Opinion
E069874
10-09-2019
THE PEOPLE, Plaintiff and Respondent, v. ERIC DAMONNE GREEN, Defendant and Appellant.
Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn and Arlene A. Sevidal, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI1400378 & FVI1500888) OPINION APPEAL from the Superior Court of San Bernardino County. Corey G. Lee, Judge. Affirmed. Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
Eric Damonne Green raped K., his brother's 10-year-old stepdaughter. The prosecution also presented evidence Green committed six other uncharged acts of sexual assault on the same victim when she was 5 to 11 years old, including two acts of oral copulation.
The trial court instructed the jury that if the prosecution proved Green committed the uncharged crime of committing a lewd act upon a child under the age of 14 years by a preponderance of the evidence, it could consider the evidence as proof Green was disposed to commit sexual offenses. (Evid. Code, § 1108; CALCRIM No. 1191A.) The jury convicted Green of rape. On appeal, Green argues the court erred by failing to modify the instruction to address the offense of forcible oral copulation with a minor. He contends that failure to instruct implied the jury didn't have to find the acts of forcible oral copulation occurred by a preponderance of the evidence.
We conclude the instruction as given by the trial court was broad enough to include the two oral copulation incidents because those offenses were lewd acts on a child under 14. It's not necessary to modify the instruction for every statutory offense an act may violate, and it's not reasonably probable the instruction misled the jury into thinking they had to find he committed lewd acts by a preponderance of the evidence, but could find he committed forced oral copulation by a lesser standard.
We therefore affirm the judgment.
I
FACTS
K. was born on July 17, 2001 to Ashley and Jason. However, K. lived with her mother and her stepfather, Alfred, from the time she was eight months old until she was about 12 years old, when she moved in with her biological father. Green is Alfred's brother, K.'s stepuncle. K. accused Green of raping her when she was 10 years old. Later, she accused him of sexually assaulting her on several other occasions she said she remembered only after disclosing the rape.
The San Bernardino County District Attorney charged Green with having intercourse with K., a child 10 years old or younger (Pen. Code, § 288.7, subd. (a), unlabeled statutory citations refer to this code) and aggravated sexual assault of K. when she was under 14 years old and seven or more years younger than Green (§ 269, subd. (a)(1)). K., her mother, and Green all testified at trial, as did three medical experts. We recount their testimony below in setting out the facts.
The district attorney also charged Green with two counts of oral copulation or sexual penetration with his own daughter when she was 10 years old or younger (§ 288.7, subd. (b)) and committing a lewd act on his daughter when she was a child (§ 288, subd. (a)). However, two juries were unable to reach a verdict on those counts, and the trial court dismissed them at the request of the People.
A. The Rape
When K. was 10 years old, she lived in an apartment on Thunderbird Street with her mother, stepfather, and two younger sisters. Green was at the apartment one day because he had been drinking with Alfred. As he often did, Green stayed overnight because he was drunk. That night, K. and her sisters went to bed in the room they shared.
K. said Green came into her room, put a hand over her mouth and told her not to move or scream or she would get hurt. She said Green then pulled her off the bed and onto the floor, pulled up her nightgown and pulled down her underwear. Green got on his knees, lowered his pants, pulled out his penis, and got a condom from his pocket. She said she could see all this because there was a night light in the room.
K. said Green was much stronger and heavier than her, and he threatened to hurt her if she said or did anything. K. said Green then put on the condom and penetrated her vagina. When he finished, Green again warned K. he would hurt her if she told anyone. K. pulled up her underwear and went back to bed. She said the contact "hurt severely," she was scared, and afterward "all I could do was cry."
According to K., the next morning she saw Green on the couch acting nervous. When she went to the bathroom, she discovered she was bleeding, which lasted for a day or two. K. told her mother about the bleeding, but she was afraid to tell her what had happened, so she said she thought her period was coming.
After the rape, K. said she shut herself off from everyone. Her behavior changed, and her relationship with her mother deteriorated. As a result, K. moved in with her father in 2013. After living with her father for a year, K. told her friend about Green raping her and the friend told K.'s father. When her father asked about it, K. told him what happened, and her father took her to the police to report the incident.
