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People v. Elwood

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Oct 17, 2017
No. G052495 (Cal. Ct. App. Oct. 17, 2017)

Opinion

G052495

10-17-2017

THE PEOPLE, Plaintiff and Respondent, v. DUSTIN JAMES ELWOOD et al., Defendants and Appellants.

Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant, Dustin James Elwood. William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant, Jimmy Ernest Hutton. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Laura Baggett, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 11CF2327) OPINION Appeal from judgments of the Superior Court of Orange County, John Conley, Judge. Affirmed. Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant, Dustin James Elwood. William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant, Jimmy Ernest Hutton. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.

Dustin James Elwood and Jimmy Ernest Hutton appeal from judgments after a jury convicted them of numerous sexual offenses. Elwood argues the trial court erred by excluding evidence the victims previously engaged in sexual activity and made false allegations of molestation, and he requests we independently review the victims' school records. Hutton contends insufficient evidence supports one of his convictions and the court erred in instructing the jury. Elwood and Hutton join in each other's arguments where applicable. None of their contentions have merit, and we affirm the judgments.

FACTS

T.E., born in 1996, Z.E., born in 1998, and I.E., born in 2000, are brothers, and their parents are Sc.E. (Father) and Su.E. (Mother). Father had a son, L.E., from a previous marriage, and L.E. was friends with Elwood, who lived nearby with his mother. During summer 2009, Elwood, who had just graduated from high school, moved in with Father, Mother, and the three boys (L.E. had moved out) because Elwood's mother had to move in with her ill mother. In exchange, Elwood had to help with the boys and attend school. Eighteen-year-old Elwood and 21-year-old Hutton were friends. Sexual Molestation of T.E. (John Doe No. 1): Counts 1-6, 20-21

At the time of trial, T.E. was 18 years old. T.E. testified that when he was 10 or 11 years old Elwood moved in and they shared a room that had bunk beds. Elwood immediately became "touchy-feely" with T.E. Subsequently, Elwood said he wanted to kiss T.E. Elwood kissed him on the cheek, but it progressed to French kissing, oral copulation, and sodomy.

T.E. testified the first time Elwood orally copulated him was at Elwood's home, and the oral copulation occurred about every other day, and did not cease until Elwood was arrested. From the time T.E. was 10 to 12 years old, Elwood took pictures of T.E. naked and/or while Elwood orally copulated him. When T.E. was 13 years old, he orally copulated Elwood on more than one occasion. Beginning when T.E. was 11 years old, Elwood sodomized T.E., and it occurred almost every day or evening in the bedroom they shared. T.E. was hesitant, but Elwood pressured him or offered him a reward.

Hutton also sexually abused T.E. When T.E. was 12 years old, Hutton was in Z.E. and I.E.'s bedroom. After chocolate syrup was poured on T.E.'s penis, Hutton sucked it off. On this same occasion, Hutton attempted to persuade T.E. to orally copulate him. Hutton pulled his penis out and grabbed T.E.'s arm, but T.E. refused. Sexual Molestation of Z.E. (John Doe No. 3): Counts 12-18, 22-25

Elwood and Hutton sexually molested Z.E. Beginning in seventh grade, Elwood would French kiss Z.E. Elwood also masturbated Z.E. until he ejaculated. When Elwood wanted to engage in sexual activity, he would text Z.E., "'let me show you something upstairs.'" Elwood and Z.E. performed oral copulation on each other. On some occasions, Elwood ordered Z.E. to perform sexual acts with T.E., and if they did not comply, Elwood bribed them with food or toys. On one occasion, Elwood persuaded T.E. and Z.E. to compete in a game in which both boys orally copulated Elwood while he photographed them.

Hutton also sexually abused Z.E. On one occasion, Hutton was with Z.E. in his bedroom. When a sexually suggestive television commercial played, Z.E. became aroused and masturbated in the corner of his room. Hutton approached Z.E., stood behind him, and whispered, "'want some help.'" Z.E. did not respond, but Hutton orally copulated Z.E. That same night, Z.E. orally copulated Hutton. On another occasion, Elwood facilitated mutual oral copulation among himself, Hutton, and Z.E.

