The PEOPLE, Plaintiff and Respondent, v. Samuel T. WOFFINDEN, Defendant and Appellant.
Samuel T. Woffinden appeals from a judgment of conviction by jury trial of 11 counts of lewd acts upon a child in violation of Penal Code section 288, subdivision (a) (all further statutory references are to the Penal Code unless otherwise stated) and 3 counts of forcible lewd acts upon a child (§ 288, subd. (b)). He argues that there is insufficient evidence of force or duress to support the convictions under section 288, subdivision (b). In the published portion of this opinion, we conclude that there was sufficient evidence of duress to support appellant's conviction under section 288, subdivision (b) for forcible lewd acts upon Daisy V. As to a different victim, we conclude that one count must be reversed because the prosecutor presented an incorrect argument on force and a contemporaneous objection was effectively overruled. We reject appellant's argument based on multiple convictions under section 288, subdivision (a).
In the unpublished portion of the opinion, we find substantial evidence to support the other verdicts under section 288, subdivision (b), and reject appellant's related argument that the trial court improperly refused his modified jury instruction on duress; we also address and reject appellant's arguments on the adequacy of instructions on jury unanimity and reasonable doubt, and on a claim of prosecutorial misconduct.
FACTUAL AND PROCEDURAL SUMMARY
We view the evidence in the light most favorable to the judgment and presume the existence of every fact that the trier of fact could reasonably deduce from the evidence. (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738.) Based on that standard, we briefly summarize the evidence, reserving specific details for discussion of the issues raised by appellant.
Appellant was a third-grade teacher at Manchester Elementary School between 1987 and his suspension on October 29, 1990. Because of his fluency in Spanish, he was assigned to a bilingual classroom. Appellant was relieved of his duties in October 1990 after the mother of one of his pupils complained that her daughter had been fondled by appellant.
On September 21, 1991, the district attorney filed an amended information charging appellant with 12 counts of forcible lewd acts upon a child (§ 288, subd. (b)); 19 counts of committing a lewd act upon a child (§ 288, subd. (a)); and 2 counts of penetration by a foreign object (§ 289). It was further alleged appellant had substantial conduct with victims under the age of 11 as to 9 of the counts, and that he occupied a position of special trust and committed an act of substantial conduct as to the victims in 9 of the counts, all within the meanings specified in section 1203.066, subdivisions (a)(8) and (a)(9). The allegations involved 18 female victims, all of whom had been students in appellant's third grade class between September 1988 and October 1990.
Appellant pleaded not guilty. At the conclusion of the prosecution's case, five counts and the special allegations on seven other counts were dismissed on motion by the People. Appellant testified in his own defense, denying the charges against him. He also presented testimony of other children who said that he had not touched them inappropriately; of colleagues who had been in appellant's classroom at various times and saw no sexual misconduct; of his sister, who said that he always wore a one-piece undergarment for religious reasons, and that her children spent substantial time with him without complaint; and by experts who testified about typical clinical indicia of abuse and techniques for interviewing children who are victims of abuse.
The jury convicted appellant of 11 counts of lewd conduct (§ 288, subd. (a)) and 3 counts of forcible lewd conduct (§ 288, subd. (b)). It was unable to reach a verdict on the remaining counts and special allegations. A mistrial was declared as to these counts, which were then dismissed.
Appellant was sentenced to an aggregate sentence of 45 years in state prison: 8 years for the base term; one-third the midterm (2 years) on each of 10 counts; the midterm of 6 years on count 8; the high term of 8 years on count 17, and the low term of 3 years on count 30. All sentences were ordered to run consecutive to the base term. Appellant filed a timely notice of appeal.
Appellant argues that there was insufficient evidence of force or duress to support his convictions of section 288, subdivision (b). We begin with a review of the applicable principles.
Section 288, subdivision (b) provides in pertinent part: “Any person who commits [a lewd or lascivious act within the meaning of section 288, subdivision (a) ] by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be guilty of a felony․”
“[I]n order to establish ‘force’ within the meaning of section 288, subdivision (b), the People must show ‘defendant used physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.’ [Citation.]” (People v. Pitmon (1985) 170 Cal.App.3d 38, 46, 216 Cal.Rptr. 221.) “[D]uress as used in the context of section 288 [means] a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.” (Id. at p. 50, 216 Cal.Rptr. 221.)
The Pitmon court addressed the related concepts of force and duress within the meaning of section 288, subdivision (b). “There is some overlap between what constitutes duress and what constitutes force. This is because duress is often associated with the use of physical force, which may, but need not be present to have duress. However, as we have pointed out, the terms cannot be treated synonymously. An application of the previously stated rule of statutory construction dictates that we find that force, as used in the context of section 288, subdivision (b), refers only to physical force. To extend the meaning of that word to cover psychological coercion would be tantamount to rendering the word ‘duress' meaningless in that statute.” (170 Cal.App.3d at p. 50, fn. 9, 216 Cal.Rptr. 221.)
