Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. No. 08CM1937 Lynn C. Atkinson, Judge.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
Jason Allen Lint was convicted of molesting his two young daughters, whom we will identify as Daughter 1 and Daughter 2 for purposes of this appeal. On appeal, he argues that (1) substantial evidence does not support the conviction on the count of continuous sexual abuse of Daughter 2, (2) his conviction of continuous sexual abuse of Daughter 1 requires the dismissal of the counts concerning separate incidents of sexual abuse of her, and (3) his fine under Penal Code section 290.3 must be reduced from $300 to $200 because the jury did not find that the offenses occurred after the effective date of the legislation that increased the fine.
Further statutory references are to the Penal Code unless otherwise indicated.
We conclude that the evidence presented required the jury to speculate regarding the amount of time that passed between the first and last molestation of Daughter 2. Accordingly, the conviction for continuous sexual abuse of Daughter 2 will be reversed. As conceded by respondent, the counts for individual sex offenses against Daughter 1 must be dismissed because those offenses were subsumed by the conviction for continuous sexual abuse under count 4. Also, as conceded by the respondent, the fine under section 290.3 will be reduced to $200.
PROCEDURAL HISTORY
On November 12, 2008, appellant was charged by amended information with the following offenses:
Count 1: Oral copulation of a child (Daughter 1) 10 years or younger in violation of section 288.7, subdivision (b).
Count 2: Sexual penetration of a child (Daughter 1) 10 years or younger in violation of section 288.7, subdivision (b).
Count 3: Sexual penetration of a child (Daughter 2) 10 years or younger in violation of section 288.7, subdivision (b).
Count 4: Engaging in three or more acts of lewd and lascivious conduct with a child (Daughter 1) under 14 years in violation of section 288.5, subdivision (a).
Count 5: Engaging in three or more acts of lewd and lascivious conduct with a child (Daughter 2) under 14 years in violation of section 288.5, subdivision (a).
Count 6: Lewd and lascivious acts on a child (Daughter 1) under 14 years in violation of section 288, subdivision (a).
Count 7: Lewd and lascivious acts on a child (Daughter 2) under 14 years in violation of section 288, subdivision (a).
Count 8: Sexual penetration of a child (Daughter 1) under 14 years in violation of section 289, subdivision (j).
Count 9: Sexual penetration of a child (Daughter 2) under 14 years in violation of section 289, subdivision (j).
The amended information also alleged a multiple victim enhancement in counts 1 through 9 pursuant to section 667.61, subdivisions (b), (c), and (e).
On January 6, 2009, appellant entered a plea of not guilty and denied all enhancements. A jury trial commenced the same day. On January 9, 2009, the jury found appellant guilty on counts 1 through 5 and not guilty on counts 6 through 9. The jury also found true the special allegation in connection with counts 4 and 5 that appellant committed three or more acts of lewd and lascivious conduct with more than one victim.
On March 20, 2009, the trial court sentenced appellant to a determinate sentence of 4 years 4 months, followed by a consecutive indeterminate sentence of 30 years to life, as follows:
Count 1: 3 years (upper term)
Count 2: 8 months (1/3 the midterm)
Count 3: 8 months (1/3 the midterm)
Count 4: 15 years to life
Count 5: 15 years to life
The court imposed a restitution fine of $6,400, a parole revocation fine of the same amount (stayed), a court security fee of $100, a court facilities funding assessment of $30 per count, and a fine of $300 (and various penalty assessments) pursuant to section 290.3.
Appellant filed a timely notice of appeal.
FACTS
Appellant’s children include two daughters. Daughter 1 was approximately nine years and two months old at the time of trial. She is the daughter of appellant and D. Daughter 2 was approximately eight years and nine months old at the time of trial. Her parents are appellant and H.
Offenses Against Daughter 2
Appellant and H. were married and lived together with their son and Daughter 2 until they separated in February 2005. From February 2005 until September 2005, the children were in foster care with their maternal grandmother. A custody arrangement was implemented in which Daughter 2 and her brother would go to appellant’s home on Thursday night and stay there until Monday morning. The children spent the rest of the week with their mother. This custody arrangement lasted from September 2005 until June 16, 2007. After that date, appellant did not have unsupervised contact with Daughter 2 because of an allegation that he had slapped her in the face.
