The opinion
Filed 11/19/15 P. v. Lehman CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A141341
v.
ARNOLD LEHMAN, (Contra Costa County
Super. Ct. No. 05-131285-9)
Defendant and Appellant.
Defendant Arnold Lehman was charged with 49 counts of sex offenses committed
against his granddaughter, Jane Doe 1, and another 2 counts of sex offenses committed
against Jane Doe 2, another one of his granddaughters. The jury convicted him on 41 of
the counts. Defendant now appeals, arguing: (1) the trial court erred in joining the counts
relating to Jane Doe 1 and Jane Doe 2 in one trial, (2) the prosecutor committed Griffin1
error by calling attention to defendant’s refusal to testify in his own defense, (3) the
information lacked the requisite specificity, (4) there was insufficient evidence to support
defendant’s convictions for some of the counts, (5) Jane Doe’s 1’s testimony was so
vague as to violate his due process rights, and (6) the trial court erred in sentencing
defendant. We find defendant’s substantial evidence challenge to three of the counts at
issue has merit, but affirm in all other respects.
1
Griffin v. California (1965) 380 U.S. 609 (Griffin) holds that a prosecutor may
not comment upon a defendant’s failure to testify on his or her own behalf.
BACKGROUND
Defendant was charged by information on June 28, 2013. As to Jane Doe 1,
Defendant was charged with 31 counts of committing a lewd and lascivious act against a
child under the age of 14 (Pen. Code,2 § 288, subd. (a), counts 1 to 31); 12 counts of
committing a lewd and lascivious act against a child age 14 to 15, (§ 288, subd. (c)(1),
counts 32 to 43), two counts of oral copulation of a minor (§ 288a, subd. (b)(1), counts 44
& 47), and four counts of sexual penetration of a minor3 (§ 289, subd. (h), counts 45 & 46
and 48 & 49). As to Jane Doe 2, defendant was charged with two counts of committing a
lewd and lascivious act against a child under 14. (§ 288, subd. (a), counts 50 & 51.) It
was further alleged that defendant was eligible for a sentencing enhancement under
section 667.61, subdivision (j)(2), because he committed an offense against more than
one victim.
Jane Doe 1 and Jane Doe 2 are half sisters. Defendant is their grandfather.
Shortly after Jane Doe 2 was born in June 2001, her family moved to Brentwood. Jane
Doe 1 was about 8 at the time. The family’s Brentwood home was owned by defendant,
and he visited often.
Jane Doe 1 testified that, when she was 9 or 10 years old, defendant would give
her back rubs. The back rubs occurred every time defendant visited, and they made Jane
Doe 1 uncomfortable. When Jane Doe 1 was 10 or 11, defendant began massaging Jane
Doe 1’s front and chest. After Jane Doe 1 started wearing a bra, defendant would rub
underneath the bra or push it up. Defendant would ask Jane Doe 1 if he could take off the
bra, and she would say “no.” Defendant would touch Jane Doe 1’s breasts for 20 or 30
minutes.
When Jane Doe 1 was in seventh or eighth grade, defendant began moving his
hands toward her pant line when he touched her. He also kissed her stomach, chest area,
2
All statutory references are to the Penal Code unless otherwise specified.
3
In the June 28 information, counts 46 and 49 charged defendant with sodomy of
a minor in violation of § 286, subd. (b)(1). The charges were amended during trial to
charge sexual penetration of a minor.
2
and lips. At defendant’s request, Jane Doe 1 would lie down as he touched her. Jane
Doe 1’s younger brother testified that he once saw defendant and Jane Doe 1 lying on the
floor kissing. When Jane Doe 1 was 14 or 15, defendant put his hands “underneath the
pant line.” Defendant would take off Jane Doe 1’s pants and underwear and put his
fingers inside her vagina. Jane Doe 1 could not recall exactly how often this happened,
but she testified it occurred “every time [defendant] was over.”
The touching continued when Jane Doe 1 was 16 and 17 years old, but eventually
stopped towards her “later years of high school.” Jane Doe 1 did not tell anyone in her
family about defendant’s conduct while it was ongoing. She testified she was afraid her
family would not believe her. Jane Doe 1 eventually disclosed defendant’s conduct to a
college friend in 2012. Jane Doe 1 told her mother in or around December of that year,
and the matter was reported to the police in February 2013.
Jane Doe 2 was 12 years old when she appeared at trial in October 2013. She
testified that in or around 2012 her grandfather rubbed her back, and the back rub “felt
weird.”4 She eventually asked him to stop. Two weeks later, Defendant rubbed Jane
Doe 2’s back underneath her clothes. Jane Doe 2 asked him to stop, and he did so. Jane
Doe 2 testified there may have been other incidents, but she was not sure. Jane Doe 2
said defendant “mostly” touched her neck, but sometimes he would go lower, down to
her waist.
Jane Doe 2’s brother testified: “Every time [defendant] was near [Jane Doe 2], he
always seemed to want to put his hand on her like giving her back rubs and such. [¶]
And I remember she always acted like just disgusted every time it happened, and she
would just kind of squirm out of his touch.” Jane Doe 2’s friend Alex told police she also
witnessed one of defendant’s back rubs. Alex stated defendant rubbed Jane Doe 2’s back
as he repeated her name softly. According to Alex, Jane Doe 2 looked “weirded out.”
