Opinion
D074198
09-28-2018
THE PEOPLE, Plaintiff and Respondent, v. ERIK DEAN BOETTCHER, Defendant and Appellant.
Ron Boyer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez, and Eric Swenson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1400642) APPEAL from a judgment of the Superior Court of Riverside County, Mark E. Johnson, Judge. Affirmed. Ron Boyer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez, and Eric Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Erik Dean Boettcher of nine counts of committing a lewd and lascivious act with a child under the age of 14 years (Pen. Code, § 288, subdivision (a)) (counts 1-9) and one count of furnishing a controlled substance (methamphetamine) to a minor (Health & Saf. Code, § 11353) (count 10). The jury found that in the commission of count 1, Boettcher personally inflicted bodily harm on the victim within the meaning of section 667.61, subdivision (d)(7), and that in the commission of count 9, Boettcher engaged in the tying and binding of a person within the meaning of section 667.61, subdivision (e)(5). The jury also found that Boettcher's commission of count 10 involved a minor who was at least four years younger than Boettcher within the meaning of Health and Safety Code section 11353.1, subdivision (a)(3).
All statutory references are to the Penal Code unless otherwise specified.
The court sentenced Boettcher to a total prison term of 76 years to life, calculated as follows: The court imposed an indeterminate term of 25 years to life on count 1 and a consecutive indeterminate term of 25 years to life on count 9. The court sentenced Boettcher to consecutive determinate terms of two years on each of counts 2 through 8, and a consecutive determinate term of nine years on count 10, plus three years for the enhancement under Health and Safety Code section 11353.1, subdivision (a)(3).
Boettcher contends (1) the bodily harm sentencing enhancement imposed on count 1 must be vacated because the term "bodily harm" as used in section 667.61 is unconstitutionally vague; (2) the trial court erred and denied him due process of law by misinstructing the jury on the definition of "bodily harm"; (3) there was insufficient evidence to support a finding that he violated section 288, subdivision (a), in circumstances that involved "bodily harm" within the meaning of section 667.61, subdivisions (d)(7) and (k); and (4) this court should independently review the record of the in camera proceeding the trial court conducted under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) to determine whether the court made an adequate record and whether the court abused its discretion in failing to disclose information from a police detective's personnel records. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2014, Jane Doe, who was one week away from her 12th birthday, became upset and ran away from home when her mother ordered her to do household chores. Doe eventually walked into unfamiliar territory and became afraid when it began to get dark.
While she was walking along the side of the road, Boettcher pulled up to her in a truck and asked if she needed a ride. Doe said she was just walking and did not have any money for a ride. Boettcher told her she did not need money for a ride, so she got into his truck.
Doe told Boettcher that she had been getting into trouble a lot at school and outside of school and she felt like "nothing." She said she did not see the point of life and just wanted to die. Boettcher asked Doe what she wanted to do, and she told him she wanted to have sex. Doe testified at trial that she said that because she felt like she had "done everything" except have sex. She was feeling hopeless and thought Boettcher would kill her, and that having sex "would be like the last thing to do." Boettcher then offered Doe crystal methamphetamine (meth) and she smoked some with him.
Boettcher drove Doe to an area of hills and boulders by a housing construction site. They got out of the truck and walked a while through bushes and rocks until they reached a large flat rock. Boettcher told Doe he needed to "pee" and asked if she wanted to hold his penis. She held his penis in her hand while he urinated. Boettcher then placed a sweater on the flat rock and had intercourse with Doe. After about two minutes, Doe asked him to stop because it was painful. Boettcher stopped and they got dressed and walked back to Boettcher's truck.
When they returned to the truck, Boettcher suggested they get a motel room for the night. Because it was Valentine's Day, Boettcher had to drive to a number of motels before he found one with a vacancy. At one point, Boettcher drove into a police department parking lot. Doe asked him what he was doing there and he told her he had pulled in there by accident. Doe said, "I don't want to be here. Let's get out of here."
