P. v. Simon
Filed 3/20/13 P. v. Simon CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID
SIMON,
Defendant and Appellant.
A133701
(Solano County
Super. Ct.
No. VCR203509)
This
is an appeal from the conviction by jury of defendant David Simon of five
felony offenses related to his sexual
abuse of a minor. We affirm.
FACTUAL
AND PROCEDUREAL BACKGROUND
On
June 17, 2010, a
consolidated and amended information was filed alleging defendant engaged
in: (1) oral copulation and sexual
penetration with D.G., a minor ten years of age or younger, on or about and
between May 10 and May 15,
2009 (Pen. Code, § 288.7, subd. (b)
(count one); (2) sexual intercourse and sodomy with D.G., a minor ten
years of age or younger, on or about and between May 10 and May 15, 2009 (§ 288.7,
subd. (a)) (count two); (3) sexual intercourse and sodomy with D.G., a
minor ten years of age or younger, on or about and between January 1, 2007 and December 31, 2008 (§ 288.7, subd. (a))
(count three); (4) sexual intercourse and sodomy with D.G., a minor ten
years of age or younger, on or about and between January 1, 2007 and
December 31, 2008 (§ 288.7, subd. (a)) (count four); (5) oral
copulation and sexual penetration with D.G., a minor ten years of age or
younger, on or about and between January 1, 2007 and December 31,
2008 (§ 288.7, subd. (b)) (count five); (6) continuous sexual abuse
of D.G., a child under age 14, while defendant resided with and had recurring
access to the child on or about and between January 1, 2007 and
May 15, 2009 (§288.5, subd. (a)) (count 6); and (7) possession or
control of child pornography on or about and between October 16, 2008 and
July 2, 2009 (§ 311.11, subd. (a)) (count 7). The continuous sexual abuse charge in count
six was thereafter dismissed, and the
count seven was renumbered as count six.
I. The Jury Trial.
Trial
by jury began on August 2, 2011, at which the victim, D.G., born in
May 2000, testified. Also testifying
were D.G.’s mother, S.T., another minor, J.C., who lived with defendant during
the relevant time, and several expert and police witnesses. The following facts were revealed in their
testimony.
A. Crimes on or about
January 1, 2007 to December 31, 2008 (counts 3-5).
D.G.,
her mother and siblings lived with defendant at his home in Vallejo for a few
years from the time she was about seven years old. D.G. enjoyed living there because defendant
was nice to her and she had many friends in the area.
D.G. did not like, however, when defendant
touched her, something that began occurring soon after her family moved into
his house. Defendant touched her so many
times D.G. was unable to recall particular instances, although it occurred
often when she was between seven and nine years old. D.G. told no one about the touching because
she feared defendant would harm her or her family, although defendant never
said he would do so.
name="_ftnref3" title="">[3]
When
asked what part of her body defendant touched, D.G. responded: “My private and my butt.†She then added “my mouth.†The first and only time defendant put his
“private†in D.G.’s mouth he told her to “suck it like a lollypop.†She was scared, but did what he said and,
eventually “white stuff†came out of his private. Afterward, defendant told D.G. to brush her
teeth, which she did.
D.G.
did not recall how many times defendant put his private in her private, but it
was more than once and probably more than five times. Sometimes when this occurred, defendant took
off D.G.’s clothes, which she did not like. When defendant put his private in
her private, it hurt. Defendant would
usually moan and, more than once, white stuff came out. She knew what defendant was doing was wrong,
but she did not tell him to stop.
Defendant
also put his private part of the way into her butt and moved it around. This occurred more than twice. Before
defendant did this, he made D.G. shower.
Sometimes, D.G. felt like defendant was humping her, which she knew
meant moving around on top of her.
D.G.
could not recall the last time defendant had touched her, but she believed it
“probably†was when she was nine years old.
9, 2009, that included an image of her schoolwork at defendant’s house. D.G. recalled being at defendant’s house and
doing her homework on that date, and also recalled being at his house after
that date. No one besides defendant had
ever touched her inappropriately.
On
June 10, 2009, D.G. underwent an MDIC interview after admitting to her
mother, S.T., that defendant had touched her many times in the past. A video of this interview was played for the
jury. After beginning the interview by
telling the interviewer the difference between the truth and a lie, D.G. stated
that she was being sent there because “Somebody touched me.†When asked who touched her, D.G. responded
defendant touched her when she was seven.
