Opinion
D070380
06-27-2017
THE PEOPLE, Plaintiff and Respondent, v. DONALD VIRGIL DEMENT, Defendant and Appellant.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Minh U. Le, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCE347817) APPEAL from a judgment of the Superior Court of San Diego County, Evan P. Kirvin, Judge. Affirmed. Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Donald Virgil Dement of four counts of lewd or lascivious acts on a child under the age of 14, in violation of Penal Code section 288, subdivision (a) — two counts involving Doe 1, and two counts involving Doe 2.
"[A]ny 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 . . . ." (Pen. Code, § 288, subd. (a); further unidentified statutory references are to the Penal Code.)
As to Doe 1, Dement argues that the record does not contain substantial evidence that he touched Doe 1 with the requisite intent to arouse, appeal to or gratify his or Doe 1's lust, passions or sexual desires. As to Doe 2, Dement acknowledges that the record contains substantial evidence that he inappropriately touched her, but argues that the record does not contain substantial evidence to support convictions of two separate completed crimes. Because Dement did not meet his burden of establishing reversible error as to either conviction, we affirm the judgment in its entirety.
I.
STATEMENT OF FACTS
Where, as here, the appellant challenges the sufficiency of the evidence, we review the record and recite the facts in a light most favorable to the judgment. (People v. Nguyen (2015) 61 Cal.4th 1015, 1054-1055 (Nguyen).)
The incident involving Doe 1 occurred in January 1997, and the incident involving Doe 2 took place in or around March 2012. Each of the victims was nine years old when Dement molested her. At the time of the trial in December 2015, Doe 1 was 28 years old, Doe 2 was 13 years old, and Dement was 65 years old.
Neither victim knew or knew of the other victim until after the commencement of criminal proceedings against Dement. Accordingly, we will discuss separately the events surrounding the acts against each victim. A. Doe 1
The January 1997 incident took place in the living room of a home in Jamul at a memorial reception following the funeral of Doe 1's grandfather. At the time of the grandfather's death, Doe 1's grandparents owned and lived in the Jamul home, and Doe 1, her sibling and her parents lived in another residence on the same eight-acre rural property.
Doe 1, who was then nine years old, and her younger sibling did not attend the funeral, but a family member brought them to the reception. Although 50-60 people had attended the event, by the time Doe 1 arrived, only 12-15 family members and close family friends remained. Everyone was in the kitchen and dining room areas, drinking coffee, eating snacks and reminiscing about the grandfather — except Dement, who was sitting by himself on a sofa in the living room.
Dement and the grandfather had been best friends for at least the five years preceding his death. Over the years, Dement had spent so much time at the grandfather's house in Jamul and business in El Cajon that he had become friends with the whole family, on occasion celebrating holidays with family members at the Jamul residence. Doe 1 saw Dement regularly and got along with him; prior to the incident at the memorial reception described below, he had treated her well, and she had trusted him.
Upset and saddened over her grandfather's passing, Doe 1 went into the living room to talk with Dement as the reception wound down. He was seated on the short end of an L-shaped sectional sofa. Doe 1 sat on Dement's lap, in between his legs facing him. Doe 1 was wearing "elastic pants" with underpants beneath and a shirt on top. Dement slipped his right hand down the back of Doe 1's pants and underpants and placed it on the center of Doe 1's buttocks approximately four inches below her waist in "the crease of [her] butt." After leaving his hand there "for a while," Dement slid it from the back to the front, stretching the elastic of Doe 1's underpants as he proceeded. Dement then placed his hand on the top of Doe 1's vagina, where he "just left it" for an amount of time Doe 1 could not remember. At all times while Dement's hand was inside Doe 1's pants, his palm was facing, if not touching, her body. B. Doe 2
Trial exhibit 6 is a diagram of the floorplan of the first floor of the Jamul house. Using this exhibit, Doe 1 established where Dement and the others who still remained at the reception had been sitting at the time of the molestation.
The incident that occurred in or around March 2012 took place at a retail feed and grain store in San Diego County (feed store). Doe 2's mother and the mother's boyfriend managed the feed store, which was located across the street from Doe 2's school.
