Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04-3256
BLEASE, J.
Defendant appeals from the judgment of conviction after a jury found him guilty as charged of committing the following sex offenses against four children: nine counts of lewd or lascivious acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a); counts 1, 4, 6, 8, 9, 11, 14, 15, 16), six counts of attempt to commit lewd or lascivious acts upon a child under the age of 14 years (§§ 664/288, subd. (a); counts 2, 3, 5, 10, 12, 13), and one count of penetration of a child under the age of 14 years with a foreign object. (§ 289, subd. (j); count 7.) The jury found true a sexual offender penalty allegation that the offenses charged in counts 8, 14, and 15 were committed under one of the circumstances specified in section 667.61, subdivision (e). The trial court found that a violation of section 288, subdivision (a) was committed against more than one victim (§ 667.61, subd. (e)(5)) and sentenced defendant to a determinate prison term of 16 years plus an indeterminate term of 45 years to life.
All further section references are to the Penal Code unless otherwise specified.
The information charged this sentence enhancement as to all 16 counts.
On appeal, defendant contends the evidence is insufficient to support nine of the convictions and a “substantial sexual conduct” jury finding, and the trial court erred when it failed to conduct an inquiry into the impartiality of one juror, admitted evidence of uncharged sex crimes under Evidence Code section 1108, and imposed three indeterminate terms under section 667.61, subdivision (b). He also contends the abstract of judgment must be corrected for clerical error.
We agree with defendant as to this last point and shall order the abstract of judgment be amended to correct the error. In all other respects we shall affirm the judgment.
Much of the evidence is based upon video tape-recorded interviews of the victims by Child Protective Service workers, which were introduced into evidence. Portions of the interviews with H.G., K.G., and M. were transcribed and appear in the clerk’s transcript.
Between July 2001 and November 2003, defendant lived with D.B. and their infant daughter A. and D.B.’s three young children from a prior marriage, E.G., K.G., and H.G. Defendant and D.B. were married on March 16, 2002, after A. was born. During the time they lived together, defendant took care of the children while D.B. was at work.
A. was born in early February 2001.
Count Five - In her closing argument, the prosecutor told the jury “[e]very count in this case is from the videos.” She then identified each incident by count and described count five as an attempt to kiss E.G. (§§ 664/288, subd. (a).) That incident does not appear in the written record on appeal and the video recordings were not made a part of the appellate record. Therefore, because defendant does not contend the evidence is insufficient to support count five and the evidence in support of that count is not pertinent to a resolution of any of the claims raised on appeal, we omit the facts of that incident from our statement.
E.G. was born in September 1994. One time when she was about seven and one-half or eight years old, she was playing with H.G. when defendant entered the room. H.G. left but when E.G. tried to leave too, defendant barred her exit and put his hands down her underpants and touched her “private part” on her skin. Defendant touched her the same way on another occasion when she was approximately eight years old, although this time he touched her over her clothing.
Count 1.
K.G.
K.G. was born in May 1996 and was between the ages of five and six when he lived with his mother and defendant. On two occasions in the daytime during that time, defendant played a “tent” game with K.G. and his sisters on the bed in D.B.’s bedroom. The children were clothed and defendant was naked except for a blanket that was draped over him while he bent over on his hands and knees. K.G. lay beside defendant partially covered by the blanket with his arm touching defendant’s arm, while his two sisters crawled on their stomachs between defendant’s arms and legs, trying not to touch defendant’s penis. The girls went through the tent twice on one day and two or three times on the other day.
The tent game incidents were charged in counts 2 and 3 (E.G.), counts 9 and 10 (K.G.), and counts 12 and 13 (H.G.).
On another occasion when H.G. was three years-old, K.G., H.G. and E.G. took a bath with defendant. They were all in the bathtub together and H.G. saw defendant’s penis and defendant’s feet touched K.G. E.G. told her mother that she and her two siblings took a bath with defendant. Sometime in the summer of 2003, K.G. told D.B. that he and his sisters took a bath with defendant and the following day, she told defendant to leave the residence.
The bathtub incident was charged in counts 4 (E.G.), 11 (K.G.), and 16 (H.G.).
H.G.
H.G., who was born in March 1998, lived primarily with her biological father and stepmother, and her brothers K.G. and J., but she visited her mother and defendant occasionally. One day when she was about three years-old and was visiting her mother and defendant, defendant touched her vagina with his hand and put his finger “two inches” inside her “peepee” and moved his hand, which felt “bad.” This first incident took place before A. was born in February 2001.
Defendant touched her that way “a lot,” meaning more than three times and K.G. and E.G. were in the room during at least one of the incidents. The last time defendant touched her was when she was in kindergarten.
Counts 14 and 15.
On June 14, 2002, after one of her visits with her mother and defendant, H.G.’s stepmother was bathing her when she complained of a rash on her vaginal area. Her stepmother noticed that she was having a lot of rashes and asked whether anyone had touched her private parts. H.G. became quiet and looked confused and uncomfortable, but upon further questioning, told her stepmother defendant rubbed her vaginal area with his fingers.
M.
M. was born in June 1997 and is the daughter of T. D. and defendant. Prior to the birth of her brother T., born January 2005, M. lived in an apartment in Woodland with defendant, her mother and her brother K.
