Opinion
C041656.
7-29-2003
THE PEOPLE, Plaintiff and Respondent, v. FREDDIE JAMES LATHAM, Defendant and Appellant.
A jury convicted defendant Freddie Latham of one count of continuous sexual abuse of a child under the age of 14 (Pen. Code, § 288.5., subd. (a)), one count of lewd touching of a child under the age of 14 (§ 288, subd. (a)(1)) and one count of misdemeanor child molest. ( § 647.6, subd. (a).) Sentenced to 12 years in prison, defendant raises the following arguments on appeal: (1) it was error to instruct the jury with CALJIC No. 2.62; (2) multiple convictions violated section 288.5; (3) the trial court should have instructed on the lesser included offense of lewd touching. (§ 288, subd. (a)); (4) the jury was misinstructed on misdemeanor child molestation; (5) the trial court improperly denied probation; and (6) ineffective assistance of counsel. We shall reverse the conviction for violation of section 288, subdivision (a)(1), and affirm the judgment in all other respects.
References to a section are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
The victim, A., is defendants granddaughter by his son. The son died in 1992. A. lived with her mother and brother, Joe, for the next five years after A.s father died.
The incidents for which defendant was convicted began when A. was approximately 10 years old and A. was living with her mother and brother in a trailer at a campground in Wildwood in Trinity County. Defendant would go on hunting trips and pitch a tent at a campground near A. and her family. A. would stay with defendant in his tent. Almost every time A. stayed with defendant, he would rub her vagina. On three occasions, defendant showed her pornography and told her they would perform the acts in the pictures. Once defendant touched A.s breasts, another time he put his mouth on her vagina, and another time he put his penis into her mouth.
When A. was 11, she and her brother went to live with defendant and his wife. They lived at a residence on Ohm Road for two years and a residence on Spyglass Road for two or three years.
At the Ohm Road residence defendant made A. get in his bed once when A.s grandmother (defendants wife) was in the hospital. Defendant massaged A.s vagina with his fingers. While living on Ohm Road, A. accompanied defendant on a camping trip to Trinity County, where defendant rubbed his penis on A.s vagina until he ejaculated.
While A. lived with her grandparents at the Spyglass Road address, defendant stuck his foot in A.s crotch when they were swimming. In another incident, defendant told A. he wanted to taste her lip gloss, and grabbed her by the arms and tried to kiss her lips. After this incident, A. decided to tell her grandmother, who called police.
Defendant called several family members as witnesses, all of whom denied ever seeing defendant behave inappropriately with A. Defendants wife testified she always accompanied defendant on his hunting trips. However, officers Ryon Mitchell and Ron Spurgeon, both of whom interviewed the wife after she called police, testified she stated to them that defendant took A. on several hunting trips alone.
Defendant testified on his own behalf. He denied ever touching A. inappropriately. He denied ever showing her pornographic material. He denied ever being alone with her during any hunting trip. He stated he accidentally kicked A. in the "butt" while swimming with her, but apologized and told A. he had not meant to. The lip gloss incident occurred when A. entered the living room carrying four tubs of lip gloss and asked defendant if he could guess which one she was wearing. Defendant leaned in to smell her lips and accidentally bumped A. on the cheek with his chin.
Defendant speculated A. was making false allegations against him because she was unused to his rules, thought he was too strict, and wanted to leave the household to live somewhere else.
The jury convicted defendant of all charges. The trial court sentenced defendant to 12 years on the continuous sexual abuse count (the incidents occurring in Trinity County), and imposed two years on the lewd touching count (the Ohm Road incident) and one year on the misdemeanor child molestation count (the swimming pool and lip gloss incidents). The court stayed the latter two terms pursuant to section 654.
DISCUSSION
I
CALJIC No. 2.62
The trial court instructed the jury as follows:
"In this case the Defendant has testified to certain matters. If you find that the Defendant failed to explain or deny any evidence against him introduced by the Prosecution which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence, and as indicating that, among the inferences that may reasonably be drawn therefrom, those unfavorable to the Defendant are the more probable. The failure of the Defendant to deny or explain evidence against him does not by itself warrant an inference of guilt, nor does it relieve the Prosecution of its burden of proving every essential element of the crime and the guilt of the Defendant beyond a reasonable doubt.
