Opinion
F039523.
7-25-2003
THE PEOPLE, Plaintiff and Respondent, v. BRIAN GLEN BERNA, Defendant and Appellant.
Rudy Kraft for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Jeffrey D. Firestone and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
PROCEDURAL HISTORY
By an amended information, filed on October 29, 2001, in the Kings Superior Court, appellant Brian Glen Berna, was charged with five felony counts involving sexual offenses perpetrated against his nine-year-old niece. Count I charged appellant with sodomy, in violation of Penal Code section 286, subdivision (c)(1); count II charged appellant with lewd and lascivious acts upon a child under 14 years of age, in violation of section 288, subdivision (a); counts III and IV charged appellant with separate acts of oral copulation, in violation of section 288a, subdivision (c)(1); count V charged appellant with sexual penetration, in violation of section 289, subdivision (j).
Appellant waived a preliminary hearing. The amended information was filed on the first day of trial. Appellant entered a plea of not guilty to all charges and denied the appended allegations.
All further references are to the Penal Code unless otherwise indicated.
On October 31, 2001, after a three-day trial, the jury returned their verdicts finding appellant guilty on all counts. On December 3, 2001, appellant was sentenced to an aggregate term of 16 years imprisonment. Count I was designated as the principal term, for which the aggravated term of eight years imprisonment was imposed. On counts II through V, the court imposed one-third the midterm, or two years each, ordered to run consecutively to the principal term. Appellant was also ordered to provide samples for DNA archiving under section 296, subdivision (a)(1) and was ordered to register under section 290 upon his release from custody. In addition to various fines and restitution orders, the court also imposed a $ 300 fine under section 290.3. This timely appeal followed.
STATEMENT OF FACTS
C.N., the victim, is appellants nine-year-old niece. Appellants wife, Carmen, is the sister of C.N.s father. Robert N. is divorced from C.N.s mother, Roseanna G., and has custody of C.N. and her brother B.N. the first and third weekend of every month.
Beginning in October or November of 2000, when C.N. stayed with her father, she would usually spend at least one night staying with appellant, his wife and her two children, K.B. and K.B. As indicated, Robert N. had custody of C.N. on the first and third weekends of the month. In February and March of 2001, those weekends fell on the 2d and 3rd and 16th and 17th of each of those two respective months. C.N. last spent the night at appellants house on Saturday, March 17, 2001, the day before appellants arrest on the current charges.
C.N. testified that the first time she felt uncomfortable being over at appellants was one night in February of 2001. She believed it was the Presidents holiday weekend, which would have been the weekend of February 16, 2001. (See Gov. Code, § 6700, subd. (e).) C.N. was in appellants living room, watching television. Her cousins, K.B., K.B., and K.S. were on the floor, either asleep or also watching television. Appellant, who was 38 years old at the time, began rubbing or massaging C.N.s back for about two minutes. Approximately two television programs later, appellant touched her again. This time appellant rubbed C.N. near the area where the zipper on a pair of pants would be. C.N., who was wearing a pair of pull on shorts and a T-shirt, said it felt like when appellant had massaged her back, but made her feel uncomfortable. C.N. could not remember whether she had said anything to appellant about what he was doing.
Who is the daughter of Robert N.s sister Sally C.
During the course of trial the parties stipulated that appellant was 39 years of age, born on August 6, 1962.
Two weekends later appellant again touched her in a way that made her uncomfortable. C.N. and appellant were once again in the living room watching television. C.N. was on the floor, her cousins were in the living room too. C.N. believed her aunt might have also been in the room, sitting in the chair. Appellant once again massaged the area by her zipper. However, this time appellant also used his hand underneath her shorts, touching her "coochy-coo." Appellant massaged outside of her shorts for "half of a TV commercial." Appellant then put his hand down through the waistband of her shorts. C.N. said that when he touched her "coochy-coo" it "tickled." C.N. did not know whether appellant was using all of his fingers or just a couple. This lasted a "TV commercial long." C.N. could not remember if anyone else, besides her and appellant, were awake at that time. Later during her questioning, the prosecutor asked C.N.: "You told me one time he stuck his fingers in your coochy-coo; is that true?" C.N. replied: "Yes." She thought there may have been other times, "but Im not for sure."
