Opinion
E051989
11-23-2011
THE PEOPLE, Plaintiff and Respondent, v. WILBERT DALE GARCIA, Defendant and Appellant.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Melissa Mandel and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. SWF028144)
OPINION
APPEAL from the Superior Court of Riverside County. Albert J. Wojcik, Judge. Affirmed.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Melissa Mandel and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Wilbert Dale Garcia guilty of two counts of aggravated rape of a child under the age of 14 (Pen. Code, § 269, subd. (a)(1); counts 1-2); 76 counts of committing a lewd act on a child under the age of 14 (§ 288, subd. (a); count 3-78); and one count of showing harmful matter with the intent to arouse and seduce a minor (§ 288.2, subd. (a); count 79). Defendant was sentenced to a total term of 188 years eight months to life in state prison. Defendant's sole contention on appeal is that his conviction on count 79 should be reversed because there was insufficient evidence the items defendant showed the victim was "harmful matter" within the meaning of sections 288.2 and 313. We reject this contention and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
We note defendant received eight months on count 79.
I
FACTUAL BACKGROUND
Between the ages of eight and about 11, Jane Doe's uncle (defendant) sexually abused her "almost every day" while he babysat her before and after school. Jane did not want defendant touching her and did not consent to the acts. The family was apparently unaware of the abuse.
At trial, Jane recalled specific incidents. Jane explained that defendant and his wife (Jane's aunt) started babysitting her when she began kindergarten before and after school. Defendant was a deputy sheriff for the Orange County Sheriff's Department and frequently worked the midnight shift. Defendant primarily watched Jane in the mornings when she was dropped off around 6:00 a.m. while his wife and three children slept upstairs. Defendant would take Jane to school and pick her up. Jane was comfortable with defendant and trusted him because he was her uncle and because he was a police officer.
Jane's relationship with defendant changed in October 2002 when she turned eight years old and entered the third grade. Defendant began getting closer to her and making her feel uncomfortable. He started showing Jane pornographic videos, usually depicting a man forcing himself on a teenage girl, either on the television or computer. She further recalled that defendant showed her pornographic animation and Japanese anime. Specifically, she stated that once in a while defendant would show her videos of "people naked." Usually, it would be humans, but at times it would be "animation-type porn" and anime of people "having sex" and people touching each other.
After showing Jane the pornographic material, defendant would ask Jane to reenact the sexual activity. The sexual abuse initially consisted of defendant asking Jane to touch his penis, defendant touching Jane's breasts under her clothing, defendant putting her breasts in his mouth, and defendant touching Jane's vagina with his hand and mouth. The sexual abuse occurred almost every day while they were alone. Defendant began penetrating Jane's vagina and anus with his penis. He tried daily to penetrate both her vagina and anus but was only successful about once a week. Jane estimated that defendant penetrated her anus and vagina about 10 times each. Sometimes Jane saw defendant ejaculate.
Defendant ceased penetrating Jane as often once Jane began to menstruate when she was 10 years old. Around this same time, Jane's family moved to a different school district, and defendant stopped babysitting Jane. Jane still saw defendant from time to time, but less frequently. When Jane was at his house, defendant still touched her, but not as often.
Jane complied because defendant had told Jane that there was nothing wrong with the relationship and that they were not blood related. Defendant also pretended that it was a game and told her that it was a secret between them and that she could not tell her parents. She trusted him and loved him because he was her uncle.
When Jane was 12 or 13 years old, she began to understand what had occurred to her, and it started to "eat at [her]." She was afraid to tell her family, but she eventually told her father what defendant had done.
After defendant was arrested and released on bail, he told his son and daughter, "What they're saying I did, I did," and apologized. Defendant's computer was seized and searched. Detectives found multiple internet searches using the words "incest" and "Lolita." Several websites regarding incest were visited, and there were "at least" a dozen images of child pornography.
II
DISCUSSION
Defendant effectively concedes there is substantial evidence to support his convictions in counts 1-2, that he committed two separate acts of aggravated rape of a child under the age of 14. (§ 269, subd. (a)(1).) He also concedes there is substantial evidence to support his convictions for 76 counts of committing a lewd act on a child under the age of 14. (§ 288, subd. (a).) However, defendant contends there is insufficient evidence to support his conviction in count 79, that he showed harmful matter with the intent to arouse and seduce a minor. (§ 288.2, subd. (a).)
"In reviewing a claim [regarding the] sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or special circumstance beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence—that is, evidence that is reasonable, credible, and of solid value—supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]" (People v. Jennings (2010) 50 Cal.4th 616, 638-639.)
"Because 'we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence . . .' [citation], the effect is that on appeal 'a defendant challenging the sufficiency of the evidence to support her conviction "bears a heavy burden," [citation] . . .' [citation] of showing insufficiency of the evidence and must do so in accordance with well-established standards [citation]." (People v. Powell (2011) 194 Cal.App.4th 1268, 1287 (Powell).)
