Filed 11/6/26 P. v. Fuller CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or or dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089124
Plaintiff and Respondent,
(Super. Ct. No. VCF353679)
v.
PATRICK EUGENE FULLER,
OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Nathan G.
Leedy, Judge.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Darren K. Indermill and
John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
SEE DISSENTING OPINION
Appellant and defendant Patrick Eugene Fuller appeals following his conviction
and sentencing for 18 child sex offense and pornography related crimes. He claims the
trial court erred when it denied his motion for acquittal on counts 1 through 3 based on
the prosecution’s failure to establish the corpus delicti for those crimes. (Pen. Code,
§ 1118.1.)1 He also claims his indeterminate sentences on counts 1 through 3 constitute
cruel and/or unusual punishment, in violation of his state and federal constitutional rights.
Although not raised by the parties, we find the trial court committed sentencing
error on counts 5 through 18, resulting in unauthorized sentences, and we remand the
matter for resentencing. We otherwise affirm the judgment.
INTRODUCTION AND PROCEDURAL BACKGROUND
Relevant to the claims raised on appeal, defendant was convicted by jury of one
count of sexual penetration of a child 10 years of age or younger, and two counts of
committing a lewd or lascivious act on a child under the age of 14 years. (§§ 288.7,
subd. (b) [count 1 (S.F.)], 288, subd. (a) [counts 2–3 (K.F. and S.F.)].) He was also
convicted of one count of possessing child pornography and 14 counts of using a minor
for sex acts. (§§ 311.11, subd. (a) [count 4], 311.4, subd. (c) [counts 5–18].) On counts 2
and 3, the jury found defendant had substantial sexual conduct with a victim under
14 years of age and the offenses were committed against multiple victims within the
meaning of the One Strike law. (§§ 1203.066, subd. (a)(8), 667.61, subds. (e)(4), (j)(2).)
On counts 5 through 18, the jury found the offenses involved a minor under 14 years of
age and prosecution was commenced within 10 years of commission of the crime.
(§§ 647.6, subd. (c)(2), 801.1, subd. (b).)
Pursuant to the One Strike law, the trial court sentenced defendant to mandatory
indeterminate terms of 25 years to life on counts 2 and 3, to run concurrently. On
count 1, the court imposed a mandatory indeterminate term of 15 years to life, stayed
1 All undesignated statutory references are to the Penal Code.
2.
under section 654. On count 4, the court imposed a concurrent two-year term, and on
counts 5 through 18, the court imposed concurrent eight-month terms, for a total
determinate term of 11 years four months.
Defendant timely appealed. He claims that the prosecution failed to establish the
corpus delicti for the charges of sexual penetration and committing lewd or lascivious
acts on a child, entitling him to reversal on counts 1 through 3. He also claims his
indeterminate sentence constitutes cruel and/or unusual punishment under the state and
federal Constitutions.
The People dispute entitlement to relief on either claim.
We conclude the photographic evidence of S.F. and K.F. nude and in sexually
explicit poses constitutes sufficient evidence independent of defendant’s statement to
satisfy the corpus delicti rule and we reject defendant’s claim that his sentence is
unconstitutional. However, after providing the parties the opportunity to file
supplemental briefs (Gov. Code, § 68081), we find the trial court erred when, having
elected to run defendant’s determinate terms concurrently, it imposed one-third of the
middle term on counts 5 through 18. (§ 1170.1, subd. (a); People v. Quintero (2006) 135
Cal.App.4th 1152, 1156, fn. 3 (Quintero) [concurrent terms imposed at full base term].)
We shall remand the matter for resentencing but we otherwise affirm the judgment.
3.
FACTUAL SUMMARY2
In 2017, defendant was living in a three bedroom, one bathroom residence with his
wife, two daughters, one son, and stepfather. On July 10, 2017, defendant’s workplace
was burglarized and he reported the theft of his camera, memory card and other items to
law enforcement.
Later that day, M.M. contacted law enforcement about turning in a memory card
she said contained multiple sexually inappropriate images of children.3 The memory
card was booked into evidence, and a detective subsequently connected the card to
defendant. The card contained more than 4,400 images, some of which were nude or
partially nude photos of defendant’s daughters, S.F. and K.F., who were nine and
11 years old when the theft occurred.
As described during trial testimony, in one photograph of defendant’s daughters,
which appeared to have been taken on May 17, 2013, “one female juvenile [is] sitting
towards the back of the bathtub completely in the nude, and she’s turned sideways and
doing something in the water. The juvenile female towards the front of the bathtub is
completely nude laying on her side looking at the camera.” In another photograph taken
that same day, “the juvenile towards the back is now turned to her left, and it almost
looks like she has, like, plates or play dishes that she’s holding. [¶] The juvenile towards
the front is now laying on her back with her feet touching her knees—her legs are almost
like in a butterfly position. Her left hand is touching or covering her vagina or vaginal
area.”
2 Given that defendant’s appellate claims are limited to the corpus delicti rule and a
challenge to his indeterminate sentence as cruel and/or unusual punishment, we include only a
limited summary of the trial evidence.
3 M.M. told law enforcement she found the memory card lying on the ground outdoors, but
she testified a friend of the man she was living with at the time brought over a camera and the
three of them looked at some images on the memory card. After observing several inappropriate
images of children, she turned the card over to law enforcement with a cover story designed to
avoid involving either man.
4.
In another photograph, which appeared to have been taken on May 24, 2013, one
of defendant’s daughters is “in the bathtub. She is at least on her knees, appears to be on
her hands and knees. The image is—displays just below the shoulders and bath water—
bath water’s a quarter of the way up the female juvenile’s thigh as she’s on her knees
and/or hands and knees. Juvenile [is] in the nude and exposing the buttocks and vaginal
area.” A second photograph taken that same day shows one of his daughters “with her
hands on the bottom of the bathtub, her feet on the bottom of the bathtub, so she’s bent
over touching her hands to the ground with her knees bent. The image displays the nude
juvenile. You can see her buttocks and vagina .…” A third photograph taken that day “is
just of the buttocks area. You can see a little bit of the lower back and a little bit of the
upper leg. The anus and vagina are visible in this picture. There’s bath water with
bubbles.”
Defendant was interrogated on July 19, 2017. He admitted that the memory card
was his and that he took the photographs at issue. He could not explain why he took each
of the photographs, but he did feel pleasure or excitement when he took some of them.
Defendant also admitted that he occasionally showered with his daughters, most
recently on July 17, 2017. He stated that sometimes, when his daughters got dirty and
they did not clean their vaginas well enough, he would clean them. When asked to
explain how he cleaned them, he answered, “usually what I have ‘em do is I have ‘em
stand up and … spread their legs …. I go side to side, back and forth, and then … kinda
pull the fingers through to get … the crevices, and then pull the shower head down, spray
it off and just look to see if it’s clean.” And when he was asked if doing that excited him,
he answered, “I didn’t think it did. But after talkin’ to you two I think it did.”
Defendant’s daughters did not testify at trial.
