P. v. Wagener

Filed 10/19/06 P. v. Wagener CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

----

Defendant R. Pearce Wagener prowled in dozens of backyards, peered through windows, and entered four or five houses over a period of two years looking for money and taking pictures of young teenage girls. West Sacramento police arrested defendant on August 23, 2004, after a 13-year-old victim awoke to find him standing beside her bed.

The Yolo County District Attorney charged defendant with 13 counts and related special allegations arising from his conduct in each home. The jury found defendant guilty on all but three counts and found true all but one special allegation. On appeal, defendant argues there is insufficient evidence to show: (1) he entertained the specific intent to commit a forcible lewd act against E.S. and V.B. as alleged in counts 1 and 7; (2) V.B. was under the age of 14; and (3) he touched C.Z. Defendant also contends the trial court violated his constitutional rights by preventing him from presenting closing argument on the issue of intent. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The defendant was charged with two counts of committing a lewd or lascivious act upon a child under 14 by force or fear (Pen. Code, § 288, subd. (b)(1)^[1] -- counts 1 (E.S.) and 7 (V.B.)), one count of assault with a deadly weapon (§ 245, subd. (a)(1) -- count 2 (Y.S.)), seven counts of first degree burglary (§ 459 -- counts 3, 4, 5, 6, 8, 11 and 13), one count of false imprisonment (§§ 236 & 237, subd. (a) -- count 9), one count of committing a lewd or lascivious act upon a child under 14 (§ 288, subd. (a) -- count 10 (M.Z.)), and one count of second degree burglary (§ 459 -- count 12). With respect to the burglary alleged in count 3, the information further alleged defendant personally used a weapon within the meaning of section 12022, subdivision (b)(1).

The information added special allegations to the three counts involving violations of section 288. As to count 1, the information alleged four special allegations within the meaning of section 667.61, subdivisions (a) and (e): (1) that defendant committed the offense during the commission of a burglary; (2) that defendant committed offenses against more than one victim; (3) that defendant used a dangerous or deadly weapon in committing the offense; and (4) that defendant tied or bound the victim during the commission of the offense. (§ 661.61, subds. (e)(2), (4), (5), & (6).) The information further alleged defendant used a deadly weapon within the meaning of section 12022.3, subdivision (a), and was ineligible for probation under section 1203.066, subdivisions (a)(1), (3), (4) and (7).

As to count 7, the information alleged two special allegations within the meaning of section 667.61, subdivisions (a) and (e): (1) that defendant committed the offense during the commission of a burglary; and (2) that defendant committed offenses against more than one victim. (§ 667.61, subds. (e)(2) & (5).) It further alleged defendant was ineligible for probation under section 1203.066, subdivisions (a)(1), (3), and (7).

As to count 10, the information alleged two special allegations within the meaning of section 667.61, subdivision (a) and (e): (1) that defendant committed the offense during the commission of a burglary; and (2) that defendant committed offenses against more than one victim. (§ 667.61, subds. (e)(2) & (5).) It further alleged defendant was ineligible for probation under section 1203.066, subdivisions (a)(3), and (7).

The jury found defendant not guilty of counts 5, 12 and 13, and found not true the allegation defendant bound or tied the victim in count 1. The jury found defendant guilty of the remaining counts and found the remaining special allegations to be true. The court sentenced defendant to an indeterminate term of 75 years to life plus a determinate term of 16 years.

The facts of this case involve members of five families. We shall begin with the events surrounding defendant’s arrest and then describe the circumstances of other, earlier offenses alleged in the information.

A. E.S. (Section 288, subdivision (b)(1), Count 1):

Thirteen-year-old E.S. awoke around 5:00 a.m. on August 23, 2004, and saw a man later identified as defendant kneeling about two feet from her bed. E.S. moved against the wall of her bed to face the man and began kicking, screaming and hitting his face. Defendant covered her mouth for about two seconds so she would not scream. He used both hands to cover her mouth and hold her down, touching her upper arms. When her father entered the room, E.S. jumped out of bed and ran to her brother’s room. The phone in E.S.’s room was unplugged, so she dialed 911 on her brother’s phone. Her mother talked to the 911 operator. Meanwhile, her father struggled with defendant in the bedroom and hallway. He was able to hold defendant until the police arrived. E.S. told police her phone had not been unplugged the day before.