When asked how many times, she responded: “I can’t count them.â€
D.G.
also told the interviewer that, when she was eight and defendant was
babysitting her and her brother, defendant put his private in her mouth, butt
and private. During this occasion, she
and defendant were in an upstairs room, and defendant told her to get on the
floor and remove her pajama bottoms, which she did. At this point, defendant began humping her,
penetrating her, and forcing her to orally copulate him. Defendant then told D.G. to brush her teeth
and go to the living room before her brother awoke.
D.G.
recalled one other instance, when she was eight, when defendant put his private
in her butt. However, defendant put his
private in her private “a lot of times†when she was eight, usually at his
house. Defendant had also done this to
D.G. “[a] lot of times†when she was seven, but these events occurred at his
“old house,†which she described as an apartment. D.G. then volunteered that defendant “made me
get on top of him and he started – he started going—like holding on my waist
and start going up and down.†When this
occurred, defendant was clothed and did not actually put his private in her
private.
D.G.
also shared that defendant once took her to McDonalds for breakfast and told
her, “ ‘I’m not going to do that again.’ But he – he did it again, he
lied.†When asked whether defendant ever
asked her not to tell anyone about the touching, D.G responded: “He said, If I um, don’t do that, he’ll kill
my family.â€
B. Crimes on or about May 10, 2009 to
May 15, 2009 (counts 1-2).
When D.G. was
asked by the interviewer when defendant last touched her, D.G. said it was in
May of 2009, the 10th or 11th, just before her birthday, at defendant’s
Vallejo house before they left for a weekend trip to Reno. D.G. explained that she spent the night at
defendant’s house with her younger sister, a 13-year-old girl named J.C., and
her nine-year-old cousin.
name="_ftnref5" title="">[5] That night, while watching a movie in
defendant’s bedroom on the bed, defendant told both D.G. and her cousin to take
off their clothes. D.G. took off her
pajama bottoms, not her shirt, and defendant “started doing nasty stuff,†first
to D.G.’s cousin, then to her. D.G. saw
defendant put his private in her cousin’s mouth and “hump†her. He then approached D.G, humping her, putting
his private part of the way in her private and then in her mouth. D.G. demonstrated how far defendant
penetrated her. D.G. also stated that
white stuff came out of his private and a little bit got on her tongue. Defendant then told her to go brush her teeth
and then to put her clothes back on, which she did. The next day, they traveled to Reno, where
nothing else happened.
Later,
at trial, D.G. confirmed that, in May 2009, around her May 14th birthday,
defendant took D.G., her younger sister, and J.C. to Reno for the weekend to
attend a birthday party for his stepdaughter.
Defendant picked up D.G. from a relative’s house, and took her to his
house in Vallejo, where they spent the night before leaving the next day for
Reno. D.G., her younger sister and J.C.
were all present at defendant’s house.
Before this weekend, defendant had touched D.G. many times, but she
still wanted to go with him to Reno, but was unsure why.
her during their weekend trip, either before or after they arrived in
Reno. D.G. did recall, however, telling
a police representative when she was probably nine that something had happened
at defendant’s Vallejo house the night before they left for Reno, although
later she told defense counsel she did not recall telling police this
information. Nor did she recall telling police defendant had also put his
private in her nine-year-old cousin’s mouth and private, as her cousin was not
there that weekend and she had never seen defendant inappropriately touch her
cousin.
When
D.G. returned from Reno, her mother, S.T., noticed she “had an attitude†and
asked her if something had happened.
S.T. later became suspicious that D.G. was being sexually molested after
finding a dark brown stain in the underwear D.G. had taken on the trip. D.G.’s mother had been sexually molested as a
child, and recognized D.G.’s attitude changes might stem from being molested.
anyone had asked D.G. this question. At
first, D.G. lied and said no. However,
she eventually told her mother the truth, that defendant had touched her,
because she wanted her mother to stop crying.
Among other things, D.G. told her mother that
defendant had touched her a lot of times, including when she and her sister
spent the night with him in Vallejo before leaving for their Reno trip. Specifically, D.G. told S.T. that defendant
had humped her butt with his pants up, then fondled her. D.G. cried when telling her this, but then
seemed relieved. S.T. also cried,
because defendant was like an uncle to them.
The
next day, S.T. took D.G. to the emergency room for an examination. S.T. also called defendant, cursing at him
and asking: “Why you did this to my
daughter?†S.T. also recalled speaking
to police, but she was unsure when this first occurred.