The term C.N. used to define "where you go pee when you go to the bathroom."
After this, C.N. was hesitant to go back and spend the night with appellant, "because I didnt know if I was going to get hurt again," and she was a little scared. However, she did go spend the night again with appellant and his family. This third time, appellant "stuck his private in [her] butt." C.N. believes it "hurt a little," and it seemed it only lasted a "short time." C.N. said his private was in the same place where her "coochy-coo" would be, which on her brother she had overheard her mother call a "wee wee." She had never heard it referred to as penis, other than in movies, "Austin Powers" in particular. This incident occurred when she and appellant were in the living room, half of her cousins were asleep, and the others were in the den, which is separated from the living room by a four-foot hallway, playing Nintendo. Just before appellant sodomized her, appellants wife got up and went to bed.
After refreshing her recollection from the police report, C.N. remembered appellant saying he did not want his kids to grow up without a father and he did not want to go to jail. She believed he said this during the time he was sodomizing her. Appellant had C.N. "rub his private part," over his "boxers." Appellant also told C.N. to put his "wee wee in my mouth," which she did, but only for 10 or 15 seconds because she knew it was wrong. C.N. admitted she did not tell anyone about what appellant had done, in part, because she did not want her cousins to grow up without their father.
Reviewing the report prepared by District Attorney Investigator Keith Prewitt further refreshed C.N.s recollection. After reviewing the report of his March 28, 2001, interview with C.N., C.N. remembered appellant had referred to his "wee wee" as his "big dick," and that appellant had also "stuck his wee wee in my — right here," pointing to her "coochy-coo." This occurred after he had sodomized her the first time. She also remembered a second time when appellant sodomized her. C.N. had gotten up to go to the bathroom, when she came out appellant was in the hallway and he turned the lights off. Appellant pulled her shorts down in back and she felt his "private part" on her bare skin, when appellant penetrated her "it hurt." Appellant stopped when he saw her brother coming down the hallway to go to the bathroom.
On one of the weekends C.N. accompanied appellant to Blockbuster, in appellants black El Camino, appellant called his car a "Mexican something." C.N. said appellant bought the movie "Bowfinger" and rented the "Nutty Professor" and "Road to El Dorado." On the way home, appellant touched her "coochy-coo" again, like a "massage touch," over the top of her shorts. The touching lasted for two TV commercials. On the weekend of March 16, 2001, appellant picked up C.N. and her brother and drove them over to his house. Appellant again rubbed her vaginal area through her pants. C.N.s brother was sitting in the front seat next to her, K.B., appellants stepson, was riding "where you put your tools and stuff in [the] back." Appellant pulled C.N.s jacket from atop her overnight bag and put it over her lap and his lap, and then rubbed her vaginal area, and called it "a pussy." This lasted "a couple [of] minutes." C.N. told him it tickled, appellant said "sorry" and stopped touching her. Later that night appellant told her "we had to stop" doing this. C.N. thought this was around the second week of March. C.N. testified that the night he said "we had to stop" appellant licked her "right there," referring to her vagina. C.N. said appellant put her head down on the pillow with her "butt up in the air." Appellant moved her underwear aside and she felt his tongue on her bare skin, it lasted for about a half a minute.
Brian Savage, a manager for Blockbuster Video, testified to the records of appellants wifes account history with Blockbuster. Ms. Bernas account history did not show that these videos were either purchased or rented during the period at issue. As part of the district attorneys offices investigation they had requested Mr. Savage provide them with appellants Blockbuster account history. Mr. Savage could find no account in appellants name, but there was an account in Ms. Bernas name. There may be other persons who are authorized to use a members account. Mr. Savage could not say, from examining Ms. Bernas account history, whether or not there may have existed another account under which an authorized users transaction could have been recorded. Mr. Savage indicated that persons could purchase a video without a Blockbuster account, but could not rent videos without an account. All transactions conducted are recorded in the computer system of Blockbuster and are generally attached to a particular members account. However, if a purchase of a video were made without an account the transaction would not be connected with a particular account. Appellants wife testified that to her knowledge appellant did not purchase or rent these videos during February or mid-March of 2001.
