Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF023643. John M. Monterossa, Judge.
Sylvia Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
A jury found defendant James Ray Robinson guilty of one count of committing a lewd or lascivious act upon or with a child who is under the age of 14 years by means of force, violence, duress or fear (Pen. Code, § 288, subd. (b)(1)), and four counts of aggravated sexual assault (oral copulation) upon a child who is under the age of 14 years (§ 269, subd. (a)(4)). The jury found true the allegation that the criminal complaint, charging defendant with the lewd or lascivious act, was filed within one year of the date that the crime was reported to a California law enforcement agency. (§ 803, subd. (f)(1).) The trial court sentenced defendant to state prison for an indeterminate term of 68 years to life.
All further statutory references will be to the Penal Code, unless otherwise indicated.
Defendant makes four contentions. First, defendant contends that the trial court erred by not instructing the jury on the lesser included offense of willfully committing a lewd or lascivious act upon a child under the age of 14 years. (§ 288, subd. (a).) Second, defendant asserts that he was denied his constitutional rights to a jury and due process because the jury did not apply the “beyond a reasonable doubt” standard when finding that the criminal complaint was timely filed. (§ 803, subd. (f)(1).) Third, defendant contends that expert witnesses should not be permitted to testify about Child Sexual Abuse Accommodation Syndrome (CSAAS). Fourth, defendant asserts that the trial court erred by instructing the jury on the topic of CSAAS. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
The victim was defendant’s daughter; they lived together in Homeland. The victim was born in February 1993. When the victim was four years old, defendant instructed the victim to remove her clothes and sit on defendant’s lap. Defendant was naked when the victim sat on his lap. Defendant touched the victim’s upper inner thighs and vagina with his fingers. When the victim tried to leave, defendant put his arms around her waist to stop her. Defendant began touching the inside of the victim’s vagina when she was six years old. Defendant touched the outside and inside of the victim’s vagina approximately once or twice per week—whenever the victim’s mother was not home.
On at least five separate occasions, defendant touched the victim’s vagina with his mouth and tongue. During one incident, the victim asked defendant to stop, but defendant told her to “wait.” Two or three times, defendant grabbed the back of the victim’s head and forced his penis into her mouth. When the victim struggled to stop defendant, defendant used more force to hold the back of her head.
Defendant told the victim not to tell her mother about him touching her because the victim would be placed in foster care, treated badly, and never see her family again. The victim realized that the molestations were not normal when she began spending the night at friends’ homes and observed their parent-child interactions. The victim told her mother about defendant molesting her. The victim’s mother became angry at defendant, but nothing changed.
When the victim was 13 years old, she moved to Oklahoma with her friend’s family. While living in Oklahoma, the victim became angry, depressed and suicidal. The victim argued with her teachers and fought with various people. The victim’s friend’s mother asked the victim why she was behaving so negatively, and the victim told her that she wanted the type of father-daughter relationship that her friend had with her own father. Ultimately, the victim told her friend’s mother about defendant molesting her. The victim’s friend’s mother called the police. In October 2007, Riverside County Sheriff’s Deputy Gruwell was assigned to investigate the victim’s claims that defendant molested her.
DISCUSSION
A. LESSER INCLUDED OFFENSE
Defendant contends that the trial court erred by not instructing the jury on the lesser included offense of willfully committing a lewd and lascivious act with a child who is under the age of 14 years (§ 288, subd. (a)), in counts 2 through 5, in which defendant was charged with aggravated sexual assault (oral copulation) with a child who is under 14 years of age (§ 269, subd. (a)(4)). We disagree.
“‘We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense. [Citation.] A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence, “‘that is, evidence that a reasonable jury could find persuasive’” [citation], which, if accepted, “‘would absolve [the] defendant from guilt of the greater offense’ [citation] but not the lesser” [citation].’ [Citation.] ‘[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]’ [Citation.]” (People v. Licas (2007) 41 Cal.4th 362, 366.)
