P. v. Levan
Filed 6/26/12
P. v. Levan CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
PIERRE MICHAEL
LEVAN,
Defendant and Appellant.
E053495
(Super.Ct.No.
SWF027530)
OPINION
APPEAL
from the Superior Court
of
County. Albert J.
Wojcik, Judge. Affirmed.
Richard
de la Sota, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Garrett Beaumont and
Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant
Pierre Michael Levan appeals from his conviction of 48 counts of forcible lewd
acts on a child under the age of 14 years (Pen. Code,
support his conviction on 46 of those counts.
We find no error, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
Prosecution Evidence
When
Jane Doe 1, born in March 1988, was nine years old, she and her two younger
brothers moved in with defendant and his wife, Karen Levan, after the children
were removed from their parents’ home by Child Protective Services. Karen was the cousin of Doe 1’s
grandmother. Doe 1 has a learning
disability but graduated from high school after taking special classes. She was 22 years old at the time of trial.
Within
a couple months of the children moving in, defendant came into Doe 1’s
room. He touched her, told her she was
pretty, and said, “[T]his is, like, what girls and—and the men do
together . . . .” He
rubbed her arms, back, and chest and then took off her clothes. He told her to get on the bed and that
everything would be okay. He got on top
of her and inserted his penis into her vagina.
Doe 1 tried to push him off and yelled and cried for him to stop because
it hurt. Defendant said it would hurt,
but then it would be “over with.”
Defendant told Doe 1 that if she told anyone what had happened, he would
go to jail, and she and her brothers would be separated and would never see
each other again. Doe 1, as the oldest
child, felt responsible for her brothers.
She did not tell anyone because she was afraid she would not see her
brothers again.
Doe
1 testified that when she was 12 years old, defendant told her he wanted to
talk to her and took her into his bedroom, where he told her to perform oral
sex on him. She said she did not want
to, but he told her he was her father, and she had to “listen to him.” He pulled down his pants, and she put her
mouth on his penis until he ejaculated.
She testified that was the first time that she remembered he had asked
her for oral sex.
Doe
1 was asked if there had been other sexual incidents with defendant between the
above-described incidents, and she replied, “Not that I remember.” When asked if she and defendant had
“intercourse” between those two incidents, she replied, “Yeah. But I don’t remember at what age it
was.” She further testified, “There was
something else that happened. I just
don’t remember the age, and I don’t really remember, like, how it all went
down. But I do remember that there was [
remember, like, that much in detail.”
When asked if the “other times” involved sex with defendant, she
replied, “Yes, or made me perform oral sex on him.” When asked if those other times had taken
place between the two described incidents, she replied, “It might happen. I just don’t remember.”
When
Doe 1 was 14 years old, she went to a convention in Palm
Springs with defendant, where they stayed in a
hotel. She took a shower after swimming,
and when she got out of the shower, defendant told her to lie on the bed. She did so, and defendant orally copulated
her. She said she had to use the bathroom
and got up to do so. When she returned,
defendant again tried to orally copulate her, but she refused to let him. She told him to stop, and he did.
Doe
1 was asked if there were any other “instances of sexual acts” that occurred
after the Palm Springs incident, and she responded, “No, not really, I don’t remember it, like, in detail. But I do remember there was [
happened. Like, he made me—other times
that he made me perform oral sex and all that stuff. But I just don’t remember the ages and the
dates and all that stuff.” She testified
defendant “stopped making [her] do sexual favors” when she was 16, although he
still touched her sometimes. The sex
acts had occurred with defendant “[a]lmost every time” Karen left the house,
which was “pretty often” and “[p]robably every couple of
months . . . .” When
asked if she had told the police that the sex acts occurred about 10 times a
month, Doe 1 replied, “I don’t remember.
It was probably less than that.”
She further testified the acts had not occurred every month and
sometimes occurred more frequently than at other times.
When
Doe 1 was 19, defendant and his wife went to Oregon while Karen’s son stayed
with Doe 1 and her brothers. When
defendant and his wife returned, Karen kicked Doe 1 out of the house because
Doe 1 had been seeing a friend of whom Karen did not approve. Doe 1 went to live with her
grandparents. Karen let her return a few
weeks later so she could complete classes.
Just after Doe 1 turned 20, she and Karen got into an argument, and
Karen again told her to leave.
Doe
1 moved in with her boyfriend, and she told him what had happened with
defendant. She also told her mother and
finally made a statement to the police in June 2008. Before that, Doe 1 had never told anyone
about the molestations.