B.N., C.N.s brother, testified he had ridden in appellants car with appellant, C.N., and his cousin K.B. on only one occasion in 2001. B.N. said he and K.B. both sat behind the seat of the El Camino.
Georgeanne Greene, a registered nurse at Hanford Medical Center, who is also the "unit director for sexual assault exams for Kings County," testified as to her examination of C.N.. Ms. Greene, who has been a sexual assault examiner for five years, performs all of the child sexual assault examinations in Kings County, and most of Tulare County as well. She performs approximately 10 to 12 such examinations a month.
Ms. Greene examined C.N. on March 19, 2001, at Hanford Medical Center. As part of her examination of C.N., Ms. Greene initially interviewed her to ascertain what type, or types, of alleged sexual assault occurred. In conducting interviews with children Ms. Greene will ascertain what words the child uses to describe pertinent portions of their anatomy, and those of the opposite gender as well. This avoids confusion by allowing her to use the same terminology as the PAGE CONTAINED FOOTNOTES child when conducting her examination.
Appellant objected to Ms. Greene testifying as to the statements made by C.N. during the examination. Appellants objection was overruled, but the trial court did admonish the jury that C.N.s statements may or may not be true and her statements were being admitted only to explain the actions taken by Ms. Greene during her examination.
Ms. Greene used a colposcope, a device similar to a microscope, with a magnification power of 15, which displays images onto a video monitor. The images can be captured on 35-mm film to document her findings. Using the colposcope, Ms. Greene examined and took photographs of C.N.s genital and anal area. Her examination discovered a scar that ran from the base of the vaginal opening down toward her anus. Ms. Greene could not determine the age of this scar. C.N.s hymen was "extremely aberrant." When asked to explain what this meant, Mr. Greene testified: "It usually in-when a child is in knee-chest, when a females in knee-chest and theres-where I dont find any findings of sexual assault, the-the hymen has a very linear even line to it and it just goes over in a crescent shape, kind of an oval shape and comes back down." A third of C.N.s hymen was "scarred and torn all the way to the muscular edge where it inserts onto the wall of the vagina." Again, Ms. Greene could not make a determination as to the age of this injury. Ms. Greene, using one of the photographs she had taken with the colposcope, marked the location of the injury to C.N.s hymen. Ms. Greene also drew a diagram depicting a vagina and normal hymen, atop the normal hymen Ms. Greene drew what she had seen from her examination of C.N.s hymen. She also marked on the diagram the location of the scar that ran from C.N.s vaginal opening toward C.N.s anus.
Ms. Greene also performed a rectal examination of C.N., again using the colposcope. Ms. Greene noted there was a healed fissure, or "little tear" on the edge of C.N.s anus. Similar fissures or tears can be found on children who have not been sexually abused. Generally, these tears or fissures are the result of chronic constipation. However, the location of the tear or fissure on C.N.s anus was not in the location "where you would see a scar from constipation." In Ms. Greenes opinion the fissure or tear on C.N.s anus was not caused by chronic constipation, but was consistent with C.N.s report of being sodomized. The injury to C.N.s hymen was also consistent with C.N.s described sexual abuse.
Michelle N., the 24-year-old niece of appellant, testified to an incident between her and appellant which occurred in 1986, when she was nine years old. Michelle N. testified that she used to live in a house on 10th Avenue in Hanford, which was behind appellants house on First Place. The houses shared a common backyard fence. She used to go over to appellants house and play with her "little cousin," Joe C. One evening, during the summer of 1986, Michelle went inside appellants residence after playing outside with her cousin and her brother. Appellant told Michelle his wife had just left to go to the store down the street, saying she would be right back. Michelle sat down on the couch in the living room. Appellant was also sitting on the couch watching television. Appellant tried to touch her thigh, Michelle moved over and away from appellant. Appellant waited about a minute and then attempted to touch Michelles breasts, Michelle shoved his hand away. Appellant grabbed onto her hand and said "it would be good" for her as he tried to put her hand down onto his crotch. Michelle jerked her hand away, got up from the couch, went back outside, and ran home. Michelle did not tell anyone about this incident until a year later, after someone had come to her school and talked about sexual molestation. She told her teacher that something like that had happened to her one time. The Hanford police were contacted and a report of the incident was made.