Daughter 2 testified at trial that appellant touched her private part called the pee-pee. The touching involved the application of baby cream to her private area. Daughter 2 also testified that (1) her dad did not touch her private part without cream, (2) he did not touch her private part when it was not red, (3) the application of the cream always occurred in her bedroom at his apartment, (4) she only had her jeans off at the time, and (5) her dad never took his clothes off.
Regarding the number of times appellant touched her private part, Daughter 2 testified it occurred more than one time but that she did not know if it happened more than five times. The prosecutor told Daughter 2 that “I am trying to get an idea of how many times [appellant] touched your pee-pee without your clothes on” and then asked: “Was it every time you saw him, was it maybe every other time, was it sometimes, I guess I am trying to get-” At that point, Daughter 2 interjected, “Sometimes.”
When Daughter 2 was asked how old she was when appellant touched her pee-pee she answered, “I think about seven.” Later, when asked if she remembered how old she was, she answered “Like six or something.”
She testified that she thought she was in one of two schools at the time. Her mother testified that one school was for kindergarten and the other one was for first grade.
Daughter 2 testified about the details of a particular incident, which may have been the first. She looked at her private part and saw that it was red. She told appellant her private part was red. Appellant told her to go to her bedroom and, once there, told her to take off her jeans. Then, appellant went and got some white baby cream. Appellant applied the cream to Daughter 2’s private part with his fingers. When asked if she knew how long appellant took to put the cream on her private part, Daughter 2 answered “No.” She testified that appellant told her the cream “was good for it.” Daughter 2 testified that she felt embarrassed even though no one else was in the room.
The prosecutor asked Daughter 2’s mother, H., if Daughter 2 had any type of vaginal problems during the period of shared custody (September 2005 to June 2007). H. testified: “Once in awhile she would come home from her dad’s house saying she hurt and she would tell me that it hurt her down there and that she was red and stuff, and basically that is what she would come and tell me.…”
H. also testified that she did not put cream on Daughter 2, but showed her the cream, put it on her hand for her, and Daughter 2 would apply it herself. Consistent with this testimony, Daughter 2 stated that she put cream on her own private part when it was red. She thought this happened when she was six years old, not seven.
Darren Matteson, who has 27 years of experience as a police officer, testified that he interviewed Daughters 1 and 2 in October 2007. During her interview, Daughter 2 estimated that appellant had touched her private area about five times.
Offenses Against Daughter 1
After appellant separated from H. in February 2005, he lived with D., the mother of Daughter 1. Appellant began to molest Daughter 1 in the summer when she was six or seven years old. The incidents occurred at the apartment where appellant lived with D. and Daughter 1. Daughter 1 testified that the incidents occurred during the day and at night, but always when no one else was at home. On December 24, 2006, Daughter 1 told her grandmother about the molestations.
Appellant touched Daughter 1’s vaginal area, including inside her vagina. On some occasions, he pulled her pants down and sat her on top of him. She could feel his penis inside of her. On other occasions, he orally copulated her. Once, she masturbated him until he ejaculated. Daughter 1 denied that she had licked appellant’s penis on another occasion, but was impeached by her contrary statement to a neighbor.
DISCUSSION
I. Sufficiency of the Evidence Regarding Count 5
Appellant contends that the record does not contain sufficient evidence to support the jury’s finding that the offenses against Daughter 2 occurred over a period of at least three months. To be guilty of continuous sexual abuse, a person must commit at least three prohibited acts “over a period of time, not less than three months in duration.” (§ 288.5, subd. (a).)
A. Standard of Review
Appellant’s challenge to the sufficiency of the evidence requires this court to review the whole record in the light most favorable to the judgment for substantial evidence-credible and reasonable evidence of solid value-that could have enabled any rational trier of fact to have found appellant guilty beyond a reasonable doubt. (People v. Prince (2007) 40 Cal.4th 1179, 1251.) Viewing the record in the light most favorable to the judgment requires us to presume the existence of every fact that supports the judgment, so long as a reasonable trier of fact reasonably could have deduced that fact from the evidence. (Ibid.)
B. The Evidence Concerning the Three-Month Period
Daughter 2 was unable to identify how much time passed between the first time appellant applied cream to her private part and the last time. Consequently, we must determine whether the record contains sufficient circumstantial evidence to support the inference that the first and last incident occurred at least three months apart.
