PEOPLE v. SOTO (1993)

A jury convicted appellant of 15 counts of child molestation (11 counts of Penal Code 1 section 288, subdivision (a) and 4 counts of section 288, subdivision (c)), found true an allegation that appellant “made friends with the child victim[s] for the purpose of committing” the molestations (§ 1203.066, subd. (a)(3)), and, in a bifurcated trial, found true allegations appellant had suffered two prior convictions of section 288.   Appellant was sentenced to a 40–year, 8–month state prison term.

Appellant contends reversal of the judgment is required because of a variety of errors including chronologically overbroad charges, instructional error (People v. Wallace (1992) 11 Cal.App.4th 568, 14 Cal.Rptr.2d 67), improper restriction of cross-examination, insufficient evidence, and sentence errors.   We find no prejudicial error and affirm the judgment.

FACTUAL BACKGROUND

We summarize the facts, deferring a more detailed description to our discussion of appellant's insufficiency of evidence claims.   Our perspective favors the judgment.  (People v. Barnes (1986) 42 Cal.3d 284, 303–304, 228 Cal.Rptr. 228, 721 P.2d 110.)

In June 1989 Mrs. H. and her two daughters,² 12–year–old Elisa and 10–year–old Marina, moved to a residence on 9th Street in San Pedro.   Mrs. H. did not work and had little funds.   The residence was without furniture and, for a time, without electricity.

Appellant, 65 years old, lived a few houses away on 9th Street.   Appellant walked his dog every evening.   The sisters met appellant when they asked to pet his dog.   They saw appellant every day.   He bought them barrettes for their hair and often gave their family money for bread and milk.

In August 1989 Mrs. H. moved her family to 14th Street, also in San Pedro.   Appellant helped them move.   He visited them frequently, often taking the sisters shopping and buying them clothes.   He also took the sisters to restaurants and always paid.   He bought a refrigerator and washing machine for the family.   Sometimes he only took Elisa out.   When she sat next to him in his car he began touching her.   He touched her breasts and on two separate occasions put his hand inside her panties and touched her vagina.

In June 1990 Mrs. H. and her family moved to Fries Street in Wilmington.   Appellant continued his frequent visits, continued buying clothes and meals for the sisters, and continued taking each of them out alone.   When driving alone with Marina he frequently touched her legs and vaginal area, including inside her underwear.   Once he took her to his house, orally copulated her, and had her orally copulate him.   Twice, on Sundays, he took Elisa to his house and had intercourse with her.

In August 1991 Mrs. H. and her family moved to Torrance.   Again, appellant continued his visits.   He took Marina out, bought her meals and clothes, and continued to sexually touch her.   On one occasion he took her to the Vagabond Hotel in San Pedro and attempted sexual intercourse and on another he took her to an alley and had her orally copulate him.   On the way home he gave her money.

Around Christmastime 1991 Marina told someone about the molestations.   On January 5, 1992, Mrs. H. learned of them and called the police.   Appellant was arrested.

Appellant did not testify.   He produced alibi and character witnesses.

DISCUSSION

1. Appellant contends he was denied due process because the charges were not time specific.

 Appellant, in reliance upon People v. Van Hoek (1988) 200 Cal.App.3d 811, 246 Cal.Rptr. 352, argues he was prevented from presenting an alibi defense by charges which alleged periods of commission as long as 14 months.³  This argument was considered and rejected in People v. Jones (1990) 51 Cal.3d 294, 270 Cal.Rptr. 611, 792 P.2d 643, a decision which disapproved Van Hoek.  (Id. at p. 322, 270 Cal.Rptr. 611, 792 P.2d 643.)

In Jones, our Supreme Court stated:  “Does the fact that the child victim cannot recall or relate specific dates, locations or other details of the offenses inevitably preclude a defense?   We think not.   Defendant stresses his inability to assert an alibi defense to generic charges.   But as explained in several decisions, only 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.”  (Id. at p. 319, 270 Cal.Rptr. 611, 792 P.2d 643.)

Appellant asserts Jones is not controlling because it only applies to a “resident child molester” and since he did not reside with the victims not have unchecked access to them, he is not a “resident child molester.”   We are not persuaded.