Michelles father, Michael, is the brother of C.N.s father and appellants wife.
Michelle N. believed it was during the summer, but was "not really sure." Appellants wife testified they did not move into the First Place residence until October of 1986.
Appellant called Keith Prewitt, the district attorneys investigator, as a witness. Mr. Prewitt had two interviews with C.N., and approximately five conversations with her, including the two interviews. The lengthiest was his interview with C.N. on March 28, 2001. When he conducted the interview, Fanny Williams of the Kings Community Action Organization, was present as a victims advocate. The main purpose of this interview was to establish a chronology of the incidents reported by C.N. to the police on March 18, 2001.
Mr. Prewitt attempted to interview her again around April 10, 2001, but C.N. refused because Ms. Williams was unavailable to be present during the interview. Ms. Williams was also present during C.N.s testimony, as the victims designated support person. (§ 868.5.)
Mr. Prewitt began with the first time and the last time, to establish the beginning and end of the reported incidents. C.N. told him that something happened "five times." However, during the interview C.N. did not say that any offensive touching had occurred the last time, where the appellant said "weve got to stop." Similarly, she did not describe an offensive touching occurring on the first time either. According to Mr. Prewitt, C.N. told him that an offensive touching had only occurred three times. Mr. Prewitt described C.N. as appearing frightened, "very intimidated by the fact that she had to come in and discuss these issues," during the interview on March 28, 2001. Her demeanor was similar when he attempted to interview her again on April 10, 2001.
Appellant called C.N.s mother, Roseanna G., as a witness. Ms. G. lived in Hanford in February and March of 2001, with her daughters, C.N., C., and her son B.N. In mid-March of 2001, C.N. told her about what appellant had done. It was not a spontaneous announcement, but came while she and C.N. were having a conversation about "our parents, moms, dads." After learning of what had occurred Ms. G. telephoned C.N.s father to tell him what she had just learned. While she was speaking with Robert, C.N. was saying in the background: "Im sorry. Im sorry." When Robert asked Ms. G. what she was sorry about Ms. G. asked, and C.N. said she was sorry "for not telling you. I lied to you." Ms. G. explained: "she was sorry for not telling me. She was sorry for not telling me this was going on for about two months. She was sorry for holding this against me because me and my daughter are very close. She felt like she lied. She felt like she was guilty. She felt like she was wrong." C.N. testified she was saying she was sorry because she had lied to her mother twice when her mother had asked her if someone had touched her.
Sally C., the sister of C.N.s father and of appellants wife, testified to her telephone conversation with Robert N. Ms. C. testified that during this telephone conversation Robert said he had overheard C.N. saying "No, he didnt, dad. No, he didnt. No, he didnt." Ms. C. was permitted to testify as to C.N.s reputation, within the family, for truthfulness. "Its been known that she has lied to people about certain things or certain accusations."
This was a telephone conversation between the witness, Ms. G. and Robert N., where Robert N. was discussing the telephone call he received from Ms. G. right after C.N. first reported what appellant had done. According to Ms. C. this conversation occurred "a few months down the line. There was a little bit of time to where we didnt talk."
Robert N. denied ever having a telephone conversation with Ms. C. or appellants wife where he ever discussed the telephone call with Ms. G., or what he had overheard C.N. saying in the background.
