Opinion
B294725
08-04-2020
THE PEOPLE, Plaintiff and Respondent, v. BERNARD RUTHERFORD, Defendant and Appellant.
Law Offices of Overland & Overland, Mark Eric Overland and Courtney Overland, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. GA099247) APPEAL from a judgment of the Superior Court of Los Angeles County. Teri Schwartz, Judge. Affirmed. Law Offices of Overland & Overland, Mark Eric Overland and Courtney Overland, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
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Following a court trial, defendant and appellant Bernard Rutherford (born in 1967) was found guilty of one count of continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a); count 1) and two counts of lewd act upon a child (§ 288, subd. (c)(1); counts 2-3). He was sentenced to 12 years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant timely appealed his conviction. On appeal, he argues that his convictions for (1) continuous sexual abuse of a child under the age of 14 (count 1) and (2) lewd act upon a child (count 3) are not supported by substantial evidence.
Because defendant's convictions are supported by substantial evidence, we affirm the judgment.
FACTUAL BACKGROUND
I. Prosecution evidence
J.D. was born in August 1997. Prior to January 2010, she lived with her mother and her younger brother. In January 2010, J.D.'s mother married defendant, and defendant moved into their residence on North Los Robles Avenue in Pasadena. There were times when J.D. was left alone with defendant because her mother worked during the day and defendant worked in the evening.
A. The Los Robles residence (count 1)
During one evening inside the Los Robles residence when J.D. was 12 years old, defendant told her stories about his sexual encounters with other women. J.D.'s mother was not home at the time. J.D. believed these stories were inappropriate and she went to her bedroom to go to sleep. Approximately 30 minutes later, defendant entered her bedroom while she was lying on her bed. He asked her whether she had ever seen a penis. When she said "no," he pulled out his erect penis and told her to touch or rub it. He placed her hand on his penis. She had her hand on his penis for about a minute and then he left the room.
That was not the only incident. J.D. remembered that incidents involving her touching defendant's penis occurred "a couple of times" at the Los Robles apartment when she was 12 years old.
B. The Wellington residence (count 1)
By the time J.D. was 13 years old and in eighth grade, she and her family had moved to an apartment complex on Wellington Road in Los Angeles. Although they had moved to Los Angeles, J.D. still went to school in Pasadena, and defendant was responsible for driving her to and from school. During one of these car trips, defendant pulled over, unbuckled his pants, and took out his erect penis. He told J.D. to try giving him oral sex because she had never done it before. J.D. complied and orally copulated him for about five minutes. J.D. finished and defendant ejaculated on his own by masturbating. J.D. "vividly" remembered that incident because it was the first time she gave defendant oral sex. She was 13 years old at the time.
Prior to that incident, there were other times during their trips to and from school when defendant placed his hands on J.D.'s vagina while he was driving. During these incidents, defendant placed his right hand on her vagina, and this touching occurred over and under her clothing. J.D. did not remember whether any sexual incidents occurred inside the Wellington residence because they usually occurred while she and defendant were alone together inside the car.
C. The Mariposa residence (counts 2 & 3)
By the time J.D. was 14 years old, she and her family had moved to a residence on Mariposa Street in Altadena. At this point in time, the sexual abuse was occurring inside the Mariposa residence and no longer inside the car. J.D. would "often" or "always" go to defendant's bedroom where he would give J.D. oral sex, and sometimes he would insert his penis into her vagina. The sexual abuse at the Mariposa residence occurred when she was 14 years old.
J.D. described what would happen when she entered the bedroom—defendant would ask J.D. to lie on the bed and get undressed. Occasionally he would ask her to dance on the bed while he touched himself. Defendant would lay on top of her and rub his penis against her vagina. The tip of his penis entered her vagina, but he never forced his entire penis inside because she told him it hurt. Defendant also would give J.D. oral sex as she lay on her back, and this occurred more than once. J.D. orally copulated defendant approximately three times during the time she lived at the Mariposa residence.
The sexual abuse would occur after J.D. arrived home from school but before her mother came home from work. The abuse occurred two to three times a week, and continued for the two years that J.D. lived at the Mariposa residence. Defendant stopped sexually abusing J.D. when she was 16 years old.
II. Defense evidence
Defendant denied ever engaging in any sexual acts with J.D. or exposing himself to her.
DISCUSSION
I. Standard of review
"The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" (People v. Jones (1990) 51 Cal.3d 294, 314 (Jones).) "The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053.) "An appellate court must accept logical inferences that the [factfinder] might have drawn from the circumstantial evidence. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 396.)
Because we begin with the presumption that the evidence was sufficient, it is the appellant who bears the burden of convincing the court otherwise. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1430.) Reversal on a substantial evidence ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
II. Count 1
Defendant contends that there was an "absence of proof that three or more predicate acts were committed within 3 months duration while [J.D.] was under the age of 14, each an element of the charged offense."
