IN RE: TRAVIS C. (1992)

By a petition filed under Welfare and Institutions Code section 602, appellant Travis C., a 14–year old minor, was charged with two felony counts of violating Penal Code 2 section 288, subdivision (a) (lewd and lascivious acts upon a child under the age of 14) and two misdemeanor counts of violating section 647.6 (annoying and molesting a child under the age of 18).   The felony counts were found true beyond a reasonable doubt;  the misdemeanor counts were dismissed;  and appellant was determined to be a minor coming under the provisions of Welfare and Institutions Code section 602 (i.e., adjudged a ward of the court).   The maximum term of confinement was set at 10 years, less credit for time served, and appellant was placed on probation subject to various conditions.

The principal issues raised on appeal are (1) insufficiency of the evidence to sustain the true findings, and (2) the improper segmenting of the acts into separate offenses when they should have been found as a matter of law to be continuous conduct constituting only one offense.

I. Facts

We take the facts in the light most favorable to the judgment.  (In re Charles G. (1979) 95 Cal.App.3d 62, 66–67, 156 Cal.Rptr. 832.)   On the evening of January 7, 1991, 11–year–old Terry M. (the victim) spent the night at the home of her best friend, 12–year–old Amy C., as she had done on several previous occasions.   Appellant is Amy's 14–year–old brother, who resided with Amy and their mother.

The victim arrived at Amy's house at about 4 p.m. on January 7.   That evening appellant, the victim and Amy watched television together.   While they watched television, appellant rubbed the victim's back on the outside of her clothing.

At about 10 p.m., Amy and the victim prepared to go to bed in Amy's room.   As was her habit, Amy placed an extra mattress on the floor for the victim.   The victim wore to bed a sweater, panties and sweatpants with an elastic waistband.

Appellant asked if he could sleep in Amy's room, as he had done on prior occasions when the victim spent the night, claiming he was afraid of the dark.   They agreed and Amy placed another mattress on the floor next to the victim's mattress.   After turning out the lights, the three talked for a while before going to sleep.

The victim testified that she awoke in the middle of the night to find appellant had reached his hand under her panties and was touching her between her legs in her frontal crotch area.   At the time of the first touching, the victim was lying on her back.   She slapped appellant, turned away from him onto her side and pulled the covers over herself.   However, appellant reached his hand a second time under her panties and touched her crotch in the lower area.   The victim turned toward appellant, slapped him again, and then, frightened, got up and ran into the bathroom.

After washing her face, she returned to Amy's room and noticed appellant was awake.   She did not speak to him and lay down by the closet to sleep.   She awoke again around 3 a.m. when appellant left the room.   She then returned to her mattress and went to sleep.

The victim and Amy awoke at 5 a.m. to prepare to catch the school bus.   Appellant was scheduled to take the same bus.   The victim took a shower and then returned to Amy's room and lay down.   Soon thereafter she went home and told her mother of the two touchings.   The victim's mother testified the victim came home crying and shaking, saying appellant had touched her “front and butt.”   Amy did not attend school that day.   The victim's mother subsequently reported the incident to police.

Officer Partida investigated the alleged molestation.   She interviewed the victim, who told her appellant had touched her twice on the buttocks but did not mention any touching of the crotch area.   The victim later testified she did not know why she failed to mention to Partida that appellant had touched her crotch.

Partida also interviewed appellant, who denied the touchings had occurred.   Appellant told Partida he did sleep in the room, but had not asked to do so.   He also told Partida he awoke that night when the victim went to the bathroom, and when the victim returned she commented that it was hot.   Appellant told Partida he then left the room, turned on the air-conditioner, and returned to his own room.   Appellant's mother saw that he was in his room by around 3:30 a.m.   However, appellant's mother told Partida the air-conditioner was not on at that time.

II. There Is Substantial Evidence to Support the True Findings *

III. It Was Improper to Base Two Separate Violations of Section 288, Subdivision (a) on a Single Brief Episode

Appellant contends it was improper to make separate true findings as to two different violations of section 288, subdivision (a).   He claims both touchings were part of a single violation of section 288, subdivision (a) because they were directed toward a single victim, took place in the same room, and occurred within a brief period of time.   Accordingly, he argues it was improper to “fragment” the single offense into multiple crimes for purposes of either conviction or punishment, relying on People v. Bevan (1989) 208 Cal.App.3d 393, 399, 256 Cal.Rptr. 233.³

In People v. Bevan, supra, 208 Cal.App.3d 393, 256 Cal.Rptr. 233, the defendant was charged with multiple violations of section 288, subdivision (a) for three separate acts (kissing, touching the breasts, and placing the victim's hand on his exposed penis), all of which occurred during one encounter.   The court concluded that because each act was but one part of a single episode of lewd and lascivious conduct and did not by itself constitute a separately defined offense, there was only one punishable crime:  the single episode of lewd conduct.  (208 Cal.App.3d at p. 403, 256 Cal.Rptr. 233.)

Bevan was decided before People v. Harrison (1989) 48 Cal.3d 321, 256 Cal.Rptr. 401, 768 P.2d 1078, in which the Supreme Court concluded that three digital penetrations, all of which occurred during a single episode and were separated by only brief intervals, could properly serve as the basis for multiple convictions and punishments.  Harrison rejected the argument that the crime was singular, even though the acts were identical and committed in rapid succession as part of a single assault.  (Id. at p. 334, 256 Cal.Rptr. 401, 768 P.2d 1078.)   It also held that section 654 did not preclude multiple punishments because none of the multiple offenses was necessary for the commission of any of the other offenses, nor was any merely incidental to the other offenses.  (Id. at pp. 335–338, 256 Cal.Rptr. 401, 768 P.2d 1078.)