The record demonstrates that for 18 months appellant did have unchecked access to the victims.   Mrs. H. trusted him to take either victim out alone in the evening or on weekends.   The victims also trusted appellant and called him “Grandpa.”

The contention is without merit.

2. Appellant contends the trial court committed instructional error in defining “lewd act”.

 Both sections 288, subdivision (a) and 288, subdivision (c) require the commission of a “lewd” act or touching.   Although the trial court so instructed the jury it defined “lewd act” as “any touching of the body of the child with the specific intent to arouse, appeal to, or gratify the sexual desires of either party.”  (CALJIC No. 10.42.5 (1989 new) and CALJIC No. 10.41.)  (Emphasis added.)

Appellant, in reliance upon People v. Wallace (1992) 11 Cal.App.4th 568, 14 Cal.Rptr.2d 67, contends the trial court erred in so defining “lewd act.”   We agree.⁴

As we recently stated in People v. O'Connor (1992) 8 Cal.App.4th 941, 947, 10 Cal.Rptr.2d 530 a “lewd touching” is an element of section 288 separate from “the intent of sexual arousal.”   The trial court erred in instructing the jury that “any touching” with the intent of sexual arousal constituted a violation of the statute.   The error, however, was harmless beyond a reasonable doubt.  (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705;  People v. Self (1993) 12 Cal.App.4th 1222, 1226–1227, 16 Cal.Rptr.2d 67.)

Unlike People v. Wallace, all the relied upon touchings were unambiguously sexual.   Nor, as in Wallace, did the prosecutor argue that any touching could violate the statute.   To the contrary, in describing the offense elements she separately listed “lewd act.”   Similarly, defense counsel ignored the specifics of the touchings and argued they simply had not occurred.

3. Appellant contends the trial court improperly restricted his cross-examination.

 On cross-examination of Mrs. H. defense counsel asked:  “On Wilmington you had a plant in your house you called baby, didn't you?”   The trial court asked counsel to approach the bench and then inquired about the relevance of the question.   Defense counsel responded that “baby” was a marijuana plant and it was relevant “because she let her kids smoke it.   If you're going to break that kind of law, she's apt to lie, too.”

The trial court excluded the evidence as irrelevant and more prejudicial and confusing than probative.  (Evid.Code, § 352.)

Appellant argues the trial court erred because the “information ․ was ․ relevant not only to impeach [Mrs. H.] but more importantly to impeach Marina and Elisa, by showing that their recollection of the events may have been tainted by the use of illegal drugs.”

This latter “more important” purpose was not made known to the trial court and accordingly may not be considered on appeal.  (Evid.Code, § 354;  People v. Morse (1992) 2 Cal.App.4th 620, 636, 3 Cal.Rptr.2d 343.)

Excluding this line of cross-examination was well within the trial court's broad discretion.  (People v. Whitt (1990) 51 Cal.3d 620, 646–665, 274 Cal.Rptr. 252, 798 P.2d 849;  People v. Scott (1980) 113 Cal.App.3d 190, 198, 169 Cal.Rptr. 669.)

4. Appellant contends the evidence is insufficient to sustain counts 1–4 and counts 14 and 15.

 Counts 1 through 4 each alleged appellant had molested Marina during the period 6/1/90–8/31/91, the time when she lived in Wilmington.

Marina testified that during this period appellant often took her out in his car and touched her legs and private parts;  that about four times he touched her vaginal area inside her underwear.   Additionally, during this period, he took her to his house and touched her vaginal area with his hand and tongue and had her touch his penis with her mouth until “white stuff” came out.

Appellant argues that this testimony “is clearly deficient in the description of (1) the kind of acts committed and (2) in the description of the number of acts committed.”

This argument (protesting “generic” testimony) was considered and rejected by People v. Jones, supra, 51 Cal.3d 294.   It remains unavailing.

Appellant makes a similar argument regarding counts 14 and 15, violations of section 288, subdivision (c) committed against Elisa during the same period.

