P. v. Neblung
6/8/11 P. v. Neblung
TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
Plaintiff and Respondent,
JAMES EVAN NEBLUNG,
Defendant and Appellant.
Ct. No. 08F04521)
A jury convicted
defendant James Evan Neblung of committing continuous sexual abuse of a child under the age of 14
years. (Pen. Code, § 288.5, subd.
(a).) The trial
court sentenced defendant to six years in state prison.
defendant contends the trial court erred in modifying CALCRIM No. 1120,
which defines acts of substantial sexual conduct upon which a conviction of
continuous sexual abuse may be based.
Specifically, defendant argues that the trial court misinstructed that
masturbation constitutes substantial sexual conduct if it involves any touching
of the victim’s or perpetrator’s genitals “when done willfully.”
Finding no instructional error, we affirm the
FACTUAL AND PROCEDURAL HISTORY
Defendant married A.G.’s
mother in 2002. Approximately a year and
a half later, A.G. moved with her mother, brother, and defendant into a house
in Citrus Heights, California. A.G.’s father lived nearby. At the time, A.G. was six and a half years
old and in second grade.
that she did not like defendant because she felt that he was replacing her
father. Defendant and A.G. argued
often. However, A.G. also had fun with
defendant when riding dirt bikes and playing soccer with him.
In 2007, when A.G.
was in fourth grade, her relationship with defendant “change[d].” She testified that defendant first touched
her inappropriately when she was in sixth grade. Defendant came into A.G.’s room and asked
whether she still wanted a back massage a few days after she had crashed her
dirt bike. A.G. declined the offer. Defendant started to rub her back and “kept
on going lower and lower.” A.G. told him
to stop when he reached her buttocks.
Defendant kept rubbing her back before pushing her legs apart and
rubbing between them. Defendant rubbed
A.G.’s shorts over her vagina. A.G. told
him to stop and got up. After that
incident, defendant began to give A.G. back rubs every week or two.
One night before
A.G.’s mother became pregnant, A.G. got up and went to the bathroom. When she returned, defendant was sitting on
her bed. A.G. crawled back into bed and
tried to go back to sleep. Defendant
rubbed her back and then licked her ear.
Defendant told her that she turned him on.
occasion, A.G. was lying on her bed and watching television in her
bedroom. At the time, A.G.’s mother was
pregnant and resting on a couch.
Defendant came into A.G.’s room carrying a bottle of lotion and “a
vibrator type thing.” Defendant asked
whether A.G. wanted a backrub, and A.G. declined at first and then said
yes. Defendant pulled up A.G.’s shirt
and rubbed lotion on her back. Defendant
then “started going lower into [her] vagina area and [her] butt.” Defendant told A.G. to put the vibrator on
her vagina and that it would not hurt.
After A.G. refused, defendant placed the vibrator against her vagina and
held it there for a second or two until she pulled away.
A.G. recounted a
third incident in which she was lying on her bed when defendant entered her
bedroom. Defendant rubbed her back for a
while before he pulled her pants and underwear down. After removing his shirt, defendant rubbed
his bare chest against her buttocks for a few seconds. Defendant leaned over and told A.G., “you’re
turning me on.” A.G. did not know what
to do. Defendant spread A.G.’s legs and
began licking her vagina. A.G. told him
to stop and got off the bed. A.G. did
not tell her mother because she thought it would start a big fight and that her
mother would not believe her. A.G.
testified that she believed her mother was still pregnant at the time.
A.G. stated that
defendant rubbed her vagina on more than five but fewer than 15 separate
occasions. A.G. delayed telling anyone
about the incidents because defendant said that “if [she] told anybody the
family would . . . break apart and everybody would hate [her] and
that it was [her fault] and that [her] mom would lose the baby because of
stress or shock.” After confiding with a
friend and the friend’s mother, A.G. told her mother and father about the
molestations that occurred in 2007.