If a Defendant does not have the knowledge that he would need to deny or explain evidence against him, it would be unreasonable to draw inferences unfavorable to him because of his failure to explain or deny the evidence."
Defendant argues, and the People concede, the trial court erred in giving this instruction because there was no evidence defendant failed to explain or deny. The parties disagree as to whether the error was prejudicial.
Defendant argues the instruction violated federal due process. Defendant cites Ulster County Court v. Allen (1979) 442 U.S. 140 [60 L. Ed. 2d 777, 99 S. Ct. 2213] wherein the United States Supreme Court stated that a permissive inference violates the due process clause if the suggested conclusion is not rationally justified in light of the proven facts. (Id . at p. 157 [p. 792].)
Defendants argument fails because CALJIC No. 2.62 did not invite the jury to make any unjustifiable inference. The court specifically instructed the jury not to draw an inference of guilt if the defendant did not have the knowledge he would need to explain or deny evidence. The jury was also instructed pursuant to CALJIC No. 17.31 that it should disregard any instruction applying facts it found did not exist. The instruction did not violate defendants due process rights.
Defendants argument that the permitted inference is irrational because it suggests a defendant can volunteer explanations when in fact he may only answer the questions put to him, is mere speculation on the facts before us. Defendant explained or denied all the evidence presented against him. It is pointless to argue he would have been prejudiced had he failed to do so.
Defendant also contends the instruction was prejudicial under the standard of prejudice set out in article VI, section 13 of the California Constution. However, we conclude it is not reasonably probable a more favorable result would have been reached had CALJIC No. 2.62 been omitted, and any error resulting from its use was harmless. (People v. Kondor (1988) 200 Cal. App. 3d 52, 57-58, 245 Cal. Rptr. 750.)
II
Multiple Convictions Under Section 288.5
Defendant argues, and the People concede, counts one (continuous sexual abuse of a child) and two (lewd touching) should have been alleged in the alternative, and the jury should have been instructed that these were alternate counts. The parties disagree on the remedy for the error.
Section 288.5, subdivision (c) provides in pertinent part: "No other felony sex offense involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative." Nevertheless, the People charged in count one that the continuous sexual abuse occurred between July 1, 1995, and August 1, 2001, and in count two that the lewd touching occurred between July 12, 1998, and July 11, 1999. Because section 288.5, subdivision (c) mandates the offense of continuous sexual abuse and other felony sexual offenses occurring during the same time period be charged in the alternative, it is error for the People to obtain multiple convictions on such charges. (People v. Johnson (2002) 28 Cal.4th 240, 248.)
Defendant urges us to remedy the error by either reversing the judgment on both counts, or at least on the greater conviction of continuous sexual abuse. The People argue the correct remedy is to reverse the judgment on the lesser lewd touching conviction.
Defendant claims People v. Jaramillo (Jaramillo) (1976) 16 Cal.3d 752, 129 Cal. Rptr. 306, 548 P.2d 706 supports his argument. It does not. The defendant in Jaramillo, supra, was convicted of violating both Vehicle Code section 10851 , which prohibited driving or taking the vehicle of another without consent, and section 496, which prohibited receiving stolen property. Both charges involved the same vehicle. (Id. at p. 758.) The Supreme Court agreed with the defendant that he could not be convicted of taking and receiving the same property. (Ibid.) The court stated that the record did not disclose whether the Vehicle Code section 10851 conviction was for stealing the vehicle, or driving the vehicle without the intent to steal. (Id. at p. 759.) Citing People v. Briggs (1971) 19 Cal. App. 3d 1034, 97 Cal. Rptr. 372, the court held that if the jury found the first conviction was based on the taking of the vehicle with intent to steal it, a separate conviction for receiving the vehicle would be improper. (Ibid.)
The court remedied the error by reversing both convictions, but allowing the People to elect the reinstatement of the Vehicle Code conviction by moving to set aside the cause for retrial. (Jaramillo, supra, 16 Cal.3d at p. 760.) The Vehicle Code conviction was the lesser offense. (Id. at p. 757.) The court allowed the Vehicle Code conviction to be upheld because the record contained substantial evidence to support an error-free conviction on that offense and because a conviction on receiving stolen property was foreclosed if the jury might have found the defendant intended to steal the vehicle. (Id. at p. 759, 761.) The court did not state it would reverse the greater of the two convictions out of fairness to the defendant, as defendant here argues.
