Opinion
NOT TO BE PUBLISHED
Super. Ct. No. P06CRF0133
MORRISON, Acting P. J.
A jury found defendant John Earl Jones guilty of continuous sexual abuse of a child under the age of 14 (Pen. Code, § 288.5 - count I), lewd act upon a child (§ 288, subd. (a) - count II) and oral copulation of a person under the age of 18 (§ 288a, subd. (b)(1) - count III). The court dismissed counts II and III, denied probation, and sentenced defendant to 16 years in state prison, ordering him to pay specified fees and fines, including restitution.
Further undesignated statutory references are to the Penal Code.
On appeal, defendant contends (1) there was insufficient evidence to support the section 288.5 conviction, and (2) the trial court erred in instructing the jury with Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 361. Defendant further contends, and the People concede, that (1) imposition of the $70 fine pursuant to section 288a, subdivision (m) was improper given the dismissal of count III, and (2) the court’s minute order must be corrected to (a) accurately reflect the $3,200 restitution and parole revocation fines, and (b) eliminate the requirement that defendant register as a narcotics offender.
We accept the People’s concession as to the latter two contentions, and shall otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant moved from Spokane, Washington, to an apartment in Placerville, California, in the spring of 1993. It was there that he met Justin M., a 12-year-old boy who lived a few doors down with his mother and younger sister. Justin’s mother, an “alcoholic at this point in her life,” provided little supervision, often leaving Justin to “[do his] own thing.” Defendant elicited Justin’s help moving some of defendant’s things into the apartment, and paid Justin for the help. Justin later helped defendant move from the apartment in Placerville to Pollock Pines, and then again several months later from Pollock Pines to Franklin Court in Placerville. Each time, defendant paid Justin for his help.
Although Justin M. mistakenly testified that he was 11 years old when he first met the defendant, he confirmed his birth date was in November 1981. Defendant, who was then approximately 44 years old, told Justin M. he was 36.
Defendant gave Justin beer the first time Justin helped him move, and continued to provide alcohol to Justin “[p]robably every time [Justin] saw him[,]” which at that time was “[m]aybe three, four times a week sometimes.” Defendant often drank with Justin who, on most occasions, drank enough to get drunk.
Justin looked up to defendant as a mentor. They regularly spent time together, hanging out, drinking and talking about Justin’s life. On several occasions, defendant gave Justin a back rub. Defendant bought things for Justin and gave him money.
Soon after defendant moved to Franklin Court, Justin began spending the night several times a week. On December 31, 1994, Justin arrived at defendant’s apartment in the afternoon and started drinking. He continued to drink--beer, then later, wine--throughout the night. Justin fell asleep, fully clothed, on the floor by defendant’s bed. When he awoke, he was wearing only his boxer shorts. Defendant, who was naked, was fondling Justin’s penis and trying to orally copulate him. Justin rolled over in an effort “to ignore it” so that defendant would stop touching him. Defendant put something Justin later identified as videotape cleaner up to Justin’s nose. It “paralyze[d]” Justin and “intensif[ied] whatever [defendant] was trying to do” to him. Defendant continued to touch and fondle Justin’s penis, and then climbed on top of Justin, “riding” Justin and “stroking” him, rubbing his own penis against Justin’s and putting his mouth on Justin’s penis. At some point, Justin fell back asleep. When he woke up the next morning, he did not talk to defendant about what had happened the night before because he was “scared and . . . wouldn’t know what to say.”
The parties stipulated that defendant moved to Franklin Court on March 25, 1994, and lived there until November 1995 when he moved to Granite Bay, California.
On cross-examination, Justin testified the wine may actually have been champagne.
Justin continued to socialize with defendant because defendant gave him money and alcohol. He spent the night at defendant’s home “[a] few times a week.” Every time Justin spent the night, he awoke to defendant touching him the same way he had that first New Year’s Eve. Justin later recalled that, during the time defendant lived at Franklin Court, defendant molested him in the same manner more than 20 times. Justin and defendant never talked about what went on at night.