We begin with the statutory elements test. The allegedly lesser included offense of committing a non-forcible lewd act upon a child requires that an offender have the specific intent of “arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child.” (§ 288, subd. (a).) Aggravated sexual assault (oral copulation) of a child—the offense with which defendant was charged—is a general intent offense. (§§ 269, subd. (a)(4), 288a, subd. (d); People v. Senior (1992) 3 Cal.App.4th 765, 776; see also People v. Benavides (2005) 35 Cal.4th 69, 97 [rape and sodomy are general intent offenses].) Therefore, the crime of sexual assault can be completed without the intent to arouse. For example, a defendant might sexually assault a child because he/she wants to “teach” the child, or to punish the child. Consequently, the greater offense can be committed without also committing the lesser. Therefore, section 288, subdivision (a), is not a lesser included offense of section 269, subdivision (a)(4), pursuant to the statutory elements test.
Next, we apply the accusatory pleading test. Counts 2 through 5 are almost identical; however, each count describes a different year. For instance count 2 refers to the year 1998, while count 5 refers to the year 2001. All four counts accuse defendant of “willfully, unlawfully, and lewdly commit[ting] oral copulation on [the victim], a child under 14 years of age, by force, violence, duress, menace and fear of immediate and unlawful bodily injury on the said child and another, where the child is 10 or more years younger than the defendant, within the meaning of Penal Code section 288a.”
The information does not allege that defendant had the specific intent of “arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child,” which is required for section 288, subdivision (a). Accordingly, the facts alleged in the accusatory pleading do not include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. Therefore, section 288, subdivision (a), is not a lesser included offense of section 269, subdivision (a)(4), pursuant to the accusatory pleading test.
In sum, the trial court did not err by not instructing the jury on the offense of willfully committing a lewd and lascivious act with child (§ 288, subd. (a)), in counts 2 through 5, because the crime is not a lesser included offense of aggravated sexual assault upon a child (§ 269, subd. (a)(4)).
Defendant asserts that section 288, subdivision (a), is a lesser included offense of aggravated sexual assault of a child (§ 269), because section 269 merely adds elements to the offense of committing a lewd and lascivious act with a child (§ 288, subd. (a)). We do not find defendant’s argument persuasive because the two statutes have different intent requirements.
B. BURDEN OF PROOF
The trial court instructed the jury to determine whether the alleged lewd and lascivious act (§ 288, subd. (b)), occurred within the extended statute of limitations (§ 803, subd. (f)). The trial court informed the jury that it should apply the “preponderance of the evidence” standard of proof when analyzing the statute of limitations issue.
Defendant asserts that he was denied his constitutional rights to a jury and due process because the jury did not apply the “beyond a reasonable doubt” standard when finding that the criminal complaint was timely filed. (§ 803, subd. (f)(1).) We disagree.
Section 803, subdivision (f), authorizes an extension for the statute of limitations related to certain sex crimes involving children. Specifically, the section provides, “[A] criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim” of a sexual offense. (§ 803, subd. (f)(1).) In order for the statute of limitations to be extended, the crime must involve “substantial sexual conduct,” and there must be independent evidence corroborating the victim’s allegation(s). (§ 803, subd. (f)(2)(B) & (C).)
Our Supreme Court has concluded that the “preponderance of the evidence” standard is the proper burden of proof to apply when a statute of limitations issue is presented to a jury. (People v. Zamora (1976) 18 Cal.3d 538, 566, fn. 27.) The “preponderance of the evidence” standard is applied because “the statute of limitations is not an ingredient of an offense” (People v. Riskin (2006) 143 Cal.App.4th 234, 241), and, unless otherwise provided by law, “preponderance of the evidence” is the applicable burden of proof (Evid. Code, § 115). Accordingly, because “preponderance of the evidence” is the correct burden of proof to apply to a statute of limitations issue, we conclude that the trial court did not err.
Defendant argues that the “beyond a reasonable doubt” standard of proof is applicable to statute of limitations issues because the United States Supreme Court has determined that any fact necessary for imposing punishment on a defendant must be treated as though it is an element of the crime. (See U.S. v. Booker (2005) 543 U.S. 220, 232 (Booker) [summarizing recent cases related to the burden of proof for sentencing factors].)