In deciding whether the evidence supports the inference of duress, we look to the totality of the circumstances, including the age of the victim; the relationship between the victim and the defendant; the disparity in physical size between them; and the isolation of the location of the assault. (See People v. Pitmon, supra, 170 Cal.App.3d at p. 51, 216 Cal.Rptr. 221; People v. Senior (1992) 3 Cal.App.4th 765, 775, 5 Cal.Rptr.2d 14.)
A. Daisy V.
Appellant challenges the sufficiency of the evidence of force or duress as to count 33, which involved Daisy V. There was no evidence of force with respect to Daisy. She testified that she did not try to stop appellant or to get away during numerous incidents in which appellant reached under her skirt and rubbed her upper thigh and patted her buttocks. Appellant made no statement at the time, and did not warn her not to tell anyone. This evidence is insufficient to establish force within the meaning of section 288, subdivision (b). We next consider whether it is sufficient to constitute duress under the statute.
Here, as her teacher, appellant occupied a position of authority over Daisy. Daisy was only seven years old when molested. She was alone in the classroom with appellant, who was 6′3″ and weighed over 200 pounds. Appellant admitted that he had yelled at the class. Appellant testified that he was a strict teacher and that his students never said “No” to him during a tutoring session. He testified that he could be like “an ogre” if the students were not “putting out” an academic effort. Once or twice a week he would shake a student by the shoulder for purposes of discipline. We conclude that there was substantial evidence of duress to support appellant's conviction of count 33.
B. Josefina N.
The jury convicted appellant of one violation of section 288, subdivision (b) on Josefina N. It found him not guilty of two other counts under section 288, subdivision (b) as to this victim, convicting him instead of the lesser offense of lewd conduct under section 288, subdivision (a).1 Based on the fact that the jury convicted him of only one of three charged section 288, subdivision (b) offenses, appellant argues that the jury must have rejected Josefina's general testimony that he threatened to hurt her if she told about the assaults, and that he kept her from moving away. Appellant also argues that we must reverse the conviction because the prosecutor improperly argued that the force used by appellant to penetrate Josefina was sufficient, in itself, to establish duress under section 288, subdivision (b). The Attorney General concedes that the prosecutor erred in the argument, but contends that reversal is not required.
Appellant's argument that his conviction must be reversed because of the prosecutor's theory on duress requires a two-step analysis. First, we must determine whether, as a matter of law, the prosecutor erred in arguing that the force used by appellant in penetrating Josefina was, by itself, sufficient within the meaning of section 288, subdivision (b). If it was not, we must determine whether the error requires reversal under the principles of People v. Guiton (1993) 4 Cal.4th 1116, 17 Cal.Rptr.2d 365, 847 P.2d 45. (See also People v. Johnson (1993) 6 Cal.4th 1, 42, 23 Cal.Rptr.2d 593, 859 P.2d 673.)
As we have noted, the force necessary for violation of section 288, subdivision (b) is “physical force substantially different from or substantially in excess of that required for the lewd act․” (People v. Cicero (1984) 157 Cal.App.3d 465, 484, 204 Cal.Rptr. 582.) In formulating this test, the Cicero court looked to the comprehensive scope of section 288: “We have in mind that section 288 applies to a broad spectrum of conduct, age groups, and relationships. Thus, a lewd act itself can range from a mere touching [citation] to oral copulation. [Citation.]” (Id. at p. 479, 204 Cal.Rptr. 582.) In this context, “force” is a legal concept, not an application of the laws of physics. (Ibid.)
In People v. Hecker (1990) 219 Cal.App.3d 1238, 268 Cal.Rptr. 884, the defendant was convicted of five counts of forcible lewd acts against his stepdaughter, a violation of section 288, subdivision (b). On appeal, he argued that the evidence was insufficient to establish that anal and vaginal intercourse was accomplished by force or duress within the meaning of that statute.
The Hecker court first examined the intent of the Legislature in enacting this statutory scheme. “By enacting the separate subdivisions (a) and (b) of section 288 and ascribing to each identical punishment, the Legislature has manifested an understanding of the ambiguous role played by force in the commission of sex crimes against children. Subdivision (a) makes criminal any lewd and lascivious act with a child under the age of 14 on the assumption and recognition that such a child is incapable of consenting to the act. Subdivision (b) prescribes a separate violation where such act is committed using force or duress. As the court explained in People v. Cicero (1984) 157 Cal.App.3d 465 [204 Cal.Rptr. 582] ․ with regard to the common law crime of rape, force was often viewed as playing ‘merely a supporting evidentiary role, as necessary only to insure an act of intercourse has been undertaken against a victim's will.’ (Id. at p. 475 [204 Cal.Rptr. 582]; see also People v. Kusumoto (1985) 169 Cal.App.3d 487, 493 [215 Cal.Rptr. 347]․) In the context of section 288, however, the concept of force is not necessary to prove a lack of consent; instead it simply serves to distinguish certain more culpable nonconsensual sex acts from others.” (219 Cal.App.3d at p. 1249, 268 Cal.Rptr. 884.)
There was no evidence that the defendant in Hecker used different or excessive force in committing the two offenses challenged. The victim testified that she did not recall how, but that her clothes were removed and she ended up on top of the defendant. She said that he placed his penis first inside her vagina and then inside her “butt.” This evidence, the Hecker court concluded, was insufficient to support a conviction under section 288, subdivision (b). The charges were reduced to violations of subdivision (a) of section 288. (219 Cal.App.3d at pp. 1249–1250, 268 Cal.Rptr. 884.)