4
During a police interview in March 2013, Jane Doe 2 testified the back rubs
started earlier, when she was in fifth grade.
3
A jury found defendant not guilty of counts 1 and 7 (committing a lewd and
lascivious act against a child under the age of 14); guilty of misdemeanor battery as a
lesser offense on counts 17, 19, 22, 24, 28, 31, 46, and 49; and guilty as charged on the
remaining 41 counts. Defendant filed a motion for a new trial, which was denied. The
trial court subsequently sentenced defendant to an indeterminate term of 40 years to life,
as well as a determinate term of 12 years.
DISCUSSION
A. Joinder
In his motion for a new trial, defendant argued the trial court erred by joining the
counts relating to Jane Doe 1 and Jane Doe 2 and trying them together. The trial court
rejected this argument, stating that even if the trial had been severed, evidence regarding
Jane Doe 1 would have been admissible under Evidence Code sections 1101 and 1108 to
show motive, intent, and modus operandi, and propensity. The court acknowledged such
evidence was subject to Evidence Code section 352, but found defendant’s conduct
toward Jane Doe 1 and Jane Doe 2 was “very similar,” and “the only difference” was that
defendant’s molestation of Jane Doe 2 was interrupted due to Jane Doe 1’s decision to
disclose her own molestation. Defendant now argues he was prejudiced by the joinder of
the counts because the evidence he molested Jane Doe 2 was relatively weak compared to
the evidence of his molestation of Jane Doe 1. According to defendant, the jury returned
guilty verdicts on the Jane Doe 2 counts only because it drew impermissible inferences
from the evidence regarding Jane Doe 1. The argument is unavailing.
Section 954 authorizes the joinder of “two or more different offenses connected
together in their commission . . . or two or more different offenses of the same class of
crimes or offenses, under separate counts . . . .” “The law favors the joinder of counts
because such a course of action promotes efficiency. [Citation.] Nonetheless, . . . a trial
court has discretion to order that properly joined charges be tried separately.” (People v.
Merriman (2014) 60 Cal.4th 1, 37.) “When exercising its discretion, the court must
balance the potential prejudice of joinder against the state’s strong interest in the
efficiency of a joint trial. [Citation.] [¶] Joinder is generally proper when the offenses
4
would be cross-admissible in separate trials, since an inference of prejudice is thus
dispelled.” (People v. Arias (1996) 13 Cal.4th 92, 126.) Courts should also consider
whether the charges are “unduly inflammatory” and whether “a ‘weak’ case will be
unfairly bolstered by its joinder with other charges.” (Id. at p. 127.) Even if a joinder
ruling is correct when made, reversal is necessary where the defendant established that
joinder “resulted in ‘gross unfairness,’ amounting to a denial of due process.” (Ibid.)
Here, the similarity of the offenses precludes a finding that evidence of
defendant’s molestation of Jane Doe 1 was unduly inflammatory. We also disagree with
defendant’s contention that the case against him for the offenses against Jane Doe 2 was
weak. At trial, Jane Doe 2 clearly described two occasions on which defendant touched
her, and her accounts were corroborated by other percipient witnesses, her brother and
her friend Alex. All three witnesses described the touching as inappropriate. Jane Doe 2
testified defendant gave her back rubs underneath her clothing and that the back rub made
her feel uncomfortable. Jane Doe 2’s brother testified she looked disgusted while she
was receiving the back rub. And Alex stated Jane Doe 2 looked “weirded out” by the
touching. Thus, even without the evidence of defendant’s molestation of Jane Doe 1,
there was substantial evidence that he was guilty of the two counts relating to Jane Doe 2.
Moreover, as the trial court held, the joinder of the charges did not prejudice
defendant because evidence of his molestation of Jane Doe 1 would have been admissible
in a separate trial regarding the Jane Doe 2 charges. Pursuant to Evidence Code section
1108, “jurors may ‘infer the defendant has a disposition to commit sex crimes from
evidence the defendant has committed other sex offenses,’ and . . . jurors ‘may—but are
not required to—infer from this predisposition that the defendant was likely to commit
and did commit the charged [sex] offense.’ ”5 (People v. Villatoro (2012) 54 Cal.4th
5
At oral argument, defendant questioned the constitutionality of Evidence Code
section 1108. But our Supreme Court has already found the statute does not offend due
process. (People v. Falsetta (1999) 21 Cal.4th 903, 915.) In any event, even in the
absence of section 1108, the evidence in question would still be admissible to prove
intent pursuant to Evidence Code section 1101.
5
1152, 1166–1167 (Villatoro).) Such inferences may be drawn from evidence of sex
offenses that are both charged and uncharged. (Id. at p. 1167.) Propensity evidence
regarding sexual offenses is admissible subject to Evidence Code section 352. (Evid.
Code, § 1108, subd. (a).) Evidence of bad acts was also admissible to establish
defendant’s intent and absence of mistake, which were at issue here. (Evid. Code,
§ 1101, subd. (b).)