E.S.’s mother, M.S., lived with her husband and five children. When E.S. screamed, M.S. followed her husband into her daughter’s room. She saw a man wearing a mask standing a couple of feet from E.S.’s bed. He was standing in front of her husband with his hands raised, but she did not see if he had anything in his hands. M.S. joined her daughter in her son’s room and asked E.S. if the man had done anything to her. E.S. said “No.” M.S. returned to her daughter’s room where her husband was struggling with defendant, now unmasked. She identified defendant at trial as the intruder.

E.S.’s sister came out of her bedroom when she heard E.S. screaming. She saw her father struggling with defendant, who said, “I’m sorry, I didn’t mean to come in here.” She returned to her room until her father had successfully restrained the defendant.

E.S.’s brother also ran to E.S.’s room when he heard the screams. Defendant was trying to get away, so the brother locked the outside door to prevent his escape and helped his father restrain defendant. He heard defendant say, “Please, let me go. I’m not going to do this again. I’m not going to hurt anybody else.” He saw a deep wound on his father’s head.

E.S.’s father did not see anything in defendant’s hands when he entered his daughter’s room. He wrestled defendant to the floor in the hallway, and defendant said, “Okay, you got me.” The father said, “Well, we’ll make sure you won’t come back.” Defendant responded, “The trouble is you would have to go to court and testify and have the problems. Just let me go and I won’t come bother you anymore.” The father replied, “[I]t would be my pleasure to go and testify.” Nothing else was said, and the father held defendant on the floor until the police came. The father suffered injuries to his head, cheek, shoulder, back and finger.

After the police arrived and handcuffed defendant, E.S.’s mother said, “[Y]ou were here before young man.” Defendant did not reply. The mother described an incident that took place on a hot evening about a year before. She was home alone, sitting in the back yard in the dark. Suddenly, she saw a skinny man wearing a black beanie walk out from behind her house. The man looked “very similar” to defendant. When she stood up, the man turned and nearly tripped over the patio table. She ran through the house to try to catch him, but he escaped across the street.

She also recalled that her niece, C.Z., had told her family about an incident a couple of months before defendant was seen in the back yard. C.Z. said that while she and some of M.S.’s other nieces were sleeping in the living room, C.Z. saw a man in a black beanie. She watched the man pull back the blankets, heard “clicking” and saw lights flashing. C.Z. pretended she was asleep and the man left the house. The family did not report the incident to police because they did not believe what C.Z. told them.

West Sacramento Police Officer Daniel Gill responded to the 911 call and arrested defendant. In a search incident to the arrest, Gill found a thin black tube, about two feet long, in defendant’s pants pocket. When Officer Gill placed defendant in the patrol car, he noticed that defendant’s zipper was down. Defendant was wearing two pairs of pants at the time of his arrest.

Crime scene investigator Herbert Yip collected the following evidence from E.S.’s home: a disposable Fuji camera, a bowed and broken knife blade, a black nylon mask, a burgundy knit cap, clothing wrapped around black tennis shoes, and a broken pair of glasses. Yip returned the next day to pick up the knife handle that M.S. discovered inside a sock on E.S.’s bed. M.S. testified she had a similar knife before the incident. She also found the missing telephone receiver in her freezer.

B. The Family of P.S. (Section 459, Count 4):

On August 10, 2004, approximately two weeks before the incident involving E.S., L.L. got up around 4:00 or 5:00 a.m. to use the bathroom. He saw a silhouette of a man attempting to look in his neighbor’s window. The light was on in this neighbor’s house and he could see the man clearly. L.L. stepped to his own window and yelled, “Get the fuck out of there.” He reported the incident to the police.

P.S. lived next door to L.L. Something awakened her in the early morning hours of August 10, 2004. P.S. then heard her neighbor yelling at someone to “get the fuck away from the window.” P.S. got up and saw that the light was on in her 12-year-old daughter’s bedroom. The child slept with the light on because she was afraid of the dark. P.S. entered the bedroom, shut off the light, opened the blinds, but saw nothing. The next morning, P.S. noticed that her side gate was open and learned that L.L. had chased away a prowler.