On May 17, 2004, M. spoke to Debbie Presti, a social worker with the Yolo County Child Protective Services Unit, in her apartment where she lived with her parents. At that time, M. told Presti defendant had “done a bad touch on her butt” in her mother’s bedroom in the yellow house.
The following day, Presti conducted a formal multi-disciplinary interview with M. During that interview, M. told Presti defendant touched her “butt” by placing his fingers inside her “butt,” which she identified as her vagina, and also touched her butt with his foot. M. said she saw defendant’s penis, which she called a “wienie,” when he was naked and acting “strange” or “crazy.” She ran away from him because it was “gross.” She explained that his penis touched her hand “a tiny bit” when he made her touch it and that “a tiny drop of . . . pee” came out. She described his penis as “a little hard and a lot of softness” and said it touched her hand 10 times when she was approximately four years old.
Counts 6 and 7.
Count 8.
M. told Presti that when she was five years old and before she was in kindergarten, while she and her family were living in the yellow house, defendant put his penis in her “butt,” pointing to her rectum and her vagina. M. said the touchings occurred in a lonely place that no one could find but when asked where it was, she said “you just go across the street and . . . you go past Wal-Mart and then you’ll see it right there.” She did not tell her mother about these touchings because defendant told her not to tell and she thought she would get in trouble with defendant.
Uncharged Offenses
C.S., who was born in December 1977 and is defendant’s younger sister, testified that when she was between seven and 14 years of age, she lived with defendant and her parents. During that time, defendant touched her with his hand and his penis in her vaginal area both under and over her clothing. When he used his hand, he only touched the outside of her vagina but when he used his penis he would occasionally insert it into her vagina. The touchings would last about five minutes.
Defendant was born in July 1972.
The first touching took place in the bathroom of their home when C.S. was seven and defendant was 12. He touched her with his hand about 20 times and he inserted his penis into her more than three times.
As C.S. grew older and understood about sexual intercourse, she asked defendant to stop because she did not want to get pregnant. When she was 13 years old, her parents discovered that defendant had been molesting her and her father spoke to defendant but defendant continued to molest her. She never reported the molestations to the police and was angry with defendant for a period of time. However, she has since forgiven him and when they spoke about what he had done to her, he thanked her for forgiving him and told her he was very sorry for what he had done.
Defense
Defendant took the stand and denied committing all of the charged acts. He testified that D.B.’s children did not get along, that E.G. was a bully who would slap H.G., and there were times when he had to spank E.G. and K.G. as a disciplinary measure.
Concerning the bathtub incident, defendant explained that he was taking a bath by himself when the three children came into the bathroom and proceeded to undress themselves and then tried to climb into the bathtub. Defendant was embarrassed and jumped out of the tub, wrapped a towel around himself, and got dressed. E.G. was just stepping into the tub as he was about to get out, but he was never in the bathtub with all three children at the same time.
Defendant categorically denied touching H.G. inappropriately at any time, playing a “tent” game with K.G. or the other children, or taking off his clothes while the children were playing around him. He also denied touching M.’s private parts, touching her inappropriately, or being naked in her presence.
He admitting laying on top of his sister but denied ever putting his penis inside her. He testified that he did not know that type of behavior was wrong until he was about 12 or 13 years old and his father spoke to him about sexual matters. He now thinks that conduct is unacceptable.
DISCUSSION
I.
Failure to Discharge Juror No. 7
Defendant contends the trial court abused its discretion when it failed to conduct an inquiry into whether juror No. 7 should be excused. Respondent contends there was no abuse of discretion. We agree with respondent.
A. Procedural Background
On the first day of trial, following the lunch recess, defense counsel advised the court that when he left the courtroom at the noon break, he noticed juror No. 7 sitting in the hallway “crying strenuously.” It concerned him, so he informed the prosecutor and was informed the court was in possession of a written note from that juror. When counsel left the courtroom again, the juror was still in the hallway “crying hard.” Counsel told the court he had concerns about whether the juror could be fair and impartial based upon her strong reaction so early in the case when the first witness had not even completed her testimony.
The trial court advised counsel it had in fact just received a note from the juror and read the note into the record as follows: “How is asking [the child witness] to talk about privates in front of a room full of strange adults an okay practice? Is this really the right thing to do? It seems cruel.”
The court denied counsel’s request to replace the juror, unless she communicated with the court and indicated she was unable to proceed in this case. However, the court indicated it would speak to the jury about the tension between the formality of a trial and the informality it would normally use in communicating with minors.
H.G., who had been testifying at the time, resumed the witness stand and at the conclusion of her testimony, the court addressed the jury. The court spoke about the problem of having young children testify in court about sexual matters, explained that in the past, child witnesses did not pose a problem because children were considered incompetent to testify, but now that they are allowed to testify, courts must struggle with the question of making the courtroom child friendly while protecting defendants’ rights. The court indicated that it had advised counsel it would waive some of the formalities and take more frequent breaks and if it sees “that a child is exceedingly uncomfortable, we may give the child five or ten minutes to calm down.” The court reassured the jury “none of us here in the courtroom are trying to make this process any more difficult than it is,” acknowledged that it is difficult for the witnesses and for everyone involved and “to bear with us as we march through this.”