Justin turned 14 in November 1995. That same month, defendant moved from Franklin Court to Granite Bay. He moved again in January 1996 to Fair Oaks. Defendant and Justin continued to contact each other by telephone. Defendant took Justin camping and bought him things and occasionally picked him up and brought him to his house. Whenever Justin spent the night, he awoke to defendant touching and fondling him and orally copulating him. On several occasions, defendant tried to get on top of Justin and engage in anal intercourse. Justin tried to ignore it, “like it wasn’t happening.”
When Justin was 17, he tried to prevent defendant’s sexual assaults by rolling on his stomach, sleeping in a different area or getting up and staying awake until defendant fell asleep. He and defendant continued to maintain contact; however, there were several occasions when Justin stopped communicating for several months and defendant went looking for him. Justin never spoke to anyone about the molestation because he “was scared of what other people would think.”
In December 1999, Justin moved into defendant’s home in Sacramento for several months so he could save money to move to Oklahoma to be with his girlfriend who was pregnant. Justin left for Oklahoma in April or May 2000. He returned a day later and moved in with his mother in Placerville.
Justin continued to consume alcohol and, after turning 17, began using methamphetamine on a daily basis. He was placed on juvenile probation after he was caught receiving stolen property. When he was 19, Justin was convicted of felony drug and theft-related offenses and of giving a false name to a peace officer. He attempted to forge one of defendant’s checks in 2001, but was not prosecuted.
In 2003, Justin was sentenced to state prison for receiving stolen property. While in prison, defendant sent him some clothes at his request to wear home at the time of his release from prison. When Justin was released in 2004, defendant picked him up at the bus station. Justin spent two nights at defendant’s residence before going home.
Justin was returned to prison four times for violating parole, and was arrested for domestic violence.
Justin eventually told his fiancée about the sexual assaults by defendant. Several months later, while in custody pending domestic violence charges, Justin told a friend, G.M., about the sexual abuse he suffered at the hands of defendant. G.M. contacted the authorities. Detective Kim Nida met with Justin at the jail. He told her about the molestation and agreed to cooperate in an investigation, including a tape-recorded telephone call with defendant.
In January 2007, Justin pled guilty to the domestic violence charge and was sentenced to 30 days in county jail.
Justin called defendant and said, “I need to talk to you. I want to know why you did what you did to me[.]” Defendant said he did not feel comfortable talking about it over the telephone because “he didn’t trust it, or because it was the jail and because it was being recorded.” Defendant agreed, instead, to meet Justin at the jail.
Detective Nida arranged an in-person meeting between Justin and defendant at the jail. During that meeting, which was secretly recorded, Justin confronted defendant about the molestation. Defendant admitted he molested Justin, as well as two other boys (including defendant’s nephew, A.J.), and that the first time he did something to Justin was at Franklin Court. He also admitted he drank and got drunk with Justin and that he used videotape cleaner “to make what ever your [sic] doing feel better.”
Detective Nida executed a search warrant at defendant’s residence that same day. There, she found court documents related to defendant’s prior conviction in Idaho for committing lewd conduct with a minor, several pornographic videotapes and a few pornographic magazines hidden inside a stereo speaker. She also found an empty bottle of VCR head cleaner on a shelf in the room.
Defendant stipulated at trial to the prior conviction in Idaho. According to former Idaho Department of Corrections Officer Carl Rodgers’s testimony, the presentence report in the Idaho case contained two handwritten statements by defendant admitting he molested a young boy, D.L., in Idaho while on camping trips with his nephew.
Defendant was charged with engaging in three or more acts of substantial sexual conduct with a child under the age of 14 (§ 288.5), lewd acts upon a child under the age of 14 (§ 288, subd. (a)), and oral copulation of a person under the age of 18 (§ 288a, subd. (b)(1)). The amended information further alleged that the victim reported he was a victim of the crimes alleged when he was under the age of 18 and that the report was made on February 20, 2006, thus tolling the applicable statute of limitations pursuant to section 803, subdivision (f).
At trial, defendant testified that, during the time he lived at Franklin Court, Justin visited no more than “three or four times.” He denied ever molesting Justin and denied that Justin ever spent the night at Franklin Court. Defendant claimed Justin moved into his home in December 1999 when Justin was 18 years old and that the two began a consensual sexual relationship. Defendant denied the magazines and videos found hidden in the speaker were his, claiming they belonged to a former roommate. He admitted purchasing the VCR head cleaner for a friend, but denied ever using it himself.
