Opinion
A142578
03-27-2018
THE PEOPLE, Plaintiff and Respondent, v. GORDON BLAKE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-131177-8)
INTRODUCTION
A jury convicted defendant of molesting four boys during a 10-year period in the 1990s. On appeal, defendant challenges all of his convictions on numerous grounds, including insufficiency of the evidence and misinstruction on the definition of masturbation. We affirm.
STATEMENT OF THE CASE
In 2014 the Contra Costa County District Attorney filed a consolidated information charging defendant with five lewd acts (counts 1 through 5) and one forcible lewd act (count 6) upon John Doe 1, a child under 14, from January 1, 1990 through December 31, 1992 (Pen. Code, § 288, subds. (a), (b)(1)); one lewd act (count 7) upon John Doe 2, during the same time period; 20 forcible lewd acts on a child under 14 (counts 8 through 27), plus six lewd acts upon a child age 14 or 15 (counts 28 through 33), against John Doe 3 (§ 288, subds. (b)(1), (c)(1)) from January 1, 1992 through November 5, 1997; and one lewd act against John Doe 4 (count 34) from January 1, 1996 through December 31, 1999. The information alleged all the offenses involved substantial sexual conduct (§§ 803, subd. (f)(2), 1203.066, subd. (b)) and that defendant committed the offenses against more than one victim (§ 667.61, subds. (a)-(e)).
Further statutory references are to the Penal Code unless otherwise stated.
Of the 26 counts relating to John Doe 3, counts 8, 9, 10, 11, and 12 were alleged to have occurred from January 1, 1992 to December 31, 1992; counts 13, 14, 15, 16, and 17 were alleged to have occurred from January 1, 1993 to December 31, 1993; counts 18, 19, 20, 21 and 22 were alleged to have occurred from January 1, 1994 to December 31, 1994; counts 23, 24, 25, 26, and 27 were alleged to have occurred from January 1, 1995 to November 5, 1995; counts 28, 29 and 30 were alleged to have occurred from November 6, 1995 to December 31, 1996; and counts 31, 32, and 33 were alleged to have occurred from January 1, 1997 to November 5, 1997.
The jury found defendant guilty, and found true the allegations of substantial sexual conduct as to all counts, except counts 18 and 19, of which the jury acquitted him outright, and counts 23, 24, 25, 26, and 27 (charging forcible lewd acts), of which the jury acquitted him of the charged counts (alleging forcible acts), found him guilty of the lesser included charges of lewd acts, and found true the allegations of substantial sexual conduct. With respect to counts 23 to 27 against John Doe 3, and count 34 against John Doe 4, the jury also found true the allegation that defendant had committed child molestation against more than one victim. (§ 667.61.)
The court sentenced defendant to an aggregate term of 194 years to life in prison.
STATEMENT OF FACTS
John Doe 1: Counts 1 Through 6
John Doe 1 and John Doe 2 are stepbrothers; after both boys' parents divorced, John Doe 1's father and John Doe 2's mother married each other in January 1992. Before that, the boys were family friends and spent time together at Doe 1's mother's house in Antioch. Doe 1's mother, Patricia, met defendant in the late spring or summer of 1991 when he joined a singles' Bible study group that met at her house. They became "pretty close friends." Other people would bring their children to the group meetings, and every other week her son would be there. Sometimes Doe 2 would be there too. Defendant "seemed to really enjoy [kids]." He swam and played basketball and volleyball with them. The swimming would take place at the community pool in defendant's condominium complex. The boys were alone with defendant "[f]airly often," maybe 10 times. Doe 1, who was born in 1979, was about 11 or 12 at the time.
In March 2013, Patricia and Doe 1 were looking at photographs from that time period and came across a photograph of defendant. Doe 1 said, "I hope that sonofabitch rots in hell." She asked Doe 1 why he felt that way, and they spent about an hour talking about what had happened. Doe 1 told her that one night when he and defendant were sleeping outside on a mattress on the deck, he "felt the sensation of his hand being pulled behind him . . . and he realized that [defendant] was masturbating." Doe 1 got scared and ran in the house, locking the door. Doe 1 also told her about "some touching in the pool." Doe 1 said he did not tell her at the time because he was afraid his father, who was a heavy drinker and a hothead at the time, would do something to defendant and would blame her. She did not call the police in 2013 because she "had no idea that there would be anything [she] could do at that point."
In the spring of 2014, Patricia reconnected with a friend who told her that defendant had been arrested for child molestation. Patricia found a newspaper article about the arrest and, after consulting with Doe 1, contacted the detective named in the article.
Doe 1 was 34 years old at the time of trial. He recalled he was 10 when he first met defendant at his mother's Bible group and that defendant "was always around." When Doe 1 was 11 or 12, defendant would come over and put up a tent in the backyard and let Doe 1 drive his car around the neighborhood.
The first time defendant touched him inappropriately was in the public pool in his neighborhood in Brentwood. Defendant would hold his arms out with the palms up and spin him in the pool in circles "but he would have his hands you know on you know my genitals." Doe 1 would roll off defendant's hands and swim to get away from him. At first Doe 1 hoped it was accidental or unintentional but as time went on he realized that it was not. The touching to his penis happened five to 10 times. He did not remember exactly how many times it happened. Defendant's hand would touch Doe 1's penis over his swimsuit until Doe would feel uncomfortable and swim away, about 10 seconds.
Defendant would also scratch Doe 1's back. At first Doe thought it was "innocent," but when defendant scratched him low on his back close to his butt on a couple of occasions, Doe thought it was funny. That happened about 10 times, when he was 11.
The last incident occurred one night when they were sleeping outside in the backyard on air mattresses. Doe 1 woke up in the middle of the night. One of defendant's hands was holding Doe's left hand against defendant's testicles "and he was masturbating." This was "bare skin" touching. Doe 1 thought about how to get away. He cleared his throat and defendant let go. Then Doe 1 got up, went in the house, and locked the door. Within 60 seconds, Doe 1 heard defendant's car start up and leave. This happened when he was 12 or so, in the summer of 1991 or 1992.
About four years before trial, he and his brother, Doe 2, were out fishing on Doe 2's boat when Doe 2 asked him if defendant had ever done anything inappropriate with him. Doe 1 said yes, and Doe 2 talked to him "about his stories." That was the first time they had ever talked about what happened.
Doe 1 recalled there was one boy from the neighborhood who came down to defendant's place a lot and who also went to defendant's cabin with them once. From talking to defendant, he knew the boy did not have a great home life. He had not seen this person or spoken to him since the time at the cabin when Doe 1 was 11 or 12 years old.
John Doe 2: Count 7
John Doe 2 was born in February 1980. His mother is married to Doe 1's father. He met defendant in 1990 or 1991 when he was 10 or 11 years old, at his stepbrother's house in Antioch. Defendant would buy the boys beer and let them drive his car. Once he went to defendant's cabin with his stepbrother and another boy.
Defendant molested him once. Does 1 and 2 were in bed in Patricia's room when defendant entered the room and started rubbing Doe 2's shoulders. Defendant put his hand between Doe 2's legs and reached into his boxer flap. Defendant stroked the bare skin of Doe 2's penis about 10 times in an up-and-down motion until Doe 2 cleared his throat "real loud" and rolled over. Defendant then stopped and left the room. This happened the summer before his mother married Doe 2's father, when he was spending a lot of time at Doe 2's house. He did not tell anyone because he was too embarrassed; he did not want anyone to know. However, he thought about it his "whole life." He told his ex-wife about it when they were dating in high school. He does not know why he finally told Doe 1 about it when they went fishing, but for a while he wanted to kill his brother for telling anybody; now he thought it was the right thing to do. He spoke with the police about three months before trial.
John Doe 3
John Doe 3 was born on November 6, 1981 and was 32 at the time of trial. His family moved to Brentwood in 1991 when he was 10 years old. Defendant was his next door neighbor. Not too long after moving to Brentwood, Doe 3 started going to defendant's house to "hang out" in defendant's dental lab. Doe 3's mother travelled frequently for work and often left Doe 3 and his brother in defendant's care.
According to the reporter's transcript, at trial Doe 3 testified he was born "1/16 of 1981." However, at the preliminary hearing, Doe 3 was reported to have testified he was born "11-6-1981." After the court concluded its instructions to the jury, the reporter's transcript records the prosecutor as stating, "On line 24 the end date for Counts 23 through 27 should be 1/15/95 instead of December 31, '95." The prosecutor clarified: "Instead of December 31 on line 24 [¶] . . . [¶] [i]t would be November 5." The court then reinstructed the jury that that counts 23 through 27 were alleged to have occurred "between January 1st, 1995 and November 5th, 1995." During closing argument, the prosecutor told the jury that Doe 3 "was born on November 6th of 1981."
We note the actual numbers used in the reporter's transcript—1161981—are identical, and the only difference is the placement of dashes and slashes. As neither party on appeal makes any argument based upon the discrepancy, we proceed on the assumption Doe 3's true birthday is November 6, 1981, and the notation in the reporter's transcript a mere transcription error.
Doe 3 testified that between 1992, when he was 11 years old, and 1997 when he turned 16, defendant molested him 49 to 79 times in one of three ways: (1) defendant masturbated Doe 3 or Doe 3 masturbated defendant; (2) defendant orally copulated Doe 3 or Doe 3 orally copulated defendant; and (3) defendant anally penetrated Doe 3. Specifically, Doe 3 testified that at least one of those acts occurred 10 to 20 times in 1992; 10 to 20 times in 1993; 10 to 15 times in 1994; five to 10 times from his 14th birthday in 1995 until the end of 1996; and fewer than five times from his 15th birthday in 1996 until he turned 16 in 1997. At an earlier point in his testimony, Doe 3 estimated he submitted to sex acts by defendant 10 times in 1992, 15 to 20 times in 1993, more than 20 times at age 13, about 15 to 20 times at age 14, and more than 10 but fewer than 15 times at age 15. Doe 3 recalled the first time defendant touched him inappropriately occurred while Doe 3 was watching defendant do his work in the dental lab. Defendant reached down and groped Doe 3's penis and testicles over his clothing. The first time was "like a test or something[;] . . . he left it at that point and then continued later on."
On cross-examination, Doe 3 clarified that after fondling his genitals that first time, defendant picked Doe 3 up, carried him inside, and masturbated him.
After that, several times a week, defendant would pick Doe 3 up, place Doe 3 on his shoulder, and carry Doe 3 from the dental lab in the garage to defendant's bedroom in the house. "Sometimes I would be grabbing the walls or the corners and like not wanting to go in and asking him to put me down." Doe 3 resisted in this fashion on several occasions but after a while, he "just kind of like felt helpless." Defendant would undress Doe 3 on the bed in the bedroom. Defendant would masturbate Doe 3 by placing his hand on Doe 3's penis and moving his hand in an up and down motion on Doe 3's bare skin. Defendant used baby oil as a lubricant. While Doe 3 was putting on his clothes after the act, defendant would run into the bathroom and stay there for a few minutes. Doe 3 could see the reflection in the mirror of defendant masturbating. Doe 3 was 11 years old at the time (i.e., 1992). Also in 1991 or 1992, defendant orally copulated Doe 3 to ejaculation before proceeding to go into his master bathroom to masturbate. Doe 3 did not tell anyone because he was ashamed and embarrassed and could not deal with it.
Within about six months, as defendant got more comfortable with what he was doing, defendant would also grab Doe 3's hand and forcibly bring it up towards his penis to make Doe 3 fondle defendant's testicles or masturbate defendant's penis up and down. Doe 3 thought he was 12 years old at that time (i.e., 1993).
Doe 3 described the first time he orally copulated defendant. Doe 3 recalled he spent the night at defendant's house while his mother was away on a business trip to Minneapolis. When Doe 3 took off his shoes, his feet stank. Defendant washed Doe 3's feet in bleach and massaged them with Mentholatum. Defendant forcibly grabbed Doe 3's head and pulled it towards his penis. Defendant put his penis in Doe 3's mouth. Defendant ejaculated. Doe 3 thought he was 11 years old when this occurred. Doe 3 spent the night at defendant's house on several occasions.
During that first year, defendant put his hands on Doe 3's penis and masturbated him more than five times. Also during that first year, on around five occasions, he was required to touch defendant's penis, either to grope his testicles or penis or masturbate him. During that first year, defendant orally copulated Doe 3 fewer than five times, and Doe 3 orally copulated defendant more than once but fewer than five times.
