Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CR076818
SIMS, J.A jury convicted defendant Trevor Allen Paulus of two counts of lewd and lascivious acts with L.L., a child age 14 or 15 (Pen. Code, § 288, subd. (c)(1); counts 1 & 2), and a count of attempted sexual battery of N.A. (§§ 21a, 243.4, subd. (e)(1), 664, subd. (b); count 3). He was sentenced to state prison for the midterm of three years on count 1 plus eight months consecutive on count 2. A concurrent county jail term of 60 days was imposed on count 3.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends count 1 must be reversed because (1) the victim was asleep during the incident, and (2) the incidents in counts 1 and 2 were parts of a continuous act that does not support multiple section 288 convictions. We reverse the judgment in part and remand for resentencing.
FACTS
Prosecution Case-in-chief
In November 2007, R.S. lived with her three daughters in a two-bedroom apartment. R.S. and defendant had been friends for approximately eight years, and she considered him and his relatives to be parts of her family. Except for an incident that had occurred more than five years earlier, their relationship was not sexual in nature.
On November 3, 2007, about 8:30 or 9:00 p.m., defendant’s uncle Ernest, Ernest’s friend Ken, and Ernest’s teenage son J., arrived at R.S.’s apartment. R.S., Ernest, and Ken left and went to a local bar while J. stayed at the apartment with R.S.’s oldest daughter, 19-year-old N.A., and N.A.’s 14-year-old friend, L.L.
When R.S., Ernest, and Ken arrived at the bar, they met up with defendant, who was already there with some friends. The group stayed at the bar until it closed at 2:00 a.m. At that point, Ernest, Ken, defendant, and R.S. returned to her apartment, where N.A., L.L., and J. were all asleep. R.S. woke up J., and Ernest and J. left the apartment with Ken. However, defendant wanted to spend the night there, and R.S. let him stay.
R.S. wanted defendant to sleep on the floor, first in the living room and then in her bedroom, but he complained, so ultimately she allowed him to sleep on the bed with her, both fully clothed. Defendant attempted to remove R.S.’s belt and asked to have sex with her, but she refused and eventually fell asleep.
Around 2:30 a.m., N.A., who had been sleeping in her bed next to L.L., awoke feeling as if she needed to use the bathroom. When she awoke, she realized that her shorts and underwear had been pulled down below her knees. Defendant was next to her on the bed, with his hand on her upper thigh. She pushed his hand away, but he put his hand back on her thigh three or four more times and tried to reach her vaginal area. (Count 3.)
N.A. got up and left the bedroom. While she was away, defendant reached over and started touching L.L. At first, he had his hand on her “inner thigh, ” and he was “trying to touch” her. On direct examination by the prosecutor, L.L. explained that she had “woken up before” this incident. (Count 1.)
However, when next asked what was “the first thing that [she] saw” “when [she] woke up, ” L.L. answered that defendant “moved his hand quickly.” Seeking to clarify the matter, the prosecutor asked, “So when you woke up, you first saw his hand on your leg, and you said he was trying to touch your private part?” L.L. answered, “No, he did. But he was trying more of it, then I woke up.”
L.L. testified that, in a single motion, defendant quickly slid his hand up to her vaginal area. He rubbed her pajamas and underwear where they covered her vagina. (Count 2.)
When the prosecutor asked L.L. to describe how defendant touched her vagina, she replied, “As soon as he touched it, I woke up.”
On cross-examination, this exchange occurred:
“Q. [BY DEFENSE COUNSEL]: Now, at some point you wake up, and you realize you’re being touched, correct?
“A. Yes.
“Q. Okay. And what point did you wake up?
“A. When he started rubbing on my vagina.
“Q. If that’s the point where you woke up, how do you know what was done before that?
“A. I’m sorry. What?
“Q. Okay. If that’s the point where you wake up and the first thing you know is ‘my vagina is being rubbed--’
“A. Yes.
“Q. --how do you know what happened before that?
