PEOPLE v. BARRON (1995)

OPINION

An information filed in Kern County Superior Court on February 18, 1994, charged appellant, George Fredrick Barron, with one count of continuous sexual abuse of Jennifer O., a child under the age of 14, in violation of Penal Code section 288.5, subdivision (a), and one count of lewd and lascivious conduct involving Lavenia A., a child under the age of 14, in violation of Penal Code section 288, subdivision (a).¹  It was further alleged that said offenses were serious felonies within the meaning of section 1192.7, subdivision (c)(6).

Appellant entered pleas of not guilty to both counts and the matter proceeded to jury trial.   On April 14, 1994, appellant was found guilty of the continuous sexual abuse charge contained in Count One and was acquitted of the lewd and lascivious conduct alleged in Count Two.

Imposition of sentence took place on May 12, 1994.   Appellant was denied probation and ordered to serve the upper term of 16 years in prison.   The court decided to impose this term, in part, because appellant had taken advantage of a position of trust and confidence in committing the crime.   The court ordered appellant to pay a $200 restitution fine pursuant to Government Code section 13967 and to submit to blood testing to determine whether the antibodies believed to cause Acquired Immune Deficiency Syndrome (AIDS) were present in his blood.

This appeal followed.   Appellant has not challenged the sufficiency of the evidence to support his conviction.   He has instead raised the following issues for our consideration:  (1) whether the trial court had a sua sponte duty to instruct the jury on the lesser included offense of lewd and lascivious conduct with a child under the age of 14;  (2) whether the trial court had a sua sponte duty to instruct the jury on numerous lesser included offenses (i.e., the specific sex acts purportedly committed);  (3) whether the sentencing court improperly relied upon appellant's position of trust and confidence with the victim in its decision to impose the aggravated term;  (4) whether the court had authority to order appellant to submit to AIDS testing;  and finally, (5) whether the sentencing court erred in imposing the Government Code section 13967 restitution fine of $200 without first determining appellant's ability to pay.

FACTS 2

Jaime “Michelle” O. (Michelle) and appellant had an intermittent non-marital relationship from 1986 through 1992.   Michelle described her relationship with appellant as “stormy.”   She said they fought frequently and that appellant physically abused her at least twice a month throughout all but the last six months of their relationship.

A daughter, Cammico, was born out of this relationship.   Michelle had another daughter, Jennifer O., who was born April 3, 1985.   Appellant lived with Michelle and the two minors on a number of occasions over the course of their relationship.   In time, Jennifer came to think of appellant as her father.   When they lived together, appellant would not let Michelle leave the house on her own.

Jennifer acknowledged that appellant touched her “tutu” (her female genitalia), her rear end, and her chest during the time they lived together.   Jennifer said appellant placed her hand on his penis but she could not recall what happened after that.   She also said appellant touched her with his front private when she was laying down.   When asked whether this happened on more than one occasion, Jennifer said she did not know.   She later admitted telling a female sheriff's deputy that appellant touched her once or twice a week when they were living with appellant.   Jennifer said she told the deputy the truth when she made that statement.

Jennifer also admitted telling the deputy that appellant had placed his private part in her rear end.   When asked whether that caused her any problems, Jennifer said she did not know.

Appellant, Michelle, and her two daughters continued to share a residence until July 7, 1992, when appellant told Michelle that she and her children would have to leave.   Michelle and her children complied and moved to another residence in Bakersfield while appellant moved to a Bakersfield residence on Tangerine.³

Despite the separation, both children, of their own volition, continued to visit appellant, occasionally spending the night, every other weekend for a period of approximately four or five weekends.   Michelle “believe[d]” these visits took place at appellant's residence on Tangerine in Bakersfield.

Jennifer testified that certain events took place at appellant's separate residence as well.   At one point in her testimony, Jennifer said appellant made her wear adult-sized black lingerie and touched her “tutu” using his penis only once.   Jennifer later said she “sometimes” had clothes on when appellant touched her with his penis thereby implying that it happened more than once.

