Opinion
E066861
01-10-2018
THE PEOPLE, Plaintiff and Appellant, v. DERIK COLIN OLIVER, Defendant and Respondent.
Wallin & Klarich and Stephen D. Klarich for Defendant and Respondent. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Steve Oetting and Matthew Mulford, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1401305) OPINION APPEAL from the Superior Court of Riverside County. John M. Monterosso, Judge. Affirmed. Wallin & Klarich and Stephen D. Klarich for Defendant and Respondent. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Steve Oetting and Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant and appellant, Derik Colin Oliver, guilty as charged in nine counts of committing sex offenses against his two minor daughters, C. and R., and found defendant committed counts 1, 4, and 5 against more than one victim. Defendant was sentenced to 11 years plus 75 years to life. In this appeal, defendant challenges his convictions in counts 8 and 9. We affirm the judgment.
In count 8, defendant was convicted of committing a forcible lewd act on C. when she was under age 14. (Pen. Code, § 288, subd. (b).) The jury initially returned two inconsistent verdicts in count 8, one finding defendant guilty as charged and another finding him not guilty of the lesser included offense of violating section 288, subdivision (a) (nonforcible lewd act on child under age 14). The court reread CALCRIM No. 3517 to the jury and sent it back for further deliberations on count 8. The jury then returned a second guilty verdict in count 8 and no verdict on the lesser included offense. Defendant claims the trial court violated section 1161 in sending the jury back for further deliberations, and that the court should have entered a not guilty verdict on count 8 on the ground the initial not guilty verdict on the lesser included offense meant the jury found insufficient support for the charged offense. We reject this claim of error.
All further statutory references are to the Penal Code unless otherwise indicated.
In count 9, defendant was convicted of attempting to induce C. to perform sexual conduct for commercial purposes. (§ 311.4.) C. testified that when she was age 14 or 15, defendant asked her to take photographs of herself "naked" so that he could sell them on an internet Web site. Defendant claims C.'s testimony did not "make it clear" that the photographs would be of her "genitals or pubic or rectal area," as section 311.4 requires. On this basis, defendant claims insufficient evidence supports his conviction in count 9. We reject this claim. C.'s testimony that defendant asked her to take "naked" or "nude" photographs of herself necessarily implied that the photographs would include C.'s pubic area. Thus, substantial evidence supports defendant's conviction in count 9.
II. FACTS AND PROCEDURAL BACKGROUND
The information charged defendant with committing nine sex offenses against his two minor daughters, R. and C., during various periods over a 10-year period between April 2002 and April 2012. In counts 1, 4, 5, 6, 7, and 8, it was alleged that defendant committed the offense against more than one victim within the meaning of the "One Strike" law (the multiple victim allegations.) (§ 667.61, subd. (e)(4).)
Defendant was found guilty as charged in all nine counts: in counts 1, 4, and 5, of committing a nonforcible lewd act on R. when she was under age 14 (§ 288, subd. (a)); in counts 2 and 3, of sexually penetrating R. when she was under age 10 (§ 288.7, subd. (b)); in count 9, of attempting to use C. for a sexual act for commercial purposes when C. was under age 18 (§§ 664, 311.4, subd. (b)); in counts 6 and 7, of committing a nonforcible lewd act on C. when she was under age 14 (§ 288, subd. (a)); and in count 8, of committing a forcible lewd act on C. when she was under age 14 (§ 288, subd. (b)). The jury found the multiple-victim allegations true in counts 1, 4, and 5, the counts involving R., and not true in counts 6, 7, and 8, the counts involving C. Defendant was sentenced to 11 years plus 75 years to life (the indeterminate term consists of five 15-year-to-life terms).
Given that defendant only challenges his convictions in counts 8 and 9, it is unnecessary to describe the evidence concerning his unchallenged convictions and the multiple-victim enhancements. We discuss the evidence supporting count 9 in connection with our analysis of defendant's claim that insufficient evidence supports that conviction. We discuss the circumstances surrounding the jury's guilty verdict in count 8 in connection with our analysis of defendant's claim that the trial court erroneously sent the jury back for further deliberations on count 8.
III. DISCUSSION
A. Substantial Evidence Supports Defendant's Conviction in Count 9
Defendant claims insufficient evidence supports his conviction in count 9 for attempting to violate section 311.4, subdivision (b). In determining whether sufficient evidence supports a conviction, we apply a well-settled standard. "[W]e must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence—that is, evidence that is reasonable, credible, and of solid value—supporting the decision . . . . [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (People v. Jennings (2010) 50 Cal.4th 616, 638-639.)