Defendant argues that had the Jane Doe 2 charges been tried separately, evidence
regarding defendant’s molestation of Jane Doe 1 would have been ruled inadmissible
under Evidence Code section 352. We disagree. Under Evidence Code section 352, a
trial court has the discretion to “exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue consumption
of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.” (Evid. Code, § 352.) The principal factor affecting the probative
value of evidence concerning a defendant’s propensity to commit a sex offense is the
similarity of the sex offenses at issue. (See People v. Johnson (2010) 185 Cal.App.4th
520, 531.) In this case, there were striking similarities between the charges relating to
Jane Doe 1 and Jane Doe 2. Both victims were defendant’s granddaughters. And
defendant’s early molestation of Jane Doe 1, specifically back massages over and under
the shirt, was similar to the charged offenses regarding Jane Doe 2. As the trial court
held, the only significant difference between the two cases was that defendant’s
molestation of Jane Doe 2 was interrupted after Jane Doe 1 chose to disclose his conduct
to her family and the authorities. Moreover, evidence of defendant’s molestation of Jane
Doe 1 was highly probative of his intent in touching Jane Doe 2.
Defendant contends that, even if the “bulk” of the evidence regarding his
molestations of Jane Doe 1 would have been admissible in a separate trial on the Jane
Doe 2 charges, he was still prejudiced by the joinder of the counts. Defendant appears to
argue that if any portion of the evidence regarding Jane Doe 1 was not cross-admissible,
the trial court was obligated to try the charges separately. Defendant cites no authority in
support of this proposition. Nor are we aware of any. In any event, contrary to
6
defendant’s suggestion, the jury was not permitted to consider weak or stale evidence
concerning his molestation of Jane Doe 1 in determining whether defendant was
predisposed to commit the charged offenses against Jane Doe 2. The trial court
instructed the jury: “If you find beyond a reasonable doubt that the defendant committed
a sexual offense charged in this case, you may but are not required to infer that the
defendant had a disposition to commit sexual offenses.” Our Supreme Court has
approved of similar instructions in this context. (See Villatoro, supra, 54 Cal.4th at
p. 1168 [because “the instruction clearly told the jury that all offenses must be proven
beyond a reasonable doubt, even those used to draw an inference of propensity. . . .
[T]here was no risk the jury would apply an impermissibly low standard of proof”].)
On the other side of the scale, the state had a strong interest in the efficiency of a
joint trial. The Jane Doe 1 and Jane Doe 2 counts were for the same class of crimes and
much of the evidence and argument relating to those counts overlapped. Further, and
perhaps more importantly, since the evidence concerning Jane Doe 1 and Jane Doe 2 was
cross-admissible, joinder saved the victims from the ordeal of having to twice testify to
instances of molestation. Jane Doe 2 was only 12 years old at the time of trial, and
according to the trial court, was emotionally distraught and terrified while on the stand.
Testifying about her abuse a second time likely would not have been any easier.
Accordingly, we find the trial court did not abuse its discretion in joining the
counts regarding Jane Doe 1 and Jane Doe 2.
B. Griffin Error
In Griffin, the United States Supreme Court held a defendant’s Fifth Amendment
right against self-incrimination is violated when a prosecutor comments on the
defendant’s refusal to testify. (Griffin, supra, 380 U.S. at p. 614.) Defendant argues the
prosecution committed Griffin error in closing arguments. We disagree.
During closing arguments, the prosecutor argued: “The defendant did these acts
with a lewd intent at the time that he acted. This wasn’t for some future intent. He liked
it at the time that he did it.” The prosecutor later continued: “This was not an oversight.
This was not a mistake of fact, that [defendant] made the mistake of doing this to Jane
7
Doe [2], and ‘I’m sorry. I didn’t have any intent to do that.’ He knew exactly what he
was doing which is why—” At that point, defense counsel interrupted with a Griffin
objection, and the court called a recess to hear argument. After the recess, the trial court
provided the following instruction: “I want to remind the jurors . . . that the fact that a
defendant does not testify is not something that you can consider.”
Defendant now asserts that, although the prosecutor did not get a chance to
complete her argument, it was obvious she intended to say defendant did not testify in
order to avoid admitting he had a lewd intent. Defendant argues the Griffin error was
apparent because the prosecutor recited the testimony defendant could have given: “I’m
sorry. I didn’t have any intent to do that.” Defendant also argues that the trial court’s
instruction did not cure the purported error, since it merely reminded the jury that
defendant did not take the stand to deny his guilt.
We are not persuaded. As an initial matter, we can only speculate as to what the
prosecutor would have said had she not been interrupted by defense counsel’s objection.
Even if the prosecutor had intended to comment on defendant’s failure to testify, she
never actually spoke the words. More importantly, there was no reasonable likelihood
the jury would have interrupted the prosecutor’s argument as a comment on defendant’s
failure to testify. We do not construe the prosecutor’s statements as a suggestion that
defendant needed to testify in order to establish he was not motivated by a lewd intent.
Rather, the prosecutor appeared to be arguing the evidence did not support a finding that
defendant’s actions were a mistake or accident. At most, the prosecutor’s remark was
ambiguous, and we cannot infer that the prosecutor intended the remark “to have its most
damaging meaning or that a jury, sitting through lengthy exhortation, will draw that
meaning from the plethora of less damaging interpretations.” (Donnelly v. DeChristoforo
(1974) 416 U.S. 637, 647.)
