Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F04907
NICHOLSON, J.
Convicted of sexual offenses against his grandson and granddaughter, defendant appeals, claiming, among other things, that the evidence was insufficient to support his convictions for crimes against his grandson, the jury was improperly instructed, and his sentence on one misdemeanor conviction must be stayed pursuant to Penal Code section 654.
As to one count only, we agree the jury received improperly conflicting instructions. They were told both that the People are not required to prove motive (CALCRIM No. 370) and that the People must prove the element of motive necessary to prove allegations defendant committed misdemeanor child annoyance against his grandson. (CALCRIM No. 1122; Pen. Code, § 647.6, subd. (a); People v. Maurer (1995) 32 Cal.App.4th 1121.) As a result, one count of child annoyance must be reversed. As to the remaining misdemeanor conviction for child annoyance against the grandson, we agree defendant’s sentence must be stayed. We otherwise affirm the judgment.
BACKGROUND
Evidence of Crimes Committed against B.
Defendant’s contentions on appeal do not require a detailed description of the facts underlying his conviction on two counts of rape of his granddaughter, B.
It suffices to say B. testified at trial that, when she was 13, and visiting in defendant’s home during the summer, defendant masturbated in her presence while the two watched television in his living room. A few weeks later, defendant approached B. as they watched television, and forced her to have intercourse with him.
Several months later, defendant again approached B. while they were alone in the house watching television, forcibly removed her clothes, and forced her to have intercourse.
These events form the basis of the allegations of forcible rape in counts one and two (Pen. Code, § 261, subd. (a)(2)).
Evidence of crimes committed against J.
Because defendant challenges the sufficiency of the evidence supporting his convictions for attempted lewd conduct against his grandson, J., we state all the facts presented at trial relevant to those convictions.
Near the end of his fifth grade year, J. moved in with his grandparents, and lived with them for about a year. During that period, while J. was 11 or 12 years old, defendant did some “inappropriate” things. Because J. could not recall the relative dates when these things happened, we describe them in the order in which he testified about them at trial, identifying them by the location in which they occurred.
The Living Room. While J. and defendant were alone at home, watching television from separate couches in the living room, J. looked over at his grandfather and noticed defendant’s shorts were around his ankles, his penis was exposed, and he was masturbating. As defendant did this, he asked if J. wanted to play with defendant’s privates. J. said no, and left the room. J. saw defendant ejaculate and wipe himself off with a paper towel from the kitchen.
These events form the basis of allegations defendant attempted to commit a lewd act on J., a child under 14 (Pen. Code, §§ 664/288, subd. (a); count three), and committed misdemeanor annoyance of a child (Pen. Code, § 647.6, subd. (a); count five).
J.’s Bedroom. On another day, when they were alone in the house, and J. had just taken a shower and put on his boxer shorts, defendant walked by J.’s bedroom and said something J. interpreted as “ask[ing] to do something to [J.’s] privates.” At trial, J. could not remember the words defendant used, but J. thought “he meant to like play with me.” J. said no. Sometime later, defendant told J. “not to tell anybody because [defendant] would get in trouble.”
Based on this event, defendant was charged in count four with attempting to touch J.’s penis (Pen. Code, § 664/288, subd. (a)).
The Computer Room. During the summer before the sixth grade, as J. walked through the computer room to get to the backyard, he saw defendant sitting at the desk “inside his chair,” masturbating. J. stopped and began walking slowly, to see what defendant was doing. Defendant did not stop masturbating. Defendant and J. did not make eye contact, as defendant “was looking the opposite way” from J.; neither said anything.
Based on this event, defendant was charged in count six with misdemeanor child annoyance (Pen. Code, §§ 647.6, subd. (a)).
Fearful that her brother J. was in danger of molestation by defendant, B. reported to police what defendant had done to her, and defendant was eventually arrested.
Evidence of Uncharged Crimes Presented at Trial
J. and B. both testified at trial.
Others in the family were permitted to testify at trial they had also been molested by defendant when they were young, to show defendant has a propensity to molest children and to establish evidence of his intent toward the alleged victims in this case. (Evid. Code, §§ 1101, subd. (b); 1108.)