Z.E. attempted to tell his parents about the sexual abuse. On one occasion, Z.E. observed T.E. orally copulating Elwood and took a photograph with his cell phone. Before he could show the photograph to his parents, Elwood wrestled the phone away from Z.E. and deleted the photograph. Sexual Molestation of I.E. (John Doe No. 2): Counts 7-11

Elwood sexually abused I.E. when he was six or seven years old. As with T.E. and Z.E., Elwood began kissing I.E. and then touched his penis. On one occasion, Elwood attempted to put his penis into I.E.'s anus, but I.E. complained it hurt and Elwood stopped. Additionally, Elwood convinced Z.E. and I.E. to orally copulate each other and him on a regular basis.

In early August 2011, Father walked into I.E.'s room in the middle of the night. He saw Elwood on the top bunk, with no pants on, and his knees in the air. When I.E.'s head popped up from that area, Father began yelling. Father went downstairs, and Elwood followed and told Father that he was trying to help I.E. go to sleep. Father confronted I.E. the following day, but he denied anything sexual had happened when in fact he had orally copulated Elwood.

Discovery of Sexual Abuse and Child Pornography

Later that month, Mother was cleaning T.E.'s room and found two flash drives hidden in the mattress. Mother took the flash drive to work and found child pornography. Five of the images consisted of T.E. naked, and one image showed Elwood orally copulating T.E. Mother and Father notified the police that day. The following day, police arrested Elwood and seized the flash drives, which contained 400 photographs.

The police seized and searched Elwood's computer. There, they recovered a picture of two eight year-old boys engaged in oral copulation. In all, the police recovered a total of 227 images and 10 videos of child pornography on Elwood's computer. Police found Hutton in Tennessee, along with his trove of child pornography.

A second amended information charged Elwood and Hutton as follows: Elwood—17 counts of lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (a), all further statutory references are to the Penal Code, unless otherwise indicated; counts 1-5, 7-17 & 28), two counts of using a minor for sex acts (§ 311.4, subd. (c); counts 6 & 18), and possession and control of child pornography (§ 311.11, subd. (a); count 19); and Hutton—five counts of lewd act on a child under the age of 14 (§ 288, subd. (a); counts 20, 22, 23, 27 & 28), three counts of attempted lewd act on a child under the age of 14 (§§ 664, subd. (a), 288, subd. (a); counts 21, 24 & 25), and annoying or molesting a child (§ 647.6, subd. (a)(1); count 26). As to counts 1-5, 7-17, 20, 22-23, 25, 27 and 28, the information alleged the offenses were committed against more than one victim (§ 667.61, subds. (b), (c) & (e)), and with respect to counts 2-5, 7-8, 11-17, 20, 22-23, 25, and 28, Elwood and Hutton had substantial sexual conduct with a child (§ 1203.066, subd. (a)(8)).

Before trial, Elwood and Hutton requested the trial court review T.E.'s, Z.E.'s, and I.E.'s school records in camera. Specifically, they sought records regarding a November 2004 incident involving Z.E. at school. The trial court reviewed the documents in camera and ordered disclosed one document from Z.E.'s records concerning a November 2004 incident.

Both Elwood and Hutton sought to admit evidence of the victims' prior sexual acts and false allegations of molestation pursuant to Evidence Code section 782. The motions were supported by sealed affidavits. In their sealed affidavits, counsel alleged the following two incidents: In November 2004, Z.E. and a classmate were discovered by a school janitor in the school bathroom engaged in a sexual act and Z.E. initially said the classmate initiated the contact but later recanted. Z.E. said he learned about sex from his mother's "'sex cards'" and T.E. having sex with a friend; and in July 2012, T.E. inserted a finger into Z.E.'s anus as a wresting move to get Z.E. off of him. The prosecution opposed the motions, arguing the incidents were irrelevant and inadmissible pursuant to Evidence Code section 352. At a hearing on the motions, the trial court denied the motions without prejudice. The court reasoned the incidents concerned collateral credibility issues that would evolve into mini-trials.

The affidavits were sealed, but we must discuss the circumstances of these alleged events to properly review the trial court's Evidence Code section 352 weighing. We have tried to sanitize the events to protect those involved.

At trial on direct examination, the prosecutor questioned Z.E. about an incident in which Elwood convinced Z.E. to accompany him to his bedroom to show Z.E. his pet snake. The following colloquy occurred:

"[Prosecutor]: Do you remember how old you were this time with the snake? Or what grade you were in?

[Z.E.]: Sixth grade. Sixth, yeah. Sixth grade.

[Prosecutor]: And at some point you said that there was some physical contact between the two of you?

[Z.E.]: Yes.

