P. v. Metzger

Filed 2/15/07  P. v. Metzger 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NOT TO BE PUBLISHED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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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)

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     A jury convicted defendant Donald Metzger of felony and misdemeanor child molestation as to one victim (acquitting him or deadlocking on the remaining counts), acquitted him or deadlocked on all counts as to another victim, and convicted him of witness dissuasion and misdemeanor contempt in connection with a letter to the parents of the victims.^[1]  Though the prosecutor initially sought to retry him on the unresolved counts, she acceded to the defendant's invocation of double jeopardy and dismissed them.  The trial court sentenced him to a  state prison term of eight years as follows:  a middle term of  six years on count 8, the lone felony sex conviction; and a  full consecutive middle term of two years on count 15 for witness dissuasion.  No additional time was imposed on the two misdemeanor convictions charged as counts 9 and 16.  

     On appeal, the defendant contends he was deprived of notice  of the factual basis for his convictions (and trial counsel was  ineffective if this argument is forfeited); the trial court did not adequately investigate his request for dismissal of appointed counsel; the evidence of his witness dissuasion does not support the count as charged; neither the  prosecutor nor the  instructions adequately advised the jury  of the need for unanimity on the factual basis of his molestation conviction; it  was prejudicial error to use the general instruction on circumstantial evidence instead of the  one focused on mental state; and the instruction on the credibility of child witnesses lessened the prosecution's burden  of proof.  We shall affirm.

     Given the limited number of verdicts and the nature of the defendant's contentions, we will incorporate any relevant facts in the Discussion.

Discussion

I

A

     Neither the complaint, the information, nor the verdict forms identified any particular conduct as the basis for the generic nonforcible molestations (Pen. Code, §  288) alleged in  counts 5-8.  At the preliminary hearing, the prosecution offered videotaped interviews with the victims in support of the  charges.  In the prosecution's summation to the magistrate, the counts that involved the six-year-old victim were based on  touching various parts of her body (either clothed or unclothed) with a vibrator, with various felony statutes based  on the same acts and a misdemeanor count as an alternative.  The magistrate held the defendant to answer on all  counts without elaboration. 

     In a motion to set aside certain counts, defense counsel  challenged the sufficiency of evidence of force or penetration, and also argued that the victim had identified only  three other times when the defendant had touched her with  the vibrator in contrast with the five remaining counts of  generic nonforcible molestation in the information.  In the  course of her argument, defense counsel mentioned testimony about the defendant pulling down the pants of the victim as possibly supporting a charge of generic forcible molestation.  In her opposition, the prosecutor emphasized that counts 1-3 involved a penetration of the victim's genitals, and five other incidents supported the five generic molestation charges--four touchings with the vibrator and the act of pulling down the victim's pants.  The court denied the motion. 

     In her opening statement, the prosecutor identified counts  5, 6, and 8 as involving touchings with the vibrator and  count 7 as being based on pulling down the victim's pants; count 9 was a misdemeanor alternative if the jury did not believe lewd intent was present.  Defense counsel's opening statement ascribed the touchings with the vibrator to a mere intent to tickle, and the pulling down of the victim's pants as an ill-judged retaliation for the victim attempting to do the same thing to the defendant that similarly did not have any lewd intent. 

     The six-year-old victim testified about the incident in  which the defendant pulled down her pants.  In his testimony,  the defendant claimed that when he heard the victim complain to  her mother about him pulling down her pants, he was  concerned only about how the parents might perceive this act  and did not give even a thought to his use of a vibrator to  tickle. 

     The court had cautioned the prosecutor during trial that  â€