Opinion
A098718.
10-7-2003
THE PEOPLE, Plaintiff and Respondent, v. JAMES CARRYL FISHER, Defendant and Appellant.
Appellant James Carryl Fisher was charged with four counts of committing lewd and lascivious acts on a child under the age of 14 years (Pen. Code, § 288, subd. (a)), a fifth count of committing a lewd and lascivious act on a second child, also under the age of 14 years, and one count of indecent exposure. (Pen. Code, §§ 288, subd. (a); 314, subd. 1.) It was alleged that all offenses occurred between the months of September 1999 and April 2000. It further was alleged that appellant committed the offenses on more than one victim at the same time and in the same course of conduct, and that the first four counts involved substantial sexual conduct with the victim. (Pen. Code, §§ 1203.066, subd. (a)(7); 1203.066, subd. (a)(8); and 667.61.)
The matter was tried to a jury, which returned a verdict finding appellant guilty of two of the counts involving the first child, and finding not true the allegations of substantial sexual conduct. The jury found appellant guilty of the lesser-included offense of attempted lewd and lascivious act with the second child, and guilty of the crime of indecent exposure. The jury found appellant not guilty of the other charges and of the allegation of having committed a lewd and lascivious act on more than one victim.
We will affirm.
FACTS
Appellant and his former wife lived in Lakeport. The wifes eight-year-old niece and six-year-old nephew joined them from October 1999 through mid-May 2000. In May, the wife went into a trailer on the property, and found appellant photographing the niece, who was wearing a somewhat transparent nightgown. Appellant had taken many pictures of the niece, and at his wifes request, showed her computer images of them. There were pictures of the niece in lingerie, or taking off her clothing. The wife described the pictures as sexual in nature. Appellant deleted them at her request.
The children testified that appellant, after licking his finger, put it into the nieces vagina on several occasions. The niece testified that he also licked her vagina more than once. He had the niece touch his penis twice, and had the nephew touch it once. Once, after asking the children if they wanted to know where the water came out, appellant masturbated, in their presence, into a condom. Once, while lying with appellant on his bed, watching television, the niece thought she was rubbing appellants thumb, but discovered that she actually was rubbing his penis. After appellant started touching the niece, he started to take pictures of her. She was partially unclothed in some of the pictures, or was dressed in see-through clothing. At times appellant had her pose with her legs open. Sometimes he had her touch her vagina with her hand. Appellant showed the children pornographic pictures on his computer, including pictures of young girls and adults.
The police seized appellants computer. A cleaning, or wiping, utility had been run against the hard drive in June 2000, effectively wiping clean any files that had been deleted. An investigator, however, was able to retrieve three files, each of which held 16 pornographic images of two young girls (not the niece). At least some of the pictures were consistent with images that might have been downloaded from the Internet. Police also recovered images that had been downloaded after the wiping utility had been run. The images included both child and adult pornography.
Appellant denied touching his niece inappropriately, or asking her to touch him. He denied having masturbated in front of the children. He admitted taking pictures of the niece, including pictures of her without clothing and in a see-through nightgown, also admitting that some of the pictures were inappropriate as they exposed her genitals. He claimed, however, that he had no sexual interest in the niece. He may have posed her by touching her shoulder or her chin, but he did not pose her so that her genitals showed or when she was touching her genitals.
The defense also called a child psychiatrist as an expert witness, who testified that the techniques used by the police in questioning the children were techniques that could cause children to "recall" what the interviewer believed happened or might have happened, rather than what had in fact happened.
DISCUSSION
Penal Code section 288, subdivision (a) makes it a crime for any person to commit any lewd or lascivious act upon 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. Most often, the lewd or lascivious act involves contact between the defendant and the child. It has been recognized, however, that the touching element of the offense may be shown by evidence that the touching aspect of the crime was "done by the child victim on its own person providing such touching was at the instigation of the person who had the required specific intent." (People v. Imler (1992) 9 Cal.App.4th 1178, 1182, citing People v. Austin (1980) 111 Cal.App.3d 110, 114.) The court in Imler, still citing Austin, further noted, "[t]he accused does not have to commit the lewd act. The defendants intent may be inferred from his conduct which was to order the victim to commit a lewd act upon himself [or herself]." (People v. Imler, supra, 9 Cal.App.4th at p. 1182.)
Here, the prosecution based one of the charges against appellant (count II) on the evidence that appellant had posed the niece so that she was touching her vagina. In connection with that offense, and in light of People v. Imler, supra, the prosecution sought and obtained the following special instruction:
"The touching necessary to violate Penal Code section 288(a) may be done by the child victim on his or her own person, providing such touching was at the instigation of the defendant, who had the required specific intent. The defendants intent may be inferred from his conduct which was to direct the victim to commit a lewd act upon him or herself."