Dr. Leo testified for the defense as an expert in social psychology, criminology,
and the practice of police interrogation, psychological coercion, and making false
statements, admissions, and incriminatory statements. He described three types of false
5.
confessions: voluntary, compliant and persuaded. In contrast with compliant and
persuaded confessions, a voluntary false confession is unrelated to interrogation
techniques and occurs, for example, when someone contacts authorities to falsely confess
in a high profile case. A compliant false confession is the most common type and occurs
“when the person knowingly falsely confesses because of the stress or the psychological
coercion of the interrogation, wants to put an end to it or they think that they’ll be able to
go home or later prove their innocence.” A persuaded false confession occurs when “the
person comes to doubt their memory and think they may have committed a crime in the
absence of memory.”
Dr. Leo opined that defendant’s interrogation was high pressure and accusatory. It
involved yelling and cutting defendant off; and defendant expressed he was scared or
anxious repeatedly, and broke down and cried at times. Dr. Leo observed some instances
where defendant doubted his memory and spoke speculatively or hypothetically.
However, although an individual who breaks down and cries could be more prone to
being compliant, Dr. Leo could not say defendant’s response, which he observed on
video, indicated a compliant or persuaded false statement. He interpreted defendant’s
response to be “a reaction to the stress of the interrogation” and, while stressful, coercive
interrogations “can lead to compliant or persuaded false confessions,” Dr. Leo did not
view it as “direct evidence” that defendant’s statements were “compliant or persuaded.”
DISCUSSION
I. Corpus Deliciti Evidence: Counts 1 Through 3
After the prosecution rested, defendant brought a motion under section 1118.1
seeking acquittal on counts 1 through 3 based on the prosecution’s failure to prove the
6.
corpus delicti.4 The trial court denied the motion, finding the photographic evidence of
the victims posing in a sexually suggestive manner was sufficient to establish corpus
delicti. Defendant discussed the issue in his motion for a new trial, but the court, prior to
sentencing defendant, reiterated the photographs were sufficient.
On appeal, defendant claims the trial court erred when it denied his motion for
acquittal. He argues that there is insufficient evidence independent of his interrogation
statement to satisfy the corpus deliciti rule for counts 1 through 3, and he seeks reversal
on those counts with an order barring retrial.
The People maintain that the trial court correctly found the photographs are
sufficient to meet the minimal showing required to satisfy the corpus delicti rule.
A. Legal Principles
“‘“The purpose of a motion under section 1118.1 is to weed out as soon as
possible those few instances in which the prosecution fails to make even a prima facie
case.” [Citations.] The question “is simply whether the prosecution has presented
sufficient evidence to present the matter to the jury for its determination.” [Citation.]
The sufficiency of the evidence is tested at the point the motion is made. [Citations.]
The question is one of law, subject to independent review.’” (People v. Dalton (2019) 7
Cal.5th 166, 249 (Dalton), quoting People v. Stevens (2007) 41 Cal.4th 182, 200
(Stevens).)
4 Section 1118.1 provides, “In a case tried before a jury, the court on motion of the
defendant or on its own motion, at the close of the evidence on either side and before the case is
submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more
of the offenses charged in the accusatory pleading if the evidence then before the court is
insufficient to sustain a conviction of such offense or offenses on appeal.…”
7.
In reviewing defendant’s claim, “we apply the corpus delicti rule.” (People v.
Dalerio (2006) 144 Cal.App.4th 775, 780 (Dalerio).)5 “‘In every criminal trial, the
prosecution must prove the corpus delicti, or the body of the crime itself—i.e., the fact of
injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it
has traditionally been held, the prosecution cannot satisfy this burden by relying
exclusively upon the extrajudicial statements, confessions, or admissions of the
defendant. [Citations.] Though mandated by no statute, and never deemed a
constitutional guaranty, the rule requiring some independent proof of the corpus delicti
has roots in the common law.’” (People v. Jablonski (2006) 37 Cal.4th 774, 825
(Jablonski), quoting Alvarez, supra, 27 Cal.4th at pp. 1168–1169; accord, People v.
Amezcua and Flores (2019) 6 Cal.5th 886, 912, fn. 13.) Its purpose “is to ‘ensure that
one will not be falsely convicted, by his or her untested words alone, of a crime that
never happened.’” (Jablonski, supra, at p. 827, quoting Alvarez, supra, at p. 1169.)
Thus, the rule “‘requires corroboration of the defendant’s extrajudicial utterances insofar
as they indicate a crime was committed, and forces the People to supply, as part of their
burden of proof in every criminal prosecution, some evidence of the corpus delicti aside
from, or in addition to, such statements.’” (People v. Krebs (2019) 8 Cal.5th 265, 317
(Krebs), quoting Alvarez, supra, at p. 1178.)
“[T]he amount of independent evidence required is not great and may be
circumstantial with only ‘“a slight or prima facie showing”’ that permits ‘an inference of
5 Although the People assert that a section 1118.1 motion is not the appropriate vehicle to
raise corpus delicti, we interpret their point to be that a challenge based on the corpus delicti rule
and a substantial evidence challenge to the elements of an offense are subject to different
evidentiary standards, with which we agree. (See e.g., People v. Gutierrez (2002) 28 Cal.4th
1083, 1129 [corpus delicti claim raised in § 1118.1 motion]; Stevens, supra, 41 Cal.4th at p. 200
[§ 1118.1 challenge to sufficiency of evidence as to each element]; People v. Alvarez (2002) 27
Cal.4th 1161, 1168 (Alvarez) [prosecution required to prove corpus delicti]; Dalerio, supra, 144
Cal.App.4th at pp. 780–781 [corpus delicti claim raised in § 1118.1 motion].) In this case, the
corpus delicti issue was raised by defense counsel in a section 995 motion following the
preliminary hearing and in a section 1118.1 motion.
8.
injury, loss, or harm from a criminal agency, after which the defendant’s statements may
be considered to strengthen the case on all issues.’” (People v. Capers (2019) 7 Cal.5th
989, 1003, quoting Alvarez, supra, 27 Cal.4th at p. 1181; accord, Krebs, supra, 8 Cal.5th
at p. 317.) The independent proof “‘need not be beyond a reasonable doubt[; it] is
sufficient if it permits an inference of criminal conduct .…’” (Dalton, supra, 7 Cal.5th at
p. 218, quoting Alvarez, supra, at p. 1171.) Further, “‘[t]he inference [of criminal
conduct] need not be “the only, or even the most compelling, one … [but need only be] a
reasonable one”’” (Jablonski, supra, 37 Cal.4th at p. 827, quoting People v. Jones (1998)
17 Cal.4th 279, 301 (Jones)), and “[t]he prosecution need not adduce ‘independent
evidence of every physical act constituting an element of an offense’” (Krebs, supra, at
p. 317, quoting Jones, supra, at p. 303). There need only be “‘some indication that the
charged crime actually happened,’ so as to ensure ‘that the accused is not admitting to a
crime that never occurred.’” (Krebs, supra, at p. 317, quoting People v. Jennings (1991)
53 Cal.3d 334, 368 (Jennings).)
B. Analysis
1. Evidence Sufficient Under California Supreme Court Caselaw
Here, the relevant charges are based on acts that occurred when defendant washed
his two daughters during bathtime. In his statement to police, he described soaping them
up, having them spread their legs, and raking the crevices of their vaginas with his
fingers, which he admitted excited him; and, at trial, a lieutenant testified, “As you saw in
the video, the way that he described it, it was an insertion of his finger inside of her
vagina to clean it is what his reason was, and he used the word ‘rake.’” The only
evidence offered by the prosecution to corroborate defendant’s statement and establish
9.