D.G.
recalled later talking to several police officers about the weekend of the Reno
trip. Talking to the officers was “not
really†fun for her. She also did not
like being in the same room with defendant because she did not “want to see his
face.â€
C. Expert and Police Witness Testimony.
Sexual assault
nurse examiner Lisa Javar, who had over 12 years of specialized sexual assault
training, examined D.G. on June 9, 2009, when she was nine years old. Among other things, Javar performed a genital
exam. Javar found no evidence of
physical trauma or injury. However,
Javar was not surprised by this lack of evidence given D.G.’s age, race and
history. Where, as here, the victim is
nine years old and three weeks have passed since the last alleged penetration,
it is not unusual for examiners to find no injury.
assault did not occur. More often than
not, and from Javar’s experience about 90 percent of the time, an examination
is normal. Javar thus concluded D.G.’s
examination neither confirmed nor negated anal or vaginal penetration.
Sexual
assault nurse examiner Judy Malmgren, accepted as a forensic nursing expert by
the court, reviewed medical photographs and records for D.G. Based on this review, Malmgren found no signs
of past sexual abuse, even though she would have expected to find signs given
the allegations that D.G. had been sexually penetrated for two years beginning
at age seven.
Vallejo
Police Department Evidence Technician, Stephanie Boursaw, testified regarding
items collected by police from defendant’s house on July 2, 2009. One such item seized from under a mattress in
the master bedroom was pink clothing that Boursaw described as “some sort of
like camisole or some piece of lingerie, except I believe it’s a child’s size.â€
Vallejo
Police Detective Mathew Mustard first spoke with S.T. on June 10,
2009. S.T. told him she found a brownish
stain in D.G.’s underwear on May 18, 2009, and that D.G. had denied being
touched inappropriately until May 26, at which time D.G. told her
defendant touched her during a weekend trip to Reno. S.T. did not tell Detective Mustard that
defendant offered to pay her $20,000 not to report the incident. Detective Mustard subsequently spoke with
J.C. about the Reno trip with defendant.
J.C. told Detective Mustard that D.G. was crying when they dropped her
off in Antioch after the trip. J.C.
denied defendant had ever touched her inappropriately, but did report that
once, when she and her cousin were 14 years-old and staying at defendant’s
house, he asked them to stay in his room
They declined, went to their own room and locked the door. Detective Mustard arrested defendant at his
place of employment on July 1, 2009.
Vallejo
Police Officer Drew Ramsey interviewed D.G. on May 27, 2009. D.G. told him she had spent the night at
defendant’s house about one week earlier, and that defendant crawled into bed
with her and her cousin. Defendant told
D.G. not to tell anyone, and then put his penis in her mouth until some white
stuff came out. Defendant then told D.G.
to go brush her teeth, which she did. He
also told her he would kill or harm her family if she told anyone what had
happened.
II. The Jury Verdict and Sentencing.
On
August 10, 2011, the jury found defendant guilty of two counts of oral
copulation and sexual penetration of a minor (§ 288.7, subd. (b)), and
three counts of sexual intercourse and
sodomy with a minor (§ 288.7, subd. (a)).
The jury found defendant not guilty of one count of possessing child
pornography (§ 311.11, subd. (a)).
The trial court sentenced defendant to a total prison term of 105 years
to life, leading to this appeal.
DISCUSSION
Defendant
raises three arguments on appeal. First,
defendant contends the trial court prejudicially erred by instructing the jury
it could find him guilty on count one, oral copulation and sexual penetration
of D.G., and count two, sexual intercourse and sodomy with D.G., for acts he
committed outside the time frame alleged in those counts (i.e., on or about and
between May 10, 2009 and May 15, 2009). Second, defendant contends the trial court
prejudicially erred when instructing the jury based on CALCRIM No. 318 “to find
a prior inconsistent statement to be true,†because it improperly shifted the
burden of proof to him. Finally,
defendant contends his conviction on all counts lacks the support of
substantial evidence, requiring reversal. We address each argument in turn.
I. Instructing the Jury on Counts One and Two (§ 288.7,
subds. (a), (b)).
Defendant
contends the trial court prejudicially erred by failing to adequately instruct
the jury with respect to the acts for which he could be convicted for orally
copulating and sexually penetrating D.G. (count one), and for engaging in
sexual intercourse and sodomy with D.G. (count 2), on or about and between
May 10, 2009 and May 15, 2009.