When A.G.’s mother
confronted defendant, defendant said that “nothing” was going on. Eventually, defendant “described a couple of
instances,” one of which involved him giving A.G. “a titty twister.” Defendant told A.G.’s mother that he had
observed A.G. masturbating on several occasions. He stated that he thought A.G. was
masturbating one time when he was giving her a back rub. Defendant admitted rubbing “the top of her
butt” once. A.G.’s mother asked
defendant to leave the house.
During the week
that defendant was gone from the residence, A.G.’s mother observed no change in
A.G.’s behavior. Things “didn’t add up”
to A.G.’s mother, and she invited defendant to move back in.
testified that A.G. “ha[d] a history of lying about things.” Her mother explained that she had been called
to A.G.’s school several times to deal with issues of A.G. lying or
stealing. A.G.’s mother described her
daughter as spoiled, temperamental, and defiant. Her mother also noted that A.G. once
threatened to call child protective services when her father had been drinking
more and was not being nice to her.
reported the incidents to her father and the police, defendant again moved out
of the house. A search warrant led to
the discovery of several sex toys, but A.G. was unable to identify any of
Police Officer Guy Gates interviewed defendant in December 2007 and again in
January 2008. During the interviews,
defendant denied molesting A.G. but admitted once rubbing her lower sacrum and
buttocks at her request. Defendant
denied touching or rubbing A.G.’s vagina.
Defendant admitted he once gave A.G. a titty twister to stop her from
giving them to him.
Dr. Anthony Urquiza
testified about child sexual abuse accommodation syndrome. He explained that the syndrome involved five
stages for victims of child sexual abuse:
secrecy, helplessness, entrapment/accommodation, delayed and
unconvincing disclosure, and retraction.
Dr. Urquiza acknowledged that his testimony was intended to be
educational rather than diagnostic.
Thus, he stated that his testimony could not determine the guilt or
innocence of any particular defendant.
testified on his own behalf and denied sexually molesting A.G. He specifically denied touching or licking
A.G.’s vagina, rubbing her buttocks with his chest, or pulling her pants
down. Defendant admitted that he once
grabbed A.G. by the shoulders to get her to listen to him. However, he denied that he pushed her against
a wall as A.G. claimed.
that A.G. became mad at him whenever he acted as a disciplinarian and enforced
the rules. A.G. once told defendant that
she could not wait to get him out of the house.
the trial court misinstructed the jury on the definition of masturbation under
section 288.5, subdivision (a).
Defendant claims the trial court’s instruction erroneously stated that
masturbation constitutes substantial sexual conduct so long as it encompasses a
willful touching of the victim’s or perpetrator’s genitals. Defendant argues that the specific intent to
arouse the perpetrator or the victim is missing from this definition. We reject the contention.
The trial court has a duty to
instruct the jury on all law applicable to the case. (People
v. Fiu (2008) 165 Cal.App.4th 360, 370.)
Although no particular form of jury instructions is required, the court
has a duty to ensure that the instructions provide a complete and accurate
statement of the law. (Ibid.)
In assessing whether jury
instructions correctly stated the applicable law, we apply the de novo standard
of review. (People v. Posey (2004) 32 Cal.4th 193, 218.) Our review focuses on “whether the trial
court ‘fully and fairly instructed on the applicable law.’ (People
v. Partlow (1978) 84 Cal.App.3d 540, 558.)
‘“In determining whether error has been committed in giving or not
giving jury instructions, we must consider the instructions as a whole . . .
[and] assume that the jurors are intelligent persons and capable of
understanding and correlating all jury instructions which are given.” [Citation.]’
(People v. Yoder (1979) 100
Cal.App.3d 333, 338.) ‘Instructions
should be interpreted, if possible, so as to support the judgment rather than
defeat it if they are reasonably susceptible to such interpretation.’ (People
v. Laskiewicz (1986) 176 Cal.App.3d 1254, 1258.)” (People
v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
Trial Court’s Jury Instruction
The trial court
instructed defendant’s jury with a modified version of CALCRIM No. 1120 as
“The defendant is
charged in Count One with continuous sexual abuse of a child under the age of
fourteen years in violation of  section 288.5, subdivision (a).