West Sacramento Police contacted P.S. in the fall of 2004. They showed her a series of photographs of underwear, bras, and bathing suits that she identified as belonging to her daughter. At least one of the photographs was taken from inside P.S.’s garage where she does her laundry.

C. V.B. (Section 288, subdivision (b)(1), Count 7):

On the night of July 21, 2004, a month before the incident with E.S., V.B. and her father were living in West Sacramento. The father heard a noise and his 11-year-old daughter ran into his room. She was crying and asked, “What does he want from me?” and “Who is he?” There were scratches on her neck. The father saw a tall, skinny man run out of V.B.’s room. The man wore a mask. The father chased him into the backyard and discovered the side gate was open.

According to V.B., she woke up with a masked man in her bedroom. She “didn’t have enough air and . . . couldn’t turn [her] head” because he was choking her. She tried to slide off the bed, but the man grabbed her and threw her back on the bed. He told her to be quiet. V.B. tried to run away, but the man was holding her T-shirt. Finally, the T-shirt ripped and she ran to her parents’ bedroom.

D. M.Z. (Section 288, subdivision (a)(1), Count 10):

N.Z. is the mother of M.Z. and C.Z., and the sister-in-law of M.S. During the summer of 2003, N.Z. picked up her daughters at M.S.’s house after they had spent the night. Ten-year-old C.Z. was very upset. She told her mother that during the night a man entered the room where she and M.Z. were sleeping with their cousin C.S. The man took the blanket off the girls’ feet. C.Z. saw a light and heard a clicking sound. She tried to close her eyes because she was scared. The man went into the kitchen and C.Z. heard him touching something before he left the house. She unsuccessfully tried to wake up her cousin, C.S. N.Z. did not report the incident to police because it happened “in someone else’s house.”

West Sacramento police contacted N.Z. a year later and showed her photographs of M.Z., C.Z. and C.S. sleeping together in one bed. N.Z. also identified photographs of clothing belonging to C.Z. and M.Z. Prosecution exhibits 46 through 53 were photographs of what appear to be girls’ legs and clothed crotch areas. N.Z. identified exhibits 45 and 48 as pictures of “a pajama of [her] daughter, [C.Z.]” Both exhibits show C.Z.’s legs completely covered by pajamas and lying on a blanket or quilt. N.Z. identified exhibits 46 and 47 as M.Z.’s pants and legs and “somebody’s hand.” The photographs show the hand touching M.Z.’s leg. N.Z. identified exhibits 49, 50, 51, 52 and 53 as pictures of M.Z.’s pants and legs. She testified exhibits 49 and 53 also showed C.Z.’s pajamas. Those five photographs were shots of M.Z.’s crotch area, some close up, covered by panties, as she lay on a blanket or quilt.

M.Z. was 13 years old the summer of 2003 when she spent the night at M.S.’s. She identified the photograph showing her and her cousin C.S. sleeping. M.Z. also identified a photograph of the underwear she was wearing that night.

E. C.Z:

C.Z. remembered sleeping in M.S.’s living room on a couch that folded into a bed. During the night, C.Z. heard a noise. Seeing nothing, she went back to sleep. She woke up again when she felt the bed covers go up and her feet get cold. At that point, she heard several clicks and saw flashes. C.Z. saw a man standing by her bed wearing a black sweater, jeans and a beanie. She did not scream because she was scared. There was another flash and the man walked toward the kitchen. C.Z. saw a light in the kitchen and heard what sounded like silverware clinking together. She woke up her cousin C.S. and asked, “[D]id you see that?” C.S. responded, “yes,” but remembered nothing about the incident the next morning. That day, C.Z. told her sister, her parents and M.S.’s family what happened. Her cousin E.S. looked at the sliding door and discovered that the block her family used to close the sliding glass door was not in place. C.Z.’s uncle had checked it before he went to bed the night before.

F. Family of R.K.:

A police detective also contacted R.K. in the fall of 2004. R.K. lived in West Sacramento with his 15-year-old daughter. He identified a series of photographs of the bedrooms in his house. Several of the photographs of R.K.’s daughter’s bedroom had been taken by someone looking in from his front porch.