The Hecker court explained its conclusion: “By enacting subdivision (a) of section 288 and providing the serious penalties it imposes, the Legislature has recognized that all sex crimes with children are inherently coercive. By concluding that the crimes committed by Hecker in November 1986 were not committed using force or duress, we are not downplaying his culpability or minimizing the seriousness of the harm he inflicted on [the victim]. We are merely giving recognition to the Legislature's determination in enacting subdivision (b) that defendants who compound their commission of such acts by the use of violence or threats of violence should be singled out for more particularized deterrence.” (219 Cal.App.3d at p. 1251, 268 Cal.Rptr. 884.)
In People v. White (1986) 179 Cal.App.3d 193, 224 Cal.Rptr. 467, the court applied the principles enunciated in Cicero in examining the sufficiency of evidence of forcible penetration under section 289, subdivision (a). The White court recognized that the force inherent in penetration crimes is insufficient, by itself, to meet the Cicero test: “The evidence ․ clearly shows that the force used upon [the victim] was substantially in excess of that required to effect a simple penetration of the anus with a finger or similar object, and that the force used resulted in substantial physical injury and intense pain.” (Id. at p. 202, 224 Cal.Rptr. 467.)
The Supreme Court has not directly addressed the nature of force necessary to support a conviction under section 288, subdivision (b). It has, however, recognized that a penetration sex crime is not, in itself, a “forcible” sex offense. In People v. Pearson (1986) 42 Cal.3d 351, 228 Cal.Rptr. 509, 721 P.2d 595, the defendant had been convicted of two counts of sodomy and two counts of lewd conduct under section 288, subdivision (a ) arising from single acts of sodomy committed on two minor victims. On appeal, the defendant argued that these offenses could not be the basis for future multiple enhancements under section 1170.1, subdivision (i). The Pearson court recognized that not all penetration offenses punishable under section 288 are forcible, and concluded that convictions under section 288, subdivision (a) for sodomy did not constitute forcible sex offenses under section 1170.1, subdivision (i).
Contrary to these principles, in his closing argument on the counts related to Josefina, the prosecutor told the jury that when appellant “applies pressure to insert himself to actually penetrate, that's a force.” Counsel for appellant objected to this as a misstatement of law, but the trial court merely noted the objection. The prosecutor then argued that appellant was guilty of using force by pushing his penis or finger into Josefina's vagina and by pushing his finger into her rectum. Reprehensible as this conduct is, it does not necessarily require force substantially greater than, or different from that inherent in the offense itself. As the respondent acknowledges, the prosecutor erred in arguing that it did. The trial court erred in merely “noting” a timely objection to the argument, allowing the jury to understand that the acts themselves were sufficient to establish “force” under the statute.
We turn to the second step of the analysis, whether this error requires reversal of the convictions under section 288, subdivision (b).
In People v. Green (1980) 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468, a murder-kidnap case, the jury was given instructions on kidnapping which were incorrect as a matter of law as to two of the three distinct segments of the victim's asportation. Since it could not be determined from the record whether the jury had based its conviction on one of the two legally insufficient segments of the victim's asportation, the kidnapping conviction and a related kidnapping special circumstance finding were reversed. (Id. at p. 74, 164 Cal.Rptr. 1, 609 P.2d 468.)
Recently, in People v. Guiton, supra, 4 Cal.4th 1116, 17 Cal.Rptr.2d 365, 847 P.2d 45, the California Supreme Court reexamined the Green decision in light of Griffin v. United States (1991) 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371. “Although the Griffin court recognized that ‘[i]n one sense’ the sufficiency of the evidence is always a legal question, for purposes of this issue it carefully distinguished between two types of cases involving insufficient evidence: (a) those in which ‘a particular theory of conviction ․ is contrary to law,’ or phrased slightly differently, cases involving a ‘legally inadequate theory’; and (b) those in which the jury has merely been ‘left the option of relying upon a factually inadequate theory,’ or, also phrased slightly differently, cases in which there was an ‘insufficiency of proof.’ [Citation.] The former type of case is subject to the rule generally requiring reversal, the latter generally does not require reversal if at least one valid theory remains. [Citation.] Among the examples the court gave for the former category, the one subject to the rule generally requiring reversal, is a case where the inadequate theory ‘fails to come within the statutory definition of the crime.’ [Citation.]” (People v. Guiton, supra, 4 Cal.4th at p. 1128, 17 Cal.Rptr.2d 365, 847 P.2d 45, original emphasis.)
The Guiton court concluded that the rule in People v. Green, supra, 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468, construed as applying only to cases of legal insufficiency, survived Griffin. (Id. 4 Cal.4th at pp. 1128–1129, 17 Cal.Rptr.2d 365, 847 P.2d 45.) “[I]f the inadequacy is legal, not merely factual, that is, when the facts do not state a crime under the applicable statute, as in Green, the Green rule requiring reversal applies, absent a basis in the record to find that the verdict was actually based on a valid ground.” (Id. at p. 1129, 17 Cal.Rptr.2d 365, 847 P.2d 45.)