the corpus delicti for counts 1 through 3 consisted of photographs defendant took of the
victims, which also supported the child pornography charges.6
Notably, there was only one bathroom in the residence and the photos in question
included shots of the two victims in the bathtub with soapy water, unclothed and in
various sexually explicit poses. While this corroborating evidence is circumstantial
rather than direct, the sexually explicit nature of the photos is clearly indicative of sexual
arousal or gratification and, consistent with California Supreme Court authority, the
photos permit a reasonable inference that sexual penetration and lewd touching occurred
in that location, which is all that is required for the prosecution to satisfy the minimal
demand of the corpus delicti rule. The absence of scientific evidence, witness testimony,
or victim statements supporting the elements of penetration or lewd touching does not
compel reversal of defendant’s convictions on counts 1 through 3 under the corpus delicti
rule. (Krebs, supra, 8 Cal.5th at p. 317; Jones, supra, 17 Cal.4th at p. 303.) The
prosecution needs only to adduce a very small amount of independent evidence sufficient
to corroborate defendant’s statement by indicating the charged crime was committed, so
as to ensure the defendant did not admit to a crime that never occurred. (Krebs, supra, at
p. 317.) That low threshold is met in this case vis-à-vis the photographs.
6 In denying defendant’s motion to sever counts 1 through 3 from counts 5 through 18, the
trial court found that the photographs were relevant to counts 1 through 3 and were cross-
admissible, rulings which are not challenged on appeal. (Tiernan v. Trustees of Cal. State
University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4 [failure to raise issue on appeal waives
that issue]; Trinity Risk Management, LLC v. Simplified Labor Staffing Solutions, Inc. (2021) 59
Cal.App.5th 995, 1008 [same].)
10.
a. Summary of Authority
Our conclusion is consistent with California Supreme Court authority.7 Our high
court has repeatedly held that the prosecution need not introduce independent evidence of
every physical act constituting an element of the offense, and the court has upheld
convictions involving sex offenses in the absence of independent evidence of the sexual
act at issue. In Robbins, as here, the defendant was convicted of committing a lewd or
lascivious act on a child despite the absence of any scientific evidence or witness
testimony to the sexual conduct. (People v. Robbins (1988) 45 Cal.3d 867, 886
(Robbins).) In Jones, there was no physical evidence of oral copulation to support the
conviction for forcible oral copulation (Jones, supra, 17 Cal.4th at p. 302) and, in
Jennings, there was no evidence of biological fluid or penetration to support the rape
conviction (Jennings, supra, 53 Cal.3d at p. 367). However, in all three cases, the court
found the circumstantial evidence was sufficient to satisfy the corpus delicti rule.
In Jennings, which involved murder and rape, the court explained “the quantum of
evidence the People must produce in order to satisfy the corpus delicti rule is quite
modest; case law describes it as a ‘slight or prima facie’ showing. [Citations.] This
minimal standard is better understood when we consider that the purpose of the corpus
delicti rule is ‘to protect the defendant against the possibility of fabricated testimony
which might wrongfully establish the crime and the perpetrator.’ [Citation.] As one
court explained, ‘Today’s judicial retention of the rule reflects the continued fear that
confessions may be the result of either improper police activity or the mental instability
7 The People rely on Tompkins and Culton for support, but we agree with defendant that
those cases involved evidence in the form of victim testimony concerning sexual abuse or
physical evidence consistent with sexual abuse, neither of which is present in this case. (People
v. Tompkins (2010) 185 Cal.App.4th 1253, 1259–1260 [the minor’s testimony and her statement
to police sufficient under corpus delicti rule to support six convictions for sex offenses]; People
v. Culton (1992) 11 Cal.App.4th 363, 371–372 [expert testimony about the minor’s vaginal
adhesions and hymen size sufficient under corpus delicti rule to support reasonable inference the
minor was sexually abused].)
11.
of the accused, and the recognition that juries are likely to accept confessions
uncritically.’ [Citation.]
“Viewed with this in mind, the low threshold that must be met before a
defendant’s own statements can be admitted against him makes sense; so long as there is
some indication that the charged crime actually happened, we are satisfied that the
accused is not admitting to a crime that never occurred.” (Jennings, supra, 53 Cal.3d at
p. 368, italics added.) “[I]t is fair … to apply the ‘slight or prima facie’ standard for
purposes of the corpus delicti rule. To hold otherwise would lead to the incongruous
result of permitting a criminal to publicly proclaim his guilt so long as he was able to
successfully hide the body of the victim.” (Ibid.) “‘[T]o require direct and positive proof
of the corpus delicti would be most unreasonable; … the worst crimes are naturally
committed at chosen times, in darkness and secrecy .… [H]uman tribunals must act upon
such indications as the circumstances admit; … more often than not the attendant and
surrounding facts remove all mystery and supply that degree of certainty men are daily
accustomed to regard as sufficient in the most important concerns of life.’ As another
court noted, successful disposal of the victim’s body ‘is one form of success for which
society has no reward.’” (Id. at pp. 368–369.)
Subsequently, the Jones court discussed Jennings and Robbins and stated, “In all
three cases, the victim’s body was found unclothed (or partially clothed) in a location and
condition suggesting the involvement of a criminal agency. In all three cases,
independent evidence of a certain element of a sexual crime was lacking: penetration
necessary for rape in Jennings, a touching of a child with lewd intent in Robbins, oral-
genital or oral-anal contact in this case. As Jennings and Robbins demonstrate, we have
never interpreted the corpus delicti rule so strictly that independent evidence of every
physical act constituting an element of an offense is necessary. Instead, there need only
be independent evidence establishing a slight or prima facie showing of some injury, loss
12.
or harm, and that a criminal agency was involved.” (Jones, supra, 17 Cal.4th at p. 303,
italics added.)
More recently, in Krebs, the court found the corpus delicti for rape and sodomy
was satisfied by circumstantial evidence that when the victim’s body was found, she was
dressed differently than when she was taken from her house. (Krebs, supra, 8 Cal.5th at
pp. 317–318.) In that case, the state of the victim’s bed and evidence she was on the
phone with a friend until 2:46 a.m. indicated she was taken from her house in the early
morning. (Id. at p. 317.) Her mother testified she normally wore a T-shirt and panties to
bed, but she was found clothed in sweatpants and a sweatshirt that her mother testified
she wore on special occasions. (Ibid.) From this minimal evidence, the court concluded
the jury could reasonably infer the victim was dressed differently than when she was
abducted from her house, constituting circumstantial evidence that she “was ‘“disrobed”’
and ‘“covered … again”’ after she was kidnapped.” (Id. at p. 318.) The circumstantial
evidence of rape and sodomy in Krebs is thin, but the court reiterated that independent
evidence “need only make ‘some indication that the charged crime actually happened,’ so
as to ensure ‘that the accused is not admitting to a crime that never occurred.’” (Id. at
p. 317.)