G. The Family of L.W. (Section 459, Count 6):

On April 2, 2002, L.W. was asleep on the living room couch in her home in West Sacramento. She was awakened by a noise in her kitchen around 2:00 a.m. A few minutes later, a man walked from the kitchen into the living room. The man paused, then dropped to the floor and began crawling towards her. L.W. screamed for her husband. The man stood up and ran out the back door. L.W. later determined that he had entered the house through the kitchen window.

H. The Police Investigation and the Defendant’s Statement:

After his arrest, defendant directed Detectives Eric Thruelsen and Jose Villareal to the various residences and yards he had entered in West Sacramento. These included homes and/or yards belonging to P.S., V.B., L.W., and R.K. Defendant talked about looking for purses and taking photos of girls. A search of defendant’s house uncovered two Fuji disposable cameras. Once processed, the film contained the photographs identified by N.Z., R.K., and P.S. at trial.

Detective Jose Daniel Villanueva interviewed defendant after his arrest. Defendant talked with Villanueva after the detective read defendant his rights. The prosecution played the audio tape for the jury at trial.

Defendant told Villanueva he lived with his mother and uncle in West Sacramento. His mother suffered from “MS” and his uncle had Alzheimer’s. Defendant helped care for both of them.

Defendant had walked around the streets two nights a week for over two years. He admitted going into houses and back yards looking for purses. He also acknowledged looking through windows and taking pictures of girls. Defendant told Villanueva, “I always carry a camera with me.” He especially liked teenage girls who were blond and admitted that he masturbated when he saw those girls in the past.

Detective Villanueva questioned defendant in detail about the incidents involving E.S. and her family.

Defendant stated he was looking for cash. He had been to M.S.’s house before and had seen through the front window that she left her purse around the house. Defendant admitted that each time he entered M.S.’s back yard seeking the purse, the door to the house was locked. He told Villanueva he had been inside the house on an earlier occasion, but someone heard him before he could get the purse.

This time, defendant entered the house through the unlocked patio door. He repeated he was looking for the purse. Defendant made sure his mask was on, found a knife in the kitchen, and wrapped the knife in a sock so his hand would not slip.

When defendant saw the girl, he wanted to take a picture of her. Defendant denied thinking about tying her up or choking her, but admitted bringing a piece of rubber string “just in case.” When Villanueva asked if defendant had the string to choke the girl, defendant again responded, “Yeah, just in case.”

Villanueva questioned defendant about his entry into the bedroom:

“A: So there’s a hallway and all the doors were closed, so I walked up the hallway. Her room was cracked open, and so I peeked in. I knew there wasn’t a purse in her room. Not the mother’s purse anyway. I still went in. I sat there for a long time in her room. I forgot to advance the camera so it’d be ready to go, so I waited for the tick-tock of her clock, and I advanced the camera (unclear), and I squeezed the whatever knob, advanced the camera, and I was ready. And she was just bundled up in those . . . those blankets.

“Q: Did you see what she was wearing?

“A: When I first came in there it was light enough to see her, but I couldn’t tell. She was wearing something long. Long . . . long-sleeved and long pants. Like pajamas.

“Q: How long were you in there ‘till she finally woke up?

“A: Probably . . . probably at least half an hour. Trying to . . . Just trying to pull off the . . . blankets off her enough to snap her picture.”

The girl woke up before defendant could take a picture. She saw him and grabbed his shirt. Defendant continued:

“A: I had a knife, and I showed her the knife. It was one of their knives. When I got in their house I found a knife in case anybody come, but nobody’s afraid of the knife. Not her, and not her father.

“Q: Did you say anything to her when you had the knife?

“A: No, I didn’t say to her . . . I didn’t say anything to her. Not a word.

“Q: Did you think she was pretty?

“A: I . . . I couldn’t even see her hardly. She was about the right age, and so I just thought I’d take a . . . take a picture of her. I was . . . surprised she was just 13.

“Q: Did you think about touching her?

“A: Yeah, I thought about touching her, but I just wanted to get her covers off for . . . .

“Q: Did you think about having sex with her?

“A: I thought about it, but I . . . I knew I wouldn’t do that. I mean I couldn’t.

“Q: How come you couldn’t?

“A: ‘Cause she was scared. (Unclear). She’d probably kick me right in the nuts.”

Defendant also described his struggle with the girl’s father. He admitted swinging the knife at the father at least 10 times in his effort to escape.