Here the prosecutor's error is within the Green rule because the jury was led to believe that it could convict appellant for a violation of section 288, subdivision (b) even if it believed that the force used was only that inherent in the acts of penetration themselves. As we have discussed, this theory was wrong as a matter of law. There is nothing in the record that allows us to conclude that the jury did not rely on this legally insufficient basis. For this reason, we are compelled to reverse the conviction of count 17. While we must reverse this count, the district attorney is entitled to determine whether to seek retrial on this count, or to seek modification of the conviction to a violation of section 288, subdivision (a). We provide for such election in our disposition.
C. & D **
Appellant argues that he may not be convicted of multiple offenses, and that his punishment for several offenses against some of the victims violates the proscription against multiple punishment in section 654. We disagree, as we shall explain.
A. Multiple Offenses
We first address appellant's argument that he was improperly convicted of multiple offenses.
The leading case in the area is People v. Harrison (1989) 48 Cal.3d 321, 256 Cal.Rptr. 401, 768 P.2d 1078. In Harrison, the defendant had penetrated the victim's vagina three times, in a period of seven to ten minutes. Each penetration was separated by the victim's attempts to escape, by which she managed to dislodge the victim's finger. The defendant argued that he should have been convicted of only one, rather than three counts of violating section 289, subdivision (a). The Supreme Court rejected this argument.
Based on the plain meaning and the legislative history of the statute (§ 289), the court concluded that each penetration, however slight, is a separate offense. (Id. at pp. 327–329, 256 Cal.Rptr. 401, 768 P.2d 1078.) The court followed and applied the holding in People v. Perez (1979) 23 Cal.3d 545, 153 Cal.Rptr. 40, 591 P.2d 63 that section 654 does not bar punishment for each of a sequence of sex acts committed against a single defendant over a short period of time. (People v. Harrison, supra, 48 Cal.3d at p. 325, 256 Cal.Rptr. 401, 768 P.2d 1078.) With respect to the multiple conviction issue, the court concluded: “As section 263 notes with regard to the sufficiency of ‘penetration’ in rape cases, the ‘essential guilt’ of sex offenses lies in the ‘outrage to the person and feelings of the victim․’ The ‘slight penetration’ language confirms that this peculiar ‘outrage’ is deemed to occur each time the victim endures a new, unconsented sexual insertion. The Legislature, by devising a distinctly harsh sentencing scheme, has emphasized the seriousness with which society views each separate unconsented sexual act, even when all are committed on a single occasion. (See, e.g., § 667.6, subd. (c).)” (Id. at p. 330, 256 Cal.Rptr. 401, 768 P.2d 1078.) The court pointed out that multiple convictions involving acts of a different nature committed in rapid succession had been affirmed, as had convictions for alternating offenses in quick, uninterrupted succession; and repeated acts that violated the same law. (Id. at pp. 330–331, 256 Cal.Rptr. 401, 768 P.2d 1078, and cases collected.) “Multiple violations of section 289 are no less separate or offensive when they occur in sequence than when they are punctuated by violations of other statutes.” (Id. at p. 332, 256 Cal.Rptr. 401, 768 P.2d 1078.)
In our view, the Legislature intended to make each lewd touching committed by the defendant a criminal offense. Section 288, subdivision (a) makes “any lewd or lascivious act” a felony. (Emphasis added.)
Appellant relies heavily on People v. Bevan (1989) 208 Cal.App.3d 393, 256 Cal.Rptr. 233, a multiple conviction case in which the defendant was charged with three violations of section 288, subdivision (a) arising out of a single incident with a 12 year-old victim. The defendant kissed the victim, picked her up until her feet were off the ground, kissed her again, touched her breasts beneath her bra, then grabbed her wrist and put her hand on his penis. One count was based on touching of the victim's breasts, another was based on one kiss, and a third on forcing the victim to touch his penis. Bevan argued that his entire course of conduct constituted but a single violation of section 288, subdivision (a). The Bevan court reversed the convictions, reasoning that the earlier cases, including People v. Perez, supra, 23 Cal.3d 545, 153 Cal.Rptr. 40, 591 P.2d 63, involved “a course of conduct which consisted of a series of separate crimes, unlike the situation here, where none of the unlawful touching which took place was a separate crime from the offense of lewd and lascivious conduct towards a minor․ [¶] [F]ragmenting a single, brief course of lewd and lascivious conduct into separate offenses could lead to absurd results. As the offender moved his hands over various parts of the child's body, such as the neck, breasts, ears, lips, toes, thighs, etc., theoretically each touch could result in a separate charge, resulting in dozens of charges from a momentary single contact with the minor.” (People v. Bevan, supra, 208 Cal.App.3d at pp. 402–403, 256 Cal.Rptr. 233, emphasis added.)
The short answer to the Bevan argument is that since the case was decided before Harrison, it cannot be understood as explaining or applying the rationale of that Supreme Court decision. On the merits, the conduct of the defendant in Bevan, like the defendant in Perez and Harrison, was culpable because he chose to sexually assault his victim many times, rather than only once.