Boettcher eventually rented a motel room in Corona. He and Doe smoked some more meth in the room and then left the motel in his truck to get some food at a fast food restaurant. After picking up food, they went to Boettcher's house and Boettcher went inside to pick up some items while Doe waited in the truck. On the way back to the motel, Boettcher stopped at a lingerie store. He went into the store and stole some lingerie for Doe to wear.
When Boettcher and Doe returned to the motel room, Boettcher undressed Doe, put a rope over the shower curtain rod, and tied the rope around Doe's neck and wrists. Boettcher and Doe then got in the shower and had intercourse. Having sex in the shower with Doe tied to the curtain rod was difficult, so Boettcher turned off the water and they dried themselves with towels. They then had sex on the bed with the rope still tied around Doe's neck and wrists.
After they had sex on the bed, Boettcher untied Doe and put the lingerie on her. He then tied her to a chair by wrists and ankles and took some photographs with his cellphone. Boettcher had vaginal sex and anal sex with Doe on the chair and during the anal sex, he asked Doe if she wanted him to stop. The rope around her neck was too tight for her to tell him to stop and it made it difficult for her to move her neck, but she nodded yes. However, Boettcher appeared to construe the nod as a "no" and continued.
After the anal sex, Boettcher untied Doe and she used the bathroom. Boettcher then sat on the chair and directed Doe to sit on top of him. Doe complied and Boettcher had vaginal sex with her in that sitting position. Boettcher and Doe then moved to the bed and Boettcher told Doe to orally copulate him. After Doe complied, Boettcher fell asleep. Doe could not move because Boettcher's legs were on her head, but she eventually fell asleep and awoke early in the morning. When Boettcher awoke, he told Doe to orally copulate him again and she complied. Before they left the motel they both smoked some marijuana.
As they drove away from the motel, Doe asked Boettcher if he would let her go. Boettcher said he would let her go because he could not take care of her. He asked where he should let her go. Doe asked him to drop her off at the police station and Boettcher said, "You're going to tell on me." Doe assured him she would not tell on him, "like, what happened." Boettcher said, "Okay." He dropped Doe off about a block away from a police station in Riverside and she walked to the police station. At trial, Doe testified that her shoulders and legs were sore, her vagina and anus felt uncomfortable, and it was uncomfortable to walk.
The police station was closed for the weekend, but Doe picked up a telephone by the front doors and reported to the person who answered that she had run away and did not know what to do. She was told that an officer was being sent to her location, so she waited there for the police to arrive.
The officers that arrived noticed Doe had suction marks or "hickeys" on her neck and appeared to be under the influence of drugs. Doe told the officers she had run away and recounted the events that occurred between the time Boettcher picked her up the night before and dropped her off that morning. A female officer had Doe ride in her patrol car and show the officer the fast food restaurant she had been to with Boettcher. The officer then drove Doe to a hospital for a physical examination by a specially trained sexual assault nurse examiner.
Doe's examination revealed a suction injury on her neck and abrasion and redness across the back of her neck. She had a laceration and bruising to her hymen and "tenderness," meaning touching it made Doe jump. She also had two lacerations to her vagina just below the hymen, lacerations and abrasions on her anus, and an avulsion (separation injury) between the hymen and vestibule, which are normally connected.
After Doe's physical examination, a forensic interviewer and two different police detectives interviewed her. Police identified and arrested Boettcher based on information Doe provided in her interviews.
DISCUSSION
I. Vagueness Challenge
As noted, the jury found that in the commission of count 1 (committing a lewd and lascivious act with a child under the age of 14 years in violation of section 288, subdivision (a)), Boettcher personally inflicted bodily harm on the victim within the meaning of section 667.61, subdivision (d)(7). Based on that finding, the court sentenced Boettcher to a term of 25 years to life on count 1 under section 667.61, subdivision (a). Boettcher contends the sentencing enhancement on count 1 must be vacated because the definition of "bodily harm" set forth in section 667.61 is unconstitutionally vague on its face.