Defendant’s authority on this point is distinguishable. For example, in People v.
Vargas (1973) 9 Cal.3d 470, Griffin error was found where the prosecutor argued the
defendants had not denied they were at the scene of the crime. (Id. at p. 474.) Likewise,
in People v. Crawford (1967) 253 Cal.App.2d 524, the prosecutor commented on
8
defendant’s failure to disclose his alibi when he was arrested, argued the prosecution’s
evidence was “uncontradicted,” and stated: “The only thing we have heard from the
defendant is this roundabout story from these relatives.” (Id. at p. 535.) In contrast, in
the instant action, the prosecution merely argued the evidence showed the defendant
harbored the requisite intent and suggested defendant could not plausibly claim his
actions were an accident.
C. Sufficiency of the Evidence
Defendant argues there was insufficient evidence to support conviction on several
of the counts charged. In considering this challenge, we apply the substantial evidence
standard. (In re Ryan D. (2002) 100 Cal.App.4th 854, 859.) In doing so, we do not
reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of
witnesses. (People v. Jones (1990) 51 Cal.3d 294, 314 (Jones ); see People v. Cortes
(1999) 71 Cal.App.4th 62, 71.) “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 be reasonably reconciled with a
contrary finding does not warrant a reversal of the judgment.” ’ ” (People v. Bean (1988)
46 Cal.3d 919, 932–933.) We find substantial evidence supported the jury’s verdict on
the challenged counts, with the exception of counts 18, 23, and 30.
1. Counts 50 and 51
Defendant asserts there was insufficient evidence to support his conviction on
counts 50 and 51. These counts asserted defendant committed lewd acts upon a child
under the age of 14, specifically Jane Doe 2, in violation of section 288, subdivision (a).
We find there was substantial evidence to sustain convictions on both counts.
In count 50, defendant was charged with committing a lewd act against Jane Doe 2
when she was 10 years old. Defendant argues his conviction on this count must be
reversed because the prosecution presented no evidence that he touched Jane Doe 2 in an
9
inappropriate manner before her 11th birthday. At trial, Jane Doe 2 did testify that
defendant rubbed her back for the first time in the fall of 2012, when she was 11 years
old and in the sixth grade. However, during a recorded interview with police officers,
Jane Doe 2 also stated defendant “started” touching her when she was in fifth grade, at
which time she would have been 10 years old. Based on this evidence, the jury could
have reasonably concluded Jane Doe 2 was molested when she was 10.
As to counts 50 and 51, defendant argues there was insufficient evidence to
establish that he harbored the requisite intent. Section 288, subdivision (a) requires the
prosecution to prove: (1) the defendant touched a child under the age of 14, and (2) “that
sexual gratification must be presently intended at the time such ‘touching’ occurs.”
(People v. Martinez (1995) 11 Cal.4th 434, 444.) While the touching of the victim is
required, “the form, manner, or nature of the offending act is not otherwise restricted.”
(Ibid.) “[A] lewd or lascivious act can occur through the victim’s clothing and can
involve ‘any part’ of the victim’s body.” (Ibid.) “[T]he purpose of the perpetrator in
touching the child is the controlling factor and each case is to be examined in the light of
the intent with which the act was done. . . . If [the] intent of the act, although it may have
the outward appearance of innocence, is to arouse . . . the lust, the passion or the sexual
desire of the perpetrator [or the child,] it stands condemned by the statute . . . .” (People
v. Hobbs (1952) 109 Cal.App.2d 189, 192.)
In this case, there was substantial evidence defendant acted with a sexual intent.
Jane Doe 2 testified that defendant stroked her back over and under her clothing in a way
that made her feel uncomfortable. She also testified that defendant sometimes continued
stroking her after she asked him to stop. Alex, Jane Doe 2’s friend, stated defendant
would rub Jane Doe 2’s back while repeating her name. Alex also said Jane Doe 2 had a
strange look on her face while this was happening. Likewise, Jane Doe 2’s brother
testified Jane Doe 2 looked “disgusted” while receiving back rubs from defendant and
tried to “squirm” away from him. Evidence concerning Jane Doe 1 further supports the
conclusion that defendant’s conduct toward Jane Doe 2 was motivated by a desire for
sexual gratification. (See Evid. Code, §§ 1101, subd. (b), 1108, subd. (a).) When Jane
10
Doe 1 was younger, defendant touched her in a similar manner. 6 Defendant’s conduct
later escalated to the point where defendant was kissing Jane Doe 1 and penetrating her
vagina. Based on this evidence, and the fact that defendant began touch Jane 2 after Jane
Doe 1 left the family home, the jury could have reasonably concluded defendant was
trying to groom Jane Doe 2 for more serious abuse.
Defendant argues there was no evidence from Jane Doe 2 that he outwardly
displayed any lewd intent. But Jane Doe 2’s apparent discomfort, along with her
testimony that defendant sometimes refused to stop touching her, suggests there was
something more to defendant’s caress than familial affection. Defendant further argues
that evidence of his molestation of Jane Doe 1, without more, is legally insufficient to
prove a charged sex offense. But as discussed above, the prosecution introduced more
than propensity evidence to prove defendant’s intent. The authority on which defendant
relies merely holds that evidence of prior sex offenses is not, by itself, sufficient to prove
a defendant committed the charged offenses beyond a reasonable doubt. (See, e.g.,
People v. Hill (2001) 86 Cal.App.4th 273, 278.) That authority does not hold that
propensity evidence, in conjunction with evidence of touching and the victim’s
perception of the touching, is insufficient to prove intent.