Krebs, Jones, Jennings, and Robbins are capital murder cases and necessarily
involve much more robust evidentiary records than here, but the high court’s corpus
delicti findings were not dependent on the existence of the obvious harm evidenced by
murder. Rather, the corpus delicti for murder was clearly satisfied and the relevant
question was whether there was sufficient independent, or corroborating, evidence to
satisfy the rule where the defendants were convicted of sex crimes and there was no
physical evidence or witness testimony as to physical act of the charged sex crime.
b. Photographs Satisfy Corpus Delicti Rule
This case presents an analogous question. There is no physical evidence or
witness testimony supporting penetration or lewd touching, but, as discussed, the absence
13.
of such evidence is not dispositive of the matter under the law. (Krebs, supra, 8 Cal. 5th
at p. 317; Jones, supra, 17 Cal.4th at p. 303.) In Jones, in addressing the defendant’s
argument that there was no semen in the victim’s mouth evidencing oral copulation, the
court rejected the argument “that the lack of evidence of the specific loss or harm to this
victim is fatal to the establishment of the corpus delicti.” (Jones, supra, at p. 302.) Thus,
we simply ask whether the sexually explicit photographs of the victims in the bathtub are
minimally sufficient to satisfy the corpus delicti rule as to the three charges because it
suggests “the involvement of a criminal agency” (id. at p. 303), “so as to ensure ‘that
[defendant did] not admit[] to a crime that never occurred’” (Krebs, supra, at p. 317).
We reiterate that the evidence may be circumstantial “and need not establish the crime
beyond a reasonable doubt [citations].” (Jones, supra, at p. 301.)
As discussed, the charges are based on defendant’s admissions to “rak[ing]” his
daughters’ vaginas with his fingers while bathing them, which excited him, and, apart
from this statement, the photographic evidence includes shots of defendant’s daughters in
the bathtub with soapy water, unclothed and in sexually explicit poses. If circumstantial
evidence that the victim in Krebs was abducted wearing different clothing than she was
wearing when found is sufficient to support a reasonable inference that she was disrobed
and redressed, thereby satisfying the corpus delicti for rape and sodomy (Krebs, supra, 8
Cal.5th at pp. 317–318), pornographic photos of defendant’s nude daughters in the
bathtub are sufficient to satisfy the corpus delicti for the charged acts of penetration and
lewd touching committed while defendant bathed them. There was only one bathroom in
the residence, so the pornographic photos were necessarily taken in the same location that
defendant bathed his daughters; the children’s ages at the time the photos were taken was
14.
not in dispute;8 and the nature of the nude, explicit photos themselves constituted strong
circumstantial evidence that they were sexually arousing or gratifying for defendant.
(§§ 288.7, subd. (b)/289, subd. (k)(1), 288, subd. (a).) This leaves only penetration or
touching, but “[t]he prosecution need not adduce ‘independent evidence of every physical
act constituting an element of an offense.’” (Krebs, supra, at p. 317, quoting Jones,
supra, 17 Cal.4th at p. 303.)
Given the nature of the photos and the location where they were taken, the photos
are sufficient to show “some injury, loss or harm, and that a criminal agency was
involved.” (Jones, supra, 17 Cal.4th at p. 303, italics added; accord, Jennings, supra, 53
Cal.3d at p. 367.) Nothing further is required under the law. (Krebs, supra, 8 Cal.5th at
p. 317.) We see no meaningful distinction between the absence of evidence of
penetration or lewd touching in this case and the absence of analogous physical evidence
in cases such as Krebs, Jones, Jennings, and Robbins. (Krebs, supra, 8 Cal.5th at p. 317;
Jones, supra, 17 Cal.4th at p. 302; Jennings, supra, 53 Cal.3d at pp. 367–368; Robbins,
supra, 45 Cal.3d at p. 886.)
2. Ramirez Ruiz Distinguishable
The decision in Ramirez Ruiz, relied on by defendant, does not compel a different
result. (People v. Ramirez Ruiz (2020) 56 Cal.App.5th 809 (Ramirez Ruiz).) Citing
Ramirez Ruiz at page 833, defendant argues, “The inference that a crime has been
committed must be of the crime charged and not some different one, even a related one
for which the defendant suffered a conviction.” In that case, the defendant was convicted
of oral copulation or sexual penetration of a child 10 years of age or younger, continuous
sexual abuse of a child under the age of 14 years, and forcible rape of a child under the
8 In Jennings, the unclothed body of a young woman found in a remote location was
sufficient to support an inference of sexual activity. (Jennings, supra, 53 Cal.3d at p. 367.) The
Jennings court also relied on the fact the victim’s jaw was broken to support the inference that
the sexual activity was against the victim’s will. (Id. at pp. 367–368.) However, absence of
consent is not a factor here, where the charges involve sex crimes committed against children.
15.
age of 14 years. (Ramirez Ruiz, supra, at p. 812 [§§ 288.7, 288.5, 261, subd. (a)(1)].)
The independent evidence included the minor’s statement, a physical examination that
revealed a deep notch in her hymen consistent with sexual abuse, and the defendant’s
seminal fluid on her bra. (Ramirez Ruiz, supra, at p. 832.) Critical to the court’s
conclusion that the prosecution had not satisfied the corpus delicti rule with respect to
oral copulation or sexual penetration of a child 10 years of age or younger was the fact
the minor was 11 years old during the relevant time period. (Ibid.) She disclosed to
police that the defendant first penetrated her about three months earlier, which was
approximately five months after her 11th birthday. (Id. at p. 833.) The court explained,
“Although … corpus delicti evidence can be quite slight, we think it a bridge too far to
hold that corpus delicti evidence of sexual abuse identified by the victim as beginning
around a particular time supports the inference that a sexual assault of a different kind
occurred more than five months earlier.” (Ibid.)
The deficiency in Ramirez Ruiz is not analogous to the deficiency defendant
claims in this case. Here, counts 1 through 3 were alleged to have occurred between
January 1, 2012, which corresponded with the first photographs on the memory card, and
July 10, 2017, which corresponded with the date of the burglary during which the
memory card was stolen. The photographs introduced to support the charges for creating
child pornography, which included bathtub photos that were cross-admitted for counts 1
through 3, were taken on various dates in 2013 and 2014. Thus, in contrast with Ramirez
Ruiz, this case does not involve reliance on corroborating evidence that related to events
that fell outside of the date range the crimes were alleged to have occurred in or outside
the age element of the underlying the charges.