In the next year, 1993, defendant's erect penis penetrated Doe 3's anus when Doe 3 was sitting on defendant's lap in the spa or the pool at the neighborhood pool complex. Defendant pulled down Doe 3's pants. Doe 3 recalled that another person came to the pool and Doe 3 thought that person would notice. But it was at night, and dark, and defendant continued to have anal sex with him. Another time, Doe 3 gave defendant oral sex in the pool. He did not recall any other incidents in the pool area.
Doe 3 described two episodes of anal sex at defendant's cabin. Doe 3 recalled they were supposed to meet defendant's sister and her CIA agent boyfriend, along with some other friends at the cabin. Defendant and Doe 3 went to the cabin a day early. Doe 3 spent the day playing on the dirt bike while defendant prepared the cabin in advance of the visitors' arrival the next day. That night defendant "basically started with the usual act and pulling my pants down," except that defendant became aggressive and proceeded to forcefully have anal sex with him. Doe 3 fell asleep afterwards, but defendant woke him up in the middle of the night and anally penetrated him again. The next day, defendant was apologetic. Doe 3 was 13 or 14 at the time.
Doe 3 estimated that at this point in his life, there were at least 20 if not more acts of masturbation, oral sex, or anal sex per year. There were fewer sex acts as he got older. By the age of 16, Doe 3 had pretty much stopped going to defendant's house at all, but at least some acts were going on until his 16th birthday.
Later Events in John Doe 3's Life
Doe 3 moved from Brentwood to Salt Lake City, Utah, in 1998. Eventually, he moved to Denver, Colorado, where he committed commercial burglary and theft and was sentenced to state prison. He first disclosed the molestation on an intake form in which he said that due to his history of being sexually assaulted he did not want to be placed with a child molester. After finishing his parole in 2010, Doe 3 moved to Las Vegas, Nevada. In 2011, Doe 3 moved from Las Vegas to Pacifica, California. He told his then girlfriend, A.K., about the abuse—"not fully the description of what Gordon had done to me but what had happened and why it happened"—in the fall of 2012, right after a confrontation he had with defendant.
A.K. testified Doe 3 cried when he told her he "was molested when he was a child between the ages of 10 and 13" but "didn't go into exact details" and confirmed this conversation occurred after the confrontation with defendant.
At that time, Doe 3 was going through a difficult time, financially and emotionally. "All these feelings [came] back" and he "snapped." Doe 3 demanded $5,000 from defendant for not telling the police about the abuse. Defendant claimed he did not have $5,000 but could muster $1,200. The next day the two of them went to the bank and defendant gave Doe 3 an envelope with $1,200 in $100 bills. Then defendant offered to pay him to do repairs on his house. Doe 3 did not want to do it, but after thinking it over for a week he agreed because he and his girlfriend needed the money. The plan was for him to replace the roof and paint the house for $10,000. At first, Doe 3 did the work himself but he ultimately hired some friends who also needed money.
On cross-examination, Doe 3 testified he demanded $10,000 and may have received $1,500.
Defendant told Doe 3 he was going out of town the first weekend of August 2012 and wanted Doe 3 to continue work on the house while he was gone. The day after defendant returned, he informed Doe 3 that his house had been burglarized and his antique guns had been stolen. Defendant told Doe 3 he had filed a police report and had his house fingerprinted, but Doe 3 should not worry because he did not inform the authorities that Doe 3 was the one working on his house.
Doe 3 was incarcerated on an unrelated identity theft and check forgery matter on December 21, 2012. On January 16, 2013, while in custody, Doe 3 wrote a letter about defendant's abuse of him and sent it to the district attorney. On January 24, 2013, he wrote another letter and sent it to the Brentwood Police Department. On January 28, 2013, Doe 3 met with Detective Todd Orlando from the Brentwood Police Department. On the day he met with the detective, Doe 3 made a recorded call to defendant from the jail. Orlando told Doe 3 not to call defendant again. When Doe 3 was released from jail on February 22, 2013, he went straight to the Brentwood Police Department.
Doe 3 maintained he did not receive any special treatment or leniency from law enforcement for testifying. However, he admitted on cross-examination that he was not charged with a crime for lying to the police about a sexual encounter between him, defendant, and a boy named Justin. Detective Orlando also talked to him about the burglary of the Bill Brandt Ford car dealership. And, although he was on felony probation, and had two active outstanding warrants for his arrest on a probation violation and a stolen vehicle charge, he had not been arrested on the warrants. Doe 3 believed he was not in custody on the warrants because of some form of victim protection, but he was not sure what. He also admitted that "victim compensation" had paid for his flights from Nevada to California, his return flight to Nevada, and his hotel and food while he was testifying. Doe 3 was also impeached with his admission that he had suffered six felony convictions for theft-related offenses over the past 13 years.
On direct examination, Doe 3 admitted he told Detective Orlando that he, Justin, and defendant had a sexual encounter during which defendant ejaculated over them. This did not happen. Doe 3 lied because he wanted to "shed light on the whole possibility of another victim."
Defendant's Admissions
John Doe 3 spoke to defendant from the jail in two recorded telephone calls on January 28 and 29, 2013, which were played for the jury. During the first call, Doe 3 told defendant he was in jail on "other stuff that has nothin' to do with anything" but had been visited by a Brentwood detective earlier that day and thought they should talk about something before matters went further. Doe 3 said he needed a "co-signer" before he could post bail. Defendant said he could not co-sign for a loan. Defendant wanted to know if John Doe 3 had spoken to the detective. Doe 3 said he had not talked to anybody. Defendant then indicated he was willing to talk to the bail bondsman.
During the second call the next day, defendant indicated he was not willing to co-sign the bail bond. Apparently frustrated Doe 3 said, "Fuck it dude." Defendant responded, "Listen you don't have to say anything. Here's the thing. [¶] . . . [¶] I'll be willing to pay for, um, an attorney to sit down and talk with you . . . ." Doe 3 spurned defendant's offer of an attorney, saying he already had one, and continued:
"[DOE 3]: "I got fuckin' charges comin' because of what you're sayin' 'cause I got Detectives up my ass what—what—why should I fuckin' hold in my end of the deal anymore like I have been, you know what I mean?
"[DEFENDANT]: "Well here's the thing, um, can I talk to your attorney is that—is that legitimate?
"[DOE 3]: "Oh you can—no you ain't talkin' to my attorney—yeah—dude.
"[DEFENDANT]: "Okay, all—all right—okay.
"[DOE 3]: I'm not . . . [¶] . . . [¶] playin' . . . wit' you bro.
"[DEFENDANT]: "That—that's enough—that's enough, okay, uh, let me make these calls and then give me a call back tomorrow.
"[DOE 3]: No . . . I'll give you a call back here in [a] couple hours and then we'll—and if you don't wanna fuckin' do it then fine, it's not—that's on you now dude 'cause I'm tired of playin' with this shit you fuckin' implicated me in some shit that I had nothin' to fuckin' do with so I'm not gonna keep my mouth shut anymore if that's how—way you wanna be."
In a follow-up pretext phone call made in connection with the Brentwood Police Department's investigation, which was also played for the jury, Doe 3 informed defendant he was out of jail. Defendant told Doe 3 that he needed his help with a workers' compensation claim. Doe 3 responded, "[S]o you think I care? [¶] . . . [¶] Why? Why should I care—Gordon. . . . Uh, 12 years old [and] you're makin' me suck your dick dude. Like what the fuck bro? That's not a normal thing . . . ." Defendant responded, "Why don't you come over to my house? Let's talk." When Doe 3 said he wanted to "get some things resolved" with defendant and "get my answers," defendant told Doe 3, "That's what I wanna do. I wanna resolve some things. So, um, and [Doe 3,] I wanna apologize to you too okay?" Defendant said he had money for Doe 3 and "something else, too." Defendant said he had "almost committed suicide" and had "been actually praying to the Lord about this." Defendant told him that after they talked, Doe 3 was "going to feel differently." Doe 3 said, "[D]o you think Gordon there's nothing you—you do that haven't do you. . . . [¶] . . . [¶] 'Cause I do the things you do to me as a kid bro like sexually molest you like touchin' I—I can't even—I can't even it's hard for me to even talk about." Defendant responded, "Okay, [Doe 3]. Let's—let's meet . . . ."
Defendant and Doe 3 met at defendant's house. Doe 3 was wearing a surreptitious recording device. Four officers were staged in the neighborhood around the house. The recording of the meeting was played for the jury.
At the beginning of the meeting, defendant again offered Doe 3 "a little bit of money . . . and 'something else.' " Doe 3 expressed disbelief and said he wanted defendant to apologize to him and give him answers. Defendant said, "I apologize," and, "I can't change the past, [Doe 3]. I wish I could, but I can't . . . ." At first, defendant denied forcing Doe 3 to orally copulate him when he was 11, 12, and 13 years old. The following exchange then occurred:
"[DEFENDANT]: I'm admitting it.
"[DOE 3]: Admitting what, dude? You're sitting—you're sitting here back tracking now, that's the only way I'm going to get closure, dude.
"[DEFENDANT]: Alright, what do you want me to say?
"[DOE 3]: What do you mean? It was like fifty times you— you—you dragged me in your room, bro, over your shoulder. I'm sitting there clawing at the walls, a little kid, bro, a little kid, dude and you're trying to drag me into your room so you could—so you could touch me and fondle, like . . .
"[DEFENDANT]: I wish I could change that."
Despite his suspicion that Doe 3 was wearing a wire in order to "get me in trouble," defendant continued making admissions:
"[DEFENDANT]: Here's the thing, [Doe 3], I—I was a lousy Christian and I've admitted it to God and I'm admitting it to you. If I could change the past, I would, but I've changed my life also. I don't act the way I used to.
"[DOE 3]: (Unintelligible.) Have you ever been . . .
"[DEFENDANT]: . . . Yes, I have been abused as a child myself.
"[DOE 3]: Is that why (unintelligible)?
"[DEFENDANT]: I don't know—I can't (unintelligible).
"[DOE 3]: (Unintelligible)
"[DEFENDANT]: I'm not making excuses, I'm not making excuses, I really don't know. You know, I—I'm wrong.
"[DOE 3]: You know . . . I've sat here and pondered the fact that how the fuck—what were you thinking, bro?
"[DEFENDANT]: I wasn't thinking, that's my problem and I admit it.
"[¶] . . . [¶]
"[DOE 3]: You made me touch you as a kid, bro. That's not right, bro.
"[DEFENDANT]: I know it's not right, I admit it.
"[DOE 3]: 10 year old kids are not supposed to touch a 32-year old man's dick, bro.
"[DEFENDANT]: I know.
"[DOE 3]: Do you get that?
"[DEFENDANT]: I get it.
"[DOE 3]: Why, though . . . what made you compelled to do that to me, bro?
"[DEFENDANT]: I had some bad feelings and tendencies. You know . . .
"[DOE 3]: Well, wha—
"[DEFENDANT]: And I know it was wrong, and I admit it was wrong, I admit it.
"[¶] . . . [¶]
"[DOE 3]: . . . . I'm not here to knock you out, I'm not here to spend time with you, I'm just sincerely right here and right now asking wanting to know why, dude?
"[DEFENDANT]: I had evil tendencies, I was a bad person, um, at that time, a rotten childhood but that's—but that's like making excuses, I'm not going to make excuses. I want to ask you, [Doe 3], will you forgive me?
"[¶] . . . [¶]
"[DOE 3]: You—you—you molested me here, at the pool, in the cabin, in your car. When did I move away from here dude?
"[DEFENDANT]: Like the late '90's.
"[DOE 3]: When did I move here?
"[DEFENDANT]: Like the early '90's.
"[DOE 3]: How long in that period were you molesting me?
"[DEFENDANT]: About ten years.
"[DOE 3]: That's fucked up, dude.
"[DEFENDANT]: There's a certain part of me that says punch me out, you know.
"[¶] . . . [¶]
"[DOE 3]: . . . You fucking took everything away bro.
"[DEFENDANT]: I wish I could give it back, but, you know. I wish I could go back in time you know, and just change things but I can't so all I can do is just say, [Doe 3], again, will you forgive me?
"[DOE 3]: No, I won't ever. I am telling you that right now and that's something you got to live with. I don't care how. It's on you, bro. You made those decisions.