“To prove that the
defendant is guilty of this crime, the People must prove that, one, the
defendant lived in the same home with a minor child; two, the defendant engaged
in three or more acts of substantial sexual conduct with the child; three,
three or more months passed between the first and last acts; and, four, the
child was under the age of fourteen years at the time of the acts.
“[¶] . . . [¶]
“. . .
Substantial sexual conduct means oral copulation or masturbation of either the
child or the perpetrator or penetration of the child’s or the perpetrator’s
vagina or rectum by the other person’s penis or any foreign object.
is any contact, no matter how slight, between the mouth of one person and the
sexual organ or anus of another person.
Penetration is not required.
“[¶] . . . [¶]
“Masturbation, for the purposes of showing
substantial sexual conduct, encompasses any touching or contact, however
slight, of the genitals, either over the clothing or skin to skin of either the
victim or the offender when done willfully.
an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to
break the law, hurt someone else or gain any advantage.” (Italics added.)
portion of the instruction defining masturbation is not part of the standard
CALCRIM instruction. Citing People v.
Terry (2005) 127 Cal.App.4th 750 (Terry)
and People v. Chambless (1999) 74 Cal.App.4th 773 (Chambless), the prosecution proposed that masturbation be defined
for the jury as follows: “Masturbation
for purposes of showing substantial sexual conduct encompasses any touching or
contact, however slight, of the genitals, either over the clothing or
skin-to-skin, of either the victim or the offender, with the requisite
During the jury
instruction conference at trial, defense counsel requested that the court
modify the prosecution’s instruction to substitute “when done willfully” for
the phrase “with the requisite intent.”
The prosecution did not object to this language. The court agreed with counsel and instructed
the jury accordingly.
Criminal defendants are not
required to object before raising appellate challenges to jury instructions “if
the instruction was an incorrect statement of the law [citation], or if the
instructional error affected the defendant's substantial rights.” (People
v. Franco (2009) 180 Cal.App.4th 713, 719.)
Even if the defense itself requested the instruction being challenged on
appeal, “‘[t]he invited error doctrine will not preclude appellate review . . .
if the record fails to show counsel had a tactical reason for requesting or
acquiescing in the instruction.
[Citations.]’” (People v. Tate (2010) 49 Cal.4th 635,
695, fn. 32.) The record in this case
does not show that defense counsel had a tactical reason for requesting that
the phrase “when done willfully” be used in place of the language proposed by
the prosecution. Consequently, we
proceed to consider the instructional error claim. (See ibid.)
subdivision (a), defines continuous sexual abuse of a child under the age of 14
years as follows: “Any person who either
resides in the same home with the minor child or has recurring access to the child,
who over a period of time, not less than three months in duration, engages in
three or more acts of substantial sexual conduct with a child under the age of
14 years at the time of the commission of the offense, as defined in
subdivision (b) of Section 1203.066, or three or more acts of lewd or
lascivious conduct, as defined in Section 288, with a child under the age of 14
years at the time of the commission of the offense is guilty of the offense of
continuous sexual abuse of a child and shall be punished by imprisonment in the
state prison for a term of 6, 12, or 16 years.”
The sexual conduct
element of section 288.5 may be violated in two ways: either by committing at least three
acts of “substantial sexual conduct” within the meaning of section 1203.066
or by engaging in at least three acts of lewd and lascivious conduct as
defined by section 288. Although proof of a lewd and lascivious act
requires a showing of intent to arouse the perpetrator or the victim, proof of
substantial sexual conduct does not require the same specific intent. (People
v. Whitham (1995) 38 Cal.App.4th 1282, 1294 (Whitham).) In this case, the
prosecution elected to prove continuous sexual abuse by showing that defendant
engaged in three instances of substantial sexual conduct.