Appellants wife testified that on the Presidents day weekend in February of 2001, they had a "big family fish fry," where the families gathered together at her and appellants house. The adults played cards and the children watched television, or played video games in the living room. The adults usually get together every weekend, but due to various child custody arrangements, all of the children were usually only there every other weekend. On Saturday, C.N., B.N., K.B., K.S. and K.B. (appellants daughter) slept over. Her daughter, K.B., went home with Ms. Bernas sister, Ms. C. The children slept in the den, on "pallets" made of blankets. Ms. Berna testified that that evening appellant went to bed before she did. The children were already asleep, except for K.S., who was still awake at 11:00 p.m. watching television. Ms. Berna told K.S. she needed to go to sleep. PAGE CONTAINED FOOTNOTES Appellant, who was lying on the sofa, got up, and went to bed. Ms. Berna sat at the kitchen table for about 20 or 30 minutes, after taking some aspirin for her back pain. Ms. Berna testified that from her kitchen table you can watch the television in the den and also watch the children playing in the living room. After sitting at the kitchen table she got up and laid down on the love seat in the living room. At approximately 5:30 a.m. she got up from the love seat and laid on the recliner in the den. Ms. Berna testified she did not sleep much that night: "The majority of the night tossing and turning, getting up." Between the time she was sitting at the kitchen table and 5:30 a.m. the next morning she did not see appellant.
Ms. C. also testified she took K.B. home with her that evening.
K.S. testified that she, C.N., B.N., K.B., K.B., and K.B., slept in the living room on blankets on the floor. She and K.B. went to sleep around 11:00 p.m. Before she went to sleep she saw that C.N. was asleep by the sliding glass window. Appellant was on the couch and had been watching television with them, but was asleep just before K.S. went to sleep. K.S. did not wake up until around 5:30 a.m. the next morning.
Two weekends later, the children did not come over, nor did they sleep over at appellants house. That weekend the family got together at her mothers house for her mothers 65th birthday.
On Friday, March 16, 2001, Ms. Bernas stepdaughter came over, as it was her 17th birthday. C.N., B.N., and their father came over as well. Appellant was not at home as he was in school. Ms. Berna, her stepdaughter, and Robert N. and his children went over to their mothers and fathers for a barbecue. That night C.N. asked to spend the night at appellants house, which she did. They returned from her mothers house around 9:00 p.m. Ms. Berna made up "pallets" for C.N., K.B., and K.B. in the den. The children went to sleep around 10:00 p.m. Appellant went to bed, Ms. Berna stayed up to prepare for K.B.s first BMX race the following morning. Ms. Berna went to bed a little before midnight. When she got to bed, appellant was in bed "very asleep." Ms. Berna, who awoke a little before 3:00 a.m. due to appellants snoring, got up and went into the living room, laid down on the love seat and watched television. From her location in the living room she could see the children were still asleep in the same place in the den. She did not see appellant in that area of the house while she was up watching television.
Ms. Berna later testified, during cross-examination, that while C.N. was over on many occasions to play with her cousins, she only spent one night over at their house between January through the end of March 2001. Ms. Berna admitted she had not physically been present to observe C.N. all of the time she was at her residence. Ms. Berna could only initially recall one occasion when C.N. ever rode in appellants El Camino. Appellant brought C.N., her brother, and K.B. home, after helping Robert N. set up his DVD player. On that occasion she watched as B.N. got out from behind the seat, saying "yeah, a Mexican king cab." Ms. Berna also remembered that on March 16, 2001, appellant drove K.B. and C.N. home from her mothers house.
Ms. Berna testified that she purchases all of the clothing and does all of the laundry for her family and that appellant has no boxers shorts. Appellant, however, does "normally sleeps in his underwear with a pair of shorts on." Ms. Berna described these shorts as "those long [gym] shorts like navy, you know, basketball shorts."
DISCUSSION
I.
SUFFICIENCY OF EVIDENCE TO SUPPORT CONVICTIONS
Appellant contends the evidence presented at trial was insufficient to support the jurys verdicts. First and specifically appellant challenges the sufficiency of the evidence to support his conviction in count V for violating section 289, subdivision (j), sexual penetration "... with another person who is under 14 years of age and who is more than 10 years younger than he or she ...." (§ 289, subd. (j).) Appellant contends there was no evidence of "digital penetration." Respondent contends, the reasonable inferences to be drawn from C.N.s testimony permitted the jury to find appellant had in fact digitally penetrated the victims vaginal opening.