Appellant also relies on a more recent authority, People v. Bright (1991) 227 Cal.App.3d 105, 277 Cal.Rptr. 612, which did apply Harrison. Based on a videotape of the sexual conduct at issue, the Bright court upheld multiple convictions under section 288, subdivision (a), finding that “the record clearly shows they were separate acts and not preparatory to or necessarily associated with any other charged act.” (227 Cal.App.3d at pp. 109–110, 277 Cal.Rptr. 612.) Based on this language, appellant argues that his multiple convictions must be reversed because there is no evidence that the lewd acts charged were not preparatory or necessarily associated with the other charged acts against each victim. The record does not support him.
In determining whether appellant was improperly convicted of multiple offenses, we must first determine what conduct comes within the offense of lewd conduct with a minor under section 288, subdivision (a). Applying the Harrison analysis, we begin with the language and legislative history of the statute. As originally enacted in 1901, section 288 provided: “Any person who shall willfully and lewdly commit any lewd or lascivious act other than the acts constituting other crimes provided for in part two of this code upon or with ․ a child under the age of fourteen years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, shall be guilty of a felony and shall be imprisoned in the state prison not less than one year.” (Stats.1901, ch. 204, § 1, pp. 630–631, emphasis added.)
In 1937, the Legislature adopted the broad language still in effect: “Any person who shall wilfully and lewdly commit any lewd or lascivious act including any of the acts constituting other crimes provided for in part one of this code ․ shall be guilty of a felony․” (Stats.1937, ch. 545, § 1, p. 1562, emphasis added.) The obvious purpose of this amendment was to expand the scope of sexual conduct which may be punished under section 288. This language has remained unchanged through eight additional amendments of the statute in subsequent years.2
In light of the legislative determination that any lewd touching committed with the requisite intent constitutes an offense under section 288, we see no basis to deviate from the Harrison analysis. We conclude that appellant may be separately convicted under section 288, subdivision (a) for each separate lewd touching committed with the requisite intent, even though some or all of them may have occurred during a single episode.3
Appellant also argues that he may not be separately punished for his violations of section 288 against any single victim. Section 654 provides in pertinent part: “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; ․” There is a split of authority in the application of section 654 to multiple sex offenses. We join the court in People v. Madera (1991) 231 Cal.App.3d 845, 854, 282 Cal.Rptr. 674, and disagree with decisions that have reached a contrary result.
The California Supreme Court recently reaffirmed the governing principles enunciated in Neal v. State of California (1960) 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 357 P.2d 839: “ ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ [Citation.]” (People v. Latimer (1993) 5 Cal.4th 1203, 1208, 23 Cal.Rptr.2d 144, 858 P.2d 611, emphasis in Latimer.) “ ‘The defendant's intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.]’ [Citation.]” (People v. Coleman (1989) 48 Cal.3d 112, 162, 255 Cal.Rptr. 813, 768 P.2d 32.)
Appellant relies upon People v. Kirk (1990) 217 Cal.App.3d 1488, 267 Cal.Rptr. 126, which is also a section 288, subdivision (a) case. The evidence established that defendant went to the home of the minor victim, the daughter of a friend. As the victim hugged him at his request, the defendant touched her breasts through her clothing and gave her a “french kiss.” The defendant then pushed the victim down onto a couch, and holding her hands, removed her clothing and his own. During this incident the defendant placed his mouth on her breasts, digitally penetrated her vagina, had sexual intercourse with her and committed an act of oral copulation. He was convicted and punished on several counts based on this episode; he argued he only should have been punished for one.
In evaluating the defendant's argument, the Kirk court adopted a distinction between section 288 offenses drawn by the court in People v. Bothuel (1988) 205 Cal.App.3d 581, 252 Cal.Rptr. 596. “ ‘[A]cts of unlawful sexual intercourse [§ 261.5], sodomy [§ 286], oral copulation [§ 288a] and penetration by object [§ 289] accomplished with a minor under the age of 14 will support a conviction under section 288. In addition, various other forms of touching and fondling are also actionable under section 288.’ [Citation.] For ease of reference, we will refer to the former category of section 288 offenses as ‘defined sexual crimes' and the latter category of section 288 offenses as ‘undefined lewd acts.’ ” (217 Cal.App.3d at p. 1494, 267 Cal.Rptr. 126.) The Kirk court recognized that section 654 does not preclude separate punishment for section 288 violations based on “defined sex crimes,” even when they take place over a short time period. (Ibid.) But in cases in which both defined sex crimes and undefined crimes are committed, the court concluded that separate punishment for the undefined lewd acts is improper under section 654. (Id. at p. 1496, 267 Cal.Rptr. 126.) The court reasoned that, otherwise, “[i]t is too likely that the undefined lewd acts will regularly occur when consensual sexual intercourse takes place. Punishment of each of such acts which are incidental to sexual intercourse would lead to the absurd results discussed in Bevan.” (Ibid.)