"[DEFENDANT]: I know, I admit it.
"[¶] . . . [¶]
"[DOE 3]: So, you know. Fucking ten years, dude . . . and you still . . . Come on, bro.
"[DEFENDANT]: What can I do? I can't change the past; all I can do is apologize.
"[¶] . . . [¶]
"[DOE 3]: Being a little kid, dude and touching the way you touched me . . . . And you raped me, bro. A little kid, bro. It doesn't matter if you're 11 years old, 12 years old, 13, 14 years old. You raped me, dude . . . several times. Molested, assaulted, raped, abused. Did you not?
"[DEFENDANT]: And I never raped you, [Doe 3].
"[DOE 3]: . . . [W]hat would you call it then?
"[DEFENDANT]: Inappropriate touching.
"[DOE 3]: Inappropriate touching. Okay, so you sucking my dick is inappropriate touching, huh? That's wrong.
"[DEFENDANT]: I know."
At the end of the conversation, defendant encouraged Doe 3 to read something about "eternal life" before handing him an envelope that contained a religious pamphlet with $138 hidden within it.
John Doe 4: Count 34
John Doe 4 was born in July 1987. He was 26 at the time of trial. When he was a child, he lived on the same street as defendant. He and his stepsister used to "hang out in his garage," playing with defendant's dental tools and musical instruments. Defendant would sometimes fake wrestle with him, and slowly hit him in the genitals over his clothes with a closed fist. Defendant's hand would make contact with Doe 4's genitals for a few seconds. Defendant would also hit him on the butt. This occurred almost every time he went to defendant's house, at least 20 or 25 times. John Doe 4 was between the ages of 9 and 11 at the time. He thought it was "a little weird" at the time but he was little and did not know what to do. He did not tell his parents. He did speak with Detective Orlando after the police contacted him.
Doe 4 did not know Doe 3 and was never in bed naked with him and defendant.
Defense Case
David Bone worked for the CIA and dated defendant's sister in 1993. He recalled a weekend visit to the Blake family cabin in Calaveras County in September of that year. He drove to the cabin on a Friday with defendant's two sisters and two friends. Defendant and Doe 3 arrived Friday or Saturday. Another man and his son arrived Saturday. He recalled that defendant and Doe 3 arrived at about the same time as the man and his son. Nothing unusual happened at the cabin on Friday or Saturday night. Everyone left the cabin at about the same time on Sunday except for the man and his son, who left earlier that day.
Defendant testified on his own behalf. He lived in Brentwood from 1985 to 2013, and worked as a dental technician, making false teeth for dentists' patients out of his home. Defendant met Patricia through a church group and became friends with her. He denied engaging in any inappropriate sexual behavior with Does 1 and 2. Defendant admitted he might have spun Doe 1 around in the pool in the presence of Doe 1's mother and sister and it was possible he might have accidentally touched Doe 1's penis in the pool.
Defendant acknowledged play-boxing with Doe 4, but denied touching his genitals or penis while doing so, although it was possible he touched Doe 4's penis area accidentally.
Defendant was 53 years old at the time of trial. Defendant first met Doe 3, who lived next door, in 1992. Doe 3 would come over to defendant's house "[m]aybe a couple times a week." Doe 3 "would come over to my garage from time to time while I was working, and we would just chat for awhile, and then he would leave." Doe 3 was a troubled child with a harassed mother and a dysfunctional home life. The family moved away in "'96, '97, '98, somewhere around there" and defendant did not see them after that.
Defendant denied molesting Doe 3 at his house, at his cabin, in the pool, or in the spa.
Defendant recalled he invited Doe 3 at the last minute to spend Labor Day weekend in 1993 at his Calaveras County cabin. Doe 3 was wandering around the neighborhood while defendant and his friend Ernest and Ernest's son Eddie were packing up the cars to leave that Saturday morning. Defendant thought Doe 3 could be a companion for Eddie, who would otherwise be the only child at the cabin that weekend. Doe 3's mother gave her permission and Doe 3 went with them to the cabin. Other guests that weekend were his two sisters, two of their female friends, and David Bone. Ernest and Eddie did not spend the night. Defendant denied ever being alone with Doe 3 or sodomizing him that weekend. The cabin had no bedrooms; it was one open A-frame room.
After Doe 3 moved away, defendant did not see him again until July 2012 when he arrived at defendant's house looking for money and a place to stay. Defendant agreed to pay Doe 3 $6,500 for a roofing and house painting project. He gave Doe 3 a $5,000 advance, with $1,500 due upon completion.
Defendant left town for the weekend on Friday, August 3, 2012, and spoke with Doe 3 about the job before he left. When defendant returned on Sunday night, half his roof had been torn off, and his collection of firearms had been stolen from his safe, which had been drilled open. Gold and silver used for defendant's dental work, worth $6,000, were also missing from his garage dental laboratory. Defendant reported the burglary to the police. When he saw Doe 3, defendant told him about the theft of his guns and precious metals but did not accuse him of it. Doe 3 denied any knowledge of the event.
On August 16, 2012, a laborer fell off the roof and injured himself. The man filed a workers' compensation claim against defendant, for which defendant was not insured. Defendant told John Doe 3 he wanted Doe 3 to say he was the employer, but Doe 3 was noncommittal. A few days later, Doe 3 informed defendant that he would not be completing the roof job and that the $5,000 had been stolen. Later, Doe 3 changed his mind about finishing the work, but defendant had hired a different roofer.
Defendant and Doe 3 had one more conversation between August 2012 and January 2013. Doe 3 said he knew defendant had groped and inappropriately touched Doe 4 and that he would go to police and the press with what he knew unless defendant gave him $1,000. Defendant denied anything happened. Doe 3 then said, " 'I will make the same allegations against you . . . . But I'm going to leave the area and you will never see me again if you give me a thousand dollars.' " Doe 3 then lowered his demand to $500. When defendant did not take the bait, Doe 3 threatened to call the police and then faked a phone call. Defendant waited and said nothing. Doe 3 started to leave, saying he would deal with it in his own way. Defendant told Doe 3 not to leave, that he wanted his guns back and if Doe 3 got them back defendant would make it worth his while. Doe 3 said he did not know where they were and left.
Defendant testified, "After that afternoon, I was terrified." He did not know "what [Doe 3] was capable of." He found Doe 3 impossible to manage. He no longer trusted Doe 3. When he could not find his key ring with all his keys, he feared Doe 3 had come into his garage and stolen them. He reported to the police his suspicions that Doe 3 had not only stolen his keys but also burglarized his house earlier. This occurred in early to mid-January 2013.
He later found the keys in the backyard; they had never been stolen.
After defendant reported Doe 3 to the police as a suspect in the burglary, he began receiving calls from Doe 3, who was in jail. Defendant's answering machine recorded 25 to 30 hang-up clicks a day, and he believed they were all from John Doe 3.
Defendant agreed to meet Doe 3 on February 26, 2013, because he needed Doe 3 on his side in the workers' compensation matter and because he was "shocked" when Doe 3 accused him of making him "suck your dick" and he "wanted to find out what [Doe 3] was talking about." At this point, defendant "was trying to manage the disaster." However, he did not report any of Doe 3's extortion attempts to the police.
With respect to the taped conversation between defendant and Doe 3, defendant explained he admitted several of Doe 3's allegations of sexual molestation because "I was afraid of him, and I was trying to manage him or at least mitigate the disaster and I was trying to not upset him."
DISCUSSION
I.
Convictions for Counts 1 Through 7 Are Not Barred by the Statute of Limitations.
Defendant argues that all counts relating to Does 1, 2, and 4 are time-barred by the statute of limitations because the lewd acts alleged in those counts do not amount to substantial sexual conduct. (§ 803, subd. (f)(1), hereafter section 803(f)(1).) Defendant's argument requires that we briefly describe the history of sections 803 and 1203.066.
Defendant was charged in 2013. Counts 1 through 7 were alleged to have occurred between 1990 and 1992. (§ 800.) Count 34 was alleged to have occurred in 1999. From 1990 through 1992, the applicable statute of limitations for violations of section 288 was six years. However, in 1993, before that limitations period expired, the Legislature extended the time for filing such charges indefinitely in certain cases. (Former § 803, subd. (g)(1); Stats. 1993, ch. 390, § 1, pp. 2224, 2226.) The United States Supreme Court found certain aspects of section 803 unconstitutional in Stogner v. California (2003) 539 U.S. 607. The Legislature subsequently repealed section 803 and, in 2005, enacted a new section 803. In 2005 the statutory language at issue here was codified in subdivision (g)(1). (Stats. 2005, ch. 2, §§ 1-3, pp. 3-5, eff. Feb. 28, 2005 (Sen. Bill No. 16 (2005-2006 Reg. Sess); see People v. Superior Court (Maldonado) (2007) 157 Cal.App.4th 694, 701, fn. 6 [explaining sequence of statutory amendments].) Current section 803, subdivision (f)(1) uses the same statutory language used in former section 803, subdivision (g)(1). (See Stats. 2016, ch. 777, § 3, eff. Jan. 1, 2017 (Sen. Bill No. 813 (2015-2016 Reg. Sess.)).
Section 803(f)(1) permits the filing of a criminal complaint charging violation of section 288 (and other enumerated sexual offenses) within one year of the date a person of any age reports to a California law enforcement agency that he or she was the victim of such an offense while under the age of 18, provided that: (a) the limitations period specified in sections 800, 801, or 801.1, whichever is later, has expired; (b) the crime involved substantial sexual conduct, as described in section 1203.066, subdivision (b), excluding masturbation that is not mutual; and (c) independent evidence corroborates the victim's allegation and, if the victim was 21 years old or older at the time of the report, the independent corroborating evidence is clear and convincing. (Stats. 2016, ch. 777 (Sen. Bill No. 813, § 3, eff. Jan. 1, 2017.)
Section 1203.066 was enacted in 1981. (Stats. 1981, ch. 1064, § 4, pp. 4095-4096.) Section 1203.066 prohibits probation for a person who, in "violating section 288 . . . has substantial sexual conduct with a [child] victim," unless the trial court makes certain findings. (§ 1203.066, subds. (a)(8), (b), (c).) Since 1981, section 1203.066, subdivision (b) has defined substantial sexual conduct as "penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender." The Legislature has imported that exact language to statutory contexts other than probation ineligibility, most notably to the statute of limitation context in 1993 (§ 803, former subd. (g)(2)) and the Sexually Violent Predators Act (SVPA or Act) (former Welf. & Inst. Code, § 6600.1.)
As enacted, section 1203.066, subdivision (a)(8) applied to victims under age 11. (Stats. 1981, ch. 1064, § 4, p. 4095.) The current version of the statute applies to victims under age 14. (Stats. 2011, ch. 296, § 216 (Assem. Bill No. 1023, Reg. Sess. 2011-2012).)
The gist of defendant's argument is that the statute of limitations was not satisfied here because the acts alleged as masturbation with respect to Does 1, 2, and 4 do not rise to the level of substantial sexual conduct. According to defendant, the Legislature intended that "masturbation" be treated as "substantial sexual conduct" only if it involves skin-to-skin contact and meets the definition of masturbation as "erotic stimulation especially of one's own genital organs commonly resulting in orgasm and achieved by manual or other bodily contact exclusive of sexual intercourse, by instrumental manipulation, occasionally by sexual fantasies, or by various combinations of these agencies." (Merriam-Webster, online dictionary, http://www.merriam-webster.com/dictionary/masturbation (as of March 27, 2018).) Defendant argues the legislative history of section 1203.066 supports his proposed definition of masturbation. In making this argument, defendant invites us to reject decades of contrary precedent. For the following reasons, we decline to do so.
Defendant filed a "Request for Taking Judicial Notice of Legislative History of Penal Code section 803(f)(2)." However, the motion does not, in fact, include any documents related to any iteration of that statute. (Stats. 1993, ch. 390, § 1, eff. Jan. 1, 1994; Stats. 1996, ch. 130, § 1, eff. Jan.1, 1997; Stats. 1997, ch. 29, § 1, eff. June 30, 1997. See People v. Frazer (1999) 21 Cal.4th 737, 743-749, abrogated by Stogner v. California, supra, 539 U.S. 607.) Instead, defendant's request appears to include a selection of documents related to the legislation that added section 1203.066 to the Penal Code in 1981.