Specifically, defendant contends because “the People specifically
elected to prosecute [him] in counts 1 and 2 based on acts alleged to have
occurred in Vallejo, on the night before [he] took D.G. to Reno, it was
improper to instruct the jury it could convict [him] on counts 1 and 2 based on
acts outside that time frame.†We
conclude defendant forfeited his claim of instructional error by failing to
raise it below and, even if he had not, it would fail on the merits.
Counts
one and two charged defendant with committing on D.G., a child under 10,
certain sexual acts on or about and between May 10, 2009 and May 15,
2009, and counts three through five charged him with committing on her similar
sexual acts on or about and between January 1, 2007 and December 31,
2008. Consistent with these charges, the
jury was instructed pursuant to CALCRIM
No. 207, that it is “alleged that the crimes occurred on or about:
[¶] Between May 10, 2009 and May 15, 2009: Counts 1 and 2[.]
[¶] Between January 1, 2007 and December 31, 2008: Counts 3, 4,
and 5[.] . . . [¶] . . . [¶] The People are not
required to prove that the crime took place exactly on that day but only that
it happened reasonably close to that day.â€
In addition, in connection with counts three through five only, the jury
was instructed pursuant to CALCRIM No. 3501 that, to convict defendant of these
charges, it had to agree the People proved defendant committed one of each of
the alleged sexual acts within the designated time period of January 1, 2007 to
December 31, 2008, or that he committed all of the alleged sexual
acts within that time period.
name="_ftnref11" title="">[11]
According to
defendant, the trial court’s instruction on CALCRIM No. 207 was improper because
it permitted the jury to convict him on counts one and two even if it found the
charged offenses did not take place exactly during the time period of
May 10 to May 15, 2009. This error was
compounded, defendant continues, by the trial court’s CALCRIM No. 3501
instruction “because CALCRIM No. 3501 limited the jury’s requirement for
unanimity to counts 3, 4 and 5, [and thus] the jury reasonably could have
inferred (as the “negative pregnantâ€) that unanimity was not required for a guilty verdict on counts 1 and 2. And because CALCRIM No. 207 allowed the jury
to convict [him] on counts 1 and 2 for conduct that occurred outside the
elected time frame of May 10 to May 15, 2009, the jury might have
convicted [him] on those counts on the basis of uncharged conduct.†To prevent this, defendant adds, the trial
court should have, sua sponte, given the unanimity instruction set forth in
CALCRIM No. 3502, rather than CALCRIM No. 207 and its corollary No. 3501. (See
1529, 1534-1536 [the court has a sua sponte
duty to instruct the jury that the prosecutor has elected a specific factual
basis for the charged offense if the prosecutor fails to inform the jury of the
election].)
As stated above, defendant did not object below to the
trial court’s instruction pursuant CALCRIM No. 207 and No. 3501, did not
request clarification or a modification as to those instructions, and did not
request an instruction pursuant to CALCRIM No. 3502.
of the instructions just before the trial court read them to the jury. As such, we conclude defendant’s challenge
based on the giving of or failure to give those instructions has been
forfeited. (E.g.,
535 [“
attempt to revise or improve accepted and correct jury instructions absent some
request from counsel’ â€].)
In any event, turning to the merits,
the relevant standard of review is not in dispute. “In reviewing [a] purportedly erroneous
instruction[], ‘we inquire “whether there is a reasonable likelihood that the
jury has applied the challenged instruction in a way†that violates the
Constitution.’ [Citation.] In conducting this inquiry, we are mindful that
‘ “a single instruction to a jury may not be judged in artificial
isolation, but must be viewed in the context of the overall charge.†’
[Citations.]†(
957.) “ ‘Additionally, we must assume that jurors
are intelligent persons and capable of understanding and correlating all jury
instructions which are given.’ [Citation.]â€
(People v. Richardson (2008)
43 Cal.4th 959, 1028.)
Applying
these rules here, we first point out the instructions given by the court did
not, by their terms, permit the jury to convict defendant on counts one and two
on the basis of uncharged conduct or conduct occurring outside the elected
May 10 to May 15, 2009 time period).
Rather, the instructions expressly restricted
the jury’s consideration of evidence related to the charges against defendant
in counts one and two to a specific time period – to wit, acts of sexual
misconduct occurring “on or about and between May 10, 2009 and
May 15, 2009.†This language, in
turn, was consistent with both the law and the facts. Defendant does not dispute the People’s case
against him with respect to counts one and two was, as reflected in both the
pleadings and in arguments to the jury, based on evidence of a single
transaction between defendant and D.G. at his Vallejo house on the night around
the time of her May 14, 2009 birthday before they left on a trip to
Reno. As this record reflects, this is
not a case where the prosecutor elected to base a molestation charge on a specific
factual basis, but failed to so inform the jury. Rather, the jury was made well aware of the
prosecutor’s election with respect to counts one and two. (Cf. People
v. Melhado, supra, 60 Cal.App.4th at pp. 1534-1536.)
