Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 06F08315 & 06F08327
HULL, J.
Defendant John Peter Leskin had a proclivity for smoking methamphetamine and sexually abusing his adolescent daughters while under the influence of the narcotic. Defendant was tried by jury and found guilty of six felony counts of lewd and lascivious acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a)), one felony count of attempted lewd and lascivious acts upon a child under the age of 14 (Pen. Code, §§ 644, 288, subd. (a)), one felony count of child molestation (Pen. Code, § 647.6, subd. (a)), one felony and three misdemeanor counts of child endangerment (Pen. Code, § 237a, subd. (a)), and three felony counts of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The trial court sentenced defendant to 19 years in state prison, imposed various fines and fees, and awarded defendant a total of 437 days of presentence custody credits.
Defendant’s contentions on appeal are twofold. Defendant first claims that the trial court erred in instructing the jury pursuant to Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 3425. Defendant further claims that the trial court erred in calculating presentence custody credits. As will be explained more fully below, we will modify the judgment to award defendant 438 days credit for time served and affirm the judgment as modified.
FACTS AND PROCEEDINGS
In 2006, defendant lived in an apartment with his two daughters, B. and R. B. was 13 years of age. R. was 12. Defendant was addicted to methamphetamine and repeatedly smoked the narcotic in front of his daughters. On one occasion, defendant blew the smoke in B.’s face. B. held her breath so as not to inhale the smoke. Defendant told her to relax and to stop holding her breath.
On another occasion, defendant smoked methamphetamine in front of R. in her bedroom while the two sat on R.’s bed. R. inhaled some of the smoke which caused her chest to tighten and made her feel high. When defendant was done smoking the methamphetamine in front of his daughter, he took off her clothes and orally copulated her for about five minutes. He then removed his pants and placed his penis in her mouth. After R. orally copulated defendant for a couple of minutes, she went to the bathroom and cried.
Defendant repeatedly showed his penis to B. and would occasionally ask her to touch and massage it. Defendant also asked her to have sex with him. B. refused. One night in particular, defendant crawled into bed with B. as she was sleeping. B. awoke to find her father grinding his groin against her buttocks. He rubbed himself against her for several minutes and tried to reach under her shirt to touch her breasts. She pushed his arm away. On another occasion, defendant discovered that B. had scratches and a mosquito bite on her legs. His response was to suck on the mosquito bite and kiss and lick the scratches on her thighs. He then tried to spread her legs apart. Defendant yielded only after B. yelled at him to stop and started to cry.
Further examples of defendant’s appalling conduct while under the influence of methamphetamine include throwing a 12-inch knife in B.’s direction from a distance of 12 to 14 feet, causing the knife to lodge in the wall behind her, and breaking R.’s finger as he attempted to kick her in the buttocks, but missed and instead caught her hand.
Defendant was arrested by the Sacramento County Sheriff’s Department and subsequently charged with seven felony counts of lewd and lascivious acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a)), one felony count of attempted lewd and lascivious acts upon a child under the age of 14 (Pen. Code, §§ 644, 288, subd. (a)), one felony count of child molestation (Pen. Code, § 647.6, subd. (a)), four felony counts of child endangerment (Pen. Code, § 237a, subd. (a)), and three felony counts of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). Defendant was tried by jury and convicted of eight of the nine felony sex offense counts and the three felony drug possession counts. He was also convicted of one felony child endangerment count and three misdemeanor child endangerment counts as lesser included offenses.
The trial court sentenced defendant to 19 years in state prison (middle term of six years on the first lewd and lascivious conduct, plus five consecutive terms of two years on the remaining counts of lewd and lascivious conduct, plus one consecutive year on the attempted lewd and lascivious conduct, plus four years concurrent on two counts of drug possession, plus eight months consecutive for the final drug possession count, plus one year and four months consecutive for felony child endangerment). The court also imposed various fines and fees, and awarded defendant a total of 437 days’ presentence custody credits.
Defendant filed a timely notice of appeal.
DISCUSSION
I
CALCRIM No. 3425
Defendant claims that the trial court erred in instructing the jury pursuant to CALCRIM No. 3425 and asks that we reverse his conviction as to three counts of lewd and lascivious acts upon a child under the age of 14 (counts three, five, and six). Finding no error, we decline his request.