B. The Uncharged Sexual Assaults
K. didn't initially disclose any other incidents of abuse by Green. After she did disclose them, she explained she had been stuck "in a state of not remembering." She said the memories came back to her "bit by bit," starting in early 2017. In July 2017, she disclosed six other incidents in which Green touched her sexually. She said, "I just let it out. I was tired of feeling hurt and I just I felt there was more to the story." Her descriptions of those incidents follow.
1. She said the first incident happened when she was five years old. She said she was at a reception for her great-grandfather's funeral. She was going to the bathroom, and Green stood in the hallway. She said Green lifted up her dress and touched her vagina under her clothes.
2. When K. was between five to eight years old, she and her family were at Green's house in Apple Valley. K. went to lie down in a bedroom because she had a headache and fell asleep. She was awakened when she felt Green's hand over her mouth. Green told her not to scream, pulled down his pants, and put his penis in her mouth. She said he pushed her head back and forth on his penis, causing her to choke. Green moaned and laughed at her. K. said she bit Green's penis, causing him to back away and punch her in the mouth, splitting her lip. She said Green ejaculated in her mouth. Green's wife came into the room after he had pulled up his pants. K. said she remembered his wife yelling at Green and said Green hit her to the ground, which broke a hole in the wall where she fell.
3. K. said another incident occurred at a children's birthday party in the summer of 2009 or 2010. K. said she was bouncing in a bounce house with other children when Green entered. He jumped on her, licked her face, bit her shoulder, and rubbed her vagina over her clothes for a couple of seconds. She said she knew he had touched her vagina on purpose because it had happened before, "a few times throughout the years." K.'s mother testified that Alfred's oldest children tried to get her to go outside because they couldn't get Green off K. Ashley and Alfred went outside, but K. didn't tell them about the sexual contact. She said only that Green had licked her face.
4. Sometime during the period from 2010 to 2012, when K. was 9 to 11 years old, Green accosted her after she had taken a shower in her mother's bathroom. K. said she was in the bathroom with a towel wrapped around her when Green opened the door and ordered her to get on her knees. She said she knew what he wanted. She said she didn't want to do it, but she was afraid he would hurt her. Green put his penis in K.'s mouth and pushed her head back and forth until he ejaculated on the bathroom carpet. K.'s mother came into the room as K. was getting up from her knees, and Green was pulling up his pants. Her mother started yelling at Green, and he claimed to be looking for his keys. K's mother asked her what was on the carpet, and K. lied that it was lotion because she thought she would get hurt if she said what had actually happened.
5. A couple months after the charged rape incident, Green picked up K. and her cousin from school. After her cousin ran into their house, Green tried to touch K., but she stopped him. Green responded by pulling her hair, and choking and hitting her. The incident left her with bruising on her legs, neck, arms, and chest. K. said she feared for her life because Green said he would hurt her if she told anyone. K.'s mother said she remembered seeing a bruise on K.'s neck, but thought it was a hickey.
6. During the period 2010 to 2012, K. was sitting on a couch in Green's Apple Valley home. While her mother was in the kitchen, K. said Green reached over and tried to touch her vagina and chest, but she hit his hand away and told him no. Green moved to another couch when K.'s mother came in the room. K.'s mother asked what was wrong, but K. said nothing because she was afraid her mother would be hurt.
C. Medical Testimony
A forensic pediatrician, Dr. Amy Young, examined K. when she was 12 years old, after she had disclosed the rape. Dr. Young said K. told her she had trouble urinating and suffered genital bleeding and abdominal pain after Green raped her. Dr. Young said those symptoms were consistent with having been raped.
Dr. Young also said she saw signs K. had been raped. She explained the hymen is the rim of tissue that lines the opening of the vaginal canal. She said in a child K.'s age, the hymen is usually smooth and regular, but said there were deep clefts at the bottom of K.'s hymen, which are associated with sexual abuse. Dr. Young said the clefts were consistent with K.'s claim that she had been raped two years earlier.