In
reaching this conclusion, we further note that California law generally does
not require a prosecution to prove, or the jury to agree, that a sexual offense
was committed against a minor on a specific day. Rather, the prosecution may, as here, rely on
evidence the offense occurred within a more general time period (e.g., from
May 10 to May 15, 2009). (
victim must be able to describe the general time period in which these
acts occurred (e.g., ‘the summer before my fourth grade,’ or ‘during each
Sunday morning after he came to live with us’), to assure the acts were
committed within the applicable limitation period,†specific details of where
or when the acts occurred “are not essential to sustain a convictionâ€]. See also § 955 [“[t]he precise time at which the offense was committed need not
be stated in the accusatory pleading, but it may be alleged to have been
committed at any time before the finding or filing thereof, except where the
time is a material ingredient in the offenseâ€].) While defendant correctly notes this rule
permitting the prosecution to prove guilt beyond a reasonable doubt
without reference to an exact date does not apply where the defense is one of alibi, here, the
defense is that the victim, D.G., lacked credibility, not that defendant
was absent for or unable to commit the alleged crimes on the day in
question. As such, proof of an exact
date was not required. (Cf. People v. Barney (1983) 143 Cal.App.3d 490, 497 [“if the defense is alibi or, as here, lack of opportunity
to commit the offense, the exact time of commission becomes critically relevant
to the maintenance of the defense,†however, “[o]rdinarily, the People need not plead the exact time of commission of
an alleged offenseâ€]; People v.
Jennings (1991) 53 Cal.3d 334, 358-359 [“when
the prosecution’s proof establishes the offense occurred on a particular day to
the exclusion of other dates, and when the defense is alibi (or lack of
opportunity), it is improper to give the jury an instruction using the ‘on or
about’ languageâ€].)
name="_ftnref13" title="">[13]
Defendant’s
argument also disregards that the trial court gave other instructions to
address possible confusion about the timing or nature of counts one and two, on
the one hand, and counts three through five on the other hand. Most significant for purposes of this
analysis, the trial court instructed the jury pursuant to CALCRIM No. 3515,
that “[e]ach of the counts charged in this case is a separate crime. You must consider each count separately and
return a separate verdict for each one.â€
We assume the jury properly followed this instruction, as well as the
others. (People v. Yeoman (2003) 31 Cal.4th 93, 139 [“the presumption that jurors understand and follow
instructions†is “[t]he crucial assumption underlying our constitutional system
of trial by juryâ€].)
Finally,
we consider defendant’s suggestion the court erred by giving a unanimity
instruction with respect to counts three through five (CALCRIM No. 3501), but
not with respect to counts one and two.
We again find no error. Because,
based on both the presentation of evidence and arguments of counsel, the jury
was informed that counts one and two related to a single transaction between
defendant and D.G. on the night before their Reno trip, there was no reasonable
probability the jury could have been confused, or failed to agree, as to which
particular acts served as the basis of counts one and two. As the California Supreme Court has
explained, where “generic testimony describes a
repeated series of specific, though indistinguishable, acts of
molestation,†a unanimity instruction “assists in focusing the jury’s attention
on each such act related by the victim and charged by the People.†(People
v. Matute (2002) 103 Cal.App.4th 1437, 1448.) Where, however, the testimony
describes only a single incident from which the jury could conclude the
defendant was guilty of the charged offense, a unanimity instruction is neither
helpful nor required. (Cf.
p. 321.)
title="">[14]
Thus,
under a totality of these circumstances, we conclude the jury was adequately
apprised of the applicable time period for each count against defendant. In particular, CALCRIM No. 207 properly
restricted the time period during which defendant could be convicted of the
charged offenses in counts one and two to the period “on or about and between
May 10, 2009 and May 15, 2009†or some time “reasonably close†to
those days. No reasonable juror could
have believed evidence of any sexual act outside that time period or,
specifically, outside the period encompassing the weekend of defendant’s
overnight trip with D.G. to Reno around the time of her May 14, 2009
birthday, could be relied upon to support his conviction on those counts. And, because there was no instructional error
with respect to the trial court’s giving of CALCRIM No. 207, there was no
compounded error with respect to the giving of CALCRIM No. 3501 or failure to
give CALCRIM No. 3502.