Appellant contends that giving this instruction was reversible constitutional error.
I.
Waiver
The People point out, correctly, that appellant did not object to the instruction in the trial court, claiming that appellant therefore waived the objection. Under Penal Code section 1259, however, an "`appellate court may . . . review any instruction given . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." (People v. Elsey (2000) 81 Cal.App.4th 948, 953-954, fn. 2.) Appellant argues that that the instructions lessened the prosecutions burden of proof, deprived appellant of due process, and effectively took an issue away from the jury. These arguments, if accepted, would mean that the error affected substantial rights of appellant. We therefore consider the arguments notwithstanding appellants failure to object to the instruction below.
II.
Standard of Review
Unless an instructional error is "structural," it is reviewed under Chapman v. California (1967) 386 U.S. 18, 24, and the judgment will be affirmed if it appears beyond a reasonable doubt that the error did not contribute to the jurys verdict. An instruction that improperly describes or omits an element of an offense, or that raises an improper presumption or directs a finding or a partial verdict upon a particular element, generally is not a structural error. (People v. Flood (1998) 18 Cal.4th 470, 502-504.)
Appellant contends that at least one of his contentions—that the instruction lessened the prosecutions burden of proof—is a contention of structural error, requiring reversal per se. As we conclude that the prosecutions special instruction did not lessen the prosecutions burden of proof, we need not determine the validity of this contention. To the extent we find error, therefore, we consider whether the error was harmless under Chapman.
III.
Burden of Proof, Due Process and Analogy to CALJIC No. 2.50.01
It is true, as appellant asserts, that the case cited by the prosecution in requesting the instruction—People v. Imler, supra, 9 Cal.4th 1178—does not support the giving of such an instruction. The question in that case was whether evidence that a child touched himself could support a finding that the defendant had committed a lewd act. The court answered that question affirmatively, also recognizing that the defendants intent might be inferred from his conduct. (Id. at p. 1182.) A holding that a jurys verdict might be upheld on certain evidence is a far cry from holding that the jury should be instructed that it can base a finding of guilt on that evidence. Imler does not suggest that it is necessary or even proper to instruct a jury that it can use a particular factor to find that an element of a crime is present. As we find that appellant was not harmed by the instruction, however, we need not decide whether the court erred in giving it.
Appellant contends that the prosecutors special instruction reduced the prosecutions burden of proof. In support of this contention, appellant cites cases finding that former CALJIC No. 2.50.01 unconstitutionally reduced the prosecutions burden of proof.
CALJIC No. 2.50.01 is given in cases where a defendant is charged with committing a sexual offense and there is evidence that the defendant committed one or more sexual offenses in the past. It instructs the jurors, in part, that if they find that the defendant had committed a prior sexual offense, they may, but are not required to, infer that the defendant has a predisposition to commit the same or similar types of sexual offenses. In addition, if they find that the defendant has that disposition, they may, but are not required to, infer that the defendant is likely to commit and did commit the crime or crimes of which the defendant is charged.
Former CALJIC No. 2.50.01 also instructed the jurors that "[w]ithin the meaning of the preceding instructions, the prosecution has the burden of proving by a preponderance of the evidence that a defendant committed a sexual offense other than those for which he is on trial. [¶] You must not consider this evidence for any purpose unless you find by a preponderance of the evidence that a defendant committed the other crime or sexual offense." CALJIC No. 2.50.2 informed the jurors that preponderance of the evidence means evidence with more convincing force than that opposed to it, and that they should find against the party with the burden of proof if the evidence is so evenly balanced that they are unable to find that the evidence on either side preponderates.
The primary criticism lodged against former CALJIC No. 2.50.01, was that "[i]n combination, CALJIC Nos. 2.50.01 (pre-1999), 2.50.1, and 2.50.2 permitted the jury to find by a preponderance of evidence that [a defendant] committed the prior crimes, to infer from such commission of the prior crimes that [the defendant] had a disposition to commit such crimes, and to infer from such disposition that appellant `did commit the charged crimes, without necessarily being convinced beyond a reasonable doubt that appellant committed the charged crimes." (People v. Orellano (2000) 79 Cal.App.4th 179, 184.)
In the present case, unlike those where former CALJIC No. 2.50.01 was given, there is no likelihood that appellants conviction rests on a finding, by a preponderance of the evidence, that some preliminary fact exists. Although the prosecutors special instruction—like CALJIC No. 2.50.01—allowed the jury to infer an element of the crime (intent) from a preliminary fact (conduct), the jury was not instructed that the prosecution needed only to prove the preliminary fact by the preponderance of the evidence, and nothing in the instructions given could have suggested that the prosecutions burden on any element of the crime was anything less than proof beyond a reasonable doubt.