Defendant’s adult stepdaughter, Lori, testified at trial that defendant masturbated in front of her and “had [her] touch him” when she was 11 years old. For several years thereafter, defendant had Lori masturbate him at least once a month, whenever there was an opportunity. Contact between them escalated and, when she was 15, defendant raped Lori. Defendant continued to have sex with his stepdaughter until she was 17. He told her she could not tell anyone because it would ruin the family and Lori never reported the abuse until the police became involved in the instant case.
Defendant’s adult stepson, Thomas, testified defendant ordered Thomas to masturbate him when Thomas was about 10 years old. Because Thomas feared defendant, he did it. When Thomas was in the eighth grade, defendant fondled Thomas’s testicles, and asked if Thomas masturbated. Thomas never told anyone about these incidents.
Defendant’s adult niece, Amber, testified that when she was 17 years old, defendant exposed his penis and masturbated until he ejaculated. He contacted Amber periodically afterwards “to make sure [she] kept quiet.”
When defendant was interviewed by police, he admitted some of the uncharged acts, and admitted masturbating through his clothes in front of B., but he denied having sex with B., and denied touching J. Defendant’s theory of defense was that B. and J. fabricated the current charges based on family gossip about defendant’s past bad acts.
The jury found defendant guilty on all charges.
DISCUSSION
I
Sufficient Evidence Supports Defendant’s Convictions for Attempted Lewd Acts with J.
A. Standard of Review
In reviewing the sufficiency of the evidence to support a conviction, we determine “‘whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.’ [Citations.]” (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) Under such standard, we review the facts adduced at trial in full and in the light most favorable to the judgment, drawing all inferences in support of the judgment to determine whether there is substantial direct or circumstantial evidence the defendant committed the charged crime. (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Rodriguez (1999) 20 Cal.4th 1, 11.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury’s conclusions. (People v. Arcega (1982) 32 Cal.3d 504, 518; In re Nathaniel C. (1991) 228 Cal.App.3d 990, 996.)
In making the determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) We simply consider whether “‘“any rational trier of fact could have found the essential elements of [the charged offenses] beyond a reasonable doubt.”’ [Citations.]” (People v. Rich (1988) 45 Cal.3d 1036, 1081, original italics.) Unless it is clearly shown that “on no hypothesis whatever is there sufficient substantial evidence to support the verdict,” the conviction will not be reversed. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
B. Sufficiency of the Evidence
To establish a person committed a lewd act on a child, the following must be proved: (1) A person touched the body of a child; (2) the child was under 14 years of age; and (3) the touching was done with the specific intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person or the child. (Pen. Code, § 288, subd. (a); CALCRIM No. 1110.) An attempt to commit such sexual crime connotes the intent to accomplish its object. (People v. Smith (1997) 57 Cal.App.4th 1470, 1481.) “The intent or intention is manifested by the circumstances connected with the offense.” (§ 21, subd. (a).) In other words, an attempt to commit a lewd act on a child occurs when there is a specific intent to commit such crime and a direct but ineffectual act is done toward its commission. (See Pen. Code, § 21, subd. (a); CALCRIM Nos. 460, 1110; People v. Dillon (1983) 34 Cal.3d 441, 452-453 (Dillon).)
CALCRIM No. 460, with which the jury here was instructed, provides: “To prove that the defendant is guilty of an attempt to commit a crime, the People must prove that: [¶] 1. The defendant took a direct but ineffective step toward committing a crime; [¶] 2. The defendant intended to commit the crime. [¶] A direct step requires more than merely planning or preparing to commit the crime or obtaining or arranging for something needed to commit that crime. A direct step is one that goes beyond planning or preparation and shows that a person is putting his plan into action. A direct step indicates a definite and unambiguous intent to commit the crime. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt. [¶] A person who attempts to commit a crime is guilty of attempted commission of that crime even if, after taking a direct step towards committing that crime he abandoned further efforts to complete the crime or if his attempt failed or was interrupted by someone or something beyond his control. On the other hand, if a person freely and voluntarily abandons his plans before taking a direct step toward committing the crime, then that person is not guilty of attempted commission of that crime.”