The United States Supreme Court has concluded that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” (Booker, supra, 543 U.S. at p. 244.) In contrast to the statute at issue in the United States Supreme Court case, section 803, subdivision (f), “merely addresses when the state may prosecute certain criminal charges. It does not alter the elements of [the] offenses, or their punishment, or the amount or type of evidence required ‘in order to convict the offender.’ [Citation.]” (People v. Zandrino (2002) 100 Cal.App.4th 74, 83 [discussing section 803, subdivision (g)].) Accordingly, we conclude that the Booker line of cases do “not call into question the clear California case authority holding the prosecution’s burden of proof on the statute of limitations issue is a preponderance of the evidence.” (People v. Linder (2006) 139 Cal.App.4th 75, 85.)
C. EXPERT TESTIMONY
Defendant contends that evidence of CSAAS “should be held inadmissible in California for all purposes.” Defendant “asks this court to join the states that have held that CSAAS evidence is inadmissible for all purposes.”
“‘Crafting statutes to conform with policy considerations is a job for the Legislature not the courts; our role is to interpret statutes, not to write them. [Citations.]’ [Citation.]” (California Ins. Guar. Ass’n v. Workers’ Compensation Appeals Bd. (2004) 117 Cal.App.4th 350, 362; see also Metromedia, Inc. v. City of San Diego (1982) 32 Cal.3d 180, 187.) Defendant’s argument focuses on the reasons why evidence of CSAAS should not be admitted in any criminal case. Defendant does not explain how the trial court in this case erred by admitting evidence of CSAAS. In essence, defendant is requesting that this court craft a statute prohibiting CSAAS evidence from being presented in future criminal case. This court does not have the authority to create statutes. Accordingly, we do not discuss this contention any further.
D. CALCRIM NO. 1193
Defendant contends that the trial court erred by instructing the jury on the law pertaining to evidence of CSAAS. (CALCRIM No. 1193.) Defendant argues the jury instruction is “internally inconsistent, allows for unconstitutional conclusive presumptions, and/or shifts the burden of proof, and permitted the jury to return guilty verdicts without finding that there was proof beyond a reasonable doubt of every fact necessary to constitute the crimes [defendant] was charged with.” We disagree.
CALCRIM No. 1193 provides: “You have heard testimony from [an expert witness] regarding child sexual abuse accommodation syndrome. [¶] [The expert witness’s] testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against [him]. [¶] You may consider this evidence only in deciding whether or not [the victim’s] conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of [her] testimony.”
Defendant asserts that the final sentence of CALCRIM No. 1193 creates two federal constitutional violations. First, defendant contends that the instruction creates a mandatory presumption that a molestation has occurred, if the victim’s conduct is consistent with a molestation victim’s conduct. We disagree. The final paragraph of the instruction informs the jury that the CSAAS evidence is to be used for the purpose of judging the victim’s credibility and conduct. It does not create a mandatory presumption.
Second, defendant contends that the final paragraph of the instruction shifts the burden of proof to defendant. We disagree. The instruction informs the jury that the CSAAS evidence is to be used for the purpose of evaluating the victim’s credibility and the victim’s CSAAS symptoms. There is nothing in the final paragraph instructing the jury to conclude that the victim is credible if he/she acts like a molestation victim.
Defendant contends that the instruction “told the jury that it could presume [the offense] elements were proved based on the CSAAS theory evidence since [the victim’s] conduct, as demonstrated by the evidence, ‘was not inconsistent with the conduct of someone who has been molested.’” Contrary to defendant’s position, nothing in the jury instruction informed the jury that it could presume defendant was guilty.
Next, defendant contends that CALCRIM No. 1193 instructed the jury that “CSAAS evidence could be used to prove the elements of the charged offenses.” Contrary to defendant’s position, CALCRIM No. 1193 explicitly instructs the jury that CSAAS evidence “is not evidence that the defendant committed any of the crimes charged against him.”
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, Acting P. J., RICHLI, J.