Section 311.4, subdivision (b), provides: "Every person who, with knowledge that a person is a minor under the age of 18 years, . . . knowingly promotes, employs, uses, persuades, induces, or coerces a minor under the age of 18 years . . . to engage in . . . posing or modeling . . . for purposes of preparing any representation of information, data, or image, including, but not limited to, any . . . photograph . . . that contains or incorporates in any manner, any film, filmstrip, or a live performance involving, sexual conduct by a minor under the age of 18 years . . . for commercial purposes, is guilty of a felony . . . ." (Italics added.) As used in the statute, "sexual conduct" includes, among other things, "exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer . . . ." (§ 311.4, subd. (d)(1), italics added; see People v. Cantrell (1992) 7 Cal.App.4th 523, 539.)
Defendant does not dispute that the jury was properly instructed on the elements of attempting to violate section 311.4, subdivision (b). (CALCRIM Nos. 460 [Attempt] and 1144 [Using a Minor to Perform Prohibited Acts].) --------
C. testified that when she was age 14 or 15 defendant asked her to take "naked" or "nude" photographs of herself so that defendant could sell the photographs on a Web site and make money. One day defendant said to C., "I got a really good idea to make us a lot of money," and he asked C. whether she would take or have taken nude or naked photographs of herself and give them to defendant so he could sell them and they both could make money. Defendant mentioned a Web site that would "take" the photographs, and he gave C. the option of taking the photographs herself, allowing him to take them, or allowing C.'s boyfriend to take them.
Defendant claims C.'s testimony was insufficient to show that he intended the photographs of C. to involve "sexual conduct" as section 311.4, subdivision (d)(1), defines the term. He observes there was no testimony concerning which part of C.'s body was to be "naked" or "nude" in the photographs, and he argues the evidence is insufficient to support his conviction "inasmuch as it was not made clear by the testimony of [C.] that the photographs would be of her 'genitals or pubic or rectal area.'" (§ 311.4, subd. (d)(1).)
We disagree with defendant's limited view of C.'s testimony and what C. implied by her use of the terms "naked" and "nude" in describing the photographs defendant asked her to take or have taken of herself. The term "naked" means "being without clothing," and "nude" means "naked or unclothed, as a person or the body." (Webster's Encyclopedic Unabridged Dict. (2001) pp. 1275, 1329.) There is no reference either in this definition or defendant's statements to some form of partial nudity. Thus, the jury reasonably could have interpreted defendant's use of the terms "nude" or "naked" as meaning he was asking C. to take or have taken completely nude or naked photographs of herself. Completely nude or naked photographs of C. necessarily would have included C.'s genitals or naked pubic area. Concomitantly, the jury could have reasonably inferred that defendant did not intend, by his use of the words "naked' and nude," for the photographs to be limited to C.'s naked breast area or another part of C.'s naked body, and not to include C.'s genitals or naked pubic area. Therefore, we reject defendant's claim that insufficient evidence supports his conviction in count 9. B. The Court Properly Sent the Jury Back for Further Deliberations on Count 8
Defendant claims the court erroneously sent the jury back to "redeliberate" on count 8 after the jury returned a guilty verdict on count 8 and an inconsistent not guilty verdict on the lesser included offense in count 8. There was no error.
1. Relevant Background
Defendant was charged in count 8 with committing a forcible lewd act on C. when she was under age 14. (§ 288, subd. (b).) In addition to being instructed on the charged offense, the jury was instructed on the lesser included offense of committing a nonforcible lewd act in count 8. (§ 288, subd. (a).)
Initially, the jury returned two inconsistent verdicts in count 8: a guilty verdict on the charged offense and a not guilty verdict on the lesser included offense. After conferring with counsel outside the presence of the jury, the trial court proposed to send the jury back to "basically redeliberate" on count 8 because the inconsistent verdict forms did not comply with the court's instructions. CALCRIM No. 3517 instructed the jurors that, if they all agreed defendant was guilty of the greater crime, to complete and sign the verdict form for guilty of that crime, and not to complete or sign any other verdict form for that count. The prosecutor and defense counsel agreed that the court's proposed resolution of the matter was correct.
The court brought the jury back into the courtroom, and told the jurors that the court could not accept the jury's verdict forms in count 8. The court told the jury it was going to "reread the instruction that pertains to how you're to approach your task of evaluating a count that has a greater and a lesser in it and ask you to go back and perhaps reconsider and redeliberate on [count 8]." The court then reinstructed the jury pursuant to CALCRIM No. 3517 and sent the jury back to redeliberate on count 8. The jury returned a verdict of guilty as charged in count 8 and modified its previous "not guilty" verdict form on the lesser included offense in count 8 by crossing out the date and the foreperson's signature and writing "signed in error" on the verdict form.