Appellant further challenges the sufficiency of the evidence to support "most, if not all, [of] appellants convictions."
Respondent contends that each conviction was supported by substantial evidence.
Standard of Review
We review appellants claims, which challenges the sufficiency of the evidence, by examining the record in the light most favorable to the judgment. We may not reverse a judgment simply because we believe the jury or fact finder could have also reasonably have found the facts or circumstances warranted an acquittal. Reversal is only required when the reviewing court concludes, after reviewing the evidence, that no rational fact finder could find the existence of each and every element necessary to convict. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054; People v. Miranda (1987) 44 Cal.3d 57, 86, 241 Cal. Rptr. 594, 744 P.2d 1127, disapproved on another point in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4, 269 Cal. Rptr. 269, 790 P.2d 676; People v. Bolin (1998) 18 Cal.4th 297, 331, 956 P.2d 374 [reversal required only where under no hypothesis whatsoever is there sufficient substantial evidence to support the conviction].) We must uphold the verdict as long as it is supported by substantial evidence, which must be of credible and solid value. (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal. Rptr. 431, 606 P.2d 738.) "In California conviction of a sex crime may be sustained upon the uncorroborated testimony of the prosecutrix." (People v. Poggi (1988) 45 Cal.3d 306, 326, 246 Cal. Rptr. 886, 753 P.2d 1082; see also People v. Gammage (1992) 2 Cal.4th 693, 702, 828 P.2d 682 [affirming the propriety of using CALJIC Nos. 2.27 (sufficiency of testimony of one witness) and 10.60 (sexual crimes - corroboration not necessary) in sex offense cases]; Evid. Code, § 411.)
Both of which were given in appellants case.
With this standard of review in mind, we examine the evidence as to each specific count for which appellant was convicted. As indicated appellant specifically challenges his conviction on count V, arguing there was no evidence of any penetration of the victims vagina. Appellant generically challenges his convictions on the remaining counts by asserting that C.N.s testimony was:
"Inconsistent with what she previously told the district attorneys investigator. The events she described could not possibly have occurred in the time frame she described. Even if the jury could reasonably believe that [C.N.] was molested, her confused time line, the impossibility or unlikelihood of the events she described, and the inconsistency with the medical evidence, renders it impossible for a jury to believe, beyond a reasonable doubt, that appellant committed any of the specific offenses. Therefore, this court must reverse some or all of the convictions based upon the insufficient evidence."
Count I
Appellant, referring to Ms. Greenes examination of C.N. on March 19, 2001, which according to appellant was no more than three days after C.N. said appellant had put his "penis in her butt," "suggests that it is incredible to believe that the injury that would have been inflicted by a grown man sticking his penis in a little girls rear end would be completely healed even 17 days after the incident."
"(a) Sodomy is sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy. [P]...[P]
"(c)(1) Any person who participates in an act of sodomy with another person who is under 14 years of age and more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years." (§ 286, subds. (a), (c)(1).)
C.N. testified that on two separate occasions appellant inserted his penis into her anus. Additionally, Ms. Greene testified that the healed fissure or tear present on C.N.s anus was consistent with C.N.s account of appellants conduct. Indeed, even the "lack of trauma to a victims rectum does not preclude a finding that the victim was sodomized." (People v. Farnam (2002) 28 Cal.4th 107, 144.)
"It is blackletter law that any conflict or contradiction in the evidence, or any inconsistency in the testimony of witnesses must be resolved by the trier of fact who is the sole judge of the credibility of the witnesses. It is well settled in California that one witness, if believed by the jury, is sufficient to sustain a verdict. To warrant the rejection by a reviewing court of statements given by a witness who has been believed by the trial court or the jury, there must exist either a physical impossibility that they are true, or it must be such as to shock the moral sense of the court; it must be inherently improbable and such inherent improbability must plainly appear. [Citations.] It also is true that uncertainties or discrepancies in witnesses testimony raise only evidentiary issues that are for the jury to resolve. [Citation.]" (People v. Watts (1999) 76 Cal.App.4th 1250, 1258-1259.)