Defendant contends there was insufficient evidence for the jury to conclude he was guilty of attempting to commit a lewd act on J. as charged in counts three (asking J. in the living room to play with defendant’s exposed genitals) and four (asking while J. was dressing if he could play with J.’s privates). He argues his verbal propositions to J. were “mere preparation,” which do not constitute an attempt to commit a lewd act.
In so doing, defendant cites only one case squarely favorable to him: People v. La Fontaine (1978) 79 Cal.App.3d 176 (La Fontaine) [overruled on other grounds in People v. Lopez (1998) 19 Cal.4th 282, 292], which held that evidence of mere solicitation of an unlawful sexual act is insufficient to prove a criminal attempt to commit that act. The court in La Fontaine reversed a defendant’s conviction for attempting to violate Penal Code section 288 where the defendant picked up a 13-year-old hitchhiker and, after driving a bit, stopped the car and asked the boy if he would like to earn some money by permitting the defendant to “‘give [him] a blow job.’” (La Fontaine, supra, at p. 179.) The boy declined and got out of the car. The defendant never touched him or made a move to touch him. The Court of Appeal held that these facts failed to establish an attempt to violate Penal Code section 288 because “acts of solicitation constitute preparation only and do not rise to the level of the offense of a criminal attempt.” (Id. at p. 183.)
But the holding of La Fontaine has not been adopted in any other published opinion; to the contrary, several courts of appeal have rejected it outright (see People v. Delvalle (1994) 26 Cal.App.4th 869, 877 [defendant properly convicted of attempt to buy a person despite contention that conduct was mere solicitation, relying on La Fontaine] or questioned its continued viability. (People v. Herman (2002) 97 Cal.App.4th 1369, 1387, citing People v. Ansaldo (1998) 60 Cal.App.4th 1190, 1196 [“La Fontaine holding ‘ha[s] not been adopted in any other published decision’ and in view of later developments, ‘the time may be at hand for a reevaluation’”]; and Hatch v. Superior Court (2000) 80 Cal.App.4th 170, 188 [rejecting defendant’s argument under La Fontaine that he did not attempt to violate Pen. Code, § 288 because he made no effort to touch victim and that mere solicitation to commit sexual acts was insufficient: “assuming La Fontaine’s analysis remains good law,” conviction was supported by evidence that defendant lewdly extended his hand toward victim].)
Indeed, in cases published after La Fontaine, the California Supreme Court has emphasized the role of criminal intent evidence in determining whether acts of preparation constitute an attempt. “As long as the trier of fact is convinced beyond a reasonable doubt that the defendant intended to commit a crime and was in the process of attempting to carry out that intent, no public purpose is served by drawing fine distinctions between those who have managed to satisfy some element of the offense and those who have not.” (People v. Dillon (1983) 34 Cal.3d 441, 453, fn. omitted.) The stronger the evidence of criminal intent, the less proximate the acts in furtherance of the intent must be in order to satisfy the overt act element that goes beyond mere preparation. (People v. Memro (1985) 38 Cal.3d 658, 698-699 (Memro I); [later appeal, People v. Memro (1995) 11 Cal.4th 786, 861-862 (Memro II)].)
The court in Memro I explained the kinds of acts which may constitute an attempt to commit the crime where the defendant clearly had the specific intent to commit a lewd act on the victim: “Some Courts of Appeal have suggested focusing on the accused’s intent rather than on the degree to which the acts go beyond ‘mere preparation.’ Thus, ‘[w]henever the design of a person to commit a crime is clearly shown, slight acts done in furtherance of that design will constitute an attempt, and the courts should not destroy the practical and common-sense administration of the law with subtleties as to what constitutes preparation and what constitutes an act done toward the commission of a crime.’ [Citations.] A majority of this court [has] approved this line of cases . . . [citation]. [¶] Of course, none of the various ‘tests’ used by the courts can possibly distinguish all preparations from all attempts. Nevertheless, if appellant’s entire course of conduct is evaluated in light of his confessed intent and his prior history, there [may be] substantial evidence from which a reasonable trier of fact could have sustained a finding of an attempt to commit lewd or lascivious conduct.” (Memro I, supra, 38 Cal.3d at pp. 698-699; see also Memro II, supra, 11 Cal.4th at p. 862.)