Elisa testified that during this period appellant, on two separate occasions, took her to his house and had intercourse with her (counts 12 and 13).   Additionally, she testified that twice, while alone with appellant in his car he touched her vaginal area (counts 14 and 15).   Although such testimony may be “generic,” if believed it is sufficient to sustain a conviction.  (People v. Jones, supra, 51 Cal.3d 294, 270 Cal.Rptr. 611, 792 P.2d 643.)

5. Appellant contends the evidence is insufficient to sustain counts 12–15 because the crimes may have been committed when Elisa was not 14 years old but only 13 years old.

 In counts 12–15 appellant was charged with violations of section 288, subdivision (c).   That section provides:  “Any person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and the defendant is at least 10 years older than the child, shall be guilty of a public offense and shall be imprisoned in the state prison for one, two, or three years, or by imprisonment in the county jail for not more than one year.”

Appellant argues that since the evidence shows ⁵ the victim in all four counts (Elisa) may have been not “a child of 14 or 15 years” but a child of 13 years, the convictions must be reversed.   We disagree.

Subdivisions (a) and (c) of section 288 prohibit the identical conduct.   If that conduct is committed against a 13–year–old child the perpetrator may be imprisoned for eight years (§ 288, subd. (a)), if committed against a 14– or 15–year–old child the perpetrator may be imprisoned no more than three years.

But if, as in the instant case, the conduct was committed against a victim who was either 13 or 14 years old, did the legislature intend the perpetrator to go free?   We hold the answer is no.

“ ‘The fundamental rule of statutory construction is that the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law.’   In interpreting particular words, phrases or clauses in a statute, it is a cardinal rule that the entire substance of the statute or that portion relating to the subject under review should be examined in order to determine the scope and purpose of the provision containing such words, phrases, or clauses.   The words in question ‘must be construed in context, keeping in mind the nature and obvious purpose of the statute․’ ”  (West Pico Furniture Co. v. Pacific Finance Loans (1970) 2 Cal.3d 594, 607–608, 86 Cal.Rptr. 793, 469 P.2d 665.   Internal citations omitted.)

We hold that section 288, subdivision (c) is violated when all its elements have been proved except the victim instead of being “a child of 14 or 15 years” is a child of 13 years.

6. Appellant contends the evidence is insufficient to sustain both counts 8 and 9.

 Counts 8 and 9 were based upon appellant's conduct with Marina in the Vagabond Hotel.   Appellant argues the evidence showed only a single act of intercourse—one touching—supportive of only one crime, not two.   We disagree.

The record shows more.   The jury could reasonably have concluded that separate from the act of intercourse appellant touched Marina's vagina with his hand.   Marina testified that while in the Vagabond Hotel she was naked and appellant had his pants off.   She further testified that before intercourse appellant touched her with his hand.   Although imprecise, in context, the jury could reasonably have concluded this “touching” was a “lewd act” separately proscribed by section 288.  (People v. Harrison (1989) 48 Cal.3d 321, 256 Cal.Rptr. 401, 768 P.2d 1078.)

7. Appellant contends the trial court erred in imposing consecutive sentences on counts 1–4, and counts 8 and 9.

 In imposing consecutive sentences the trial court expressly relied upon California Rules of Court, rule 425(a)(3):  “The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.”

Appellant contends that, regarding counts 1–4, 8 and 9, the evidence fails to support the trial court's “different times” reason.   We disagree.

Viewing the entire record, as the trial court did, appellant's conduct cannot be considered “a single period of aberrant behavior.”   During an 18–month period appellant pursued the victims despite their relocating to 14th Street, to Wilmington, and to Torrance.   According to the victims' testimony appellant molested them more than the alleged 15 times and in such diverse places as his car, his house, the Vagabond Hotel, and in an alley.

We find no error in the trial court's sentence choice.

8. Appellant contends the trial court erred in imposing an eight year upper term.

 In imposing the upper eight year term on count 1 the trial court, among other reasons, relied upon appellant having carried out the crimes with “planning.”  (Cal.Rules of Court, rule 421(a)(8).)

Appellant claims “it is unclear what the court meant by planning.   There was no explanation as to what planning the court was referring to and the facts do not indicate planning.”   Appellant is mistaken.

