Opinion
G052547
07-17-2017
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER BRYAN McKENZIE, SR., Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Junichi P. Semitsu, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12HF3538) OPINION Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed as modified with directions. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Christopher Bryan McKenzie, Sr., appeals from the judgment entered after a jury found him guilty of multiple counts of committing a lewd and lascivious act upon a child under 14 years of age, distributing pornography to a minor, and using a minor to pose for sex acts; and one count each of attempting to use a minor to pose for photos containing sexual conduct, attempting a lewd act upon a child under 14 years of age, and possession and control of child pornography. The jury also found true enhancement allegations regarding several counts.
McKenzie contends insufficient evidence supported his convictions for one count of attempting to use a minor to pose for photos containing sexual conduct and one count of attempting a lewd act upon a child under 14 years of age, both of which counts involved a minor identified in the record as B.O. He also argues one of his convictions for distributing pornography to a minor, which was charged in the second amended information as count 10, was barred by the applicable statute of limitations.
Substantial evidence supported McKenzie's convictions for committing one count of attempting to use a minor to pose for photos containing sexual conduct and one count of attempting a lewd act upon a child against B.O., then a child under 14 years of age. We affirm the judgment as modified solely to reverse the conviction on count 10 for distributing pornography to a minor, and to strike the eight-month sentence imposed on that count. We do so because, as the Attorney General concedes in the respondent's brief, the applicable statute of limitations on count 10 has expired.
FACTS
Only facts related to counts 17 and 18 (involving victim B.O.) of the second amended information are relevant to the issues raised in this appeal. We therefore limit our summary of facts to evidence related to those counts.
When B.O. was in the second or third grade, McKenzie was his Sunday school teacher at the church where B.O.'s family attended. B.O. liked McKenzie because he made the lessons fun and brought doughnut holes to class. McKenzie left B.O.'s church when B.O. was in sixth grade.
In the summer of 2009, B.O. was going to be in the eighth grade. McKenzie called B.O.'s mother and told her he would like to hire B.O. to work as his assistant in his pool cleaning business and ride along with him from home to home cleaning pools. B.O.'s mother told B.O. about McKenzie's offer which B.O. thought sounded great; he was excited about the opportunity.
The first day on the job, McKenzie picked up B.O. at B.O.'s home in his truck. After B.O. helped McKenzie clean 15 to 20 pools, McKenzie drove him home and paid him $3 per pool. McKenzie told B.O. they would "do it again" the next week.
The following week, McKenzie picked up B.O. While B.O. was cleaning a pool, McKenzie went back to his truck a couple of times to "work[] on . . . the heat control." When B.O. and McKenzie returned to the truck, a note was on the truck's windshield. McKenzie read it and said it concerned B.O.; B.O. read the note to himself. The note was purportedly from one of McKenzie's clients who sculpted statues and had noticed B.O. The note stated that B.O. would be a "perfect model" for a statue she was creating of a Roman child. The note stated the client would pay $50 to McKenzie for supplying pictures of B.O. and B.O. would be paid $50 for his time.
B.O. thought the opportunity sounded great and way to earn "easy money." While McKenzie was driving B.O. to their next stop, McKenzie explained to B.O. that the photographs to be taken of B.O. were to be in the nude because the sculpture would depict a nude person. B.O. instantly declined stating, "Oh no. Never mind. I don't want to do that. That's weird."
After B.O. declined the offer, McKenzie questioned him about it, saying that he himself had posed for this client and that there was no shame in it because it was for art. McKenzie also said, in a "joking manner" to B.O., "Well, are you ashamed of the body God gave you?" B.O. thought McKenzie's comment was bizarre. B.O. answered "no" and said that he "still wasn't going to do it."
McKenzie persisted in encouraging B.O. to accept the offer, stating that McKenzie would lose the $50 offered to him to take the pictures. At some point, McKenzie bought B.O. an extra-large soda; B.O. did not get to drink soda at home because it had too much sugar.
Toward the end of the day, McKenzie told B.O. he would consider reapplying to be the Sunday school teacher at the church and would buy him another soda if he agreed to pose for the photographs. B.O. told McKenzie he did not want to do it and questioned McKenzie as to why the pictures had to be nude instead of pictures with him wearing a bathing suit or shorts. McKenzie told B.O. he would talk to the client about it. McKenzie bought B.O. another soda, and paid him for his work that day. After B.O. held his ground and refused to pose for the pictures, McKenzie drove him home. When B.O. got out of the truck, McKenzie asked B.O. if he was going tell anyone, and specifically whether he was going to tell his parents. B.O. said he did not know. B.O. never heard from McKenzie again.