Appellant complains that the instruction invited jurors to infer guilt from preliminary facts, asserting that "[t]he problem with such a scenario is that just because the jury found the touching element to be proven beyond a reasonable doubt does not mean that it would have found the intent element true under the same standard." But the jury was instructed that the prosecution had the burden of proving appellants guilt beyond a reasonable doubt, and further was instructed that it could not return a verdict of guilt unless it determined, among other things, that "[t]he touching was done with the specific intent to arouse, appeal to or gratify the lusts, passions or sexual desires of [appellant] or the child." The prosecutions special instruction, again, does not suggest that any standard other than proof beyond a reasonable doubt applied to the element of intent. It therefore could not have misled the jury into believing that some lesser standard of proof applied to that element.
Appellant also contends that the instruction violated due process. His theory is that that the prosecutions special instruction improperly informed the jury that they could infer appellants intent from his conduct, and did not remind them that his conduct was but one factor to be considered in determining his intent, misleading them into failing to consider the totality of the evidence on that issue.
First, as recognized by the court in People v. Imler, in cases such as this a jury is entitled to infer a defendants intent from his conduct. The problem with the prosecutions special instruction is not that it misinformed the jurors on that point, but that it may have caused the jury to place too much emphasis on one factor relevant to appellants intent, and possibly to ignore other factors relevant to the same issue.
This problem, which is at the heart of appellants second due process argument, also relates to an argument made by him in connection with his claim that the instruction improperly lessened the prosecutions burden of proof. In that argument, appellant cited People v. Vichroy (1999) 76 Cal.App.4th 92, which found former CALJIC No. 2.50.01 constitutionally infirm on the theory that it allowed the jury to find the defendant guilty of a charged sexual offense "solely upon their determination that he had committed prior sexual offenses. CALJIC No. 2.50.01, as given, required no proof at all of the current charges." (Id. at p. 99.)
The danger identified by the court in the Vichroy line of cases is the danger inherent in using propensity evidence to establish an element of a crime. CALJIC No. 2.50.01 allows the jury to infer propensity from a preliminary fact, and then infer an element of the crime from propensity. The fear is that the jury will place undue weight on evidence of propensity, ignoring evidence of the circumstances of the crime at issue. As noted by the Third Division of this court in People v. James (2000) 81 Cal.App.4th 1343, 1354, "Three hundred years of jurisprudence recognizes juries are particularly susceptible to that suggestion. [Citation.]" The same danger does not exist here, as the prosecutions special instruction has nothing to do with propensity to commit a crime. To the contrary, the instruction suggests only that the jury can infer intent from conduct. Conduct on a particular occasion is a strong indicator of intent on the same occasion. The suggestion that the jury consider conduct in deciding intent, therefore, simply does not carry the risk that the jury will be sidetracked into ignoring evidence directly relevant to the question of guilt, in favor of less relevant evidence (such as propensity).
Moreover, although there is a split of authority on the point, it has been held that the flaw in the CALJIC No. 2.50.01 may be cured by other instructions that inform the jurors that the prosecution must prove each element of the crime beyond a reasonable doubt (CALJIC No. 2.90), instructs them on the elements of the offense at issue, and instructs them that they have a duty to consider all evidence upon which proof of a fact depends. (CALJIC No. 2.27.) (See People v. Escobar (2000) 82 Cal.App.4th 1085, 1097-1102, decided by the Fourth Division of this court; and see also, People v. Reliford (2003) 29 Cal.4th 1007, 1014, recognizing a "`logical impossibility "in the concept that the jury would interpret the instructions as permitting a finding of guilt of the charged offenses without actually considering the evidence of those offenses.)
Here, the jury was made aware that it should consider all the evidence relevant to the issue of intent in deciding whether appellant harbored the requisite specific intent. While the special instruction told the jury that it might infer appellants intent from his conduct, the court not only instructed the jury with the curative instructions identified in Escobar, but also instructed the jury in accordance with CALJIC No. 2.02, that "[t]he specific intent with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not find the defendant guilty . . . unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required specific intent but (2) cannot be reconciled with any other rational conclusion. [¶] Also, if the evidence as to any specific intent permits two reasonable interpretations, one of which points to the existence of specific intent and the other to its absence, you must adopt that interpretation which points to its absence. . . ." The instructions given the jury, taken together, informed the jurors that they could infer intent from conduct, but that in deciding intent, they should consider all the circumstances surrounding the act, and not just the act itself.
In addition, the prosecutor pointed out that intent needed to be proved by circumstantial evidence because appellants mind could not be read. She told the jury that touching a young childs genitals is not necessarily a crime. It is a crime only when the touching is done with the specific intent to commit the crime. The prosecutor then listed all the evidence that the jury could consider in determining appellants intent, including the evidence that appellant touched the nieces genitals with his finger and his tongue, that he took pictures of the niece while she was naked or half naked, while she was touching herself, and when she was posed with her legs open, that appellant had child pornography on his computer and that he masturbated in front of the children.
