Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. SWF019336 F. Paul Dickerson III, Judge.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendant Charles James Lockhart was convicted of eight counts of lewd and lascivious conduct with a child under 14 (Pen. Code, § 288, subd. (a)), following a trial by jury, and was sentenced to a term of 22 years in state prison.
All statutory references are to the Penal Code unless otherwise stated.
BACKGROUND
Defendant is the father of K.M. When K.M. was six years old and the family resided in a trailer on Ortega Highway, defendant touched her vagina. On another occasion while the family still lived in the trailer, there was another incident. Because the trailer, which was situated on property owned by K.M.’s grandparents, did not have a working shower, K.M.’s mother and brother went to the grandparents’ house to shower. While they were out, defendant played a pornographic video and made K.M. watch it with him, touching her on the vagina as K.M. sat on his lap. When the mother and brother returned, defendant pushed K.M. off his lap and pretended nothing happened. The family moved out of the trailer when K.M. was seven years old.
Later, the family lived in a house in Menifee, where defendant molested her about once or twice a week, until she turned 12 years old. On certain occasions, K.M. would say good night to her father, and he would come into her bedroom and fondle her. Defendant also had K.M. masturbate him. The incidents also occurred in defendant’s bedroom when K.M.’s mother was at work or out running errands. On these occasions, the bedroom door would be closed and locked.
K.M.’s mother left the family when K.M. was 10, and the incidents increased thereafter. The incidents involved defendant fondling K.M.’s breasts with his hands and mouth, and rubbing her vagina until she experienced an orgasm. Defendant also had K.M. masturbate him with her hand until he ejaculated. On one occasion, defendant put on a condom and touched his penis against her vagina but then walked away without penetrating her. At least 50 incidents of molestation occurred in the house. After K.M. turned 12, she put an end to the molestations.
K.M. did not tell anyone about the molestations until she was 17 and was dating the man she later married. Three months later, she told her mother. However, she did not report the crimes to authorities until six or seven years after the first disclosure because she did not want to have to go through a trial and have her father imprisoned. However, in November of 2006, she contacted the District Attorney’s office because she had small children and was concerned her father was capable of molesting them. She was especially concerned about protecting her half-brother’s daughter because she was at the same age K.M. had been when the molestations began.
After reporting the crimes to the District Attorney’s office, an investigator with that office suggested that K.M. make a recorded telephone call to defendant. In the recorded call, the defendant referred to two incidents in the trailer in which K.M. put on adult sexual videotapes and other occasions in which K.M. had hidden in the bedroom closet watching him in his “private time,” that is, masturbating. However, he acknowledged the incidents began when the family lived in the trailer, explaining that at first “it was an educational thing” that turned out to be something it should never have been.
Defendant also explained in the recorded call that he was concerned that she had seen him masturbating and might not understand, so he made the mistake of telling her that women do the same thing. He did not know if she thought of him as her father or as a male, or if she was attracted, so he told her about masturbation and explained to her how to do it when she asked. Defendant felt K.M. was coming on to him. He then explained that he demonstrated how to masturbate because he thought she was frustrated like he was when he was young; however, she said she could not do it, so he showed her. She then came back and asked him to do it again, and it went “beyond what it should have been,” until he realized he was doing something wrong, but it was too late. Later in the call, defendant admitted he had the “wrong kind of feelings” towards her as a daughter then, but it started out to be “just to get you on track about what sex was about....”
In the telephone call, defendant admitted that K.M. was five or six years old when the incidents started because his sexual relationship with K.M.’s mother was nonexistent. He admitted that since he did not have a sexual outlet, he used his daughter. Regarding the frequency of the acts, he did not recall them occurring weekly as she did, but remembered doing it in cycles, and there was a time when it may have been more than once a week. When K.M. asked why he made her “jack [him] off” if it was for teaching purposes, he stated he did not do it intentionally to hurt her; he thought he was helping her understand what he was doing and she wanted to do that.
After the recorded phone call, defendant was charged with one count of rape of a child under 14 (§ 269, subd. (a)(1)), and seven counts of lewd and lascivious acts with a child under 14. (§ 288, subd. (a).) Defendant was tried by a jury. On the fourth day of trial, the prosecutor made an oral motion to amend count 1, changing it from rape of a child under 14 (§ 269, subd. (a)(1)), to a charge of lewd and lascivious conduct with a child. (§ 288, subd. (a)(1).)
Defendant testified in his own defense and denied any inappropriate touching. He described occasions in which he caught K.M. watching adult television programs (Spice channel), hiding in his closet to watch him masturbate. He discussed masturbation with her and explained how it was done. He attributed the allegations to guilt and shame she felt about things she did behind his back and the fact she had wrong feelings for him. The admissions he made during the recorded phone call were examples of him just going along with her, putting it all on himself, in order to help her get help for her problems.
The jury convicted defendant of all counts. At sentencing, the court denied a defense request for a psychological evaluation because a report is only required if the court is inclined to place a defendant on probation, and the court did not intend to do so. The court imposed the upper term of eight years for count 1, and consecutive terms of one-third the middle term (two years each) for counts 2 through 8, for a total sentence of 22 years in prison. Defendant timely appealed.
DISCUSSION
At his request, this court appointed counsel to represent defendant on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record. Appointed counsel for defendant has pointed to 14 areas in which we should concentrate our review.