Jennifer also testified that she and appellant watched movies of naked men and women touching one another and that appellant would touch her chest when they watched this kind of movie.   This occurred more than five times.

According to Michelle, Jennifer came home after one visit with appellant complaining of pain in her genital region.   Both appellant and Jennifer said the pain was the result of an injury Jennifer sustained while performing some “gymnastics type thing.”   Michelle visually examined the area but did not see anything unusual.   Jennifer and her stepsister continued to visit appellant at his residence until December 1992, when they moved to Las Vegas, Nevada with their mother.

Around the end of February or beginning of March 1993, Michelle was experiencing some disciplinary problems with Jennifer.   When she threatened to send Jennifer to live with appellant if she didn't straighten up, Jennifer finally broke down and told her mother what had happened.

Jennifer could not recall how often appellant had touched her but did say that it happened almost every time she went to visit him.   Jennifer said she was afraid when appellant touched her.   On more than one occasion, she had watched as appellant hit her mother and was fearful that something like that might happen to her as well.   For that reason, she remained silent.

Dr. Diamond, a pediatrician specializing in child molestation, also testified at trial.   His first contact with Jennifer was in December of 1993 when he was asked to examine her for evidence of sexual abuse.   Before he conducted the physical examination, he obtained a brief history from Jennifer outside her mother's presence.

Jennifer told him that appellant had touched her breasts, “tutu” and rear end with his hands.   He also made her touch his penis with her hands.   He tried to place his penis in her bottom when she and her sister spent the night at appellant's.   She later told the doctor that appellant put his “pee pee” in her mouth and her rear end.

Jennifer said that the touchings would occur in appellant's bedroom.   He would make her take her clothes off and he would disrobe.   They would lie side by side but he would also get on top of her.   He would put his “pee pee” in her “tutu” and would move up and down.   This caused Jennifer pain.

These touchings occurred about once a week during 1992.   Jennifer said appellant told her not to tell anyone or he would hit her.   She also told the doctor that the touchings stopped when she moved to Las Vegas.

The doctor's physical examination revealed abnormalities in the hymen and left vulva mucosa ⁴ consistent with sexual abuse and inconsistent with an injury received while performing gymnastics.   Dr. Diamond indicated that the type of injury he observed was caused by pressure being placed on the hymen—possibly by fingers.   The doctor admitted that if appellant had actually penetrated Jennifer's vagina, physical examination would have revealed a definite tear in the hymen.   He explained that childrens' use of the word “in” to describe sexual acts means something different than it does to adults.   Dr. Diamond said it had been his experience that “in” is frequently used by children to describe placement of the penis near the genital area or simply between the legs and external to the hymen.

Dr. Diamond did not observe any anal abnormalities.   The doctor did say, however, that one study showed that a child must be sodomized by an adult 12 times over a six month period before any anal abnormalities would be detected.   Consequently, he said sodomy could not be ruled out simply because there was a lack of physical evidence.

The doctor also testified that child victims generally do not reveal sexual abuse by someone they know or someone in an authoritative position.   He explained that when disclosure does finally take place, it is often fragmented.

Deputy Sallee of the Kern County Sheriff's Department was the last prosecution witness to testify.   She said that she interviewed Jennifer in November of 1993.   In response to her questioning, Jennifer told the deputy that the sexual acts occurred after her mother and appellant separated and that they would occur in the morning, afternoon, and night.   The deputy took this to mean that Jennifer was being sexually abused three times a day every day she visited appellant.   Jennifer also told Deputy Sallee that the touching took place roughly every two to three weeks during the time that she lived with appellant.   Jennifer only described acts of sodomy, but did say that appellant tried on a number of occasions to have vaginal intercourse with her.

Defense

Two former girlfriends of appellant were allowed to testify regarding his sexual preferences.   Both said they had experienced sexual relations with appellant, that he practiced “normal” sex, and that they had never seen him exhibit any sexual interest in preadolescent girls.

Appellant's mother testified that appellant lived with her for the entire year of 1991.   She did admit that Michelle and her daughters spent weekends at her house during the second half of 1991.