3. Conclusion
The pornographic bathtub photos are sufficient to satisfy the corpus delicti rule for
the charges of penetration and lewd touching that occurred while defendant bathed his
daughters. Although this case lacks either physical evidence of penetration or lewd acts
16.
or witness testimony to those acts, the photographs are sufficient to “suggest[] the
involvement of a criminal agency” (Jones, supra, 17 Cal.4th at p. 303), and “‘indicat[e]
that the charged crime[s] actually happened .…’” (Krebs, supra, 8 Cal.5th at p. 317.)
Neither age nor the ability to consent was at issue here; the photographs strongly
evidence the element of sexual arousal or gratification; and given the explicit nature,
location, and dates the photos were taken, they support a reasonable inference that
penetration or lewd touching occurred during the bathing of the victims within the
timeframe of the three charges. (See ibid.) Our conclusion in this regard is consistent
with the corpus delicti rule and the policy underlying the rule.
Further, while the independent evidence offered to prove corpus delicti must be
relevant to the specific charges, we are unpersuaded by defendant’s contention that the
photographs relate only to the child pornography charges. The trial court found
otherwise and defendant does not challenge that ruling on appeal. We express no view
on whether the pornographic photographs of the victims taken in other settings during the
relevant time period would, alone, suffice to satisfy the rule because it is unnecessary to
reach that issue in this case.
Accordingly, we reject defendant’s corpus delicti challenge to his convictions on
counts 1 through 3.
II. Claim Sentence is Excessive Under State and Federal Constitutions
Defendant also challenges imposition of the mandatory indeterminate terms on
counts 1 through 3 on the ground that, as applied to him, the sentences are
unconstitutionally excessive under both state and federal law.9 Defendant, who was
42 years old when sentenced, points to his ineligibility for parole until his mid-60’s; the
absence of any prior criminal record; his below average risk assessment classification; his
9 Defendant raised the issue in the trial court, preserving the claim for appellate review.
(People v. Brewer (2021) 65 Cal.App.5th 199, 212 (Brewer); People v. Baker (2018) 20
Cal.App.5th 711, 720 (Baker).)
17.
service in the military and employment as a legal assistant, evidencing he was a
productive member of society; and his mental health issues, which he suggests might help
explain his conduct. He contends that nothing about him suggests he poses a grave risk
to society, and although he concedes his crimes are considered violent felonies, he points
out that both victims stated he did not harm them physically or mentally and that the
underlying conduct appears to have lasted only seconds. He also contends his sentence is
comparable to those for crimes such as murder and assault on a child causing death under
section 273ab, subdivision (a); is unnecessarily harsh when compared to punishment for
more serious offenses such as attempted premeditated murder, aggravated mayhem,
assault rendering a child comatose due to brain injury or permanently paralyzed under
section 273ab, subdivision (b), and committing a lewd or lascivious act on a child under
14 years of age causing bodily injury; and his sentence is disproportionate when
compared to crimes such as rape of a child under 14 years of age or pandering of a child
under 16 years of age with violence,10 neither of which is punishable by a life sentence.
Defendant requests this court find the sentences on counts 1 through 3
unconstitutional, and direct the trial court to sentence him on count 1 to a determinate
term under section 289, subdivision (d), sexual penetration of an unconscious victim, and
on counts 2 and 3 to determinate terms under section 288, subdivision (a), both of which
provide statutory sentencing triads of three, six, or eight years. (§ 1260.)
The People dispute any entitlement to relief.
A. Standard of Review
“The Eighth Amendment to the United States Constitution applies to the states.
(People v. Caballero (2012) 55 Cal.4th 262, 265, fn. 1.) It prohibits the infliction of
‘cruel and unusual’ punishment. (U.S. Const., 8th Amend., italics added.) Article I,
10 Citing section 261, subdivision (a)(2); section 264, subdivision (c)(1); section 264.1,
subdivision (b)(1); and section 266i, subdivisions (a)(2) and (b)(2).
18.
section 17 of the California Constitution prohibits infliction of ‘[c]ruel or unusual’
punishment. (Italics added.) The distinction in wording is ‘purposeful and substantive
rather than merely semantic. [Citations.]’ (People v. Carmony (2005) 127 Cal.App.4th
1066, 1085.) As a result, we construe the state constitutional provision ‘separately from
its counterpart in the federal Constitution. [Citation.]’ (People v. Cartwright (1995) 39
Cal.App.4th 1123, 1136.) This does not make a difference from an analytic perspective,
however (People v. Mantanez (2002) 98 Cal.App.4th 354, 358, fn. 7), … [citations]. The
touchstone in each is gross disproportionality. (See Ewing v. California (2003) 538 U.S.
11, 21 (lead opn. of O’Connor, J.); Rummel v. Estelle (1980) 445 U.S. 263, 271; People
v. Dillon (1983) 34 Cal.3d 441, 479.) Whether a punishment is cruel and/or unusual is a
question of law subject to our independent review, but underlying disputed facts must be
viewed in the light most favorable to the judgment.” (People v. Palafox (2014) 231
Cal.App.4th 68, 82; accord, Baker, supra, 20 Cal.App.5th at pp. 723, 733.)
B. Analysis
1. California Constitutional Claim
Under California law, “the court’s inquiry properly focuses on whether the
punishment is ‘grossly disproportionate’ to the offense and the offender or, stated another
way, whether the punishment is so excessive that it ‘“shocks the conscience and offends
fundamental notions of human dignity.”’” (In re Palmer (2021) 10 Cal.5th 959, 972
(Palmer), quoting People v. Dillon (1983) 34 Cal.3d 441, 478.) “A claim of excessive
punishment must overcome a ‘considerable burden’ [citation], and courts should give
‘“the broadest discretion possible”’ [citation] to the legislative judgment respecting
appropriate punishment. [Citations.] A punishment does not qualify as constitutionally
excessive unless it is ‘“out of all proportion to the offense.”’” (Palmer, supra, at p. 972,
quoting In re Lynch (1972) 8 Cal.3d 410, 424.)
In accordance with the California Supreme Court’s decision in Lynch, courts
“‘first consider “the nature of the offense and/or the offender, with particular regard to
19.
the degree of danger both present to society.” [Citation.] Next, we compare the sentence
to “punishments prescribed in the same jurisdiction for different offenses which, by the
same test, must be deemed more serious.” [Citation.] Finally, we compare the sentence
“with the punishments prescribed for the same offense in other jurisdictions having an
identical or similar constitutional provision.” [Citation.] The weight afforded to each
prong may vary by case. [Citation.] “Disproportionality need not be established in all
three areas.”’” (People v. Wilson (2020) 56 Cal.App.5th 128, 167–168 (Wilson), quoting
Baker, supra, 20 Cal.App.5th at p. 723; accord, Palmer, supra, 10 Cal.5th at p. 973.)11
Turning to the first prong, defendant has already benefitted from leniency in
sentencing based on the circumstances underlying this case. His exposure to three
indeterminate terms was the result of his convictions for sexual penetration of a child
under 10 years of age and application of the One Strike law sentencing scheme to his two
convictions for committing lewd or lascivious acts on a child under 14 years of age based
on the special circumstance of multiple victims. (§ 667.61, subds. (c)(8), (e)(4), (j)(2).)