288.5 nor section 1203.066 sets forth a definition of masturbation for
determining whether a touching constitutes substantial sexual conduct. (See Chambless, supra, 74
Cal.App.4th at pp. 782-783.)
that the modified jury instruction misdefined masturbation by substituting
“when done willfully” for “with requisite intent.” In defendant’s view, this substitution
constitutes error because it fails to apprise the jury that masturbation
requires “proof of specific intent to arouse, appeal to, or gratify the lust or
passions or sexual desires of the perpetrator or child . . . .”
fails. Under the substantial sexual
conduct theory, there is no requirement of specific intent to arouse the
perpetrator or the victim.
A similar argument
was rejected in Whitham, supra, 38 Cal.App.4th at page 1286. Whitham involved an argument that a showing of substantial sexual
conduct under section 288.5 requires proof of specific intent to arouse the
perpetrator or the victim. The prosecution in that case elected to prove
continuous sexual abuse based on instances of substantial sexual conduct in
which the defendant inserted her fingers and a mallet into the victims’
vaginas. (Id. at p. 1288.) In
instructing the jury on substantial sexual conduct, the trial court omitted all
reference to lewd and lascivious intent.
Thus, the jury was instructed only that the offense required evidence of
general intent. (Id. at p. 1289.)
The defendant in Whitman
appealed, arguing that
substantial sexual conduct under section 288.5 required proof that the
predicate acts were committed “‘with the intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires’ of the perpetrator or the
child.” (Id. at p. 1290.) In support
of her argument, the defendant posited that a parent who uses a rectal
thermometer more than three times over more than three months in caring for a
sick child would be guilty of section 288.5 if proof of intent to arouse were
not an element of substantial sexual conduct.
(Id. at p. 1290.)
court rejected the argument, noting that “the Legislature’s focus in
promulgating section 288.5 was continuing sexual
abuse in general, not simply conduct which constituted a violation of
section 288. In addition to resolving
problems concerning the specificity of charges, the statutory language
manifests an intention to proscribe and punish sexual conduct which falls
within the definition of section 288 but has not yet progressed to the level
of, for example, rape, sodomy, or oral copulation, as well as sexual conduct which has progressed to such a level but is
done for the purpose of, for instance, punishment or abuse instead of sexual
gratification.” (Whitham, supra, 38 Cal.App.4th at
p. 1293, fn. omitted; italics added.)
288.5 addresses instances of abuse unmotivated by gratification of sexual
urges, “‘[i]t is the nature of the act that renders the abuse “sexual” and not
the motivations of the perpetrator.’ (People v. White [(1986)] 179 Cal.App.3d
[193,] 205-206.) This being so, it makes
eminent sense to include in section 288.5 a method of violation based upon
‘substantial sexual conduct’ unaccompanied by the specific intent required to
prove a violation of section 288. The
overriding purpose of section 288.5 (as well as other sex crime statutes) is
protection of the child victim and punishment of the offender. A child victim suffers no less from, for
example, repeated sodomy undertaken for the purpose of punishment than he or
she does from repeated sodomy performed for the purpose of sexual
gratification.” (Whitham, supra, 38 Cal.App.4th at p. 1293.)
court concluded that “the Legislature intended by section 288.5 to target
sexual conduct with a child which is undertaken for the purpose of sexual
gratification (the reference to § 288) or which is otherwise abusive (the reference to
§ 1203.066, subd. (b)). Thus, while
the hypothetical parent who takes his or her child’s temperature with a rectal
thermometer may engage in ‘substantial sexual conduct’ within the literal terms
of section 288.5 since the act involves the child’s genitals (cf. People v. White, supra, 179 Cal.App.3d
at p. 205), such an act without more does not constitute sexual abuse
within the scope of the statute (ibid.). [¶] Nothing in the language of section 288.5
itself expressly states that only substantial sexual conduct which is ‘abusive’
constitutes the crime. Whether the
element of abuse can be, or should be, expressly written into section 288.5 by
judicial fiat are issues we need not take on.
We do not deal here with actions by Whitham which could have been
innocuous. Whitham’s precise contention
on appeal is simply that the ‘substantial sexual conduct’ portion of section
288.5 includes a ‘sexual gratification’ specific intent element.” (Whitham,
supra, 38 Cal.App.4th at p. 1294, fn. omitted.)