After the court accepted all of the verdicts, the court and counsel discussed another apparent inconsistency in the verdicts: the jury found true the multiple victim allegations in the counts involving R., counts 1, 4, and 5, but found not true the multiple victim allegations in the counts involving C., counts 6, 7, and 8. The court did not send the jury back to reconsider its multiple victim enhancement findings in counts 1, 4, 5, 6, 7, and 8, even though the court said it thought the jury "made a mistake" in returning these inconsistent enhancement findings. Citing People v. Carbajal (2013) 56 Cal.4th 521 (Carbajal), the court noted it was proper to instruct a jury to clarify a verdict, as the court did in instructing the jury to redeliberate on count 8. But the court said: "What's not proper is to send a jury back when the Court thinks [it] made a mistake." As will appear, the court was correct.
2. Analysis
Defendant claims the court invaded the jury's province and violated section 1161 in sending the jury back to redeliberate on count 8 after the jury initially returned the inconsistent verdicts finding defendant guilty of the charged offense and not guilty of the lesser included offense in count 8. Defendant argues his conviction in count 8 should be reversed, because "once the trial court received the verdict of acquittal [on the lesser included offense], . . . it should have polled the jury to ensure it was their verdict, including [asking the jury if it] intended to acquit [defendant] of the crime charged in count 8, since . . . a not guilty verdict on a lesser included offense is . . . a finding that insufficient evidence supports the greater [offense]." (Italics added.) (See §§ 1147, 1149.) We disagree with defendant's analysis.
Section 1161 provides, in relevant part: "When there is a verdict of conviction, in which it appears to the Court that the jury have mistaken the law, the Court may explain the reason for that opinion and direct the jury to reconsider their verdict, and if, after the reconsideration, they return the same verdict, it must be entered; but when there is a verdict of acquittal, the Court cannot require the jury to reconsider it." In Carbajal, our Supreme Court reviewed the statutory procedures the trial court must follow in receiving a jury verdict (§§ 1147-1164) and observed that these statutes were "intended to reduce the likelihood of a trial court unduly, even if inadvertently, influencing the jury to reach a particular outcome." (Carbajal, supra, 56 Cal.4th at pp. 530-531.)
The Carbajal court recognized, however, that the trial court is permitted to seek a clarification of an ambiguous or unintelligible verdict—such as when the jury returns a verdict finding the defendant guilty and not guilty on the same count—and when the jury finds the defendant guilty of a greater offense but not guilty of a lesser included offense. (Carbajal, supra, 56 Cal.4th at p. 532, citing People v. Caird (1998) 63 Cal.App.4th 578, 589-590 & People v. Davis (1988) 202 Cal.App.3d 1009, 1014.)
The Carbajal court observed: "In these cases, asking the jury to clarify its verdict did not contravene the procedural requirements of the statutory scheme because it was not possible to understand whether the jury had actually convicted or acquitted the defendant of the specified counts. Clarification was necessary to determine whether there was an intelligible verdict at all." (Carbajal, supra, 56 Cal.4th at p. 532.) The state high court elaborated: "[A]part from the limited circumstance specified in section 1161—where 'it appears to the Court that the jury have mistaken the law . . .' in initially rendering 'a verdict of conviction'—a trial court may not decline to accept a jury verdict, or refuse to hear the verdict, simply because it is inconsistent with another verdict rendered by the same jury in the same case." (Id. at pp. 532-533, italics added.)
Here, the court correctly recognized that the jury's initial verdicts in count 8 were unintelligible and that clarification was necessary to determine whether the jury intended to find defendant guilty as charged in count 8 of committing a forcible lewd act on C. (§ 288, subd. (b))—or not guilty as charged, given the jury's inconsistent verdict finding defendant not guilty of the lesser included offense of committing a nonforcible lewd act on C. (§ 288, subd. (a)). The court properly informed the jury that it could not accept its initial verdicts in count 8, reinstructed the jury pursuant to CALCRIM No. 3517, and sent the jury back to redeliberate on count 8. In sum, the court correctly recognized that the jury initially failed to follow the law—namely, the court's initial instructions pursuant to CALCRIM No. 3517—and properly sent the jury back to clarify its verdict on count 8. The court's handling of the matter fully complied with section 1161.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: McKINSTER
Acting P. J. MILLER
J.