1. Respondent’s contentions
Respondent argues it was reasonable for the jury to find that appellant molested Daughter 2 for a period of more than three months by asserting:
“… During [the period of shared custody, Daughter 2] would go to appellant’s apartment from Thursday to Monday each week. [Daughter 2] told Officer Matteson that [appellant] touched her vagina approximately five times. When [Daughter 2] was asked if [appellant] touched her every time she went to his apartment, every other time, or sometimes, she responded ‘sometimes.’ She explained that appellant only touched her when her vagina was red. [Daughter 2’s mother] testified that ‘once in a while’ [Daughter 2] would return from appellant’s apartment complaining that her vagina was red and that it hurt.
“Since appellant shared custody of [Daughter 2] from September 25, 2005, to June 16, 2007, the jury could have reasonably inferred that ‘sometimes’ meant that appellant did not touch [her] every time she was with him, or every other time that she was with him. Thus, they could have concluded that at a minimum this occurred every third time she visited him. The jury could have further deduced that since she was molested approximately five times, that a minimum of 15 weeks would have had to elapse between the first time [Daughter 2] was molested and the last time she was molested. To further support this deduction, the jury could have relied on [her mother’s] testimony that [Daughter 2] complained of pain and redness to her vagina ‘once in a while, ’ thus, supporting the theory that the molestation did not happen every time or every other time that [Daughter 2] visited appellant. As a result of the evidence presented at trial, the jury could have reasonably inferred that the molestation occurred over a period which was more than three months as is required by the statute.” (Citations omitted.)
2. Appellant’s contentions
Appellant argues that respondent’s analysis of theoretical possibilities is speculative. He supports his argument by citing People v. Mejia (2007) 155 Cal.App.4th 86, a case in which the appellate court concluded the evidence was insufficient to support a finding that the molestations had occurred over a three-month period.
3. Analysis
First, we note, respondent’s theory that the molestations were separated by a minimum of 15 weeks contains a mathematical error. Respondent (i) assumed five molestations occurred a minimum of three weeks apart, (ii) multiplied five by three, and (iii) concluded a period of 15 weeks would have passed. The error in this reasoning is that when there are five incidents there can be only four intervals between them. Consequently, if each interval is three weeks long, then the total number of weeks that passed is 12, not 15. Therefore, respondent’s own theory does not support its conclusion that the requirement for a three-month period was proven in this case.
Second, and more importantly, we agree with appellant that a comparison of this case with the facts in People v. Mejia leads to the conclusion that the evidence presented in this case is insufficient to support a finding that three months elapsed between the first and last molestation of Daughter 2.
In People v. Mejia, the court addressed whether the molestation of the victim had occurred for at least three months before she turned 14 years old on September 18, 2004. (People v. Mejia, supra, 155 Cal.App.4th at pp. 94-95.) The court analyzed the problem as follows:
“… Construing the victim’s testimony in the light most favorable to the People’s case, the evidence showed defendant first abused her sometime in June 2004, when she was in eighth grade. There were 10 instances of abuse by defendant between June and the start of ninth grade sometime ‘around July’ of that year. The victim also testified that during the 12-week period from June through August 2004, defendant molested her more than three times. In September of that year, defendant molested her at least twice. While on direct examination, the victim testified generally that defendant molested her ‘two or three days a week, ’ but she clarified that defendant did not molest her every week within that time period.
“Accordingly, the only reasonable inference permitted by the evidence was that defendant’s abuse began sometime in June and continued to some date in September-but the jury could only speculate that the first incident occurred early enough in June to satisfy the 90-day requirement expiring on September 17, 2004. Indeed, there was no evidence as to when defendant abused her in September, including whether the abuse occurred before and/or after her birthday. As defendant correctly argues, although there was ample evidence that at least three qualifying sexual offenses occurred during the charging period, there was no substantial evidence that at least three months elapsed between the first and third offenses committed against her as a 13 year old.” (People v. Mejia, supra, 155 Cal.App.4th at pp. 94-95.)