B. Analysis
Section 1089 grants the trial court discretion, at any time before or after submission of the case to the jury, to replace an original juror with an alternate juror upon a finding of good cause that the juror is unable to perform his or her duty. Good cause may be found where a juror displays actual bias (People v. Keenan (1988) 46 Cal.3d 478, 532), is inattentive, forgetful, and unable to deliberate (People v. Williams (1996) 46 Cal.App.4th 1767, 1780-1781), refuses to follow the law (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1446, fn. 2) or expresses an opinion about the defendant’s innocence prior to deliberations. (People v. Daniels (1991) 52 Cal.3d 815, 863-864.)
The trial court’s authority under section 1089 includes broad discretion to investigate a matter involving a juror’s inability to perform his or her duties. (People v. Ray (1996) 13 Cal.4th 313, 343-344.) “‘[O]nce the court is put on notice of the possibility a juror is subject to improper influences it is the court's duty to make whatever inquiry is reasonably necessary to determine if the juror should be discharged and failure to make this inquiry must be regarded as error. [Citation.]’” (People v. Cleveland (2001) 25 Cal.4th 466, 477, quoting People v. Burgener (1986) 41 Cal.3d 505, 520, overruled on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 753.)
However, not every incident involving a juror’s conduct requires or warrants further investigation. (People v. Cleveland, supra, 25 Cal.4th at p. 478.) “‘[A] hearing is required only where the court possesses information which, if proven to be true, would constitute “good cause” to doubt a juror’s ability to perform his duties and would justify his removal from the case. [Citation.]’” (Ibid., quoting People v. Ray (1996) 13 Cal.4th 313, 343, italics added.) We review the trial court’s decision to investigate the possibility of juror bias or misconduct for abuse of discretion. (People v. Cleveland, supra, 25 Cal.4th at p. 478.)
Defendant contends the trial court failed to conduct an adequate inquiry into whether juror No. 7 should have been excused. We disagree. Juror No. 7 handed the trial court a written note asking why the child witness must be questioned with such particularity about the alleged sexual offense, believing such questions were cruel. There was nothing in the note however, to indicate the juror was unable to serve as an impartial juror so as to prompt the need for an individualized inquiry. Instead, the court chose to address the juror’s concerns generally by explaining the legal process for child victim witnesses to the jury as a whole immediately following the conclusion of H.G.’s testimony. Nor is there anything in the record to suggest the court’s decision to proceed in that manner rather than conduct an individual inquiry failed to resolve the problem. There were no further incidents to alert the court that the juror was incapable of serving or continued to be emotionally upset, and trial counsel did not renew his concern regarding this juror.
In sum, there was no indication juror No. 7 was biased, had prejudged defendant’s guilt, or was unable to perform her duties as an impartial juror. Under these circumstances and the trial court’s decision to educate the jury about child witnesses, the court had no duty to investigate the matter.
Defendant asserts however, that juror No. 7’s emotional reaction to H.G.’s testimony was indicative of bias against him. We disagree. Because the juror’s note to the court came in response to the prosecutor’s examination of H.G., it is just as likely the juror was displeased with the prosecutor, whose questions appeared cruel to the juror. Either way, in light of the trial court’s admonition to the jury, the lack of any further questions, emotional outbursts by juror No. 7 or any other juror, or expressions of concern by counsel, we find no abuse of discretion or prejudice.
II
Evidence of Uncharged Offenses
Defendant contends the trial court erred when it admitted C.S.’s testimony under Evidence Code section 1108. We agree with respondent that the trial court did not abuse its discretion by admitting the evidence.
A. In Limine Motion
Defendant moved to exclude C.S.’s testimony under Evidence Code sections 352, 1101, subdivision (b), and 1108 on the ground there are significant factual differences between her testimony and the allegations of the complaining witnesses. The motion indicated that the evidence of the charged and uncharged offenses would show the following:
As to the charged offenses, defendant molested his daughter M. and his step-children while each child resided with him and their mother. When E.G. was six to eight years old, defendant touched her private parts under her clothes and tried to kiss her on the lips one time. When K.G. was eight years old, defendant played a “tent game” with the three children, in which defendant removed his clothes, crouched over on his hands and knees with a blanket over him, and then the two girls crawled between his legs while K.G. lay next to him. When H.G. was three to five years old, defendant touched the skin of her vaginal area and her “peepee” hurt. Defendant molested M. when she was six years old by touching her butt, which included her vagina and her rectum, with his hand under her clothes and with his foot. He touched her “big butt” three times before she was in kindergarten.
Defendant indicated the evidence of the uncharged offenses would show he began molesting C.S. when she was seven or eight years old and continued to do so until she was about 14 years old, and that he put his penis in her vagina about 15 of the 20 or 30 times he molested her. In addition, when she was 17 years old, he attempted to have intercourse with her as she was getting out of the shower. He grabbed her but she pushed him away.
The prosecution opposed the motion, indicating the proffered evidence would show defendant touched C.S.’s vaginal area, had sexual relations with her, and penetrated her vagina with his fingers. The prosecutor estimated her testimony would take approximately two hours to present.