Application of these principles requires us to affirm defendant’s convictions for his attempts to commit lewd acts on J.
First, in the living room incident, defendant’s actions toward J. established his lewd intent. Defendant approached J. only when the two were alone in the house, he exposed his genitals to J., masturbated in J.’s presence and, as he did so, asked if J. wanted to “play” with defendant’s penis. His design to commit a lewd act was clearly shown by his exposed penis and masturbation; under these circumstances, his invitation to J. was legally sufficient to establish an attempt. (See Memro I, supra, 38 Cal.3d at pp. 698-699.)
Second, in the incident in J.’s bedroom, defendant’s intent was evident from the circumstances of his advance. Defendant again approached J. when the two were alone in the house, while J. was almost undressed, and asked “to do something to [J.’s] privates.” Although J. testified he was not certain when this event occurred or whether it occurred after he saw defendant masturbate in the living room, his testimony that he understood defendant’s use of the word “play” to refer to genital touching suggests the bedroom incident occurred after the living room incident. The jury was entitled both to draw this inference, and to further infer from defendant’s having previously exposed his genitals in the living room and masturbated in J.’s presence that he intended by his invitation in the doorway of J.’s bedroom to touch J.’s genitals, if J. would agree.
Finally, as to both incidents, the jury was entitled to weigh defendant’s prior history of sexual acts with his adolescent stepchildren and his granddaughter, B., in determining his intent as to his grandson, J. (See Memro I, supra, 38 Cal.3d at pp. 698-699.) Specifically, the jury could properly consider evidence defendant was aroused by masturbating in front of children in his family and that he had initiated lewd acts on his step children, grandchildren, and his niece by masturbating in their presence, or suggesting masturbation.
This evidence of defendant’s lewd acts toward others in his family, evaluated in light of J.’s testimony about defendant’s actions and requests, supplies substantial evidence from which the jury was entitled to conclude defendant’s requests to touch J.’s genitals and/or to have his touched by J. were more than “mere preparation” and represented real attempts to commit lewd acts with J.
II
Instructional Error on the Element of Motive Requires Reversal of Defendant’s Conviction for Child Annoyance in Count Six
We consider next defendant’s contention his misdemeanor convictions for child annoyance in counts five and six (Pen. Code, § 647.6, subd. (a)) must be reversed because the trial court gave conflicting instructions on whether motive is an element of the offense.
His argument has merit as to only one of the two convictions.
The jury was instructed on motive pursuant to Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 370 as follows: “The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether the defendant had a motive. [¶] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty.”
The jury was also instructed on motive as an element of a violation of Penal Code section 647.6, subdivision (a), in pertinent part, as follows: “To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant engaged in conduct directed at a child; [¶] 2. A normal person, without hesitation, would have been disturbed, irritated, offended, or injured by the defendant’s conduct; [¶] 3. The defendant’s conduct was motivated by an unnatural or abnormal sexual interest in the child; [and] [¶] 4. The child was under the age of 18 years at the time of the conduct. [¶] It is not necessary that the child actually be irritated or disturbed. It is also not necessary that the child actually be touched. . . .” (CALCRIM No. 1122.)
Relying on People v. Maurer (1995) 32 Cal.App.4th 1121, defendant claims CALCRIM No. 370 conflicts with CALCRIM No. 1122. In Maurer, the defendant was convicted of misdemeanor child annoyance under Penal Code section 647.6. (Id. at p. 1125.) At trial -- as here -- the jurors were told by one instruction that the defendant’s conduct must be “motivated” by an unnatural or abnormal sexual interest and by another that “motive” need not be established. (Ibid., citing CALJIC No. 16.440 [defendant’s conduct must have been “motivated by an unnatural or abnormal sexual interest, ” italics added] and CALJIC No. 2.51 [“‘[m]otive is not an element of the crime charged and need not be shown.’”].)