Justin denied this claim.
Regarding his statements during the recorded telephone conversation with Justin, defendant explained he was referring to the consensual sexual relationship in 2000, not the period of time when he lived at Franklin Court. Acknowledging his recorded statement that the first time he “did something to [Justin]” was at Franklin Court in Placerville, defendant explained that he was referring to several instances when he gave Justin a neck massage in a rocking chair and Justin became sexually aroused despite that defendant had no intent to sexually arouse either himself or Justin. Defendant explained that “the conversation jumped back and forth from what happened in Fair Oaks [in 2000] to the Placerville thing.” Defendant claimed that, when Justin asked, “Why did you sexually abuse me? Why? What did I do to you,” he only heard the last question, and answered, “Nothing.” When Justin asked him, “why would you do that to me,” defendant answered, “Because when I did it, I didn’t think it was wrong[,]” meaning he did not think giving Justin a back massage in the rocking chair was wrong. Defendant denied giving Justin alcohol, but testified that Justin often brought alcohol and drank it in 2000. He admitted he and Justin both knowingly and willingly used VCR head cleaner twice in 2000, but said he kept it in a little brown bottle which he had thrown away some time ago. He also admitted having sexual contact with Justin in 2000, but denied ever having any sexual contact with him at Franklin Court.
When asked why he told Justin, “Yes, I molested you,” defendant said he did so because they were both upset, it was an emotional conversation and he “would have said whatever it took to make [Justin] feel better about it,” noting that he was referring to the sexual relationship in 2000.
Defendant’s nephew, A.J., testified he had been molested by defendant in a manner similar to that described by Justin when he was between the ages of 12 and 14.
The jury found defendant guilty on all counts, finding that, as to all counts, the victim was particularly vulnerable, the manner in which the crimes were carried out indicated planning by defendant, and defendant took advantage of a position of trust or confidence in committing the crimes alleged. The court dismissed counts II and III pursuant to People v. Johnson (2002) 28 Cal.4th 240, and set aside the convictions as to those two counts. The court denied probation, sentenced defendant to 16 years in state prison, minus 537 days of presentence custody credit, and ordered that he pay fees and fines, including restitution.
In People v. Johnson, supra, 28 Cal.4th 240, the California Supreme Court held that, because section 288.5, subdivision (c), requires that the offense of continuous sexual abuse and other felony sexual offenses occurring during the same time period be charged in the alternative, it is error for the People to obtain multiple convictions on such charges. (Id. at p. 248.)
Defendant filed a timely notice of appeal.
DISCUSSION
I
Sufficiency of Evidence for Section 288.5 Conviction
Defendant contends there was insufficient evidence that the acts of molestation occurred for a period of three months or longer as required for a conviction under section 288.5. We disagree.
On appeal, “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) Substantial evidence includes circumstantial evidence and reasonable inferences. (In re James D. (1981) 116 Cal.App.3d 810, 813.)
Section 288.5, subdivision (a), states in pertinent part, “Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of [proscribed] sexual conduct with a child under the age of 14 years at the time of the commission of the offense, . . . is guilty of the offense of continuous sexual abuse of a child . . . .”
Justin testified that the first act of sexual abuse by defendant occurred on December 31, 1994, at the Franklin Court apartment. Justin turned 14 on November 23, 1995. The requisite three-month time period must therefore have occurred between those two dates. “[T]he prosecution need not prove the exact dates of the predicate sexual offenses in order to satisfy the three-month element. Rather, it must adduce sufficient evidence to support a reasonable inference that at least three months elapsed between the first and last sexual acts.” (People v. Mejia (2007) 155 Cal.App.4th 86, 97 (Mejia).) Justin testified that, within the first week defendant moved into Franklin Court, he spent the night “[p]robably three times a week.” When asked whether he continued to regularly spend the night after the incident on New Year’s Eve, Justin replied, “Yes. [¶] . . . [¶] A few times a week.” Justin further testified that the molestation occurred “regularly . . . Every time -- I’d say every time I’d go over there, it happened.” That response prompted the following colloquy between the prosecution and Justin:
“Prosecutor: During the period of time that the defendant lived at that Franklin Court apartment, approximately how many times did you wake up to the defendant touching your penis in a sexual manner at his apartment?
