Opinion
C087570
04-13-2020
THE PEOPLE, Plaintiff and Respondent, v. LOY LOUIS RACKLEY, Defendant and Appellant.
ORDER DENYING PETITION FOR REHEARING AND MODIFYING OPINION [NO CHANGE IN JUDGMENT] THE COURT:
Appellant filed a petition for rehearing with this court. It is ordered that the nonpublished opinion filed herein on April 13, 2020, be modified as follows:
1. At page 12 of the slip opinion, modify the second sentence of the first full paragraph, so that it reads as follows:
Unlike the defendant in Jones, who had no prior experience with the criminal justice system, defendant was a former law enforcement officer.
There is no change in the judgment. Appellant's petition for rehearing is denied. BY THE COURT: /S/_________
RAYE, P. J. /S/_________
BLEASE, J. /S/_________
RENNER, J. NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17F2869)
Defendant Loy Louis Rackley appeals from a judgment entered after a bench trial. The trial court found defendant guilty of two counts of sexual penetration or oral copulation with a child 10 years old or younger and three counts of lewd and lascivious acts upon a child under the age of 14. The trial court sentenced defendant to a determinate sentence of 10 years in state prison, followed by an indeterminate sentence of 30 years to life.
On appeal, defendant contends: (1) insufficient evidence supports the conviction for sexual penetration of a child 10 years old or younger; (2) insufficient evidence supports the conviction for oral copulation of a child 10 years old or younger; and (3) he did not knowingly, voluntarily, and intelligently waive his right to a jury trial. We reject these contentions and affirm the judgment.
I. BACKGROUND
Defendant moved to Redding in 2015 to be closer to family. He hosted barbecues and other family gatherings at his house, which featured a pool and hot tub. Defendant's niece, J., was a frequent visitor, especially in summer, when her daughter, A., made regular use of the pool.
A. began spending the night at defendant's house when she was 5 years old. During the trial, A.'s mother estimated that A. spent the night at defendant's house between seven and 10 times. J. noticed a change in A. around the time she turned six. According to J., A. became "[v]ery emotional" and seemed to be "[c]rying a lot." J. noticed that A. refused to hug or acknowledge defendant. She told J. that she did not want to go to defendant's house anymore.
J. hosted a family gathering in April 2017. She noticed that A. was unusually quiet. That night, A. told J. that she felt a burning sensation when she urinated. Later, in the course of the same conversation, A. told J. that she was upset with defendant. J. examined A.'s vaginal area and noticed it was "very inflamed and red." A. had spent the night at defendant's house several days earlier.
A. was interviewed by Sergeant Chris Edwards of the Shasta County Sheriff's Department and Jen Rowe from Children's Family Services on two separate occasions. During the first interview, A. stated that her uncle "scratched" her with his "long fingernail." When asked to elaborate, she explained that he scratched her "crotch" on the "outside," towards the "bottom." During the second interview, A. stated that defendant "licked [her] crotch" in the bedroom. She also disclosed that defendant showered with her.
Defendant was charged with three counts of sexual penetration or oral copulation of a child 10 years old or younger (Pen. Code, § 288.7, subd. (b)—counts 1-3), and three counts of lewd and lascivious acts upon a child under the age of 14 (§ 288, subd. (a)—counts 4-6). Defendant waived his right to a jury trial, and the case was tried to the court in May 2018. A. was seven years old at the time of trial; defendant was 73.
Undesignated statutory references are to the Penal Code.
A. testified for the prosecution. During direct examination, the prosecutor showed A. an anatomical drawing of a girl. A. identified the girl's genital area as the "crotch," adding that the crotch is used for "peeing."
A. testified that defendant touched her "crotch" with his finger while they were standing naked in the shower. She indicated that defendant moved his finger, demonstrating by "pointing one finger down at the table," and "pushing it forward and pulling it back." The trial court would later describe this gesture as "an in and out motion."
The prosecutor produced a pen and empty cup, which she used to demonstrate the concepts of "inside" and "outside." She then asked A. whether defendant touched her "crotch" on the "inside" or the "outside." A. responded that defendant touched her on the "outside." When asked whether defendant ever put his finger "inside" her crotch, A. responded, "No."
A. recalled that defendant touched her crotch every time she stayed at his house, which she quantified as four times. A. also recalled that defendant touched her crotch with his tongue when she was lying on the bed in his bedroom.
A. testified that she decided to tell J. about defendant's conduct because her crotch hurt. She explained that her crotch hurt on the "[i]nside" because defendant "touched the middle of it" with his finger and tongue.
Following the close of the prosecution's case, defense counsel moved to dismiss pursuant to section 1118, arguing, inter alia, that the prosecution failed to establish penetration. The trial court granted the motion as to one count of sexual penetration or oral copulation with a child 10 years old or younger (count 3), but denied the motion with respect to the remaining counts (counts 1 and 2).