Appellant took the stand in his own behalf.   He confirmed that Michelle and her daughters spent weekends with him at his mother's house during the last half of 1991.   He said he continued to live with his mother until February or March of 1992 when he moved in with Deborah Fleming.   Appellant stayed with Deborah until July of 1992 when he again returned home to live with his mother and Michelle.   Appellant thought he moved to the Tangerine residence in late August 1992 and continued to reside there through December of 1992.

Appellant denied having Jennifer orally copulate him at any time during 1991.   He also denied attempting or successfully engaging in vaginal or anal intercourse with Jennifer during that same time frame.   He denied having any type of improper sexual contact with Jennifer during the first half of 1992.

He did admit that Jennifer spent the night at his residence on Tangerine approximately five or six times during the last three months of 1992, but denied having touched her in a “sexually improper manner.”   Appellant also confessed to having the type of films described by Jennifer at his residence on Tangerine but denied showing them to her.   He denied having Jennifer dress in black lingerie.

Appellant admitted that he hit Michelle on approximately six different occasions but not weekly or semi-monthly as she had claimed.   In his opinion, Michelle was helping Jennifer concoct these stories of abuse to get even with him for the way he treated her.

DISCUSSION

IDID THE TRIAL COURT HAVE A SUA SPONTE DUTY TO INSTRUCT ON LESSER INCLUDED OFFENSES OF SECTION 288.5?

 “ ‘It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.  [Citations.]  The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.’  [Citation.]”  (People v. Sedeno (1974) 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 518 P.2d 913, overruled on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684–685, 160 Cal.Rptr. 84, 603 P.2d 1.)   This rule has been held to impose upon the trial court a sua sponte duty to “instruct on a lesser included offense when the evidence raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of the lesser offense.”   (People v. Wilson (1992) 3 Cal.4th 926, 941–942, 13 Cal.Rptr.2d 259, 838 P.2d 1212;  accord People v. Wickersham (1982) 32 Cal.3d 307, 323, 185 Cal.Rptr. 436, 650 P.2d 311.)   Conversely, this duty does not arise when “there is no evidence that the offense was less than that charged.”  (Id. at pp. 323–324, 185 Cal.Rptr. 436, 650 P.2d 311.)

In order to prove continuous sexual abuse under section 288.5, each of the following elements must be shown:

“1. A person [was a resident in the same house with a minor child] [or] [had recurring access to a minor child], and

“2. Such person over a period of time, not less than three months in duration, engaged in three [or more] acts of [substantial sexual conduct or lewd and lascivious conduct] with the child under the age of fourteen years at the time of the commission of the [sexual] [or] [lewd] conduct.”  (CALJIC No. 10.42.6.)

“ ‘Substantial sexual conduct’ means penetration of the vagina or rectum ․ by the penis of the offender or by any foreign object, oral copulation, or masturbation of either the victim or the offender.”  (§§ 288.5, subd. (a), 1203.066, subd. (b).)  A lewd and lascivious act under this statute “means any touching of the body of a person under the age of fourteen years with the specific intent to arouse, appeal to, or gratify the sexual desires of either party․”  (CALJIC No. 10.42.6;  accord People v. Scott (1994) 9 Cal.4th 331, 342, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)   It is not necessary for those desires to actually be aroused, appealed to, or gratified as a result of the touching.  (CALJIC No. 10.42.6.)   Nor is it necessary that the bare skin be touched.   To constitute a lewd or lascivious act “[t]he touching may be through the clothing of the child.”  (CALJIC No. 10.42.6.)   Finally, to convict under section 288.5, “the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number.”  (§ 288.5, subd. (b).)

Here, the continuous sexual abuse was alleged to have occurred between January 1, 1991, and December 31, 1992.   It is undisputed that appellant resided with Jennifer during the last half of 1991, during a portion of 1992, and that she spent the night at his residence on five or six separate occasions during the last three months of 1992.   The first element is therefore satisfied.