Counts three, five, and six of the Second Amended Information related to defendant’s conduct while in B.’s bed. Count three specifically alleged that defendant’s groin touched B.’s buttocks. Counts five and six were amended at trial to allege two separate instances of defendant’s hand touching near B.’s breasts in order to conform to her testimony that she was able to push defendant’s hand away as he reached into her shirt. Defendant’s cross-examination of B. revealed that “he might have been asleep” while he grinded against her buttocks and reached for her breasts. Consequently, defendant requested the court to instruct the jury pursuant to a modified version of CALCRIM No. 3425.
The court instructed the jury as follows: “The defendant is not guilty of lewd or lascivious conduct if he acted while legally unconscious. [¶] Someone is legally unconscious when he is not conscious of his actions. Someone may be unconscious even though able to move. [¶] Unconsciousness may be caused by a blackout or sleepwalking or sleep itself. [¶] The People must prove beyond a reasonable doubt that the defendant was conscious when he acted. If there is proof beyond a reasonable doubt that the defendant acted as if he were conscious, you should conclude that he was conscious. If, however, based on all the evidence, you have a reasonable doubt that he was conscious, you must find him not guilty.” Defendant objected to the sentence: “If there is proof beyond a reasonable doubt that the defendant acted as if he were conscious, you should conclude that he was conscious.” He renews his objection here.
Analysis
Defendant claims that the challenged sentence created a “mandatory presumption” of consciousness which relieved the prosecution of proving all elements of the offense beyond a reasonable doubt. Defendant is mistaken.
In People v. Babbit (1988) 45 Cal.3d 660 (Babbit), our Supreme Court upheld nearly identical language found in CALJIC No. 4.31. (Babbit, supra, 45 Cal.3d at p. 693.) There, Babbit was convicted of murder. One of the defense theories was that Babbit was legally unconscious during the killing due to a psychomotor epileptic seizure. (Id. at p. 689.) The jury was instructed pursuant to CALJIC No. 4.31: “If the evidence establishes beyond a reasonable doubt that at the time of the commission of the alleged offense the defendant acted as if he were conscious, you should find that he was conscious, unless from all the evidence you have a reasonable doubt that he was in fact conscious at the time of the alleged offense. [¶] If the evidence raises a reasonable doubt that he was in fact conscious, you must find that he was then unconscious.” (Id. at p. 691, fn. 9.)
As the court explained: “‘[T]he Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the non-existence of all affirmative defenses has never been constitutionally required[.]’” (Id. at p. 692 [citing Patterson v. New York (1977) 432 U.S. 197, 210 [53 L.Ed.2d 281, 292].) The court continued: “Although the state, once the defendant raises the issue, has assumed the burden of disproving unconsciousness, this fact of itself does not transform absence of the defense— consciousness—into an element of murder for purposes of due process analysis. This is true even though unconsciousness negates the elements of voluntariness and intent, and when not voluntarily induced is a complete defense to a criminal charge. [Citations.]” (Id. at p. 693.) “[B]ecause consciousness is not an element of the offense of murder (nor of any offense), CALJIC No. 4.31 does not impermissibly shift to the defendant the burden of negating an element, nor does the instruction violate due process by impermissibly lightening the prosecution’s burden of proving every element beyond a reasonable doubt. Consequently, there is no constitutional impediment to the state’s use of a rebuttable presumption in meeting its assumed burden—once the issue has been raised—to prove consciousness beyond a reasonable doubt.” (Id. at pp. 693-694.)
The court further explained that the instruction did not require defendant to persuade the jury that he was unconscious. (Id. at p. 694, fn. 15.) The instruction merely required defendant to “raise a reasonable doubt that he was conscious, and then only if the prosecution’s proof did not itself raise such a doubt.” (Id. at p. 694.) This falls squarely within the rule that “‘when there is placed upon an accused the burden of interjecting a factual contention which, if established would tend to overcome or negate proof of any element of the crime charged as otherwise established by the People, the accused need only raise a reasonable doubt as to the existence or nonexistence of the fact in issue.’ [Citation.]” (Ibid.)