A. Relevant law
Section 288.5, subdivision (a), provides, in relevant part: "Any person who . . . has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, . . . is guilty of the offense of continuous sexual abuse of a child." (See People v. Vasquez (1996) 51 Cal.App.4th 1277, 1284-1285 [setting forth the elements of a violation of section 288.5].)
As relevant here, section 1203.066, subdivision (b), defines "'[s]ubstantial sexual conduct'" as "penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender." And, section 288, subdivision (a), provides that "a person who willfully and lewdly commit 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, is guilty of a felony."
"[S]ection 288 . . . require[s] no particular form of physical contact. . . . [T]he crime occurs whenever the trier of fact determines, based on all the circumstances, that an underage child was 'touched' with the requisite sexual intent." (People v. Martinez (1995) 11 Cal.4th 434, 438.) Thus, "section 288 is violated by 'any touching' of an underage child committed with the intent to sexually arouse either the defendant or the child." (People v. Martinez, supra, at p. 442.)
The prosecution was not required to "prove the exact dates of the predicate sexual offenses in order to satisfy the three-month element. Rather, it must adduce sufficient evidence to support a reasonable inference that at least three months elapsed between the first and last sexual acts. Generic testimony is certainly capable of satisfying that requirement, as the hypothetical examples listed by the Supreme Court in Jones illustrate. Indeed, as the Jones court held, despite the general acceptance of such generic testimony, 'the victim must be able to describe the general time period in which these acts occurred . . . to assure the acts were committed within the applicable limitation period.' [Citations.] That is, while generic testimony may suffice, it cannot be so vague that the trier of fact can only speculate as to whether the statutory elements have been satisfied." (People v. Mejia (2007) 155 Cal.App.4th 86, 97 (Mejia).)
B. Substantial evidence supports defendant's conviction
Applying these legal principles, we conclude that ample evidence supports a reasonable inference that, over a period of three months or longer, defendant committed at least three acts of sexual abuse on a child under the age of 14.
It follows that we need not address the People's argument that if we were to find that the evidence did not support a conviction for continuous sexual abuse of a child, then the proper remedy would be to modify the conviction to a violation of section 288, subdivision (a).
Defendant was charged with continuous sexual abuse of J.D. "[o]n or between August 29, 2009 and August 28, 2011." Because J.D. was born in August 1997, this time period corresponded to when she was 12 and 13 years old.
The trial evidence showed that when J.D. was 12 years old and living at the Los Robles residence, defendant told her stories about his sexual encounters with other women. Approximately 30 minutes later, the first incident of sexual abuse occurred. J.D. remembered more than one incident involving her touching defendant's penis at the Los Robles apartment while she was 12 years old.
J.D. also testified that six months to a year later, when she was 13 years old, she performed oral sex on defendant for the first time. Specifically, she testified that during one of their car trips from the Wellington Road residence to her school in Pasadena, defendant pulled over and told J.D. to try giving him oral sex; she then orally copulated him for about five minutes. J.D. "vividly" remembered that incident because it was the first time she gave oral sex to defendant.
This time period is consistent with J.D.'s mother's testimony. She testified that after marrying defendant, he lived with them in the Los Robles residence for approximately nine or 10 months before they moved to the Wellington residence.
J.D. further testified that, prior to that incident, there were other times during their trips to and from school when defendant placed his hands on her vagina over and under her clothing while he was driving.
In light of this evidence, a rational trier of fact could conclude that defendant committed at least three acts of sexual misconduct on a child under the age of 14 over at least three months. Accordingly, substantial evidence supports his conviction for continuous sexual abuse.
The fact that "the date of the third Los Robles predicate act could have been as late as" when "J.D. was 14 years old" does not compel the conclusion that she actually was 14 years old when that act occurred. (Italics added.)
Defendant's considerable reliance on Mejia, supra, 155 Cal.App.4th 86 is unavailing. In that case, the information charged the defendant with sexual abuse that occurred "'on or between June 1, 2004 and September 17, 2004.'" (Id. at p. 93.) The victim turned 14 years old on September 18, taking any acts of abuse that occurred on or after September 18 out of the ambit of section 288.5. (Mejia, supra, at p. 94.) Though the victim testified to numerous acts of abuse that occurred in June and before September 17, 2004, the victim's testimony did not show that the abuse began early enough in June or continued late enough in September to span a period of at least three months. (Id. at pp. 94-95.) Thus, the Court of Appeal reversed his conviction under section 288.5. (Mejia, supra, at p. 97.)