Defendant’s reliance on People v. Mansell (1964) 227 Cal.App.2d 842, is also
misplaced. In that case, the court affirmed an order setting aside an information charging
the defendant with a violation of section 288. (Id. at pp. 842, 848.) The victims’
accounts of the alleged molestation were “confused, contradictory and fragmentary” and
an adult witness “describe[d] nothing which would distinguish defendant’s conduct from
the most innocent play with neighbor children.” (Id. at pp. 847–848.) The court held:
“Inevitably some friendly but incautious adults will bounce little children on their knees,
6
Defendant argues there was no evidence to prove he had a lewd intent at the time
he rubbed Jane Doe 1’s back when she was 9 or 10 years old. But the jury found
otherwise, as it convicted him on counts 2, 3, 8, and 9, which were premised on the back
rub allegations. Moreover, as discussed below, substantial evidence supported the jury’s
verdicts on these counts.
11
and necessarily the adults will touch the legs of the children in the process, and some
other adults will assume the worst. But such commonplace behavior is not enough to
support an inference of an intent to commit the atrocious crime described in Penal Code,
section 288.” (Id. at p. 848.) We do not disagree with the court’s rationale. But in this
case, there was substantially more evidence of a lewd intent.
2. Counts 2, 3, 8, and 9
Defendant contends there was insufficient evidence to convict him on counts 2, 3,
8, and 9.7 These counts charge that defendant committed lewd acts against Jane Doe 1
when she was 9 and 10 years old. According to defendant, all of these counts must be
predicated on back rubs he gave to Jane Doe 1. Defendant argues that the only evidence
he harbored a lewd intent in performing these back rubs is propensity evidence regarding
later, more explicit conduct described by Jane Doe 1. Defendant asserts such evidence,
without more, is insufficient to establish his intent in connection with the earlier crimes.
This line of argument is unavailing. Jane Doe 1 testified defendant did more than rub her
back before she turned 11. She also testified that, when she was 10 or 11, defendant
began massaging her front and chest. As to the counts concerning defendant’s earlier
acts, Jane Doe 1 testified the back rubs were frequent and made her feel uncomfortable.
Based on this evidence, as well as the evidence of defendant’s later acts, the jury could
have reasonably concluded defendant had the requisite intent.
3. Count 13
Count 13 alleged defendant committed a lewd act upon Jane Doe 1 in San Ramon
sometime between January 2002 and August 2003. Defendant argues there is insufficient
evidence to support a conviction on this count, since Jane Doe 1’s testimony at trial
indicated the only incident that occurred in San Ramon happened in 2007. We are not
convinced.
7
Defendant argues there was insufficient evidence to sustain convictions on
counts 1 and 7 as well, but the jury acquitted on those counts.
12
At trial, Jane Doe 1 testified that, while she was visiting defendant’s house in San
Ramon, defendant rubbed her stomach, lifted up her shirt, “move[d] up” her bra, and put
his hands in her pants. She also testified the incident occurred “the summer going into
high school,” which means it would have happened sometime in 2007. In an earlier
recorded police interview, Jane Doe 1 stated the incident took place while she was in
fourth grade, which means it would have happened in 2003.
While Jane Doe 1’s account of the timing of the San Ramon incident varied, we
must view the record in the light most favorable to the judgment. (People v. Johnson
(1980) 26 Cal.3d 557, 562.) “Conflicts and even testimony which is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and the truth or falsity of the
facts upon which a determination depends.” (People v. Huston (1943) 21 Cal.2d 690,
693.) Here, the jury could have reasonably concluded that Jane Doe 1’s earlier
description of the incident was more accurate than her trial testimony.
4. Counts 18, 23, and 30
Counts 18, 23, and 30 charged defendant with committing a lewd or lascivious act
upon a child under the age of 14, to wit, kissing and sucking on Jane Doe 1’s breasts,
while Jane Doe 1 was 11, 12, and 13 years old, respectively. Defendant argues it would
have been speculative for the jury to conclude that the breast kissing incidents occurred
before Jane Doe 1 turned 14. We agree. Jane Doe 1 testified that, when she was “still in
middle school,” defendant “would start kissing [her] stomach and [her] chest area.”
However, she did not specify when in middle school the breast kissing started. Jane
Doe 1’s middle school was grades six to eight, and she was between the ages of 11 and
14 during this period. Based on this evidence, the jury could only speculate that the
conduct charged in counts 18, 23, and 30 started before Jane Doe 1 turned 14, let alone
that the conduct occurred when Jane Doe was 11, 12, and 13 years old. “By definition,
‘substantial evidence’ requires evidence and not mere speculation.” (People v. Thomas
(1992) 2 Cal.4th 489, 545.) Accordingly, defendant’s convictions on counts 18, 23, and
30 must be reversed.