At trial, four other young men testified that they had similar experiences with McKenzie when they were children. J.C. testified that when he was 12 years old, he helped clean pools for McKenzie. While at one of McKenzie's client's homes, McKenzie told J.C. that the people who lived there were sculptors and they needed naked pictures of J.C. for their work and would pay him $300 to pose for such pictures. McKenzie drove J.C. to a fast food restaurant where he bought him food, and then drove him to his apartment where he told J.C. he had to put oil on his body for the purpose of "better lighting or something." McKenzie put baby oil all over J.C.'s body including his chest, buttocks, penis, testicles, and legs. He then had J.C. pose in different positions on a blowup mattress in the bedroom of his apartment while he took pictures for 20 minutes with a flash camera. McKenzie thereafter rubbed the oil off of J.C.'s body in the shower, touching his genitals and buttocks as he did so, and then offered J.C. $20 to watch pornography with him.
B.F. testified that when he was in the fifth or sixth grade, McKenzie offered him a job repairing and cleaning pools. One day on the drive home from a job, McKenzie handed B.F. a note that stated an artist had seen B.F. on the street being washed off the day before, and that she wanted him as a model for one of her pieces because he was a good subject. She requested naked photos of him and offered him money. McKenzie strongly recommended B.F. accept the offer and said he would be the one to take the photos. McKenzie offered B.F. $40, $50, or $60. B.F. initially declined the offer but during the long drive home, he eventually accepted it. McKenzie drove B.F. to his apartment, rubbed his buttocks, chest, and genitalia with oil, explaining that the artist said that would make B.F.'s muscles more defined, and took pictures of B.F. in his bedroom. B.F. testified that he agreed to other photo shoots.
J.D. testified that when he was in the seventh or eighth grade, he worked for McKenzie cleaning pools. While he was cleaning a pool one day, McKenzie told J.D. he received a letter "from a lady inside the house." He told J.D. she was really shy and that the letter said she had seen McKenzie's "little helper" and that she needed naked photographs of J.D. because she was creating a sculpture. The letter said she offered to pay McKenzie $50 for McKenzie to take the photographs and $50 to J.D. for posing for them. At some point during the ride back to J.D.'s house, J.D. accepted the offer. McKenzie took J.D. to McKenzie's house where he put baby oil on J.D.'s back and directed J.D. to rub oil everywhere including the "down south" area for "definition" purposes. McKenzie directed J.D. to lie down on his bed and then took photographs of him on his phone.
When McKenzie's stepson D.M. was 13 or 14 years old, McKenzie told him that "an older lady" would give McKenzie money to give to D.M. if D.M. allowed McKenzie to take naked pictures of him for sculptures. D.M. agreed and posed naked for photographs.
BACKGROUND
McKenzie was charged in a second amended information with the following 20 counts: three counts of committing a lewd act upon J.C., a child under the age of 14 years in violation of Penal Code section 288, subdivision (a) (counts 1-3); one count of distributing pornography to J.C., a minor, in violation of section 288.2, subdivision (a) (count 4); one count of using J.C., a minor, for sex acts in violation of section 311.4, subdivision (c) (count 5); four counts of committing a lewd act upon D.M., a child under 14 years of age in violation of section 288, subdivision (a) (counts 6 through 9); one count of distributing pornography to D.M., a minor, in violation of section 288.2, subdivision (a) (count 10); three counts of committing a lewd act upon B.F., a child under the age of 14 years in violation of section 288, subdivision (a) (counts 11, 12 and 14); two counts of using B.F., a minor, for sex acts in violation of section 311.4, subdivision (c) (counts 13 and 15); one count of using J.D., a minor, for sex acts in violation of section 311.4, subdivision (c) (count 16); one count of attempting to use B.O., a minor, for sex acts in violation of sections 664, subdivision (a) and 311.4, subdivision (c) (count 17); one count of attempted commission of a lewd act upon B.O., a child under 14 years of age, in violation of sections 664, subdivision (a) and 288, subdivision (a) (count 18); one count of committing a lewd act upon T.S., a child under the age of 14 years in violation of section 288, subdivision (a) (count 19); and one count of possession and control of child pornography in violation of section 311.4, subdivision (d) (count 20).
All further statutory references are to the Penal Code.
