Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD217186, Leo Valentine, Jr., Judge.
BENKE, Acting P. J.
A jury convicted Joseph R. Schumann of four counts of lewd and lascivious conduct on a child under the age of 14. Schumann admitted prior convictions for forcible rape in 1986 and child molestation in 1993 that constituted strikes under California's Three Strikes law.
On appeal, Schumann contends there was insufficient evidence of his intent to obtain sexual gratification in connection with the touching of the victim in count 1. He further contends the trial court abused its discretion when it declined to strike at least one of his prior strike convictions.
As we explain, we reject both contentions and affirm the judgment of conviction.
FACTUAL AND PROCEDURAL OVERVIEW
Because Schumann's appeal challenges the sufficiency of the evidence in count 1, we describe in detail the facts surrounding the molestation of the single female victim (Victim).
As discussed post, we are required to view the evidence in the light most favorable to the judgment of conviction. (See People v. Osband (1996) 13 Cal.4th 622, 690.) Certain portions of the factual and procedural history related to Schumann's claims of error are discussed post, in connection with those issues.
Schumann and Victim's mother (Mother) met in 2005 or 2006 at a residential hotel in San Diego, where they both resided. Mother lived with her then 10- or 11-year-old daughter Victim. Schumann and Mother began dating in 2007. Mother and Victim subsequently moved to an apartment. Schumann remained living in the residential hotel. Schumann often babysat Victim while Mother was at work. Schumann babysat Victim in his room at the residential hotel and at Mother's apartment.
All incidents of molestation took place in 2007 and 2008. In one incident, Schumann touched Victim while she was asleep in bed with him. Victim was awakened by Schumann's hand, which she felt under the front of her pajama shirt. When Victim moved, Schumann's hand fell away. Schumann was charged in count 4 of the information for this act of molestation, in violation of Penal Code section 288, subdivision (a).
All statutory references are to the Penal Code.
In another incident in Schumann's room, Schumann told Victim to "strip" because it was time for her to take a shower in the community bathroom down the hall. Before Schumann gave Victim a robe and "flip flops" to wear to the bathroom, he made her stand naked in front of him. When Victim tried to cover her "private parts" and lowered her face, Schumann directed Victim to put her hands at her side and hold her head up. On one such occasion, Schumann approached Victim as she stood naked in his room, touched her shoulder and asked her, "Why don't you trust me?" Schumann also told Victim that what he was doing "wasn't so bad." Schumann's conduct made Victim uncomfortable. Schumann was charged in count 1 of the information for this touching of Victim. (§ 288, subd. (a).)
Schumann also made Victim uncomfortable and angry when he spanked her. On about five or six occasions, Schumann spanked Victim when she was naked, after he claimed she needed to be punished because she forgot something at daycare such as her keys or cell phone. To receive the spanking, Schumann made Victim lie on the bed on her stomach, bend her knees and raise her bottom. Schumann next ordered Victim to open up her legs and then spanked her on the bottom. Victim complied because she felt she had no choice. Counts 2 and 3 of the information charged Schumann for the spankings. (§ 288, subd. (a).)
Victim told Mother that Schumann put his hand up her shirt, made her stand naked in front of him and the manner in which Schumann spanked her. Mother said she would talk to Schumann about these incidents, but according to Victim, Mother never did. However, Mother warned Victim if she told anybody about Schumann's conduct, child protective services would take Victim away and place her in foster care.
Victim eventually told the director of a nonprofit childcare center about the incidents involving Schumann. The issue arose when the director casually asked a group of students in late August 2008 whether they enjoyed their weekend. In response, Victim replied, "You don't even want to know." When the director inquired further, Victim responded, "I don't trust [Schumann]." The director knew Schumann was Mother's boyfriend and knew Schumann previously had been convicted of sex crimes.
Indeed, about a month before talking to Victim, one of the childcare center's substitute teachers saw a poster of Schumann in the post office. In response to that information, the director called Mother who told the director, "Oh, you found out [about Schumann]." The director next called the police, who came to the daycare center, met with the director and explained that Schumann had served his sentence and the poster was just a warning. The director notified Victim's school, located across the street from the childcare center, about Schumann. The director also made a policy that prohibited Schumann from entering the center's premises when picking up Victim. Instead, Schumann was required to call from outside the center and Victim would be escorted to him for pickup.
