P. v. Brown

Filed 7/16/07 P. v. Brown 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Patrick F. Magers, Judge. Affirmed.

Brett Harding Duxbury, 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, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and Jennifer A. Jadovitz, Deputy Attorney General, for Plaintiff and Respondent.

1. Introduction^[1]

A jury convicted defendant of three counts of aggravated child molestation involving multiple victims. ( 288, subd. (b)(1) and 667.61, subd.(e)(5).) The court sentenced defendant to three consecutive terms of 15 years to life.

On appeal, defendant charges the trial court committed multiple errors by using various standard jury instructions. Defendant further challenges the sufficiency of the evidence on count 2. We reject defendants contentions and affirm the judgment.

2. Facts

We present the facts in a style favorable to the judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)

In various recitations, Jane II, an eight-year-old girl, described how defendant, her grandfather, molested both her and her baby sister, Jane I, age 18 months, in April 2005. While Jane II was on the couch watching television with defendant, he rubbed his penis against her crotch, an action she called dry humping, and between her buttocks. In another incident, he inserted a stick between her buttocks or inside her vagina. Jane II told her mother defendant had touched her buttocks and genitals. Altogether, Jane described four incidents involving herself: one instance of touching her buttocks; one instance of touching her genitals; one episode of dry humping; and one instance of vaginal penetration with a stick. In an RCAT^[2] interview, Jane II said defendant had touched her five, six, or seven times in my private places, including the breasts, crotch, and buttocks. She repeated that defendant had inserted a stick in her vagina.

Jane II said defendant engaged in humping with Jane I, while she was naked, pressing himself against Jane I and simulating sex. Jane II also described defendant fingering Jane Is vagina.^[3] In the RCAT interview, Jane II drew a picture of defendant on top of Jane I, trying to hump her.

Defendant and grandmother had acted as baby-sitters for Jane I and Jane II until April 2005 when Jane II told mother defendant had expressed to her his wish that she could be his wife and help cure his disease. After that disclosure, mother did not let Jane II stay with the grandparents. Nevertheless, mother took Jane I to stay alone with her parents one day but when mother picked up Jane I she seemed physically uncomfortable. There was blood on her diaper and cuts or scratches and bruises on her genitals and fecal matter on her buttocks and genitals. Mother called grandmother, who said Jane I had had diarrhea and she may have inadvertently injured her while changing her diaper. Mothers former sister-in-law saw the bloody diaper and Jane Is red swollen genitals. The next day mother took Jane I for a medical examination.

The physician who performed the examination confirmed mother had reported blood in Jane Is diaper and small cuts on the labia. The doctor observed redness and swelling in the labia and vulva area. She did not observe bruising, cuts, or scratches. The diagnosis was vulva vaginitis, a common condition in babies, that can be consistent with sexual abuse. The doctor reported it in order to rule out sexual abuse.

The RCAT medical director testified that genital injuries heal very quickly, within 72 hours. She examined Jane II and did not find conclusive evidence of abuse.

A day or two later, mother confronted defendant and he tried to read to her from some pamphlets about sex addiction being a disease for which there is no cure. He admitted touching Jane II but claimed she was the aggressor, wiggling and grinding her buttocks against him. The grandmother agreed with defendants account. Mother then contacted the police.

With police assistance, mother made a pretext telephone call to defendant. During the call, defendant complained Jane II was crawling on my lap and rubbing her butt and moving around and rubbing her butt on me. He also claimed Jane II had simulated the act of oral sex and repeatedly tried to touch him inappropriately. On one occasion, she lay down next to him and moved her buttocks against his penis. He did not stop her although he developed an erection and ejaculated, or nearly ejaculated. He told mother he discussed the episode with Jane II, whom he called the perpetrator. He also said he saw Jane II poke Jane I in the vagina and that Jane II acted provocatively and masturbated. Once defendant touched Jane II and told her she had a cute butt. He talked about the sexual precocity of an eight-year-old girl and a mans inability to control himself. He admitted touching Jane II briefly on the crotch. He claimed Jane I was masturbating against a pillow but she never provoked him like Jane II did.

Mother testified defendant had touched her breasts while giving her a massage when she was nine or 10 years old. She told grandmother, who did not take any action. Years later, when mother was an adult, defendant joined a 12-step Sexaholics Anonymous program and apologized to her to make amends.

