Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB059401, Cara D. Hutson, Judge.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Elizabeth A. Hartwig and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, Judge
A jury found defendant and appellant Francisco Morales guilty of two counts of aggravated sexual assault of a child by rape (Pen. Code, §§ 269, subd. (a)(1), 261, subd. (a)(2)) (counts 1 & 4); one count of a lewd act on a child (§ 288, subd. (a)) (count 2); 11 counts of forcible lewd act on a child (§ 288, subd. (b)(1)) (counts 3, 5-14); five counts of attempted lewd act on a child (§§ 288, subd. (a), 664) (counts 16-20); and one count of making a criminal threat (§ 422) (count 21). Defendant was sentenced to a total term of 131 years eight months to life. On appeal, defendant contends: (1) convictions on counts 3, 5-14, and 16-20 violated his constitutional rights because the “generic testimony” presented on each of these counts was insufficient; and (2) there was insufficient evidence to support the jury’s verdict on two of the five counts of attempted lewd act upon a child. We agree with the parties that two of the five counts of attempted lewd conduct on a child must be reversed. We, however, reject defendant’s remaining contentions and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL BACKGROUND
Defendant sexually abused the victim from the time she was 11 years old until his arrest when she was 13 years old. He repeatedly raped her and forcibly fondled her almost on a daily basis. At the time of trial, the victim was 16 years old. Defendant was the victim’s stepfather; however, the victim believed he was her biological father.
In 2004, when the victim was 11 years old, she lived in Montebello with her mother, two younger brothers, and defendant. The family subsequently moved to Yucaipa at the end of 2005 or early 2006 when the victim was almost 13 years old.
The first incident the victim recalled occurred when she was 11 years old while her mother was out grocery shopping. In that incident, defendant asked the victim to go into the shower with him. The victim complied but wore her bathing suit. Defendant took off her bathing suit and told her that he needed to see if she was developing properly. The victim, feeling nervous, wanted to leave, but defendant would not let her go. Defendant began to wash her body with soap, and when he reached her breasts and vagina, he began to rub them. Defendant told the victim not to tell her mother or anyone about the incident.
Following this incident, defendant touched the victim’s breasts and vagina “almost every day” over and under her clothes while her mother was away. Once, defendant placed his penis on her back as she reached for something in the kitchen. When the victim told defendant to stop or if she tried to call her mother, defendant would place his hand over her mouth, pull her hair, or tell her to “‘shut up.’” He continued to tell the victim not to tell her mother or anyone about the molestations.
Defendant’s molestations escalated to rape. The victim did not recall the first time defendant raped her, but she did remember a time in Montebello when she was 11 years old. In that instance, while her mother was out, defendant told the victim to come into his bedroom to pick up some laundry. When the victim went inside the bedroom, defendant pushed her down on the bed and took her clothes off. The victim began to scream. In response, defendant yelled at her, covered her mouth, pulled her hair, and slapped her. He held her down and raped her. He removed his penis from the victim’s vagina as he ejaculated. Defendant warned her not to tell anyone about the incident or he would kill her, her mother, her brothers, and then himself. The victim believed defendant would carry out his threat and was afraid of defendant.
Defendant raped the victim at least five more times while the family lived in Montebello. Some of the rapes and molestations occurred in the victim’s room while her mother was asleep.
In early 2006, after the family moved to Yucaipa, defendant continued to sexually touch the victim almost on a daily basis. At times, defendant would rub his penis on her. Once, defendant called for the victim to bring him a screwdriver while he was fixing the bathroom door. When she brought it to him, defendant grabbed her arm and pulled her to the ground. As she struggled to get away, defendant took off her clothes, began to touch her vagina, and then raped her. He ejaculated as he removed his penis from her vagina.
Defendant also raped the victim on other occasions in Yucaipa.
“Two or three” times “all together, ” defendant tried to make the victim touch his penis, either inside or outside his clothes, by grabbing the victim’s wrist and pulling her hand toward his penis. The victim, however, kept her hand clenched in a fist and pulled away. Whenever the victim tried to scream or tell someone about the molestations, defendant would threaten to kill her, her mother, and her brothers.
On December 5, 2006, the victim was in the kitchen when defendant started to touch her vagina. The victim’s mother heard her scream at him to stop or leave her alone. The victim’s mother came into the kitchen and saw defendant holding the victim inappropriately and asked what was going on. The victim told her mother about the molestations but not the rapes at that time. When the victim’s mother told defendant she was going to call the police, defendant threatened to kill her. The victim’s mother believed defendant would carry out his threat because he had been violent with her in the past and owned a gun. The victim’s mother locked herself and her children in her bedroom until defendant went to work the next day. She took the victim to the police station the following day after defendant went to work.
The victim reported the molestations to the police; they had her make a tape-recorded telephone call to defendant. Defendant did not openly admit the molestations. However, he did admit that he told the victim not to say anything to the police and not to consent to a medical examination because it would ruin the family, he would go to jail for a very long time, and the family would have to move into an apartment.
A medical examination revealed that the victim had injuries to her hymen consistent with repeated, forcible sexual intercourse.
Defendant testified that he had sexual intercourse with the victim once in Montebello when she was 11 or 12 years old, but he claimed it was consensual. He also admitted that he had tried to rape the victim when she was 13 years old to get back at her mother but claimed he had stopped himself. Defendant denied inappropriately touching the victim’s breasts or vagina or threatening her or her mother. He claimed the victim’s hymen injury was a result of when she fell on a screw as a two-year-old.
