Opinion
E039048
12-7-2006
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA ALLEN WILLIAMS, Defendant and Appellant.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Raymond M. DiGuiseppe, Deputy Attorney General, for Plaintiff and Respondent.
Appellant appeals his conviction of 50 counts of committing lewd and lascivious acts on a child under the age of 14 years (Pen. Code, § 288, subd. (a)), and his 77-year prison sentence. Appellant contends the evidence was insufficient to prove all 50 counts, but rather supports, at most, only nine counts. Consequently, appellant argues, the consecutive sentencing on 16 of the counts violates appellants right to due process. As discussed below, we conclude that the evidence is sufficient to support the verdict and the sentence.
All further statutory references are to the Penal Code unless otherwise indicated.
"Any person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years." (§ 288, subd. (a).)
FACTS AND PROCEDURE
In the summer of 2000, appellant was 23 years old and a married father of two. At that time, appellants 12-year-old neighbor, Jessica, and her two brothers began to spend considerable time at appellants home. Jessicas mother was divorced, worked long hours as a nurse, and pursued a social life. The children often spent the night at appellants home.
Appellant first had sexual contact with Jessica in August 2000. They played a "touching" game and kissed at appellants home while Jessicas brothers and appellants wife and children slept. At trial, Jessica described three other specific incidents that took place in October and possibly November, involving various forms of heavy petting and oral sex. These incidents "happened a lot during the night and during the day" and eventually became a regular occurrence.
Jessica testified at trial that she and appellant first had sexual intercourse in October or November 2000. She specifically described another incident of sexual intercourse a couple of weeks later, a third incident that happened at her house, and the very last incident a year later, in October 2001. Jessica testified that, between November 2000 and October 2001, she and appellant had sexual relations "[a] couple times a week; a few times a week." When asked at trial to estimate the number of times appellant and she had sexual intercourse, Jessica stated, "Im going to have to have a pen and piece of paper to figure it out. Two to three times a week for — well, since, say November of 2000 — to November of 2001 or October of 2001." Jessica agreed with the observation that having sex with appellant had become a "regular thing" in her life. Later in her testimony, when Jessica was again asked to estimate the number of times appellant touched her in a sexual way, she stated, "Countless amount of times. I cant really answer that off the top of my head." Jessica then agreed with her previous testimony that the incidents took place approximately two to three times per week.
Sergeant Michael Lind of the Riverside County Sheriffs Department testified at trial that he conducted the initial interview with Jessica after her mother became suspicious and brought her to the sheriffs station in October 2001. The interview was tape-recorded and the audiotape was later admitted into evidence. Sergeant Lind refreshed his memory by consulting the report he had made of the interview. Sergeant Lind testified that Jessica estimated that, after the initial incident in October or November 2000, she and appellant had sexual intercourse twice in December 2000, at least three times in January 2001, at least three times in February, three times in March, four times in April, once in May, four times in June, five times in July, six times in August, seven times in September, and five times in October 2001, for a total of 43 incidents of sexual intercourse.
The jury convicted appellant of all 50 charged counts of lewd and lascivious conduct with a child under 14 years old. At sentencing, the trial court found true an allegation that appellant had a prior conviction for robbery (§ 211), which qualified as a serious or violent felony under the "Three Strikes" law. (§§ 667, subds. (c) & (e)(1) & 1170.12, subd. (c)(1).) The court then sentenced appellant to the midterm of six years on count 1; two years (one-third the midterm) on counts 2 through 16, to run consecutively to count 1; concurrent six-year terms on counts 17 through 50; and five years for the prior strike conviction. The court doubled the sentences on counts 1 through 16 because of the prior strike conviction. The total sentence was 77 years in state prison.
DISCUSSION
1. Introduction to Appellants Argument
By way of introduction, appellant contends that he does not dispute that he had sexual relations with Jessica while she was under the age of 14. Rather, he disputes the number of counts of which he should have been convicted and for which he should be separately punished.
2. Prosecution Election
First, appellant argues that the prosecution elected in its closing argument to prove the 50 counts of lewd conduct using the 43 instances of sexual intercourse, about which Sergeant Lind testified that Jessica told him during her initial interview, plus the seven or eight instances of molestation that Jessica specifically described at trial. Appellant argues that, accordingly, the prosecution could not rely on (and the jury could not consider) Jessicas testimony in which she estimated that she and appellant had intercourse approximately two or three times per week. Appellant misstates the law on this point.