Defendant never developed the pictures he took because he feared the photo processors would call the police. He acknowledged that, “girls sleeping is pretty suspicious stuff.”

DISCUSSION

I

Sufficiency of the Evidence

Defendant argues there is insufficient evidence to support the jury verdicts on counts 1, 7 and 10. “On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] ‘”[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.”’ [Citation.]” (People v. Snow (2003) 30 Cal.4th 43, 66 (Snow).) “Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. [Citation.]” (In re Michael D. (2002) 100 Cal.App.4th 115, 126.) “‘The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt.”’ [Citation.]” (Snow, supra, at p. 66.) Here, we conclude there is sufficient evidence to support defendant’s conviction on all three of the challenged counts.

A. Evidence of Intent in Counts 1 and 7:

The jury convicted defendant of violating section 288, subdivision (b)(1) in counts 1 (E.S.) and 7 (V.B.). Section 288 reads in relevant part:

“(a) Any person who willfully and lewdly commits any lewd or lascivious act, . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.

“(b)(1) Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.” (Italics added.)

Defendant argues there is insufficient evidence to show he entertained “the intent to sexually arouse himself or the victims at the time of the forcible touchings.” With respect to E.S., defendant contends the only forcible touching occurred when he tried to put his hands over her mouth. He claims he grabbed V.B. to keep her quiet so he could get away. Defendant therefore maintains, “the evidence is undisputed that when [defendant] touched [E.]S. and [V.]B. he did so in an attempt to silence them after they started screaming so that he could avoid detection and get away.”

“The intent with which the act is done is manifested by the circumstances under which the act is committed. (§ 21.) Each case involving a lewd act must be decided on its own facts. [Citation.]” (In re Paul C. (1990) 221 Cal.App.3d 43, 54.) The prosecution may establish the element of intent with circumstantial evidence. (People v. Worthington (1974) 38 Cal.App.3d 359, 368.) “‘[T]he trier of fact looks to all the circumstances . . . to determine whether it was performed with the required specific intent.’ [Citations.]” (People v. Martinez (1995) 11 Cal.4th 434, 445 (Martinez I).) Circumstances considered relevant to the question of defendant’s intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of defendant or the child include: the charged act, extrajudicial statements, the relationship of the parties, other acts of lewd conduct, coercion or deceit used to obtain the victim’s cooperation, attempts to avoid detection, stealthy approach to the victim, admonishment of the victim not to disclose the incident, and physical evidence of sexual arousal. (Ibid.; People v. Piccionelli (1959) 175 Cal.App.2d 391, 394 (Piccionelli); People v. Hyche (1942) 52 Cal.App.2d 661, 664.) “‘It is not necessary to show that the sexual desires of the child, or of both child and defendant, were actually affected, since the gist of the crime is the intent and not its accomplishment. Whether the passions were actually aroused is immaterial, except as evidence of the intent with which the acts were committed.’” (Piccionelli, supra, at p. 394.) Here, the circumstances surrounding defendant’s acts of force against E.S. and V.B. belie his claim there is no evidence of the required intent.

Defendant’s entry into E.S.’s home and bedroom was accompanied by careful preparation. Defendant brought with him a length of rubber tubing “just in case.” He donned a mask and picked up a knife in the kitchen, wrapping it in a sock so his hand would not slip. Defendant always carried a camera with him but did not develop the pictures. It appears defendant was aroused by the act of looking at young teenage girls and taking their pictures. He admitted masturbating in the past when he saw blond teenage girls. Although defendant told police he prowled the West Sacramento neighborhood looking for purses, and was looking for M.S.’s purse, he knew there was no purse in E.S.’s bedroom. Defendant sat in E.S.’s room for at least 30 minutes, trying to pull off her blankets so he could take a picture of her. Defendant stated, “She was about the right age . . . . I was surprised she was just 13.” He admitted having thoughts of touching E.S. and having sex with her. All these circumstances support the jury’s implied finding defendant acted with the requisite intent when he covered E.S.’s mouth and held down her arms at the moment she awakened.