Among other things, appellant's planning consisted of the following:  (1) buying clothes, food, and other gifts for the victims (2) buying home appliances for the victims and their mother (3) taking each victim out separately so he would be alone with her (4) bringing each victim to his house when no one else was there and (5) making arrangements at the Vagabond Hotel.

9. Appellant contends his two prior child molestation convictions are constitutionally defective.

 In 1961 appellant, represented by counsel, had a court trial consisting of a submission on the transcript of the preliminary hearing.   He was convicted of child molestation.  (§ 288.)

In 1971 appellant, represented by counsel, pleaded guilty to child molestation.  (§ 288.)

Both convictions were alleged and found true.

Appellant, in reliance upon Bunnell v. Superior Court (1975) 13 Cal.3d 592, 119 Cal.Rptr. 302, 531 P.2d 1086 and similar cases contends his convictions are constitutionally defective because the record fails to show he was advised of and waived all his constitutional rights.   Appellant is mistaken.

In People v. Sumstine our Supreme Court held “that a defendant may move to strike a prior conviction on Boykin [v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969) ]/[In re] Tahl [1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449 (1969) ] grounds, but it is not enough for him to allege that the record of his prior conviction is silent regarding those rights.   He must affirmatively allege that at the time of his prior conviction he did not know of, or did not intelligently waive, such rights.”  (People v. Sumstine (1984) 36 Cal.3d 909, 914, 206 Cal.Rptr. 707, 687 P.2d 904.   Emphasis added.)

Appellant did not allege in the trial court, and has not alleged in his appeal, he was ignorant of his rights and did not waive them.   His motion to strike the prior conviction allegations was properly denied.

10. Appellant contends his sentence constitutes cruel and unusual punishment.

 Appellant contends his sentence is “gross and excessive in relation to the facts of this case.”

“A penalty offends the proscription against cruel and unusual punishment when it is ‘so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’   (In re Lynch (1972) 8 Cal.3d 410, 424, 105 Cal.Rptr. 217, 503 P.2d 921;  In re DeBeque (1989) 212 Cal.App.3d 241, 248, 260 Cal.Rptr. 441, ‘Whether a particular punishment is disproportionate to the offense is, of course, a question of degree.   The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical policy factors, and responsiveness to the public will;  in appropriate cases, some leeway for experimentation may also be permissible.   The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty “out of all proportion to the offense” [citations], i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment.’  (Lynch, supra, 8 Cal.3d at pp. 423–424 [105 Cal.Rptr. 217, 503 P.2d 921];  People v. Kun (1987) 195 Cal.App.3d 370, 374 [240 Cal.Rptr.564.] )”  (People v. King (1993) 16 Cal.App.4th 567, 571–572, 20 Cal.Rptr.2d 220.)

We find no excessive punishment.   Appellant was found guilty of sexually molesting two children repeatedly over an 18–month period.   These were his third and fourth proven victims.

There was no error.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FN1. Statutory references, unless otherwise noted, are to the Penal Code..  FN1. Statutory references, unless otherwise noted, are to the Penal Code.

2.   Two much younger sons were also part of the household.

3.   Counts 1–5 (Marina) and 12–15 (Elisa) alleged a 6/1/90–8/31/91 period of commission.   The other counts alleged shorter periods of commission, corresponding to the victims' residence in Wilmington and Torrance.

4.   Although we agree with the Wallace holding we find its proposed instruction (“A lewd or lascivious act is defined as any touching of the body of a child which to an objectively reasonable person is sexually indecent or tends to arouse sexual desire [citation].   In sum, it is a sexual act.”  People v. Wallace, supra, at p. 579, 14 Cal.Rptr.2d 67) more confusing than helpful.   We believe it sufficient to define “lewd act” as a sexual touching.

5.   The four offenses occurred during the 14 months when Elisa lived in Wilmington, 6/1/90–8/31/91.   During the first six months, until her birthday on 12/29/90, Elisa was 13 years old.

FRED WOODS, Associate Justice.

LILLIE, P.J., and JOHNSON, J., concur.