"Section 667.61 requires the trial court to impose a life sentence when the defendant is convicted of a specified sexual offense and the People plead and prove one or more specified aggravating circumstances." (People v. Campbell (2000) 82 Cal.App.4th 71, 76; see § 667.61, subds. (a)-(e).) Subdivision (a) of section 667.61 provides that, with certain exceptions, "any person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) . . . . shall be punished by imprisonment in the state prison for 25 years to life." One of the offenses specified in section 667.61, subdivision (c), is "[l]ewd or lascivious act, in violation of subdivision (a) of Section 288." (§ 667.61, subd. (c)(8).) One of the circumstances specified in section 667.61, subdivision (d), that requires a sentence enhancement is where "[t]he defendant personally inflicted bodily harm on the victim who was under 14 years of age." (§ 667.61, subd. (d)(7).) Section 667.61, subdivision (k), defines "bodily harm" as "any substantial physical injury resulting from the use of force that is more than the force necessary to commit an offense specified in subdivision (c)." (§ 667.61, subd. (k).)
Section 288, subdivision (a), provides that a person commits a felony when he or she "willfully and lewdly commits any lewd or lascivious act . . . 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 . . . ."
" 'The constitutional interest implicated in questions of statutory vagueness is that no person be deprived of "life, liberty, or property without due process of law," as assured by both the federal Constitution (U.S. Const., Amends. V, XIV) and the California Constitution (Cal. Const., art. I, § 7).' " (People v. Morgan (2007) 42 Cal.4th 593, 605 (Morgan).) A statute that " 'forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential element of due process of law.' " (People v. Deskin (1992) 10 Cal.App.4th 1397, 1400.)
" 'To withstand a facial vagueness challenge, a penal statute must satisfy two basic requirements. First, the statute must be definite enough to provide adequate notice of the conduct proscribed. [Citation.] Ordinary people of common intelligence have to be able to understand what is prohibited by the statute and what may be done without violating its provisions. [Citation.] [¶] Second, the statute must provide sufficiently definite guidelines. A vague law impermissibly delegates basic policy matters to the police, judges and juries for resolution on a subjective basis, with the attendant risk of arbitrary and discriminatory enforcement.' " (People v. Sullivan (2007) 151 Cal.App.4th 524, 543.)
The California Supreme Court "has recognized 'the strong presumption that legislative enactments "must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears. [Citations.] A statute . . . cannot be held void for uncertainty if any reasonable and practical construction can be given to its language." ' [Citation.] Therefore, 'a party must do more than identify some instances in which the application of the statute may be uncertain or ambiguous; he must demonstrate that "the law is impermissibly vague in all of its applications." [Citation.]' [Citation.] Stated differently, ' "[a] statute is not void simply because there may be difficulty in determining whether some marginal or hypothetical act is covered by its language." ' " (Morgan, supra, 42 Cal.4th at pp. 605-606.)
" 'The fact that a [statutory] term is somewhat imprecise does not itself offend due process. Rather, so long as the language sufficiently warns of the proscribed conduct when measured by common understanding and experience, the statute is not unconstitutionally vague.' [Citation.] 'Inasmuch as " '[w]ords inevitably contain germs of uncertainty,' " mathematical precision in the language of a penal statute is not a sine qua non of constitutionality.' " (People v. Sullivan, supra, 151 Cal.App.4th at p. 543.)
"While the core of the vagueness concept is that basic fairness requires fair notice, the practicalities of defining crimes make the concept more complex and require the indulging of certain necessary fictions. [Citation.] 'In considering whether a legislative proscription is sufficiently clear to satisfy the requirements of fair notice, we consider not only the language of the challenged statute, but also its legislative history. [Citation.] "We thus require citizens to apprise themselves not only of statutory language but also of legislative history . . . and underlying legislative purposes [citation]." ' [Citation.] We also require citizens apprise themselves not only of subsequent judicial decisions interpreting a statute but of decisions construing other statutes using substantially similar language." (People v. Hamilton (1998) 61 Cal.App.4th 149, 155.)