Defendant testified in his own defense. Defendant admitted showering with A., but claimed he did so in order to wash her hair. He denied touching her crotch or vaginal area. He testified that he suffered from a "spa rash" from using the hot tub around the time that A. complained to J. about painful urination.
Following closing argument, the trial court ruled from the bench, stating, with respect to count 1: "The court finds defendant engaged in an act of sexual penetration with [A.] by engaging in digital penetration of her vagina. Although the court finds the testimony supports defendant touched [A.'s] vagina on the outside on multiple occasions, there is substantial evidence to support a finding beyond a reasonable doubt the penetration [occurred] on at least one occasion."
The trial court explained: "This finding is based upon [A.'s] trial testimony that the defendant hurt her crotch . . . when he touched her and what she described as touching her in the middle of it referencing her crotch on the inside. She also described that he had a long fingernail on the finger that he used to touch her inside that scratched her on this occasion which she associated with causing her pain upon urination. [¶] [A.] has consistently stated in her interviews and during her testimony that the defendant touched her crotch with one finger and physically demonstrated before the Court and during the time of her first interview, according to Sergeant Edwards' testimony, the motion of an index finger moving forward and backward, which the Court would describe as an in and out movement."
The trial court further found that "the defendant engaged in multiple acts of oral copulation with [A.] based on [A.'s] testimony that the defendant licked her vagina, which she often described as her crotch, multiple times while she was laying on her back on the defendant's bed." The trial court further found that defendant committed lewd and lascivious acts on A. within the meaning of section 288, subdivision (a), as charged in counts 4 through 6.
Defendant appeared for sentencing in June 2018. He received a determinate term of 10 years in state prison for counts 4 and 5, followed by an indeterminate sentence of 30 years to life for counts 1 and 2. The trial court stayed the two year sentence on count 6 pursuant to section 654. This appeal timely followed.
II. DISCUSSION
A. Sufficiency of Evidence
Defendant contends the evidence was insufficient to support the trial court's findings that he sexually penetrated A. in the shower (count 1) and orally copulated her in the bedroom (count 2). We are not persuaded.
We apply a deferential standard of review: "In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.)
" '[W]e examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (People v. Nelson (2011) 51 Cal.4th 198, 210.) "The substantial evidence standard of review is generally considered the most difficult standard of review to meet, as it should be, because it is not the function of the reviewing court to determine the facts." (In re Michael G. (2012) 203 Cal.App.4th 580, 589.)
1. Count 1—Sexual Penetration of a Child 10 Years Old or Younger
Section 288.7, subdivision (b) punishes "oral copulation or sexual penetration, as defined in Section 289, with a child who is 10 years of age or younger." Section 289 defines "sexual penetration" as "the act of causing the penetration, however slight, of the genital or anal opening of any person" for the purpose of sexual arousal or gratification. (§ 289, subd. (k)(1).) Thus, "sexual penetration" does not require penetration of the vagina, but only penetration of the external genital organs, which include the labia majora. (See People v. Quintana (2001) 89 Cal.App.4th 1362, 1371 [evidence that defendant penetrated the victim's labia majora was sufficient to establish sexual penetration within the meaning of section 289].)
Defendant argues A.'s testimony established only that he touched her external genital organs, but not that he penetrated them. We disagree. A. testified that defendant touched her "crotch," which she defined as the body part used for "peeing." A. physically demonstrated how defendant touched her "pointing one finger down at the table" and "pushing it forward and pulling it back," in what the trial court described as "an in and out motion." The trial court could have reasonably inferred from A.'s demonstration that the movement of defendant's finger had been penetrative, rather than nonpenetrative. Such an inference would have found support in A.'s testimony that defendant scratched her crotch with his fingernail (since defendant's fingernail would have been unlikely to have factored into any nonpenetrative touching) and hurt the "inside" of her crotch by touching the "middle of it." Such an inference would have found further support in J.'s testimony that A.'s vaginal area was "very inflamed and red." On the record before us, the trial court could reasonably infer that defendant's finger penetrated A.'s external genital organs, if not her vagina. Thus, substantial evidence supports the conviction for sexual penetration with a foreign object. (People v. Quintana, supra, 89 Cal.App.4th at p. 1371.)
Defendant argues that: "The finding that [A.] was demonstrating an 'in and out movement' cannot be inferred from the child's demonstration of moving her finger forward and backward on the flat surface of a table." Nothing in the record supports defendant's contention that A. moved her finger in such a way as to suggest lateral movement on a flat surface. Rather, the record indicates that A. "point[ed] one finger down at the table" and "push[ed] it forward and pull[ed] it back," implying a vertical movement. The trial court, which observed the demonstration, was in the best position to determine whether the movement of A.'s finger conveyed "an in and out motion" or something else.