During closing argument, the prosecution argued the following: "There were 50 acts charged. We know it happened more than a hundred times . . . . [¶] Jessica described over seven specific incidents. She described the first six or seven before the sexual intercourse. . . . [¶] She described the next six after that. And she told us about her vacation to Oregon and how full sexual intercourse happened afterwards. So she described seven specific incidents. [¶] We also know that when interviewed by Deputy Lind, she estimated that there were at least 43 specific acts of full sexual intercourse. That gives us 50. But theres more than that. [¶] And what do I mean? Each touching is a separate act; separate offense. . . . [¶] For example, when they had full sexual intercourse, he would kiss her. Thats one count. He would take her by the hand or have her walk to another room. Lets say there he places his hands on her and rubbed her chest. That would be number two. He then places his hand inside her pants and touches her private areas. That is number three. That would be three separate counts, even though it all happened on one night. [¶] So when Jessica describes those seven incidents — six incidents before the full sexual intercourse — those can actually be broken down into the component parts by you in order to find more counts, if that makes sense. [¶] She described at least seven, then there [were] 43 full sexual intercourses. Thats 50. That is where we got the number 50. Seems like a nice round number. However, we know there was a lot more. But we break it into its component parts. [¶] She also described that after having full sexual intercourse, there were times where they did not have sex. Things may have happened sexually, but it wasnt full sexual intercourse. Those are separate counts. [¶] So when we talk about 50, it seems like a large number. In the context of what happened to Jessica, that is miniscule. That is this big. How do I explain this? [¶] His behavior was woven into the fabric of her life. This became an every day [sic] event. . . . [¶] . . . The specifics that she was able to offer were the specific times she remembered. And then after that she had to estimate for us how many times it happened."
When the evidence shows a larger number of offenses than have been charged, the prosecutor must, upon defense request, elect the particular acts on which it intends to rely to support the charges. In the absence of such a request, the trial court must instruct the jury so as to ensure unanimity. (People v. Salvato (1991) 234 Cal.App.3d 872, 879 (Salvato).) Here, the defense did not ask that the prosecution make an election and so appellants rights were protected when the trial court gave the "unanimity" instruction to the jury in the form of CALJIC No. 4.71.5.
As read to the jury, CALJIC No. 4.71.5 provides: "Defendant is accused in Counts 1 through 50 of having committed the crime of lewd act with a child, a violation of section 288(a) of the Penal Code, on or about a period of time between August 200[0] and October 2001. The named victim in Counts 1 through 50 is the minor Jessica D. [¶] In order to find the defendant guilty of Counts 1 through 50, it is necessary for the prosecution to prove beyond a reasonable doubt the commission of a specific act or acts constituting that crime within the period alleged. [¶] And, in order to find the defendant guilty, you must unanimously agree upon the commission of the same specific act or acts constituting the crime within the period alleged. [¶] It is not necessary that the victim describe every single act in detail. [¶] Generic testimony (e.g. [an act] of sexual touching "once a month for three years,") if proved to you beyond a reasonable doubt, outlines a series of specific incidents, each of which could support a separate criminal count. [¶] It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict."
Appellant points to the prosecutions closing argument discussing the evidence of the multiple acts and asserts that "the prosecutor made his election and is thus bound by it." However, as the respondent People point out, there is no rule providing that if the prosecution relies on a particular piece of evidence to prove a particular act, such as the testimony of a particular witness, it "elects" that particular evidence as the exclusive means by which it can prove that act. Rather, the rule is that, where election is required (and it was not in this case because the defense did not ask the prosecution to make an election), the prosecution must elect, from a larger group of acts, the specific acts on which it will rely to prove the number of counts charged. (Salvato, supra, 234 Cal.App.3d at p. 879.) In other words, if the prosecutor had made an election, it would have been as to the particular acts to be proved, not the evidence used to prove the acts. Thus, all of the evidence presented at this trial can be considered in determining whether all 50 counts are supported by substantial evidence.
3. Standard of Review
When a judgment is challenged for insufficient evidence, we review the record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. The sufficiency of the evidence must be determined from the entire record, indulging all reasonable inferences in support of the judgment, which may be drawn from the evidence. (People v. Davis (1995) 10 Cal.4th 463, 509.)
Appellant asserts that the evidence is insufficient in two respects. First, he argues that the case law allowing multiple charges to be based on "generic" testimony refers only to direct victim testimony and thus Sergeant Linds testimony about what Jessica told him is insufficient to prove 43 instances of intercourse. Second, appellant argues that both Jessicas direct testimony estimating the number of acts of intercourse and Sergeant Linds testimony about Jessicas estimate of the number of acts of intercourse are not sufficiently specific under the three criteria set forth in People v. Jones (1990) 51 Cal.3d 294 (Jones).
4. Sergeant Linds Testimony under Jones
The law is well established in California that "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." (Jones, supra, 51 Cal.3d at p. 314.) Generic testimony is a sufficient description of a series of criminal acts to support a conviction when the victim: 1) describes the "kind of act or acts committed" specifically enough to assure that a crime did occur and to differentiate between different types of prohibited acts ("e.g., lewd conduct, intercourse, oral copulation or sodomy"); 2) describes the "number of acts" committed with sufficient certainty to support each of the counts charged ("e.g., `twice a month or `every time we went camping"); and 3) describes "the general time period in which these acts occurred" to assure the acts were committed during the applicable limitation period. (Id. at p. 316.)