Boettcher contends an average person of ordinary intelligence could not "reliably discern" the meaning of "bodily harm" in subdivisions (d)(7) and (k) of section 667.61. We disagree. To borrow the words of another California appellate court, "[t]he language of the statute cannot be said to be a model of clarity, precision, or elegance in writing. However, read as a whole, it is not sufficiently unclear or imprecise to infringe on due process rights." (People v. Duz-Mor Diagnostic Laboratory, Inc. (1998) 68 Cal.App.4th 654, 670.)
As noted, section 667.61, subdivision (k), defines "bodily harm" as "any substantial physical injury resulting from the use of force that is more than the force necessary to commit an offense specified in subdivision (c)." (§ 667.61, subd. (k).) A reasonable and practical construction of that definition is that it means substantial physical injury resulting from the use of force that is more than the force necessary to commit the offense specified in subdivision (c) that is at issue in the case-i.e., the offense as to which the People alleged and proved the sentencing enhancement circumstance under section 667.61, subdivision (d). Under such a practical reading of the statute, a person of ordinary intelligence who is aware of the statute's proscription against using sufficient force in the commission of an offense listed in subdivision (c) to inflict substantial physical injury on the victim may readily determine, under the normal and customary meaning of the words, that the infliction of such injury in the commission of the offense will result in the perpetrator's exposure to an enhanced sentence for the underlying sexual offense.
Boettcher argues that the definition of "bodily harm" in section 667.61, subdivision (k), is unconstitutionally vague because some of the offenses listed in subdivision (c), including a violation of section 288, subdivision (a), can be committed without the use of any force. The fact that an offense specified in section 667.61, subdivision (c), can be committed with little or no force does not render the definition of "bodily harm" in subdivision (k) ambiguous. The bodily harm enhancement applies only if the defendant inflicts bodily harm on the victim in the commission of a specified offense; it does not come into play where the defendant committed an offense specified in section 667.61, subdivision (c), but did not use sufficient force in committing the offense to inflict any substantial physical injury on the victim.
Subdivision (c) of section 667.61 specifies nine offenses as follows: "(c) This section shall apply to any of the following offenses: [¶] (1) Rape, in violation of paragraph (2) or (6) of subdivision (a) of Section 261. [¶] (2) Spousal rape, in violation of paragraph (1) or (4) of subdivision (a) of Section 262. [¶] (3) Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1. [¶] (4) Lewd or lascivious act, in violation of subdivision (b) of Section 288. [¶] (5) Sexual penetration, in violation of subdivision (a) of Section 289. [¶] (6) Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 286. [¶] (7) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 288a. [¶] (8) Lewd or lascivious act, in violation of subdivision (a) of Section 288. [¶] (9) Continuous sexual abuse of a child, in violation of Section 288.5."
Thus, in determining whether the definition of "bodily harm" in section 667.61 renders the statute's bodily harm enhancement unconstitutionally vague, the important consideration is not that a particular offense specified in subdivision (c) can be committed without the use of force, but rather that each offense specified in subdivision (c) (rape, lewd or lascivious act, sexual penetration, sodomy, oral copulation, and sexual abuse of a child) can be committed with force, and with greater force than that required to complete the offense. The language of subdivisions (d) and (k) of section 667.61 is not uncertain or ambiguous where the defendant commits a lewd or lascivious act in violation of section 288, subdivision (a), and, in doing so, inflicts bodily harm on the victim-i.e., substantial physical injury resulting from the use of force that is more than the force necessary to commit the violation of section 288, subdivision (a).