13
5. Counts 15, 25, 27, 32, and 39
The above referenced counts charged defendant with the lewd act of taking off
Jane Doe 1’s clothing in violation of section 288. Defendant argues there was
insufficient evidence to sustain convictions on these counts as separate offenses because,
according to Jane Doe 1, the act of taking off her clothes was always accompanied by
some other touching or sexual act. According to defendant, he is being punished multiple
times for the same bad act. The argument is unavailing.
Pursuant to section 654, “An act or omission that is punishable in different ways
by different provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision.” In the context of sex crimes, “section 654 will
not apply unless the crimes were either incidental to or the means by which another crime
was accomplished.” (People v. Alvarez (2009) 178 Cal.App.4th 999, 1006.) For
example, in People v. Greer (1947) 30 Cal.2d 589, 604, the court held that removal of the
victim’s clothing was incidental to the subsequent statutory rape and thus did not warrant
separate punishment. However, section 654 “does not apply to sexual misconduct that is
‘preparatory’ in the general sense that it is designed to sexually arouse the perpetrator or
the victim. [Citation.] That makes section 654 of limited utility to defendants who
commit multiple sex crimes against a single victim on a single occasion.” (People v.
Alvarez, at p. 1006.)
In this case, the trial court instructed the jury that the defendant could only be
convicted of the “clothes off” charge in count 15 if it found the act occurred on an
occasion different from the lewd and lascivious conduct charged in count 17 (“rub
vagina”) and in count 19 (“kiss vagina”). Similar instructions were provided for the other
“clothes off” charges for counts 25, 27, 32, and 39.
We are not convinced that the jury disregarded these instructions. Jane Doe 1
testified that defendant removed her clothes and touched her every time he visited her
home over an extended period. Based on this testimony, the jury could have reasonably
concluded that it was convicting defendant for removing Jane Doe 1’s clothes on
14
occasions different from the lewd and lascivious conduct charged in the other counts. As
the trial court stated when denying defendant’s motion for a new trial, there is no double
punishment where, for example, a defendant is convicted for five counts of removing
clothing and five counts of unlawful sexual intercourse, and the evidence shows that on
10 occasions the defendant removed the victim’s clothing and had unlawful sexual
intercourse.
D. Due Process
Defendant argues he could not mount an adequate defense because almost all of
the counts charged in the information regarding Jane Doe 1, as well as Jane Doe 1’s
testimony regarding those counts, lacked the requisite specificity. Defendant contends
this amounted to a due process violation, and his convictions on all counts should
therefore be reversed. We disagree.
In People v. Jones, supra, 51 Cal.3d 294, our Supreme Court acknowledged that
cases of child molestation “frequently involve difficult, even paradoxical, proof
problems.” (Id. at p. 305.) For example, children molested over a substantial period of
time by an adult residing in their home may have “no practical way of recollecting,
reconstructing, distinguishing or identifying by ‘specific incidents or dates’ all or even
any such incidents.”8 (Ibid.)
To address these problems, the court enunciated an evidentiary standard to 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 child molesters are not
immunized from substantial criminal liability merely because their victims, who are often
quite young, are unable to recall precise details concerning the incidents of abuse.
(Jones, supra, 51 Cal.3d at pp. 305, 315–316.) Under this evidentiary standard, a child
8
The Legislature reacted to these proof problems in child molestation cases in part
by enacting section 288.5 in 1989, which punishes a continuous course of sexual abuse
rather than a particular incident. (People v. Cortes (1999) 71 Cal.App.4th 62, 75 [“the
statute punishes repetitive activity as a course of conduct, defined as at least three acts
over at least three months” (italics omitted)].) Defendant was not charged under section
288.5 in this case.
15
victim’s “generic” testimony may be sufficient to support a conviction for sexual abuse
so long as the testimony describes: (1) “the kind of act or acts committed with sufficient
specificity, both to 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)”; (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.” (Jones, supra, 51 Cal.3d at p. 316, italics omitted; see also People v.
Matute (2002) 103 Cal.App.4th 1437, 1444–1445, italics omitted.)
The court also concluded this standard was consistent with due process
requirements. The right to notice was not violated due to “the availability of the
preliminary hearing, demurrer and pretrial discovery procedures.” (Jones, supra,
51 Cal.3d at p. 318.) Moreover, the fact that a child victim may not be able to recall
specific dates or other details did not abridge the right to present a defense. (Id. at
pp. 319.) The court explained: “[O]nly infrequently can an alibi or identity defense be
raised in resident child molester cases. Usually, the trial centers on a basic credibility
issue—the victim testifies to a long series of molestations and the defendant denies that
any wrongful touchings occurred.” (Ibid.) Moreover, “[e]ven when an alibi defense is
tendered, there is no reason why the jury would be less inclined to credit the defense as
applied to appropriate counts, merely because the victim’s generic testimony has
implicated the defendant in additional counts or offenses not challenged by the alibi.”
(Ibid.)
Here, Jane Doe 1 testified with adequate specificity. For example, she stated
defendant began giving inappropriate back rubs when she was 9 or 10 years old. When
she was 10 or 11, defendant began touching her chest. In seventh or eighth grade, when
Jane Doe 1 was 14 or 15, defendant touched her below the pant line and began to kiss
16
her. During this time, defendant would also put his fingers inside her vagina. Jane Doe 1
testified this happened every time defendant visited her home.