The court did not rely on People v. Briggs, supra, for the proposition that the greater offense should always be stricken out of fairness to the defendant, but for the proposition that there could be no conviction for receiving property for which there was also a conviction that could be based on a finding of stealing the same property. (Jaramillo, supra, 16 Cal.3d at p. 759.)
Rather, "since the Jaramillo decision, for the sake of judicial economy reviewing courts faced with the problem [of convictions for stealing and receiving the same property] have reversed the conviction of a lesser offense and let the conviction of the greater offense stand. (E.g., People v. Lawrence (1980) 111 Cal. App. 3d 630, 640 .)" (People v. Black (1990) 222 Cal. App. 3d 523, 525, 271 Cal. Rptr. 771.)
We find People v. Torres (Torres) (2002) 102 Cal.App.4th 1053, persuasive on this issue. Faced with a conviction based on section 288.5 and numerous separate felony sexual offenses that occurred during the same time period, Torres addressed which of these should be the appropriate conviction. The court concluded the separate convictions, which carried the greater punishment, should stand. (Id. at pp. 1060-1061.) The court reasoned this result furthered the legislative purpose in enacting section 288.5 of making a defendants liability reflect culpability. (Id. at p. 1059.)
The legislative purpose behind section 288.5 was, in part, "to make obtaining significant penalties against a resident child molester easier." (People v. Johnson (1995) 40 Cal.App.4th 24, 26.) In the present case, the conviction carrying the greatest penalty will impose a significant penalty against defendant, will reflect defendants culpability, and will follow the usual remedy set forth in People v. Black, supra, of letting the conviction on the greater offense stand.
III
Lesser Included Offense
A trial court has a sua sponte duty to instruct on lesser included offenses that are supported by the evidence. (People v. Breverman (Breverman) (1998) 19 Cal.4th 142, 148-149, 960 P.2d 1094.) Here, the trial court gave instructions on section 288.5 (engaging in three or more acts of lewd or lascivious conduct with a child under age 14 over a period of three or more months), but not on section 288 (lewd or lascivious conduct with a child under 14).
Section 288 was a lesser included offense in this case because the accusatory pleading included language describing section 288.5 in such a way that a violation of section 288.5 necessarily included a violation of section 288. The pleading, as amended during trial, accused defendant of "continuous sexual abuse of a child in violation of Section 288.5 paren. (a) of the Penal Code. Every person who either resides in the same home with a minor child or has recurring access to a child, who, over a period of time, not less than three months in duration, engages in three or more acts of lewd or lascivious conduct with a child under the age of 14 years at the time of the commission of the offense, is guilty of the crime of continuous sexual abuse of a child, in violation of Penal Code section 288.5 paren. (a)."
Originally, defendant was charged with violating section 288.5, subdivision (a) by engaging in three or more acts of "substantial sexual conduct" as defined in section 1203.066, subdivision (b) and three or more acts in violation of section 288. However, the court struck the language regarding substantial sexual conduct because it found no evidence to support such a charge. Therefore, as pled, a violation of section 288.5 necessarily included the lesser offense of violating section 288.
We nevertheless conclude no instruction was necessary here because the lesser included offense did not find substantial support in the evidence. (See Breverman, supra, 19 Cal.4th at p. 162.) "The existence of any evidence, no matter how weak will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is substantial enough to merit consideration by the jury." (Breverman, supra, at p. 162, quoting People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12, 160 Cal. Rptr. 84, 603 P.2d 1, orig. italics.) "Substantial evidence in this context is "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" that the lesser offense, but not the greater, was committed. [Citations.] [P] In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury." (Breverman, supra, at p. 162.)
Defendant points to section 288.5s requirement that the acts of lewd or lascivious conduct take place over a period of three or more months, and argues there was substantial evidence the conduct took place over a period of no more than two months. We disagree.
The actions constituting the violation of section 288.5 were alleged to have occurred in Trinity County. Most of the acts occurred while A. lived with her mother in a trailer in the Wildwood area. A. testified she lived in the trailer when she was 10 or 11 for a month or two months. The section 288.5 violations occurred when defendant would camp out near them to go deer hunting. A. also testified defendant molested her each deer season from the time she was nine until she was 11 or 12.
Defendant points to A.s confusion over whether the acts occurred only during a two month period when A. lived in the trailer with her mother, or over the course of a few years, and claims there was insufficient evidence the duration element of section 288.5 was met.