Mothers sister (aunt) testified to having been molested by her grandfather, defendants father, when she was 11. Aunt was molested by defendant when she was 17 or 18 years old causing her to leave home. After joining Sexaholics Anonymous, defendant apologized to aunt.

In July 2005, defendant sent aunt an e-mail in which he cited the Bibles injunction to honor ones parents and commented that his father, who was guilty also of child molestation, would never have been subjected to prosecution by the family. He referred to mother and aunt, his daughters, as selfish and undisciplined brats. About Jane II, he wrote, she perpetrated [this] on me and thought she could get away with it and blame it on me, because she knew of my past and learned how to play men. Her mother taught her that one and she was a lying little manipulating sexual perverted eight-year-old. About Jane I, he wrote the incident . . . was unrelated and circumstantial.

Grandmother testified, contradicting her daughters testimony that defendant had molested them in their youth, although she admitted he had tried to touch aunts breasts. She also acknowledged defendants involvement with a prostitute. She testified inconsistently about what she knew or remembered about conversations with mother and between mother and defendant. Because of his sexual addiction, defendant and grandmother had abstained from sexual relations for 13 years. She asserted that defendant had been treated for prostate cancer and been impotent since 2002. She disputed that defendant had ever ejaculated after being aroused by Jane II. Grandmother told the detective that Jane II had encouraged defendant. She did not believe Jane IIs accounts and called Jane II evil.

The only defense witness was the older sister of Jane I and Jane II. She testified that Jane II lies and exaggerates but only about minor things and never about serious matters.

3. Analysis

To foreclose future collateral claims like ineffective assistance of counsel, we will entertain defendants claims of instructional error that were forfeited by defendants admitted failures to object below. (People v. Daya (1994) 29 Cal.App.4th 697, 714.)

a. CALCRIM No. 200

Defendant first attacks the standard language used for jury instruction in CALCRIM No. 200: You must decide what the facts are. It is up to you, exclusively, to decide what happened, based only on the evidence that has been presented to you in this trial. Defendant reasons that this instruction misleads the jury because it is the jurys constitutionally-mandated task to determine whether the prosecution has proved each fact required for conviction beyond a reasonable doubt. (Mitchell v. United States (1999) 526 U.S. 314, 328.) According to defendant, CALCRIM No. 200 might confuse jurors into thinking their task is to decide what is true rather than what has been proved, which defendant suggests could be different questions.

Defendants argument that justice and truth are not equivalent seems more metaphysical than legal. Nevertheless, we disagree with defendants strained reading of CALCRIM No. 200. Section 1127 provides: The court shall inform the jury in all cases that the jurors are the exclusive judges of all questions of fact submitted to them and of the credibility of the witnesses. CALCRIM No. 200 restates this statutory injunction without altering its meaning. Both the statute and the instruction accord with the jury and courts function as forums for the discovery of truth. (People v. Geiger (1984) 35 Cal.3d 510, 520, overruled on other grounds in People v. Birks (1998) 19 Cal.4th 108, 116-136; In re Ferguson (1971) 5 Cal.3d 525, 531.) Furthermore, the jury was properly instructed with CALCRIM No. 220 regarding the prosecutions burden of proof beyond a reasonable doubt, giving the jury no reason to doubt its role. We presume the jury followed the courts instructions. (People v. Valdez (2004) 32 Cal.4th 73, 114, fn. 14.) We detect no error in giving the standard jury instruction, CALCRIM No. 200.

b. CALCRIM No. 375

The court gave the jury an instruction combining parts of CALCRIM Nos. 370 (motive), 375 (uncharged offenses), 938 (sexual battery), and 1110 (lewd or lascivious act against a child). On appeal, defendant focuses on the portion of the instruction based on CALCRIM No. 375 and involving other crimes, specifically defendants previous molestations, sexual battery and lewd act on a child, of his two daughters. (Evid. Code, 1108; 243, subd.(e)(1) and 288, subd. (a).)

The instruction based on CALCRIM No. 375 included the following: If you decide that the defendant committed the uncharged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit the crimes, as charged here. If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider with all the other evidence. It is not sufficient by itself to prove that defendant is guilty of the charged offenses. The People must still prove each element of every charge beyond a reasonable doubt. The instruction also stated the evidence of uncharged offenses could be considered for the limited purpose of deciding specific intent or motive for the present offenses.