Many years earlier, before Doe 2 was born, Doe 2's maternal grandmother was married to and divorced from Dement. After the divorce, Dement had no contact with Doe 2's grandmother (his former wife), though he stayed in touch with Doe 2's mother (his former stepdaughter). Indeed, for approximately seven months in or around 2010 or 2011, Dement slept on a couch in Doe 2's mother's apartment. At the time, Doe 2 (who was eight or nine years old) lived in a three-bedroom apartment in Spring Valley with her mother, the mother's boyfriend, an older sibling, two younger half-siblings and an older unrelated child.
Although the testimony of the dates of the marriage and divorce varied greatly, the variance is irrelevant to any issues on appeal. We understand generally that Doe 2's grandmother and Dement knew each other for approximately five years before they were married for approximately three years and that they were divorced no later than the mid-to late-1980's.
Doe 2's mother and her boyfriend would place their children in Dement's care, "many times" leaving Dement and Doe 2 alone at the feed store. Doe 2 was not allowed to walk home from school by herself, and as needed Dement would meet Doe 2 at school and walk her across the street to the feed store where she would stay until closing when the mother's boyfriend would drive them home. Prior to the incident at the feed store described below, Dement had been nice to Doe 2, she liked him and she thought he liked her.
Doe 2's mother did not have a driver's license, and Dement did not have a car.
One afternoon in or around March 2012, Dement picked up then nine-year-old Doe 2 at the end of her school day. When they arrived at the feed store, Doe 2's mother and her boyfriend were there. At closing time, Doe 2's mother and her boyfriend went shopping, leaving Dement to watch Doe 2. Doe 2's mother and her boyfriend returned approximately 30-45 minutes later.
When Doe 2's mother and her boyfriend first left the feed store, Dement went to make sure that everything was locked properly. In checking the back door, Dement took Doe 2 to the rear of the store. Dement directed Doe 2 to take down one of the green plastic chairs that had been stacked up and stored next to nearby shelving. Facing each other, with Doe 2 looking toward the back of the store and Dement looking toward the front, Dement told Doe 2 to pull down her pants and to face and bend over the chair she had just taken down. As instructed, after taking down the chair, Doe 2 turned toward the front of the store, put her hands on and bent over the chair — with her pants and underpants now down to her ankles, and Dement directly behind her.
Trial exhibit 2 is a diagram of the floor plan of the first and second floors of the feed store. Using this exhibit, Doe 2 explained the layout of the public and nonpublic areas of the two floors of the store.
Dement first placed both of his hands on the "very low part" of Doe 2's back, moving them downward. Doe 2 could feel lotion (or something like lotion) on Dement's hands that made them slick. Dement then slid his hands to the cheeks of Doe 2's buttocks. With his palm(s) up, Dement then glided his hand(s) between Doe 2's legs and forward, in a scooping action, ultimately resting his hand(s) on Doe 2's vagina. The entire touching lasted "longer than a minute."
Minutes earlier, Dement had told Doe 2 that she had a rash on her back, and Doe 2 saw a round white jar, approximately three inches in diameter, that contained lotion or gel. That said, Dement did not tell Doe 2 to take off her shirt, and Doe 2 denied having a rash.
At this point, Doe 2 did not recall whether she felt one or two hands.
After Doe 2 pulled up her pants, Dement started to unzip his pants and asked whether she "wanted to see his most prized possession." Doe 2 then became scared and ran to the front of the feed store to wait for her mother to return. At some point after the molestation and before Doe 2's mother returned, Dement told Doe 2 not to tell anybody.
On cross-examination, Doe 2 stated that she, not Dement, used the term " 'prized possession.' "
II.
STATEMENT OF THE CASE
In December 2015, a jury convicted Dement of four counts of lewd and lascivious acts on a child under age 14 — two counts involving Doe 1, and two counts involving Doe 2 — in violation of section 288, subdivision (a). As to all four counts, the jury found true the allegation that Dement committed the offenses against more than one victim. (§ 667.61, subds. (b), (c), (e).) In January 2016, the court sentenced Dement to a term of 30 years to life.
The jury did not reach a verdict as to an additional count involving Doe 2, and the court declared a mistrial as to that count, later dismissing it at the People's request.
In an order filed June 16, 2016, this court deemed Dement to have timely appealed from the judgment.
III.
DISCUSSION
On appeal, we presume the judgment is correct (People v. Giordano (2007) 42 Cal.4th 644, 666), and Dement, as the appellant, has the burden of establishing reversible error (People v. Bryant (2014) 60 Cal.4th 335, 364). Both of the issues raised by Dement require that we review the evidence to determine whether it supports the judgment.