The trial court denied the motion but limited C.S.’s testimony to those occasions when there was actual sexual conduct between the ages of seven and 14 years and excluded the repetitious incidents that occurred during those years and the bathroom incident, which took place when C.S. was 17 years old. In a thorough and thoughtful statement, the trial court set forth its reasons demonstrating it had balanced the probative value of the evidence against its prejudicial effect. In so doing, the court recognized the factual differences in the sexual activity of the charged and uncharged offenses but found the similarities between the victims (their age, relationship to and living arrangement with defendant) were sufficient to outweigh any prejudicial effect of the uncharged offenses. We find no abuse of discretion.
B. Analysis
Evidence of a person’s character or trait of character is generally inadmissible to prove his propensity to commit such conduct on a specific occasion. (Evid. Code, § 1101, subd. (a); People v. Falsetta (1999) 21 Cal.4th 903, 913 (Falsetta).) An exception to the rule exists when evidence of an uncharged offense is relevant to prove a fact such as motive, intent, common plan, identity, or absence of mistake or accident, other than disposition to commit the act. (Evid. Code, § 1101, subd. (b).)
Evidence Code section 1108, subdivision (a), states an additional and broader exception to the general rule by allowing propensity evidence in sex offense cases. (Falsetta, supra, 21 Cal.4th at p. 907.) That section provides that “[i]n a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not made inadmissible pursuant to Section 352.”
Section 1108 was intended to ensure that “the trier of fact would be made aware of the defendant’s other sex offenses in evaluating the victim’s and the defendant’s credibility” because “‘this evidence is “critical” given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial.’” (Falsetta, supra, 21 Cal.4th at p. 911.) By enacting Evidence Code section 1108, the Legislature found “evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of Evidence Code section 1101.” (People v. Yovanov (1999) 69 Cal.App.4th 392, 405.) Thus, Evidence Code section 1108 makes propensity evidence presumptively admissible subject to the limitation stated in Evidence Code section 352.
Evidence Code section 352 grants the trial court discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
In upholding Evidence Code section 1108 against a due process challenge, the court in Falsetta considered the basic reasons for excluding evidence of uncharged offenses, namely that such evidence may (1) place an undue burden on the defense to defend against uncharged offenses, (2) create judicial inefficiency by requiring mini-trials on uncharged offenses that may sidetrack the jury, and (3) cause undue prejudice to the defendant. (Falsetta, supra, 21 Cal.4th at pp. 916-917.)
The prejudice or damage to be avoided is not that which naturally flows from relevant, highly probative evidence, but from evidence that “tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues.” (People v. Karis (1988) 46 Cal.3d 612, 638; People v. Harris (1998) 60 Cal.App.4th 727, 737.)
Thus, the court in Falsetta instructed that to avoid undue prejudice from the admission of such evidence, the trial court must engage in a careful weighing process under Evidence Code section 352 by considering such factors as the nature, relevance, and possible remoteness of the uncharged offense, “the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (Falsetta, supra, 21 Cal.4th at p. 917.)
We review the trial court’s ruling for abuse of discretion. (People v. Frazier (2001) 89 Cal.App.4th 30, 42.)
Defendant was charged with violations of and attempts to violate section 288, which is a qualifying sexual offense under Evidence Code section 1108, subdivision (d)(1)A) and (F), as are the uncharged offenses. (Evid. Code, § 1108, subd. (d)(1)(A).) The uncharged acts are therefore presumptively admissible. (People v. Yovanov, supra, 69 Cal.App.4th at p. 405.)
We next consider whether the probative value of the uncharged offenses outweighed its prejudicial effect. In determining probative value, we consider whether the evidence is relevant to the credibility of a witness and has any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code, § 210.) Here the evidence of the uncharged offenses was relevant to the credibility of the complaining witnesses because the charged offenses were committed outside the presence of other adults and defendant categorically denied committing them. (Falsetta, supra, 21 Cal.4th at p. 917.)
“[T]he probative value of ‘other crimes’ evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each offense.” (Falsetta, supra, 21 Cal.4th at p. 917.)
The charged and uncharged offenses were similar because they all involved nonviolent molestations of a prepubescent family member who was living with defendant at the time of the molestation. Although some of the uncharged acts involved sexual intercourse, an act not included in the charged offenses, the proffered evidence also included touching C.S.’s vaginal area and inserting his fingers into her vagina. These acts were similar to the acts committed against E.G., H.G., and M., which all involved touching their vaginal area and in M.’s case, also putting his penis in her “butt.” Given the variety of sexual acts charged, the difference between sexual intercourse and foreign object penetration of a young family member’s genital and rectal openings are not that dissimilar. We also note that the evidence of the charged and uncharged crimes came from independent sources, i.e., each victim.
Turning to the question of remoteness, “[r]emoteness of prior offenses relates to ‘the question of predisposition to commit the charged sexual offenses’” (People v. Branch (2001) 91 Cal.App.4th 274, 285, quoting People v. Harris, supra, 60 Cal.App.4th at p. 739) and the probative value of an uncharged offense is diminished by its remoteness to the charged offenses. (Falsetta, supra, 21 Cal.4th at p. 917.) The uncharged crimes were committed between 1984 and 1991 while the charged offenses occurred between 2001 and 2004, a 10-year period of time. That 10 years is significant because defendant was only an adolescent when he began molesting C.S., not the adult who molested his daughter and step-children. However, because he continued to molest C.S. until she was 14 years and he was 19 years, we cannot say the 10-year-gap between the charged and uncharged offenses reduced the probative value of the evidence an appreciable degree given the similarities between the offenses and the independent source of the evidence.