Defendant's request for judicial notice does not comply with the California Rules of Court or this District's local rules relating to judicial notice, in that it does not explain how or why this legislative history is relevant to the current statute of limitations. (Cal. Rules of Court, rule 8.252; Ct. App., First Dist., Local Rules, rule 9(b).) However, the Attorney General does not oppose defendant's request. Therefore, we elect to grant the request and address defendant's arguments based on the legislative materials he has submitted and discussed.
We review a question of statutory construction de novo. (In re Jeffrey T. (2006) 140 Cal.App.4th 1015, 1018.) "[T]he controlling issue is the intent of the Legislature." (Milligan v. City of Laguna Beach (1983) 34 Cal.3d 829, 831.) "We start with the statute's words, which are the most reliable indicator of legislative intent. [Citation.] 'We interpret relevant terms in light of their ordinary meaning, while also taking account of any related provisions and the overall structure of the statutory scheme to determine what interpretation best advances the Legislature's underlying purpose.' " (In re R.T. (2017) 3 Cal.5th 622, 627.) "[S]tatutes relating to the same subject are to be harmonized if possible." (People v. Quintana (2001) 89 Cal.App.4th 1362, 1366.) The court may consider "the legislative history of the statute as well as the historical circumstances of its enactment" to ascertain legislative intent. (People v. Jeffers (1987) 43 Cal.3d 984, 993.)
The language at issue in this appeal has been interpreted by the Courts of Appeal numerous times in various contexts. The term "substantial sexual conduct" has been uniformly defined in the case law as "any touching or contact, however slight, of the genitals of the victim or the offender done with the intent to arouse the sexual desires of the victim or the offender" (People v. Dunn (2012) 205 Cal.App.4th 1086, 1098, fn. 8), whether the substantial sexual conduct is accomplished by means of masturbation (ibid.) or oral copulation. (People v. Grim (1992) 9 Cal.App.4th 1240, 1243 (Grim).)
People v. Chambless (1999) 74 Cal.App.4th 773 (Chambless) considered the meaning of "substantial sexual conduct" as used in Welfare and Institutions Code section 6600.1, subdivision (b). As amended in 1996, Welfare and Institutions Code section 6600.1 expanded the definition of a qualifying sexually violent offense to include any offense involving substantial sexual conduct with a child under the age of 14, and defined substantial sexual conduct as "penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender." (Chambless, at p. 784.) According to the victim, the defendant touched her "pee" underneath her panties and tried to make her touch his penis with her hand. (Chambless, at p. 779.) The defendant argued this evidence was insufficient to prove substantial sexual conduct because no case law addressed "the extent of the touching required to meet the definition of such conduct by means of 'masturbation' of either the victim or the offender[,]' the only statutory conduct that could apply to him in this case." (Id. at p. 782.) The court observed that in adding section 6600.1 to the Act, the Legislature had adopted the same language used in Penal Code section 1203.066. (Chambless, at pp. 782-783.)
The Chambless court reasoned that "[b]y its plain language, [Welfare and Institutions Code] section 6600.1, subdivision (b) lists specified sex acts or offenses which involve substantial sexual conduct when committed upon a child under the age of 14 years." (Chambless, supra, 74 Cal.App.4th at p. 784.) But since "masturbation" was not a codified offense having a legal definition, "such word appears to have been used simply in its commonly understood meaning to describe the touching of one's own or another's private parts without quantitative requirement for purposes of defining conduct that was lewd or sexually motivated." (Chambless, at p. 784.) The court noted two other dictionary definitions of masturbation, neither of which included a guide to "the amount of touching required to constitute masturbation." (Id. at p. 784, fn. 16.) From the fact that the statutory language did not include any quantitative limitations, and the common sense observation that the amount of genital touching required to achieve sexual gratification varied from individual to individual, the court inferred that "the Legislature intended the statute to include an objective standard tied to the purpose for which the amended legislation was adopted, i.e., to protect children under the age of 14 'from recidivism among nonviolent repeat felony child molesters who currently have diagnosed mental disorders rendering them likely to repeat such conduct if released.' " (Chambless, at p. 784, fn. 16.)
Noting that the key issue before the Legislature in amending Welfare and Institutions Code section 6600.1 was whether the definition of a sexually violent predator should be expanded to include specified nonviolent sexual offenses on a victim under the age of 14, the court presumed that in adding the nonviolent act of masturbation to the list of acts or offenses that constitute substantial sexual conduct, the Legislature "was aware of the general use of that term to describe any act of genital touching" (Chambless, supra, 74 Cal.App.4th at p. 785) and "was also aware of the 'the long-standing rule that [Penal Code] section 288 is violated by "any touching" of an underage child accomplished with the intent of arousing the sexual desires of either the perpetrator or the child' " (Chambless, at p. 786). The court concluded the Legislature's "inclusion of such offenses as predicate crimes under the Act while at the same time requiring they satisfy the definition of substantial sexual conduct evidences its intent to define conduct that goes beyond the mere touching of any part of the body of an underage child required for a conviction under Penal Code section 288, subdivision (a). We thus believe the sexual conduct described by the term 'masturbation' in subdivision (b) of [Welfare and Institutions Code] section 6600.1 refers to the specific type of touching required, that of the genitals of either the victim or the offender." (Chambless, at p. 786.)
The Chambless court found additional support for its conclusion in People v. Grim, supra, 9 Cal.App.4th 1240, which had concluded that " '[a]ny contact, however slight, between the mouth of one person and the sexual organ of another constitutes "oral copulation" ' " sufficient for a finding of substantial sexual conduct within the meaning of section 1203.066, subdivisions (a)(9) and (b). (Chambless, supra, 74 Cal.App.4th at p. 786, quoting Grim, at pp. 1241-1243.) Because the Legislature took the definition of substantial sexual conduct for the SVPA directly from Penal Code section 1203.066, subdivision (b), the Chambless court presumed the Legislature intended to use the terms in the same way. Thus, "the type or extent of oral copulation sufficient to show substantial sexual conduct under [Welfare and Institutions Code] section 6600.1, subdivision (b) would necessarily be the same as that construed by the court in Grim" (Chambless, at p. 786) and, by parity of reasoning, since both oral copulation and masturbation can constitute substantial sexual conduct under both statutes, "any contact, however slight[,] of the sexual organ of the victim or the offender would be sufficient to qualify as masturbation and in turn as substantial sexual conduct under the Act." (Chambless, at p. 787.)
Subsequent cases have adopted the Chambless court's understanding of "masturbation" as that term is used in its original, probation-limiting context (People v. Dunn, supra, 205 Cal.App.4th at p. 1098, fn. 8), in the sexually violent predator context (People v. Fulcher (2006) 136 Cal.App.4th 41, 52), and in the statute of limitations context (People v. Terry (2005) 127 Cal.App.4th 750, 771-772 ["We conclude that an interpretation of the term 'masturbation' more restrictive than the touching of genitals in violation of section 288, subdivision (a), would be contrary to the legislative purpose of section 803[, subdivision] (g), which is to prevent child molesters from escaping prosecution because their crimes come to the attention of law enforcement only when the victims come forward as adults."].)
Building on the Chambless interpretation of masturbation, subsequent cases have concluded that the requisite touching need not be skin-to-skin in order to qualify as substantial sexual conduct. (People v. Whitlock (2003) 113 Cal.App.4th 456, 463; People v. Lopez (2004) 123 Cal.App.4th 1306, 1310-1314; People v. Terry, supra, 127 Cal.App.4th at pp. 771-772.)
In addition, the Chambless court's understanding of masturbation as substantial sexual conduct is consistent with other definitions of criminal sexual conduct found throughout the Penal Code. For example, the penetration required for rape is defined as "[a]ny sexual penetration, however slight." (§ 263, enacted in 1872, amended by Stats. 1979, ch. 994, § 3, p. 3384.) Similarly, section 289 defines the penetration required for any forcible sexual penetration of a child as "the act of causing the penetration, however slight, of the genital or anal opening of any person" (§ 289, subd. (k); see People v. Quintana, supra, 89 Cal.App.4th at p. 1371 [foreign object].) Section 286, subdivision (a) provides that "[a]ny sexual penetration, however slight, is sufficient to complete the crime of sodomy." By case law, oral copulation under section 288a requires no penetration, only "contact." (People v. Dement (2011) 53 Cal.4th 1, 41, disapproved on another point in People v. Rangel (2016) 62 Cal.4th 1192, 1216; see People v. Mendoza (2015) 240 Cal.App.4th 72, 79 [§ 288.7].) Also by case law, "[a]ny touching of a child under the age of 14 violates [section 288], even if the touching is outwardly innocuous and inoffensive, if it is accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator or the victim" (People v. Lopez (1998) 19 Cal.4th 282, 289; see People v. Shockley (2013) 58 Cal.4th 400, 404), and "[c]onviction under the statute has never depended upon contact with the bare skin or 'private parts' of the defendant or the victim" (People v. Martinez (1995) 11 Cal.4th 434, 444).
Defendant argues that Chambless, Terry, and the cases relying on them were wrongly decided, primarily because extant legislative materials show that the author of the legislation intended that masturbation mean "serious, substantial skin-to-skin contact." Specifically, defendant points to an attachment to a December 1980 letter from a Ventura County deputy district attorney to the project director for the Joint Committee for Revision of the Penal Code, proposing the creation of a "new offense," Penal Code section 288, subdivision (c), which would have required a mandatory prison term of three, six, or eight years plus enhancements for "child molestation where the victim (whether or not force was used) was 10 years old or less and where intercourse (real or simulated), sodomy, oral copulation, or masturbation (one party by the other) occurred."
Defendant also points to a Judicial Council study commissioned by the Assembly Committee on Criminal Justice. The purpose of the study was to "provide current information about [¶] . . . [¶] every superior court criminal case filed in Sacramento and Ventura Counties from April 1, 1978 through March 31, 1980, that included a child molestation charge as defined in Penal Code Section 288 or Section 647a." (Letter from the Special Assistant to the Director of the Administrative Office of the Courts to Senator David A. Roberti, Chairman of the Joint Committee for Revision of the Penal Code, dated Jan. 22, 1981.) The study organized the cases by 20 categories including the sex of the victim, the age of victim, the age of the defendant, the relationship of the defendant to the victim, the type of conduct involved, and the dispositions related to conduct. Table X divided the types of conduct by whether they involved fondling (F), touching (T), rubbing (R), kissing (K), or licking (L); occurred outside or under the clothing; and whether F, T, R, K, and L occurred in conjunction with one or more lewd acts such as "exposure and/or masturbation," oral copulation, intercourse, or sodomy.
In our view, these materials do not advance defendant's argument. Proposed section 288, subdivision (c) was never enacted and did not, in any event, include language suggesting molestation was limited to "serious, substantial skin-to-skin contact." We cannot help but note that the Legislature did add language to section 1203.066, subdivision (b) specifically excluding from its purview defendant's self-masturbation in the presence of the victim. (See People v. Lamb (1999) 76 Cal.App.4th 664, 678-679 [construing phrase "masturbation that is not mutual"].) On the other hand, the Legislature has amended, repealed, and reenacted section 803, the statute of limitations at issue here, multiple times since 1999. (See, e.g., Stats. 2001, ch. 235, § 1; Stats. 2005, ch. 2, § 3; Stats. 2005, ch. 479, § 3; Stats. 2007, ch. 579, § 41; Stats. 2011, ch. 15, § 447.) The Legislature has never seen fit to amend the statute in a way that abrogates the holdings of Chambless and its progeny or indicates a disagreement with the Chambless court's definition of masturbation. "The Legislature is presumed to be aware of ' "judicial decisions already in existence, and to have enacted or amended a statute in light thereof." ' " (People v. Giordano (2007) 42 Cal.4th 644, 659.) In light of that presumption, we infer the Legislature's acceptance of the long line of cases defining substantial sexual conduct by means of masturbation as any touching of the victim's genitals, however slight, whether over or under clothing.