" '[A] criminal offense is typically completed as soon as each element of the crime has occurred.' " (Wright v. Superior Court (1997) 15 Cal.4th 521, 537, dis. opn. of Mosk, J., quoting U.S. v. McGoff (D.C. Cir. 1987) 831 F.2d 1071, 1078.) Because the offense of lewd or lascivious act in violation of section 288, subdivision (a), is complete the moment the defendant touches the victim with lustful intent (People v. Austin (1980) 111 Cal.App.3d 110, 113), an overall sexual act such as intercourse that forms the basis of a charge of that offense necessarily includes the completed offense but may continue past the point the offense is completed and involve a use of force that inflicts a substantial physical injury on the victim and is greater than the force required to complete the offense.
The victim of a lewd or lascivious act under section 288, subdivision (a), generally will not suffer substantial physical injury unless the defendant commits the offense by using force greater than that required to complete the offense. A person of ordinary intelligence is fairly warned by the statute that he faces the bodily harm enhancement if he uses sufficient force to cause substantial physical injury in committing an offense, such as a violation of section 288, subdivision (a), that can be completed with minimal or no force. If a defendant does not use force greater than that required to complete the charged offense listed in subdivision (i), he generally will not inflict bodily harm on the victim and the enhancement will not be at issue. A person of ordinary intelligence would understand that and could not be heard to complain that he lacked notice that his infliction of any significant physical injury in the commission of the offense could subject him to the bodily harm enhancement under section 667.61.
Section 288 includes a bodily injury sentence enhancement enacted in the same legislation that enacted the bodily injury enhancement in section 667.61. (Stats. 2010, ch. 219, § 7, eff. Sept. 9, 2010.) Section 288, subdivision (i), provides a sentencing enhancement where a person convicted of a violation of section 288, subdivision (a), inflicts bodily harm on the victim. Section 288, subdivision (i)(3), defines "bodily harm" as "any substantial physical injury resulting from the use of force that is more than the force necessary to commit the offense[,]" meaning the violation of section 288, subdivision (a), of which the defendant was convicted. Construing the phrase "use of force that is more than the force necessary to commit an offense specified in subdivision (c)" in the definition of "bodily harm" in section 667.61, subdivision (k), as referring to the offense specified in subdivision (c) of which the defendant was convicted and to which the enhancement is being applied accords with the definition of "bodily harm" in section 288, subdivision (i)(3), and is consistent with the fundamental rule that "legislation should be construed so as to harmonize its various elements without doing violence to its language or spirit.' " (People v. Garcia (1999) 21 Cal.4th 1, 6.)
Boettcher argues that an ordinary, reasonable person would think the Legislature's choice of different words in the definitions of "bodily harm" in section 667.61, subdivision (k), and section 288, subdivision (i)(3), was purposeful and, accordingly, the phrase "an offense specified in subdivision (c)" must mean something different from the phrase "the offense." In our view, a reasonable explanation for the different wording of the two statutory definitions of "bodily harm" is that the bodily harm enhancement under section 667.61 applies to a variety of offenses listed in subdivision (c), whereas the enhancement under section 288, subdivision (i), applies solely to a violation of section 288, subdivision (a). Again, a reasonable and practical construction of the definition of "bodily harm" in section 667.61, subdivision (k), is that it means substantial physical injury resulting from the use of force that is more than the force necessary to commit the offense specified in subdivision (c) as to which the sentencing enhancement circumstance under section 667.61, subdivision (d), is alleged and proved. In light of that reasonable and practical construction, we cannot hold that section 667.61, subdivision (k), is unconstitutionally vague. (Morgan, supra, 42 Cal.4th at p. 605.)
Boettcher also suggests that the definition of "bodily harm" in section 288 is unconstitutionally vague because the amount of force necessary to "commit the offense" is uncertain as a standard against which to measure the acts a defendant actually committed. He reasons, in his words: "The amount of force to do exactly what the defendant did is always exactly the amount of force necessary to do exactly what the defendant did. The quantum of force against which the actual force of the defendant's actions is to be measured must be something other than the quantum of force actually used by the defendant."