II.
Instructing the Jury on Inconsistent Witness Testimony (CALCRIM
No. 318).
The
trial court instructed the jury regarding evaluating inconsistencies in a
witness’s trial testimony and pretrial statements pursuant to CALCRIM No. 318,
which provided as follows:
“You have heard evidence of
statements that a witness made before trial.
If you decide that the witness made those statements, you may use those
statements in two ways:
“1. To
evaluate whether the witness’s testimony in court is believable; AND
“2. As
evidence that the information in those earlier statements is true.â€
Defendant
contends this instruction was erroneous and resulted in prejudice because it
was “tantamount to a mandatory presumption†that the jury should not believe
trial testimony inconsistent with earlier-made pretrial statements. In so arguing, defendant relies on
inconsistencies in D.G.’s trial testimony and her pretrial statements during
the MDIC interview in June 2009.
Specifically, during the MDIC interview, she claimed defendant first
engaged in sexual acts with her nine-year-old cousin before engaging in
substantially the same acts with her. At
trial, however, D.G. testified her cousin was not present on the night in
question, and that she did not see defendant sexually abuse her.
instruction pursuant to CALCRIM No. 318 “created an unlawful presumption that
D.G.’s subsequent denials were false,†and thereby shifted the burden of proof
to him in violation of his constitutional rights. We disagree.
CALCRIM
No. 318, by its terms, permitted jurors to use a witness’s pretrial statements
in “two ways.†First, jurors “may†use
the statements to “evaluate whether the witness’s testimony in court is
believable.†Second, jurors “may†use
the witness’s pretrial statements “[a]s evidence that the information in those
earlier statements is true.†Had this
instruction created, as defendant claims, a mandatory
presumption that the witness’s trial testimony was false, the instruction would
have used mandatory language. It did
not. Rather, as set forth above, it used
the permissive term, “may,†a term neither ambiguous, unusual, nor purporting
to create any presumption, whether for or against the veracity of a witness
statement. As such, we decline to
presume the jury, composed of men and women of reasonable intelligence, was
incapable of understanding or following it.
(People v. Hudson (2009) 175
Cal.App.4th 1025, 1028-1029 [because CALCRIM No. 318 states the jury “mayâ€
reject testimony if inconsistent with a pretrial statement, there is no basis
for defendant’s claim the instruction lessens the prosecution’s standard of
proof by compelling the jury to accept a pretrial statement as true]. See also People v.
Richardson, supra, 43 Cal.4th at pp. 1027-1028.)
Defendant’s
argument also disregards the trial court’s other instructions, including
CALCRIM No. 226, which, among other things, advised the jury they could believe
all, none, or part of a witness’s testimony; and that, in evaluating witness
testimony, they could consider anything reasonably tending to prove or disprove
the testimony, including whether the witness made a prior inconsistent
statement. And further diminishing any
risk of jury confusion, the trial court gave CALCRIM No. 220, which, among
other things, advised the jury of defendant’s presumption of innocence, of the
prosecution’s duty to prove every element of each charged offense beyond a
reasonable doubt, and of each juror’s duty to impartially consider all evidence
before reaching a verdict.
Thus, considered in the proper context of the jury
charge as a whole, we conclude there is no reasonable likelihood the jury
misapplied the court’s instruction pursuant to CALCRIM No. 318. (People
v. Frye, supra, 18 Cal.4th at p. 957.) Contrary
to defendant’s suggestion, this instruction was quite clear in its command that
the jury could, but was not required to, use a witness’s pretrial statements as
evidence that the information in those statements is true.
III. The
Sufficiency of the Evidence for Counts One through Five.
We
are left with defendant’s challenge to the sufficiency of the evidence
supporting the jury’s guilty verdict as to all counts. The guiding principles are well known. When a defendant challenges the sufficiency
of the evidence, the reviewing court must examine the entire record in the
light most favorable to the judgment to determine whether it contains
substantial evidence from which the jury could find the defendant guilty beyond
a reasonable doubt. (
576-77.) Substantial evidence – meaning,
evidence that is reasonable, credible and of solid value – must support each
essential element of an offense. A
judgment of conviction will not be set aside for insufficiency of the evidence
to support the jury’s verdict unless it is clearly shown there is no basis on
which the evidence can support the jury’s conclusion. (Ibid.)