This court held in Maurer that, while motive is generally not an element of a criminal offense, “the offense of [Penal Code] section 647.6 is a strange beast” because motive is an element of that crime. (People v. Maurer, supra, at pp. 1126-1127, italics added.) Because the conflicting instructions on the mental state element of an offense can act to remove that element from the jury’s consideration, constituting a denial of federal due process, we concluded the defendant’s convictions must be reversed. (Id. at p. 1125.)
In this case, the People concede the trial court erred in giving admittedly conflicting instructions regarding motive on counts five and six, but argue that any error was harmless.
“Under state law, instructional error that withdraws an element of a crime from the jury’s consideration is harmless if there is ‘no reasonable probability that the outcome of defendant’s trial would have been different had the trial court properly instructed the jury.’ [Citations.] Under federal law, the ‘Fifth Amendment right to due process and Sixth Amendment right to jury trial . . . require the prosecution to prove to a jury beyond a reasonable doubt every element of a crime.’ [Citations.] Accordingly, a trial court’s failure to instruct on an element of a crime is federal constitutional error that requires reversal of the conviction unless it can be shown beyond a reasonable doubt that the error did not contribute to the jury’s verdict. [Citations.]” (People v. Cole (2004) 33 Cal.4th 1158, 1208-1209.)
The latter, more stringent, standard applies because CALCRIM No. 370 had the effect of removing the element of motive from the jury’s consideration. As stated in People v. Lizarraga (1990) 219 Cal.App.3d 476, 482 [“Incorrect or inconsistent instructions on the element of specific intent require a reversal unless the error is deemed harmless beyond a reasonable doubt”]; see also People v. Maurer, supra, 32 Cal.App.4th at pp. 1128-1129.)
Here, we can say beyond a reasonable doubt that the error did not contribute to the jury’s verdict in only one of the two convictions for child annoyance. Defendant’s motive in masturbating in the living room was shown by his contemporaneous request that J. touch defendant’s genitals. Instructional error played no part in defendant’s conviction in count five.
As to the computer room incident, however, we cannot draw the same conclusion. As defendant persuasively argues on appeal, there was no direct evidence showing that defendant intended for J. to see him masturbating, or that he was even aware of J.’s presence. Defendant was alone in the computer room when J. entered the room, sitting in a chair facing the computer. After J. entered the room, the two made no eye contact and said nothing. We cannot say evidence defendant was motivated during the computer room incident by an unnatural sexual interest in J. is so compelling that, beyond a reasonable doubt, the failure to clearly instruct on the requirement of intent did not contribute to the jury’ verdict.
We reverse defendant’s conviction in count six.
In light of our conclusion that defendant’s conviction for child annoyance in count six must be reversed based on instructional error, we need not address his contention on appeal that his conviction on that charge was not supported by sufficient evidence.
III
Defendant’s Sentence on Count Five Must Be Stayed
Defendant contends, and the People concede, that his sentence for child annoyance in count five must be stayed pursuant to Penal Code section 654.
Penal Code section 654 provides in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . .” The purpose of Penal Code section 654 is to ensure that a defendant’s punishment is commensurate with his culpability and that he is not punished more than once for what is essentially one criminal act. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) Penal Code section 654, subdivision (a), applies to multiple offenses if all of them “were merely incidental to, or were the means of accomplishing or facilitating one objective,” as a consequence of which the trial court could find that the defendant “harbored a single intent.” (People v. Harrison (1989) 48 Cal.3d 321, 335.) Claims of error concerning Penal Code section 654 are subject to review even in absence of a failure to object. (People v. Hester (2000) 22 Cal.4th 290, 295.)
Defendant’s conviction for attempted commission of a lewd act in count three and his conviction for misdemeanor child annoyance in count five both were based on the living room incident, when defendant masturbated in front of J. and then asked if J. wanted to touch defendant’s penis. Defendant and the People agree that these crimes were based on the same criminal course of conduct and may not be separately punished. We agree and shall order the sentence imposed in count five to be stayed.
DISPOSITION
The judgment is modified to (1) stay imposition of sentence on defendant’s conviction for misdemeanor child annoyance in count five, pursuant to Penal Code section 654, and (2) reverse defendant’s conviction for misdemeanor child annoyance in count six. As modified, the judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation.
We concur: DAVIS, Acting P. J., ROBIE, J.