Our response to Boettcher's analysis is that the quantum of force against which the actual force defendant used in inflicting physical injury to the victim is measured is the quantum of force, if any, that the defendant necessarily used to complete the commission of the offense. The bodily harm enhancement in section 667.61 applies when a defendant inflicts bodily harm on the victim at or after the point where the offense was complete. As we discussed above, an act that inflicts bodily harm on the victim can include a completed violation of section 288, subdivision (a), at the point the defendant first makes physical contact with the victim but continues past that point to cause substantial physical injury when greater force is used than that necessary to complete the offense.
To succeed in his vagueness challenge, Boettcher must demonstrate that "the law is impermissibly vague in all of its applications." (Morgan, supra, 42 Cal.4th at p. 606.) Applied to a lewd and lascivious act in violation of section 288, subdivision (a), that is committed with sufficient force to inflict substantial physical injury on the victim, the definition of "bodily harm" in section 667.61, subdivision (k), is not impermissibly vague. Consequently, Boettcher's facial challenge to the definition on the ground of unconstitutional vagueness fails.
II. Jury Instruction on "Bodily Harm"
With respect to the bodily harm enhancement alleged in count 1 under section 667.61, subdivision (d)(7), the trial court instructed the jury that "[b]odily harm means any substantial physical injury resulting from the use of force that is more than the force necessary to commit the offense."
The court gave the jury the following modified version of CALCRIM No. 3179, which included the court's definition of "bodily harm": "If you find the defendant guilty of the crime alleged in Count 1, you must decide whether the People have proved the additional allegation that the defendant personally inflicted bodily harm on a child and that she was under 14 years of age. You must return a separate finding for this allegation. [¶] To prove that the defendant is guilty of this allegation, the People must prove that: [¶] 1. The defendant caused bodily harm to the child; and [¶] 2. The child was under the age of 14 years at the time of the act. [¶] Bodily harm means any substantial physical injury resulting from the use of force that is more than the force necessary to commit the offense. [¶] It is not a defense that the child may have consented to the act. [¶] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved."
During its deliberations, the jury sent the court the following note seeking clarification of the definition of "bodily harm": "In the definition of bodily harm it talks about the use of force necessary to commit the offense[.] What does 'the offense' refer to? Is it [section] 288 as a whole? Is it a specific act? Clarification on this [definition] would be appreciated." (Full capitalization omitted.) The court responded: "I do not entirely understand this question. Can you supply more detail[?]"
The jury then sent the court the following note: " 'Bodily harm means any substantial physical injury resulting from the use of force that is more than the force necessary to commit the offense.[] Is 'the offense' the sex acts? Is 'the offense' the act of touching? Is 'the offense' simply counts 1-9 of [section] 288 lewd [and] lascivious acts as a whole? What specifically is the offense?" The court responded: "The offense refers to the violation of Penal Code Section 288(a) alleged in Count 1. You must all agree which act constitutes Count 1." Boettcher contends the court denied him due process of law by misinstructing the jury on the definition of "bodily harm."
The words "the offense" were circled in the jury's note.
If a jury instruction challenged on appeal is ambiguous, we must consider whether it is reasonably likely the jury misunderstood and misapplied the instruction. (People v. Young (2005) 34 Cal.4th 1149, 1202.) The correctness of jury instructions is determined from the instructions as a whole rather than from a particular instruction or parts of an instruction. (Ibid.) In assessing the probable effect of the instruction on the jury, the reviewing court must also consider whether the arguments of counsel diminished any possible confusion about the challenged instruction or reinforced the correct view of the law stated in the instruction. (Ibid.) We conclude it is not reasonably likely that the jury misunderstood and misapplied the court's instructions regarding the bodily harm enhancement allegation on count 1.