[Prosecutor]: Okay. Did -- how did that come about? Was this the first time anything physical had happened, or had it already happened?

[Z.E.]: It had already happened, something physical ha[d] already happened before that.

[Prosecutor]: Okay. And the something physical happening before that, did that happen at your parents' house?

[Z.E.]: Yes.

[Prosecutor]: Do you remember what room that happened in?

[Z.E.]: In my room, actually.

[Prosecutor]: And, was -- your memory of the, like the first memory you have of something physical, something sexual happening between you and . . . Elwood, was that in your room?

[Z.E.]: No.

[Prosecutor]: Okay. Whose room is it in?

[Z.E.]: That was in [T.E.]'s room.

[Prosecutor]: And what's your first memory of something?

[Z.E.]: Jimmy, it was the first one.

[Prosecutor]: Jimmy?

[Z.E.]: Uh-huh.

[Prosecutor]: When you say 'Jimmy,' do you mean

[Z.E.]: Jimmy Hutton.

[Prosecutor]: So, . . . Hutton actually did something to you before . . . Elwood did; is that a 'yes'?

[Z.E.]: Yes." (Italics added.)

During Elwood's counsel cross-examination of Z.E., the following colloquy occurred:

"[Elwood's counsel]: And then you described that your first sexual incident was with . . . Hutton, right?

[Z.E.]: Yes.

[Elwood's counsel]: And that was your first sexual experience?

[Z.E.]: Yes.

[Elwood's counsel]: And I believe you told us earlier that this occurred when you were in the [fifth] grade, right?

[Z.E.]: Yes.

[Elwood's counsel]: And how old were you in the [fifth] grade?

[Z.E.]: 10.

[Elwood's counsel]: 10 years old? All right. And so you stated this being your first sexual experience with . . . Hutton, nothing happened between you and . . . Elwood before that?

[Z.E.]: Yes, nothing happened before that." (Italics added.)

The following day, when Elwood's counsel's cross-examination of Z.E. resumed, the following colloquy occurred:

"[Elwood's counsel]: And all of your sexual experiences, they were -- during this period of time, they were with . . . Elwood or . . . Hutton, correct?

[Z.E.]: Yes.

[Elwood's counsel]: Were there any times where any sort of sexual contact occurred when . . . Hutton or . . . Elwood was not present?

[Z.E.]: No.

[Prosecutor]: Objection, vague. Relevance.

[Trial court]: Overruled. The answer will remain, 'No.'

[Elwood's counsel]: No, right?

[Z.E.]: Yeah, there's no abuse prior.

[Elwood's counsel]: Okay. So nothing prior to . . . Elwood or . . . Hutton?

[Z.E.]: Yes, I was never abused when I was younger, before . . . Elwood and . . . Hutton.

[Elwood's counsel]: By anyone?

[Z.E.]: By anyone.

[Elwood's counsel]: And to clarify it a little more, you were never abused by anyone before meeting . . . Elwood, right?

[Z.E.]: Yes."

At a side-bar, the prosecutor objected to this line of questioning pursuant to Evidence Code section 782, and in violation of the trial court's in limine rulings. Elwood's defense counsel argued the prosecutor opened the door to question Z.E. about his first sexual experience because she asked Z.E. a question about it and she did not object during cross-examination to a similar question the day before. Elwood's counsel requested the court hold a hearing outside the jury's presence to examine Z.E. regarding the sexual incidents discussed during in limine because these incidents were relevant to establish the victims had knowledge of sex and sexual activity before their interactions with Elwood and Hutton.

The trial court denied Elwood's and Hutton's request, ruling as follows: "All right, here is the ruling. The court does not believe the door was opened by waiving any objection yesterday. Because the question was ambiguous. And I interpreted it the same way the prosecutor did. Though obviously defense counsel interpreted it . . . more broadly. [¶] There isn't proper compliance with [Evidence Code sections] 782 and 1103, in terms of this. The court doesn't find now in knowing the case much better, the incidents in 2004 and [2012] as really relevant, probative, showing the jury something they really ought to know, as opposed to just dirtying up this witness. [¶] And it's not a case like [People v. Daggett (1990) 225 Cal.App.3d 751 (Daggett)] . . . where a child has prior sexual experience, and the jury might think oh, gosh, how would they have this sophistication if the defendant hadn't done it. Well, of course the jury should be apprized [sic] that the child was molested before. And that they can describe semen and some other kind of things, doesn't prove the defendant did it. But that's not what we have here. [¶] The other is under [Evidence Code section] 352 we'd have a little mini-trial on these incidents. [¶] So, the court is going to exclude it under relevance and [Evidence Code section] 352."