The Judicial Council's study made observations about the statistical frequency of certain types of conduct based on numerical calculations, but it drew no conclusions and made no recommendations about how the Legislature should view or define masturbation or substantial sexual conduct. Contrary to defendant's assertion, the study provides no basis for this court "judicially to make a distinction" between touching outside the clothing and touching under the clothing, when nothing in the statutory language as enacted, or in the legislative history defendant discusses in his briefs, suggests the Legislature made such a distinction. In our view, defendant's rationale for distinguishing the degree of touching required for substantial sexual conduct as used in section 1203.066, subdivision (b) and section 803(f)(1) is not persuasive in light of the "host of reasons, ranging from statutory language and case precedent to considerations of anatomy and policy" (People v. Quintana, supra, 89 Cal.App.4th at p. 1366) supporting the conclusion that substantial sexual conduct means any touching of a child's genitals, however slight, by means of masturbation, or oral copulation, or sodomy, or penile-vaginal contact, with lewd intent.
Defendant also argues that Chambless, supra, 74 Cal.App.4th 773, and all the subsequent SVPA cases adopting its "newly-minted elastic definition of masturbation" as substantial sexual conduct, should not be followed because SVP hearings are fundamentally different from criminal prosecutions in that (1) fewer due process protections are afforded (i.e., no right to self-representation, no Sixth Amendment right to confrontation, multiple layers of hearsay permissible); (2) persons adjudicated as SVPs are a special category of uniquely dangerous individuals; (3) civil commitments are nonpunitive; (4) Welfare and Institutions Code section 6601.1 was repealed by Proposition 83 in 2006 (Prop. 83, § 25, approved by voters, Gen. Elec. (Nov. 7, 2006) eff. Nov. 8, 2006); and (5) the "SVP cases cited by respondent rely upon and interpret the Welfare and Institutions Code."
See People v. Whitlock, supra, 113 Cal.App.4th 456; People v. Lopez, supra, 123 Cal.App.4th 1306; People v. Whitney (2005) 129 Cal.App.4th 1287; People v. Fraser (2006) 138 Cal.App.4th 1430; People v. Fulcher, supra, 136 Cal.App.4th 41; and People v. Carlin (2007) 150 Cal.App.4th 322.
The argument is not persuasive. The statutory language at issue originated in the Penal Code and was imported verbatim to the Welfare and Institutions Code. The purposes of the statutes in question—to protect vulnerable children from child molesters—are congruent across codes. "[S]ection 288 was enacted to provide children with 'special protection' from sexual exploitation. [Citation.] The statute recognizes that children are 'uniquely susceptible' to such abuse as a result of their dependence upon adults, smaller size, and relative naiveté. [Citation.] The statute also assumes that young victims suffer profound harm whenever they are perceived and used as objects of sexual desire. [Citation.] It seems clear that such concerns cannot be satisfied unless the kinds of sexual misconduct that result in criminal liability are greatly expanded where children are concerned." (People v. Martinez, supra, 11 Cal.4th at pp. 443-444.) Meanwhile, "[t]he provisions of section 1203.066 should be construed in light of the major areas of concern expressed at the legislative hearings." (People v. Jeffers, supra, 43 Cal.3d at p. 997.) One of those concerns was that "a distinction be drawn for purposes of probation eligibility, between those described as intrafamily or 'regressed' offenders, who stand some chance of rehabilitation, and the pedophiles or 'fixated' offenders, who were considered not amenable to treatment and a greater threat to the community." (Ibid.) Finally, the Legislature's intent with respect to the SVPA is "to provide additional protection . . . for underage children from those 'predispose[d] . . . to the commission of criminal sexual acts.' " (Chambless, supra, 74 Cal.App.4th at p. 787; see Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1144 & fn. 5.)
Penal Code sections 288, 1203.066, subdivision (b) and Welfare and Institutions Code section 6600.1, subdivision (b) apply to lewd acts committed against children under the age of 14. While section 288 criminalizes a broad spectrum of conduct when committed with lewd intent, both section 1203.066, subdivision (b) and former Welfare and Institutions Code section 6600.1 seek to separate the least dangerous offenders from the most serious offenders. In both cases, the threshold finding involves "substantial sexual conduct" practiced upon such a child. It is entirely consistent that the Legislature viewed any touching of a young child's genitals with lewd intent as more serious and thus more deserving of mandatory prison (§ 1203.066) or mandatory post-prison treatment (Welf. & Inst. Code, § 6600.1) than any other touching that violates section 288. The fact that the electorate later determined that any lewd touching of a child under the age of 14 should qualify as a "sexually violent offense" for the purpose of isolating recidivist child molesters through civil commitment does not undermine the distinction originally drawn by the Legislature, which broadened the category of "sexually violent offenses" to include not only violations of section 288 involving force or violence but also nonviolent violations involving substantial sexual conduct. (Chambless, supra, 74 Cal.App.4th at p. 785.) Nor do we see how the other differences between the statutory schemes identified by defendant bear on the definition of masturbation or substantial sexual conduct.
Finally, defendant urges us to depart from People v. Terry, supra, 127 Cal.App.4th 750, which applied the Chambless and Lopez definition of masturbation as substantial sexual conduct to the statute of limitations in section 803, subdivision (g), because six of the seven cases on which it relies for its definition of masturbation are cases arising under the SVPA and because it was decided by the Sixth District. Given our previous discussion, we do not consider these factors a sufficient basis to reject an otherwise well-reasoned case, and we decline to do so. For the reasons set forth above, we hold that the charges against John Does 1, 2 and 4 were not barred by the statute of limitations.
In his reply brief, defendant for the first time argues that applying a 2005 broadened definition of masturbation to crimes committed in the 1990s violates ex post facto principles. It is well settled that new arguments raised for the first time in the reply brief will not be considered out of fairness to the respondent, unless good reason is shown for the failure to present such point earlier. (People v. Lewis (2008) 43 Cal.4th 415, 536, fn. 30; see People v. Failla (2006) 140 Cal.App.4th 1514, 1519, fn.3; Sinclair v. Aquarius Electronics, Inc. (1974) 42 Cal.App.3d 216, 229.) Here, defendant proffers no reason at all why we should depart from the general rule, and the contention is forfeited. (Taylor v. Roseville Toyota, Inc. (2006) 138 Cal.App.4th 994, 1001, fn. 2.)
II.
Defendant's Due Process Rights Were Not Violated.
Under the rubric of due process, defendant challenges various aspects of his convictions: sufficiency of the evidence, adequacy of notice, and jury unanimity. Defendant argues he was denied adequate notice of the charges and precluded from raising a proper defense because the information did not specify the dates on which the criminal acts were alleged to have occurred, his demurrer was denied, discovery was unhelpful, and the witnesses' testimony at the preliminary hearing and trial was generic and amorphous, and did not specify the criminal acts which were alleged to have been committed.
In People v. Jones (1990) 51 Cal.3d 294 (Jones) our Supreme Court examined and disapproved a series of Court of Appeal cases which had held that prosecutions based on "nonspecific" or "generic" pleading and/or testimony deprived the "so-called 'resident child molester' " of due process by preventing him from mounting an effective defense or obtaining a unanimous jury verdict as to each act charged in the information. (People v. Vargas (1988) 206 Cal.App.3d 831; People v. Luna (1988) 204 Cal.App.3d 726; People v. Atkins (1988) 203 Cal.App.3d 15; People v. Van Hoek (1988) 200 Cal.App.3d 811, all disapproved in Jones, at p. 322.) The Jones court described a resident child molester as one who "either lives with his victim or has continuous access to him or her. In such cases, the victim typically testifies to repeated acts of molestation occurring over a substantial period of time but, lacking any meaningful point of reference, is unable to furnish many specific details, dates or distinguishing characteristics as to individual acts or assaults." (Jones, at p. 299.)
The Jones court concluded that "[t]o hold that such testimony, however credible and substantial, is inadequate to support molestation charges would anomalously favor the offender who subjects his victim to repeated or continuous assaults. This opinion attempts to accommodate all legitimate due process concerns without immunizing resident child molesters from prosecution." (Jones, supra, 51 Cal.3d at p. 300.) The court stressed its opinion was not limited to so-called resident child molesters. "The problems we address are not isolated ones peculiar to the present case. According to statistics furnished by the California Department of Justice, in California alone, approximately 22,000 cases of child sexual abuse were reported in 1988. (Cal. Dept. Justice, Child Abuse Central Index, Child Abuse Investigation Reports, 1988.) Thus, the issues we explore have evident societal significance." (Jones, at p. 300.)
The Jones opinion established three " 'ground rules' " for squaring the sufficiency of generic evidence to support child molestation convictions with due process. (Jones, supra, 51 Cal.3d at p. 313.) Number one: "The victim, of course, must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy)." (Jones, at p. 316.) Number two: "[T]he victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., 'twice a month' or 'every time we went camping')." (Ibid.) Number three: "[T]he victim must be able to describe the general time period in which these acts occurred (e.g., 'the summer before my fourth grade,' or 'during each Sunday morning after he came to live with us'), to assure the acts were committed within the applicable limitation period. Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim's testimony, but are not essential to sustain a conviction." (Jones, at p. 316.)
The Jones court recognized the due process right to defend includes the right to notice of the charges and the right to present a defense to the charges. (Jones, supra, 51 Cal.3d at p. 317.) With respect to notice, the Jones court reaffirmed that "the defendant has no right to notice of the specific time or place of an offense, so long as it occurred within the applicable limitation period" (ibid.), and that "given the availability of the preliminary hearing, demurrer and pretrial discovery procedures, the prosecution of child molestation charges based on generic testimony does not, of itself, result in a denial of a defendant's due process right to fair notice of the charges against him." (Id. at p. 318.) The court anticipated that deficiencies in the preliminary hearing could be cured through discovery from the prosecution or a continuance of trial if the material details of a victim's testimony were not forthcoming. (Id. at pp. 318-319.)
With respect to the right to present a defense, the Jones court concluded that the victim's inability to recall or relate specific dates, locations, or other details of the offenses did not inevitably preclude a defense. Jones observed that alibi or identity defenses were rarely raised in resident child molester cases. Usually, trial centered on the relative credibility of the accuser and the accused. (Jones, supra, 51 Cal.3d at pp. 313, 319.) To the extent the due process concerns of prior cases may have been driven by a belief that a child's testimony in a sex case was inherently untrustworthy, the court reaffirmed the modern view that there is no distinction between " 'the competence of young children and that of other witnesses.' " (Id. at p. 320.) The court offered numerous examples of defense tactics available to the defendant faced with generic testimony, including but not limited to taking the stand and directly denying wrongdoing, cross-examining the victim, and introducing expert character evidence that his personality profile is inconsistent with child molestation. "If credible, his testimony should prevail over the unspecific assertions of his young accuser. In some cases, the very nonspecificity of the child's testimony, especially if uncorroborated, may offer defense counsel fertile field for challenging the child's credibility." (Ibid.)
Finally, with respect to the right to a unanimous jury on specific charges, the court rejected "the contention that jury unanimity is necessarily unattainable where testimony regarding repeated identical offenses is presented in child molestation cases. In such cases, although the jury may not be able to readily distinguish between the various acts, it is certainly capable of unanimously agreeing that they took place in the number and manner described." (Jones, supra, 51 Cal.3d at p. 321.) "[E]ven generic testimony describes a repeated series of specific, though indistinguishable, acts of molestation." (Ibid.) Further, the standard unanimity instruction provides guidance by "focusing the jury's attention on each such act related by the victim and charged by the People. We see no constitutional impediment to allowing a jury, so instructed, to find a defendant guilty of more than one indistinguishable act, providing the three minimum prerequisites heretofore discussed are satisfied." (Ibid.) Those three minimum prerequisites are the previously quoted "ground rules" for sufficiency of the evidence.
Jones has been settled law for almost 30 years. Nevertheless, defendant argues that Jones is factually distinguishable from his case because: (1) in Jones, the child witness did not lie, whereas Doe 3 admitted he fabricated a sexual molestation incident; (2) in Jones, the crimes were reported one year before the trial, and within the applicable statute of limitations, whereas here the crimes were reported and the trial was held more than 20 years after the alleged acts occurred, outside the limitation period; (3) in Jones, the pleading periods were two months, whereas here the pleading periods spanned one to four years; (4) in Jones, the witnesses were children, whereas here the witnesses were grown men; (5) in Jones, the defendant resided in the same house as the victims, whereas here defendant was a neighbor and/or friend who lived in a different city from the victims, and (6) in Jones, only one type of lewd act, oral copulation, was alleged. In our view the factual distinctions drawn by defendant have no bearing on Jones's core holdings and do not undermine Jones's application to this case.