We also find the inflammatory effect of the uncharged offenses is negligible. (Compare People v. Harris, supra, 60 Cal.App.4th at p. 741 [holding admission of a brutal and bloody uncharged rape of a women in her home was prejudicial error in a case involving nonviolent sex offenses against two institutionalized mental health patients].) Neither the charged nor uncharged offenses involved force or violence, use of a weapon, or the infliction of bodily injury. It might even be said that some of the evidence involving C.S. was less inflammatory than the charged acts because defendant was an adolescent when he committed the acts against C.S. and therefore his behavior could be viewed as adolescent experimentation, as defendant testified it was.
Furthermore, the proffered evidence did not create an undue burden on defendant to defend against uncharged offenses. Although he was never prosecuted for those offenses, he had notice of the evidence prior to trial, admitted the acts at trial but testified that he did not know they were wrong at the time. There was no risk the evidence would side-track the jury with a lengthy mini-trial because as the prosecution represented to the court in its opposition papers, C.S.’s testimony would not take up much time. In fact, her testimony took up only 15 pages of the reporter’s transcript, was devoid of any inflammatory details, and she even testified she had forgiven defendant for what he had done and was no longer angry with him.
Therefore, in light of the presumptive probative value of the evidence, the fact the charged offenses involved four victims who each testified or made statements about multiple acts of molestation by defendant, the similarities between the charged and uncharged offenses, and the lack of any significant prejudicial effect of the evidence, we cannot say the trial court abused its discretion by admitting it. We therefore reject defendant’s claim of error.
III
Substantial Evidence
Defendant challenges the sufficiency of the evidence to support the convictions on the six counts involving the “tent game” (counts 2, 3, 9, 10, 12, 13) and the three counts involving the bath incident. (Counts 4, 11, 16.) He argues the evidence is inherently improbable to support the convictions for the tent game incidents and there is no evidence of a touching or criminal intent to support the convictions for the bath incident. Respondent contends there is substantial evidence to support the jury’s verdicts on these counts. We agree with respondent.
A. Standard of Review
When evaluating a challenge to the sufficiency of the evidence, “the relevant question is whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 573].) When addressing that question, we view the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Ibid.; People v. Johnson (1980) 26 Cal.3d 557, 576.) While we must ensure the evidence is substantial, i.e., it is reasonable, credible, and of solid value, it is the exclusive province of the trier of fact to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. (People v. Jones (1990) 51 Cal.3d 294, 314.)
B. General Principles of Law
With the exception of count 9, which alleged a violation of section 288, subdivision (a), the other counts involving the tent game charged an attempt to commit that offense. (§§ 664/288, subd. (a).) The counts involving the bathtub incident all alleged violations of section 288, subdivision (a).
Section 288, subdivision (a), punishes any person “who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body . . . of a child who is under the age of 14 years, with the intent of arousing . . . or gratifying the lust, passions, or sexual desires of that person or the child . . . .” The crime of attempt requires proof the person had (1) the specific intent to commit the crime and (2) committed a direct but ineffectual act toward its commission. (§ 664.)
In cases involving a resident child molester who has continuous access to his young victims, generic testimony which outlines a series of specific, albeit undifferentiated, incidents each of which amounts to a separate offense, such as “an act of intercourse ‘once a month for three years,’” constitutes substantial evidence of each offense. (People v. Jones, supra, 51 Cal.3d at pp. 299, 314.)
Under those circumstances, the evidence is sufficient if the victim gives testimony, which describes (1) the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct has occurred and to differentiate between the various types of proscribed conduct (e.g., “lewd conduct, intercourse, oral copulation or sodomy”), (2) the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g. “‘twice a month’ or ‘every time we went camping’”), and (3) the general time period of which these acts occurred (e.g., “‘the summer before my fourth grade,’ or ‘during each Sunday morning after he came to live with us’”) to assure the acts were committed within the applicable period of limitations. (People v. Jones, supra, 51 Cal.3d at p. 316.) “Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim’s testimony, but are not essential to sustain a conviction.” (Ibid.)
1. Tent Game
As charged, counts 2 and 3 were committed against E.G., counts 9 and 10 were committed against K.G., and counts 12 and 13 were committed against H.G.
According to K.G.’s testimony and his interview with the CPS worker, defendant played a “tent game” with K.G. and his two sisters. They played the game twice when K.G. was in kindergarten and his teacher was Mr. Ramirez. It was during the daytime when his mother was at work and they played the game on the bed in D.B.’s room. The children were clothed but defendant was naked except for a blanket that was draped over him while he crouched over on his hands and knees. K.G. lay beside defendant with his arm touching defendant’s arm, while the two young girls crawled on their stomachs between defendant’s arms and through his legs, trying not to touch defendant’s penis. K.G. recalled that his sisters went through the tent twice on one day and two or three times on the other day.