There was, however, other evidence that A. lived with her mother in the trailer for longer than two months. Defendants adult son testified they lived in the trailer for a very long time, more than a year. Detective Ron Spurgeon interviewed defendants wife after she reported her husband to authorities. Defendants wife told him at the time that defendants trips alone with A. in Trinity County occurred over several years.
Finally, even assuming A. lived with her mother in the trailer only two months, one of the acts encompassed by the section 288.5 allegations occurred after A. moved to Tehama County and lived with her grandparents on Ohm Road. A. moved in with her grandparents in September 1997. A. lived with her mother in the trailer in 1996. This evidence satisfied the duration element of section 288.5.
In any event, any error in failing to instruct on section 288 was harmless because it was not reasonably probable defendant would have obtained a more favorable outcome had the instruction been given. (See Breverman, supra, 19 Cal.4th at p. 178.) In determining whether error was prejudicial under People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243, we focus not on what a reasonable jury could do, but what a reasonable jury is likely to have done. (Breverman, supra, at p. 177.) In making this determination, we may consider the relative strength of the evidence supporting the judgment, as opposed to the comparative weakness of the evidence supporting a different outcome. (Ibid.)
Here, the only evidence supporting defendants claim the molestations occurred over less than three months was the child victims confusion about how long she had lived in a trailer with her mother and the defendants own self-serving testimony that A. lived in the trailer a month and a half. In light of the other evidence, it is not reasonably probable this evidence would have persuaded the jury the molestations occurred over less than a three month period.
IV
Instruction on Section 647.6
Section 647.6 imposes misdemeanor punishment on "every person who annoys or molests any child under the age of 18
. . . ." Although the statute does not set forth any requisite specific intent, the statute is violated only if the defendant has an abnormal sexual motivation. (People v. Pallares (1952) 112 Cal. App. 2d Supp. 895, 901, 246 P.2d 173.)
The trial court instructed the jury pursuant to CALJIC No. 16.440, that in order to convict defendant of a violation of section 647.6, it must find proof that his "conduct was motivated by [an] unnatural or abnormal sexual interest in [A.]." Defendant argues the correct standard is not that defendant was motivated by an abnormal sexual interest in the victim, but that he was motivated by an abnormal sexual interest in children in general. We disagree.
In support of his argument, defendant cites In re Gladys R. (1970) 1 Cal.3d 855, 867-868, wherein the court stated section 647a (now section 647.6) applies "only to offenders who are motivated by an unnatural or abnormal sexual interest or intent." (Id. at p. 867.) The court then quoted with approval People v. Pallares, supra, 112 Cal. App. 2d at page 901, which stated, "a reading of the section as a whole in the light of the evident purpose of this and similar legislation enacted in this state indicates that the acts forbidden are those motivated by an unnatural or abnormal sexual interest or intent with respect to children." (In re Gladys R., supra, at pp. 867- 868.)
We do not construe this quotation of the language of People v. Pallares to indicate that a defendant must be motivated by an abnormal sexual interest in children in general. People v. Pallares, supra, was specifically addressing that defendants argument that the language of the statute was too uncertain to advise the public of what acts were forbidden. (People v. Pallares, supra , 112 Cal. App. 2d at p. 898.) In response, the court stated that the words "annoy" and "molest" connote an abnormal sexual motivation on the part of the offender. (Id. at p. 901.) The language of the case should not be read so narrowly as to imply that only an abnormal sexual interest in children in general, as opposed to the particular child victim, is required. Indeed, in In re Gladys R., supra, the specific holding of the court is that the statute applies "only to offenders who are motivated by an unnatural or abnormal sexual interest or intent." (In re Gladys R., supra , 1 Cal.3d at p. 867.) It is only the courts quote of People v. Pallares that mentions an abnormal interest in children.
If there is any confusion as to the Supreme Courts intent in setting forth the mental element of section 647.6, it was dispelled by the courts opinion in People v. Lopez (1998) 19 Cal.4th 282, 965 P.2d 713. There, the court stated that a violation of the section requires conduct that is ""motivated by an unnatural or abnormal sexual interest" in the victim . . . ." (Id. at p. 289, italics added.) The court did not err in giving CALJIC No. 16.440.
