Opinion
E053495
06-26-2012
THE PEOPLE, Plaintiff and Respondent, v. PIERRE MICHAEL LEVAN, Defendant and Appellant.
Richard de la Sota, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Garrett Beaumont and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
(Super.Ct.No. SWF027530)
OPINION
APPEAL from the Superior Court of Riverside County. Albert J. Wojcik, Judge. Affirmed.
Richard de la Sota, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Garrett Beaumont and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Pierre Michael Levan appeals from his conviction of 48 counts of forcible lewd acts on a child under the age of 14 years (Pen. Code, § 288, subd. (b)(1).) He contends the evidence was insufficient to support his conviction on 46 of those counts. We find no error, and we affirm.
All further statutory references are to the Penal Code unless otherwise noted.
II. FACTS AND PROCEDURAL BACKGROUND
A. Prosecution Evidence
When Jane Doe 1, born in March 1988, was nine years old, she and her two younger brothers moved in with defendant and his wife, Karen Levan, after the children were removed from their parents' home by Child Protective Services. Karen was the cousin of Doe 1's grandmother. Doe 1 has a learning disability but graduated from high school after taking special classes. She was 22 years old at the time of trial.
Within a couple months of the children moving in, defendant came into Doe 1's room. He touched her, told her she was pretty, and said, "[T]his is, like, what girls and— and the men do together . . . ." He rubbed her arms, back, and chest and then took off her clothes. He told her to get on the bed and that everything would be okay. He got on top of her and inserted his penis into her vagina. Doe 1 tried to push him off and yelled and cried for him to stop because it hurt. Defendant said it would hurt, but then it would be "over with." Defendant told Doe 1 that if she told anyone what had happened, he would go to jail, and she and her brothers would be separated and would never see each other again. Doe 1, as the oldest child, felt responsible for her brothers. She did not tell anyone because she was afraid she would not see her brothers again.
Doe 1 testified that when she was 12 years old, defendant told her he wanted to talk to her and took her into his bedroom, where he told her to perform oral sex on him. She said she did not want to, but he told her he was her father, and she had to "listen to him." He pulled down his pants, and she put her mouth on his penis until he ejaculated. She testified that was the first time that she remembered he had asked her for oral sex.
Doe 1 was asked if there had been other sexual incidents with defendant between the above-described incidents, and she replied, "Not that I remember." When asked if she and defendant had "intercourse" between those two incidents, she replied, "Yeah. But I don't remember at what age it was." She further testified, "There was something else that happened. I just don't remember the age, and I don't really remember, like, how it all went down. But I do remember that there was [sic] other times, but I just don't remember, like, that much in detail." When asked if the "other times" involved sex with defendant, she replied, "Yes, or made me perform oral sex on him." When asked if those other times had taken place between the two described incidents, she replied, "It might happen. I just don't remember."
When Doe 1 was 14 years old, she went to a convention in Palm Springs with defendant, where they stayed in a hotel. She took a shower after swimming, and when she got out of the shower, defendant told her to lie on the bed. She did so, and defendant orally copulated her. She said she had to use the bathroom and got up to do so. When she returned, defendant again tried to orally copulate her, but she refused to let him. She told him to stop, and he did.
Doe 1 was asked if there were any other "instances of sexual acts" that occurred after the Palm Springs incident, and she responded, "No, not really, I don't remember it, like, in detail. But I do remember there was [sic] other times that things happened. Like, he made me—other times that he made me perform oral sex and all that stuff. But I just don't remember the ages and the dates and all that stuff." She testified defendant "stopped making [her] do sexual favors" when she was 16, although he still touched her sometimes. The sex acts had occurred with defendant "[a]lmost every time" Karen left the house, which was "pretty often" and "[p]robably every couple of months . . . ." When asked if she had told the police that the sex acts occurred about 10 times a month, Doe 1 replied, "I don't remember. It was probably less than that." She further testified the acts had not occurred every month and sometimes occurred more frequently than at other times.
When Doe 1 was 19, defendant and his wife went to Oregon while Karen's son stayed with Doe 1 and her brothers. When defendant and his wife returned, Karen kicked Doe 1 out of the house because Doe 1 had been seeing a friend of whom Karen did not approve. Doe 1 went to live with her grandparents. Karen let her return a few weeks later so she could complete classes. Just after Doe 1 turned 20, she and Karen got into an argument, and Karen again told her to leave.