However, the trial court stayed defendant’s sentence for sexual penetration under
section 654, imposed a sentence of 25 years to life on count 2, and imposed concurrent
sentences on the remaining counts. Notably, the trial court expressly recognized the
victims did not want their father prosecuted and exercised leniency when it concluded
that a sentence of 25 years to life was “adequate to recognize the gravity of the conduct
here but also take into consideration the unique facts of this particular case.”
Furthermore, in Wilson, the appellate court rejected reliance on factors such as
those cited by defendant, stating, “Rather than suggesting a need for leniency, [the
defendant’s] education and self-proclaimed success in life suggest he was aware of the
11 Defendant does not address the third prong and, therefore, we need not consider that
issue. (Wilson, supra, 56 Cal.App.5th at p. 170 [failure to address second and third prongs of
analysis forfeits those issues]; People v. Reyes (2016) 246 Cal.App.4th 62, 89–90 (Reyes)
[failure to compare sentence to punishment in other states treated as concession of issue].)
20.
severity of his actions and did not embark on his criminal path due to an incomplete
understanding of its severity and effect. A college education and good job are not a ‘free
pass’ to commit heinous acts while avoiding the harshest penalties that apply to those
perceived to be of a lower standing.” (Wilson, supra, 56 Cal.App.5th at p. 169.) In any
event, factors such as the absence of a prior criminal record, service in the military,
employment and low risk assessment score, while favorable, do not outweigh defendant’s
commission of sex offenses against his young daughters. (Ibid.; People v. Gomez (2018)
30 Cal.App.5th 493, 501–502 (Gomez); Baker, supra, 20 Cal.App.5th at p. 725.)
We also categorically reject defendant’s argument that the victims were not
harmed. While the crimes were not forcible, there is no evidence the victims were
physically injured, and the victims denied their father committed crimes against them, the
commission of sex crimes against young children by their father, a fact necessarily found
true beyond a reasonable doubt by the jury, is unquestionably egregious. The jury found
the acts were proven and although the victims supported their father and denied they were
harmed, “California courts have long recognized ‘a strong public policy to protect
children of tender years.’” (Wilson, supra, 56 Cal.App.5th at p. 169; see Baker, supra, 20
Cal.App.5th at p. 725 [“lewd conduct ‘may have lifelong consequences to the well-being
of the child’”].) It is untenable to categorize sex crimes committed against children as
harmless simply because they did not involve force, violence or physical injury.
Finally, although defendant asserts that he suffers from posttraumatic stress
disorder, major depressive disorder, and anxiety disorder, he concedes there is no
evidence he was suffering from the effects of those conditions when he committed his
crimes. Evidence of mental challenges is relevant to the inquiry. (People v. Steskal
(2021) 11 Cal.5th 332, 378–379; Brewer, supra, 65 Cal.App.5th at p. 219.) However, in
this case, information concerning the issue was limited to statements made by defendant
and his wife, and there is no evidence that defendant was suffering from mental health
issues that lessened his culpability in committing the crimes, which he acknowledges.
21.
(Steskal, supra, at pp. 378–379 [considerable lay and expert testimony presented
regarding difficult childhood and longstanding mental health problems but evidence did
not render capital sentence grossly disproportionate]; Brewer, supra, at p. 219
[psychological evaluations and other material submitted by defense considered, but in
balancing aggravating and mitigating factors, 63-year sentence not grossly
disproportionate].)
Regarding the second prong concerning a comparison of sentences in California,
Gomez explained, “Special laws on the subject of sexual abuse of children have been
enacted describing the types of acts that may be deemed criminal sexual misconduct.
These laws ‘“generally operate without regard to force, fear, or consent.”’ (People v.
Reyes (2016) 246 Cal.App.4th 62, 85.) The act of setting prison terms for specific crimes
‘involves a substantive penological judgment that, as a general matter, is “properly within
the province of legislatures, not courts.”’ (Harmelin v. Michigan (1991) 501 U.S. 957,
998.) When considering a claim that a particular sentence [is unconstitutional], we give
substantial deference both to the Legislature’s broad authority to determine the
parameters for the punishments for crimes, and to the trial court’s discretion in imposing
specific sentences.” (Gomez, supra, 30 Cal.App.5th at p. 499.) “It is well within the
prerogative of the Legislature to determine that sex offenses against young children are
deserving of longer sentences than sex offenses against adults or nonsex offenses.
‘“Punishment is not cruel or unusual merely because the Legislature may have chosen to
permit a lesser punishment for another crime. Leniency as to one charge does not
transform a reasonable punishment into one that is cruel or unusual.”’” (Id. at p. 502,
quoting Baker, supra, 20 Cal.App.5th at p. 727.)
Further, the indeterminate terms on counts 2 and 3 are mandated by the One Strike
law, which “‘is precisely tailored to fit crimes bearing certain clearly defined
characteristics.’” (Reyes, supra, 246 Cal.App.4th at p. 89, quoting People v. Estrada
(1997) 57 Cal.App.4th 1270, 1280 (Estrada).) In enacting the sentencing scheme in
22.
1994, the Legislature intended “‘to ensure serious and dangerous sex offenders would
receive lengthy prison sentences upon their first conviction … where the nature or
method of the sex offense “place[d] the victim in a position of elevated vulnerability”’”
(People v. Williams (2024) 17 Cal.5th 99, 117–118), and the scheme “authorizes lengthy
sentences for both ‘recidivist sexual offenders and first time offenders who commit
certain sexual offenses under aggravated circumstances’” (id. at p. 118).
Defendant bears the burden of demonstrating error on appeal and, notably, he
identifies no controlling or persuasive authority finding a sentence of 25 years to life
unconstitutional on similar facts.12 To the contrary, lengthy sentences imposed for
committing sex crimes have been upheld against challenges advanced under the state and
federal Constitutions based on cruel and/or unusual punishment. (E.g., People v. Ellis
(2024) 105 Cal.App.5th 536, 540, 551 [145 years to life under One Strike law for
multiple violations of § 288, subd. (a), against two victims]; Wilson, supra, 56
Cal.App.5th at pp. 134, 170 [45 years to life under One Strike law]; Gomez, supra, 30
Cal.App.5th at pp. 498, 502 [35 years to life for violating §§ 288.7, subd. (b), 288,
subds. (a), (b)]; Baker, supra, 20 Cal.App.5th at pp. 715–716, 727, 733 [15 years to life
12 Defendant’s reliance on the late Justice Mosk’s concurring opinion in People v. Deloza
(1998) 18 Cal.4th 585, 600–601 (conc. opn. of Mosk, J.) for the proposition that a sentence as
lengthy as that imposed here “serve[s] no rational legislative purpose” is misplaced because that
concurring opinion has no precedential value. (People v. Panighetti (2023) 95 Cal.App.5th 978,
1001, citing People v. Byrd (2001) 89 Cal.App.4th 1373, 1383.) Further, defendant’s citation to
Avila for the proposition that “‘[t]here comes a time when the people who populate the justice
system must take a fresh look at old habits and the profound consequences they have in
undermining our institutional credibility and public confidence” and “the time is now” is also
unavailing. (Quoting People v. Avila (2020) 57 Cal.App.5th 1134, 1151, 1152.) In that case, the
defendant’s crimes involved crushing the fruit of a street vendor and the court stated, “Crushing
oranges, even for the purpose of trying to steal or to extort money, is not constitutionally worthy
of the sentence imposed where, as here, the defendant’s criminal history on close examination
cannot bear its share of such a sentence. [¶] Life in prison for destroying fruit, even when done
by someone with a criminal record in the course of an attempted robbery, robs recidivist
sentencing of its moral foundation and renders the solemn exercise of judicial authority devoid of
meaning.” (Id. at p. 1151.) The commission of sex offenses against children is simply not
analogous to the crimes committed in Avila.