Jones's holdings do not turn on the truthfulness of the victim's testimony. The Jones court emphasized "it is the exclusive province of the trial judge or jury to determine the credibility of the witness and the truth or falsity of the facts on which that determination depends. . . . [¶] . . . [I]t is not a proper appellate function to reassess the credibility of the witnesses." (Jones, supra, 51 Cal.3d at pp. 314-315.)
Jones's holdings also do not turn on the length of time between the alleged offense and the report. The court stressed that the offense must be alleged to have occurred within the applicable limitations period. Defendant disingenuously suggests that the applicable limitations period here was six years. It was not. The applicable limitations period is codified in current section 803(f), which extends the time period for filing a section 288 complaint for one year after the report of the complaint to a California law enforcement agency, by a person of any age, as long as the acts alleged occurred while the victim was under the age of 18, the otherwise applicable limitation period has expired, the crime involved substantial sexual conduct, as described in section 1203.066, subdivision (b), and independent clear and convicting evidence corroborates the allegation made by a person 21 years of age or older. The requirements were met in this case.
The length of the pleading period—whether two months or two years—likewise played no part in the court's decision. The court stressed the victim must be able to describe "the general time period" to assure compliance with the statute of limitations. (Jones, supra, 51 Cal.3d at p. 312.)
The court specifically stated there was no distinction between child and adult witness competency. Both children and adults may have faulty memories, and "[e]ven a mature victim might understandably be hard pressed to separate particular incidents of repetitive molestations by time, place or circumstance (Jones, supra, 51 Cal.3d at p. 305), but "[r]equiring the People to plead and prove specific acts of molestation would result in prosecuting only those defendants who select victims with good memories, or who commit the fewest acts." (Id. at p. 313.)
Finally, the court made no distinction between child molesters who reside with their victims and child molesters who, for other reasons, have recurring access to their victims. The court specifically stated its opinion had "societal significance" in light of the vast number of child molestations cases filed in California. (Jones, supra, 51 Cal.3d at p. 300.) Similarly, the Jones opinion anticipated its principles would apply in mixed conduct cases, and required that the victim be able to "differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy)." (Jones, at p. 316.) That holding does not suggest the Jones opinion applies only when only one kind of lewd conduct is alleged.
For the foregoing reasons, we hold the principles laid down in Jones govern defendant's case. With that in mind, we now turn to defendant's specific complaints.
Inadequate Notice
Defendant claims adequate notice was not provided because "the People filed multiple counts, grouped by year, alleging exactly the same charge and range of dates with no additional information." Moreover, an investigating officer testified at the preliminary hearings for Does 1, 2, and 4, instead of the victims. This officer could not remember "significant details of the alleged crimes"; he used the word "masturbate" to describe defendant's touching of Doe 2's penis through the hole in Doe's boxer shorts; he could not remember if Doe 1 used the word "heinous" and Doe 2 used the word "horrific" to describe defendant's conduct; and he could not narrow the swimming pool incident down to "one or two months (à la Jones)." If he had, "defendant could have sought the pool logs of visitors during those months to determine if the witness had even been there during that time." Plus, the officer could not remember where the pool was. As a result, defendant could not establish an alibi defense. Also, the officer also could not remember what Doe 4 said.
As for Doe 3, who did testify at a preliminary hearing, defendant complains that his testimony at that hearing "consisted mostly of generic allegations" and contradicted his trial testimony. Plus, the magistrate "shut down" defendant's efforts to "cross-examine JD3 on his juvenile history in order to establish an alibi defense."
Defendant further complains that the deficiency in the pleadings and the preliminary hearings were not ameliorated by the availability of a demurrer, or discovery, because the court denied his demurrer and the prosecutor did not turn over discovery about Doe 3's juvenile court and school records.
The pleadings in this case did not violate due process. Jones makes clear that "the defendant has no right to notice of the specific time or place of an offense, so long as it occurred within the applicable limitation period. 'Beyond that, . . . the prosecution clearly has no duty to provide more explicit notice than human nature and science permit.' [Citation.] . . . [T]he 'modern answer' to . . . [the] rhetorical inquiry as to how defendant can prepare a defense against nonspecific molestation charges 'is that, at a minimum, a defendant must be prepared to defend against all offenses of the kind alleged in the information as are shown by evidence at the preliminary hearing to have occurred within the timeframe pleaded in the information.' " (Jones, supra, 51 Cal.3d at p. 317.) The pleadings in this case alleged a specific number of lewd acts in violation of section 288 within specific time frames. They further alleged that defendant engaged in substantial sexual conduct with the victims within the meaning of section 1203.066, subdivision (a)(8) as to each count, and that the charges met the requirements of the statute of limitations. " 'So long as the evidence presented at the preliminary hearing supports the number of offenses charged against defendant and covers the time frame[s] charged in the information, a defendant has all the notice the Constitution requires. The defendant may demur if he or she believes the lack of greater specificity hampers the ability to defend against the charges.' " (Jones, at p. 312, quoting People v. Jeff (1988) 204 Cal.App.3d 309, 342.) No more is required under Jones.
It is true a police officer testified in lieu of Does 1, 2, and 4 pursuant to Proposition 115, the Crime Victims Justice Reform Act. The federal confrontation and due process clauses are not violated by this practice. (Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1067, 1081-1082.) We note that if defendant believed the evidence adduced at the preliminary hearing was too vague and amorphous to afford meaningful notice of the charges or demonstrate probable cause, he could have challenged the magistrate's holding order on those grounds. (§ 995.) He did not do so. Defendant did file a section 995 motion, but it challenged only counts 1 to 7 and 34, on the grounds that the statute of limitations was not satisfied because masturbation, as that term is commonly understood, was not shown by the evidence. He did not challenge the restriction on cross-examination of Doe 3 about his juvenile history. Nor did he challenge the quantum of evidence to support the holding order. This case is now before us on direct appeal from a judgment rendered after a jury trial at which all four victims and defendant testified and were extensively cross-examined. It is too late to complain—for the first time—about the evidentiary basis supporting the holding order or evidentiary errors assertedly committed at a preliminary hearing. (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 530.) No such showing of prejudice has been made.
Defendant's complaints about the denial of his demurrer and discovery are similarly not well taken. Defendant's demurrer, like his section 995 motion, was addressed solely to the statute of limitations issue concerning the definition of masturbation. It did not address deficiencies in notice of the charges. Defendant cannot now complain that he did not "learn further critical details of the People's case through demurrer" (Jones, supra, 51 Cal.3d at p. 317), when he did not use the demurrer procedure for that purpose. His assertion that the court "refus[ed] to allow adequate discovery" of defendant's juvenile history and school attendance is not supported by the record. Defendant fails to identify any discovery motion or discovery ruling pertaining to Doe 3's juvenile history or school records. In fact, the record on appeal is devoid of any such motion or ruling.
We conclude defendant's challenge to the adequacy of the notice is meritless.
Insufficiency of the Evidence
Defendant argues the evidence was insufficient to support conviction on counts 6, 7, 22 to 33, and 34. We disagree.
"[T]he due process standard . . . constitutionally protects an accused against conviction except upon evidence that is sufficient fairly to support a conclusion that every element of the crime has been established beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 313-314 (Jackson).) "[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be . . . to determine whether the record evidence could reasonably support a finding of guilty beyond a reasonable doubt. . . . [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson, at pp. 318-319, fn. omitted; accord, People v. Johnson (1980) 26 Cal.3d 557, 576; see Jones, supra, 51 Cal.3d at p. 314.) "An appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425; accord, Jones, at p. 314; see People v. Raley (1992) 2 Cal.4th 870, 891; accord, Jones, at p. 314.)
Applying these principles to nonspecific or generic testimony in a child molestation case, Jones determined a conviction will pass constitutional muster if the factors discussed previously are satisfied (see p. 35, ante). "Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim's testimony, but are not essential to sustain a conviction." (Jones, supra, 51 Cal.3d at p. 316.) With these principles in mind, we turn to defendant's specific insufficiency claims.
Defendant argues the evidence in support of counts 6 and 7 is insufficient, because the general time period alleged (three years) is too long. As previously noted, nothing in Jones suggests that the length of the pleaded time period is relevant to any aspect of the evidentiary sufficiency other than the statute of limitations.
Count 6 alleged a forcible lewd act upon Doe 1 between January 1990 and December 1992, when he was under the age of 14. Doe 1 was born in November 1979. His parents divorced, and his father married Doe 2's mother in January 1992. Doe 1 recalled he was 10 years old when he met defendant, after defendant joined a singles' Bible study group that met at his mother's house. The last time defendant molested him was in the summer of 1991 or 1992, when he was 12 years old or so. Defendant and Doe 1 were sleeping outside in the backyard on air mattresses when Doe 1 awoke to find that one of defendant's hands was holding Doe's left hand against defendant's testicles "and he was masturbating."
Count 7 alleged a lewd act upon Doe 2 between January 1990 and December 1992. Doe 2 was born in February 1980. Doe 2 testified that in 1991 or 1992, when he was 11 or 12, defendant entered Doe 1's mother's room, where he and Doe 1 were sleeping on her bed, and put his hand between Doe 2's legs, reached into the boxer flap of his underwear, and stroked Doe 2's penis about 10 times in an up-and-down motion. If believed, the testimony of Doe 1 and Doe 2 was sufficiently specific as to the kind of act, number of acts, and general time period in which the acts occurred to assure the acts were committed within the applicable limitation period. Due process and Jones are satisfied.
Defendant argues the evidence is insufficient to support the convictions in counts 23 to 33, because no acts were alleged with any specificity. We disagree.
Doe 3 was born November 6, 1981. Counts 23 through 27 alleged five forcible lewd acts against him (§ 288, subd. (b)(1)) between January 1 and November 5, 1995, when Doe 3 was 13. The jury convicted him of the lesser included offense of lewd acts without force. (§ 288, subd. (a).) Counts 28 through 30 alleged three lewd acts upon a 14- or 15-year-old (§ 288, subd. (c)(1)) between November 6, 1995 to December 31, 1996, when Doe 3 was 14 and 15. Counts 31 through 33 also alleged three counts of lewd acts upon a 14- or 15-year-old between January1, 1997 and November 5, 1997, when he was 15.
Doe 3 met defendant when he was 10 years old, after his family move to Brentwood in 1991. Doe 3 described how, when he was 11 years old (i.e., 1992), defendant picked him up and carried him kicking and screaming into the bedroom, where defendant masturbated and orally copulate him. Doe 3 also described the first time he orally copulated defendant in the bedroom at the age of 11.
When Doe 3 was 12 (i.e., 1993), defendant would grab Doe 3's hand and make him fondle defendant's testicles or masturbate his penis. Doe 3 also described how once, in 1993, defendant anally penetrated defendant, and Doe 3 orally copulated defendant, in the spa or pool at the community pool complex.
Doe 3 testified that between 1992, when he was 11 years old, and 1997, when he turned 16, defendant molested him between 49 to 79 times by means of masturbation, oral copulation, and anal penetration. He estimated there were at least 20, if not more, acts of masturbation, oral sex or anal sex per year during that time period, with fewer acts occurring as he got older, and none after his 16th birthday. Specifically, Doe 3 testified that defendant molested him in one of those three ways at least five to 10 times from his 14th birthday in 1995 until the end of 1996, and fewer than five times from his 15th birthday in 1996 until he turned 16 in 1997. He also estimated that he submitted to sex acts by defendant 15 to 20 times at age 14, more than five times but fewer than 10 at age 15.
If believed, Doe 3's testimony established that many more lewd acts occurred than were actually charged. At a minimum, if believed, his testimony certainly established that defendant committed at least the 11 charged lewd acts consisting of masturbation, oral sex, or anal sex alleged to have occurred between January 1, 1995 and November 5, 1997, when Doe 3 was 14 and 15 years old. In our view, the evidence supporting those counts meets Jones's criteria and is not insufficient to support the convictions in counts 23 through 33.
Unanimity Instruction
Defendant argues due process was violated because the jury unanimity instruction given to the jury was inadequate to protect his constitutional right to a unanimous jury verdict on every count. Jones saw "no constitutional impediment" to allowing a properly instructed jury "to find a defendant guilty of more than one indistinguishable act, providing the three minimum prerequisites heretofore discussed are satisfied." (Jones, supra, 51 Cal.3d at p. 321.) Jones held the standard unanimity instruction should be given "[i]n a case in which the evidence indicates the jurors might disagree as to the particular act defendant committed." (Id. at p. 321.) However, "when there is no reasonable likelihood of juror disagreement as to the particular acts, and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim." (Id. at p. 322, italics added.)