When an appellant like Dement challenges the sufficiency of the evidence, " 'the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, which will support [the challenged findings], and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the jury. It is of no consequence that the jury believing other evidence, or drawing different inferences, might have reached a contrary conclusion.' " (People v. Ghipriel (2016) 1 Cal.App.5th 828, 832 (Ghipriel).) To be considered "substantial" for purpose of appellate review, the evidence "must be more than evidence which merely raises a strong suspicion . . . as mere suspicion will not support an inference of fact." (People v. Martin (1973) 9 Cal.3d 687, 695; see People v. Holt (1997) 15 Cal.4th 619, 669 ["An inference is not reasonable if it is based only on speculation."].)
" 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).) " ' "Whether the evidence presented at trial is direct or circumstantial, . . . the relevant inquiry on appeal remains whether any reasonable trier of fact could have found [as the jury did]." ' " (People v. Manibusan (2013) 58 Cal.4th 40, 92.) A. Substantial Evidence Supports the Jury's Implied Finding That Dement Touched Doe 1 with the Requisite Intent
Under section 288, subdivision (a) (see fn. 1, ante), any touching of a child under the age of 14 is a felony offense only if the touching "is accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator or the victim." (People v. Lopez (1998) 19 Cal.4th 282, 289; accord, People v. Panah (2005) 35 Cal.4th 395, 488; People v. Martinez (1995) 11 Cal.4th 434, 442, 452 (Martinez).) Dement argues that the record does not contain substantial evidence that he touched Doe 1 with the requisite intent to arouse, appeal to or gratify his or her lust, passions or sexual desires. We disagree.
" 'Because intent for purposes of . . . section 288 can seldom be proven by direct evidence, it may be inferred from the circumstances.' " (People v. Villagran (2016) 5 Cal.App.5th 880, 891.) Even though " '[e]vidence of a defendant's state of mind is almost inevitably circumstantial,' " we are mindful that " 'circumstantial evidence is as sufficient as direct evidence to support a conviction.' " (Nguyen, supra, 61 Cal.4th at p. 1055.)
To determine whether a defendant like Dement acted with the requisite intent, "all the circumstances are examined." (In re R.C. (2011) 196 Cal.App.4th 741, 750 (R.C.); accord, Martinez, supra, 11 Cal.4th at p. 445.) In addition to the charged act, other relevant factors include "the nature and manner of the touching, the defendant's extrajudicial statements, the relationship of the parties and 'any coercion, bribery, or deceit used to obtain the victim's cooperation or avoid detection.' " (R.C., at p. 750; see Martinez, at p. 445.) Finally, "the absence of any conceivable innocent explanation" to justify the "manner of the touching itself" may be dispositive without more. (R.C., at p. 750 [an adult French kissing a child under 14].)
Here, while Doe 1 sat on Dement's lap facing him, Dement reached around and slipped his right hand inside the back of Doe 1's underpants. He left his hand in "the crease of [her] butt" "for a while," after which he slid his hand around to the front, placing it on the top of her vagina. From this evidence of the nature and manner of the touching — namely, contact by a man in his mid-40's with the bare skin of a nine-year-old's vagina and buttocks — the jury reasonably could infer that Dement had the intent to arouse or gratify his sexual desires.
Significantly, because Dement testified over the course of two days of trial, the jury saw and heard how he reacted and responded to questions concerning Doe 1 generally and the events at the reception specifically.
Moreover, as in R.C., supra, 196 Cal.App.4th at page 750, Dement did not present "any conceivable innocent explanation" for the "manner of the touching itself." Indeed, he had no recollection of being in the living room with Doe 1 at the reception and denied both that Doe 1 ever sat on his lap and that he ever placed his hand down her pants.
In an attempt to provide an innocent explanation, on appeal Dement argues that Doe 1's description of the events on Dement's lap suggests that Dement's hand merely "anchor[ed] her as she sat facing him." However, given Dement's trial testimony that he did not have any contact with Doe 1 in the living room, counsel's suggestion of a conceivably innocent explanation to justify the manner of the touching is irrelevant. In any event, appellate counsel's suggestion is not evidence of a potentially innocent explanation. (People v. Friend (2009) 47 Cal.4th 1, 84 [argument of counsel is not evidence].)