Here the jury concluded appellant had in fact caused the penetration of C.N.s anus with his penis. We cannot say their conclusion was not based upon substantial evidence.
Count II
Section 288, subdivision (a) states:
"Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years."
To constitute a violation of this statute the prosecution must establish that: "any touching of an underage child [was] accomplished with the intent of arousing the sexual desires of either the perpetrator or the child." (People v. Martinez (1995) 11 Cal.4th 434, 452, 903 P.2d 1037.)
Several incidents C.N. testified to could support appellants conviction on this count. Initially, C.N. testified to the "first time" where appellant massaged her "coochy-coo" over her shorts; C.N. also testified to two occasions where appellant engaged in the same type of conduct while C.N. was sitting beside him in appellants El Camino; C.N. further testified that after appellant had sodomized her he had her "rub his private part" from outside his boxers. Each one of these incidents, standing alone, could have been sufficient for the jury to convict appellant on this count. However, the prosecution elected only two of these incidents, which were specifically identified on the count II verdict form as :
"1. Defendants rubbing of victims vagina in car;
"2. Victims touching of defendants penis."
The prosecutor elected to use these incidents, to avoid any jury confusion with the other counts, all of which involved a touching which could have also supported a conviction on this count.
The jury, in finding appellant guilty, selected the second identified touching as the act they unanimously agreed appellant had committed. C.N.s testimony that she touched appellants penis through his boxers was sufficient evidence to support a finding that the prohibited touching had occurred. (People v. Gaglione (1994) 26 Cal.App.4th 1291, 1300, disapproved on other grounds in People v. Martinez, supra, 11 Cal.4th at p. 452.) Further, it is clear from the evidence and circumstances attending this touching that appellant had the specific intent required to support his conviction on this count. (People v. Martinez, supra, at p. 452.)
Counts III and IV
Section 288a provides in pertinent part:
"(a) Oral copulation is the act of copulating the mouth of one person with the sexual organ or anus of another person. [P] ...
"(c)(1) Any person who participates in an act of oral copulation with another person who is under 14 years of age and more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years."
C.N.s testimony supported the jurys findings of both counts. C.N.s testimony that appellant "licked me right there," referring to her "coochy-coo" was sufficient to support appellants conviction for one count of oral copulation. (People v. Catelli (1991) 227 Cal. App. 3d 1434, 1450-1451, fn. 7, 278 Cal. Rptr. 452; People v. Wilson (1971) 20 Cal. App. 3d 507, 510, 97 Cal. Rptr. 774.) Similarly, C.N.s testimony that appellant had her "put his wee wee in my mouth," even if for only 10 or 15 seconds, was sufficient to support appellants separate conviction for oral copulation. "Any contact, however slight, between the mouth of one person and the sexual organ or anus of another person constitutes `oral copulation. Penetration of the mouth, sexual organ or anus is not required." (CALJIC No. 10.46 (7th ed. 2003); see People v. Grim (1992) 9 Cal.App.4th 1240, 1241-1243 [discussing correctness of former CALJIC No. 10.10 (1989 rev.) (5th ed. 1988)].)
Count V
Section 289, subdivisions (j) and (k) provide as follows:
"(j) Any person who participates in an act of sexual penetration with another person who is under 14 years of age and who is more than 10 years younger then he or she shall be punished by imprisonment in the state prison for three, six, or eight years.
"(k) As used in this section:
"(1) `Sexual penetration is the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendants or another persons genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object.
"(2) `Foreign object, substance, instrument, or device shall include any part of the body, except a sexual organ.
"(3) `Unknown object shall include any foreign object, substance, instrument, or device, or any part of the body, including a penis, when it is not known whether penetration was by a penis or by a foreign object, substance, instrument, or device, or by any other part of the body."
In contrast to appellants generic attack on the sufficiency of the evidence as to his convictions on counts I through IV, appellant mounts a focused attack upon the evidence presented to support his conviction on count V. Appellant contends there was no evidence from which the jury could find this offense had been committed.