The second amended information, as to counts 1-3, 6-9, 11-12, 14, and 19, further alleged, pursuant to section 1203.066, subdivision (a)(8), that McKenzie had substantial sexual conduct with his victims, who were under 14 years of age, and also alleged as to counts 1-3 and 6-9, pursuant to section 667.61, subdivisions (b) and (e)(5), and as to counts 11-12, 14, and 19, pursuant to section 667.61, subdivisions (b) and (e)(4), that in the commission of those offenses, McKenzie committed an offense specified in section 667.61, subdivision (c), against more than one victim.
The jury found McKenzie guilty on all 20 counts and found all the enhancement allegations true (except the allegation that as to counts 8 and 9, pursuant to section 667.61, subdivisions (b) and (e)(5), McKenzie committed an offense specified in section 667.61, subdivision (c), against more than one victim). The trial court imposed a total prison term of 60 years to life plus a concurrent 16-year determinate sentence. McKenzie appealed.
DISCUSSION
I.
SUBSTANTIAL EVIDENCE SUPPORTED MCKENZIE'S CONVICTIONS FOR ATTEMPTING TO
USE A MINOR TO POSE FOR A SEXUAL PHOTOGRAPH AND FOR ATTEMPTING TO COMMIT A
LEWD ACT ON A MINOR.
McKenzie contends insufficient evidence supported his convictions on count 17 (attempted use of a minor to pose for sexual photographs) and count 18 (attempted lewd act on a child under 14 years of age). "'In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]" (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We may reverse for lack of substantial evidence only if "'upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Section 311.4, subdivision (c) defines the crime of using a minor to pose for sexual photographs as follows: "Every person who, with knowledge that a person is a minor under the age of 18 years, . . . knowingly promotes, employs, uses, persuades, induces, or coerces a minor under the age of 18 years, . . . to engage in . . . either posing or modeling . . . for purposes of preparing any representation of information, data, or image, including, but not limited to, any . . . photograph . . . that contains or incorporates in any manner, any . . . sexual conduct by a minor under the age of 18 years . . . is guilty of a felony." Section 311.4, subdivision (d) defines "'sexual conduct'" to include "exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer."
The crime of committing a lewd act on a child 14 years of age occurs when a person, "with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or a child" victim, "willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof" (§ 288, subd. (a)) of the child victim who is the age of 14 or 15 years, and is at least 10 years younger than that person (§ 288, subd. (c)(1)).
"An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (§ 21a.)
McKenzie's substantial evidence challenge to his convictions on counts 17 and 18 is limited to his argument that insufficient evidence exists to show he went beyond "mere preparation" to constitute an actual attempt of either offense. McKenzie cites People v. La Fontaine (1978) 79 Cal.App.3d 176, 180 (La Fontaine), overruled on another ground in People v. Lopez (1998) 19 Cal.4th 282, 292, in support of his argument.
In La Fontaine, supra, 79 Cal.App.3d at pages 182-183, the appellate court held that solicitation of a lewd act, without more, was insufficient to constitute an attempt to commit a lewd act. Several later appellate decisions have declined to follow La Fontaine. (See, e.g., People v. Herman (2002) 97 Cal.App.4th 1369, 1386; Hatch v. Superior Court (2000) 80 Cal.App.4th 170, 188; People v. Ansaldo (1998) 60 Cal.App.4th 1190, 1196 (Ansaldo).)
In Ansaldo, supra, 60 Cal.App.4th at pages 1192-1995, the jury found the defendant guilty, inter alia, of two counts of committing lewd and lascivious acts on a minor, and one count of attempting that offense with respect to three separate 14-year-old victims, two of whom he persuaded to masturbate him, and one of whom refused his request that she have sex with him in the future for compensation. Citing La Fontaine, the defendant contended the evidence was insufficient to sustain his conviction of an attempted lewd act on the victim who refused his solicitation. (Id. at p. 1195.) The Ansaldo court disagreed, declining to follow La Fontaine's holding "that acts of solicitation are insufficient to constitute attempts." (Id. at p. 1196.)
The Ansaldo court observed that La Fontaine was inconsistent with People v. Memro (1985) 38 Cal.3d 658, overruled on other grounds in People v. Gaines (2009) 46 Cal.4th 172, 181, where the California Supreme Court stated, "'"[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."'" (Ansaldo, supra, 60 Cal.App.4th at p. 1197.) The appellate court held, "There can be no doubt, based on Ansaldo's strikingly similar methods of operation involving all three victims, that his intent to commit lewd and lascivious acts on the second victim was clearly shown. As Memro holds, in such a case, slight acts done in furtherance are all that is necessary. Ansaldo's attempt to have the second victim ingest drugs, his comment" (id. at p. 1197) "that he could cut someone's throat and he wouldn't care" (id. at p. 1192), "which frightened her, and his offer of money for sex went beyond mere preparation. The fact that she interpreted his request to be for sex at some future point is not determinative. The jury was free to infer that had she, like her sister, agreed to his request, Ansaldo would have proceeded, at that moment, with the lewd and lascivious acts, just as he had with the other two victims." (Id. at p. 1197.)