In
determining whether substantial evidence exists, we do not reweigh the
evidence, resolve conflicts in the evidence or reevaluate the credibility of
witnesses. (People v. Jones, supra, 51 Cal.3d at p. 314.) “Although it is the duty of the [trier of fact] to acquit a
defendant if it finds that circumstantial evidence is susceptible of two
interpretations, one of which suggests guilt and the other innocence
[citations], it is the [trier of fact], not the appellate court which must be
convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the
circumstances reasonably justify the trier of fact’s findings, the opinion of
the reviewing court that the circumstances might also reasonably be reconciled
with a contrary finding does not warrant a reversal of the
judgment.†’ †(
932-933.)
We
also keep in mind that child molestation
cases “frequently involve difficult, even paradoxical, proof problems.†(People
v. Jones, supra, 51 Cal.3d at p. 305.)
Child victims of “resident child molester[s],†like defendant may have
“no practical way of recollecting, reconstructing, distinguishing or
identifying by ‘specific incidents or dates’ all or even any such
incidents.†(Ibid.) Recognizing this, the
California Supreme Court has designed an evidentiary standard to more
appropriately balance defendants’ right to fair notice of the charges and to a
reasonable opportunity to defend against those charges with the State’s need to
ensure that resident child molesters are not immunized from substantial
criminal liability merely because their victims are unable to recall precise
details concerning the repeated incidents of abuse. (People
v. Jones, supra, 51 Cal.3d at pp. 305, 315-316.) Specifically, a child victim’s generic
testimony may be sufficient to support a conviction for sexual abuse so long as
the testimony describes: (1) “
assure that unlawful conduct indeed has occurred and to differentiate between
the various types of proscribed conduct (e.g. lewd contact, intercourse, oral
copulation or sodomy)â€; (2) “the number
of acts committed with sufficient certainty to support each of the counts
alleged in the information or indictment (e.g., ‘twice a month’ or ‘every time
we went camping’); and (3) “the general
time period in which these acts occurred (e.g., ‘the summer before my fourth
grade,’ or ‘during each Sunday morning after he came to live with us’), to
assure the acts were committed within the applicable limitation period.†(People
v. Jones, supra, 51 Cal.3d at p. 316.)
“Additional details regarding the time, place or circumstance of the
various assaults may assist in assessing the credibility or substantiality of
the victim’s testimony, but are not essential to sustain a conviction.†(Ibid.;
see also People v. Matute, supra, 103
Cal.App.4th at pp. 1444-1445.)
Here,
of course, defendant is charged with committing specific acts of sexual abuse
on or about and between May 10 to May 15, 2009, at his house in
Vallejo the night before taking D.G. and others on an overnight trip to Reno
(counts one and two). He is also charged,
more generally, with committing repeated acts of sexual abuse throughout the
broader period during which D.G. resided with him from approximately
January 1, 2007 to December 31, 2008 (counts three through five). With respect to the former counts, the prosecutor
relied on specific testimony and pretrial statements from D.G. and other
witnesses regarding the events surrounding defendant’s and D.G.’s trip to Reno
around the time of her May 14, 2009 birthday. With respect to the latter counts, the
prosecutor relied on D.G.’s more generic testimony and statements regarding the
extended period during which she lived with and was cared for by
defendant. The prosecution’s evidentiary
showing, we conclude, met the above-described standard set forth in
Specifically,
we conclude D.G.’s pretrial statements regarding what occurred at defendant’s
Vallejo house the night before their Reno trip, considered with the testimony
of her mother, S.T., regarding what D.G. later told her occurred, was
sufficient to prove under counts one and two that defendant engaged in sexual
intercourse, sodomy, sexual penetration and oral copulation on D.G. on or about
and between May 10 to May 15, 2009.
For example, D.G. stated during her June 10, 2009 MDIC interview
that she was watching a movie in defendant’s room the night before the Reno
trip and around the time of her 9th birthday when he told her to undress, began
to hump
her, and then put his private part of the way into her private and then into
her mouth. D.G. demonstrated to the
interviewer how far defendant penetrated her, and told her that “white stuffâ€
came out of his private and got on her tongue.
D.G. also stated that defendant told her to go brush her teeth and to
get dressed, which she did. The next
day, they traveled to Reno, where nothing else happened.