We do not find this reasoning persuasive and decline to follow it. Such an approach fails to fulfill the legislative purpose to make any lewd touching a separate felony under section 288, whether or not such conduct may also be punished under another section of the Penal Code. Instead, we follow the approach of People v. Perez, supra, 23 Cal.3d 545, 153 Cal.Rptr. 40, 591 P.2d 63, in which the Supreme Court considered the propriety of punishment for multiple convictions of sexual offenses. In Perez, the defendant was convicted of forcible rape (§ 261, subd. (3)); robbery (§ 211), kidnaping (§ 207), forcible sodomy (§ 286), two counts of forcible oral copulation (§ 288a), and other offenses stemming from a 45 minute attack on the victim.
The Perez court began its analysis with a review of the general principles. “[I]t is well settled that section 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. (People v. Beamon, supra [ (1973) ], 8 Cal.3d  at p. 637 [105 Cal.Rptr. 681, 504 P.2d 905].) Whether a course of conduct is indivisible depends upon the intent and objective of the actor. (Neal v. State of California, supra, 55 Cal.2d at p. 19 [9 Cal.Rptr. 607, 357 P.2d 839].) ․” [¶] “[I]f the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct.” (People v. Perez, supra, 23 Cal.3d at p. 551, 153 Cal.Rptr. 40, 591 P.2d 63.)
The Perez court rejected the defendant's argument that section 654 applied because his sole intent was to obtain sexual gratification. “To accept such a broad, overriding intent and objective to preclude punishment for otherwise clearly separate offenses would violate the statute's purpose to insure that a defendant's punishment will be commensurate with his culpability. [Citation.] It would reward the defendant who has the greater criminal ambition with a lesser punishment. [Citation.] [¶] A defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act. [Citations.]” (23 Cal.3d at pp. 552–553, 153 Cal.Rptr. 40, 591 P.2d 63.)
Section 654 had no application, the Perez court concluded, because “[n]one of the sex offenses was committed as a means of committing any other, none facilitated commission of any other, and none was incidental to the commission of any other. We therefore conclude that section 654 does not preclude punishment for each of the sex offenses committed by defendant.” (23 Cal.3d at pp. 553–554, 153 Cal.Rptr. 40, 591 P.2d 63.)
As we have seen, the Supreme Court reaffirmed the Perez approach in People v. Harrison, supra, 48 Cal.3d 321, 256 Cal.Rptr. 401, 768 P.2d 1078, in rejecting the defendant's argument that his multiple punishment was in violation of section 654. The Harrison court explained that the decision in Perez was not limited to cases where a variety of sex acts were committed in sequence. “We note that Perez itself made no such factual distinction. Its section 654 analysis was directed to any case in which ‘a number of base criminal acts' were committed against a single victim. (23 Cal.3d at p. 553 [153 Cal.Rptr. 40, 591 P.2d 63].) In light of the statute's purpose, no importance was placed on the instrumentality used or body cavity penetrated. Our reasoning was also based, in part, upon two prior decisions of this court in which defendants had repeated certain sex crimes. For example, in People v. Hicks (1965) 63 Cal.2d 764, 766 [48 Cal.Rptr. 139, 408 P.2d 747] ․, we held that section 654 did not preclude separate punishment for three sex offenses, even though defendant was convicted of two counts of oral copulation and one of sodomy against the same victim in the same sexual encounter. The same principle applied in In re McGrew, supra [ (1967) ], 66 Cal.2d  at pages 688 to 689 [58 Cal.Rptr. 561, 427 P.2d 161], with regard to punishing defendant's conviction of two counts of rape and one of oral copulation.” (48 Cal.3d at p. 337, 256 Cal.Rptr. 401, 768 P.2d 1078, original emphasis.)
The Harrison court also rejected the defendant's attempt to distinguish Perez and other cases based on the sequence in which crimes were committed. “No purpose is to be served under section 654 by distinguishing between defendants based solely upon the type or sequence of their offenses. Such an analysis would dispense punishment on the basis of the sexual taste or imagination of the perpetrator, and would not address the concerns raised in Perez, supra, 23 Cal.3d 545, 153 Cal.Rptr. 40, 591 P.2d 63. To adopt such an approach would mean that ‘once a [defendant] has committed one particular sexual crime against a victim he may thereafter with impunity repeat his offense,’ so long as he does not direct attention to another place on the victim's body, or significantly delay in between each offense. [Citation.] However, it is defendant's intent to commit a number of separate base criminal acts upon his victim, and not the precise code section under which he is thereafter convicted, which renders section 654 inapplicable.” (48 Cal.3d at pp. 337–338, 256 Cal.Rptr. 401, 768 P.2d 1078, original emphasis.)
The Kirk analysis was also rejected in People v. Madera, supra, 231 Cal.App.3d 845, 854, 282 Cal.Rptr. 674, still another section 288, subdivision (a) case. The evidence had established several incidents between the victim and defendant, each involving at least one lewd touching as defined in section 288, subdivision (a). Some, but not all of them also involved oral copulation. The defendant had often initiated encounters by rubbing the victim's penis to waken him. The Madera court found that conduct the proper subject of separate punishment: “The fact that the touching or rubbing of [the victim's] penis preceded the oral copulation and/or sodomy, on the occasions when such additional violations occurred, does not establish that the touching of [the victim's] penis was merely incidental to or facilitative of the later acts. Certainly the acts denounced by sections 288a and 286 are capable of commission without an initial touching or rubbing of the victim's penis․ [¶] In our view, section 654 applies where the undefined sex act directly facilitates or is merely incidental to the commission of a defined lewd act. (People v. Perez, supra, 23 Cal.3d at pp. 553–554, 153 Cal.Rptr. 40, 591 P.2d 63.) For example, section 654 would bar separate punishment for applying lubricant to the area to be copulated.”