Section 288.2, subdivision (a), provides: "Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including, but not limited to, live or recorded telephone messages, any harmful matter, as defined in Section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor, is guilty of a public offense."
Defendant asserts that the evidence of the material he showed to Jane was "too brief and lacking in detail to permit a rational determination that it satisfies the statutory definition of 'harmful matter.'"
"Harmful matter" as used in section 313.1, subdivision (a), incorporates the definition from section 313, subdivision (a): "'Harmful matter' means matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." The jury was instructed with this definition. "This definition essentially tracks the three-pronged test for obscenity articulated in Miller [v. California (1973) 413 U.S. [15,] 24: '[1] whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; [2] whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and [3] whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.'" (People v. Hsu (2000) 82 Cal.App.4th 976, 992.) The consideration of contemporary statewide standards, rather than general community or national standards, is constitutionally permissible. (Miller, at p. 31.)
"[T]he question of what is '"patently offensive"' under the community standard obscenity test is essentially a question of fact." (People v. Dyke (2009) 172 Cal.App.4th 1377, 1384 (Dyke).) "'[T]he primary concern' is that the communication be 'judged by its impact on an average person, rather than a particularly susceptible or sensitive person—or indeed a totally insensitive one.'" (Ibid.) The question is whether the material as a whole lacks "serious literary, artistic, political or scientific value for minors." (§ 313, subd. (a).)
Relying on Dyke, supra, 172 Cal.App.4th 1377, defendant argues that Jane's testimony that he showed her "videos of naked people" "having sex" as well as "animation-type porn stuff" and Japanese anime was insufficient to support the jury's verdict that he showed Jane "harmful matter," because her testimony was very "unspecific" and did not describe "the entirety of anything she saw, or even what it was except by genre, such as anime."
In Dyke, the 16-year-old victim testified that she watched television with the defendant and described a naked woman dancing and a view of a naked woman and man from the waist up having sex. (Duke, supra, 172 Cal.App.4th at pp. 1380-1381.) The court found the evidence was insufficient to support that this was "harmful matter." It concluded, "What is missing from this record is any context by which the reasonable trier of fact can make this determination. There is only a bare-bones recital by [the 16-year old] of what she saw: a nude woman dancing and a naked couple having sex, shown from the waist up, and her own characterization of it as 'pornography.' Without more, neither we nor the jury are permitted to presume that such content is patently offensive to the average adult, applying statewide community standards." (Id. at p. 1385.)
This case is distinguishable from Dyke. In addition to the testimony cited by defendant, Jane also stated that defendant showed her pornographic videos, usually depicting a man forcing himself on a teenage girl, via television or computer. The videos included live action (humans) and Japanese anime. She explained that the people were naked, "having sex," and touching each other. Moreover, unlike in Dyke, here Jane explained that after showing her the videos, defendant would ask Jane to reenact the sexual activity. Additionally, when defendant's computer was seized and examined, it contained images of child pornography. Although we agree with defendant that the images on defendant's computer were not admitted into evidence, and it is unknown whether Jane was shown these images, a reasonable trier of fact could conclude that similar images were shown to Jane. Defendant cannot contend that the videos of a man forcing himself on a teenage girl or the images of child pornography had any "literary, artistic, political or scientific value for minors." Defendant showed the pornographic videos and images to Jane, and then asked her to reenact the sexual activity. The context distinguishes this case from Dyke. As stated in Dyke, "in order to determine whether a portrayal of sex [and nudity] is patently offensive to the average adult, '[a] reviewing court must, of necessity, look at the context of the material, as well as its content.' [Citation.]" (Dyke, supra, 172 Cal.App.4th at p. 1385.) The context in which defendant showed Jane the pornographic videos and animation supports the trier of facts conclusion that this was harmful material.
Further, the evidence established that defendant intended to seduce Jane into engaging in sexual activity with him. "[T]he 'seducing' intent element of the offense requires that the perpetrator intend to entice the minor to engage in a sexual act involving physical contact between the perpetrator and the minor." (People v. Jensen (2003) 114 Cal.App.4th 224, 239-240.)
Here, as noted ante, when defendant showed the videos and images to Jane, he wanted her to reenact the sexual activity that she was shown. The sexual activity consisted of defendant asking Jane to touch his penis, defendant touching Jane's breasts under her clothing, defendant putting her breasts in his mouth, defendant touching Jane's vagina with his hand and mouth, and then escalating to defendant penetrating Jane's vagina and anus with his penis. The jury reasonably could conclude that defendant showed Jane the pornographic videos and images to seduce her into engaging in sexual acts with him. "The purpose of section 288.2 is to prohibit using obscene material, as defined in section 313, subdivision (a), 'to groom young victims for acts of molestation.'" (Powell, supra, 194 Cal.App.4th at p. 1287.)