First, an action is not barred by the statute of limitations (§ 803, subd. (f)), where (a) the limitation period specified in sections 800, 801, or 801.1, has expired; (b) the crime involved substantial sexual conduct as described in section 1203.066, subdivision (b) (masturbation of either the victim or the offender); and (c) there was independent evidence that corroborated the victim’s allegation. (People v. Superior Court (Maldonado) (2007) 157 Cal.App.4th 694, 700-701, 702.) Here, the defendant admitted committing lewd acts with K.M. on a quasi-weekly basis for an extended period of time in the recorded telephone call. His admissions corroborated the victim’s allegation.
Second, because the statute of limitations is jurisdictional, defendant could raise the issue of whether the action was time barred for the first time on appeal. (People v. Williams (1999) 21 Cal.4th 335, 341.) However, as we have pointed out, the action was not time barred due to application of section 803, subdivision (f).
Third, defendant has forfeited any challenge to the trial court’s failure to instruct the jury on the statute of limitations by failing to request such an instruction. (See People v. Smith (2002) 98 Cal.App.4th 1182, 1193.)
Fourth, because the action was not time barred, counsel’s failure to make such a challenge in the trial court did not constitute ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 692-693, 695, 698.) An attorney is not required to make frivolous objections or motions. (People v. Williams (1995) 33 Cal.App.4th 467, 481.)
Fifth, the trial court has discretion to admit expert testimony on child sexual assault accommodation syndrome where offered to disabuse the jury of commonly held misconceptions regarding the behavior of abuse victims, so long as it is not used to show the abuse actually occurred. (People v. Housley (1992) 6 Cal.App.4th 947, 955-956, 957.) There was no abuse of discretion.
Sixth, the court did not commit prejudicial error by admitting statements made by the victim to her husband and mother under the “fresh complaint” doctrine. Even if we could find the evidence was inadmissible, to succeed on such a claim defendant is required to show that admission of the evidence affected the outcome of the trial. (People v. Watson (1956) 46 Cal.2d 818, 836.) Given the taped telephone call in which he admitted multiple molestations, any error would be harmless.
Seventh, the trial court was not required to give a limiting instruction regarding the manner in which the jury could consider the fresh complaint evidence absent a timely request. (People v. Brown (1994) 8 Cal.4th 746, 757, citing People v. Clark (1987) 193 Cal.App.3d 178, 182-183.)
Eighth, it was not error for the trial court to permit the prosecution to amend the information on the fourth day of trial where section 1009 permits amendments at any stage of the proceedings to conform the accusatory pleading to proof at trial. (People v. Birks (1998) 19 Cal.4th 108, 129.) In any event, defendant was not aggrieved by the amendment, which reduced the charge in count 1 from rape of a child, which mandates an indeterminate sentence of 15 years to life for a conviction, to a charge of lewd and lascivious conduct with a child, which carries a maximum term of eight years in prison. (§ 288, subd. (a).)
Ninth, there was no error in reading the unanimity instruction (CALCRIM No. 3501) to the jury, where unanimity is required. When the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) In any event, defense counsel agreed that the instruction was appropriate, so any error was invited. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49; see also, People v. Ojeda-Parra (1992) 7 Cal.App.4th 46, 51.)
Tenth, the court did not err in failing to instruct the jury, sua sponte, with the last sentence of CALCRIM No. 358, which tells the jury to view a defendant’s admissions with caution. The bracketed cautionary instruction is not required when the defendant’s statements were written or tape-recorded. (People v. Mayfield (1997) 14 Cal.4th 668, 776.) Defendant’s statements were tape recorded so the instruction was not required.
Eleventh, there was sufficient evidence to support the convictions given the testimony of the victim and the defendant’s admissions. Although we must insure the evidence is reasonable, credible and of solid value (People v. Johnson (1980) 26 Cal.3d 557, 578), it is within the exclusive province of the trier of fact to determine the credibility of witnesses. We do not reweigh the evidence, and we will not reverse unless it clearly appears that on no hypothesis whatever is there sufficient substantial evidence to support the verdict. (People v. Upsher (2007) 155 Cal.App.4th 1311, 1322.)
Twelfth, the court did not abuse its discretion denying the defense request for a psychological report to be used to determine whether defendant should be granted probation or receive concurrent sentences. Section 288.1 provides that a person convicted of lewd and lascivious conduct with a child shall not have his or her sentence suspended until the court obtains a psychologist’s report, but it does not entitle the defendant to a report.
Thirteenth, sentence was properly calculated pursuant to section 1170.1.
Fourteenth, the court did not abuse its discretion in imposing the upper term for count 1. The court has broad discretion in the selection of the appropriate term of imprisonment. (§ 1170, subd. (b).) The court did not abuse its discretion by imposing the upper term based on the factors cited, relating to the “appalling conduct of the defendant towards his daughter over a number of years, the threat he poses to society, and to send the strongest possible message to the defendant in particular and the community in general that this type of reprehensible conduct will not be tolerated,...” The criteria set out in the Rules of Court are not exclusive. (Cal. Rules of Court, rule 4.408.)
We have conducted an independent review of the record and find no arguable issues. Defendant was effectively represented by counsel in the trial court as well as on appeal.
DISPOSITION
The judgment is affirmed.
We concur: Richli, Acting P. J., Miller, J.