Defendant's opening brief does not say which "inspecific charges" must "be dismissed." We assume his arguments relate to counts 23 through 27, 28 through 30, and 31 through 33, the only ones he names in his argument.
The court gave the modified instruction, CALCRIM No. 3501, as follows: "The People have presented evidence of more than one act to prove that the defendant committed these offenses. You must not find the defendant guilty unless: [¶] One, you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed for each offense; [¶] Or two, you all agree that the People have proved that the defendant committed all of the acts alleged to have occurred during this time period and have proved that the defendant committed at least the number of offenses charged. [¶] Each of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one."
Defendant argues the trial court should have given CALCRIM No. 3500, which states: "The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed." We disagree. In this case, given the evidence, the jury could have agreed that defendant committed at least one of several acts, and agreed on which act that was. Or, the jury could have agreed that defendant committed all of the acts alleged to have been committed within a single time frame, i.e., when Doe 3 was 13, or 14, or 15. CALCRIM No. 3501 includes both options and, of the two unanimity instructions, the most suitable for this case.
We have already determined that the 11 lewd acts charged in counts 23 through 33 met the basic requirements of Jones in terms of kind, number, and timing. Defendant argues the acquittals of undifferentiated forcible lewd acts in counts 23 through 27, covering the time period from January 1, 1995 through November 5, 1996, demonstrates the jury's lack of unanimity, but we think it shows just the opposite. That the jury was able to decide all the lewd acts alleged did occur, but were not forcible, demonstrates the instructions focused the jury's attention on the salient issues raised by the testimony. Jurors are presumed to follow the instructions. (Francis v. Franklin (1985) 471 U.S. 307, 324-325, fn. 9; People v. Burgener (2003) 29 Cal.4th 833, 874.) We presume the jury followed the instructions. The defense to these counts hinged on the relative credibility of defendant and Doe 3, since no other witnesses were present. Defendant mounted an aggressive defense by attacking Doe 3's credibility and testifying on his own behalf, denying any wrongdoing and explaining his seeming admissions. In our view, the unanimity instruction given here was adequate to protect defendant's due process right to a unanimous jury.
Substantial Sexual Conduct Instruction
Defendant argues the jury was erroneously instructed on the meaning of substantial sexual conduct because the instruction described masturbation as mere touching over the clothing. The court instructed the jury that "[m]asturbation encompasses any touching however slight of the child or defendant including over the clothes with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child." As discussed at length with respect to defendant's statute of limitations argument, the court's instruction comports with case law. It is correct. (People v. Dunn, supra, 205 Cal.App.4th at p. 1098, fn. 8; People v. Whitney, supra, 129 Cal.App.4th at p. 1294.)
Inconsistent Verdicts
Finally, defendant asserts the verdicts on counts 23 through 27 "are inconsistent with a finding of guilt." We disagree.
Defendant was charged in counts 23 through 27 with forcible lewd acts upon Doe 3 between January 1, 1995 and November 5, 1995. In connection with each of these counts, the jury was provided with verdict forms for the charge of violating section 288, subdivision (b)(1) and for special findings of true or not true on (1) substantial sexual conduct, (2) the statute of limitations, and (3) the more-than-one-victim allegation. For each of these counts, the jury was also provided with verdict forms for the lesser charge of violating section 288, subdivision (a), lewd acts upon Doe 3 during the relevant time period and, in connection with this lesser charge, verdict forms for special findings on the same three allegations.
The court instructed the jury that "[f]or each count, you will receive a verdict form. Follow these directions before you give me any completed and signed final verdict form. Return any unused verdict forms to me unsigned. [¶] One, if all of you agree that the People have proved that the defendant is guilty of the greater crime, complete and sign the verdict form for guilty of that crime. Do not complete or sign any other verdict from for that count. [¶] Two, if all of you agree that the People have not proved that the defendant is guilty of the greater crime and also agree the People have proved that he is guilty of a lesser crime, complete and sign the verdict form for guilty of the lesser crime. Do not complete or sign any other verdict form for that count. [¶] Three, if all of you agree the People have not proved that the defendant is guilty of the greater or lesser crime, then complete and sign the verdict form for not guilty."
The court did not explain what the jury should do with the verdict forms for the special findings.
Elsewhere the court explained: "If you find the defendant guilty of two or more sex offenses as charged in Counts 23 through 27 and 34, you must then decide whether the People have proved the additional allegation that those crimes were committed against more than one victim. [¶] . . . [¶] If you find the defendant guilty of any of the crimes charged in Counts One through 34, or in the case of Count Eight through 27 of the lesser crime of lewd act upon a child under 14, you must then decide whether the People have proved the additional allegation that the defendant engaged in substantial sexual conduct with the victim of the charged offense. [¶] . . . [¶] If you find the defendant guilty of the crimes charged in Counts Eight through 33 or of any lesser crime thereto, you must then decide pursuant to Penal Code Section 803(f), whether for each crime the People have proved the following factual allegations by a preponderance of the evidence." The court did not explain what to do with the duplicate allegations attached to the greater and lesser charges.
The jury found defendant not guilty of forcible lewd acts (§ 288, subd. (b)(1)) and guilty of the lesser included offense of lewd acts (§ 288, subd. (a).) The jury returned verdict forms, which stated: "We the jury in this case, find the defendant, GORDON BLAKE, Not Guilty of (FORCIBLE LEWD ACT UPON CHILD), a violation of Penal Code Section 288(b)(1), a felony, (as to John Doe 3), on or about January 1, 1995 through November 5, 1995, as set forth in Count[s] 23, 24, 25, 26, and 27] of the Information." The verdict form contained the following directions: "If you have found the defendant not guilty above, please continue to Lesser and Included Offense #1. If you have found the defendant guilty above, please continue to findings below."
Instead of following the directions, the jury continued to the next page, and marked as "Not True" the allegations of "Finding[s] #1, #2, and #3." Each allegation was phrased as follows: "We, the jury in this case, having found the defendant guilty of forcible lewd acts upon the child, find the allegation . . . is True/Not True." In connection with the guilty verdicts on the lesser included offenses of lewd acts, the jury found each allegation true.
On Thursday, June 19, 2014, when the jurors were brought into the courtroom for the reading of the verdicts, the court asked:
["THE COURT]: "[Juror Number 2], I understand you're our foreperson?
"[JUROR NUMBER 2]: "Yes, sir.
"[THE COURT]: "And the jury has reached verdicts?
"[JUROR NUMBER 2]: "Yes, we have.
"[THE COURT]: "Will you please provide those to Deputy Sims. [¶] So, folks, Nancy will be reading the verdicts that you have filled out. So I'll ask that you pay attention. After each verdict she'll ask you, as a group, if that is your verdict as read. And at the completion of that process we'll poll each individual juror as to all the verdicts that have been read."
After each verdict was read, the clerk stated it was dated June 19, 2014, and signed by the jury foreperson. Then she asked: "Ladies and gentleman of the jury, is this your verdict as read?" The jury answered collectively, "Yes, it is."
Specifically, with respect to counts 23, 24, 25, 26, and 27, after reading the verdict of not guilty of forcible lewd act upon a child, and guilty of a lewd act upon a child, the clerk read: "Finding Number 1. [¶] We, the jury in this case, having found the defendant guilty of lewd act upon a child under age 14, find the allegation that the defendant had substantial sexual conduct with John Doe Three is true. [¶] Finding Number 2. [¶] We, the jury in this case, having found the defendant guilty of lewd act upon a child under age 14, find that the People have satisfied the statute of limitations under Penal Code Section 803(f) true. [¶] [Finding Number 3.] We the jury in this case, having found the defendant guilty of lewd act upon a child under age 14, find that the allegation that the defendant committed a violation of Penal Code Section 288 against more than one victim true. [¶] Dated: June 19th, 2014. Signed by the jury foreperson. [¶] Ladies and gentleman of the jury, is this your verdict as read?" The jury answered yes.
After all the verdicts were read, defense counsel asked the jury collectively if verdicts 1 through 34 were its verdicts as read. The jury answered yes. Then each juror was asked individually if the verdicts in counts 1 through 34 were his or her verdicts as read, and each juror affirmed they were. The clerk did not read the not true findings attached to the not guilty of forcible lewd act verdicts, nor were they recorded. Defendant did not object at the time the verdicts were read, or before the jury was discharged, nor did he raise any objection in his new trial motion.
Defendant argues, for the first time on appeal, that inconsistency between the not true findings attached to the not guilty verdict on the forcible lewd act counts, and the true findings attached to the guilty verdict on the lesser included lewd act verdicts, vitiates the validity of the true findings and constitutes reversible error. He cites no authority for this remarkable proposition.
Preliminarily, we find defendant has forfeited any claim of error by failing to object below. "[T]he general rule in both civil and criminal cases is that an objection to a defective verdict must be made before the jury is discharged. . . . The requirement of an objection is premised upon the idea that a party should not sit on his or her hands, but instead must speak up and provide the court with an opportunity to address the alleged error at a time when it might be fixed." (People v. Anzalone (2013) 56 Cal.4th 545, 550.) There was no objection because there was no error in the taking and recording of the verdicts. (See §§ 1149, 1153, 1164.) Nevertheless, we address defendant's argument to forestall any claim of ineffective assistance of counsel. (See, e.g., People v. Webster (1991) 54 Cal.3d 411, 446.)
The error, if any, was in the jury's apparent misunderstanding of the court's less-than-clear instructions on how to account for the allegations attached to the counts. Having acquitted defendant of forcible lewd acts, the jury evidently believed it had to do something with the allegations attached to its not guilty verdict, and logically found them untrue, since they found the crime not proven. Having convicted defendant of the lesser offenses of lewd acts without force, the jury correctly understood it was required to make further findings on the allegations attached to its guilty verdict. It found those allegations true. Correctly, the verdicts of not guilty of forcible lewd acts in counts 23 through 27, guilty of lewd acts in those counts, and true findings on the allegations attached to the guilty verdict in those counts, were read to the jury, affirmed by them, and recorded by the court. " '[A]fter the verdict is received and the jury discharged, . . . the control of the jury and of the court over such verdict is at an end. The court cannot alter it, nor can the jury be called to alter or amend it.' '' (People v. Peavey (1981) 126 Cal.App.3d 44, 49.
"In any event, technical defects in a verdict may be disregarded if the jury's intent to convict of a specified offense within the charges is unmistakably clear, and the accused's substantial rights suffered no prejudice." (People v. Webster, supra, 54 Cal.3d at p. 447.) That is the case here: the jury's intent to convict defendant of lewd acts and find true the attached allegations was unmistakably clear and no prejudice has been demonstrated.
III.
Defendant Has Not Shown He Was Prejudiced by Being Transported Through a
Courthouse Hallway in Handcuffs Before the Jury.
Defendant argues he was "paraded in handcuffs through the hallway in the presence of the jurors" several times during jury selection and trial; that "[a]t one point, this was brought to the attention of the trial judge and he ordered that it be stopped" but it "continued to occur." He asserts that "[t]o be paraded before jurors in the hallway is just as prejudicial as being shackled in court," and that the court did not carry its "burden . . . to justify the restraint."
The factual predicate for the argument is missing. As respondent points out, defendant does not include a single citation to the record for its factual assertions. California Rules of Court, rule 8.360(a) requires that briefs in criminal appeals "comply as nearly as possible with rule[] 8.204," which requires a party to "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." There is no duty on an appellate court to scour the record for evidence to support a party's argument, and we "may disregard any factual contention not supported by a proper citation to the record." (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379.) Nevertheless, we elect to address the claim on the merits to forestall a claim of ineffective assistance of counsel.
Assuming defendant was transported through a courthouse hallway in handcuffs and that the handcuffs were visible to jurors, no particularized showing of need was required to justify the defendant's transportation through a courthouse hallway in restraints. (People v. Cunningham (2015) 61 Cal.4th 609, 632 (Cunningham).) The propriety of handcuffing a defendant while in transit through public hallways of a courthouse to attend the trial cannot be judged by the same standards used to determine restraints in the courtroom. (Ibid.) The consideration of public safety and the need for restraints are different during prisoner transport as opposed to the accused seated in the courtroom itself. (Ibid.) For those reasons, our Supreme Court found no abuse of discretion in the use of physical restraints during prisoner transit through public hallways of the courthouse without any showing of necessity. (Ibid.)