Deputy
Sheriff Robert Wilson testified that Doe 1 made a statement to him in July
2008. She said defendant had molested
her about 10 times a month when she was between the ages of nine and 16. She said she felt extreme pain the first four
or five times they had intercourse.
Sergeant Joseph
Greco, a child abuse investigator, testified that she told him defendant had
molested her about 10 times a month “during the entire period from 9 to
16.” She said she had been afraid that
if she told anyone, her brothers would be taken from the home. Sergeant Greco had her make a pretext
telephone call to defendant, and defendant told her he didn’t know what she was
talking about.
Sergeant
Greco observed an interview of defendant in August 2008. Defendant first denied that any improper
contact had occurred between him and Doe 1.
However, when asked if there was a truthful number of times he had had
sexual relations with Doe 1, he replied, “25, I guess,” and “Well, try 25 . . . .” He again denied having intercourse with her
but then said he had had intercourse with her 10 or 15 times and oral sex 10 or
15 times. When asked who had been on
top, defendant responded, “I guess me on top, if it happened.” Defendant said Doe 1 had been 15 when those
events occurred and then said she had been between 16 and 18.
Jane
Doe 2, born in March 1983, knew defendant and his wife through their activities
at the local Moose Lodge. Doe 2 started
volunteering at the lodge when she was 11 or 12 years old, and she visited
defendant’s home with her family. When
she was 12 or 13, she and defendant “ended up kissing” while they were at the
lodge. After that, there was physical
contact almost every time they saw one another, which was “[a] couple of times
a week.” From the time Doe 2 was 12 or
13 until she was 14 or 15, defendant touched her breasts, orally copulated her,
and penetrated her vagina with his finger and penis. The activities “[f]or the most
part . . . were consensual . . . .” Doe 2 knew Doe 1, and on one occasion,
defendant encouraged the two girls to kiss, which they did. When Doe 2 was 14 or 15, she told her father
about her activities with defendant, and her father would not let her go to the
lodge or to defendant’s house again, although he did not call the police. Doe 1 once saw defendant kissing Doe 2.
Dr.
Laura Brodie, a clinical and forensic psychologist, testified about child
sexual abuse accommodation syndrome.
Defense Evidence
Doe
1’s brother, C., testified that he and his brother and sister had moved in with
defendant when C. was four years old, and defendant was the only father he had
ever known. C. had a good relationship
with Doe 1 until she accused defendant “of doing something that he didn’t
do.” The family lived in a double-wide
trailer, and C.’s room was about two feet from Doe 1’s room. Defendant was a truck driver, and he was at
work from about 3:00 a.m. until 5:00 or 6:00 p.m. weekdays and some Saturdays. Doe 1 never told C. that anything had happened
between her and defendant, but she did tell him that she was going to “get
back” at defendant for “kicking her out” of the home.
Doe
1’s brother, J., testified that defendant had adopted him when he was three
years old. He never saw defendant touch
Doe 1 in an inappropriate way.
Defendant’s
grandson, Jonathan W., testified that he had lived with defendant and Karen for
a couple of years when he was about 16.
Doe 1 also lived there for about a year of that time, and Jonathan W.
never saw defendant do anything inappropriate with her.
Jonathan
W.’s sister testified that she had also lived with defendant and had shared a
room with Doe 1 for a few months.
Defendant never acted strangely with her, and she had never seen him act
strangely with Doe 1.
Defendant’s
neighbor, Linda Post, testified that she had known defendant and Karen for more
than five years. She had never seen
anything wrong happening with the children who lived with defendant.
Karen
testified that she and defendant had been married for almost 24 years. Thirteen years earlier, Karen’s cousin had
asked Karen to take in the cousin’s three grandchildren. Karen started having problems with Doe 1
“getting a little bit too wild” after Doe 1 returned from the Job Corps at age
19. When Doe 1 was 20, she began to
resist doing chores, and Karen told her to leave if she did not like the
rules. Doe 1 immediately packed and
moved in with her boyfriend. About four
months later, Doe 1 made the allegations about defendant. Karen knew Doe 2 well and knew she had made
similar allegations about defendant; those allegations were untrue. Doe 2 was “a troubled girl” who had had three
children taken away from her. Karen was
unaware that defendant had told a deputy he had sexual relations of different
kinds with Doe 1 about 25 times when she was 15 and 16 years old.
Defendant
testified in his own behalf. He denied
that he had molested Doe 1. He claimed
that during his interview with the police, he had given a number only after the
officer kept pushing him. He believed
that if he gave the officer a number, the incident would “go away,” so he made
up a number off the top of his head.