The real point of contention concerns the second element.   On this point, appellant initially argues the court erred when it failed to instruct the jury on the “lesser included offenses” of lewd and lascivious conduct, sodomy, and oral copulation with a child under the age of 14 because “substantial evidence existed from which the jury could have concluded appellant committed less than three acts of either substantial sexual conduct or lewd and lascivious conduct on Jennifer.”   Somewhat later in his brief, he applies this same theory to argue that the jury should have been instructed on these “lesser included offenses” because substantial evidence existed from which the jury could have concluded that the acts took place over a period of less than three months.   He insists the two types of conduct cannot be combined to satisfy either the numeric or durational elements of the offense.   As such, he maintains the court had a sua sponte duty to instruct on these “lesser-included offenses” and that its failure to so instruct requires reversal of his conviction.   We disagree.

We begin our analysis by reviewing some of the fundamental principles of statutory construction.   Our Supreme Court summarized these principles most eloquently in People v. Pieters (1991) 52 Cal.3d 894, 898–899, 276 Cal.Rptr. 918, 802 P.2d 420, when it said:

“The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law.  [Citations.]  In order to determine this intent, we begin by examining the language of the statute.  [Citations.]  But ‘[i]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.’  [Citations.]  Thus, ‘[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.’   [Citations.]”

With these principles in mind, we turn to the language of the statute.   Section 288.5, subdivision (a) provides:

“Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct under Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child․”

While appellant's position finds some support in the literal language of the statute, the above-referenced principles lead us to conclude that the statute should not be read in the manner urged by appellant.   The history of the statute reveals that it was enacted as a remedial measure to this court's opinion in People v. Van Hoek (1988) 200 Cal.App.3d 811, 246 Cal.Rptr. 352.⁵  In enacting this statute, the Legislature declared:

“The Legislature finds and declares that because of the court's decision in People v. Van Hoek, 200 Cal.App.3d 811 [246 Cal.Rptr. 352], there is an immediate need for additional statutory protection for the most vulnerable among our children, those of tender years, some of whom are being subjected to continuing sexual abuse by those commonly referred to as ‘resident child molesters.’   These molesters reside with, or have recurring access to, a child and repeatedly molest the child over a prolonged period of time but the child, because of age or the frequency of the molestations, or both, often is unable to distinguish one incident from another in terms of time, place, or other particulars, and as a consequence prosecutors are unable to provide the specificity of charges necessary to overcome the constitutional due process problems raised in the Van Hoek case within the framework of existing statutory law.   As a consequence, some of our most vulnerable children continue to be at risk and some of our worst offenders continue to go unpunished.

“It is the intent of the Legislature in enacting this act to provide additional protection for children subjected to continuing sexual abuse and certain punishment for persons referred to as ‘resident child molesters' by establishing a new crime of continuing sexual abuse of a child under circumstances where there have been repeated acts of molestation over a period of time, and the perpetrator either resides with or has recurring access to the child.”  (Stats.1989, ch. 1402, § 1, No. 10 West's Cal. Legis. Service, p. 5255, emphasis added.)

It can be seen then that the goal of the Legislature, in enacting this statute, was to punish those who either reside with or have recurring access to a child and who, over a period of at least three months duration, continuously or repeatedly sexually abuse that child.   The focus of the statute is on the repetitive nature of the molestations (i.e., on the continuous course of sexually abusive conduct) and not, as the parties would have us believe, on the individual components of the repetitive sexually abusive conduct.   In other words, it is the continuing course of conduct that is criminalized.

Reading the statute in the manner urged by the parties would lead to the anomalous result that a resident child molester or one who had continuing access to a child who committed two acts of sodomy in such a way so that the requisite intent under section 288 was lacking and two acts of lewd and lascivious conduct as defined in section 288 could not be prosecuted under the act.   The pattern of sexual abuse and continuing indignity suffered by the child is no less real than if the child victim had had to endure four molestations made up of the same type of sexually abusive act.   The problems associated with young children who are the victims of frequent sexual abuse cited by the Legislature and the courts that have addressed them in cases of generic testimony do not change simply because the form of sexual abuse varies.

 We thus hold that the two categories of sexual abuse listed in section 288.5 can be combined to meet both the numerical and durational requirements of the act.   We reach this conclusion fully cognizant of the fact that the Attorney General is of the opinion that the two categories of abuse cannot be combined because their requisite intents differ.