“A. Because I -- I had felt his hand move up on my leg, but I had thought it was just the cat at first. And then he started rubbing on me, and that’s when I had woke up.”
L.L. yelled at defendant and asked him what he was doing there. At that point, N.A. returned to the bedroom and told defendant to leave. The girls discussed what had happened. For the rest of the night, N.A. kept the bedroom door closed and slept on the floor wedged against the door to prevent defendant from re-entering the room.
R.S. awakened around 7:15 a.m. Defendant was asleep on the bed. She noticed that the door to the children’s room was closed, which was unusual because it had been open the night before and she does not allow the children to keep the door closed.
R.S. tried to open the bedroom door, but N.A.’s body was blocking it. After waking up N.A., R.S. entered the bedroom and the girls told her what defendant had done to them during the night. N.A. told R.S. about waking up and finding defendant in bed with her with her shorts and underwear pulled down to her knees. L.L. told R.S. that defendant had rubbed and touched her thighs and her vagina.
R.S. returned to her bedroom and told defendant to “get out.” Later that day, R.S. called the police.
Defense
Defendant’s friends, David Barrett and Linda Sipes, testified that defendant had consumed “[p]robably at least five” shots of hard liquor and “[m]ore than five” beers at the bar that night. Barrett indicated that, despite the alcohol, defendant was not stumbling around or falling to the ground that night. Defendant seemed coherent and was able to speak without any problems. However, Sipes testified that defendant was “wasted” that night, that he was stumbling while he tried to walk, and that he was not speaking coherently.
Defendant’s uncle, Ernest, testified on defendant’s behalf. According to Ernest, defendant was “obliterated” that night, and he “had never seen [defendant] drink that much alcohol.”
DISCUSSION
Defendant contends count 1 must be reversed because (1) L.L. was asleep during the incident, and (2) the incidents in counts 1 and 2 were parts of a continuous act that does not support multiple section 288 convictions. The second contention is dispositive and renders moot the first contention. Because count 1 was designated the principal term, we remand for resentencing on count 2.
Any portion of the sentence exceeding three years eight months must be stayed. (Cal. Const., art. I, § 15; People v. Hanson (2000) 23 Cal.4th 355, 357, 358-367.)
Defendant contends his touchings of L.L.’s thigh in count 1, and of her vagina in count 2, do not constitute two legally separate acts of molestation. His argument is based on People v. Jimenez (2002) 99 Cal.App.4th 450 (Jimenez), in which this court left the present issue unresolved. (Id. at p. 456.)
This court stated in Jimenez: “Where a defendant fondles a portion of the victim’s body with the requisite intent, a violation of section 288 has occurred. The offense ends when the defendant ceases to fondle that area. Where a defendant fondles one area of the victim’s body and then moves on to fondle a different area, one offense has ceased and another has begun. There is no requirement that the two be separated by a hiatus, or period of reflection.” (Jimenez, supra, 99 Cal.App.4th at p. 456.) Thus, in Jimenez, “the jury was instructed that, when touching moves from one area of the victim's body to another, separate offenses have occurred. That was a proper statement of the law. It cannot reasonably be doubted that, when fondling of an underage victim moves from one area of the body to another, a separate outrage has occurred. A defendant who violates multiple areas of the victim’s body is deserving of greater punishment. Inasmuch as section 288 treats equally all types of touching when accompanied by the requisite intent, there is no basis for treating multiple acts of fondling differently from multiple acts of other sexual touching. [¶] In his argument to the jury, defense counsel suggested that a person who moves his hand up a woman’s leg might touch many separately identified body parts. We do not consider here whether fondling of each and every separate portion of a victim’s body will always amount to multiple offenses; we are not called upon to reach that question. Defendant was charged with having fondled the victim’s breasts, buttocks, vagina and thigh. The evidence established a separate fondling of each indicated body part and not merely a touching en route to another area. This suffices for separate convictions.” (Jimenez, supra, 99 Cal.App.4th at p. 456; italics added.)