Victim was interviewed at a children's hospital in mid-September 2008. The interview was recorded on videotape and a report was generated. Victim initially was shy and unwilling to talk about Schumann, telling the interviewer it gave her bad dreams and made her feel "weird." However, Victim opened up during the interview and reported that Schumann had made her strip, put her hands to her side and look at him; that on one such occasion Schumann put his hands on her shoulder and asked if "that [was] so bad?" She also told the interviewer about the spankings and the manner in which he spanked her and the incident when Schumann put his hand up the front of her shirt.
Sara F., age 23 at the time of trial, testified that her mother and Schumann were married when she was a young girl. Sara was five years old when Schumann put his penis in her mouth and in her bottom. Sara testified she had a "clear memory" of Schumann sodomizing her on the bed, on the floor of the bedroom and in the living room. Schumann molested Sara when Sara's mother was at work.
The molestations occurred multiple times and in multiple locations in the house, including one incident that occurred when Sara was going to the bathroom. On that occasion, Schumann came into the bathroom and asked Sara to "suck [his penis] like a straw." On another occasion, Schumann made a similar request of Sara when she was showering, and then got into the shower with the little girl.
Schumann was investigated for the molestation of his stepdaughter Sara in December 1991. During a police interview, Schumann admitted he had molested Sara. Schumann explained he had just gotten out of the shower when Sara came into the bedroom and, on seeing his penis, asked him what it was. Schumann told Sara it was a "tail." Schumann then admitted to police Sara orally copulated him and he put his penis against her rectum. Schumann also told police he had an erection during this encounter with Sara.
Schumann was charged in January 2009 with four counts of lewd and lascivious conduct on Victim, a child under the age of 14. (§ 288, subd. (a).) The information alleged each count came within the operation of section 667.61, subdivisions (a), (c)(1), (8) and (d)(1). The information also alleged that Schumann had a 1986 prior conviction for forcible rape (§ 261, subd. (a)(2)), a 1993 prior conviction for child molestation (§ 288, subd. (a)), and that both prior convictions came within the meaning of sections 667, subdivision (a)(1), 668 and 1192.7, subdivision (c).
The jury convicted Schumann on counts 1 through 4 as charged. Schumann waived his right to a trial on the prior conviction allegations, which were bifurcated, and admitted the allegations. At a subsequent hearing, the trial court denied Schumann's motion to strike one or more of his strike priors and sentenced him to four consecutive terms of 75 years to life and eight consecutive terms on the prior conviction true findings for a total term of 300 years to life plus 40 years.
DISCUSSION
A. Substantial Evidence of Intent
Schumann first contends there was insufficient evidence of his intent to commit a lewd and lascivious act on Victim as alleged in count 1, which involved his touching of Victim's shoulder. Schumann describes this incident innocently as follows: "On one of the occasions [Victim] disrobed for a shower, [Schumann] put his hand on her shoulder." If this were the only evidence to support his conviction on count 1, Schumann's contention would have merit. However, our own review of the record leads us to conclude there is ample evidence to support the jury's finding of intent to support his conviction in count 1.
To prevail on his claim of insufficiency of the evidence, Schumann cannot merely rely on the evidence in the record that presumably is in his favor or portray that evidence most favorably to him. (See People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) See footnote 1, ante.
1. Governing Law
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]... [Citation.] [A] reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.] 'This standard applies whether direct or circumstantial evidence is involved.' " (People v. Avila (2009) 46 Cal.4th 680, 701.)
Moreover, " '[a] judgment of conviction will not be set aside for insufficiency of the evidence to support the jury's verdict unless it is clearly shown there is no basis on which the evidence can support the conclusion of the jury. The credibility of witnesses and the weight to be accorded to the evidence are matters to be determined by the trier of fact. [Citations.]' " (People v. Cardenas (1994) 21 Cal.App.4th 927, 938.)
Schumann in count 1 was charged with and convicted of violating subdivision (a) of section 288. That provision provides in relevant part: "[A]ny person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, 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 and shall be punished by imprisonment in the state prison...."