“A. I couldn’t count.
“Q. More than three?
“A. Yeah.
“Q. More than five?
“A. Yeah.
“Q. More than ten?
“A. Yes.
“Q. More than 20?
“A. Yes.”
Justin then confirmed that defendant moved out of the Franklin Court apartment, after which the two continued to spend time together. Justin also testified that the molestation continued even after defendant moved out of Franklin Court.
Defendant would have us view the evidence in the light most favorable to him, that is, assume “several times a week” means no more than three, and assume defendant touched Justin no more than 20 times, such that “the duration of the continuous sexual abuse . . . would be between seven weeks (if three times per week) and ten weeks (if two times per week), . . .” However, based on Justin’s testimony that he regularly spent several nights a week at defendant’s Franklin Court apartment, and in the absence of any testimony that he stopped spending the night or that defendant stopped touching him at any time during the relevant period, the more reasonable inference is that he maintained the status quo and continued to regularly spend the night several times a week until defendant moved from the Franklin Court location. Furthermore, even without drawing that inference, Justin testified that he was molested at Franklin Court “more than 20” times. Given the regularity with which defendant was molesting Justin, we can infer that the actual number of times Justin was molested was significantly more than 20, but in any event enough to suffice for purposes of the three-month requirement of the statute.
There was sufficient evidence to support defendant’s section 288.5 conviction.
II
CALCRIM No. 361
Defendant contends the trial court erred when it instructed the jury with CALCRIM No. 361, which informs the jury they may draw inferences unfavorable to the defendant from his failure to explain or deny evidence presented in the prosecution’s case. (People v. Saddler (1979) 24 Cal.3d 671, 682 (Saddler); People v. Lamer (2003) 110 Cal.App.4th 1463, 1470 (Lamer).) We hold the instruction was properly given.
CALCRIM No. 361 replaces CALJIC No. 2.62 and is based on Evidence Code section 413. (Bench Note to CALCRIM No. 361.)
CALCRIM No. 361 states, “If the defendant failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt. [¶] If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure.”
As with CALJIC No. 2.62, CALCRIM No. 361 suffers no constitutional or other infirmity and may be given in an appropriate case. (Saddler, supra, 24 Cal.3d at p. 681; Lamer, supra, 110 Cal.App.4th at p. 1470.) Whether the trial court should give CALCRIM No. 361 depends on the specific facts of the case. (People v. Mask (1986) 188 Cal.App.3d 450, 455 (Mask); People v. Roehler (1985) 167 Cal.App.3d 353, 393 (Roehler).) Where a defendant offers a “bizarre or implausible [explanation], the inquiry whether he reasonably should have known about circumstances claimed to be outside his knowledge is a credibility question for resolution by the jury.” (Mask, supra, at p. 455; citing Roehler, supra, at pp. 393-394.) For instance, if a defendant elects to testify at trial and there are “logical gaps” in his testimony, the jury may be instructed with CALCRIM No. 361. (People v. Redmond (1981) 29 Cal.3d 904, 911.)
Here, in explaining the nature of his relationship with Justin and responding to questions regarding the pretextual conversation with Justin at the jailhouse, defendant gave answers which were sometimes peculiar and inconsistent and often incredible. On the one hand, he admitted purchasing VCR head cleaner, but said he purchased it for a friend and denied ever using it himself. On the other hand, he claimed that during what he characterized as a consensual relationship with Justin in 2000, he and Justin had indeed used head cleaner. During the tape-recorded conversation, Justin asked, “Why did you sexually abuse me. Why? What did I do to you?” Defendant responded, “Nothing.” Defendant testified he responded only to the latter part of the question--”What did I do to you?”--having not heard the former two questions. Yet, the recorded dialogue immediately following strongly suggests defendant not only heard the question, “Why did you sexually abuse me,” but attempted to explain that he did because he “didn’t think it was wrong.” In another portion of the recorded statement, defendant said, “I couldn’t, and you’re the third person. Now, the person before you I’ve been watching until he was 16 years old, but it doesn’t make any difference. They were not an adult and it was not right. It wasn’t a good thing, that they were 16. It was something different.” Defendant testified his statement had not been recorded accurately and what he really said was, the person before you “up in Washington” until he was 16 years old explaining that he was actually referring to the incident in Idaho with D.L. Defendant explained that he admitted he molested Justin because Justin was upset and he would have said anything to make Justin feel better, adding that in doing so he was referring to the back massages in the rocking chair and the consensual sexual relationship after Justin turned 18.