Doe 1 moved in with her boyfriend, and she told him what had happened with defendant. She also told her mother and finally made a statement to the police in June 2008. Before that, Doe 1 had never told anyone about the molestations.
Deputy Sheriff Robert Wilson testified that Doe 1 made a statement to him in July 2008. She said defendant had molested her about 10 times a month when she was between the ages of nine and 16. She said she felt extreme pain the first four or five times they had intercourse.
Sergeant Joseph Greco, a child abuse investigator, testified that she told him defendant had molested her about 10 times a month "during the entire period from 9 to 16." She said she had been afraid that if she told anyone, her brothers would be taken from the home. Sergeant Greco had her make a pretext telephone call to defendant, and defendant told her he didn't know what she was talking about.
Sergeant Greco observed an interview of defendant in August 2008. Defendant first denied that any improper contact had occurred between him and Doe 1. However, when asked if there was a truthful number of times he had had sexual relations with Doe 1, he replied, "25, I guess," and "Well, try 25 . . . ." He again denied having intercourse with her but then said he had had intercourse with her 10 or 15 times and oral sex 10 or 15 times. When asked who had been on top, defendant responded, "I guess me on top, if it happened." Defendant said Doe 1 had been 15 when those events occurred and then said she had been between 16 and 18.
Jane Doe 2, born in March 1983, knew defendant and his wife through their activities at the local Moose Lodge. Doe 2 started volunteering at the lodge when she was 11 or 12 years old, and she visited defendant's home with her family. When she was 12 or 13, she and defendant "ended up kissing" while they were at the lodge. After that, there was physical contact almost every time they saw one another, which was "[a] couple of times a week." From the time Doe 2 was 12 or 13 until she was 14 or 15, defendant touched her breasts, orally copulated her, and penetrated her vagina with his finger and penis. The activities "[f]or the most part . . . were consensual . . . ." Doe 2 knew Doe 1, and on one occasion, defendant encouraged the two girls to kiss, which they did. When Doe 2 was 14 or 15, she told her father about her activities with defendant, and her father would not let her go to the lodge or to defendant's house again, although he did not call the police. Doe 1 once saw defendant kissing Doe 2.
Dr. Laura Brodie, a clinical and forensic psychologist, testified about child sexual abuse accommodation syndrome.
B. Defense Evidence
Doe 1's brother, C., testified that he and his brother and sister had moved in with defendant when C. was four years old, and defendant was the only father he had ever known. C. had a good relationship with Doe 1 until she accused defendant "of doing something that he didn't do." The family lived in a double-wide trailer, and C.'s room was about two feet from Doe 1's room. Defendant was a truck driver, and he was at work from about 3:00 a.m. until 5:00 or 6:00 p.m. weekdays and some Saturdays. Doe 1 never told C. that anything had happened between her and defendant, but she did tell him that she was going to "get back" at defendant for "kicking her out" of the home.
Doe 1's brother, J., testified that defendant had adopted him when he was three years old. He never saw defendant touch Doe 1 in an inappropriate way.
Defendant's grandson, Jonathan W., testified that he had lived with defendant and Karen for a couple of years when he was about 16. Doe 1 also lived there for about a year of that time, and Jonathan W. never saw defendant do anything inappropriate with her.
Jonathan W.'s sister testified that she had also lived with defendant and had shared a room with Doe 1 for a few months. Defendant never acted strangely with her, and she had never seen him act strangely with Doe 1.
Defendant's neighbor, Linda Post, testified that she had known defendant and Karen for more than five years. She had never seen anything wrong happening with the children who lived with defendant.
Karen testified that she and defendant had been married for almost 24 years. Thirteen years earlier, Karen's cousin had asked Karen to take in the cousin's three grandchildren. Karen started having problems with Doe 1 "getting a little bit too wild" after Doe 1 returned from the Job Corps at age 19. When Doe 1 was 20, she began to resist doing chores, and Karen told her to leave if she did not like the rules. Doe 1 immediately packed and moved in with her boyfriend. About four months later, Doe 1 made the allegations about defendant. Karen knew Doe 2 well and knew she had made similar allegations about defendant; those allegations were untrue. Doe 2 was "a troubled girl" who had had three children taken away from her. Karen was unaware that defendant had told a deputy he had sexual relations of different kinds with Doe 1 about 25 times when she was 15 and 16 years old.