"Although [C.N.] testified that appellant touched her `coochy-coo on several occasions, she never described an incident during which appellant put his fingers inside her."
Appellant points out that C.N. herself never testified appellants finger or fingers ever caused any penetration. Appellant does admit that C.N. did answer affirmatively a question posed by the prosecutor:
"[Ms. Ferguson]: You told me one time he stuck his fingers in your coochy-coo; is that true?
"[C.N.]: Yes.
"[Ms. Ferguson]: Was there any other times that he did that, sticking his finger or fingers in your coochy-coo?
"[C.N.]: I think, but Im not for sure."
Appellant contends this was not in fact correct, as C.N. had never presented any such testimony before the jury. "However, this testimony was false. She had not, in fact, said any such thing. It is hard to see how false testimony that she had previously said something she didnt say during the course of her testimony could constitute proof beyond a reasonable doubt that something had actually happened."
Respondent, apparently in an effort to escape the potential repercussions of appellants argument, engages in a female anatomy lecture, the specifics of which were never presented to appellants jury, discussing the various anatomical parts which make up the whole of C.N.s "coochy-coo." Respondent then proceeds to explain that C.N.s response that it "tickled" when appellant touched her meant he had in fact touched her clitoris, which required, at a minimum, the penetration of C.N.s labia majora.
We need not accept respondents argument, for we find the error, if any, pertaining to the form of the question, does not result in a miscarriage of justice. (Evid. Code, § 353.)
Appellants counsel did not object to the prosecutors question. (People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1734-1735 [failure to object waives issue on appeal].) Specifically, appellant did not object claiming that the prosecutors question misstated C.N.s testimony. Had he done so, the objection would have been sustained and C.N.s answer stricken, the prosecutor would then have been alerted and able to elicit the more specific testimony from C.N. evidencing appellants digital penetration.
As can be seen from the immediately following question and C.N.s response, appellant did in fact cause the penetration of her vagina, on at least the one occasion. As C.N. indicated there may have been other times appellant "[stuck] his finger or fingers" in her vagina. This is not to be confused with the other times appellant touched her, as she clearly and unequivocally testified that that had occurred on numerous times. The reasonable inference to be drawn from this testimony is that on at least one occasion appellant did in fact cause the penetration, however slight, of the victims vagina. In order to reverse appellants conviction on this count, we must find that a miscarriage of justice has occurred due to the erroneous admission of the now complained of evidence. However, after reviewing the record, we cannot say it is reasonably probable a more favorable result would have been obtained in the absence of the complained of alleged error. (People v. Rains (1999) 75 Cal.App.4th 1165, 1170.)
II.
THE PENAL CODE SECTION 290.3 FINE
Appellant contends the trial court improperly imposed a fine in the amount of $ 300 under section 290.3. Respondent concedes that the court incorrectly imposed this fine, as appellant had not suffered a prior qualifying conviction to justify a fine in this amount. Respondent concedes this court must therefore reduce the fine to $ 200. Appellant also contends the penalty assessment of $ 510, imposed in conjunction with the $ 300 fine, must also be reduced to $ 340.
Appellant is correct in both respects. Under section 290.3 the court may only impose a $ 300 fine upon a subsequent conviction for a qualifying offense listed in section 290, subdivision (a). Appellant does not have a qualifying prior conviction, and the court was limited to imposing the $ 200 fine under section 290.3. The penalty assessment was imposed under section 1464, which calls for a $ 10 penalty assessment for every $ 10 of fine imposed. Government Code section 76000, subdivisions (a) and (e), calls for an additional $ 7 penalty assessment for every $ 10 of fine imposed. Therefore, the penalty assessment imposed upon appellant must also be reduced to, in accordance with the reduced fine amount, to $ 340. (See People v. McHenry (2000) 77 Cal.App.4th 730, 732-734 [penalty assessments do not apply to restitution fines].)
DISPOSITION
The fine imposed pursuant to Penal Code section 290.3 is reduced to $ 200 and the penalty assessment thereon is reduced to $ 340. In all other respects, the judgment is affirmed.
We concur: VARTABEDIAN, Acting P. J., CORNELL, J.