Like the Whitham
court, we reject the proposition that substantial sexual conduct within the
meaning of section 288.5 requires proof of lewd and lascivious intent. Defendant does not contend he touched the
victim’s genitals for an innocuous or nonabusive purpose such as medical
care. (Cf. Whitham, supra, 38 Cal.App.4th at p. 1294.) Defendant denies ever touching A.G.’s
cases do not provide authority to the contrary.
Chambless involved a
claim that the Sexually Violent Predators Act (Welf. & Inst. Code,
§ 6600 et seq.) required some quantitative measure of touching to support
a finding that the defendant had engaged in masturbation with the victim. (Chambless,
supra, 74 Cal.App.4th at pp. 776, 783.)
The Chambless court
concluded that “the definition of masturbation [for purposes of
determining whether a defendant has committed an act of substantial sexual conduct]
encompasses any touching or contact, however slight, of the genitals of either
the victim or the offender, with the requisite intent . . . .” (Id.
at p. 783.) Thus, the defendant’s
conduct sufficed to constitute masturbation under section 1203.066. (Ibid.) However, the Chambless court did not
elaborate on what constituted “the requisite intent” for such touching. (Id.
at pp. 782-783.)
127 Cal.App.4th 750, presented the question of whether masturbation, as defined
by subdivision (b) of section 1203.066, requires skin-to-skin touching or may
be committed by contact over the victim’s clothing. (Id.
at p. 770.) The Terry court
held that “[w]hether the genital touching occurs over clothing is not
determinative” because “[m]asturbation as . . . is commonly understood can
occur under clothing and over clothing.”
(Id. at p. 771, quoting People v. Whitlock (2003) 113
Cal.App.4th 456, 463.) Thus, Terry
concluded that substantial sexual conduct occurred when the “defendant rubbed
[the victim’s] vagina over her clothing every day until he moved out.” (Id.
at p. 772.)
In People v. Levesque (1995) 35 Cal.App.4th
530, the defendant contended he had been wrongly convicted of committing a lewd
act within the meaning of section 288, subdivision (a), because the jury had
not received a proper definition of specific intent to arouse. (Id.
at pp. 535, 542.) Levesque is
inapposite because the prosecutor in this case elected to prove continuous
sexual abuse by showing only acts of substantial sexual conduct, rather than
any lewd and lascivious acts under section 288.
As we have explained, lewd and lascivious acts differ from substantial
sexual conduct in that the latter does not require proof of intent to arouse
the perpetrator or the victim. (Whitham, supra, 38 Cal.App.4th at
The trial court’s
substitution of “when done willfully” for “with requisite intent” in defining
substantial sexual conduct under section 288.5 did not erroneously fail to
instruct that the prosecution must prove defendant’s intent to arouse himself
or the victim.
The judgment is
HOCH , J.
ROBIE , Acting P. J.
BUTZ , J.
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San Diego Case Information
provided by www.fearnotlaw.com
 Undesignated statutory references are to the
 Section 1203.066 provides, “‘Substantial
sexual conduct’ means penetration of the vagina or rectum of either the victim
or the offender by the penis of the other or by any foreign object, oral
copulation, or masturbation of either the victim or the offender.” (§ 1203.066, subd. (b).)
 Section 288, subdivision (a), provides in
pertinent part that “any person who willfully and lewdly commits any lewd or
lascivious act, including any of the acts constituting other crimes . . . ,
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 . . . .” (Italics added.)
Defendant’s conviction of section
288.5, subdivision (a), renders him ineligible for the additional accrual of
presentence custody credits under the recent amendments to sections 4019 and
2933, subdivision (e)(3), because defendant is required to register as a sex
offender. (§§ 4019, subds. (b)(2),
(c)(2), as amended by Stats. 2009, 3d Ex. Sess. 2009-10, ch. 28,
§ 50; 2933, subd. (e)(3), as amended by Stats. 2010, ch. 426, § 1,
eff. Sept. 28, 2010.)