"[T]he courts have long indicated that section 288 prohibits all forms of sexually motivated contact with an underage child. Indeed, the 'gist' of the offense has always been [a] defendant's intent to sexually exploit a child, not the nature of the offending act. [Citation.] '[T]he purpose of the perpetrator in touching the child is the controlling factor and each case is to be examined in the light of the intent with which the act was done.... If [the] intent of the act, although it may have the outward appearance of innocence, is to arouse... the lust, the passion or the sexual desire of the perpetrator [or the child, ] it stands condemned by the statute....' [Citation, italics added, original italics omitted.]" (People v. Martinez (1995) 11 Cal.4th 434, 444-445.)
"Thus, throughout the statute's history, the cases have made clear that a 'touching' of the victim is required, and that sexual gratification must be presently intended at the time such 'touching' occurs. [Citations.] However, the form, manner, or nature of the offending act is not otherwise restricted. Conviction under the statute has never depended upon contact with the bare skin or 'private parts' of the defendant or the victim. [Citations.] Stated differently, a lewd or lascivious act can occur through the victim's clothing and can involve 'any part' of the victim's body. (People v. Carpenter (1955) 137 Cal.App.2d 792, 793; see also People v. Nothnagel (1960) 187 Cal.App.2d 219, 225 [touching need not be 'sexual in character']; People v. Hartshorn (1943) 59 Cal.App.2d 285, 288 [defendant need not touch 'a particular part' of victim's body].)" (People v. Martinez, supra, 11 Cal.4th at p. 444.)
"[M]odern courts state or imply that any touching of an underage child is 'lewd or lascivious' within the meaning of section 288 where it is committed for the purpose of sexual arousal. [Citations.] [¶] Of course, the manner of touching is not irrelevant under this view. '[T]he trier of fact looks to all the circumstances, including the charged act, to determine whether it was performed with the required specific intent.' [Citations.] Other relevant factors can include the defendant's extrajudicial statements [citation], other acts of lewd conduct admitted or charged in the case [citations], the relationship of the parties [citation], and any coercion, bribery, or deceit used to obtain the victim's cooperation or to avoid detection [citation]." (People v. Martinez, supra, 11 Cal.4th at p. 445.)
2. Analysis
The record shows that on more than one occasion Schumann ordered Victim to "strip." On one such occasion after she was naked, Schumann made Victim "stand right in front of him" where, according to Victim, Schumann just stared at her. When Victim used her hands in an attempt to cover her "private parts, " Schumann told her to put her hands to her side. When Victim lowered her head, Schumann insisted she raise it, look ahead and asked her, "Why don't you trust me?" On another such occasion, when Schumann made her stand naked in his room with her hands at her side, he went up to Victim and touched her shoulder. Victim testified this made her uncomfortable.
The record also shows that before Schumann spanked Victim, he made her lie naked on the bed, put her bottom in the air and spread her legs. In addition, on another occasion Schumann put his hand up the front of Victim's shirt while she was lying in bed with him.
All these incidents occurred when Schumann and Victim were alone, when he was babysitting Victim while her mother worked. The jury was entitled to consider these incidents (and the molestation of Sara, which evidence Schumann has not challenged on appeal) in finding beyond a reasonable doubt that Schumann possessed the requisite intent for purposes of section 288, subdivision (a) when he touched Victim on the shoulder as she stood naked in his room. (See People v. Martinez, supra, 11 Cal.4th at p. 445.)
Although the jury here was free to accept Schumann's contention that his touching of Victim's shoulder was an innocent act that did not result from any sexual desire, the jury also was free to reject that contention. (See People v. Hillhouse (2002) 27 Cal.4th 469, 496.) We conclude the jury's finding that Schumann possessed the requisite intent to support his conviction under subdivision (a) of section 288 in count 1 is supported by substantial evidence in the record.
B. Vacating Strike Priors and the Three Strikes Law
Schumann next contends the trial court abused its discretion when it refused to dismiss one or more of his prior strike convictions because his prior strike offenses were remote, his current offenses did not involve substantial sexual conduct and were not as egregious as his prior sex offenses and he was abused as a child by his adoptive mother and ended up in foster care when he was 12 or 13 years old.