There is also substantial evidence of intent in the incident involving V.B. In addition to evidence of defendant’s other acts of lewd conduct, the photographs, his extrajudicial statements describing his modus operandi, and his stealthy approach to the victim, it is undisputed that V.B. awakened only after defendant began choking her. There is no evidence to support defendant’s claim he grabbed V.B. because he was trying to get away. In fact, defendant did not flee when V.B. awoke; rather, he told her to be quiet and held her shirt as she tried to run.

B. Evidence of V.B.’s Age in Count 7:

“Under the provisions of section 288 of the Penal Code it is essential that the subject of the attack must be a child under the age of fourteen years, and proof of that fact must be made.” (People v. Levoy (1920) 49 Cal.App. 770, 771.) Defendant contends the prosecutor failed to introduce any evidence V.B. was under the age of 14. He acknowledges that V.B.’s father stated she was 11 years old in an “informal” exchange with the prosecutor, but argues on appeal that, “[the father] was not reminded that he was still under oath” and “[t]here was no formal questioning.” The Attorney General responds that defendant forfeited the claim evidence of V.B.’s age was not properly before the court by failing to object at trial.^[2] Because defense counsel failed to object to the manner in which the court received evidence of V.B.’s age or that the court failed to remind V.B.’s father he was under oath, we reject defendant’s contention there is insufficient evidence V.B. was under 14 at the time of the offense.

As we already explained in the statement of facts, V.B.’s father was sworn and testified briefly regarding the events of July 21, 2004. The prosecutor did not ask him about his daughter’s age. The following exchange took place immediately after the father left the witness stand:

“THE COURT: Next witness?

“[THE PROSECUTOR]: We call V[.][B.] . . .

“THE COURT: How old is V[.B.]?

“[THE PROSECUTOR]: I think 12.

“[THE FATHER]: Eleven.

“THE COURT: Mr. [B.], I’m going to let you sit over here. V[.B.] come ahead and take a seat there. . . . . . . Mr. [B.], while V[.B.] is testifying, you need to just sit there. You don’t get to help her with her testimony, or give her answers, or anything like that. You just get to sit there and be near her. . . .”

Thereafter, V.B. testified about her encounter with defendant. The prosecutor did not ask her about her age.

It is fundamental that every witness shall be sworn to tell the truth before testifying at trial. (Evid. Code, § 710.) “However, no constitutional provision is violated if unsworn testimony is received. If the adequacy of the oath taking is not raised in the trial court, the issue is deemed waived on appeal. [Citations.]” (In re Katrina L. (1988) 200 Cal.App.3d 1288, 1299; see also, People v. Thomas (1967) 65 Cal.2d 698, 708 [defendant’s failure to object to witness nodding her assent to oath waived issue on appeal] (Thomas); and People v. Martinez (1985) 171 Cal.App.3d 727, 733 [defendant’s failure to object that interpreters had not been sworn waived issue on appeal] (Martinez II).)

Here, the record shows that the clerk administered the oath before V.B. testified. The gist of defendant’s complaint on appeal is that V.B.’s father was not sworn a second time before stating his daughter’s age in the informal exchange with the prosecutor. “[I]f defendant was unsatisfied with the adequacy of the oath-taking, he should have called the matter to the attention of the court.” (Thomas, supra, 65 Cal.2d at p. 708.)

C. Evidence of Touching of M.Z. (Section 288, subdivision (a)(1), Count 10):

Throughout the history of section 288, “the cases have made clear that a ‘touching’ of the victim is required, and that sexual gratification must be presently intended at the time such ‘touching’ occurs. [Citations.] However, the form, manner, or nature of the offending act is not otherwise restricted. Conviction under the statute has never depended upon contact with the bare skin or ‘private parts’ of the defendant or the victim. [Citations.] Stated differently, a lewd or lascivious act can occur through the victim’s clothing and can involve ‘any part’ of the victim’s body. [Citations.]” (Martinez I, supra, 11 Cal.4th at p. 444.)

On appeal, defendant argues the prosecution failed to show defendant actually touched C.Z. as alleged in count 10. The Attorney General responds that courts construe “touching” broadly and argues the blankets wrapped around C.Z. “functioned as another set of clothes.” The initial difficulty with both arguments is that M.Z., not C.Z., was the victim in count 10. That both parties missed this point demonstrates a troubling lack of diligence in reviewing the appellate record on behalf of their clients -- the defendant and the People of California.