In this case, the evidence presented did not allow the jury to identify when the first incident occurred, identify when a third incident occurred, and compare those two dates to determine if the three-month period had been met. Rather, the evidence narrowed the timeframe for when the first incident occurred to a two-year period. Daughter 2’s testimony indicated that she was six or seven years old. Consistent with this testimony, she also stated she was in school either in kindergarten or first grade. There was no testimony as to when the last incident occurred. Thus, the jury could not reasonably deduce the length of time involved based on evidence regarding when the abuse started and when it ended.
In addition, Daughter 2’s testimony that the incidents occurred only “sometimes” during her stays with appellant is vague and only allows for speculation as to whether the abuse occurred over a period longer than three months. Accordingly, the conviction on count 5 will be reversed.
II. Validity of Convictions on Counts 1 and 2
Appellant contends the convictions for oral copulation of Daughter 1 and sexual penetration of Daughter 1 must be dismissed because section 288.5, subdivision (c) bars convictions for both continuous sexual abuse and individual sex offenses occurring during the same period. Respondent concedes this argument because the allegations in counts 1, 2 and 4 reference the same period; namely, October 21, 2005 to October 20, 2007.
We agree that the convictions on counts 1 and 2 should be reversed. (People v. Johnson (2002) 28 Cal.4th 240, 248 [when a conviction is obtained for continuous sexual abuse, convictions for specific sexual offenses involving the same victim and occurring over the same time period are invalid].) The conviction for continuous sexual abuse of Daughter 1, and the related sentence of 15 years to life, will remain in effect. (Ibid. [convictions for specific sexual offenses reversed; conviction for continuous sexual abuse was not reversed].)
III. Conviction on Count 3 Stands
Appellant contends he was charged improperly with count 3 (sexual penetration of Daughter 2) because it was not charged as an alternative to count 5 (continuous sexual abuse of Daughter 2). He also contends that “the jury should have been instructed that if it found [him] guilty of count 5, it must find him not guilty of count 3.” In his view, if count 3 had been charged properly and the jury instructed properly, there would have been no conviction for count 3. Based on these contentions, appellant argues that the conviction for count 3 cannot be revived by the reversal on count 5.
Although the amended information did not observe the explicit alternative pleading requirement of subdivision (c) of section 288.5, we conclude the incorrect pleading and related instructional error does not require the reversal of the conviction under count 3.
First, we disagree with appellant’s contention that he was entitled to have the jury instructed that, if he was guilty of count 5, it must find him not guilty of count 3. The charge of continuous sexual abuse is not an “alternative” to the offense of sexual penetration in the sense that conviction of one necessarily constitutes an acquittal of the other. Therefore, it would have been proper to inform the jury that it was not necessary to address count 3 if it convicted appellant on count 5.
Second, the court in People v. Johnson, supra, 28 Cal.4th 240 read section 288.5, subdivision (c) as prohibiting multiple convictions. Because we have reversed the conviction under count 5 on other grounds, allowing the conviction under count 3 to stand will not violate the proscription against multiple convictions. In short, the failure to phrase the amended information properly does not justify reversing count 3 when that count no longer represents a second conviction for the molestation of Daughter 2.
IV. Modification of Fine under Section 290.3
Respondent states that appellant’s argument that this court must modify the $300 sexual habitual offender fine by reducing it to $200 appears to have merit.
In 2006, the fine imposed upon the first conviction for specified sexual offenses was increased from $200 to $300. (Stats. 2006, ch. 337, § 18.) The statute was an urgency measure that became effective on September 20, 2006. (Stats. 2006, ch. 337, § 62 [urgency statute].) In People v. Valenzuela (2009) 172 Cal.App.4th 1246, the court concluded that the trial court should have imposed a $200 fine under section 290.3 because the defendant’s sex offense was committed before the September 2006 amendment to the statute. (Valenzuela, at p. 1248.)
Because there was no finding by the jury that any of appellant’s offenses occurred after September 20, 2006, the $200 fine should have been imposed.
DISPOSITION
The judgment is modified so that (1) appellant’s convictions under count 1, count 2 and count 5 are reversed and (2) the amount of the section 290.3 fine is reduced to $200. As so modified, the judgment is affirmed. The clerk of the superior court shall prepare and send to the Department of Corrections and Rehabilitation a certified copy of the corrected abstract of judgment.
WE CONCUR: CORNELL, Acting P.J., POOCHIGIAN, J.