The Madera court reasoned: “[T]he probability that an undefined sex act may occur in the same transaction as a defined sex act does not render it ‘incidental,’ nor does it insulate the undefined sex act from separate punishment. The distinction for punishment purposes between undefined sex acts designed generally to arouse and those intended directly to facilitate defined sex acts recognizes the relatively greater culpability of the defendant who commits the former. The reason for the distinction is readily evident. The undefined act is a separate insult to the body—and the spirit—of an unwilling victim or a victim who is statutorily protected by law because of his or her minority, or both. The culpability of the perpetrator is not diminished by the fact the intrusion is ‘undefined’ in the law.” (231 Cal.App.3d at p. 855, 282 Cal.Rptr. 674.)
We agree with this analysis, which recognizes the intent of the Legislature to punish lewd and lascivious touching as a sex offense under section 288. We turn next to an application of multiple conviction and punishment issues to the contested counts on appeal.
B. Alba A.
Appellant was convicted of two violations of section 288, subdivision (a) against Alba A. (counts 2 and 3). Alba testified that appellant touched her between her thighs; squeezed her “behind”; and touched her “middle part” between her legs. The prosecutor elected the incident in which appellant squeezed Alva's “behind” as the basis for count 2, and the incident in which appellant touched her “middle part” as the basis for count 3.
Appellant argues that there is insufficient evidence that these acts occurred on separate occasions as required by Bevan, or that they were not necessarily associated with each other under People v. Bright, supra, 227 Cal.App.3d 105, 109–110, 277 Cal.Rptr. 612. We disagree.
Alva first testified about the incident in which appellant rubbed her thigh. This was the same day that appellant touched her “middle part,” the basis for count 3. Alva testified that the incident on which appellant squeezed her “behind”, the basis for count 2, was on a different occasion than when he rubbed her thigh.
Based on this testimony, and the prosecutor's election of the conduct on which counts 2 and 3 were based, we conclude that appellant was convicted for conduct which occurred on two separate occasions. We find no basis to reverse the convictions on counts 2 and 3, or to stay the punishment for either under section 654.
C. Sandra M.
Appellant was convicted of two violations of section 288, subdivision (a) against Sandra M. (counts 13 and 14). She testified that on more than one occasion, appellant put his hand inside her underpants and rubbed her vagina. She also testified that he rubbed her buttocks, although she was unable to say whether this happened more than once. When asked what happened after appellant touched her vagina, Sandra said: “He would only touch me in the front and the back.” Sandra gave no other testimony clearly distinguishing the incidents.
There was no evidence that this conduct was merely preparatory to or incidental to another act. “Although the question of whether defendant harbored a ‘single intent’ within the meaning of section 654 is generally a factual one, the applicability of the statute to conceded facts is a question of law. [Citation.]” (People v. Harrison, supra, 48 Cal.3d at p. 335, 256 Cal.Rptr. 401, 768 P.2d 1078.) We conclude that appellant was properly convicted of and punished for two separate violations of section 288, subdivision (a) as to victim Sandra M.
D. Josefina N.
Appellant was convicted of three counts of lewd conduct against Josefina N. (§ 288, subd (a)—counts 15, 17, 18) and one count of forcible lewd conduct (§ 288, subd. (b)—count 16).
Josefina testified to three separately defined sexual crimes committed by appellant, each of which occurred only once: penetration of her vagina by appellant's penis; digital penetration of her buttocks; and forced masturbation of appellant's penis. She also testified to the separately defined sexual crime of digital penetration of her vagina, which happened four times. Josefina's testimony as to these four digital penetrations was generic; she provided no testimony regarding the circumstances in which each was committed. Josefina also testified to five categories of other lewd acts committed by appellant: (1) circular rubbing of the outside of her vaginal area; (2) circular rubbing of her buttocks; (3) touching her breasts under her clothes; (4) licking her ears; and touching her upper thigh. Josefina's testimony regarding the frequency of these occurrences was inconsistent. At one point she said that the offenses took place daily, and at another she said that they happened once a week.
Appellant argues: “Neither the prosecutor nor the court instructed the jury that the undefined lewd acts had to occur on separate occasions within the meaning of Bevan, or that they could not be preparatory or necessarily associated with any other charged act under Bright. Under these circumstances, the jury could have split up appellant's undefined lewd acts occurring at the same time, or necessarily associated with each other, into four separate counts. Therefore, only one conviction can stand; and only one count can be punished.”
As we have seen, the mere fact that more than one touching within the meaning of section 288, subdivision (a) was committed in a single episode is not a basis for reversal of multiple convictions or for the application of section 654 under People v. Harrison, supra, 48 Cal.3d 321, 256 Cal.Rptr. 401, 768 P.2d 1078, and People v. Perez, supra, 23 Cal.3d 545, 153 Cal.Rptr. 40, 591 P.2d 63.