Consistent
with D.G.’s pretrial statements, D.G.’s mother, S.T., described a brown stain
she found in D.G.’s underwear when D.G. returned from Reno. S.T. testified this stain, as well as D.G.’s
negative attitude, prompted her to ask D.G. whether anyone had molested
her. After some probing, D.G. admitted
to S.T. that defendant molested her the night before their Reno trip, as well
as many times during the period their family lived with defendant at his house.
S.T. reacted to D.G.’s admissions by
taking D.G. to the hospital for a medical examination and, later, to the police
to report the abuse.
D.G.’s
pretrial statements and her and S.T.’s trial testimony were also sufficient to
prove under counts three, four and five that defendant committed numerous
sexual acts on her on or about and between January 1, 2007 and
December 31, 2008, while she and her family were living at his house. For example, D.G. testified that defendant: (1) once put his private in her mouth, telling her
to “suck it like a lollypop,†which she did until “white stuff†came out and,
after which, he told her to go brush her teeth; (2) more than once, and
probably more than five times, put his private in her private, sometimes after
undressing her (which she did not like), usually while moaning, and sometimes
until white stuff came out ; and (3) more than twice, told her to shower
and then put his private part of the way into her butt and moved it around.
D.G.
also testified these acts occurred during the designated period – to
wit, on or about and between January 1, 2007 and December 31,
2008. Specifically, she testified
defendant committed sexual acts on her often when she was seven to nine years
old, during the time period she and her family lived with him at his house and
he babysat for her. In addition, S.T.
confirmed that their family lived at his Vallejo house for two or three years
between 2006 and 2008, during which time defendant often cared for D.G. and her
siblings while she was at work. And, as
mentioned above, S.T. confirmed that D.G. told her shortly after the Reno trip
that defendant had touched her many times in the past, aside from the night
before the Reno trip. This evidence, we
conclude, was not only sufficient to prove defendant committed the acts charged
in counts three through five on or about and between January 1, 2007 and
December 31, 2008, it was also sufficient to ensure he was
five for any act occurring during the period charged in counts one and two, to
wit, on or about and between May 10, 2009 to May 15, 2009. (See
People v. Jones, supra, 51 Cal.3d at p. 316.)
In
reaching these conclusions, we acknowledge D.G.’s recollection of events and of
details was at times vague and inconsistent.
For example, during trial, D.G. denied or did not recall certain
incidents of abuse by defendant that she described in detail during the
June 2009 MDIC interview. In
particular, D.G. testified that she did not recall whether defendant touched
her during their weekend trip, either before or after leaving for Reno. She also testified that her nine-year-old
cousin was not present the night before or during their weekend trip, even
though she stated before trial that defendant also sexually abused her cousin
the night before the trip. In addition,
while D.G. initially recalled telling police that, when she was about nine,
something happened at defendant’s Vallejo house the night before the trip,
later she denied to defense counsel having any memory of telling this to
police. Finally, D.G. could not recall
the exact dates and number of times defendant abused her when she lived at his
house, whether the abuse occurred when she was seven, or whether defendant
threatened to harm her or her family if she told anyone. However, despite these inconsistencies,
D.G.’s testimony was not on the whole incredible. It was the jury’s function, not ours, to
resolve inconsistencies and contradictions in her testimony. (See People
v. Jones, supra, 51 Cal.3d at p. 322 [noting the victim’s credibility
is usually the “true issue†in child molestation cases].) Rather, on appeal, our function is limited to
resolving inferences and inconsistencies in favor of the judgment. (People
v. Cortes (1999) 71 Cal.App.4th 62, 73-74.)
Accordingly,
viewing the evidence, as we must, in the light most favorable to the judgment,
we affirm defendant’s conviction on all five counts. Based on the evidence presented, the jury had
a reasonable basis upon which to conclude beyond a reasonable doubt that
defendant committed the offenses of sexual penetration, oral copulation, sexual
intercourse and sodomy on D.G. on or about and between May 10 and
May 15, 2009, around the time of her ninth birthday, and also on or about
and between January 1, 2007 and December 31, 2008, during the time
period she resided in his home.
DISPOSITION
The
judgment is affirmed.
_________________________
Jenkins,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Siggins, J.
name="_ftn1" title="">[1] All further statutory citations herein
are to the Penal Code.
name="_ftn2" title="">[2] D.G.’s mother, S.T., had known
defendant since she was eight years old, and considered him her uncle even
though they were not actually related.
Her children also considered defendant like an uncle. S.T. and her children lived with defendant in
Vallejo from May 2006 until sometime in 2008, during which time he often cared
for the children while she was at work.