Boettcher argues that the definition of "bodily harm" in section 667.61, subdivision (k), ("any substantial physical injury resulting from the use of force that is more than the force necessary to commit an offense specified in subdivision (c)") cannot mean the same thing as the definition of "bodily harm" in section 288, subdivision (i)(3), ("any substantial physical injury resulting from the use of force that is more than the force necessary to commit the offense"). However, as we discussed above, the definition of "bodily harm" in section 288, subdivision (i)(3), is consistent with our construction of the definition of "bodily harm" in section 667.61, subdivision (k), to mean any substantial physical injury resulting from the use of force that is more than the force necessary to commit the offense specified in section 67.61, subdivision (c), as to which the sentencing enhancement circumstance under section 667.61, subdivision (d), is alleged.
Boettcher further contends that the court's instructions in response to the jury's question during deliberations were erroneous. As noted, the court instructed the jury that "the offense" in the definition of 'bodily harm' it gave the jury "refers to the violation of Penal Code Section 288(a) alleged in Count 1. You must all agree which act constitutes Count 1." Boettcher argues that neither of these statements can be a true statement of the law when considered in isolation, and that both cannot be correct because they are contradictory. We conclude the court's response to the jury's question was proper. Neither of the statements in the response is legally incorrect and we fail to see how they are contradictory.
As we discussed above, a person of ordinary intelligence would understand the term "bodily harm" in section 667.61, subdivision (k), to mean any substantial physical injury resulting from the use of force that is more than the force necessary to commit the charged offense specified in section 667.61, subdivision (c), as to which the bodily harm enhancement is alleged. In closing argument to the jury, both the prosecutor and defense counsel expressed this reasonable construction of the definition of "bodily harm." The prosecutor explained: "What is bodily harm? Bodily harm means any substantial physical injury resulting from the use of force more than the force necessary to commit the underlying offense." (Italics added.) Defense counsel likewise explained: "What is bodily harm[?]" You're going to get a definition . . . that's in the instructions. And bodily harm is any substantial injury resulting from the use of force that is more than the force necessary to commit the underlying offense." (Italics added.)
The court's explanation that "the offense" in the court's definition of bodily harm meant the violation of section 288, subdivision (a), charged in count 1 was reasonable and proper because the bodily harm allegation on which the jury was required to make the bodily harm finding was alleged as to count 1. There is no basis to conclude the jury misunderstood or misapplied the court's response to its question on that point.
The second sentence of the court's response simply reminded the jury that they were all required to agree to designate a particular act that satisfied the elements of a violation of section 288, subdivision (a), as count 1 and then decide whether the bodily harm allegation was true beyond a reasonable doubt as to that count. The court's response accords with the following unanimity instruction the court gave the jury under CALCRIM No. 3501: "The People have presented evidence of more than one act to prove that the defendant committed [the charged] offenses or allegations. You must not find the defendant guilty unless: [¶] 1. You all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed for each offense or allegation; [¶] OR [¶] 2. You all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period and have proved that the defendant committed at least the number of offenses or allegations charged."
Boettcher argues that the second sentence of the court's response required the jury to make an "incoherent" comparison between the act it designated as the offense charged as count 1 and the force Boettcher used in committing that act. In the words of Boettcher's opening brief: "An act that [Boettcher] actually did in violation of Count 1 involved exactly as much or as little force as necessary to do that actual act. There must be some standard to which [the] amount of force involved in an actual act of [Boettcher's] is to be compared. [The] amount of force that [Boettcher] actually used in doing an act cannot be compared to the amount of force that [he] actually used in doing that act."
