P. v. Schreiber

Filed 5/30/06  P. v. Schreiber CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Siskiyou)

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     Defendant approached three little girls, told them he was Santa Claus and gave them gifts; he then grabbed one of the girls and told her to get into his car.  A jury convicted defendant of attempted kidnapping for purpose of child molestation (Pen. Code, §§ 664/207, subd. (b)), false imprisonment by violence (Pen. Code, § 236), annoying or molesting a child (Pen. Code, § 647.6, subd. (a)), and battery (Pen. Code, § 242).  Sentenced to four years in prison, he appeals.  He contends there is insufficient evidence of felony false imprisonment; the conviction for annoying or molesting a child must be reversed due to conflicting jury instructions; the concurrent sentences for the two misdemeanors must be stayed pursuant to Penal Code section 654; and there is insufficient evidence of a sexual motive or intent for the attempted kidnapping and annoying charges.  The Attorney General concedes the sentences on the misdemeanors must be stayed.  We accept this concession and otherwise find no merit in defendant's contentions.

FACTS

     On May 24, 2004, Officer Raymond Boutin was dispatched to the Fairchild Medical Center in Yreka.  When he arrived, he saw Drew Sproston throwing things out of a car.  Sproston said he was looking for sharks and appeared mentally unstable.   Defendant came out, identified himself as a doctor, both an M.D. and a Ph.D., and said Sproston had mental problems and he would take care of him.

     Two days later, Officer Boutin was dispatched to Dr. Carter's office in Yreka to do a welfare check on one of the employees.  Defendant was there trying to see Dr. Carter, who was in Mt. Shasta City that day.  Defendant had made the doctor's employee fearful.  Officer Boutin told defendant to leave and defendant did.  Defendant mentioned buying a building for his mining company.

     At about 4:30 p.m. on May 29, 2004, Linda Bonebrake, who lived on Dusty Lane, was on the phone when defendant banged at her door, causing her dogs to bark.  He asked if there was anything to rent or buy on the street.  She said no.  Defendant asked about the vacant house at the end of the cul de sac.  Bonebrake replied it was not vacant, it was a vacation home. 

     A short time later, defendant drove up to Karen Simonson's home on Dusty Lane.  She spoke to him through a window.  He said he was looking to buy a house.  When she told him there were no houses for sale, defendant said he knew there was and he wanted to know where the house was.  He scared Simonson.  Defendant told her Bonebrake had been rude to him; he was upset and thought Bonebrake had lied.  He asked Simonson if she had children and their ages.  Defendant took forever to leave; he sat in his car for a long time and stopped before the end of the drive.  Simonson had the impression defendant was looking for children.

     That afternoon V.O., referred to at trial as grandma, took her grandchildren, eight-year-old K. and eleven-year-old V., and their eleven-year-old friend C. to Home Depot.  The store was having a promotion where children could pot a plant and receive a Home Depot apron.  Thereafter, the girls were riding their bikes on the Dusty Lane cul de sac, wearing their aprons.  Defendant approached in a white Cadillac.

     Defendant told the girls he was Santa Claus.  They asked what Santa was doing in California.  He explained he was on vacation; his beard was short because it was not yet Christmas.  He named all his reindeer and said the reindeer gave him the scratches on his hands.  K. asked where the presents were.  Defendant gave K. a jump rope; he gave the other girls glass cleaner and rags.  When K. dropped the jump rope, defendant grabbed her wrist and told her to get in the car.

     The other girls hit defendant and screamed until defendant let go of K.  The girls got on their bikes and rode to grandma's, who had heard the screaming.  The younger V. told grandma that a man calling himself Santa Claus had tried to take K.; she had the license plate number to his car.

     Grandma put the girls in her truck and drove around looking for defendant.  Grandma blocked the road and confronted defendant; she told him his actions were inappropriate.  Defendant did not deny grabbing K., but said it was innocent.   Defendant told her he had purchased a neighboring house.  Grandma said that was not true.  The girls were getting scared, so Grandma left.  She took the girls home and then called the police.

     Clyde Davis, the fire chief, was on his way home when he came upon defendant stopped in the middle of the road.  Davis honked and went around him.  Defendant then showed up at Davis's house and said he was looking for property to buy.  Davis offered to take him to a property; he intended just to get a flyer, but defendant wanted to go inside.  During the ride, defendant mentioned he had not had sex in a long time; he wore a catheter which made him incapable of having sex.

     Carolyn Lopez and her family lived at the house Davis showed defendant.  As she showed defendant the house, he talked constantly about off-the-wall things.  She thought something was wrong, particularly when defendant showed considerable interest in her children, petting their heads and asking where their bedrooms were.  His attention to her children bothered her so she asked her oldest son to take his sisters outside.  Lopez did not think defendant's intentions were honorable; he showed too much interest in her children.

     Meanwhile, Chief Davis received a communication from law enforcement; they wanted defendant taken back to the Davis's residence.  When Davis and defendant returned, law enforcement was waiting.  Defendant was given his Miranda warnings (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]).  He said he was looking at property; he met three girls and gave them presents, but denied touching them.  He told them he was Santa.    An officer drove by with the girls in his car.  The girls identified defendant as the man who grabbed K.

     Pursuant to a warrant, the police searched defendant's car.  They found children's clothes and toys, and pornographic advertisements; there were sealed condoms in the glove compartment.

     After a Penal Code section 1368 evaluation, the trial court granted defendant's request to represent himself at trial.   Defendant told the court he was bi-polar.  At trial he was frequently distracted and discussed irrelevant matters at great length.  He admitted he told the girls he was Santa Claus, but he denied grabbing anyone.  He claimed someone planted the prophylactics in his car and the pornographic material was unsolicited mail.  â€