In light of the instructions as a whole, and of the prosecutors argument, the jury could not have believed that it should ignore any evidence of appellants intent other than his conduct, unless it believed the other evidence to lack credibility. In addition, as noted above, the jury could not have believed that the prosecutions burden of the "preliminary fact" of conduct was anything less than proof beyond a reasonable doubt. Finally, unlike the "preliminary fact" of propensity at issue in CALJIC No. 2.50.01, the "preliminary fact" of conduct in the prosecutions special instruction is sufficient to support a finding on the issue in question (intent). The error, therefore, if any, was harmless.
IV.
Directed Verdict
Appellant again focuses on the second sentence of the special instruction: "The defendants intent may be inferred from his conduct which was to direct the victim to commit a lewd act upon him or herself." As appellant reads this phrase, it effectively directed the jury to find that appellant in fact had directed the victim to commit a lewd act upon herself. We do not agree. While we find the instruction to be flawed, at the worst it did no more than tell the jurors that if they found that appellant directed the niece to touch herself, the touching was a lewd act from which they might infer that appellant acted with a criminal intent. In the context of this case, the flaw in the instruction could not have affected the verdict.
The court first instructed the jury with the elements of the crime, telling them that in order to prove the crime, "each of the following elements must be proved: One, a person touched the body of a child. Two, the child was under 14 years of age. And three, the touching was done with the specific intent to arouse, appeal to or gratify the lusts, passions or sexual desires of that person or the child." The court told the jury that the testimony of the child need not be corroborated. It then gave the prosecutors special instruction, which, again, informed the jury that the touching might be done by the child victim on his or her own person, "providing such touching was at the instigation of the defendant, who had the required specific intent," and that the defendants "intent may be inferred from his conduct which was to direct the victim to commit a lewd act upon him or herself."
The jury, therefore, was told that it could convict appellant only if it concluded that a touching occurred. The touching element could be satisfied by a finding that appellant directed the child to touch herself, if appellant acted with the specific intent to arouse, appeal to or gratify the lusts, passions or sexual desires of himself or the child. If the jury found that appellant had in fact directed the child to touch herself, it could infer that he acted with criminal intent. The flaw in the instruction was that it allowed the jury to conclude that the touching, if it occurred, was a lewd act, and to infer from the commission of the lewd act that appellant acted with criminal intent.
The instruction would be problematic if appellant had made the argument that although he directed the niece to touch herself, his intent in doing so was innocent, or if there was any question but that the touching—if it occurred—was lewd. Appellant, however, never claimed that he acted innocently in directing the child to touch her vagina for purposes of photographing her. His position was that he never directed her to touch her vagina at all. There simply was no evidence that the touching—if it occurred—was anything other than lewd. In other words, in the context of this case, once the jury concluded that appellant directed the victim to touch herself, it could have found only that appellant had directed the victim to commit a lewd act on herself. Since finding that appellant directed the victim to commit a lewd act on herself is valid evidence that appellant harbored a criminal intent, the error did not contribute to the jurys verdict, and therefore was harmless.
V.
Evidence of Appellants Guilt
As we find that the jury was not misled in any material manner by the flaws in the prosecutors special instruction, we need not decide whether the evidence of appellants guilt was so overwhelming as to render any errors in the instruction harmless. We do find, however, that the evidence was overwhelming that appellant engaged in lewd activity with the niece, and that he did so with a criminal intent. The evidence of appellants inappropriate sexual interest in young girls was compelling. The evidence that appellant took pornographic or semi-pornographic photographs of the niece was even more compelling, and was corroborated by the nephew, by appellants former wife and by appellant himself. The niece and nephew consistently stated that appellant touched the nieces genitals on more than one occasion, adding the detail that he did so after licking his finger. Their testimony about appellants masturbation was detailed, consistent and convincing. In light of this evidence, that the jury did not return verdicts of guilty on some of the charges does not suggest that the jury had any doubts that appellant engaged in lewd and lascivious conduct. It simply reflects the jurys ability to distinguish between corroborated and uncorroborated evidence, and a reluctance to find that appellant committed specific acts on uncorroborated or inconsistent evidence.
CONCLUSION
The judgment is affirmed.
We concur Marchiano, P.J. and Swager, J. --------------- Notes: CALJIC No. 2.50.01 has been amended, and now also instructs the jurors that if they "find by a preponderance of the evidence that the defendant committed [a] prior sexual offense[s], that is not sufficient by itself to prove beyond a reasonable doubt that [he] [she] committed the charged crime[s]. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime."