Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. John J. Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Super.Ct.No. INF52299
Paul R. Ward, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, Randall D. Einhorn and Deborah La Touche, Deputy Attorneys General, for Plaintiff and Respondent.
Gaut J.
All statutory references are to the Penal Code unless stated otherwise.
A jury convicted defendant of six sexual offenses involving Jane Doe, a girl under 16 years of age. (§§ 261.5, subd. (d), 288, subd. (c)(1).) The offenses occurred in 2005 when defendant was 59 or 60 years old and the victim was 14 or 15 years old. Defendant and the victim described themselves as being in love and having a “spiritual” marriage. A court sentenced defendant to a total term of 14 years in prison.
Defendant’s main contentions on appeal involve the trial court’s refusal to allow evidence of a purported marriage between defendant and the victim and the sufficiency of evidence for count 6, the commission of a lewd or lascivious act on a child of 14 or 15 by a person more than 10 years older. (§ 288, subd. (c)(1).) As agreed to by the parties, we direct the trial court to strike the pretrial protective order issued on May 5, 2006, pursuant to section 136.2. (People v. Stone (2004) 123 Cal.App.4th 153, 159.) Otherwise, we reject defendant’s contentions on appeal and affirm the judgment.
2. Factual and Procedural Background
Jane Doe testified that she was born in September 1990. She met defendant in Desert Hot Springs in 2004 when he lived across the street. Jane Doe was in the eighth grade and confided to defendant about her parents fighting. In April or May 2005, Jane Doe began having sex with defendant and fell in love with him. The first episode of intercourse, and a second episode two weeks later, occurred in his bedroom. A third and fourth incident occurred in his truck while parked in the desert. Defendant told her he wanted to marry her. A fifth incident occurred in a motel room. They loved each other and wanted to spend their lives together. She denied engaging in oral sex with defendant. In mid-August 2005, defendant, Jane Doe, and her family all went to Mexico together for a vacation.
In a police interview, defendant admitted conducting a sexual relationship, including several instances of oral copulation, with Jane Doe at his home and in his truck. Defendant was arrested when he and Jane were at a motel in September 2005.
3. Evidence of Purported Marriage
Defendant’s primary contention is he was denied the opportunity to present evidence of an unofficial ceremonial or religious marriage between himself and Jane Doe that would disprove all six alleged crimes, including the sixth count for violation of section 288, subdivision (c)(1).
At the preliminary hearing, Jane Doe testified inconsistently that she and defendant either did or did not get married during the August vacation in Mexico. She also testified she went to Mexico with her parents only and not with defendant. The prosecution filed a pretrial motion to exclude any mention of a purported marriage. The motion referred to a Mexican marriage license and a certificate from the Universal Life Church. In discussing the motion to exclude, defense counsel referred to two purported marriages, one in Desert Hot Springs and one in Mexico. Then he explained, “this purported ceremony was at the home, and a minister was present and signed a certificate, and there is also a document wherein the parents gave consent to I’ll say marriage. I don’t think it has been filed with any civil authority.” Defense counsel never offered any actual official documentation of a marriage in Mexico or Desert Hot Springs. The court granted the motion to exclude on the grounds there was no official public record of any marriage. In closing argument, the prosecutor asserted that defendant and Jane Doe were not married and there was no evidence of a marriage.
An element of a violation of section 261.5, subdivision (d), the basis for counts 1 through 5, is that the minor victim not be “a spouse of the perpetrator.” But the prosecution does not have to present direct evidence of nonmarriage: “‘“It is generally held that it is not absolutely necessary to prove nonmarriage by direct and positive testimony, but, like any other fact, it may be proved by facts and circumstances from which the conclusion may be drawn. Thus, where a case was tried apparently on the assumption that the marriage relation did not exist, but it did appear that the victim was a mere school girl bearing her maiden name and living with her parents, it was held that the fact of nonmarriage was clearly established.” [Citations.]’ [Citations.]” (People v. Toliver (1969) 270 Cal.App.2d 492, 497; People v. Prieto (2003) 30 Cal.4th 226, 245.)
Here the victim was a 14-year-old girl still living with her parents. Defendant was an older neighbor who had known her less than a year. Their nonmarital status was aptly demonstrated by the circumstances. The case cited by defendant involving a bigamous marriage between adults is factually distinguishable on that basis. (People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 747.) Furthermore, the prosecutor’s comment on this point to the jury was not misconduct, as argued by defendant, but an appropriate explanation of the evidence. (People v. Bolton (1979) 23 Cal.3d 208, 214; People v. Beivelman (1968) 70 Cal.2d 60, 76-77.)
Defendant also does not convince us he should have been allowed to put on evidence of an unofficial ceremonial or religious marriage. Defendant cites Evidence Code section 663: “A ceremonial marriage is presumed to be valid.” The California Supreme Court has said “the primary basis of the presumption is the policy of this state that no one shall be presumed to have done wrong or presumed to be a bigamist.” (Estate of Smith (1973) 9 Cal.3d 74, 81.) Probably for that reason our research shows the presumption is employed mostly in family and probate cases and bigamy prosecutions. Defendant cites a probate case, Estate of DePasse (2002) 97 Cal.App.4th 92, 107. The People cite a prosecution for bigamy, in which the dissent commented that “the presumption of validity of a ceremonial marriage is applied only in civil cases.” (People v. Vogel (1956) 46 Cal.2d 798, 809.) Both DePasse and Vogel are in accord with the policy disfavoring bigamy. But neither the policy nor any cases support the application of Evidence Code section 663 in this case involving multiple sex offenses against a minor under the age of 16. Therefore, we reject defendant’s arguments based on Evidence Code section 663 and DePasse. The trial court did not abuse its discretion in excluding evidence of a purported marriage. (People v. Lucas (1995) 12 Cal.4th 415, 449.)
Based on the foregoing, we also do not discern any due process violation of the Sixth and Fourteenth Amendment. The present case differs from People v. Hernandez (1964) 61 Cal.2d 529, a statutory rape prosecution, in which the defendant claimed he had a good faith but reasonable belief that the victim was 18 years of age or older. Defendant, who had been previously married, cannot plausibly claim he had a good faith but reasonable belief he had married Jane Doe. For the same reasons, we reject application of the same defenses to count 6, the violation of section 288, subdivision (c)(1).
4. Count 6
On appeal, defendant challenges the sufficiency of the evidence for count 6 and, in the alternative, asserts the sentence should been stayed pursuant to section 654 instead of being imposed concurrently. The five offenses that occurred at defendant’s home, in his truck, and at the motel supplied the grounds for the five convictions under section 261.5. The prosecutor argued that there was evidence of at least one incident of oral copulation to support count 6.
Concerning oral sex, defendant admitted in a police interview that he orally copulated the victim two or three times. In her testimony at trial, the victim testified equivocally and haltingly that they did not engage in oral sex but she would not be surprised if defendant said they had done so. The following exchange occurred between the prosecutor and the victim:
“Q. Would it surprise you if [defendant] admitted to giving you oral sex?
“A. No. [¶] . . . [¶]
“Q. . . . Is [defendant] telling the truth when he told the police that he performed oral sex on you?
“A. (No audible response.) [¶] . . . [¶]
“Q. . . . Did [defendant] perform oral sex on you?
“A. (No audible response.)
“Q. Will you answer my question, Ms. Doe?
“A. (No audible response.)
“Q. Do I need to have the court order you to answer the question?
“A. No.
“Q. Will you then answer my question?
“A. I just told you I think about it.
“Q. So you are thinking about it?
“A. Yeah.
“[Defense counsel]: Your Honor, then I’ll object again. Asked and answered; she said no.
“THE COURT: Overruled. She is thinking.
“THE WITNESS: No.
“Q. [Prosecutor]: No, he did not?
“A. I said no.”
A criminal conviction may not be based solely on defendant’s extrajudicial statements. (People v. Alvarez (2002) 27 Cal.4th 1161, 1165.) But only a slight or a prima facie showing of proof of the corpus delicti, not proof beyond a reasonable doubt, is required. (Id. at p. 1181; People v. Diaz (1992) 3 Cal.4th 495, 528-529.) The “independent proof may consist of circumstantial evidence [citations], and need not establish the crime beyond a reasonable doubt [citations].” (People v. Jones (1998) 17 Cal.4th 279, 301 (Jones).)
In Jones, supra, the California Supreme Court analyzed the corpus delicti rule and the requirement for corroboration in the context of an oral copulation charge. It recited the general principles that the corpus delicti of a crime consists of two elements, the fact of an injury, loss, or harm, and the existence of a criminal agency as its cause. (Jones, supra, 17 Cal.4th at pp. 301 and 302.) It described the corpus delicti of oral copulation: “Section 288a, subdivision (a), defines this crime as ‘the act of copulating the mouth of one person with the sexual organ or anus of another person.’” (Jones, supra, at p. 302.)