This evidence and the reasonable inferences from this evidence, viewed in the light most favorable to the judgment, fully substantiate the finding that, when Dement touched Doe 1 in the living room in the Jamul house in January 1997 at the reception following the funeral of her grandfather, Dement had the intent to arouse, appeal to, or gratify his lust, passions, or sexual desires for purposes of section 288, subdivision (a).
In his effort to demonstrate a lack of substantial evidence to support a finding of the requisite intent, Dement relies on evidence in the record that discredits, contradicts or is inconsistent with the evidence described above. In so doing, Dement asks us to discredit admissible evidence, weigh admissible evidence and infer from admissible evidence facts that do not support the judgment — which we may not do. (Albillar, supra, 51 Cal.4th at p. 60; Ghipriel, supra, 1 Cal.App.5th at p. 832.)
For example, Dement points out: There is no evidence Dement sought out Doe 1 or used coercion, bribery or deceit to obtain her cooperation; Doe 1's mother did not recall seeing Dement conversing with anyone at the reception; Doe 1's testimony indicated the touching was brief; and there was no evidence that Dement was physically aroused.
For example, Dement asks that we infer he could not have molested Doe 1 in the living room without having been observed by the people nearby in the kitchen. To the contrary, applying the appropriate standard of review, from the evidence that people were nearby in the kitchen we infer that Dement may have been aroused by the knowledge that the others could see him and Doe 1 without seeing what he was doing to her.
For these reasons, Dement did not meet his burden of establishing reversible error as to the convictions of the counts related to Doe 1. B. Substantial Evidence Supports the Finding That Dement Committed Two Separate Completed Crimes as to Doe 2
The jury convicted Dement of two violations of section 288, subdivision (a) for committing lewd acts upon Doe 2: one count for touching her buttocks and one count for touching her vagina. Dement does not argue a lack of substantial evidence to convict him for having committed at least one lewd or lascivious act upon Doe 2. Rather, he contends that one of the two convictions must be reversed, because "each of the two counts involving [Doe 2] comprised a continuous, unbroken course of touching, where [Dement] slid his hand from the [buttocks] to the [vagina] during a brief encounter, never removing his hand from the child's body." We disagree with Dement's characterization of the molestation and conclude that well-established precedent precludes the outcome Dement seeks.
Elsewhere in his brief, Dement characterizes this argument as a lack of substantial evidence to support two convictions, because "the evidence established [Dement] slid his hand from [the buttocks] to the [vagina] as part of a continuous, uninterrupted act, without stopping and resuming unlawful conduct."
To avoid double jeopardy, a defendant can be convicted of multiple violations of the same statute only if the defendant "completed" multiple crimes. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1474 (Johnson).) For purposes of lewd or lascivious conduct, "multiple sex acts committed on a single occasion can result in multiple statutory violations . . . , and separate punishment is usually allowed." (People v. Scott (1994) 9 Cal.4th 331, 344, fn. 6 (Scott).) More specifically, as applicable here, "[e]ach individual act that meets the requirements of section 288 can result in a 'new and separate' statutory violation." (Id. at pp. 346-347; accord, People v. Harrison (1989) 48 Cal.3d 321, 329 (Harrison).)
Before we determine whether the record contains substantial evidence to support convictions of two completed crimes under section 288, subdivision (a), we must first determine "when the charged crime is completed." (Johnson, supra, 150 Cal.App.4th at p. 1474, relying on Harrison, supra, 48 Cal.3d at p. 329.) This is a legal issue which we consider de novo. (Johnson, at p. 1474.)
In Harrison, the jury convicted the defendant of three counts of sexual penetration with a foreign object (in violation of § 289) in connection with a single incident when he broke into the victim's bedroom and inserted his finger into her vagina. (Harrison, supra, 48 Cal.3d at pp. 324-327.) The victim pulled away from the defendant twice, dislodging his finger twice. (Id. at pp. 325-326.) Despite the proximity and similarity of the three penetrations, the court concluded that each warranted a separate conviction. (Id. at p. 329.) The court explained that "a new and separate violation of section 289 is 'completed' each time a new and separate 'penetration, however slight' occurs." (Ibid.)