This evidence satisfies the Jones test. It describes the game in significant detail and gives the number of times it took place and the time period when it occurred. Indeed, defendant concedes the evidence satisfies the Jones test, but contends the evidence of the two “tent game” incidents is inherently improbable because E.G. and H.G. essentially denied K.G.’s account of the game and it is not a game a seven or eight year-old would play since, according to defendant, children that age do not crawl around on their hands and knees.
Although defendant characterizes K.G.’s testimony as inherently improbable, in actuality he asks this court to go beyond its province by reconsidering the credibility of the witnesses and reweighing the evidence.
A reviewing court will not uphold a judgment or verdict based upon evidence inherently improbable. However, testimony that merely discloses unusual circumstances does not come within that category. (People v. Barnes (1986) 42 Cal.3d 284, 306.) Evidence is inherently improbable when it is either physically impossible or its falsity is apparent without resorting to inferences or deductions. “‘“Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]” . . . .’” (People v. Barnes, supra, 42 Cal.3d at p. 306.)
It is true E.G. denied participating in a game called “tent,” while H.G. testified to a more innocent version of the game. In H.G.’s version, the four-some sat under a blanket that rested on their heads and no one crawled around. She could not recall the details of the incident as well as K.G., including whether defendant had his clothes on although at one point she testified all of them were clothed.
The fact K.G.’s testimony was at variance with his sisters’ testimony is a question of credibility, a matter solely for the jury’s consideration and beyond the province of this court. (People v. Jones, supra, 51 Cal.3d at p. 314.) Nor is K.G.’s account of the tent incident physically impossible or patently false. We therefore reject defendant’s claim with respect to counts 2, 3, 9, 10, 12, and 13.
Our review of K.G.’s interview with the CPS worker discloses a compelling account of the tent incidents. Although he was initially very reluctant to talk about the game, he eventually opened up and gave a very descriptive account of how the game was played.
2. Bathtub Incident
The information charged defendant with violating section 288, subdivision (a) in counts 4, 11, and 16. The evidence established that in 2001 when E.G. was seven years old, K.G. was five years old, and H.G. was three years old, defendant took a bath with all three children.
Defendant argues the evidence fails to meet the first two prongs of the Jones test because it cannot be determined whether defendant touched any of the children while they were in the bathtub or whether he harbored the requisite lewd intent. He asserts that H.G. merely testified she once took a bath with defendant and could not remember if anyone else took a bath with them; E.G. testified she took a bath with defendant and her siblings and she was at the end of the tub while H.G. was in the middle; and K.G. testified that they all took a bath with defendant but he (K.G.) was at the far end of the tub where defendant’s feet touched him. Although we have no quarrel with defendant’s summary of the evidence, we disagree with his legal conclusion.
Section 288, subdivision (a) is violated by any touching of an under-age child, even a touching that is innocuous and inoffensive on its face, if done with the intent to obtain immediate sexual arousal or gratification. (People v. Martinez (1995) 11 Cal.4th 434, 452.) The manner and circumstances of the charged act are highly relevant in making that determination. (Id. at pp. 445, 452.) Other relevant facts may include other charged or uncharged acts of lewd conduct, the relationship of the parties, or any coercion, bribery, or deceit used to obtain the victim’s cooperation. (Id. at p. 445.)
Here H.G. testified she took a bath with defendant when she was three years-old, which would have been in 2001. E.G. and K.G. testified they were all in the bathtub together, and K.G. testified defendant’s foot touched him. From this evidence the jury could reasonably find defendant was naked in the tub with three children, two of whom were old enough to bath themselves, and he had committed other lewd and lascivious acts on these three children and others. These circumstances raise a strong inference (1) that defendant acted with lewd intent and (2) given the tight fit of three children and one adult in a bathtub, that he necessarily touched all three children. The evidence is therefore sufficient to support the verdicts.
IV
Imposition of Three Life Sentences
Defendant contends imposition of life sentences on counts 8, 14, and 15 pursuant to section 667.61, subdivision (b) was reversible error. Relying on People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo), he contends failure to expressly allege the multiple victim circumstance, one of the enumerated circumstances in section 667.61, subdivision (e), violated the statutory pleading and proof requirements and his due process right to fair notice. He further contends the failure to allege and instruct on this circumstance violated his right to a jury trial under Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435](Apprendi).
Defendant also contends the life sentences are unauthorized because they are based upon the jury’s finding he engaged in substantial sexual conduct, a circumstance not enumerated in section 667.61, and that the jury’s finding on that circumstance is unsupported by the evidence on count 15.
As to defendant’s first ground of error, respondent contends defendant forfeited his constitutional claims by failing to object. Respondent further argues the claim has no substantive merit because the information provided adequate notice and the verdict forms constitute de facto findings by the jury that defendant committed a qualifying offense against more than one victim. Last respondent contends the evidence is sufficient to support the jury’s finding of substantial sexual conduct.
We reject this argument in part because defendant objected to the one strike sentence under Mancebo, supra, 27 Cal.4th 735, which is based in large part upon the defendant’s due process right to fair notice. (Id. at pp. 747-749.)
We find defendant’s claims have no merit because the pleading defect was harmless error, his rights to due process and a jury trial were not violated, and the trial court did not impose life sentences based upon the jury’s substantial sexual conduct finding.