Here, the evidence was sufficient to support McKenzie's convictions on counts 17 and 18. McKenzie directly and repeatedly solicited B.O. to agree to pose for nude photographs taken by McKenzie. These solicitations occurred as McKenzie drove B.O. to and from pool cleaning jobs and then to B.O's home. McKenzie similarly used his pool cleaning business and ruse about a female client sculptor needing a nude model with J.C., B.F., J.D., and D.M. Unlike the incident involving B.O., McKenzie was successful in persuading J.C., B.F., J.D., and D.M. to accept his offer to pose for nude photographs taken by McKenzie for money. In each of those instances, except for the one involving D.M., the victim agreed to be photographed while being driven in McKenzie's vehicle at which point McKenzie almost immediately took the victim to his home, rubbed him with body oil, and directed him to pose on a bed where he photographed him. In D.M.'s case, he was already in McKenzie's home at the time he was successfully solicited to be photographed in the nude and rubbed with baby oil.
Sufficient evidence supported the jury's findings that McKenzie completed the crimes of attempting to have B.O. pose nude within the meaning of section 311.4, subdivision (c), and of attempting to commit a lewd act upon him. The jury could reasonably infer based on that evidence that once B.O. agreed to McKenzie's offer, McKenzie would have immediately driven him to McKenzie's home, directed B.O. to undress, rubbed him with body oil and/or directed B.O. to rub himself with body oil, and directed B.O. to pose for nude pictures on McKenzie's bed just as he had with the other four boys. On this record, McKenzie's persistent pressure on B.O. to accept his offer went beyond mere preparation to attempt these crimes. We find no error.
II.
MCKENZIE'S CONVICTION ON COUNT 10 IS BARRED BY THE APPLICABLE STATUTE OF
LIMITATIONS AND THUS MUST BE REVERSED.
McKenzie argues his conviction on count 10 for distribution of pornography to a minor in violation of section 288.2, subdivision (a), must be reversed because it is barred by the statute of limitations. Although McKenzie first raises his statute of limitations argument on appeal, his argument is not forfeited. The California Supreme Court has held, "if the charging document indicates on its face that the charge is untimely, absent an express waiver, a defendant convicted of that charge may raise the statute of limitations at any time." (People v. Williams (1999) 21 Cal.4th 335, 338.)
Prior to 2005, the statute of limitations period for violations of section 288.2 was three years. (Former § 801, added by Stats. 1984, ch. 1270, § 2, p. 4335; People v. Simmons (2012) 210 Cal.App.4th 778, 789.) On January 1, 2005, new legislation extended the statute of limitations for felonies enumerated in section 290, subdivision (c), including violations of section 288.2, to 10 years. (Former § 801.1, subd. (b), added by Stats. 2004, ch. 368, § 1, p. 3470; People v. Simmons, supra, 210 Cal.App.4th at p. 789.)
Here, as to count 10, the second amended information alleged that McKenzie distributed pornography to a minor in violation of section 288.2, subdivision (a) "On or about and between March 31, 1996 and March 30, 2002." Count 10 was based on conduct that occurred no later than March 30, 2002. Thus, the applicable statute of limitations expired in March 2012—well before the prosecution began against McKenzie in the later part of 2012.
In the respondent's brief, the Attorney General "agrees that [McKenzie]'s conviction in count 10 is barred by the statute of limitations." The Attorney General states, "The record suggests that the prosecution in this case did not commence until November 30, 2012. Under the definition of 'commenced' from section 804, subdivision (d), the prosecution commenced when [McKenzie] was arrested on November 30, 2012. . . . [¶] Thus, since [McKenzie]'s crime became time-barred on March 31, 2012, and the prosecution did not commence until eight months later on November 30, 2012, at the earliest, [McKenzie]'s prosecution for count 10 is time-barred."
We agree with McKenzie and the Attorney General and conclude McKenzie's conviction on count 10 must be reversed because it is time-barred.
DISPOSITION
We reverse the judgment as to count 10 and strike the eight-month sentence imposed on that count. The judgment is otherwise affirmed in full. The trial court is directed to transmit a certified abstract of the judgment as modified by this opinion to the Department of Corrections and Rehabilitation.
FYBEL, ACTING P. J. WE CONCUR: IKOLA, J. THOMPSON, J.