L.L.’s earliest recollection of the molestation was of defendant “[having] his hand on” her “inner leg, ” which she later clarified was her “inner thigh.” She said, “First it was my thigh, and then he was moving up.” When the prosecutor asked what defendant was “doing with his hand” while it was on the inner thigh, L.L. answered that he “was trying to touch” her. Because defendant’s hand already was on L.L.’s inner thigh, this answer implies that defendant was trying to touch L.L. somewhere else.
L.L. next testified that “the first thing that [she] saw” was “[h]e moved his hand quickly.” This answer suggests that she had not perceived his hand on her thigh for any substantial period.
When the prosecutor asked L.L. to describe how defendant’s hand moved from her thigh to her vagina, she demonstrated the movement. Defense counsel interrupted and termed her demonstration “one continuous motion.” After the court explained that “[w]hether she described one continuous motion is open to discussion, ” the prosecutor asked her, “[a]nd was it one motion that he used to do that”; L.L. answered, “Yes.” Thus, despite defense counsel’s apparent concession at oral argument of a thigh fondling, L.L.’s earliest recollection was not of a “separate fondling” of the inner thigh, but of “merely a touching en route to” the vagina. (See Jimenez, supra, 99 Cal.App.4th at p. 456.)
The prosecutor later asked L.L. “what [defendant] was doing with his hand” while it was on her vagina. She explained that “he was rubbing on” her, but his fingers never went inside her vagina. This testimony depicts the fondling that had been missing from the testimony about the inner thigh.
On cross-examination, L.L. reiterated that she perceived defendant’s “hand move up on [her] leg, ” and “then he started rubbing on” her vagina. L.L. did not describe any sexualized rubbing of the inner thigh, akin to the sexualized rubbing of the vagina.
Our observation in Jimenez that “section 288 treats equally all types of touching when accompanied by the requisite intent” implicitly recognized that the result would be different if, as here, lewd intent accompanies only one of the two touchings. (Jimenez, supra, 99 Cal.App.4th at p. 456, italics added.)
Citing the same passages that we have described, the Attorney General argues that L.L. “testified multiple times about a separate and distinct touching of her thigh, followed by a subsequent touching of her vagina.” What is missing from the Attorney General’s argument is any indication that the “separate and distinct touching of [the] thigh” was accompanied by lewd intent as opposed to a mere desire to reach and then lewdly fondle the vagina.
The cases relied on by the Attorney General are distinguishable. People v. Scott (1994) 9 Cal.4th 331 (Scott) and People v. Harrison (1989) 48 Cal.3d 321, establish that multiple touchings on the same occasion, each accompanied by lewd intent, can give rise to multiple section 288 convictions and do not merge into a single violation. (Scott, supra, at pp. 344-345.) Scott explained that under a contrary approach urged by the defendant, “the clever molester could violate his victim in numerous lewd ways, safe in the knowledge that he could not be convicted and punished for every act. In light of the special protection afforded underage victims, we cannot conceive that the Legislature intended this result.” (Scott, supra, 9 Cal.4th at p. 347.) The present case is distinguishable because the only lewd intent shown by the evidence was the singular intent to touch the victim’s vagina. No intent to fondle lewdly L.L.’s inner thigh was shown.
A contrary conclusion in this case would open the door to multiple convictions of section 288 where a defendant’s hand, in a single continuous motion, touches several body parts. In our view, this is surely a draconion result that the Legislature could not have intended.
DISPOSITION
Defendant’s count 1 conviction is reversed. The trial court is directed to enter dismissal of count 1 and to resentence defendant on count 2. In all other respects, the judgment is affirmed.
I concur: BLEASE, Acting P. J.
Nicholson, J., Concurring and Dissenting
I concur in the majority opinion insofar as it affirms defendant’s convictions on counts 2 and 3. In all other respects, I respectfully dissent.
Defendant contends the evidence was insufficient to support separate convictions on counts 1 and 2 because “the conduct at issue... is part of one continuous act and does not support” two separate violations of section 288. I disagree.