It is also true, in this case, that defendant's counsel at no time requested that the court instruct the jury to refrain from drawing any adverse inference from the observation of physical restraints. In fact, the trial court proposed instructing the jury with CALCRIM No. 204 [Defendant Physically Restrained]. Defense counsel declined the instruction because the jurors already knew defendant was in custody and he did not want to draw further attention to that fact. The tactical decision to decline a curative instruction at trial belies the claim of prejudice on appeal. Without further evidence in the record to support defendant's claim, we find no error, let alone error that is prejudicial. (People v. Jacla (1978) 77 Cal.App.3d 878, 883.)
IV.
There Was No Prosecutorial Misconduct or Ineffective Assistance of Counsel.
Defendant contends the prosecutor committed misconduct by arguing facts not in evidence and vouching for John Doe 3's credibility.
Factual Background
Doe 3's credibility was, without a doubt, one of the most hotly contested issues at trial. Thus, it is not surprising that in his closing argument defense counsel did his utmost to persuade the jury that Doe 3 should not be believed. He began by asking the jury to infer that Doe 3 testified against defendant in exchange for the special treatment he received. "I don't know if [Detective] Orlando thinks that you are all born . . . in a barn or whether he thinks you . . . can't draw reasonable inferences from what's going on. [¶] Of course (John Doe III) has been given special treatment. He absolutely has been given special treatment. That's exactly why he wrote them [the police] on 1/16/13. That's exactly when he started. [¶] Let's just talk about where we are today. . . . As we sit here now, (John Doe III) I assume is back in Vegas. He has multiple felony warrants that we heard that if the detective's correct that he has a warrant for his arrest for Bill Brandt Ford [a commercial burglary], and no one is going to get him. And they're all saying but we're not doing anything for him. It's absolutely ludicrous. [¶] He's on probation. Felony arrest warrant for his arrest. How about just picking up the phone, Detective Orlando, and calling [probation officer] Broussard, he is also law enforcement, and saying, Mr. Broussard, we know where (John Doe III) is. He's down in Vegas. We know you've been looking for him. We have an address. We have a phone number. We have an email address. [¶] Yet they tell you they're not doing anything for him. It's—and what they're basically telling you is, what can we do? [¶] This is the state of California. . . . They have tons of resources. They want to get somebody, they get them. [¶] . . . [¶] So to say, I agree with [the prosecutor] you can't arrest him if you pull him in here by a subpoena. But you got to fly him back to Vegas? You got to assist in making him a fugitive again? And you are not doing anything for him?" Defense counsel continued in this vein for several more pages.
Defense counsel concluded his remarks to the jury on the subject of Doe 3's credibility. He suggested that "the state of California" was doing favors for Doe 3 to keep him from blowing up the prosecution's case. Defense counsel first compared Doe 3 to the Charlie Brown character, Pigpen, who, "whatever [he] got into was kind of dirty and messy," and then segued to: "And that's the state of California. You carry (John Doe III), then you carry him. He owns them now as we sit here. You know what . . . they're deathly afraid of and were before this trial is the fact that (John Doe III) would come in and just say I made the whole thing up, and bam there goes the case. That's why he's flying back and forth. That's why right now as we sit here now he's driving around Vegas somewhere in a BMW. [¶] And if that is the state of (Doe III), how could you convict Mr. Blake of anything related to (John Doe III)?"
In rebuttal, the prosecutor pushed back against the defense claims that Doe 3 received special treatment. The prosecutor argued: "Again, that somehow (John Doe III) is getting special treatment, that we aided and abetted a fugitive I think was the language that was used. [¶] The law requires us to pay for witnesses to travel when they come out of state. The law also forbids us from arresting them. So I understand the defense's cavalier opinion about the law, but that's what the law is. [¶] And to say, well I guess now he is just driving around Las Vegas, you know, do you honestly think that we spend taxpayer money to go out and arrest someone on a warrant on a car theft or forgery case? Do you honestly think we do that. [¶] We criticize Detective Orlando and say how is it that you're so diligent on this child molest investigation, but at the same time how come the DA is not calling the national guard for the check forgery case where there's a warrant on? It's inconsistent." Defense counsel did not interpose an objection to these remarks, then or later, nor did he ask that the remarks be stricken or that an admonition be given.
Discussion
" '[C]ounsel may not assume or state facts not in evidence [citation] or mischaracterize the evidence.' " (People v. Collins (2010) 49 Cal.4th 175, 209.) A prosecutor is also " 'prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record.' " (People v. Ward (2005) 36 Cal.4th 186, 215.) The vice in both situations is that "such statements 'tend[] to make the prosecutor his own witness—offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, "although worthless as a matter of law, can be 'dynamite' to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence." ' " (People v. Hill (1998) 17 Cal.4th 800, 828.) However, " ' " 'a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.' " ' " (Id. at p. 819; accord, People v. Collins, at p. 213.) "[W]e accord counsel great latitude at argument to urge whatever conclusions counsel believes can properly be drawn from the evidence." (People v. Cash (2002) 28 Cal.4th 703, 732.) "Whether the inferences drawn by the prosecutor are reasonable is a question for the jury." (People v. Tafoya (2007) 42 Cal.4th 147, 181.)
In order to preserve a claim of prosecutorial misconduct on appeal, defense counsel must make a timely objection at trial and request an appropriate admonition from the court. (People v. Fuiava (2012) 53 Cal.4th 622, 726-727.) Since no objection was forthcoming, defendant now claims defense counsel's failure constitutes ineffective assistance of counsel. "To establish ineffective assistance of counsel 'a defendant must show both deficient performance by counsel and prejudice.' " (Premo v. Moore (2011) 562 U.S. 115, 121, citing Knowles v. Mirzayance (2009) 556 U.S. 111, 122.) The rule is the same under California law. (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).)
"On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (Mai, supra, 57 Cal.4th at p. 1009, citing People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) An appellate court will defer to counsel's reasonable tactical decisions, and there is a "presumption counsel acted within the wide range of reasonable professional assistance." (Mai, at p. 1009.) Defense counsel's decision whether to object in argument to statements by the prosecutor is inherently tactical and "the failure to object will rarely establish ineffective assistance." (People v. Maury (2003) 30 Cal.4th 342, 419; see People v. Riel (2000) 22 Cal.4th 1153, 1197.)
In this case, the prosecutor's comments do not warrant reversal for a number of reasons. First, they were not improper. " '[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' " (People v. Smithey (1999) 20 Cal.4th 936, 960; accord, People v. Dykes (2009) 46 Cal.4th 731, 772 (Dykes).) Our review of that question is deferential, insofar as "we 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements." (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see Dykes, at p. 772.)
The prosecutor's comments must be viewed in context. Defense counsel's argument attempted to persuade the jury it could reasonably infer, from the fact that Doe 3 had not been arrested on outstanding warrants, that the prosecution was terrified Doe 3 would say he made the whole thing up if the prosecution arrested him on the warrants. There was no evidence of the prosecution's motive for failing to have him arrested, but defense counsel was entitled to argue any inference that could reasonably be drawn from the fact of Doe 3's nonarrest. On rebuttal, the prosecutor asked the jury to consider alternative explanations for the state's failure to arrest Doe 3 on the warrants, such as lack of resources. In our view, this argument—like defense counsel's—fell well within the parameters of arguing reasonable inferences from the evidence presented at trial. In context, we do not think the jury would have interpreted the prosecutor's argument as vouching for Doe 3's credibility or as arguing as fact the circumstances of Doe 3's nonarrest that were not otherwise in evidence.
Second, even if the comment was improper, any potential prejudice could have been cured by a timely admonition. In addition, the court's instructions prior to argument minimized any chance the jurors might over-rely on the attorneys' arguments. The trial court instructed: "You must decide what the facts are. It is up to all of you and you alone to decide what happened based only on the evidence that has been presented to you in this trial. [¶] . . . [¶] Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence. Their questions are not evidence. Only the witness' answers are evidence."
Third, the record sheds no light on why counsel, who otherwise proved to be an aggressive advocate, did not object to the statement. "[M]any trial lawyers refrain from objecting during closing argument to all but the most egregious misstatements by opposing counsel on the theory that the jury may construe their objections to be a sign of desperation or hyper-technicality." (United States v. Molina (9th Cir. 1991) 934 F.2d 1440, 1448.)
Finally, defendant cannot establish that if his attorney had objected to the prosecutor's remarks, a more favorable outcome would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 693-694.) Through extensive examination and cross-examination, the trial exposed Doe 3's mendacity, his felony convictions, and the outstanding warrants that remained unserved. To the extent Doe 3 was believed by the jury, despite all that, Doe 3's testimony provided strong evidence of defendant's guilt. We therefore reject defendant's claims that prosecutorial misconduct and ineffective assistance of counsel require reversal.
V.
Cruel and Unusual Punishment
Defendant contends that his sentence constitutes cruel and unusual punishment under the federal Constitution. (U.S. Const., 8th Amend; see Cal. Const., art. I, § 17 ["cruel or unusual punishment"].) Both constitutions "preclude punishment that is disproportionate to a defendant's individual culpability." (People v. Webb (1993) 6 Cal.4th 494, 536.) Defendant's argument is that a sentence of 194 years to life, "which requires him to serve a term longer than a human life before being considered for parole," violates the ban against cruel and unusual punishment "because it serves no legitimate penal purpose."
Defendant acknowledges that the goals of California's penal system are retribution, deterrence, and the protection of society, but argues that none of these objectives are served by "a prison term that exceeds the life span of any human being." Relying loosely on the late Justice Mosk's concurring opinion in People v. Deloza (1998) 18 Cal.4th 585, 600-601, in which the justice opined that a sentence of 111 years in prison constituted cruel and/or unusual punishment under the state and federal constitutions because such a sentence "is impossible for a human being to serve" (ibid.), defendant also argues that a sentence which exceeds the human lifespan shocks and offends the conscience and damages the public's confidence in the penal system. Similar arguments were expressly rejected in People v. Byrd (2001) 89 Cal.App.4th 1373, 1383 and again in People v. Retanan (2007) 154 Cal.App.4th 1219, 1231 (Retanan). Justice Mosk's views are not the law.
In Coker v. Georgia (1977) 433 U.S. 584 (Coker), the United States Supreme Court held that a death sentence was grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment. (Coker, at p. 592.) Under Coker, a punishment is "excessive" if it "(1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime." (Ibid.) Obviously, defendant did not receive the death penalty. Defendant's argument would have us equate a longer-than-life-span sentence as equivalent to a death sentence. However, "[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare." (Rummel v. Estelle (1980) 445 U.S. 263, 272; accord, Ewing v. California (2003) 538 U.S. 11, 21 (lead opn. of O'Connor, J.).)
The jury found defendant engaged in multiple acts of sexual predation against four boys between the ages of 10 and 16 over a 10-year period. A sentence equivalent to life in prison ensures that defendant will never have the opportunity to recidivate, and therefore serves a legitimate penal purpose. California courts have upheld sentences which exceed the human life span for sex offenses as not violative of the ban against cruel and/or unusual punishment. (Retanan, supra, 154 Cal.App.4th at pp. 1222, 1231 [135 to life for multiple sex offenses]; People v. Wallace (1993) 14 Cal.App.4th 651, 666-667 [283 years plus eight months for multiple sex offenses]; People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 531-532 [129 years for multiple sex offenses]; People v. Alvarado (2001) 87 Cal.App.4th 178, 199 [15 years to life for forcible rape during a burglary per § 667.61]; People v. Estrada (1997) 57 Cal.App.4th 1270, 1282 [25 years to life for forcible rape in the course of a burglary per § 667.61]; People v. Crooks (1997) 55 Cal.App.4th 797, 806, 809 [same].) We find defendant's sentence of 194 years to life likewise does not violate the ban against cruel and/or unusual punishment.
DISPOSITION
The judgment is affirmed.
/s/_________
Dondero, J.
We concur:
/s/_________
Humes, P. J.
/s/_________
Banke, J.