Contrary to defendant's contention, Powell does not support his position. In that case, after the defendant forced his daughter to watch pornography while molesting and raping her, the defendant was convicted of exhibiting harmful matter to a minor for purposes of seduction and sexual gratification. (Powell, supra, 194 Cal.App.4th at pp. 1274-1275.) The videos shown to the victim were not admitted into evidence, as in the instant matter.
On appeal, the defendant argued that the testimony of the victim describing the videos was insufficient to support the verdict. The victim described the movies as "nasty" and depicting sexual activity. (Powell, supra, 194 Cal.App.4th at p. 1285.) "In these productions, there would be '[a] guy removing a girl's clothes.' The men in the movies would uncover their penises and an actor would 'put his penis in the vagina,' but the penises were obscured on screen by pixelization—'"they would cover it with like that little blob. [¶] . . . [¶] It was like covering a person's face that was wanted on TV.' The man and woman would have sex and she could hear and see them perform it." (Id. at pp. 1285-1286.)
The Powell court concluded: "The victim's more detailed statement that we have quoted ante, pp. 227-228, however, makes all the difference. What makes this case unlike Dyke, supra, 172 Cal.App.4th 1377, and persuades us that there is a minimum of evidence to sustain the conviction is that the victim here told Detective Buhay that in one sexually oriented movie 'some of their men parts and women parts weren't blocked.' Penises, breasts, and vaginas featured in lewd displays as the actors 'did it,' i.e., engaged in sexual activity and not just kissing. Notwithstanding the constitutional and definitional barriers to a conviction under section 288.2, subdivision (a), and the lack of detail in most of the victim's descriptions about the material defendant forced her to watch, we uphold the conviction against defendant's due process challenge because of the victim's description of seeing a movie in which actors engaged in simulated or unsimulated sexual activity while displaying all of those body parts. The foregoing evidence suffices to uphold the jury's verdict. Although the evidence is not rich in detail, it is nevertheless adequately descriptive. Moreover, it is 'credible, and of solid value.' [Citation.] It meets the minimum required for a rational trier of fact to conclude that defendant forced the victim to watch obscene depictions within the meaning of section 313, subdivision (a), an act punishable under section 288.2, subdivision (a). Therefore, we reject defendant's due process challenge." (Id. at p. 1295.)
Here, Jane's testimony, while not detailed, provided sufficient evidence to support defendant's conviction under section 288.2. Jane recalled defendant showing her live-action pornography and Japanese anime pornography depicting people having sex and a man forcing himself on a teenage girl as he groomed her for molestation. Defendant then made Jane reenact the sexual conduct that appeared on the videos.
Defendant also argues that even if a reasonable juror could find the matter he showed to Jane, taken as a whole, the evidence is insufficient of "patently offensive depiction of sexual conduct." For the reasons already discussed, we reject this contention. "[T]he question of what is '"patently offensive'" under the community standard obscenity test is essentially a question of fact." (Dyke, supra, 172 Cal.App.4th at p. 1384.) The jury necessarily resolved this fact in favor of the People and against defendant. "In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.) "'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. Guerra (2006) 37 Cal.4th 1067, 1141, disapproved of other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.)
In a related claim, defendant, cursorily argues that his conviction for count 79 violates his constitutional right to free speech. Appellate courts have consistently held that the "harmful matter" component of subdivision (b) of section 288.2 is, on its face, constitutional under the First Amendment to the United States Constitution. (People v. Garelick (2008) 161 Cal.App.4th 1107, 1119-1120, 1122-1124.) The Powell court recently concluded that subdivision (a) of section 288.2, which incorporates the same "harmful matter" definition contained in subdivision (a) of section 313 as does subdivision (b) of section 288.2, "meets First Amendment requirements on the face of the statute. Defendant's challenge [like in the instant matter], however, is to the statute as applied to him. He does not quarrel with the statute's validity in principle. That is, he does not argue that nobody may be punished under subdivision (a) of section 288.2, but only that the evidence did not suffice to sustain his own conviction pursuant to the provision." (Powell, supra, 194 Cal.App.4th at p. 1288, fn. omitted.)
A trier of fact could reasonably infer here that the videos and images would be objectionable for minors under contemporary statewide standards. Where the Legislature and the adult community in general considers a movie or video or image so harmful and offensive to minors as to preclude their access to them, we do not believe that any more evidence than what was presented in this case is necessary to establish that defendant displayed "harmful matter" to Jane within the meaning of section 313.1, subdivision (a). After viewing the evidence in the light most favorable to the prosecution, as we must (People v. Rodriguez (1999) 20 Cal.4th 1, 11), we find that the evidence was sufficient to support defendant's conviction on count 79.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting P.J.
We concur:
KING
J.
MILLER
J.