Defendant does not challenge the sufficiency of the evidence to show defendant touched M.Z. within the meaning of section 288, subdivision (a). However, our review of the entire record demonstrates there is sufficient evidence to sustain defendant’s conviction for committing a lewd or lascivious act against M.Z., the actual victim in count 10.

The trier of fact looks at all the circumstances to determine whether the defendant violated section 288. (Martinez I, supra, 11 Cal.4th at p. 445.) As we explained, “touching” for purposes of proving a lewd and lascivious act is broadly construed. (Id. at p. 444.) “[T]he ‘gist’ of the offense has always been the defendant’s intent to sexually exploit a child, not the nature of the offending act.” (Ibid.) “‘In all cases arising under this statute the purpose of the perpetrator in touching the child is the controlling factor and each case is to be examined in the light of the intent with which the act was done.’” (People v. Austin (1980) 111 Cal.App.3d 110, 115 (Austin).) Thus, our courts have held that touching under section 288 even includes “‘constructive touching’” where defendant causes the child victim to touch his or her own genitals (People v. Meacham (1984) 152 Cal.App.3d 142, 152-153) or required the child to undress (Austin, supra, at pp. 114-115). Here the photographs defendant took of M.Z. provide graphic evidence he committed a lewd and lascivious act against her. C.S., M.Z. and C.Z. were sleeping together in one bed. M.Z. was in her underwear with her legs wound around a blanket or quilt. There was no quilt between M.Z.’s legs in some of the close-up photos of her crotch.^[3] This evidence together with C.Z.’s testimony that she “felt the bed covers go up and [her] feet got cold” and heard a click and saw a flash several times, support an implied finding that defendant pulled the blanket or quilt off the three girls in order to take the photographs. We conclude that in the circumstances of this case, the covers served as the functional equivalent of M.Z.’s clothing, and defendant touched her within the meaning of section 288, subdivision (a).

II

Defendant’s Closing Argument

Defendant argues the trial court prejudicially limited defense counsel’s argument when it prevented argument that defendant did not entertain the intent necessary to violate section 288, subdivision (b)(1). Defendant claims he was precluded from arguing that he “only intended to get away when he struggled with E.[S.] and by inference V.[B.].” Defendant asserts “[t]he trial court based its decision on the erroneous conclusion that there was no evidence either from the girls or [defendant] suggesting that all he wanted to do was get away after the girls started screaming” and on “the mistaken notion that [defendant’s] intent could not change over the time he was in the room . . . .”

The parties agree that a criminal defendant has a constitutional right to have counsel present closing argument to the jury. (People v. Marshall (1996) 13 Cal.4th 799, 854.) We review rulings on the scope of that argument for abuse of discretion. “This right is not unbounded, however; the trial court retains discretion . . . to ensure that argument does not stray unduly from the mark.” (Id. at pp. 854-855.) There is no abuse of discretion where the trial court’s ruling does not prevent defense counsel from “making his central point.” (Id. at p. 854.) Carefully read in context, the record fails to support defendant’s argument the court precluded defendant from arguing lack of intent on the section 288, subdivision (b)(1) charges.

Outside the presence of the jury, the court clarified one of the issues was whether “unwrapping the blankets constitute[s] enough of a touching of the child to be a touching with [l]ewd intent[.]” The parties discussed the factual question whether defendant had, in fact, touched E.S., or touched or unwrapped E.S.’s blankets. After reading portions of Martinez I, supra, 11 Cal.4th 434, and listening to counsels’ arguments, the court ruled: “[I]f the blanket is acting in the nature of clothing, that is[,] providing covering, then the movement of the blanket can be sufficient to constitute the touching of the body.” Defense counsel did not challenge the court’s reading of the law on this point.

The court continued: “But in this case it’s almost the level of something that’s academic. Because the testimony is that [defendant] was in the room. It can fairly be characterized by the jury as being for a [l]ewd and [l]ascivious purpose. If that’s how they find the facts based on the evidence, then he did touch her, and skin to skin, pushed her down on the bed. And all of that was part of his perpetration of the [l]ewd and [l]ascivious intent. If you believe he had that when he came in, because he said that he was trying to do it in order to keep her quiet so the father would not enter. And a jury could reasonably infer from that that he would have continued with [l]ewd and [l]ascivious conduct had he not entered. He didn’t say he pushed her down in order to try to escape. He said he pushed her down and showed her the knife in order to keep her quiet. That is a touching in order to accommodate his sexual gratification according [to] the People’s evidence. And if believed, that would be 288 touching right there. So, I’m not sure that the [E.S.] incident hinges on touching the blanket. But if it did, the court finds that under these circumstances there is sufficient evidence for the jury to find that these blankets were being used in the same manner as clothing in a case such as Martinez.”