The court concluded that, in light of the standard instructions on the presumption of innocence and the prosecution’s burden of proving every element of the charged offenses beyond a reasonable doubt, as well as the specific instruction that if there was reasonable doubt that defendant was conscious, the defendant must be acquitted, “a reasonable juror could not have believed that defendant was required to persuade it that he was unconscious.” (Id. at p. 696; see also People v. Boyer (2006) 38 Cal.4th 412, 472, fn. 45 [explaining that CALJIC No. 4.31 “advises that a reasonable doubt the defendant was conscious requires a finding of unconsciousness even if the defendant ‘acted as if he were conscious’”].)
Similarly, in this case, the modified version of CALCRIM No. 3425 given to the jury merely required defendant to raise a reasonable doubt as to his consciousness during the incident in B.’s bed, and then only if the prosecution’s proof did not itself raise such a doubt. The instruction informed the jury that “someone may be unconscious even though able to move” and that the People “must prove beyond a reasonable doubt that the defendant was conscious when he acted.” The jury was then told to presume that defendant was conscious if there was proof beyond a reasonable doubt that he acted as if he were conscious. This sentence “did little more than guide the jury as to how to evaluate evidence bearing on the defendant’s consciousness and apply it to the issue, an issue that is capable of proof only by circumstantial evidence of the defendant’s conduct. [Citation.]” (Babbit, supra, 45 Cal.3d at p. 696.)
Defendant complains that the presumption in CALCRIM No. 3425 is mandatory in nature. However, as Babbit instructs, there is nothing wrong with such a presumption as to defendant’s consciousness because consciousness is not an element of the charged offense. The only requirement is that the jury be informed that the presumption is rebuttable, and that defendant may rebut the presumption by raising a reasonable doubt as to his consciousness. Here, the very next line informed the jury that they must find defendant not guilty if there was a reasonable doubt as to his consciousness at the time of the alleged misconduct. No reasonable juror would have believed that the modified version of CALCRIM No. 3425 given to the jury in this case required defendant to persuade the jury that he was unconscious.
Defendant’s reliance on People v. Williams (1971) 22 Cal.App.3d 34, 55-56 (Williams), and People v. Maxey (1972) 28 Cal.App.3d 190, 199-201 (Maxey), is misplaced. Both of these cases were decided well before our Supreme Court definitively decided the issue in Babbit. Williams is particularly inapposite as it dealt with the pre-1972 version of CALJIC No. 4.31. (Williams, supra, 22 Cal.App.3d at p. 57 [holding the prior version to require a finding of fact, as opposed to establishing a rebuttable presumption requiring the defendant simply to raise a reasonable doubt as to consciousness].)
Defendant’s reliance on People v. Roder (1983) 33 Cal.3d 491, 494-496, is similarly misplaced, as that case involved a mandatory presumption lessening the prosecution’s burden of proof as to an element of the offense of receiving stolen property, i.e., knowledge that the property was in fact stolen. (Id. at p. 499.) As Babbit confirms, consciousness is not an element of the offense of lewd and lascivious acts with a child under the age of 14. Consequently, the modified version of CALCRIM No. 3425 given to the jury in this case does not violate due process by impermissibly lightening the prosecution’s burden of proving every element beyond a reasonable doubt.
We note that defendant neglected to cite Babbit in his opening brief, leaving it to the Attorney General to bring this controlling authority to our attention. Failure to cite known, arguably controlling adverse authority is improper, and arguably a breach of professional ethics. (See Rules Prof. Conduct, rule 5-200; Shaeffer v. State Bar of California (1945) 26 Cal.2d 739, 747-748.)
II
Presentence Custody Credits
Defendant’s final claim on appeal is that the trial court erred in calculating his presentence custody credits. The trial court awarded defendant credit for 380 days’ actual custody and 57 days’ presentence conduct credit, pursuant to section 2933.1, for a total of 437 days’ credit. Defendant claims, and the Attorney General agrees, that he should have been given credit for 381 days’ actual custody. We concur. Actual time for presentence custody credit is computed from the date of arrest through and including the date of sentencing. (People v. Smith (1989) 211 Cal.App.3d 523, 526.) Defendant was arrested on September 20, 2006, and sentenced on October 5, 2007, for a total of 381 days. Consequently, defendant must be given an additional day of presentence custody credit.
DISPOSITION
The judgment is modified to award defendant credit for 381 days’ actual custody and 57 days’ presentence conduct credit for a total of 438 days. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect the modification, and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: RAYE, Acting P.J., MORRISON, J.