The position of the Attorney General is presumably predicated on the concern that, in cases involving evidence of both categories of sexual abuse, some jurors may convict based on their finding of substantial sexual abuse while the remaining jurors may convict based on a finding of lewd and lascivious conduct;  the result being that there is no unanimity as to the intent needed to commit the offense.   This argument might have merit if the defendant had been tried by jury on a charge that criminalizes a specific act.   But, as noted above, section 288.5 does not criminalize a specific act but rather a continuing pattern of abusive conduct.   Subdivision (b) of section 288.5 specifically states that jurors do not have to unanimously agree on specific acts in order to convict when the criminal activity constitutes a continuous course of conduct—they need only unanimously agree on the requisite number of acts.   Therefore, so long as each individual juror is satisfied that the definition for the particular category of sexual abuse has been met for each instance of abuse the juror has found to exist and that, as a group, the jury unanimously finds that the requisite number of molestations have occurred over a period of at least three months duration, we believe the defendant's constitutional right to jury unanimity has been met.   In other words, a criminal defendant's right to jury unanimity is satisfied so long as each individual juror finds that three acts of sexual abuse have occurred over a period of not less than three months.   The juror must find each act meets the definition of section 288 or substantial sexual conduct, however the juror need not find that all three acts are within the class of acts meeting the definition of section 288 or all three acts are within the class of acts meeting the definition of substantial sexual conduct.   In effect, the juror must conclude that each act upon which the juror relies to constitute one of the three acts must meet the definition of section 288 or substantial sexual conduct.

Under our reading of the statute, the hypothetical defendant's right to jury unanimity was satisfied by the jury's unanimous conclusion that a pattern of sexual abuse existed even though they relied on different acts of abuse to establish the pattern.   It follows then that we must reject appellant's argument that the jury must be instructed on what he represents are lesser included offenses whenever there is evidence of less than three instances of either type of sexually abusive conduct but adequate instances of such conduct when the two categories of conduct are combined.

Here, the jurors were instructed (using CALJIC No. 1042.6) as to the elements they must find to exist before they could convict appellant of continuous sexual abuse of a child under the age of 14.   By convicting appellant of this offense, the jury necessarily found that appellant committed the requisite number of acts.   Appellant does not challenge the sufficiency of the evidence to support the verdict.   Thus, reversal on this ground is not warranted.

Appellant also insists reversal is mandated because substantial evidence existed from which the jury could have concluded that the sexual misconduct did not occur over the minimum mandatory period of three months.   Here again, the jury necessarily found that the statutorily required sexual contacts continued for a minimum of three months when they convicted appellant of continuous sexual abuse.   Hence, no prejudice and no reversal.

II

WAS IT ERROR FOR THE COURT TO RELY ON APPELLANT'S POSITION OF TRUST IN DECIDING TO IMPOSE THE AGGRAVATED TERM OF IMPRISONMENT?***

III

DID THE COURT HAVE AUTHORITY TO ORDER APPELLANT TO SUBMIT TO AIDS TESTING UNDER SECTION 1202.1, SUBDIVISION (D)?

During the sentencing hearing, the prosecutor asked that appellant be ordered to submit to AIDS testing pursuant to the discretion granted the court under section 1202.1.⁶  Defense counsel clarified what such an order would mean to his client and then, without objection, submitted the matter for the court's decision.   In ruling on the matter, the Court made the following statement:

“All right.   It does appear that there are mandatory situations where the Court in a sentencing situation is required by law without discretion to order such testing.   It does appear the statute is written in such a way that the Court does have additional discretion to order such testing depending on the facts and circumstances of a particular case.

“It appears to the Court that this is a case that involves substantial sexual conduct between [appellant] and the minor, and that being the case, the Court's of the opinion that [it] is within its discretion to order testing, and therefore, ․ will order testing under 1202.1.”