Defendant strenuously argues that CALCRIM No. 375 violates the centuries-old common law excluding evidence of criminal propensity. (People v. Alcala (1984) 36 Cal.3d 604, 630-631.) He engages in a detailed analysis of why the error was not harmless as to the count involving Jane I. (People v. Kobrin (1995) 11 Cal.4th 416, 428.)

Defendant, however, disregards California law which has consistently approved of an instruction like CALCRIM No. 375, as modified in the present case. (People Reliford (2003) 29 Cal.4th 1007, 1012-1016; People v. James (2000) 81 Cal.App.4th 1343, 1353; People v. Waples (2000) 79 Cal.App.4th 1389, 1396-1398.) No authority persuades us to depart from established California law on this issue.

c. CALCRIM No. 330

Defendant next challenges CALCRIM No. 330, involving the testimony of a child witness younger than 11 years old. Defendant focuses on the language: While a child and an adult witness may behave differently, that difference does not mean that one is any more or less believable than the other. Defendant contends the instruction directs the jury to believe that this difference does not mean the child is any less credible than the adult and to afford [Jane IIs] story a benefit of the doubt not afforded adults.

CALCRIM No. 330 is similar to CALJIC No. 2.20.1, which uses slightly different language: 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. The only difference is the latter uses the words perform differently and the former uses the words behave differently. People v. Harlan (1990) 222 Cal.App.3d 439, 455-457, declared CALJIC No. 2.20.1 to be constitutional. (People v. Jones (1992) 10 Cal.App.4th 1566, 1572-1573.) A similar argument as defendant makes here was emphatically rejected in People v. McCoy (2005) 133 Cal.App.4th 974, 980: In express reliance on the holdings in Harlan [and] Jones . . . we squarely reject [defendants] constitutional challenges to CALJIC No. 2.20.1. We see no reason to reject these precedents.

d. CALCRIM No. 1111

CALCRIM No. 1111, as given to the jury, includes the following: It is not required that [defendant] intend to break the law, hurt someone else, or gain any advantage. [] Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or the child is not required. [] . . . [] It is not a defense that the child may have consented to the act.

Defendant objects to the foregoing because [i]nstruction on specific items the prosecution is not obligated to prove is argumentative and duplicative. (People v. Gordon (1990) 50 Cal.3d 1223, 1276, overruled on another ground in People v. Edwards (1991) 54 Cal.3d 787, 833-835; People v. Bolden (2002) 29 Cal.4th 515, 558.) Defendant claims evidence of the considerations listed in CALCRIM No. 1111 could operate to negate criminal intent or means. Therefore, CALCRIM No.1111 deprived him of due process. (California v. Trombetta (1984) 467 U.S. 479, 485.)

In our view, CALCRIM No. 1111, in its entirety, simply instructed the jury on the applicable law. Consent is not a defense to sexual crimes against children. ( 288, subd. (b)(1); People v. Cardenas (1994) 21 Cal.App.4th 927, 937, fn. 7; People v. Dontanville (1970) 10 Cal.App.3d 783, 796.) Nor is actual arousal of defendants lust, passion, or desire an element of these offenses. (People v. Bronson (1924) 69 Cal.App. 83, 86; People v. McCurdy (1923) 60 Cal.App. 499, 502-503.) It did not matter for the purpose of conviction whether defendant could obtain sexual satisfaction from an 18-month-old child. The subject instruction was not constitutionally objectionable.

e. Sufficiency of Evidence

Defendant was convicted of three counts, one count concerning Jane I and two counts concerning Jane II. The evidence supported at least one count against Jane I, the younger girl. Defendant argues Jane IIs testimony involved an incident which apparently occurred on a date before Jane I was left alone with the grandparents. But Jane II could have described defendants conduct on some occasion before the day the mother observed physical evidence of Jane I having been molested. The evidence certainly supported two or more counts against Jane II, the older girl.

Some confusion was generated in the pleadings and by the court regarding exactly which counts applied to which child. But, as counts 1, 2, and 3 are identical, it does not matter whatsoever which of counts 1, 2, or 3 involved Jane I and which of the remaining two counts involved Jane II. No other outcome was likely or possible.

4. Disposition

We affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Richli

Acting P. J.

s/King

J.

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

^[2] Riverside Child Assessment Team.

^[3] In this testimony and elsewhere, it is not clear that Jane II, or others, distinguished between the vagina, an internal organ, and external genitalia like the labia and vulva.