A forensic psychologist, Dr. Veronica Thomas, testified for the prosecution about Child Sexual Abuse Accommodation Syndrome, which explains why a child victim of sexual assault is not likely to report the abuse. According to Dr. Thomas, many children never disclose sexual abuse, or do so only years later. In cases where the abuser has frequent access to the child, a child might repress the abuse and pretend it didn't happen because the child thinks they will be blamed. Dr. Thomas also said if verbal threats are coupled with physical violence, children will tend to repress the memory. It is normal for a child to disclose details slowly over many occasions.
D. Defense Case
Green testified in his own defense. He denied being at his grandfather's funeral when K. was five years old, saying he was deployed to Iraq at the time. Green admitted he spent time at his brother's house most weekends, but denied K.'s accusations from the time period 2009 to 2012. Green said he was at a party with a bounce house, but denied jumping on K. He said he never forced his penis in K.'s mouth and never used violence against her. Green said he was never in the master bedroom without his brother also being in the house. He admitted spending the night at Alfred's house because he was drunk one time. He said it was possible that he wandered in K.'s room looking for the bathroom, but he denied raping her.
Dr. Christopher Fisher, a clinical forensic psychologist, testified for the defense. He said in his opinion Green didn't meet the diagnostic criteria of a pedophile or for any other sexual disorder. Dr. Fisher also said Green didn't have signs of antisocial personality disorder or psychopathy.
E. Instruction on Evidence of Uncharged Acts
The trial court asked both counsel if they had any issues with using CALCRIM No. 1191A, the California model instruction on evidence of uncharged sex offenses, to instruct the jury concerning evidence of the "other acts mentioned by [K.] that are not charged." Defense counsel didn't object.
The trial court used CALCRIM No. 1191A, modified by inserting lewd and lascivious conduct (§ 288, subd. (a)) as the offense for which Green could have been charged for the uncharged conduct. The court instructed the jury as follows:
"The People presented evidence that the defendant committed the crime of lewd act upon a child under the age of 14 years, in violation of Penal Code Section 288(a) that was not charged in this case. This crime is defined for you in these instructions.
"You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed this uncharged offense. Proof by a preponderance of the evidence is a different burden of proof from beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
"If the People have not met this burden of proof you must disregard this evidence entirely.
"If you decide that the defendant committed the uncharged offense, you may, but are not required to conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses and based on that decision also conclude that the defendant was likely to commit and did commit the charged offense. If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged offenses. The People must still prove each charge and allegation beyond a reasonable doubt."
The trial court did not include oral copulation with a minor under 14 years and 10 years younger than the perpetrator (§ 287, subd. (c)(1)), oral copulation with a minor by force (§ 287, subd. (c)(2)(B)), oral copulation with a child 10 years old or younger when the perpetrator is 18 years old or older (§ 288.7, subd. (b)), or any other statutory offense specific to oral copulation for which Green could have been charged for the uncharged acts involving oral copulation.
F. Verdict and Sentence
After hearing this evidence, a jury convicted Green of both counts. The trial court sentenced Green to 25 years to life in state prison for having intercourse with K., a child under 14. The court stayed punishment on the aggravated sexual assault count under section 654.
A jury couldn't reach a verdict after a first trial, and the trial court declared a mistrial.
Green filed a timely notice of appeal.
II
ANALYSIS
Green argues the trial court failed to correctly instruct the jury on all of the uncharged offenses, in violation of his right to due process. He says the trial court was right to instruct the jury with CALCRIM No. 1191A regarding evidence presented that Green committed the uncharged crime of lewd act upon a child under the age of 14 years. However, he says two of the uncharged offenses were not lewd acts but acts of oral copulation. He says the trial court should have clarified the instruction to explain to the jury the preponderance of the evidence standard applied to findings regarding those acts as well.
The People argue Green forfeited his claim by failing to object to the instruction at trial and that any error was harmless. We need not address those issues because we hold his claim fails on the merits.