The jury was not required to make an incoherent comparison in deciding whether Boettcher used sufficient force in committing a violation of section 288, subdivision (a), to inflict bodily harm on Doe. As we discussed above, the bodily harm enhancement under section 667.61 applies when a defendant inflicts bodily harm on the victim at or after the point where the offense was complete. A sexual act with a child under the age of 14 that inflicts bodily harm can include a completed violation of section 288, subdivision (a), at the point the defendant first makes physical contact with the victim, and continues past that point to cause substantial physical injury when the defendant uses greater force than that necessary to complete the offense. The court instructed the jury on the elements of a violation of section 288, subdivision (a), that the People were required to prove, including a touching of the victim's body. Thus, the court's instructions to the jury on the bodily harm enhancement allegation properly required the jury to compare the force necessary to complete the offense-i.e., to satisfy the elements of a violation of section 288, subdivision (a)-with the increased force Boettcher thereafter used to complete the act that included the completed offense the jury agreed to designate as count 1.
We conclude the court effectively and properly instructed the jury that it could find the bodily harm allegation on count 1 true if it found beyond a reasonable doubt that Boettcher committed a violation of section 288, subdivision (a), with sufficient force to inflict a substantial physical injury on Doe, and it unanimously agreed to designate that violation of section 288, subdivision (a), as count 1. We find no basis in the record to conclude the jury misunderstood and misapplied the court's instructions regarding the bodily harm enhancement allegation on count 1.
III. Sufficiency of the Evidence to Support the Jury's Finding on the Bodily Harm
Allegation
Boettcher contends there was insufficient evidence to support a finding that he violated section 288, subdivision (a), in circumstances that involved "bodily harm" within the meaning of section 667.61, subdivisions (d)(7) and (k). Specifically, he contends the evidence was insufficient to support a finding that he used "force that is more than the force necessary to commit an offense specified in subdivision (c)." (§ 667.61, subd. (k).)
"We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction." (People v. Wilson (2008) 44 Cal.4th 758, 806.) "In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
We conclude the evidence was sufficient to support the jury's true finding on the bodily harm enhancement allegation on count 1. As we indicated above, when Boettcher had vaginal and anal intercourse with Doe, he completed a violation of section 288, subdivision (a), upon making body-to-body physical contact with her. The jury reasonably found that in continuing past that point to have intercourse, Boettcher used sufficient force to inflict substantial physical injury on Doe. The medical examination of Doe revealed abrasion and redness across the back of her neck, a laceration and bruising to her hymen, two lacerations to her vagina just below the hymen, lacerations and abrasions on her anus, and an avulsion between the hymen and vestibule, which are normally connected. Based on this evidence, the jury could reasonably find that Boettcher inflicted substantial physical injury on Doe by using force that was greater than the force required to complete any one of a number of violations of section 288, subdivision (a), that the jury could have designated as count 1.
IV. Pitchess Review
Boettcher filed a written Pitchess motion in the trial court seeking an order directing the Riverside Police Department to disclose personnel records of detective Rita Cobb, the lead investigator in the present case. Boettcher sought any records pertaining to Cobb's lack of credibility, unprofessional conduct, illegal activity, falsification of reports or qualifications, prior acts involving moral turpitude, and any Brady materials in Cobb's personnel file.
Brady v. Maryland (1963) 373 U.S. 83 "generally obligates the prosecution to disclose to the defense material evidence favorable to the defendant." (People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 705.)
The trial court granted Boettcher's request to conduct an in camera inspection of Cobb's personnel file from the Riverside Police Department. The court conducted the in camera hearing but did not order anything released from Cobb's file.
The court's minutes state that the Pitchess motion was "denied." --------
Boettcher requests that we independently review the record of the in camera proceeding to determine whether the trial court made an adequate record and whether the court abused its discretion in failing to disclose information from Cobb's personnel file. We have independently reviewed the record of the in camera hearing and conclude the trial court did not err or abuse its discretion in ruling on Boettcher's Pitchess motion.
DISPOSITION
The judgment is affirmed.
BENKE, J. WE CONCUR: HALLER, Acting P. J. IRION, J.