The following exchange occurred as defense counsel attempted to clarify the court’s ruling:

“[DEFENSE COUNSEL]: May I ask just a point of clarification? . . .

“[DEFENSE COUNSEL]: What I am thinking is as follows: Number one, there is no evidence, at least from the defense prospective, that he did anything to the blankets. He talked about thinking about it. And that’s my understanding. Secondly, the trying to keep her quiet is a different intent. And just as one inference is that he did it for the purpose of keeping her quiet so he can resume his sexual act. Another inference is, he did it so that it’s got nothing to do with sex. He wants to keep her quiet and then leave. The facts of this case, I think are open[] to either interpretation. . . .

“THE COURT: Well, the first part sounded like clarification. The last part sounds like argument. . . . And I advised you not to reopen the argument. Actually, I didn’t advise you, I instructed you not to reopen the argument.”

The prosecutor challenged defense counsel’s interpretation of the evidence, citing defendant’s statement that he was “just trying to pull off [. . .] the blankets off her enough to snap her picture.’” The court responded, “That’s the part that the court meant earlier when the court said there is enough evidence for the jury to decide whether touching the blanket in that manner constituted touching something that was being used in [the] nature of clothing.” The court then clarified its ruling:

“But the ruling is that touching in a manner that constitute[s] force in order to put the victim in a position where passion, sexual desires are aroused, appeal[ed] to, or gratified, is a 288 touching under the law. So holding her down on the bed so she can’t call her father, the jury could say was part of the touching to arouse, appeal, or gratify those natures. That’s one thing.

“The other part is there is evidence that [defendant] touched the blankets. That evidence is from his own mouth. Everybody has had this transcript. . . . [S]o to make an argument that there is no showing that [defendant] touched the blanket for this child [is] a disingenuous argument, and the court will not allow it to be made to the jury.” (Italics added.)

When the jury returned, the court stated, “The instruction I gave you said that the touching does not have to be to the skin, but that it can be through the clothing that is warn [sic] by a person. And I’ll give you a further instruction on that. It can be clothing or other item that is similar in nature to clothing in the way that it’s being used by the person who is touched. . . . . . . [A]nd it’s up to the jury to decide whether another item or object has been used in a manner similar to the way that clothing is used by a person at a particular time.” Defense counsel proceeded with his closing argument. The court’s ruling, as clarified, shows it prevented defense counsel from arguing that there was no evidence the defendant touched the blanket. Prior to its ruling the court summarized that the evidence of touching for purposes of section 288 could be based on the touching of E.S. when defendant pushed her down on the bed, covered her mouth and told her to be quiet, and also when defendant testified that he touched the blankets wrapped around her body. Contrary to defendant’s characterization of the court’s ruling on appeal, the court did not prevent defense counsel from “arguing that [defendant] was trying to quiet [V.B.] and [E.S.] so that he could escape when he grabbed them.” Defense counsel was still free to argue the reasonable inferences to be drawn from the evidence from the struggle between defendant and E.S. It precluded defense counsel only from misstating the record that there was no evidence defendant touched the blankets. We conclude there was no abuse of discretion.

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

SCOTLAND , P.J.

HULL , J.

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

^[2] Where a defendant fails to tender a theory or argument in the trial court, the proper term is “forfeiture.” The term “waiver” refers to the intentional relinquishment of a known right. (People v. Saunders (1993) 5 Cal.4th 580, 590, fn. 6.)

^[3] At oral argument, counsel mentioned photos depicting defendant’s hand touching M.Z. We have examined those photos. The prosecutor argued at trial that those photos were evidence of defendant touching M.Z. The photos serve as additional substantial evidence supporting defendant’s conviction against M.Z. to the extent the jury believed the hand in the photos belonged to defendant.