Defendant argues Jane Doe’s 1’s testimony as to the time period of the abuse was
too vague to support his convictions. But other than some of the substantial evidence
issues addressed above, defendant does not discuss specific instances where Jane Doe 1’s
testimony was overly vague as to time. To the extent defendant is asserting the counts
charged in the information are too vague because some of them encompass time periods
as long as a year, his argument lacks merit. Nothing in Jones, supra, 51 Cal.4th 294 or
the other authority cited by defendant suggest that such charges are inappropriate,
especially in cases such as this, where the abuse spans several years. Defendant suggests
that because Jane Doe 1 was 20 years old at trial, much older than the victims in Jones,
her testimony should be held to a higher standard as to specificity. But as defendant
began touching Jane Doe 1 when she was 9 or 10 years old, and since the abuse
continued for about seven years, it would be unreasonable to expect her to have perfect
recall of every instance of molestation.
E. Sentencing
The one strike law, codified at section 667.61, allows for indeterminate sentencing
where, among other things, a defendant commits a section 288, subdivision (a) offense
against multiple victims. (§ 667.61, subds. (a), (c)(8), (e)(4).) A one-strike multiple
victim enhancement was charged in the information, and the jury found the multiple
victim enhancement to be true for all of the section 288, subdivision (a) offenses for
which defendant was convicted. Pursuant to these enhancements, the court sentenced
defendant to two concurrent 25-year-to-life terms for the section 288, subdivision (a)
violations committed against Jane Doe 2 (counts 50 & 51), and 24 concurrent 15-year-to-
life terms for the violations committed against Jane Doe 1 (counts 2 to 16, 18, 20 & 21,
23, 25 to 27, and 29 & 30). Defendant challenges the one strike sentencing on three
grounds, none of which are persuasive.
17
1. Multiple Victim Enhancement
First, defendant argues that a multiple victim enhancement was improper because
the section 288, subdivision (a) counts regarding his second victim, Jane Doe 2, were not
proven at trial. This argument fails, since as discussed above, we find the convictions on
the Jane Doe 2 counts were supported by substantial evidence.
2. Notice
Next, Defendant argues the information did not put him on notice that one strike
sentencing would apply to all the section 288, subdivision (a) counts charged. The one
strike law states that its penalties apply only if the existence of the requisite circumstance
is “alleged in the accusatory pleading,” and is either admitted by the defendant or found
to be true by the trier of fact. (§ 667.61, subd. (o).) Here, the information stated: “It is
further alleged, pursuant to [section 667.61, subdivision (j)(2)], that in the commission of
the above offense enumerated in subdivision (c), the Defendant . . . committed an
enumerated violation in subdivision (e) to wit: the defendant committed an offense
against more than one victim.”
Defendant argues the multiple victim enhancement allegation is fatally vague. He
asserts that by using the word “offense” the allegation indicated the enhancement would
apply to just one of the counts charged, and it is impossible to determine which particular
offense the enhancement applied to since the information does not specify. But the
information does indicate the offense at issue is enumerated in section 667.61,
subdivision (c), and the only type of offense charged in the information listed in that
provision is a violation of section 288, subdivision (a). Nor do we interpret the
enhancement allegation as applying to just one of the section 288, subdivision (a) counts.
The use of the term “above offense” indicates the information is referring to single type
of crime, not a single count. As defendant contends, if the contrary were true, it would be
impossible to determine to which count the charging enhancement applies. The argument
proves too much, as defendant’s strained interpretation would render an otherwise clear
allegation to be hopelessly vague.
18
3. Ex Post Facto
Finally, defendant asserts the one strike, multiple victim enhancement cannot
apply to the section 288, subdivision (a) convictions for Jane Doe 1, because it would
violate the rule against ex post fact laws. Ex post facto violations arise when a defendant
is punished for an act which was not a crime when done or that inflicts greater
punishment than the applicable law when the crime was committed. (See Collins v.
Youngblood (1990) 497 U.S. 37, 42.) Defendant’s argument implicates the second
concern. He asserts that he committed the section 288, subdivision (a) crimes against
Jane Doe 1 before they became punishable as one strike offenses. The argument is
unavailing, as defendant’s punishment was consistent with the provisions of the former
one strike law.
Defendant appears to contend that, prior to 2006, section 288, subdivision (a)
offenses did not qualify for one strike sentencing under any circumstances. Not so. Such
offenses have qualified for one strike sentencing since the one strike law was first enacted
in 1994. (Former § 667.61, subd. (c)(1), added by Stats. 1st Ex. Sess. 1993-94, ch. 14,
§ 1, p. 8570.) The only difference was that the former one strike law set forth an
exception for indeterminate sentencing where the defendant qualified for probation under
section 1203.066, subdivision (c). Specifically, the former one strike law stated that
offenses qualifying for indeterminate sentencing included: “A violation of subdivision
(a) of Section 288, unless the defendant qualifies for probation under subdivision (c) of
Section 1203.066.” (Former § 667.61, subd. (c)(7).) Amendments to the one strike law
that went into effect on September 20, 2006 removed the probation exception. (Stats.