1. Governing Law
Under section 1385, subdivision (a), a "court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, 'in furtherance of justice'...." (People v. Williams (1998) 17 Cal.4th 148, 158, citing People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)
In deciding whether to strike a prior conviction, the relevant factors for the court to consider are "whether, in light of the nature and circumstances of his [or her] present felonies and prior serious and/or violent felony convictions, and the particulars of his [or her] background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he [or she] had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams, supra, 17 Cal.4th at p. 161; see also People v. Romero, supra, 13 Cal.4th at p. 531.)
To gain reversal of the trial court's decision not to dismiss or vacate a strike prior, a defendant shoulders the burden to " 'clearly show that the [trial court's] sentencing decision was irrational or arbitrary.' " (People v. Superior Court (Alvarez) (1997)14 Cal.4th 968, 977.) It is not enough to show reasonable people might disagree about whether to strike a prior conviction. (Id. at p. 978.) Nor is it enough to show that the trial court did not explicitly articulate all of the relevant factors when discussing a defendant's request to strike a prior conviction. "The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary." (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
The trial court's decision is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374.) The "trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.) The three strikes law "not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶] In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances, " such as where the court was unaware of its discretion or considered impermissible factors. (Id. at p. 378; see also People v. Williams, supra, 17 Cal.4th at p. 159 [a trial court abuses it discretion if it vacates or dismisses a strike prior solely " ' "to accommodate judicial convenience or because of court congestion" ' " or out of " ' "personal antipathy for the effect that the three strikes law would have on [a] defendant" ' "].)
2. Analysis
Here, our review of the record shows the trial court did not abuse its discretion when it exercised that discretion, refused to strike one or more of Schumann's prior convictions and reasoned as follows:
"[The Court:] Mr. Schumann's prior convictions from 1986, he was convicted of rape, Penal Code section 261 [(a)](2), sent to state prison for three years, discharged on parole 1989; then in 1993, which is within three, four years of that being discharged on parole, he's convicted of Penal Code section 288(a), lewd act upon a child, and he's sent to state prison for 18 years, he's discharged on parole June 20 of 2005; and then we have these convictions before this court, the new crime in 2007.
"So within two years of being out on parole he's now convicted of four additional counts of child molestation. Under [People v.] Romero, there is no basis for the court to strike a strike. He is not out in the community long enough to establish a crime-free period of time, and his offenses are all of the same nature: The previous one a child [Sara] was involved; this one a child [Victim] is involved.
"To the extent that, yes, the evidence here did not indicate that the conduct was more egregious than the previous offense, I suppose it could be argued that it was less egregious than the previous offense, but nevertheless the protected class, children, are the ones that are being targeted, and I don't think it's appropriate for us as a nation, as a society, to wait until a child is harmed to take steps to prevent the harming of that child.
"We know an individual has that proclivity, we know that an individual has demonstrated it in the past, the trier of fact is satisfied that that was the intent in this case, and but for law enforcement interceding we don't know what the next step would have been, and so there is no basis for me to strike a strike in this case. Given Mr. Schumann's lack of a crime-free life, the nature of his prior convictions, I believe Mr. Schumann is the person that the Legislature had in mind when they designated the Three-Strikes Law, and that he should be placed in prison according to the statutes so that children are not in any way placed in harm. [¶] For that reason, the court denies the request to strike any strikes in this case...."
Here, the record shows the trial court's decision declining to strike one or more of Schumann's strike priors was a proper exercise of its discretion. The trial court considered the timeline of Schumann's prior convictions, beginning in 1987 with the rape of a roommate. The court noted that after Schumann served 18 years in prison for molesting Sara, within two years of being paroled Schumann again molested a child (Victim) under the age of 14. The court thus also considered the nature of the offenses, noting Schumann's 1993 conviction and the offenses charged in the instant case each involved a lewd act on a child under the age of 14.
On this record, we conclude the trial court's decision not to strike one or more of Schumann's strike priors was not "so irrational or arbitrary that no reasonable person could agree with it." (See People v. Carmony, supra, 33 Cal.4th at p. 377.)
DISPOSITION
Schumann's judgment of conviction is affirmed.
WE CONCUR: NARES, J., AARON, J.