23.
for convictions under §§ 288.7, subd. (b), 288, subd. (a)]; Reyes, supra, 246 Cal.App.4th
at pp. 68, 86, 90 [life without possibility of parole under One Strike law for multiple sex
crimes committed during burglary]; Estrada, supra, 57 Cal.App.4th at pp. 1273, 1282
[25 years to life under One Strike law for rape during commission of burglary].)
Defendant offers no persuasive argument that, as applied to him, his sentence of 25 years
to life “‘“is out of all proportion to the offense.”’” (Palmer, supra, 10 Cal.5th at p. 972.)
As stated, the trial court exercised leniency in imposing concurrent sentences, and we
reject the claim that a sentence of 25 years to life for committing sex offenses against
children is unconstitutional under state law.
2. Federal Constitution
“There is considerable overlap in the state and federal approaches. ‘Although
articulated slightly differently, both standards prohibit punishment that is “grossly
disproportionate” to the crime or the individual culpability of the defendant.’ [Citation.]
‘The touchstone in each is gross disproportionality.’” (Baker, supra, 20 Cal.App.5th at
p. 733.) “Outside the death penalty context, ‘“successful challenges to the
proportionality of particular sentences have been exceedingly rare.”’” (Reyes, supra, 246
Cal.App.4th at p. 83.) The analysis begins “‘by comparing the gravity of the offense and
the severity of the sentence’” (Baker, supra, at p. 733, quoting Graham v. Florida (2010)
560 U.S. 48, 60 (Graham)), and “‘can consider a particular offender’s mental state and
motive in committing the crime, the actual harm caused to his victim or to society by his
conduct, and any prior criminal history’” (Baker, supra, at p. 733, quoting Graham,
supra, at p. 88 (conc. opn. of Roberts, C. J.)). Only if “this threshold comparison leads to
an ‘“inference of gross disproportionality”’ do we proceed to ‘compare the defendant’s
sentence with the sentences received by other offenders in the same jurisdiction and with
the sentences imposed for the same crime in other jurisdictions.’” (Baker, supra, at
p. 733, quoting Graham, supra, at p. 60.)
24.
In Gomez, which was also a child molestation case, the Court of Appeal explained,
“The federal Constitution prohibits imposition of punishment that is ‘cruel and unusual.’
(U.S. Const., 8th Amend.; see Robinson v. California (1962) 370 U.S. 660, 666–667.)
The United States Supreme Court has concluded that neither a 25-year-to-life sentence
for stealing three golf clubs nor a 50-year-to-life sentence for stealing videotapes valued
at $153 constitutes cruel and unusual punishment. (Ewing v. California (2003) 538 U.S.
11, 30–31; Lockyer v. Andrade (2003) 538 U.S. 63, 77.) [B]y contrast, [the] defendant
committed acts of sexual molestation against a very young child—with whom he had the
equivalent of a parent/child relationship—to satisfy his own sexual desires. Given the
United States Supreme Court precedent and the nature of [the] defendant’s crimes, we
conclude the sentence imposed did not constitute cruel and unusual punishment under the
Eighth Amendment.” (Gomez, supra, 30 Cal.App.5th at pp. 499–500.)
Similarly, in Baker, the appellate court rejected the defendant’s Eighth
Amendment challenge, explaining, “Although [the defendant’s] insignificant criminal
record and low recidivism score point in his favor, his three separate sexual offenses
against [the victim] and abuse of trust against a vulnerable victim do not. Certainly, a
comparison of all the relevant factors does not lead to an ‘“inference of gross
disproportionality.”’” (Baker, supra, 20 Cal.App.5th at p. 733, quoting Graham, supra,
560 U.S. at p. 60.) Here, analogous to Gomez and Baker, defendant committed three sex
offenses against two young victims, whom he should have instead protected from such
abuse, and although the punishment is harsh, he fails to demonstrate it constitutes
constitutional error under the Eight Amendment.
III. Sentencing Error on Counts 5 Through 18
Finally, the probation report provided that the sentencing triad for count 4,
possession of child pornography, and for counts 5 through 18, using a minor for sex acts,
is 16 months, two years, or three years. The probation officer recommended the trial
court sentence defendant to the middle term of two years on count 4 and to consecutive
25.
terms of eight months, or one-third of the middle term, on counts 5 through 18. The trial
court imposed the recommended terms but ordered the aggregate determinate terms run
concurrently rather than consecutively.
Imposition of concurrent eight-month terms constitutes an unauthorized sentence.
(Quintero, supra, 135 Cal.App.4th at p. 1156, fn. 3.) “Because concurrent terms are not
part of the principal and subordinate term computation under section 1170.1,
subdivision (a), they are imposed at the full base term, not according to the one-third
middle term formula .…” (Ibid.; accord, People v. Catarino (2023) 14 Cal.5th 748, 752;
People v. Neely (2009) 176 Cal.App.4th 787, 798–799.)
We provided the parties an opportunity to brief the issue and the remedy. (Gov.
Code, § 68081.) The parties agree that it was error to impose eight-month terms given
the decision to run the terms concurrently, but they disagree on the remedy. Defendant
states that an order directing the trial court to modify the minutes and the abstract of
judgment to reflect imposition of two-year terms would correct the error without
unnecessary expenditure of judicial resources. The People contend that remand for a full
resentencing is the appropriate remedy given that the trial court did not impose the
maximum sentence.
We cannot correct an unauthorized sentence through issuance of an amended
minute order and abstract of judgment alone (People v. Leon (2020) 8 Cal.5th 831, 855),
but we may modify a sentence on review in some circumstances (§ 1260). In this
instance, however, it is not clear from the record whether the trial court would select
lower or middle terms on counts 5 through 18.13 (People v. Alford (2010) 180
Cal.App.4th 1463, 1473 [sentence modified on review where trial court would have
13 In view of the sentencing exposure on counts 1–3, the prosecution elected not to proceed
with proving the aggravating sentencing factors alleged in the amended information. (§ 1170,
subd. (b)(2).)
26.
“undoubtedly” imposed middle term].) Therefore, it is necessary to vacate the sentences
on counts 5 through 18 and remand the matter for resentencing.
DISPOSITION
The eight-month sentences on counts 5 through 18, imposed under the one-third of
the middle term formula set forth in section 1170.1, subdivision (a), are vacated as
unauthorized, and this matter is remanded for resentencing. Following resentencing, the
trial court shall issue an amended abstract of judgment and forward it to the appropriate
authorities.