A. Statutory Background
The Legislature enacted section 667.61, hereafter referred to as the One Strike law, in 1994 (Stats. 1994, ch. 14 (First Extra Sess.), operative November 30, 1994), which provides an alternative and harsher sentencing scheme for certain specified sex crimes. (Mancebo, supra, 27 Cal.4th at p. 741.) The section has been amended several times. We shall refer to the version in effect when defendant committed the present offenses. (Stats. 1998, ch. 936, § 9, pp. 32-34.)
Under that version, section 667.61 applies if a person is convicted of a specified offense under one or more of the enumerated circumstances. Subdivision (a) of the section requires imposition of a term of 25 years to life for a person convicted of one of the specified offenses under one or more of the circumstances specified in subdivision (d) or under two or more circumstances specified in subdivision (e). Subdivision (b), under which defendant was charged and sentenced, provides for imposition of a term of 15 years to life for a person convicted of a specified offense, including section 288, subdivision (a), under one of the circumstances specified in subdivision (e). Subdivision (e) specifies seven circumstances, only one of which applies to the instant case, namely “[t]he defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim.” (§ 667.61, subd. (e)(5).)
Section 667.71, subdivision (e) states: “(e) The following circumstances shall apply to the offenses specified in subdivision (c):
Section 667.61 sets forth clear pleading and proof requirements. Subdivision (i) states the general requirement that the “existence of any fact required under subdivision . . . (e) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.” These pleading and proof requirements are referenced in subdivision (f), which specifies the circumstances that may be used as a basis for imposing a One Strike sentence when only the minimum number of circumstances have been pled and proved. It states that “[i]f only the minimum number of circumstances specified in subdivision (d) or (e) which are required for the punishment provided in subdivision (a) or (b) to apply have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision (a) or (b) rather than being used to impose the punishment authorized under any other law, unless another law provides for a greater penalty. However, if any additional circumstance or circumstances specified in subdivision (d) or (e) have been pled and proved, the minimum number of circumstances shall be used as the basis for imposing the term provided in subdivision (a), and any other additional circumstance or circumstances shall be used to impose any punishment or enhancement authorized under any other law. . . .”
B. Factual Background
The information charged defendant with 16 counts, alleging each count in connection with a victim identified by his or her initials. The last paragraph of the information alleges a One Strike sentence enhancement in statutory terms but fails to allege a specific qualifying circumstance.
The section 667.61 penalty is alleged as follows: Defendant “is a person described in Section 667.61(b) of the California Penal Code, ENHANCEMENT FOR SEXUAL OFFENDERS, in that the offenses described in above in Counts ONE (1) through SIXTEEN (16) were committed under one of the circumstances specified in Section 667.61(e) of the California Penal Code.”
Although not alleged as a sentencing factor, or an element of any of the charged offenses, the jury was instructed to determine whether defendant engaged in “substantial sexual conduct” if it found he committed one of the charged offenses against either H.G. or M. The jury found defendant guilty as to all 16 counts and found true the penalty enhancement allegation under section 667.61 as to counts 8, 14, and 15 and not true as to count 16. This finding was in the same general statutory language as the allegation in the information.
C. Analysis
1. Multiple Victim Circumstance
In Mancebo, supra, 27 Cal.4th 735, the defendant was charged and convicted of various sex crimes against multiple victims. The information alleged a gun-use enhancement under section 12022.5, subdivision (a) as to all counts, gun-use and kidnapping circumstances under the One Strike law (§ 667.61, subds. (a), (e)(1), (e)(4)) as to five counts and the gun-use and “tying or binding” circumstances (§ 667.61, subds. (a), (e)(4), (e)(6)) as to two other counts. The jury found all allegations true. At sentencing, the trial court imposed a 25-year-to-life sentence by substituting an unpled multiple victim circumstance (§ 667.61, subd. (e)(5)) for the expressly pled gun-use circumstance in order to satisfy the minimum number of circumstances required for One Strike sentencing under section 667.61, subdivision (f). As a result, the gun-use finding became available as a basis for a gun-use enhancement under section 12202.5. (Mancebo, supra, 27 Cal.4th at p. 740.) There was no challenge to the validity of the One Strike sentence. The question was whether the circumstance of gun-use was available to support two section 12022.5, subdivision (a) enhancements when that fact had been properly pled and proved as a basis for the One Strike life sentence but the multiple victim circumstance had not been pled nor expressly found true. (Id. at p. 738.)
The Supreme Court rejected the People’s argument that the notice and pleading requirements under section 667.61 were met by the allegations in the information charging each offense in connection with a specified victim. The court concluded the express pleading and proof requirements of section 667.61, subdivisions (i) and (f) and defendant’s due process rights had been violated because he “was given notice that gun use would be used as one of the two pleaded and minimally required circumstances in support of the One Strike terms, where after, at sentencing, the trial court used the unpled circumstance of multiple victims to support the One Strike terms and further imposed two 10-year section 12022.5(a) enhancements that could otherwise not have been imposed but for the purported substitution.” (Mancebo, supra, 27 Cal.4th at p. 753.) In sum, no factual allegation or pleading in the statutory language informed him that if he was convicted of the underlying offenses, the court could consider his multiple convictions as a basis for a One Strike sentence. (Id. at p. 745.)