Defendant resists this conclusion, noting the prosecutor, having established that A. understood the difference between "outside" and "inside" by means of the cup and pen, elicited testimony that defendant only touched A. on the "outside" of her crotch. But the trial court was free to consider that testimony in light of the question posed by the prosecutor. The trial court could reasonably conclude that the cup and pen analogy failed to meaningfully convey either the structure of the female anatomy or the statutory definition of "sexual penetration." That A. characterized the touching as "outside" her crotch does not compel the conclusion that no penetration occurred. The trial court reasonably resolved any ambiguities in A.'s testimony, taking into account her age and understandable limitations on her vocabulary, and understanding her to convey by her gestures and testimony that the "in and out" movement of defendant's finger resulted in sexual penetration, at least to some slight extent. As such, substantial evidence supports defendant's conviction in count 1.
Defendant also argues the evidence of A.'s painful urination and vaginal inflammation raised only a speculative inference of sexual penetration, and thus falls short of substantial evidence. (People v. Ramon (2009) 175 Cal.App.4th 843, 851 ["Speculation is not substantial evidence"].) He theorizes that A.'s discomfort could have been the result of an unrelated urinary tract infection or "spa rash." These arguments amount to an invitation to reweigh the evidence, which we decline to do.
2. Oral Copulation—Count 2
Next, defendant argues there was insufficient evidence to support the conviction for orally copulating A. in the bedroom in count 2. We disagree.
"The elements of oral copulation with a child 10 years of age or younger (§ 288.7, subd. (b)) are: (1) The defendant engaged in an act of oral copulation with the victim; (2) when the defendant did so, the victim was 10 years of age or younger; and (3) at the time of the act, the defendant was at least 18 years old. (CALCRIM No. 1128.) Oral copulation is defined as any contact, no matter how slight, between the mouth of one person and the sexual organ of another. Penetration is not required." (People v. Mendoza (2015) 240 Cal.App.4th 72, 79-80.)
Defendant argues the prosecution failed to show contact with A.'s "sexual organ." A. testified that defendant touched her crotch with his tongue when she was lying on the bed in his bedroom. As we have discussed, she defined her crotch as the body part used for peeing. She also testified that her crotch hurt on the "[i]nside" because defendant "touched the middle of it" with his finger and tongue. From this testimony, the trial court could reasonably infer that defendant placed his mouth on A.'s genitalia or "sexual organ," thereby committing the act of oral copulation. (People v. Mendoza, supra, 240 Cal.App.4th at pp. 79-80.) Thus, substantial evidence supports the conviction for oral copulation with a child 10 years of age or younger in count 2. (People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1508 ["The testimony of one witness, if believed, may be sufficient to prove any fact"]; see also People v. Hunter (1958) 158 Cal.App.2d 500, 502, 505 [evidence of oral copulation was sufficient when the defendant "licked and rubbed [the victim] between her legs"]; People v. Harris (1951) 108 Cal.App.2d 84, 87-88 [evidence that defendant placed his mouth on the victim's "private parts" was sufficient].) B. Waiver of Trial
Finally, defendant argues that reversal is required because the record does not affirmatively show that he knowingly, voluntarily, and intelligently waived his right to a jury trial. Defendant's argument lacks merit.
At the trial readiness conference, defense counsel indicated that defendant was willing to waive his right to a jury trial and proceed by court trial instead. Defense counsel stated: "There was some discussion and I believe the parties are going to be willing to waive a jury trial in the matter." The following colloquy then took place:
"THE COURT: Mr. Rackley, I'm assuming that you have discussed the right to trial. The right to trial can include jury and/or a [j]udge. If you waive a jury, the [j]udge makes the fact determinations, as well as the legal ones. If you have a jury trial, the jury makes the decisions as to what the facts are and applies law to what the [j]udge tells them the law is. [¶] Is it your intent to waive jury and have a [j]udge make the determination?
"THE DEFENDANT: It is.
"THE COURT: We will show [d]efendant waives jury."
The constitutional right to a jury trial "may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant's counsel." (Cal. Const., art. I, § 16; People v. Sivongxxay (2017) 3 Cal.5th 151, 166 (Sivongxxay).) A defendant's waiver of the right to a jury trial must be " 'knowing and intelligent, that is, " ' "made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it," ' " as well as voluntary " ' "in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception." ' " ' " (Sivongxxay, supra, at p. 166.)
Here, defendant acknowledges that he agreed to waive his constitutional right to a jury trial, but argues the purported waiver was not freely or voluntarily given. Importantly, defendant does not suggest that the waiver was the product of intimidation, coercion, or deception. Instead, he argues the trial court failed to sufficiently advise him of the nature of the jury trial right and the consequences of foregoing that right. We understand defendant to mean that the waiver was not knowing and intelligent.
