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People v. Figures

Court of Appeals of California, Fifth Appellate District.
Nov 25, 2003
No. F041933 (Cal. Ct. App. Nov. 25, 2003)

Opinion

F041933.

11-25-2003

THE PEOPLE, Plaintiff and Respondent, v. ROBERT LEE FIGURES, Defendant and Appellant.

Candace Hale, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.


OPINION

THE COURT

Appellant Robert Lee Figures was convicted after a jury trial of two counts of lewd and lascivious acts on a child under age 14 (Pen. Code, § 288, subd. (a), counts three and six). The trial court sentenced Figures to prison for the upper term of eight years on both counts, but stayed the term on count six. The court ordered Figures to pay a restitution fine and granted applicable custody credits. On appeal, Figures contends the trial court erred in admonishing the jury with the child witness instruction, CALJIC No. 2.20.1.

Figures was charged with 10 counts of lewd and lascivious acts on a child under age 14. The jury acquitted Figures of count one. The trial court granted an acquittal motion on counts nine and ten. The jury could not reach verdicts on the remaining counts.

FACTS

On October 23, 2001, the Bakersfield Police Department received a report from authorities in Tucson, Arizona, that appellants six-year-old stepdaughter Kionna had been molested. The molestations allegedly occurred in Bakersfield. Kionnas mother, Melanie W., had lived with Figures in Bakersfield until they permanently separated in August 2000. The couples divorce was final in November 2000. Figures was permitted custody of his children with Melanie and of Kionna on alternate weekends. Figures would take the children to his mothers house on Parkwood Drive.

The trial court granted acquittal motions on counts nine and ten. The jury acquitted Figures of count one and could not reach verdicts on counts two, four, five, seven, and eight. We will not review in detail the evidence of those counts in which there was an acquittal or in which the jury failed to reach a verdict.

In October 2001, Kionna and the other children went to Tucson to stay with Melanies mother. Melanie asked Kionna if anyone ever touched her inappropriately. Kionna always replied no to the question.

One day, Melanies 17-year-old sister was talking to the children when the youngest said he missed his father. Kionna said she did not miss him because he stuck his tongue out at her, made her suck his chi-chis (nipples), and made her touch his private part until white stuff came out. Kionna repeated the information to her mother who in turn informed the authorities in Tucson and Bakersfield.

A clinical psychologist testified about Child Sexual Abuse Accommodation Syndrome to explain how a child adapts to sexual abuse. The psychologist also testified that the syndrome includes a delay in the reporting of incidents of sexual abuse.

Kionna was a few days from turning eight when she testified. Kionna explained that Figures made her suck his chi chis, made her suck his private part, made her hold his private part, and put his private part on her shorts. These events occurred on the stairs of the familys apartment on Q Street, at a residence on Summerfield Drive, and at the Parkwood home of Figuress mother.

Kionna described two sexual acts in which she orally copulated Figures at the Summerfield Drive residence (count three) and again at the Parkwood home (count six). In both instances, Figures ejaculated. Kionna testified that during the Summerfield Drive incident, "white stuff" came from Figuress private part and landed on the stairs. The second incident occurred in the Parkwood home living room just outside the kitchen.

Figures told authorities he never ejaculated on the stairs of the Summerfield Drive residence with Kionna. Figures admitted he had a sexual compulsion, but had intercourse with many different women at the residence while Melanie was away. Figures told investigators they would probably find his semen on the floor, the walls, and even the stairs. Figures described one act of intercourse with a woman companion while Melanie was away. Figures was standing next to the bed. He walked to the stairway and ejaculated. When he looked over, he saw Kionna watching him. Figures told investigators that Kionna had walked in on him as he masturbated while watching pornographic videos.

Investigators found DNA evidence at a specific location on the stairway that Kionna pointed out.

Figuress mother testified that when Figures moved into her home, there were seven children and two adults, not counting Figures. The children often had friends over and there was a lot of activity. Mrs. Figures could only remember Kionna visiting once, but never spending the night. Figures remarried on September 29, 2001. This was shortly before the allegations were made against him. One defense witness testified that she often heard Melanie making disparaging comments about Figuress new wife and her baby.

CALJIC No. 2.20.1

Figures contends that this instruction unfairly enhanced the credibility of Kionna, a child witness, thereby lessening the prosecutions burden of proof. Figures asserts that the portion of the instruction that allows the jury to disregard the fact that a child "may perform differently" than an adult invades the jurys exclusive province of assessing witness credibility and creates an aura of special deference to the child witnesses.

The jury was instructed on how to evaluate the testimony of a child pursuant to CALJIC No. 2.20.1 as follows:

"In evaluating the testimony of a child ten years of age or younger[,] you should consider all of the factors surrounding the childs testimony, including the age of the child[,] and any evidence regarding the childs level of cognitive development. A child, because of age and level of cognitive development, may perform differently than an adult as a witness, but that does not mean that a child is any more or less believable than an adult. You should not discount or distrust the testimony of a child solely because he or she is a child."

`Cognitive means a childs ability to perceive, to understand, to remember, and to communicate any matter about which the child has knowledge."

Figuress precise argument was rejected in People v. Harlan (1990) 222 Cal.App.3d 439. The Harlan court found that the word "perform" applies to nonverbal action and "... refers to one of many factors to be applied by a jury in determining a [child] witnesss credibility, namely, the demeanor and manner of the witness while testifying. [Citation.]" (Id. at p. 455.) This holding was reaffirmed in People v. Jones (1992) 10 Cal.App.4th 1566 which reasoned:

"The word `perform does not connote or direct the jury to apply the factor of demeanor in assessing credibility differently to a child witness than it would to an adult witness. The second sentence of CALJIC No. 2.20.1, which is the sole basis for defendants challenge, does not instruct the jury that because a child `performs differently on the witness stand, he or she for that reason alone is more credible than a nonchild witness. As we stated in Harlan, the second sentence, including the word ` perform, `... refers to one of many factors to be applied by a jury in determining a [child] witnesss credibility, namely, the demeanor and manner of the witness while testifying. [Citation.] [Citation.] This advice does not remove the issue of credibility from the jury; in fact, it presupposes that the jury must make a determination of credibility, but only after considering all the factors related to a childs testimony, including his demeanor, i.e., how he or she testifies on the stand, which encompasses the manner of speaking." (Id. at pp. `1573-1574; in accord, People v. Gilbert (1992) 5 Cal.App.4th 1372, 1392-1394.)

Figuress argument is unconvincing given the jurys verdicts. Had the challenged instruction removed the issue of the child witnesses credibility from the jurys consideration, it is unlikely the jury would have acquitted Figures of one count and failed to reach a verdict on five other counts. It appears that the jury carefully evaluated the credibility of the witnesses, including the child-victims credibility. We find the opinions of Harlan, Gilbert, and Jones to be dispositive and, therefore, reject Figuress argument.

Figures also casts his argument as a deprivation of his constitutional rights to a jury trial and to due process of law. These assertions were also made and rejected in the Harlan case. (People v. Harlan, supra, 222 Cal.App.3d at pp. 454-456.)

DISPOSITION

The judgment is affirmed.


Summaries of

People v. Figures

Court of Appeals of California, Fifth Appellate District.
Nov 25, 2003
No. F041933 (Cal. Ct. App. Nov. 25, 2003)
Case details for

People v. Figures

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROBERT LEE FIGURES, Defendant and…

Court:Court of Appeals of California, Fifth Appellate District.

Date published: Nov 25, 2003

Citations

No. F041933 (Cal. Ct. App. Nov. 25, 2003)