The prosecution offered testimony from Dr. Jody Ward, a clinical psychologist and expert on child sexual abuse accommodation syndrome (CSAAS), a pattern of behaviors exhibited by some children who have been sexually abused. Ward explained CSAAS consists of the following five components: secrecy; helplessness; entrapment and accommodation; delayed unconvincing disclosure; and retraction. Ward provided detailed testimony about each component, including delayed disclosure due to entrapment and homosexual stigma. Finally, the parties stipulated that in 2001, Hutton suffered a conviction for violating section 288, subdivision (a), as a result of committing sexual acts with two male children in 2000.

The jury found Elwood guilty of 15 counts of committing lewd acts on a child under the age of 14 (counts 1-5, 7-13, 16, 28), one count of using a minor for sex acts (count 6), and one count of possession and control of child pornography (count 19). The jury found Hutton guilty of four counts of committing lewd acts on a child under the age of 14 (counts 20, 22-23, 28), and two counts of committing attempted lewd acts on a child under the age of 14 (counts 21, 25). The jury also found true the multiple victim and substantial sexual conduct allegations to those counts in which those allegations were alleged. As to counts 14, 15, 18, 24, 26, and 27, the jury was deadlocked, and the trial court declared a mistrial as to those counts.

The trial court sentenced Elwood to 45 years to life in prison. The court sentenced Hutton to 30 years to life in prison.

DISCUSSION

I. Evidence Code section 782

Elwood and Hutton argue the trial court erred by excluding evidence of Z.E.'s prior sexual activity. We disagree.

"Generally, a defendant may not question a witness who claims to be the victim of sexual assault about the victim's prior sexual activity. [Citations.] Evidence Code section 782, however, provides an exception to this general rule. [Citations.] [¶] Evidence Code section 782 requires a defendant seeking to introduce evidence of the witness's prior sexual conduct to file a written motion accompanied by an affidavit containing an offer of proof concerning the relevance of the proffered evidence to attack the credibility of the victim. [Citations.] The trial court is vested with broad discretion to weigh a defendant's proffered evidence, prior to its submission to the jury, 'and to resolve the conflicting interests of the complaining witness and the defendant.' [Citation.] '[T]he trial court need not even hold a hearing unless it first determines that the defendant's sworn offer of proof is sufficient.' [Citations.] [¶] If the offer of proof is sufficient, the court must conduct a hearing outside the presence of the jury and allow defense counsel to question the complaining witness regarding the offer of proof. [Citations.] 'The defense may offer evidence of the victim's sexual conduct to attack the victim's credibility if the trial judge concludes following the hearing that the prejudicial and other effects enumerated in Evidence Code section 352 are substantially outweighed by the probative value of the impeaching evidence.' [Citations.] [¶] Evidence Code section 782 applies when the defense seeks to introduce relevant evidence of prior sexual conduct by a child. [Citation.]" (People v. Mestas (2013) 217 Cal.App.4th 1509, 1513-1515 (Mestas), fn. omitted.)

We need not address the correctness of the trial court's ruling regarding Evidence Code section 782 because the trial court did not abuse its discretion by excluding the evidence pursuant to Evidence Code section 352. "'[I]t is relevant for the defendant to show that the complaining witness had been subjected to similar acts by others in order to cast doubt upon the conclusion that the child must have learned of these acts through the defendant. Thus, if the acts involved in the prior molestation are similar to the acts of which the defendant stands accused, evidence of the prior molestation is relevant to the credibility of the complaining witness and should be admitted.' (Daggett, supra, 225 Cal.App.3d at p. 757.)" (Mestas, supra, 217 Cal.App.4th at p. 1515, italics added.)