Defendant’s answers created logical gaps in his testimony and rendered portions of his explanations bizarre and implausible. Accordingly, the jury could conclude that defendant failed to explain circumstances about which he knew or should have known. The jury was properly instructed with CALCRIM No. 361.
Even assuming it was error to instruct with CALCRIM No. 361, such error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); Saddler, supra, 24 Cal.3d at p. 683.) Under the harmless error standard set forth in Watson, reversal is required only if it is reasonably probable that a result more favorable to defendant would have occurred had this instruction not been given. (People v. Kondor (1988) 200 Cal.App.3d 52, 57.)
As with CALJIC No. 2.62, CALCRIM No. 361 “does not direct the jury to draw an adverse inference. It applies only if the jury finds that the defendant failed to explain or deny evidence. It contains other portions favorable to the defense (suggesting when it would be unreasonable to draw the inference; and cautioning that the failure to deny or explain evidence does not create a presumption of guilt, or by itself warrant an inference of guilt, nor relieve the prosecution of the burden of proving every essential element of the crime beyond a reasonable doubt).” (People v. Ballard (1991) 1 Cal.App.4th 752, 756-757; see Lamer, supra, 110 Cal.App.4th at pp. 1472-1473.)
The court told the jury that not all of the instructions were necessarily applicable, thereby “mitigat[ing] any prejudicial effect related to the improper giving of [CALCIM No. 361].” (Lamar, supra, 110 Cal.App.4th at p. 1472.) The court also advised the jury to follow the instructions that applied to the facts as it determined them to be. Most importantly, as previously outlined, the evidence against defendant was strong and he gave contradictory and implausible explanations for his conduct. Given these circumstances, there was no reasonable probability that the jury would have returned a more favorable verdict had the court refused to give CALCRIM No. 361. The error was therefore harmless.
III
Imposition of $70 AIDS Education Program Fine
Defendant contends, and the People properly concede, that the $70 AIDS Education Program fine (§ 288a, subd. (m)) was improperly imposed given the trial court’s dismissal of count III. Because defendant’s conviction under section 288.5 does not provide for imposition of that fine, we accept the People’s concession and direct the trial court to amend the minute order and abstract of judgment accordingly.
IV
Clerical Errors in Minute Order
The People also properly concede defendant’s final contention that the court’s June 4, 2007 minute order contains clerical errors which must be corrected.
First, in pronouncing judgment and imposing sentence, the trial court ordered defendant to pay a restitution fine of $3,200 (§ 1202.4) and a parole revocation fine of $3,200, stayed pending successful completion of parole. (§ 1202.45.) While the abstract of judgment accurately reflects those amounts, the
June 4, 2007 minute order incorrectly sets those amounts at $3,400. Under our inherent power to correct such errors, we direct the trial court to amend its June 4, 2007 minute order to accurately reflect the true facts. (People v. Rowland (1988) 206 Cal.App.3d 119, 123; People v. Anthony (1986) 185 Cal.App.3d 1114, 1125.)
Next, the June 4, 2007 minute order reflects that the court ordered defendant to register as a narcotics offenders pursuant to Health and Safety Code, section 11590. A review of the court’s oral pronouncement of sentence reveals that the court never contemplated, much less imposed, such a requirement. “Where there is a discrepancy between the oral pronouncement of judgment and the minute order . . ., the oral pronouncement controls. [Citations.]” (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) We therefore direct the trial court to strike from its June 4, 2007 minute order the requirement that defendant register as a narcotics offender.
DISPOSITION
The judgment is affirmed. The trial court shall amend its June 4, 2007 minute order as directed in this opinion.
We concur: BUTZ, J., CANTIL-SAKAUYE, J.