Appellant now claims the trial court was without authority to order such testing because he was not “convicted” of any of the offenses specified in subdivision (d) of section 1202.1.⁷  This argument presents an issue of first impression in this State;  namely, whether a sentencing court is limited to ordering only those criminal defendants who have suffered a technical conviction of one or more of the offenses specified in subdivision (d) of section 1202.1 to submit to AIDS testing or whether the court can look behind the technical conviction and order such testing if it can be determined that, based on the evidence presented at trial, the jury necessarily found the defendant to have committed one or more of the offenses listed in subdivision (d).

 We need not decide this issue because, under the particular facts of this case, the outcome remains the same—the order must be stricken.   It must be stricken under the former approach because section 288.5 is not among the specific offenses listed in subdivision (d) of section 1202.1.   It must be stricken under the latter because we cannot discern on this record which acts the jury relied on when convicting appellant.   The record contains sufficient evidence, if believed, to support a guilty verdict based on substantial sexual conduct, lewd and lascivious conduct, or both.   The jurors may have found appellant guilty of lewd and lascivious conduct based on Jennifer's testimony of chest rubbing.   Or they may have believed Deputy Sallee's testimony of repeated acts of sodomy to find appellant guilty of substantial sexual conduct under section 288.5.   Because the jury need only agree as to the requisite number of acts and not the specific acts which constitute the requisite number (§ 288.5, subd. (b)), we simply cannot tell which of these acts the jury relied upon to reach its verdict.   Under these circumstances, the order subjecting appellant to aids testing must be stricken.   It is so ordered.

IV

DID THE COURT ERR BY IMPOSING A RESTITUTION FINE UNDER GOVERNMENT CODE SECTION 13967 WITHOUT FIRST DETERMINING APPELLANT'S ABILITY TO PAY? † ] ]]]]

DISPOSITION

For the reasons stated, the order to submit to AIDS testing is reversed.   In all other respects the judgment is affirmed.

FOOTNOTES

1.   Hereinafter, all statutory references are to the Penal Code unless otherwise indicated.

2.   Insofar as appellant was acquitted of the charges contained in Count Two, we have limited our discussion of the facts to those pertaining to the offense alleged in Count One.

3.   Michelle's testimony suggests that appellant moved directly to the Tangerine address as she said she spent the first three weekends following their separation with him at that address.

4.   The vulva is “the region of the external genital organs of the female․”  (Dorland's Illustrated Med. Dict. 26th ed. 1981 at p. 1465.)   While “mucosa” is defined as a mucous membrane or “tunica mucosa.”  (Id. at p. 842.)  “Tunica mucosa” in turn is defined as the “mucous tunic or coat:  the mucous membrane lining of various tubular structures, comprising the epithelium, basement membrane, lamina propria mucosae, and lamina muscalaris mucosae.”  (Id. at p. 1412.)

5.   The defendant in Van Hoek was accused of molesting his daughter for a period of 10 years beginning when she was 3 years of age.   While the victim was able to describe the acts with some specificity, she could not link them to any specific date or significant event.   This court reversed the judgment based on its belief that the victim's nonspecific and uncorroborated testimony deprived the defendant of his right to mount an adequate defense and allowed the prosecution to obtain a conviction without charging an offense specific as to time, place or other particular and without proving a specific offense with regard to those counts charged.   (Van Hoek, supra, 200 Cal.App.3d at p. 818, 246 Cal.Rptr. 352.)

FOOTNOTE.   See footnote *, ante.

6.   This statute provides an exception to the general rule precluding such testing without first obtaining the test subject's written consent.  (Health & Saf.Code, § 199.22.)

7.   The 1993 section 1202.1, subdivision (d) provided:“For purposes of this section, sexual offenses include any of the following:  [¶] (1) Rape in violation of Section 261.  [¶] (2) Unlawful intercourse with a female under age 18 in violation of Section 261.5.  [¶] (3) Rape of a spouse in violation of Section 262.  [¶] (4) Sodomy in violation of Section 286.  [¶] (5) Oral copulation in violation of Section 288a.”

FOOTNOTE.   See footnote *, ante.

ARDAIZ, Presiding Justice.

VARTABEDIAN and HARRIS, JJ., concur.