P. v. Neblung
Filed 6/8/11 P. v. Neblung CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
Plaintiff and Respondent,
JAMES EVAN NEBLUNG,
Defendant and Appellant.
(Super. 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.
On appeal, 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 judgment.
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.
A.G. testified 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.
On another 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.
A.G.’s mother 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.
After A.G. 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 them.
Citrus Heights 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.
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.
Defendant stated 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.
Defendant contends 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.
Standard of Review
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 follows:
“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.
“Oral copulation 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.
“Someone commits 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.)
The italicized 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 intent.”
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.)
Section 288.5, 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.
Neither section 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.)
Defendant argues 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 . . . .”
Defendant’s claim 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.)
The Whitham 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.)
Because section 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.)
The Whitham 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 vagina.
Defendant’s cited 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.)
Terry, supra, 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 pp. 1293-1294.)
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 affirmed.
HOCH , J.
ROBIE , Acting P. J.
BUTZ , J.
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 Undesignated statutory references are to the Penal Code.
 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.)