Opinion
C079579
02-28-2017
THE PEOPLE, Plaintiff and Respondent, v. CHARLIE BROWN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12F06387)
Defendant Charles Brown was convicted by a jury of four counts of lewd conduct with a minor, one count of unlawful sexual intercourse with a minor, and one count of failing to register as a sex offender. On appeal, he asserts there is insufficient evidence to support his conviction for unlawful sexual intercourse with a minor. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged in a consolidated information with four counts of committing a lewd and lascivious act with a minor under the age of 14. (Pen. Code, § 288, subd. (a)—counts one through four.) Two of the counts were alleged to have occurred while the victim lived on 35th Street, and the other two counts were alleged to have occurred after she had moved to 36th Street. Defendant was also charged with unlawful sexual intercourse with a minor under the age of 16 while defendant was over the age of 21 between the victim's 14th birthday and May 8, 2012. (Id., § 261.5, subd. (d)—count five.) Finally, defendant was charged with failing to register as a sex offender. (Id., § 290.018, subd. (b)—count six.) It was also alleged defendant had four prior serious and violent felony convictions and four prior serious felony convictions.
The victim—defendant's daughter—lived with her paternal grandmother (defendant's mother). The victim is developmentally delayed, has been in special education since the second grade, has a learning disability, and has a speech impediment. Though the victim was 18 years old at the time of trial, she still behaved like a small child, presented as an elementary-school-aged child, and was more comfortable with younger children than youth her own age. The victim had never had a boyfriend.
At trial, the victim testified defendant touched her between her legs with a part that only boys or men have, touched between her legs with his lips, and also touched her backside with his hands. He touched her multiple times both while she was in middle school and when she was in high school, and while she lived both on 35th Street and on 36th Street. The first time that she can remember it happening, her grandmother was asleep in their apartment on 35th Street, and the victim was lying on the couch, when defendant undid the victim's belt, unzipped and pulled down her pants, lifted her shirt, undershirt, and bra, lay down on top of her, and then "stuck his thing inside" her. The next time she remembered it happening was in her room on the floor. After the victim and her grandmother moved to 36th Street, defendant continued touching her as he had while they lived on 35th Street, on the sofa and in her bedroom, both before and after her aunt died on January 24, 2010. She also remembered defendant touching her breasts with his hands and lips.
Eventually, in 2012, when the victim realized what defendant was doing and that it was wrong, the victim wrote a note to her friend reporting the touching. At that time, the touching was still going on and the victim was living on 36th Street. Defendant continued to touch the victim until a worker from Child Protective Services came to her home on April 6, 2012, and informed the victim's grandmother about the allegations against defendant. The mother of the friend to whom the victim gave the note (recounting the touching) found the note a couple of weeks later in her daughter's backpack and called Child Protective Services. The victim's grandmother called to arrange a doctor's visit for the victim.
The victim's examination revealed she had trichomoniasis, which is a sexually transmitted disease that can be treated with antibiotics. A person who is exposed to trichomoniasis will usually have symptoms a week to a month later, but about half of all women exposed do not show symptoms and may be carrying the disease for several months if they don't seek treatment. An expert opined that if a person tested positive for trichomoniasis in May of 2012, as the victim did, that would be consistent with the tested person having had sexual contact with an infected person between November 2011 and April 2012.
On April 6, 2012, the victim told the social worker about the sexual abuse. She said that the last touching had happened while she was in eighth grade and that it had been about a year since the last time defendant had touched her. The social worker believed that, especially in light of the victim's developmental delays, she struggled with chronology and dates. The victim also recounted the abuse in a later forensic interview. In that interview she stated the abuse occurred multiple times beginning when she was in seventh grade, and that defendant had violated her three to five times when she lived on 35th Street and 10 to 15 times when she lived on 36th Street. The victim stated that nothing had happened since she turned 15 years old. At trial, the victim testified her memories of the touching come and go, and she is slowly remembering them.
The jury found defendant guilty on all counts. Following trial, defendant admitted the prior felony conviction allegations. The trial court sentenced defendant to consecutive terms of 25 years to life on each of the six charged counts because of defendant's prior serious and violent felony convictions, plus a determinate term of 60 years for the prior serious felony conviction enhancements. (Pen. Code, § 667, subds. (a), (e)(2)(A).)