Here, evidence that in November 2004 when Z.E. was six years old, he touched a classmates's penis, blamed his classmate, and said he learned about sex from his mother were not similar to the charged offenses, masturbation and oral copulation. Contrary to Elwood's contention otherwise, we cannot infer six-year-old Z.E. would have masturbated or orally copulated his classmate in the school restroom. Although this evidence may have some relevance to his credibility, it is of minimal relevance to the charged offenses and must be weighed under Evidence Code section 352. Evidence that in July 2012, T.E. inserted a finger into Z.E.'s anus as a wrestling move to get Z.E. off of him was of no probative value to the charged offenses as it occurred after the charged offenses and was childhood horseplay not similar to masturbation or oral copulation. Similar to Mestas, but unlike Daggett, the court did not err by not ordering a hearing because the offer of proof was insufficient. (Mestas, supra, 217 Cal.App.4th at pp. 1517-1518 [offer of proof insufficient for hearing, Evidence Code § 782's purpose not to allow "fishing expedition"]; Daggett, supra, 225 Cal.App.3d at p. 757 [offer of proof sufficient for trial court to order hearing].)

Additionally, the November 2004 and July 2012 evidence was inadmissible pursuant to Evidence Code section 352. Admission of this evidence, particularly the November 2004 incident, would have required a mini-trial involving the school janitor and the classmate. Admission of this evidence would have consumed an undue amount of time and confused the jury by requiring it to focus on the truth of that incident. Thus, the court did not abuse its discretion by concluding any relevance of the evidence was outweighed by its prejudicial effect.

Finally, exclusion of this evidence did not infringe on Elwood's and Hutton's constitutional right to present a defense and confront witnesses. As a general matter, a defendant has no constitutional right to present all relevant evidence in his favor. (People v. Gurule (2002) 28 Cal.4th 557, 620.) Courts may ordinarily exclude evidence after weighing its probative value against any unfair prejudicial effect. (Ibid.) "For a defendant's constitutional rights to override the application of ordinary rules of evidence, '"the proffered evidence must have more than 'slight-relevancy' to the issues presented. [Citation.] . . . [Citation.] The proffered evidence must be of some competent, substantial and significant value. [Citations.]" [Citations.]' [Citation.]" (People v. Anderson (2012) 208 Cal.App.4th 851, 880.)

Here, Elwood and Hutton cannot demonstrate evidence of the November 2004 and July 2012 incidents would have produced a significantly different impression of Z.E.'s credibility. As we explain above, the evidence was of marginal relevance, it would have resulted in a mini-trial, which would have confused the issues and consumed an undue amount of time. Counsel thoroughly cross-examined Z.E. concerning the truthfulness of his testimony. And the evidence, both testimonial and documentary, overwhelmingly pointed to their guilt. Thus, Elwood and Hutton were not denied the right to present a defense or confront the witnesses against them. (Mestas, supra, 217 Cal.App.4th at p. 1517 [exclusion of evidence pursuant to Evidence Code § 782 does not deprive defendant of a fair trial].) II. Sufficiency of the Evidence

Hutton contends insufficient evidence supports his conviction for count 25, attempted lewd act on a child under 14 years of age, because there was no evidence he attempted to commit a lewd act but failed. The Attorney General argues section 663 precludes Hutton's claim. In his reply brief, Hutton concedes the issue.

"'To sustain a conviction of attempted violation of section 288[, subdivision] (a), the prosecution has the burden of demonstrating (1) the defendant intended to commit a lewd and lascivious act with a child under 14 years of age, and (2) the defendant took a direct but ineffectual step toward committing a lewd and lascivious act with a child under 14 years of age.' [Citation.]" (People v. Villagran (2016) 5 Cal.App.5th 880, 890.) Section 663 states, "Any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was perpetrated by such person in pursuance of such attempt, unless the court, in its discretion, discharges the jury and directs such person to be tried for such crime." Pursuant to section 663, Hutton concedes a defendant may be convicted of an attempted crime, even if the evidence shows only a completed crime. We accept Hutton's concession. There was sufficient evidence supporting Hutton's conviction for count 25. III. Jury Instruction

Hutton asserts the trial court erred by failing to instruct the jury sua sponte with annoying or molesting a child, a lesser included offense of attempted lewd act on a child under 14 years of age in count 21. We disagree.

"On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense. [Citation.]" (People v. Souza (2012) 54 Cal.4th 90, 113 (Souza).) "For purposes of determining a trial court's instructional duties, we have said that 'a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]' [Citations.]" (People v. Smith (2013) 57 Cal.4th 232, 240.) The court can apply one of two tests to determine if a lesser offense is necessarily included in a greater offense: the elements test and the accusatory pleading test. (People v. Lopez (1998) 19 Cal.4th 282, 288.) The elements test is satisfied if the greater offense cannot be committed without also committing the lesser offense. (Ibid.) "Under the accusatory pleading test, a lesser offense is included within the greater charged offense '"if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed." [Citation.]' [Citations.]" (Id. at pp. 288-289.)