Jones then considered “[t]wo previous cases involving application of the rule to a charged sexual assault. . . . In People v. Jennings [1991] 53 Cal.3d 334, the body of the victim, a known prostitute, was found in an irrigation canal in a rural area. She was unclothed, and although forensic examination detected she had suffered a broken jaw, the advanced decomposition of her body made determining whether she had been sexually assaulted impossible. More specifically, there was no independent evidence that the defendant ever sexually penetrated the victim. . . .
“Despite the absence of any independent evidence of sexual penetration, we found that the trial court properly admitted evidence of the defendant’s extrajudicial statement that he had raped the victim before killing her. Although we characterized the independent evidence of rape as ‘“thin”’ (People v. Jennings, supra, 53 Cal.3d at p. 369), we nevertheless concluded that the unclothed condition of the victim’s body, its location when found, and the evidence of a broken jaw, considered together, were sufficient to establish the corpus delicti of rape.
“People v. Robbins [1988] 45 Cal.3d 867, is in accord. The evidence in Robbins showed that the victim, a six-year-old boy, was last seen riding on a motorcycle with an unknown blond man. The boy’s skeletal remains were found three months later. The victim’s neck had been broken and his body was found unclothed. The defendant had been diagnosed as a pedophile. Although the decomposed remains of the victim could not establish whether he had been sexually assaulted before his death, the defendant made an extrajudicial admission that he abducted the victim and sexually assaulted him before strangling him. We found the trial court properly admitted this confession over a corpus delicti objection. (Id. at pp. 885-886.) ‘In view of the nature of the offense and the circumstances of the case (i.e., the body was not discovered for some time, hence it was impossible to verify the sexual conduct by scientific evidence, and there were apparently no eyewitnesses to the crime) we do not believe the corpus delicti rule can be interpreted to call for more; the law does not require impossible showings.’ (Id. at p. 886.)” (Jones, supra, 17 Cal.4th at pp. 302-303.)
Based on this analysis, the Jones court concluded there was sufficient evidence to establish the corpus delicti for oral copulation: “The state of the victim’s clothing (no underwear or shoes) and the forensic evidence (semen in the victim’s vagina and on her external genitalia and anus) indicates multiple sexual acts occurred. That the victim was forcibly abducted, beaten, shot in the head, and left by the side of the road for dead gives rise to an inference that the sexual activity that occurred was against the victim’s will. This circumstantial evidence of multiple forcible sexual acts sufficiently establishes the requisite prima facie showing of both (i) an injury, loss or harm, and (ii) the involvement of a criminal agency.” (Jones, supra, 17 Cal.4th at p. 302.)
Similarly, in the present case, there was sufficient evidence to establish the commission of a sixth sexual offense—the commission of a lewd and lascivious act on a child of age 14 or 15 by a person more than 10 years older (§ 288, subd. (c)(1))—by, in this instance, oral copulation.)
The victim’s testimony, although extremely slight, was sufficient to corroborate defendant’s own statements. Defendant and the victim had an ongoing, consensual, sexual relationship of some months’ duration and involving multiple sexual acts. She still believed she loved defendant. Throughout her testimony, she demonstrated a desire to protect him. She reluctantly admitted that defendant might say they had engaged in oral sex. All these factors supported the conviction.
As to whether defendant’s sentence should have been stayed rather than imposed concurrently on count 6, the law is well-established that section 654 does not apply to separate offenses, in this instance five violations of section 261.5, subdivision (5), and one violation of section 288, subdivision (c)(1), even if an act of intercourse and of oral copulation occurred on the same occasion. (People v. Masbruch (1996) 13 Cal.4th 1001, 1008.) The court properly imposed a different, concurrent sentence on count 6. (People v. Latimer (1993) 5 Cal.4th 1203, 1208; People v. Perez (1979) 23 Cal.3d 545, 549, 553; People v. Beamon (1973) 8 Cal.3d 625, 638, fn. 11.)
5. Disposition
The pretrial protective order against defendant contacting the victim should be stricken although it has been succeeded by a posttrial protective order that remains in effect. (§ 1202.5.) Defendant is still barred from having contact with Jane Doe.
We affirm the judgment.
We concur: McKinster, Acting P. J., King J.