We must decide whether Bevan survives Harrison.   Appellant points out that Harrison involved criminal conduct specifically defined and singularly proscribed by statute, i.e., “any penetration, however slight.”   Appellant urges that because the Harrison court focused on the precise statutory language defining when the offense was complete, Harrison should be limited to those cases in which the serial offenses are specifically defined by statute.   However, when, as here, the statute does not define what act completes the offense, appellant urges that we follow Bevan 's admonition to resolve statutory ambiguity in favor of leniency and hold that each component act of a single episode of lewd and lascivious conduct should not form the basis for multiple offenses.⁴

The People argue we should instead adhere to People v. Bright (1991) 227 Cal.App.3d 105, 277 Cal.Rptr. 612.   In Bright, a defendant was convicted and sentenced for numerous section 288, subdivision (a) offenses, even though many of the convictions arose from single encounters.   The Bright court peremptorily rejected Bevan 's “defined versus undefined act” approach and instead applied Harrison to the section 288, subdivision (a) charges.  Bright reasoned that because Harrison approved separate convictions for separate acts committed in rapid succession during a single episode, multiple section 288, subdivision (a) convictions were proper where the evidence showed the acts were separate and not preparatory to or necessarily associated with the other charged acts.  (227 Cal.App.3d at pp. 109–110, 277 Cal.Rptr. 612.)

We conclude Bevan does survive Harrison, and decline to follow Bright, because Harrison focused on a statute dissimilar from section 288.  Harrison dealt with section 289, and its approach was inextricably tied to the fact that the offenses there (i.e., penetrations with a foreign object) were statutorily defined to be complete on “any penetration, however slight.”   We need look no further than Harrison 's prefatory comments to verify that Harrison is a case of statutory interpretation, not one that establishes a broad rule applicable to any and all sex crimes.⁵  We note that the Harrison court focused at great length on the statutory language.  (People v. Harrison, supra, 48 Cal.3d at pp. 327–333, 256 Cal.Rptr. 401, 768 P.2d 1078.)   It concluded that section 289's language (i.e., “penetration, however slight”) in combination with section 263's language (i.e., “essential guilt ․ consists in the outrage to the person and feelings of the victim ․”) illuminated the peculiar outrage, thus forcing the conclusion that the crime occurred each time a penetration was forced, even though several penetrations occurred in a single episode.  (Id. at p. 330, 256 Cal.Rptr. 401, 768 P.2d 1078.)

While we would of course be bound to follow Harrison in cases where the crime committed involves legislatively defined conduct, neither our case nor Bevan involved crimes where the offending “act” is narrowly defined.   To the contrary, section 288, subdivision (a) is a broad-brush statute.   Mechanically applying Harrison to section 288, subdivision (a) could “fragment[ ] a single, brief course of lewd and lascivious conduct into separate offenses [and] lead to absurd results ․ [where] 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 p. 403, 256 Cal.Rptr. 233.)   Applying Harrison to section 288 would include adopting Harrison 's draconian penalties without a similar statutory backdrop suggesting such was the legislative intent.   We instead follow Bevan 's admonition:

“ ‘When [the Legislature] has the will it has no difficulty in expressing it—when it has the will, that is, of defining what it desires to make the unit of prosecution and, more particularly, to make each stick in a faggot a single criminal unit.   When [the Legislature] leaves to the Judiciary the task of imputing to [the Legislature] an undeclared will, the ambiguity should be resolved in favor of lenity․  [D]oubt will be resolved against turning a single transaction into multiple offenses, when we have no more to go on than the present case furnishes.’  [Bell v. United States (1955) 349 U.S. 81, 83–84, 75 S.Ct. 620, 622, 99 L.Ed. 905].”  (People v. Bevan, supra, 208 Cal.App.3d at p. 403, 256 Cal.Rptr. 233.)

IV. The Conditions of Probation Are Proper **

DISPOSITION

The judgment is reversed and remanded for entry of judgment in conformity with this opinion, and for resentencing.

FOOTNOTES

FN2. All statutory references are to the Penal Code unless otherwise specified..  FN2. All statutory references are to the Penal Code unless otherwise specified.

FOOTNOTE.   See footnote 1, ante.

3.   Appellant also contends that even if separate convictions were proper, section 654 precludes separate punishments.   Additionally, he contends the court failed to designate which touching applied to which count.   Since we find that the several touchings constituted only one offense, we do not discuss these related contentions.

4.   In a case decided after Harrison, the court in People v. Kirk (1990) 217 Cal.App.3d 1488, 267 Cal.Rptr. 126 followed Bevan 's distinction between “defined” and “undefined” offenses.   However, it grounded its conclusion (i.e., multiple lewd acts that occur in a single episode but are not specifically defined offenses cannot be punished separately) in section 654 concerns rather than in terms of the propriety of multiple convictions.  Kirk did quote (with apparent approval) the central theme of Bevan:  “․ ‘fragmenting 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.’ [quoting People v. Bevan, supra, 208 Cal.App.3d at p. 403, 256 Cal.Rptr. 233].”  (People v. Kirk, supra, 217 Cal.App.3d at p. 1495, 267 Cal.Rptr. 126.)  Kirk did not, however, reference or distinguish Harrison.

5.   The Harrison court, noting defendant's claim that three penetrations constituted one offense extending from initial penetration through final withdrawal, previewed its analysis by stating, “[defendant's] claim [of one offense] is belied by the plain meaning of section 289, and by the consistent interpretation of sister statutes which use materially similar language.”  (48 Cal.3d at p. 327, 256 Cal.Rptr. 401, 768 P.2d 1078, emphasis added.)

FOOTNOTE.   See footnote 1, ante.

FROEHLICH, Associate Justice.

WIENER, Acting P.J., and WORK, J., concur.