Here, by contrast, there is ample evidence that six months to a year separated the first act of sexual misconduct that occurred when J.D. was 12 years old (when defendant placed J.D.'s hand on his erect penis inside the Los Robles residence) from the subsequent acts of sexual misconduct that occurred inside the car when she was 13 years old.
Defendant's insistence that the oral sex inside the car could have occurred when she was 14 years old ignores her testimony that she was 13 years old at the time. To the extent he asks us to conclude otherwise amounts to nothing more than a thinly veiled request for us to reweigh the evidence in his favor. We cannot, and will not, do so. (Jones, supra, 51 Cal.3d at p. 314 [we view the evidence in the light most favorable to the People]; People v. Ceja (1993) 4 Cal.4th 1134, 1139 [if the circumstances reasonably justify the factfinder's findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding]; People v. Bean (1988) 46 Cal.3d 919, 932-933 [same].)
To the extent defendant claims there is insufficient evidence that he committed three or more predicate acts "within 3 months duration," his argument fails. Section 288.5 does not require these acts to occur "within" three months; instead, it requires "at least three acts of sexual misconduct with the child victim over at least three months." (People v. Rodriguez (2002) 28 Cal.4th 543, 550, italics added; Mejia, supra, 155 Cal.App.4th at p. 96.) This claim is premised on a flawed understanding of section 288.5 and fails for this reason alone.
III. Count 3
Defendant was charged in count 3 with lewd act upon a child "[o]n or between August 29, 2012 and August 28, 2013." On appeal, he contends that "no substantial evidence establishes that [J.D.] was [15] years old when the alleged [section] 288[, subdivision] (c)(1)[,] violation occurred."
A. Relevant law
Section 288, subdivision (c)(1), provides, in relevant part, that "[a] person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense."
B. Substantial evidence supports defendant's conviction
Substantial evidence supports the trial court's finding that defendant committed a lewd act upon J.D. when she was 15 years old. By the time J.D. was 14 years old, she and her family had moved to the Mariposa residence. J.D. testified in detail how defendant sexually abused her by, among other things, giving her oral sex, having her orally copulate him, and inserting his penis into her vagina. She also testified that defendant sexually abused her two to three times a week, and that this continued for the two years that she lived at the Mariposa residence. Since she began living there as a 14-year-old and spent two years there, she must have lived there for an entire year as a 15-year-old.
Defendant's claim otherwise relies on his challenge to J.D.'s credibility. He acknowledges that J.D. testified that she was 14 years old when she moved to the Mariposa residence, but he argues that "[h]er testimony cannot be considered substantial based on the more specific testimony of [her mother]." Relying on J.D.'s mother's testimony, defendant asserts that J.D. actually moved into the Mariposa residence in March 2013, when she was 15 years old, and therefore J.D. only lived in that residence for about five months before she turned 16 years old in August 2013. Defendant therefore insists there was insufficient evidence to support his conviction because "[t]he record does not establish that the abuse occurred during the first five month period of living on Mariposa, when [J.D.] was fifteen years old."
Defendant cites to no authority for the proposition that J.D.'s testimony "cannot be considered substantial based on the more specific testimony of [her mother]." Rather, J.D.'s testimony alone was sufficient to establish that she moved into the Mariposa residence when she was 14 years old and lived there for two years.
What defendant ignores is that "[b]y their very nature, sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations." (People v. Falsetta (1999) 21 Cal.4th 903, 915.) "'Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.' [Citations.]" (People v. Brown (2014) 59 Cal.4th 86, 106.)
Here, the trial court expressly found J.D. to be an "extremely credible" witness. The trial court explained: "I have to say that the victim in this case . . . was extremely credible. Not just in the way she testified; the demeanor; the emotion that I saw; the way she could remember some events; didn't remember specifics of other events; and the courage she displayed. Because I could see it the way she was testifying and the fear that she exhibited, to be quite candid, during the course of her testimony. [¶] I didn't just accept it at face value, but I listened to her describe the different incidents. And I was persuaded that she certainly had a very clear recollection of how this all began. And she had a very clear recollection of how this all ended when she became strong and felt powerful. And she was able to say no." Having found J.D. credible, the trial court rightly relied upon her testimony when it found defendant guilty.
Even assuming defendant is correct that J.D. only lived in the Mariposa residence as a 15-year-old for five months before she turned 16 years old, his challenge to the evidence would still fail. He ignores J.D.'s testimony that he sexually abused her two to three times a week while she lived there. This testimony was more than sufficient time to support the reasonable inference that at least some of defendant's lewd acts inflicted upon J.D. occurred during that five-month period. "Additional details regarding the time, place or circumstance of the various assaults . . . are not essential to sustain a conviction." (Jones, supra, 51 Cal.3d at p. 316.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, Acting P. J.
ASHMANN-GERST We concur: /s/_________, J.
CHAVEZ /s/_________, J.
HOFFSTADT