The instant case does not pose the same fatal notice problems present in Mancebo because here no specific circumstance was pled so as to give defendant notice that the prosecution was relying on a properly pled circumstance rather than an unpled circumstance. As we show, the prosecution’s failure to specifically allege a multiple victim circumstance under section 667.61, subdivision (e) was harmless pleading error.
The general One Strike allegation in the information gave defendant notice the prosecution intended to request a One Strike sentence. The charges involving multiple victims gave notice of the existence of the facts of the multiple victim circumstance as a basis for One Strike sentences. Although the information did not allege any specific circumstance, as trial counsel recognized in his sentencing letter to the trial court, the multiple victim circumstance was the only one applicable under the facts of this case. Since no other circumstance was alleged, unlike in Mancebo, supra, 27 Cal.4th at page 749, where the prosecution was deemed to have waived the multiple victim circumstance by electing to rely on another properly pled circumstance, here the prosecution made no such election. Furthermore, defendant does not contend nor does the record suggest that he would have defended the case differently had the information properly pled the multiple victim circumstance.
Under these circumstances, we find defendant was given adequate notice that the prosecution was relying on the multiple victim circumstance and was not misled by the prosecution’s failure to specifically allege that circumstance.
Last, although the jury was not instructed to return an express multiple victim circumstance finding, by finding him guilty as charged of the crimes against all four victims under other properly given instructions, it impliedly determined that he was convicted of “‘an offense specified in subdivision (c) against more than one victim.’” (See Mancebo, supra, 27 Cal.4th at p. 746 [acknowledging that the jury’s verdict “at a minimum, can be deemed an implied factual determination that defendant was convicted of ‘an offense specified in subdivision (c) against more than one victim.’”].)
For this later reason, we also reject defendant’s claim under Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435], which held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490 [147 L.Ed.2d at p. 455], italics added.) Under this rule, the “statutory maximum” is the maximum sentence the trial courted may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. (Blakely v. Washington (2004) 542 U.S. 296, 303 [159 L.Ed.2d 403, 413].) Because the jury’s verdicts reflected findings that defendant committed a violation of section 288 against more than one victim, defendant’s Apprendi claim fails.
2. Substantial Sexual Conduct
Defendant contends the trial court improperly imposed One Strike sentences based upon the jury’s finding he engaged in “substantial sexual conduct” and the evidence fails to support that finding in connection with count 15.
“Substantial sexual conduct” is one of the circumstances enumerated in section 1203.066, which prohibits the grant of probation to offenders convicted of violating section 288 or 288.5 when the act is committed under one of the enumerated circumstances. (Former § 1203.066, subd. (a)(8); Stats. 1997, ch. 817, § 13.) Section 1203.066 as it read in 2001 through 2003 when defendant committed the instant crimes and under current law, has pleading and proof requirements similar to those stated in section 667.61.
However, as noted ante, the information did not allege the substantial sexual conduct circumstance or any other circumstance under section 1203.066 and it is not an element of any of the charged offenses. Although the jury was instructed to determine whether defendant engaged in “substantial sexual conduct,” it made no express finding in that regard.
The jury’s finding on the section 667.61 allegation was stated in the same general statutory language alleged in the information and the jury was not instructed that that allegation was based on the multiple victim circumstance. It is therefore reasonable to assume the jury’s true findings on that allegation as to counts 8, 14, and 15 are based upon the substantial sexual conduct instruction.
Despite all the confusion between the pleadings, the instructions, and the jury verdicts, the record makes clear that the trial court imposed the One Strike life sentences based upon the multiple victim circumstance, not a finding of substantial sexual conduct. This can be seen from the sentencing hearing where the court engaged in a lengthy discussion of Mancebo, supra, 27 Cal.4th 735. Accordingly, because the trial court did not base the sentences on a substantial sexual conduct circumstance and that circumstance is not an element of any of the charged offenses, we need not address defendant’s substantial evidence claim relating to that circumstance.
V
Clerical Error
Last defendant contends the abstract of judgment must be amended because it incorrectly states that counts 1 through 5 and count 7 were entered by plea rather than by jury trial. Respondent concedes the abstract of judgment should be corrected.
We agree and shall direct that an amended abstract of judgment be prepared.
DISPOSITION
The judgment is affirmed.
The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting that defendant was convicted on counts 1 through 5 and count 7 by jury and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P. J., CANTIL-SAKAUYE, J.
(1) Except as provided in paragraph (2) of subdivision (d), the defendant kidnapped the victim of the present offense in violation of Section 207, 209, or 209.5.
(2) Except as provided in paragraph (4) of subdivision (d), the defendant committed the present offense during the commission of a burglary, as defined in subdivision (a) of Section 460, or during the commission of a burglary of a building, including any commercial establishment, which was then closed to the public, in violation of Section 459.
(3) The defendant personally inflicted great bodily injury on the victim or another person in the commission of the present offense in violation of Section 12022.53, 12022.7, or 12022.8.
(4) The defendant personally used a dangerous or deadly weapon or firearm in the commission of the present offense in violation of Section 12022, 12022.3, 12022.5, or 12022.53.
(5) The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim.
(6) The defendant engaged in the tying or binding of the victim or another person in the commission of the present offense.
(7) The defendant administered a controlled substance to the victim by force, violence, or fear in the commission of the present offense in violation of Section 12022.75.”