“On appeal, the test of legal sufficiency is whether there is substantial evidence, i.e., evidence from which a reasonable trier of fact could conclude that the prosecution sustained its burden of proof beyond a reasonable doubt. [Citations.] Evidence meeting this standard satisfies constitutional due process and reliability concerns. [Citations.] [¶] While the appellate court must determine that the supporting evidence is reasonable, inherently credible, and of solid value, the court must review the evidence in the light most favorable to the prosecution, and must presume every fact the jury could reasonably have deduced from the evidence. [Citations.] Issues of witness credibility are for the jury. [Citations.]” (People v. Boyer (2006) 38 Cal.4th 412, 479-480.)
The evidence showed that, after spending an evening at a bar where he became intoxicated, defendant manipulated his way onto the bed of a woman with whom he previously had been intimate. He tried to remove her belt and asked to have sex with her, but she refused and she eventually fell asleep. Defendant next went to the bed of the older teen, N.A., and proceeded to pull her shorts and underwear down below her knees. Defendant was next to her on the bed with his hand on her upper thigh. She pushed his hand away, but he put his hand back on her thigh three or four more times and tried to reach her vaginal area. She got up and left the bedroom. Defendant then proceeded to the younger teen, L.L., where he performed the acts now at issue.
Defendant suggests his repeated touching of N.A.’s thigh “has nothing to do with” whether his subsequent touching of L.L.’s thigh was part of one continuous movement. He is not correct.
Jurors reasonably could deduce from the foregoing evidence that defendant’s lust, passions, or sexual desires (§ 288, subd. (a)) were not limited to the touching of women’s vaginas, but extended as well to the touching of their thighs. Jurors could further deduce that, acting upon this desire, defendant touched L.L.’s thigh in a separate action, akin to one of his touchings of N.A.’s thigh, which the awakening L.L. perceived only in part. (See People v. Boyer, supra, 38 Cal.4th at pp. 479-480.)
Although that separate act was not proved in its entirety by direct evidence in the form of L.L.’s testimony, it was proved circumstantially by his three or four identical, immediately preceding acts with N.A. The jurors were instructed that “[f]acts may be proved by direct or circumstantial evidence or by a combination of both, ” and that “[t]he testimony of one witness, ” here N.A., “can prove any fact, ” here, the nature of the act performed on L.L. (CALCRIM Nos. 223, 301.) The jurors were not required to draw the improbable inference that defendant’s lust extended only to N.A.’s thigh, but not to L.L.’s thigh; or that, although he took multiple liberties in repeatedly touching N.A.’s thigh, he later found some measure of restraint and limited his conduct with L.L. to a singular “touching en route to another area, ” namely, L.L.’s vagina. (People v. Jimenez (2002) 99 Cal.App.4th 450, 456 (Jimenez).)
Because the jurors reasonably could conclude, as a matter of fact, that defendant’s act was not limited to the sort of continuous motion suggested in Jimenez, I see no reason to reach the legal issue left unresolved in that case, i.e., whether “merely a touching en route to another area” would support a separate conviction. (Jiminez, supra, 99 Cal.App.4th at p. 456.)
This leaves defendant’s remaining contention, that the “evidence is insufficient to support [his] conviction [sic] of count one because that count is based on what the victim thought she perceived before she woke up.” The contention has no merit.
Reasonable jurors could credit L.L.’s testimony that she felt defendant’s hand move up on her leg, but she had thought it was just the cat at first. (See People v. Boyer, supra, 38 Cal.4th at pp. 479-480.) When his hand reached her vagina, she “w[oke] up” sufficiently to discern that it was, in fact, defendant. The fact L.L. became aware of the perpetrator’s identity only after she had become aware of the touching does not mean that the evidence was insufficient. She ultimately perceived both and testified in accordance with her perception. I would affirm the judgment in its entirety.
PLEASE SEE ATTACHED CONCURRING AND DISSENTING OPINION