DISCUSSION
Defendant contends there is insufficient evidence to support his conviction for unlawful sexual intercourse with a minor under the age of 16. Specifically, defendant asserts the People argued defendant committed that particular offense in mid-April 2012, based on medical evidence that she contracted a sexually transmitted disease likely between November 2011 and May 2012 and that her friend's mother found her note in April 2012, and that the evidence was insufficient to establish his guilt beyond a reasonable doubt. We disagree with defendant's construction of the People's argument, and conclude there is substantial evidence to support his conviction for unlawful sexual intercourse (count five).
In considering a claim challenging the sufficiency of the evidence in a criminal case, " ' "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." ' " (People v. McCurdy (2014) 59 Cal.4th 1063, 1104.) However, we do not determine "whether guilt is established beyond a reasonable doubt" but only "whether there is substantial evidence to support the conclusion of the trier of fact . . . ." (People v. Redmond (1969) 71 Cal.2d 745, 755.) In this inquiry, "[e]vidence which merely raises a strong suspicion of the defendant's guilt is not sufficient to support a conviction." (Ibid.) But, " 'circumstantial evidence and any reasonable inferences drawn from that evidence' " may be substantial evidence to support the conviction. (People v. Clark (2011) 52 Cal.4th 856, 943.) " ' " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' " (People v. Casares (2016) 62 Cal.4th 808, 823-824.) Thus, reversal is not warranted unless there is no hypothesis on which there exists substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Here, with respect to count five, the People argued in closing that there needed to be evidence of sexual intercourse between defendant and the victim between the victim's 14th birthday in December 2010 and May 8, 2012, when the victim was diagnosed with trichomoniasis. The People further argued that based on the expert's testimony, that diagnosis was consistent with the victim having been exposed during sexual contact between November 2011 and April 2012. So, the People argued, there was evidence indicating she likely had sexual contact sometime after the victim's 15th birthday in December 2011. Additionally, based on the testimony regarding the note the victim gave her friend, the People argued it was likely that note was written in March 2012, and the victim testified defendant was still violating her at the time she wrote the note. Thus, the People did not argue, contrary to defendant's claim, that defendant committed the offense in count five in mid-April 2012. Rather, they argued the offense likely occurred sometime between November 2011 and mid-March 2012. Moreover, this argument is ultimately a red herring.
Count five was charged as having occurred between the victim's 14th birthday in December 2010 and May 8, 2012. The victim's testimony as to dates in general was often confused, and she tended to misremember timing of significant events such as when the family moved or when her aunt died. Nevertheless, there was ample evidence presented by the victim that defendant engaged in unlawful sexual intercourse with her during the charged period. She told the social worker who came to the house that the abuse stopped in 2011. In her forensic interview, she stated that nothing had happened since her 15th birthday. She testified at trial the abuse was still occurring when she wrote the note to her friend in March 2012.
Ultimately, however, regardless whether the abuse stopped the year before her April 2012 interview or prior to her birthday in December 2011, or if the abuse was still occurring when the victim wrote her note, any act of sexual intercourse between defendant and the victim at any of those times would be sufficient to warrant a conviction. Additionally, the victim's testimony that defendant had unlawful sexual intercourse during that period with her was corroborated by the medical evidence, which indicated she had sexual conduct between November 2011 and May 2012. Thus, even if the developmentally delayed victim was inconsistent in remembering the precise dates or times when the abuse stopped, there was substantial evidence from which a reasonable trier of fact could conclude defendant had engaged in the prohibited conduct during the period charged.
And, while concerns about unanimity arise when different acts are used to prove a single count (see, e.g., People v. Russo (2001) 25 Cal.4th 1124, 1132), here, the jury was instructed that it had to unanimously agree the People had proved defendant had committed at least one such act of unlawful sexual intercourse and agree which act defendant committed in order to convict him. It apparently reached that unanimous decision in finding defendant guilty of the charged offense. On this record, we have no cause to second-guess that determination.
DISPOSITION
The judgment is affirmed.
BUTZ, J. We concur: ROBIE, Acting P. J. MURRAY, J.