Appellant asserts that the generic testimony described in Jones can be presented at trial only through Jessicas direct testimony, rather than through Sergeant Linds testimony about his initial interview with Jessica. This assertion is contrary to case law. In People v. Nwafor (1996) 46 Cal.App.4th 39, 44-45, the victim testified at trial that she was unsure of the general time period in which the lewd conduct described in section 288 took place, i.e., whether it began in the summer of 1988 (when she was 12 years old) or in 1989 (when she was 13). The court relied on testimony from the police officer who first interviewed the victim a year prior to trial to establish the general time period, i.e., that the acts occurred in the summer of 1989. Similarly, we can consider Sergeant Linds testimony about what Jessica told him in the initial interview when we determine whether substantial evidence supports the convictions on all 50 counts.
Further, appellant supports his assertion by pointing to the language used in Jones. For example, the three-part test cited above is worded as, "The victim, of course, must describe the kind of act or acts committed . . . . Moreover, the victim must describe the number of acts . . . . Finally, the victim must be able to describe the general time period." (Jones, supra, 51 Cal.3d at p. 316, italics omitted.)
Here, the victim did "describe" the kind and number of sexual acts and the general time period in which they took place. Jessica described these things to Sergeant Lind during her initial interview at the sheriffs station. Jones does not state that the victim must describe these items on the witness stand or that it is not sufficient when a law enforcement officer testifies at trial about what the victim described to that officer about the crimes during an interview. Neither do we think that a reasonable reading of the case implies such.
Later, in Jones, during a discussion of jury unanimity, the Supreme Court says "The unanimity instruction assists in focusing the jurys attention on each such act related by the victim . . . . [¶] For example, if the victim testified that . . . . [¶] Similarly, if . . . the child victim testified that . . . ." (Jones, supra, 51 Cal.3d at p. 321.) Although the Supreme Court in this passage talks about acts "related by the victim," it does not specify that the victim must relate these acts on the witness stand. In addition, the Supreme Court in that passage uses the term "testify" in the subjunctive, as in "[f]or example, if the victim testified" and "[s]imilarly, if . . . the child victim testified" when it discusses acts that are related by the victim. This is not an expression by the Supreme Court in Jones that the generic testimony can only come directly from the victim on the witness stand.
To conclude, appellant provides no legal authority for his assertion that generic testimony under Jones can be considered by the jury only if the victim gives the testimony directly from the witness stand. It is the appellants burden to demonstrate that the trial court erred such that reversal is merited. (Frank and Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 474.) Thus, based on the lack of legal authority supporting appellants position, our review of the language in Jones, and, most important, the contrary outcome in Nwafor, we conclude that Sergeant Linds testimony about what Jessica told him regarding the type and number of sexual acts, and the general time period in which they happened, can be considered under the three-part test in Jones.
5. Sufficiency of the Evidence under Jones
As set forth above, People v. Jones first requires that the generic testimony set forth the types of acts committed, e.g., lewd conduct, intercourse, oral copulation, etc. Here, Sergeant Lind testified that Jessica told him that she had had "sexual intercourse" with appellant. In her direct testimony at trial, Jessica testified that she and appellant kissed, touched each other sexually, had oral sex, and had sexual intercourse. There is nothing ambiguous in either Sergeant Linds or Jessicas description of these acts and therefore the testimony is sufficient under Jones as to the type of acts committed.
Jones also requires that the generic testimony describe the number of acts with sufficient certainty to support each of the counts charged, e.g., "twice a month" or "every time we went camping." Here, Sergeant Lind testified that Jessica estimated that she and appellant had intercourse twice in December 2000, at least three times in January 2001, at least three times in February, three times in March, four times in April, once in May, four times in June, five times in July, six times in August, seven times in September, and five times in October 2001. In addition, Jessica testified that she and appellant had sexual intercourse two or three times a week from November 2000 to October 2001. This testimony is at least as certain as the "twice a month" or "every time we went camping" approved in Jones; and therefore, we find that the testimony is sufficiently certain to support the conviction on the 43 counts that appellant challenges.
Finally, Jones requires that the testimony describe the general time period in which the acts occurred. Here, Sergeant Lind testified that Jessica told him the months and years in which the acts took place, e.g., "January 2001" or "December 2000." Jessica testified that the sexual contact began "[a] couple of months after we moved into the house" and continued until October 2001. This testimony is manifestly sufficient to describe the general time period in which the acts occurred. In sum, then, the evidence is sufficient to support the 43 counts that appellant challenges as being supported by insufficient evidence.
DISPOSITION
The evidence is sufficient to support the conviction and sentence. The judgment is affirmed.
We concur:
KING, J.
MILLER, J.