V
Denial of Probation
Defendant claims the trial court erred in denying probation based solely on the courts finding he lacked remorse. He claims this finding is not supported by the record inasmuch as he maintained his innocence throughout the trial. He argues it is improper to deny probation based on a lack of remorse where, as here, there was no overwhelming evidence of guilt.
Defendant did not raise any objection at sentencing to the trial courts reasons for denying probation. He cannot, therefore, raise the objection for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353, 885 P.2d 1040.)
Defendant argues his request made prior to and at the time of sentencing that the court order a psychiatric evaluation pursuant to section 288.1 was sufficient to preserve an appeal on the ground of sentencing error. It was not.
Objections to the sentence must be made contemporaneously with the pronouncement of sentence, and must give a legal or factual basis for the objection such that the trial court has a meaningful opportunity to correct the error. (People v. deSoto (1997) 54 Cal.App.4th 1, 9-10.) In this case, defendant merely made his argument in favor of probation, but did not object when the trial court denied probation and stated as the ground for denial a reason defendant now claims was improper. The claim is therefore waived.
VI
Ineffective Assistance of Counsel
Defendant claims he received ineffective assistance of counsel because his trial counsel did not argue for a mitigated term after the court expressed its intention to sentence him to the middle term. There is no merit in this argument.
The trial court stated it was "inclined to not find . . . that the facts in aggravation outweighed those in mitigation" and announced its intention to impose the mid term. Defendants counsel replied he thought the factors in the case were "quite clear" and elaboration on his part would not serve to clarify anything.
The trial court did not specify what it thought the factors in aggravation and mitigation were, but the probation report listed three factors in aggravation (the victim was particularly vulnerable, the crimes indicated planning on the part of defendant, and defendant took advantage of a position of trust), and one factor in mitigation (defendant had no prior criminal record).
Defendant claims his trial counsel should have argued the victim here was not more vulnerable than any other victim of a section 288.5 crime, that planning is inherent in a section 288.5 offense, and that the fact that defendant was in a position of trust relative to A. actually made the crime less traumatic than if A. had been molested by a total stranger. Defendant also claims his trial counsel should have cited the letters of reference sent to the trial court.
"[A] defendant seeking relief on the basis of ineffective assistance must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsels failings." (People v. Cudjo (1993) 6 Cal.4th 585, 623, 863 P.2d 635; Strickland v. Washington (1984) 466 U.S. 668, 687-696 [80 L. Ed. 2d 674, 693-699, 104 S. Ct. 2052].) We will reverse for ineffective assistance of counsel only if the record affirmatively shows there was no rational tactical purpose for the trial counsels act or omission. (People v. Zapien (1993) 4 Cal.4th 929, 980, 846 P.2d 704.) Additionally, a defendants trial counsel need not indulge in idle acts to appear competent. (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091.)
The record does not affirmatively show there was no rational tactical purpose for trial counsels failure to argue for a mitigated sentence. Moreover, defendants arguments on appeal have no merit. Thus, it appears that if his trial counsel had argued in favor of a mitigated sentence, it would have been futile.
The victim in this case was particularly vulnerable, not only because she lived with defendant, but also because her father had died, her mother was unfit to take care of her, and she was completely dependent on defendant and his wife to take care of her.
Defendant and his wife were given custody of A. and her brother because A.s mother abused drugs and alcohol, and did not take care of the children.
Defendant states without authority that a violation of section 288.5 is a continuous conduct offense and that an element of planning is inherent in a continuous conduct offense. We disagree. Section 288.5 may be violated without any planning involved.
The probation officers finding that defendant took advantage of a position of trust to commit the offenses was a proper circumstance of aggravation. Section 288.5 merely requires the perpetrator to reside in the same home as the victim or have recurring access to the victim. There is no requirement the perpetrator hold a position of trust. In this case, defendant not only met the requirements of the statute, he also was in a position of trust because he was the victims grandfather.
Finally, there was no need for defendants trial counsel to highlight the letters of reference. The trial court indicated it had reviewed the letters prior to announcing its sentencing determination.
Had defendants counsel asserted any of the erroneous arguments he raises on appeal, the arguments would have been futile. Trial counsel was not incompetent for failing to assert such arguments.
DISPOSITION
The judgment convicting defendant of violating Penal Code section 288, subdivision (a)(1) (count 2) is reversed. In all other respects the judgment is affirmed.
As modified, the petition for rehearing is denied.
We concur: SIMS, J., HULL, J.