Section 288, subdivision (a), is violated when the defendant touches an underage child with the specific intent "of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child." (§ 288, subd. (a); People v. Martinez (1995) 11 Cal.4th 434, 444.) Section 647.6 is violated when defendant's conduct in annoying or molesting a child is "'"motivated by an unnatural or abnormal sexual interest"' in the victim [citations]." (People v. Lopez (1998) 19 Cal.4th 282, 289 (Lopez).)

In Lopez, supra, 19 Cal.4th at pages 290-292, the California Supreme Court held a violation of section 647.6 is not a lesser included offense of section 288 under the elements test. The Lopez court also held section 647.6 was not a lesser included offense of section 288 under the accusatory pleading test because the pleading in that case alleged defendant "'touch[ed] [the] victim's vaginal area outside of her underwear' for purposes of his sexual gratification." (Lopez, supra, 19 Cal.4th at p. 293.) The court concluded that language did not necessarily allege an objectively irritating or annoying act of child molestation because "'[a] female child who rides on her father's shoulders might have contact between her vaginal area and her father's neck or shoulders, but that contact would not unhesitatingly irritate or disturb a reasonable person.'" (Id. at p. 294.)

Count 21 alleged Hutton attempted to commit a lewd and lascivious act upon T.E. in violation of section 664, subdivision (a), and 288, subdivision (a), when he "attempted to have . . . [T.E.] orally copulate him." This language did allege an objectively irritating or annoying act of child molestation; it could not possibly appear innocent and inoffensive to any normal observer. Thus, an instruction on section 647.6 would have been appropriate if it was supported by substantial evidence that if accepted by the jury would absolve the defendant of the greater offense but not the lesser. (People v. Landry (2016) 2 Cal.5th 52, 96.) There was not.

There was sufficient evidence Hutton intentionally attempted to have T.E. orally copulate him after Hutton poured chocolate sauce on T.E.'s penis and orally copulated him. The prosecution's evidence, Hutton's conduct of grabbing T.E.'s arm and pulling T.E. towards him to orally copulate him, was such that if done intentionally, as the jury found it was, could only have been done by a person harboring a lewd and lascivious intent. Contrary to Hutton's claim otherwise, T.E.'s testimony on this point was not equivocal—when asked, T.E. testified he grabbed his arm. This was more than the defendant's mere "offer" to orally copulate the victim in People v. La Fontaine (1978) 79 Cal.App.3d 176, 180 (La Fontaine). Thus, there was substantial evidence supporting count 21, attempted lewd act on a child under 14 years of age (§§ 664, subd. (a), 288, subd. (a)). (People v. Toledo (2001) 26 Cal.4th 221, 230.)

Lopez, supra, 19 Cal.4th at pages 292-293, disapproved of La Fontaine, supra, 79 Cal.App.3d 176.

Hutton's reliance on cases where defendants' convictions for violating section 647.6's predecessor section 647a (People v. Carskaddon (1959) 170 Cal.App.2d 45, 47-48 [defendant asked 17-year-old girl lewd question], and People v. McNair (1955) 130 Cal.App.2d 696, 697-698 [defendant exposed penis to seven-year-old girl]), do not alter our conclusion there was no evidence for the jury to consider that would absolve Hutton of the greater offense. Thus, the trial court did not err by failing to instruct the jury sua sponte with section 647.6. IV. Sealed Records

Elwood and Hutton request this court conduct an independent review of the sealed records the trial court reviewed in camera. The Attorney General does not object to the request. An appellate court "routinely independently examines the sealed records of such in camera hearings to determine whether the trial court abused its discretion in denying a defendant's motion for disclosure." (People v. Prince (2007) 40 Cal.4th 1179, 1285.) We have reviewed the sealed records in this case and found no additional discoverable records.

DISPOSITION

The judgments are affirmed.

O'LEARY, P. J. WE CONCUR: ARONSON, J. THOMPSON, J.


Summaries of

People v. Elwood

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Oct 17, 2017
No. G052495 (Cal. Ct. App. Oct. 17, 2017)
Case details for

People v. Elwood

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DUSTIN JAMES ELWOOD et al.…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Oct 17, 2017

Citations

No. G052495 (Cal. Ct. App. Oct. 17, 2017)