Although our Supreme Court has acknowledged "the value of a robust oral colloquy," and provided "general guidance" to help ensure a jury trial waiver is knowing and intelligent, the court has been careful to emphasize that its guidance is merely "advisory." (Sivongxxay, supra, 3 Cal.5th at pp. 169-170.) The Supreme Court has consistently "eschewed any rigid formula or particular form of words that a trial court must use" to ensure that a jury trial waiver is knowing and intelligent. (Id. at p. 169.) While it may be better practice for the trial court to advise the defendant of basic jury mechanics in a waiver colloquy, a trial court's failure to do so will not necessarily render the waiver ineffective. (Id. at pp. 170, 189 & fn. 18; see also United States v. Williams (7th Cir. 2009) 559 F.3d 607, 610.) A valid waiver depends not on whether specific admonitions were given but whether the record affirmatively shows, based on the totality of the circumstances, that the defendant's waiver was knowing and intelligent. (Sivongxxay, supra, at pp. 167, 189.) We independently examine the record to determine whether this standard has been met. (People v. Burgener (2009) 46 Cal.4th 231, 241; People v. Doolin (2009) 45 Cal.4th 390, 453.)
The court offered the following guidance: "Going forward, we recommend that trial courts advise a defendant of the basic mechanics of a jury trial in a waiver colloquy, including but not necessarily limited to the facts that (1) a jury is made up of 12 members of the community; (2) a defendant through his or her counsel may participate in jury selection; (3) all 12 jurors must unanimously agree in order to render a verdict; and (4) if a defendant waives the right to a jury trial, a judge alone will decide his or her guilt or innocence. We also recommend that the trial judge take additional steps to ensure, on the record, that the defendant comprehends what the jury trial right entails. A trial judge may do so in any number of ways—among them, by asking whether the defendant had an adequate opportunity to discuss the decision with his or her attorney, by asking whether counsel explained to the defendant the fundamental differences between a jury trial and a bench trial, or by asking the defendant directly if he or she understands or has any questions about the right being waived." (Sivongxxay, supra, 3 Cal.5th at pp. 169-170.)
Defendant places heavy emphasis on People v. Jones (2018) 26 Cal.App.5th 420 (Jones). In that case, the defendant's convictions were reversed and the matter remanded for a new trial because the "sparse record" did not affirmatively show that she provided a knowing, intelligent, and voluntary waiver of her right to a jury trial. (Id. at pp. 423, 435-437.) The waiver inquiry there was limited to the prosecutor asking the defendant if she understood her right to a jury trial, and whether she agreed to waive that right and have the trial judge, "sitting alone, decide the case." (Id. at p. 428.) Although the record showed that the defendant had some discussion with her attorney before the waiver was taken and that it was her attorney who indicated to the trial court that she wanted to waive her right to a jury trial, the record did not show whether the attorney ever discussed with her the nature of a jury trial, and the trial court did not specifically advise her that she had a right to a jury trial or take steps to ensure that she understood what the jury right entails. (Id. at pp. 435-436.) The appellate court concluded that the defendant's "bare acknowledgment that she understood her right to a jury trial was inadequate." (Id. at p. 436.) The court explained that the record did not show that the defendant understood the nature of the right being abandoned and the consequences of the decision to abandon it, as she was advised only that the trial judge would decide whether she was guilty or innocent. The trial court did not advise the defendant as to the specific rights she would be giving up or inquire if her attorney had explained those rights to her. Further, there was no indication that the defendant had any prior experience with the criminal justice system. (Id. at pp. 436-437.)
Here, we are presented with a similarly stark colloquy and sparse record. Nevertheless, we find Jones to be factually distinguishable. Unlike the defendant in Jones, who had no prior experience with the criminal justice system, defendant was a former law enforcement officer, having retired from the Los Angeles Police Department as a detective after 13 years of service. Although defendant had never been a defendant in a criminal case before, he would have been familiar with the basic mechanics of a jury trial by reason of his background in law enforcement. (See Sivongxxay, supra, 3 Cal.5th at p. 167 [considering the defendant's prior experience with the criminal justice system as relevant to whether his jury waiver was knowing and intelligent].) Under the totality of the circumstances, we conclude that defendant's jury waiver was knowing and intelligent. We therefore reject the claim of error.
Defendant argues in reply that his law enforcement experience was limited to four years as a patrol officer, followed by a period in which he performed administrative duties as a detective, followed by another stint as a patrol officer, all of which transpired many years ago. Although defendant's law enforcement experience may have been varied and remote, we are convinced that he would have been sufficiently familiar with the fundamental aspects of a jury trial to waive the right knowingly and intelligently.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
RAYE, P. J. /S/_________
BLEASE, J.