Moreover, there was no testimony that any of the touchings recounted by Josefina was incidental to another act, or committed for the purpose of facilitating another act, such as the application of lubricants for a penetration offense as suggested by the court in People v. Madera, supra, 231 Cal.App.3d at p. 855, 282 Cal.Rptr. 674. We are satisfied that there is no basis for reversal of the convictions or for application of section 654 on this record.
E. Darlene R.
Appellant was charged with four offenses against victim Darlene R.: one violation of section 288, subdivision (a) (count 24); two violations of section 288, subdivision (b) (counts 23 and 25), and one violation of section 289 (count 26). The jury deadlocked on count 23, acquitted appellant on count 26, convicted him of count 24 as charged (a violation of § 288, subd. (a)), and of the lesser offense under section 288, subdivision (a) as to count 25. Appellant argues that his multiple convictions and punishments cannot stand because the acts may have been improperly fragmented by the jury.
Darlene testified that appellant touched her on her chest, buttocks, and “cuca” (vaginal area). She said that he touched her “cuca” under her panties five to ten times. Appellant put his hand inside her “cuca.” Sometimes, he would rub her “cuca” and her back. Appellant also rubbed her upper legs near her vaginal area.
In closing argument, the district attorney summarized Darlene's testimony about appellant's digital penetration of her vagina, and the other acts of rubbing her chest, and her “cuca.” He did not mention the rubbing of Darlene's back. The district attorney then elected the digital penetrations as the basis for these counts: “[Y]ou don't have to use her testimony regarding the rubbing of her chest or the rubbing of her cuca on page 582, but just the five to ten times that he put his fingers inside of her cuca․ She says five to ten times. You only need to find four acts, because there are only four counts that pertain to Darlene [R.]. [¶] So you can use the first four of those five to ten times that he's putting his finger inside of her cuca as the basis for a verdict of guilt as to those four counts.” 4
Applying the principles enunciated in Perez and Harrison, we conclude that appellant was properly convicted of two separate violations of section 288, subdivision (a). There was no testimony that more than one penetration was committed on any single occasion.
F. Jury Instruction
Appellant also argues that the trial court should have instructed the jury on the fragmentation rationale of People v. Bevan, supra, 208 Cal.App.3d 393, 256 Cal.Rptr. 233. As we have explained, we disagree with this part of the Bevan decision, finding it inconsistent with both People v. Perez, supra, and People v. Harrison, supra. We therefore conclude that the trial court had no duty, sua sponte or otherwise, to instruct the jury on the principles set forth in Bevan. (See People v. Harrison, supra, 48 Cal.3d at pp. 333–334, fn. 9, 256 Cal.Rptr. 401, 768 P.2d 1078.)
Appellant also argues that the trial court had a sua sponte duty to instruct the jury that it could not convict appellant of separate violations of section 288, subdivision (a) unless they were “not preparatory to or necessarily associated with any other charged act.” As we have discussed, there was no evidence that appellant's acts were preparatory, or incidental to other offenses. Each was a separate offense. For this reason, we conclude that the trial court had no duty to instruct the jury on these principles with respect to the multiple conviction issue. The determination of whether or not appellant's offenses are divisible in order to apply section 654 precluding multiple punishment, is made by the trial court, rather than the jury. (See People v. Coleman, supra, 48 Cal.3d at p. 162, 255 Cal.Rptr. 813, 768 P.2d 32.)
Within 20 days of the filing of the remittitur, the People may file a request with the trial court for modification of the judgment reducing the offense of forcible lewd conduct with a minor (§ 288, subd. (b)) in count 17 to lewd conduct with a minor under section 288, subdivision (a). Should such a request be filed, the trial court shall resentence defendant for forcible lewd conduct with a minor (counts 8 and 33); and lewd conduct with a minor (counts 2, 3, 13, 14, 15, 16, 17, 18, 19, 24, 25, and 29). Should such a request not be filed, the appellant may be retried on count 17. The judgment is affirmed in all other respects.
1. The jury also convicted appellant of one charged count of lewd conduct with Josefina N. under section 288, subdivision (a).
FOOTNOTE. See footnote *, ante.
2. Section 288 was amended by Stats.1976, ch. 1139, § 177, p. 5110; Stats.1978, ch. 579, § 17, p. 1984; Stats.1979, ch. 944, § 6.5, p. 3254; Stats.1981, ch. 1064, § 1, p. 4093; Stats.1986, ch. 1299, § 4, p. 4595; Stats.1987, ch. 1068, § 3, p. 3609; Stats.1988, ch. 1398, § 1, p. 4730; Stats.1989, ch. 1402, § 3, p. 6139.
3. We note that appellant does not challenge the sufficiency of the evidence that he acted with the specific sexual intent.
4. The jury unanimity issue involved in these charges is discussed later in this opinion.
FOOTNOTE. See footnote *, ante.
EPSTEIN, Acting Presiding Justice.
CHARLES S. VOGEL and HASTINGS, JJ., concur.