We disagree. As Green acknowledges, most cases of forcible oral copulation with a child under 14 years of age would constitute violations of section 288, subdivision (a), at least if done with the required intent. This fact is fatal to Green's claim of error.
Section 288, subdivision (a) makes it a felony for "a person who willfully and lewdly commits any lewd or lascivious act . . . upon or with 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." Oral copulation qualifies as such a lewd and lascivious act. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1195, overruled on other grounds by Johnson v. Department of Justice (2015) 60 Cal.4th 871 ["[S]ection 288 provides that any lewd or lascivious act (including oral copulation) with a child under the age of 14 is a felony punishable by three to eight years' imprisonment"], italics added; see also People v. Murphy (2001) 25 Cal.4th 136, 141-149 [oral copulation with a minor constitutes a lewd act].) Thus, the People could have charged Green with violating section 288, subdivision (a) by forcing K. to fellate him when she was 10 years old. It simply doesn't matter that they could also have charged him with violating section 287, subdivision (c)(2)(B) or any other provision of the Penal Code.
When a defendant claims instructional error, the reviewing court must determine whether there is a reasonable likelihood the jury applied the challenged instruction in an impermissible manner, given the entire record of trial and the arguments of counsel. (People v. Wilson (2008) 44 Cal.4th 758, 803.) A federal due process violation occurs if there is a reasonable likelihood the jury misunderstood and misapplied the instructions in a way that affected the verdict. (People v. Avena (1996) 13 Cal.4th 394, 417.)
It's clear the trial court was required to instruct the jury using CALCRIM No. 1191A or an equivalent instruction because it admitted evidence of uncharged sexual offenses under Evidence Code section 1108. (People v. Anderson (2012) 208 Cal.App.4th 851, 895.) According to the Bench Notes for the instruction, "In the first sentence [of the instruction], the court must insert the name of the offense or offenses allegedly shown by the evidence. The court must also instruct the jury on elements of the offense or offenses." (Judicial Council of Cal., Crim. Jury Instns. (2019 ed.) Bench Notes to CALCRIM No. 1191A, p. 939.)
Here, the trial court inserted the "crime of lewd act upon a child under the age of 14 years, in violation of Penal Code Section 288(a)" as the offense allegedly shown by the evidence. The evidence presented showed six uncharged incidents when Green touched K. in a more or less serious sexual manner. Each incident involved Green willfully touching a part of K.'s body when she was under the age of 14 to arouse or gratify his sexual desires. We therefore conclude the trial court properly instructed the jury that if it found by a preponderance of evidence that Green committed lewd acts, it was permitted to conclude Green was disposed or inclined to commit sexual offenses and that he was likely to commit the charged offense. (See CALCRIM No. 1191A.)
It's true two uncharged incidents involved forced oral copulation, which would have supported offenses in addition to the crime of committing a lewd act on a child. However, we reject the suggestion that this means the instruction was misleading. Under the jury instructions as given, the jury was permitted to consider the evidence of the acts of forced copulation as indicating a proclivity to commit the rape only if they found by a preponderance of the evidence that the oral copulation was a lewd act on a child done for sexual gratification. We presume the jury followed the instruction (People v. Boyette (2002) 29 Cal.4th 381, 436 ["In any event, the trial court properly instructed the jury on the law, and we presume the jury followed those instructions"]), and see no likelihood that the jury would be misled to think they could find Green committed the incidents of forced oral copulation out of some inchoate sense that such acts are not "lewd and lascivious." As the Supreme Court explained in another context, "An act of oral copulation on a child under 14 years of age by a person more than 10 years older than the child is a lewd or lascivious act under the common and ordinary meaning of those words." (People v. Murphy, supra, 25 Cal.4th at p. 143.)
Accordingly, we conclude there was no error. The jury would have understood CALCRIM No. 1191A required them to find the incidents of oral copulation occurred by a preponderance of the evidence and there is no reasonable likelihood they misunderstood or misapplied the law.
III
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: McKINSTER
Acting P. J. MILLER
J.