In Scott, the Supreme Court applied Harrison to multiple violations of section 288. (Scott, supra, 9 Cal.4th 331.) There, the defendant was charged with 14 counts of lewd or lascivious acts. (Id. at p. 339.) Ten of the counts involved sexual intercourse on separate occasions. (Id. at p. 337.) On two of those 10 occasions, the defendant included "the manual fondling of [the victim's] breasts, vagina, and buttocks" (id. at p. 340), each of which the People charged as a section 288 violation separate from the intercourse. (Scott, at p. 339.) Because "[e]ach individual act that meets the requirements of section 288 can result in a 'new and separate' statutory violation," the Supreme Court reinstated the convictions on these additional charges, holding that each fondling was a separate completed offense from each related incident of sexual intercourse. (Id. at pp. 346-347, 348, 358.)
In People v. Jimenez (2002) 99 Cal.App.4th 450 (Jimenez), the Court of Appeal extended Harrison and Scott to multiple counts of fondling that took place on one occasion. In Jimenez, the defendant was charged with various counts of section 288 violations for fondling various body parts of an eight-year-old victim during one encounter. (Jimenez, at pp. 452-453.) The evidence established that, one night when the victim slept at the defendant's house, she was awakened by the feel of the defendant rubbing her breasts and buttocks, squeezing her thighs, touching her vagina, and putting his finger inside her vagina and her anus. (Id. at p. 452.) Jimenez affirmed six convictions for lewd or lascivious conduct, holding:
"Where a defendant fondles a portion of the victim's body with the requisite intent, a violation of section 288 has occurred. The offense ends when the defendant ceases to fondle that area. Where a defendant fondles one area of the victim's body and then moves on to fondle a different area, one offense has ceased and another has begun." (99 Cal.App.4th at p. 456.)Any other interpretation would reward " 'the clever molester[, who] could violate his victim in numerous lewd ways, safe in the knowledge that he could not be convicted and punished for every act.' " (Id. at p. 455, quoting from Scott, supra, 9 Cal.4th at p. 347.)
In the present case, as in Jimenez, the evidence indicates that defendant touched one area of the victim's body and afterward moved on to touch a different area. With lotion (or something like lotion) on his hands, Dement first placed his hands on the "very low part" of Doe 2's back and slid them downward, ultimately resting them on the cheeks of her buttocks. With his palm up, Dement then slipped at least one hand forward in a scooping action between Doe 2's legs, ultimately resting it on Doe 2's vagina. The entire incident lasted "longer than a minute."
Despite Dement's reliance on what he describes as "a continuous, unbroken course of touching" or "one continuous and uninterrupted touching," Jimenez, instructs: "There is no requirement that the two [lewd acts] be separated by a hiatus, or period of reflection." (Jimenez, supra, 99 Cal.App.4th at p. 456; accord, id. at p. 457 ["There is no requirement that there be a delay between the completion of one act and the commencement of another."].) The evidence here would allow a reasonable jury to find that Dement completed his lewd act on Doe 2's buttocks before he began his lewd act on her vagina.
Dement next focuses on language in the Jimenez opinion in which the defendant fondled different parts of the victim's body, arguing that since " 'fondle' " means "linger[] and/or caress[] a particular body part" and "there was no such evidence" in his case, Jimenez is not persuasive authority. We disagree. Jimenez refers to fondling, because the defendant in Jimenez "was charged with having fondled the victim's breasts, buttocks, vagina and thigh." (Jimenez, supra, 99 Cal.App.4th at p. 456, italics added.) In contrast, here Dement was not charged with fondling; he was charged with "commit[ting] a lewd and lascivious act upon and with [Doe 2's] body and any part and member thereof" — "to wit: Hand to vagina" in one count, and "to wit: Hand to buttocks" in another count — "in violation of [section] 288[, subdivision ](a)." (Italics added.) Just as the evidence in Jimenez "established a separate fondling of each indicated body part" (Jimenez, at p. 456, italics added), likewise here the evidence establishes that Dement's touching of Doe 2's buttocks and Dement's touching of Doe 2's vagina were separate lewd or lascivious acts. Accordingly, just as in Jimenez, this suffices for two separate convictions of section 288. (Jimenez, at p. 456.)
As in Jimenez, the jury here was entitled to find that the evidence reflected more than "merely a touching en route to another area." (Jimenez, supra, 99 Cal.App.4th at p. 456.) --------
For these reasons, Dement did not meet his burden of establishing reversible error as to the convictions of the counts related to Doe 2.
DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR: MCCONNELL, P. J. HUFFMAN, J.