetration of the external genital organs is sufficient to constitute sexual penetration and to complete the crime of rape even if the rapist does not thereafter succeed in penetrating into the vagina. (Id. at p. 232.)

Quintana applied the Karsai rape penetration standard to the offense of foreign object penetrationwhich also requires penetration, however slightand equated the two penetrations. (Quintana, supra, 89 Cal.App.4th at pp. 1364, 1366; 289, subds. (j), (k).) In doing so, Quintana explained that the external female genitalia includes, among other things, the exterior vaginal lips (labia majora) and the clitoris. (Quintana, supra, at p. 1371.) Accordingly, any contact inside the exterior vaginal lips, including the clitoris, constitutes the penetration required for object penetration and for rape; vaginal penetration is unnecessary. (Id. at pp. 1366, 1371.)

Although we agree, the court erred by substituting outside for inside, in light of the whole record, we doubt there is a reasonable likelihood the jury misapplied the law. (Dieguez, supra, 89 Cal.App.4th at pp. 276-277.) Jane 1 initially reported, with a graphic demonstration, that defendant had subjected her to some kind of penetration at least twice. The medical testimony comprehensively explained female physiology and how there is both a genital opening inside the labia majora and an interior vaginal opening. The prosecutor argued the jury could find penetration based on touching inside the labia majora that did not penetrate the vaginal opening. The court instructed the jury to find penetration of a genital opening. Considering all the foregoing, the jury must properly have found that sexual penetration occurred.

4. Romero Motion

Defendants two prior strikes were incurred for his two 1995 molestations of Jane 2, the former baby-sitter, violating section 288, subdivision (a). Defendant contends the trial court improperly exercised its discretion by not striking one or both of his prior strike convictions under Romero and section 1385. We review the trial courts denial of defendants motion to strike for an abuse of discretion that is outside the bounds of reason. (People v. Williams (1998) 17 Cal.4th 148, 161-162.)

In explaining its ruling, the trial court demonstrated it understood the scope of its discretion. The court examined the nature of the two prior offenses, which it determined were separate and discrete. It concluded the factor of remoteness did not favor defendant because he had absconded in 1997 during his probation and because the incidents between Janes 1 and 2 were eerily similar. It determined defendants choice of vulnerable victims made him a continuing danger to society.

The trial court finished by stating, Based upon the Court evaluating the situation, based upon the Court evaluating the priors in Santa Cruz, evaluating the current situation, I cannot find that there exists any legal or factual basis to allow me to exercise my discretion pursuant to [section] 1385 of the Penal Code using the reasonable judge standard to strike a prior strike or strikes. [] I further find under the circumstances that the penalty does not constitute cruel and unusual punishment. I cannot, do not make findings that it would be in the interests of justice or the furtherance of justice to strike Defendants prior felony convictions as requested. I cannot find that the defendant falls outside of the scheme or outside of the scope of the three strikes law.

We fully concur: An appellate court is not authorized to substitute its judgment of the relative weights of aggravating and mitigating factors properly considered by the trial court. [Citations.] It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial courts ruling, even if we might have ruled differently in the first instance. [Citations.] (People v. Zichwic (2001) 94 Cal.App.4th 944, 961.)

5. Disposition

We order the abstract of judgment corrected to reflect that defendants restitution and parole revocation fines were $200 each, rather than $1,000 each, and to reflect that defendant should receive a consecutive, not a concurrent, prison term of five years under section 667, subdivision (a). Otherwise, we affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Ramirez

P. J.

s/McKinster

J.

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^[1] All statutory references are to the Penal Code unless stated otherwise.

^[2]People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

^[3] Neither the investigator nor defendant seemed to use the term vagina with clinical precision.