Defendant claimed Doe 1 had made up the allegations to get revenge for
being kicked out of his house and because she was instigated by her biological
family. He also believed Doe 1 and Doe 2
had conspired to make up allegations against him.
Defendant
testified he had known Doe 2 through her family’s involvement with the Moose
Lodge. Defendant denied ever having any
sexual activity with Doe 2.
Verdict and Sentence
The
jury found defendant guilty of 48 counts of forcible lewd and lascivious
conduct on a child under the age of 14 (§ 288, subd. (b)(1)). The trial court sentenced him to 48
consecutive eight-year terms in prison.
III. DISCUSSION
Standard of Review
When
a criminal defendant challenges the sufficiency of the evidence to support a
conviction, this court “review[s] the whole record in the light most favorable
to the judgment . . . to determine whether it discloses
substantial such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.” (
576.)
Sufficient Evidence Supported the Jury’s Verdicts
In
People v. Jones (1990) 51 Cal.3d 294,
our Supreme Court held that child molestation convictions may be based on
“generic” or nonspecific testimony. (
with the victim or has continuous access to her, “the victim typically testifies
to repeated acts of molestation occurring over a substantial period of time
but, lacking any meaningful point of reference, is unable to furnish many
specific details, dates or distinguishing characteristics as to individual acts
or assaults.” (Id. at p. 299.) Moreover,
the court stated, “testimony describing a series of essentially
indistinguishable acts of molestation
is frequently the only testimony forthcoming from the victim. To hold that such testimony, however credible
and substantial, is inadequate to support molestation charges would anomalously
favor the offender who subjects his victim to repeated or continuous
assaults.” (Id. at p. 300.) Thus, the
court held, “[E]ven generic testimony (e.g., an act of intercourse ‘once a
month for three years’
outlines a series of specific, albeit undifferentiated, incidents, each of which amounts to a separate offense, and criminal sanction.” (
act or acts committed with sufficient specificity, the number of acts with
sufficient certainty to support all the counts alleged, and the general time
period during which the acts took place.
(Id. at pp. 315-316.)
In
People v. Mejia (2007) 155
Cal.App.4th 86, 96 (Mejia), on which
defendant relies, the court held the evidence was insufficient to support the
defendant’s conviction of continuous sexual abuse under section 288.5, which
requires that the defendant engaged in “‘three or more acts of substantial
sexual conduct’” with a child under 14 years of age over a period of at least
three months. (Mejia, supra, at pp. 94,
95.) The defendant was charged with acts
occurring “‘on or between June 1, 2004 and September 17, 2004,’” and
the victim testified the defendant had molested her 10 times in June and July
and at least twice in September, and the abuse had not occurred every
week. (Id. at p. 95.) On appeal,
the court held that although the jury could reasonably infer that “defendant’s
abuse began sometime in June and continued to some date in
September . . . the jury could only speculate that the
first incident occurred early enough in June to satisfy the 90-day requirement
expiring on September 17, 2004.” (
prosecution had proved that the defendant committed the requisite number of
sexual acts within a period of at least three months. (Mejia,
supra, 155 Cal.App.4th at p.
95.) Here, Doe 1 told Sergeant Greco
that defendant had molested her about 10 times a month “during the entire
period from 9 to 16.” At trial, she testified the acts had
included intercourse and oral sex. That
evidence satisfies the standards announced in Jones. The jury could
reasonably conclude at least 48 acts had occurred when Doe 1 was between the
ages of 9 and 13 so as to support defendant’s convictions under section 288,
subdivision (b). The fact that Doe 1
could not remember at trial the number of acts or the times they occurred is of
no moment. The jury was entitled to
consider her prior inconsistent statements to the officers as substantive
evidence (see, e.g., People v. Brown (2004)
33 Cal.4th 892, 914), and that evidence supports the jury’s verdicts.
This
case is substantially similar to People
v. Matute (2002) 103 Cal.App.4th 1437, in which the defendant was convicted
of 15 counts of forcibly raping his daughter.
The daughter testified as to one specific incident on her 16th birthday
and testified that before that, the defendant had forced her to have sexual
intercourse with him “‘a couple of times a week’” between August 1999 and July
2000; once she had become pregnant, and he had forced her to have an abortion;
when she had resisted the intercourse, he had beaten her and told her that as
her father, he could do whatever he wanted.
(Id. at pp. 1440-1441.) The court held that the evidence was
sufficient to support the jury’s verdict on all 15 counts. (Id.
at p. 1447.) Here, likewise, we find no
error.
IV. DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
RICHLI
J.
KING
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise noted.