Defendant was found guilty as charged.
Following the presentation of evidence, the People moved to dismiss count 15 (continuous sexual abuse (§ 288.5, subd. (a)). The motion was granted by the trial court.
II
DISCUSSION
A. Use of “Generic” Testimony
In three related assignments of error, defendant challenges the body of evidence introduced by the prosecution consisting of nonspecific or “generic” testimony of indistinguishable incidents, lacking details regarding the time, place, and circumstances of various alleged assaults. Specifically, he contends that the generic testimony of the victim was insufficient to support his convictions on counts 3, 5 through 14, and 16 through 20. He claims that the jury was therefore precluded from unanimously agreeing on which specific criminal acts he committed, in violation of his right to due process under the Fourteenth Amendment; that the generic testimony violated his right to defend; that the evidence was insufficient as a matter of law; and that he should have been prosecuted as a resident child molester (§ 288.5, subd. (a)) instead.
Similar claims, as recognized by defendant, were carefully considered and rejected by the California Supreme Court in People v. Jones (1990) 51 Cal.3d 294 (Jones), which affirmed four convictions of lewd and lascivious acts on children under the age of 14 based on evidence not particularized as to time or place. For such cases, the court in Jones set forth three requirements to satisfy the above challenges: (1) the victim must describe the kind of act or acts committed with sufficient specificity; (2) the victim must describe the number of acts with sufficient certainty to support the alleged counts; and (3) the victim must be able to describe the general time period in which the acts occurred. (Id. at p. 316.) In this case, each of these requirements were met by the victim’s testimony, coupled with other evidence of where she and defendant lived and when they lived there.
The fulfillment of these three requirements satisfies any due process concern regarding defendant’s right to a unanimous jury: “[E]ven generic testimony describes a repeated series of specific, though indistinguishable, acts of molestation.... The unanimity instruction assists in focusing the jury’s attention on each such act related by the victim and charged by the People. We see no constitutional impediment to allowing a jury, so instructed, to find a defendant guilty of more than one indistinguishable act, providing the three minimum prerequisites heretofore discussed are satisfied.” (Jones, supra, 51 Cal.3d at p. 321.) The Jones court “reject[ed] the contention that jury unanimity is necessarily unattainable where testimony regarding repeated identical offenses is presented in child molestation cases. In such cases, although the jury may not be able to readily distinguish between the various acts, it is certainly capable of unanimously agreeing that they took place in the number and manner described.” (Ibid.)
We note an instruction on unanimity, CALCRIM No. 3501, was given here.
As the Jones court pointed out, in residential child molestation cases such as the one before us, an alibi defense is rarely raised: “Usually, the trial centers on a basic credibility issue-the victim testifies to a long series of molestations and the defendant denies that any wrongful touching occurred.” (Jones, supra, 51 Cal.3d at p. 319.) Nonetheless, if a defendant in such a case presents an alibi defense as to some of the alleged acts, the credibility of the victim as to the entirety of the allegations may be undermined. Furthermore, a defendant may achieve the same objective through cross-examination of the victim, as he did in this case, and supporting witnesses, and through the presentation of his own witnesses, expert and otherwise, with a view to undermining the victim’s credibility. (Id. at pp. 319-320.) It cannot be said on this record that defendant was denied an opportunity to defend himself.
Defendant argues the majority decision in Jones, supra, 51 Cal.3d 294, is incorrect, and that the more reasoned approach was provided by the dissent. But as an intermediate court of review, we are bound by the majority decision of the Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Any reconsideration of the decision must come from the high court itself.
B. Sufficiency of the Evidence of Attempted Lewd Conduct
Defendant next contends, and the People concede, that there was insufficient evidence to support two of the five counts of attempted lewd conduct on a child because the victim described at most three attempts while the family lived in Yucaipa. We agree.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, evidence that 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. Rodriguez (1999) 20 Cal.4th 1, 11; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [99 S.Ct. 2781, 61 L.Ed.2d 560].) “In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.)
In the present matter, the amended information charged defendant with five counts of attempted lewd conduct on a child under 14 years old. (§§ 288, subd. (a), 664.) All the incidents were alleged to have occurred on March 1, 2006 through December 5, 2006 (while the family lived in Yucaipa). The victim informed a social worker that defendant had tried to make her touch his penis about four times. At trial, the victim testified that defendant had attempted to make her touch his penis about two or three times while they lived in Montebello and Yucaipa. When asked if the two or three times were in Yucaipa alone, the victim replied, “It was two or three all together.” During closing argument, the prosecutor argued that the attempt counts concerned defendant’s attempt to make the victim touch his penis. The prosecutor also noted that the attempt incidents all occurred in Yucaipa when the victim was 13 years old.
Based on the foregoing, we agree with the parties that the evidence would support only three counts of attempted lewd conduct on a child under 14 years old. Accordingly, defendant’s conviction for two of the five attempt counts should be reversed.
III
DISPOSITION
Defendant’s conviction for two of the five counts of attempted lewd conduct on a child under 14 years old (§§ 288, subd. (a), 664) are reversed. The matter is remanded to the superior court to conduct a new sentencing hearing in light of the reversal on two of the five counts of attempted lewd acts. Following the new sentencing hearing, the superior court clerk is directed to prepare an amended abstract of judgment and forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: RAMIREZ P. J., HOLLENHORST J.