Defendant testified in his own behalf. He denied that he had molested Doe 1. He claimed that during his interview with the police, he had given a number only after the officer kept pushing him. He believed that if he gave the officer a number, the incident would "go away," so he made up a number off the top of his head. Defendant claimed Doe 1 had made up the allegations to get revenge for being kicked out of his house and because she was instigated by her biological family. He also believed Doe 1 and Doe 2 had conspired to make up allegations against him.
Defendant testified he had known Doe 2 through her family's involvement with the Moose Lodge. Defendant denied ever having any sexual activity with Doe 2.
C. Verdict and Sentence
The jury found defendant guilty of 48 counts of forcible lewd and lascivious conduct on a child under the age of 14 (§ 288, subd. (b)(1)). The trial court sentenced him to 48 consecutive eight-year terms in prison.
III. DISCUSSION
A. Standard of Review
When a criminal defendant challenges the sufficiency of the evidence to support a conviction, this court "review[s] the whole record in the light most favorable to the judgment . . . to determine whether it discloses substantial such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 576.)
B. Sufficient Evidence Supported the Jury's Verdicts
In People v. Jones (1990) 51 Cal.3d 294, our Supreme Court held that child molestation convictions may be based on "generic" or nonspecific testimony. (Id. at p. 317.) The court noted that when a defendant lives with the victim or has continuous access to her, "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." (Id. at p. 299.) Moreover, the court stated, "testimony describing a series of essentially indistinguishable acts of molestation is frequently the only testimony forthcoming from the victim. To 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." (Id. at p. 300.) Thus, the court held, "[E]ven generic testimony (e.g., an act of intercourse 'once a month for three years') outlines a series of specific, albeit undifferentiated, incidents, each of which amounts to a separate offense, and each of which could support a separate criminal sanction." (Id. at p. 314.) In sum, the court in Jones held that evidence is sufficient if it describes the kind of act or acts committed with sufficient specificity, the number of acts with sufficient certainty to support all the counts alleged, and the general time period during which the acts took place. (Id. at pp. 315-316.)
In People v. Mejia (2007) 155 Cal.App.4th 86, 96 (Mejia), on which defendant relies, the court held the evidence was insufficient to support the defendant's conviction of continuous sexual abuse under section 288.5, which requires that the defendant engaged in "'three or more acts of substantial sexual conduct'" with a child under 14 years of age over a period of at least three months. (Mejia, supra, at pp. 94, 95.) The defendant was charged with acts occurring "'on or between June 1, 2004 and September 17, 2004,'" and the victim testified the defendant had molested her 10 times in June and July and at least twice in September, and the abuse had not occurred every week. (Id. at p. 95.) On appeal, the court held that although the jury could reasonably infer that "defendant's abuse began sometime in June and continued to some date in September . . . the jury could only speculate that the first incident occurred early enough in June to satisfy the 90-day requirement expiring on September 17, 2004." (Id. at pp. 94-95.)
Mejia is distinguishable. The issue in that case was whether the prosecution had proved that the defendant committed the requisite number of sexual acts within a period of at least three months. (Mejia, supra, 155 Cal.App.4th at p. 95.) Here, Doe 1 told Sergeant Greco that defendant had molested her about 10 times a month "during the entire period from 9 to 16." At trial, she testified the acts had included intercourse and oral sex. That evidence satisfies the standards announced in Jones. The jury could reasonably conclude at least 48 acts had occurred when Doe 1 was between the ages of 9 and 13 so as to support defendant's convictions under section 288, subdivision (b). The fact that Doe 1 could not remember at trial the number of acts or the times they occurred is of no moment. The jury was entitled to consider her prior inconsistent statements to the officers as substantive evidence (see, e.g., People v. Brown (2004) 33 Cal.4th 892, 914), and that evidence supports the jury's verdicts.
This case is substantially similar to People v. Matute (2002) 103 Cal.App.4th 1437, in which the defendant was convicted of 15 counts of forcibly raping his daughter. The daughter testified as to one specific incident on her 16th birthday and testified that before that, the defendant had forced her to have sexual intercourse with him "'a couple of times a week'" between August 1999 and July 2000; once she had become pregnant, and he had forced her to have an abortion; when she had resisted the intercourse, he had beaten her and told her that as her father, he could do whatever he wanted. (Id. at pp. 1440-1441.) The court held that the evidence was sufficient to support the jury's verdict on all 15 counts. (Id. at p. 1447.) Here, likewise, we find no error.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur: RICHLI
J.
KING
J.