2006, ch. 337, § 33, p. 2639.)9
9
In his opening brief, defendant incorrectly asserts the September 20, 2006
amendment added section 288, subdivision (a) as a qualifying offense, and that the
probation exception was removed by Proposition 83, which went into effect November 7,
2006. Defendant’s reply brief acknowledges that prior to September 20, 2006, section
288, subdivision (a) offenses could be subject to one strike sentencing, unless the
defendant qualified for probation.
19
Under former section 1203.066, which was in effect at the same time as former
section 667.61,10 probation was not to be granted to persons convicted of violating
section 288 where certain special circumstances applied. (Former § 1203.066,
subd. (a)(1)–(9).) These circumstances included where the defendant was convicted of a
section 288 offense against more than one victim, and where the defendant had
“substantial sexual conduct with a victim who is under 14 years of age.” (Former
§ 1203.066, subd. (a)(7)–(8).) Pursuant to former section 1203.066, subdivision (c), the
aforementioned circumstances did not preclude a grant of probation where all of the
following conditions applied: (1) the defendant is the victim’s natural parent, adoptive
parent, relative, or lives in the victim’s household; (2) the grant of probation is in the best
interest of the child; (3) rehabilitation is feasible; (4) the defendant is removed from the
victim’s household until the court determines the best interests of the victim would be
served by the defendant’s return; and (5) there is no threat of physical harm to the victim
if probation is granted. (Former § 1203.66, subd. (c).)
In short, under the statutory provisions in force prior to September 20, 2006, a
defendant could be sentenced to an indeterminate term if (1) the defendant committed a
section 288, subdivision (a) offense against multiple victims, and (2) the defendant was
not eligible for probation under section 1203.66, subdivision (c). All elements were
present here. As discussed above, defendant committed section 288, subdivision (a)
offenses against both Jane Doe 1 and Jane Doe 2. As to probation, defendant would be
ineligible under former section 1203.066, subdivisions (a)(7) and (a)(8) because there
were multiple victims and defendant engaged in substantial sexual conduct with Jane
Doe 1 before she turned 14. Nor would defendant qualify for the carve-out set forth in
former section 1203.066, subdivision (c). In addressing defendant’s arguments below,
10
Section 1203.066 was amended several times during the pertinent time period,
but its relevant provisions remained substantially similar. (Stats. 1997, ch. 817, § 13,
p. 5584; Stats. 2005, ch. 477, § 5, p. 3786; Stats. 2006, ch. 538, § 506, p. 4378.) The
current statute is also similar in most relevant respects. (See § 1203.066, subds. (a),
(d)(1).)
20
the court determined he was subject to indeterminate sentencing under the former one
strike law because he did not qualify for probation under section 1203.066. The court
reasoned probation would not be in the best interest of either victim, defendant was not
amenable to rehabilitation, and there was a threat of ongoing molestation to Jane Doe 2.
Defendant does not challenge the trial court’s factual findings, but argues the court
should have never reached the issue of whether he was subject to the exception to
probation ineligibility set forth in former 1203.066, subdivision (c). According to
defendant, this exception was inapplicable because he was not ineligible for probation
under former section 1203.066 in the first place. The information sets forth two
probation ineligibility allegations: (1) defendant engaged in substantial sexual conduct
with a child under age 14 in violation of section 1203.066, subdivision (a)(8), and
(2) defendant committed, inter alia, a section 288, subdivision (a) offense against
multiple victims in violation of section 1203.066, subdivision (a)(7). Defendant argues
neither condition applied before the one strike law’s amendment in 2006, as he did not
have substantial sexual conduct with Jane Doe 1 or molest Jane Doe 2 until later in time.
Defendant misconstrues the ex post facto laws. The purpose of such laws is to
place individuals on notice of the punishment for certain types of conduct. (See People v.
McVickers (1992) 4 Cal.4th 81, 87.) Thus, the test is whether the defendant is being
punished more severely based on laws enacted after the offense was committed. (Collins
v. Youngblood, supra, 497 U.S. at p. 42.) Defendant is trying to turn this rule on its head
by arguing he was punished more severely based on offenses committed after the one
strike law was amended. As defendant was on notice of the potential for one strike
sentencing when he committed those later acts, there was no ex post facto violation.11
11
Moreover, contrary to defendant’s contentions, the former one strike law does
not direct courts to examine whether a defendant is ineligible for probation under former
section 1203.066, subdivision (a) when considering whether to employ one strike
sentencing. Instead, it states that a section 288, subdivision (a) offense is subject to one
strike sentencing, “unless the defendant qualifies for probation under subdivision (c) of
[former] Section 1203.066.” (Former section 667.61, subd. (c)(7).) Thus, the only
pertinent inquiry is whether all of the factors set forth in former section 1203.066,
21
DISPOSITION
Defendant’s convictions on counts 18, 23, and 30 are reversed. The judgment is
affirmed in all other respects.
subdivision (c) are satisfied. The trial court concluded that they were not, and defendant
has offered no reason why we should doubt that conclusion.
22
_________________________
DONDERO, J.
We concur:
_________________________
HUMES, P.J.
_________________________
MARGULIES, J.
23
A141341
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