The judgment is otherwise affirmed.
MEEHAN, J.
I CONCUR:
DETJEN, Acting P. J.
27.
SNAUFFER, J., Dissenting.
Patrick Eugene Fuller admitted to law enforcement that he sometimes cleaned the
vaginas of his daughters, K.F. and S.F., and that he enjoyed doing so. He was convicted
of, among other things, one count of sexual penetration of a child 10 years old or younger
(count 1) and two counts of committing a lewd or lascivious act upon a child under
age 14 (counts 2 and 3). Besides his confession, the only evidence introduced to support
these charges was photographs that were sexual in nature, including numerous
photographs of his minor daughters completely nude. While many of the photographs are
disturbing, as to the convictions on counts 1, 2, and 3, they do not show the fact of injury,
loss, or harm and criminal agency as its cause. As the prosecution failed to prove the
corpus delicti, I respectfully dissent.
According to the majority, the sexually explicit photographs Fuller took of his
children are sufficient evidence of the fact of injury, loss, or harm and the existence of a
criminal agency as its cause. (Maj. opn. ante, at pp. 14–15.) This is so because there was
only one bathroom in Fuller’s residence, some of the photographs show his children in
the bathtub with soapy water, and some of the photographs show the children in various
sexually explicit poses. (Ibid.) Thus, the majority concludes that these photographs are
circumstantial evidence indicative of sexual arousal or gratification, and they satisfy the
corpus delicti. (Ibid.)
To satisfy the corpus delicti rule, the prosecutor was required to prove the fact of
injury, loss, or harm and criminal agency as its cause. (People v. Ramirez Ruiz (2020)
56 Cal.App.5th 809, 829 (Ramirez Ruiz).) However, none of the photographs depict
Fuller touching his daughters inappropriately. While the majority correctly notes that
direct evidence is unnecessary, the photographs fail to show that Fuller touched or was
about to inappropriately touch his daughters. In fact, the People do not contend, nor is
there evidence, that the alleged criminal conduct occurred specifically on the date(s) he
took the photographs of his children. The information alleged the crimes occurred
sometime between January 1, 2012, and July 10, 2017, while the photographs were taken
in 2013 and 2014.
Moreover, contrary to the majority’s conclusion, the fact that some of the
photographs show Fuller’s daughters bathing is insufficient. Fuller admitted to “raking”
his fingers through his daughters’ vaginas when he showered with them, not when he
took a bath with them. Additionally, the photographs do not show Fuller cleaning his
daughters.
Given the above, the photographs are insufficient to show the injury, loss, or harm
at issue in counts 1, 2, and 3. While it is reasonable to infer from the photographs that
Fuller is attracted to children, going from this inference to the inference that he also
inappropriately touched his daughters’ vaginas is “a bridge too far.” (See Ramirez Ruiz,
supra, 56 Cal.App.5th at p. 833 [“Although … corpus delicti evidence can be quite slight,
we think it a bridge too far to hold that corpus delicti evidence of sexual abuse identified
by the victim as beginning around a particular time supports the inference that a sexual
assault of a different kind occurred more than five months earlier.”]
In reaching a contrary conclusion, the majority relies on People v. Krebs (2019)
8 Cal.5th 265 (Krebs); People v. Jones (1998) 17 Cal.4th 279 (Jones); People v. Jennings
(1991) 53 Cal.3d 334 (Jennings); and People v. Robbins (1988) 45 Cal.3d 867 (Robbins).
(Maj. opn. ante, at pp. 11–13.) However, in my view, these cases are inapposite.
In Krebs, the defendant was convicted of (among other things) forcible rape and
sodomy. (Krebs, supra, 8 Cal.5th at p. 273.) On appeal, the court held that the
“circumstantial evidence that [the victim] was ‘ “disrobed” ’ and ‘ “covered … again” ’
after she was kidnapped” was sufficient to satisfy the corpus delicti of both rape and
sodomy. (Id. at p. 318.)
In Jones, the defendant was convicted of (among other things) forcible oral
copulation. (Jones, supra, 17 Cal.4th at p. 291.) The court held: “The state of the
victim’s clothing (no underwear or shoes) and the forensic evidence (semen in the
2.
victim’s vagina and on her external genitalia and anus) indicates multiple sexual acts
occurred. That the victim was forcibly abducted, beaten, shot in the head, and left by the
side of the road for dead gives rise to an inference that the sexual activity that occurred
was against the victim’s will. This circumstantial evidence of multiple forcible sexual
acts sufficiently establishes the requisite prima facie showing of both (i) an injury, loss or
harm, and (ii) the involvement of a criminal agency.” (Id. at p. 302.)
In Jennings, the defendant was convicted of (among other things) forcible rape.
(Jennings, supra, 53 Cal.3d at pp. 347–348, 366.) On appeal, the court held that the
evidence satisfied the corpus delicti. (Id. at p. 369.) The victim’s unclothed body was
found in a remote locale, which gave rise to an inference that sexual activity occurred.
(Id. at p. 367.) Additionally, her body “was found in a location where her lack of
clothing was not easily explainable, … she was dead, and … she had suffered a broken
jaw,” which gave rise to an inference “that whatever sexual activity occurred, it occurred
against [her] will.” (Id. at pp. 367–368.)
In Robbins, the defendant was convicted of murder and kidnapping, and the jury
found true that the murder was committed during a kidnapping and a lewd and lascivious
act on a minor. (Robbins, supra, 45 Cal.3d at p. 871.) The court held the corpus delicti
of the lewd and lascivious act on a minor special circumstance had been satisfied based
on the following: “[the defendant] was seen by one witness riding a motorcycle in the
area of (and on the date of) the victim’s disappearance, and the victim was last seen by
another witness riding a motorcycle with a man matching [the] defendant’s description;
no clothes were found at the scene of the crime; defendant’s own experts described his
‘primary diagnosis’ as pedophilia; his admission of similar sexual conduct as to the very
similar Texas crimes was confirmed by scientific evidence; and finally, the physical
evidence of the homicide lends reliability to other aspects of defendant’s confession,
namely, his description of the lewd and lascivious conduct.” (Id. at p. 886.)
3.
Notably, in Jones, Jennings, and Robbins, “the victim’s body was found unclothed
(or partially clothed) in a location and condition suggesting the involvement of a criminal
agency.” (Jones, supra, 17 Cal.4th at p. 303.) Krebs is similar in that there was evidence
that the victim had been kidnapped and disrobed. (Krebs, supra, 8 Cal.5th at p. 318.)
Here, there is no similar evidence. While I do agree that these cases stand for the
proposition that to satisfy the corpus delicti, “[t]he prosecution need not adduce
‘independent evidence of every physical act constituting an element of an offense’ ”
(Krebs, supra, 8 Cal.5th at p. 317), in my view the photographs are not evidence of any
physical act constituting an element of the offense.
Accordingly, the prosecution did not satisfy its burden and I would reverse the
convictions on counts 1, 2, and 3.
SNAUFFER, J.
4.