Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, No. MA039546. Charles A. Chung, Judge.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Sarah J. Farhat, Deputy Attorneys General, for Plaintiff and Respondent.
Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Appellant Ricky Lee Gordon appeals from the judgment entered following a jury trial in which he was convicted of 10 counts of committing a lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)). Jones contends the evidence was only sufficient to support conviction on eight counts. We affirm.
Unless otherwise noted, all subsequent references pertain to the Penal Code.
FACTS
In August of 2007, six-year-old D. told her mother that Gordon had put his finger inside of her “pee pee” a few days earlier. Appellant was engaged to D.’s mother and had been living with D.’s family for about five months. D., who was seven at the time of the trial, testified to a number of occasions on which Gordon placed his finger inside her and other occasions on which he touched her on the outside of her clothing.
Gordon initially denied to investigators that he had any sexual contact with D. He subsequently admitted that he placed his finger about one-half inch into her vagina. He said he did this five times, and all of the incidents occurred in D.’s bedroom. Gordon said he was sorry and that it would never happen again. A videotape of Gordon’s interview with the police was played at trial.
At trial, Gordon denied that he had ever put his finger inside D. or otherwise inappropriately touched her. He claimed that he repeatedly told the investigators he was innocent, but he was tired, stressed, and hung-over. He eventually became frustrated and just told the investigators what they wanted to hear.
The jury convicted Gordon of all 10 counts of violating section 288, subdivision (a). The trial court sentenced Gordon to 18 years in prison, consisting of the high term of 8 years on count 1, plus subordinate consecutive terms of two years each on counts 5, 7, 8, 9, and 10. The court imposed and stayed concurrent six-year terms on each of counts 2 through 4.
DISCUSSION
Gordon contends that “[u]nder the most generous accounting,” the evidence is sufficient to support only 8 of the 10 counts upon which the jury convicted him. He therefore seeks reversal of two counts.
To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.) We presume the existence of every fact supporting the judgment that the jury could reasonably deduce from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303.)
“Generic” testimony “describing a series of essentially indistinguishable acts of molestation is acceptable and constitutes substantial evidence in child sexual abuse cases provided that the victim describes (1) “the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed 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 in 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 limitation period. 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.” (People v. Jones (1990) 51 Cal.3d 294, 316.)
Deputy Charles Ansberry testified that D. told him that Gordon began touching her when she was in kindergarten. According to the testimony of D.’s mother, D. was in kindergarten in the fall of 2006 and the spring of 2007. D. testified that Gordon “touched [her] pee-pee” “10 or 20 times.” He put his finger inside her “three or four” times in the bathroom, two times in her mother’s bedroom, and once in the living room. D. further testified that Gordon “sometimes” touched “her bum” when she was in the bathroom and had touched her on the outside of her clothing in the bathroom and in her mother’s room. D. denied that Gordon ever touched her in her bedroom, but Ansberry testified that she previously told him there were touching incidents that occurred in her own bedroom. Ansberry further testified that D. told him on the morning she was scheduled to testify that she “didn’t want to talk about” incidents in her bedroom. Gordon told the investigators that all of the incidents in which he put his finger in D.’s vagina occurred in D.’s bedroom.
On cross-examination, counsel asked D. if these touchings in the bathroom occurred “just three times.” She responded, “Uh-huh.”
Even apart from D.’s “10 or 20 times” testimony, the incidents she identified by location and type of conduct support a conviction on 10 counts. There were at least six incidents of Gordon penetrating her vagina with his finger: three in the bathroom, two in D.’s mother’s bedroom, and one in the living room. There was at least one instance of Gordon touching “her bum” in the bathroom, and at least two instances of him touching her on the outside of her clothing. This testimony accounted for nine acts. Gordon’s admission that he penetrated D.’s vagina with his finger five times, with all of the acts occurring in the victim’s bedroom, supports the additional conviction.
Gordon does not dispute that this conduct was sufficient to violate section 288, subdivision (a).
Gordon argues in his reply brief that reliance upon his admission violates the corpus delicti rule. In any criminal prosecution, the corpus delicti must be established by the prosecution independently of the extrajudicial statements of the defendant. (People v. Crew (2003) 31 Cal.4th 822, 836-837.) As to every crime charged, the prosecution must prove that an injury, loss, or harm occurred and that a criminal agency was the cause. (Id. at p. 837.) A slight or prima facie showing is sufficient, and the proof may be by circumstantial evidence and reasonable inferences therefrom. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1127-1128 .) Here, D.’s prior inconsistent statement to Ansberry that there were incidents in which Gordon touched her in her own bedroom suffices as independent proof of the commission of at least one incident in which Gordon violated section 288, subdivision (a) in D.’s bedroom.
Accordingly, substantial evidence supports all 10 counts of which the jury convicted Gordon.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J.,ROTHSCHILD, J.