Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 206749
Kline, P.J.
Leroy K. Vo (appellant) was convicted, following a jury trial, of five counts of lewd and lascivious conduct with a child under the age of 14, five counts of misdemeanor annoying or molesting a child, and two counts of misdemeanor battery. On appeal, he contends: (1) the trial court erred when it precluded a psychiatrist who opined that appellant suffered from a delusional disorder from testifying about appellant’s statements to him on which he had based his opinion; (2) the evidence is insufficient to support three of appellant’s five convictions for lewd and lascivious conduct with a child under the age of 14; (3) the evidence is insufficient to support three of appellant’s five convictions for annoying or molesting a child; and (4) the trial court abused its discretion when it sentenced appellant to consecutive terms. We shall affirm the judgment of conviction, but shall vacate the sentence and remand the matter to the trial court for resentencing.
PROCEDURAL BACKGROUND
Appellant was charged by a first amended information with five counts of lewd and lascivious conduct with a child under the age of 14 (Pen. Code, § 288, subd. (a)—counts one, three, five, seven, and nine); five counts of misdemeanor annoying or molesting a child under the age of 14 years (§ 647.6, subd. (a)—counts two, four, six, eight, and ten); and two counts of misdemeanor battery (§ 242—counts eleven and twelve).
All further statutory references are to the Penal Code unless otherwise indicated.
Following a jury trial, appellant was convicted as charged on all counts.
On January 15, 2010, the trial court sentenced appellant to a total term of 14 years in state prison, which included the middle term of six years on one count of lewd and lascivious conduct with a child under the age of 14 (count one), and consecutive sentences of two years for each of the four other lewd and lascivious conduct convictions (counts three, five, seven, and nine). The court stayed the sentences for the five counts of misdemeanor annoying or molesting a child (counts two, four, six, eight, and ten), and imposed concurrent sentences of six months for each of the two misdemeanor battery convictions (counts eleven and twelve).
On January 26, 2010, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Prosecution Case
Rebecca C., who was 21 at the time of trial in November 2009, testified that, on the evening of July 30, 2007, she was at the Rossi swimming pool in San Francisco during recreational swim time with her friend, A.J., and her cousin. The pool was divided into three sections, including a shallow section for children, a middle section for “everybody, ” and a deep section for those who had passed a test to be able to swim there. She was swimming in the middle section of the pool. When she got to the end of the pool, she stopped swimming, stood up, and noticed a short Asian man standing next to her. While he stood there looking straight ahead, the palm of his right hand went through the water and briefly touched her stomach.
Rebecca felt “a little bit weird” afterwards because no one had ever touched her like that at the pool in the three years she had been swimming there. She felt like “he did it purposely in a way.” She moved away from the man, who was still just standing there, and told her friend A. what had happened. A. told her the man had touched her also. Rebecca continued swimming in the pool and did not get touched again.
On the evening of August 1, 2007, Rebecca returned to the pool, again with A. The same man was there again and they tried to stay away from him. Rebecca saw him go into the children’s section, but did not see him “do anything.” The police then came and pulled the man out of the pool. She told a police officer what had happened to her on July 30, and identified the man as the same person who had previously touched her.
San Francisco Police Officer Eric Tapang testified that Rebecca approached him at the pool and identified appellant as the man who had touched her previously.
Rebecca was unable to identify the man who had touched her at trial.
A.J., who was 20 years old at the time of trial in November 2009, testified that, on July 30, 2007, she went to the Rossi swimming pool with Rebecca C. and a cousin. While she was swimming in the middle area of the pool, A. felt a hand touch her for a second in the middle of her back. She looked up and saw an Asian man passing by, and she assumed that he had accidentally touched her. She was unable to identify the man at trial.
After she was touched, A. went to the side of the pool where Rebecca was standing and told her what had happened, saying it might have been an accident. Rebecca said he had touched her too. They then moved away from the man, but continued swimming. A short time later, the man pulled A.’s ankle. Because she was not good at swimming, it felt like she was drowning. When she stood up, the same man who had touched her earlier passed her again. No one else was nearby.
She no longer thought the touching was accidental. She stopped swimming, but stayed in the pool with Rebecca. She did not tell anyone else at the pool what had happened because she was kind of scared and did not know what to do.
A police officer subsequently came to A.’s house and showed her some photographs. She picked out a photograph of the man who had touched her.
San Francisco Police Officer Darlene Ayala testified that, on August 9, 2007, she spoke with A. at her home and, after showing her a photo lineup, A. identified appellant as the person who had touched her at the pool.
Joanna J., who was 10 years old in August 2007, testified that, on the afternoon of August 1, 2007, she went to the Rossi swimming pool with Valerie Chen, a teacher from her after-school program, and three school friends: Anna, Jimmy, and Eric. She was swimming in the middle part of the pool when she saw a man swimming toward her. He was Chinese, with very short hair and small eyes. The man touched her for 10 or more seconds with his hand in the area she urinates from, which is below her waist and above her knees. She responded by kicking the man because she “was about to drown.” At that point, she stopped swimming and saw the man standing there grinning. Joanna identified appellant at trial as the man who had touched her.
Joanna then went to the shallow part of the pool, and told her friend Anna what had happened. She later went back to swimming in the middle area. The same man touched her with his hand again in the same part of her body. The touching did not last as long the second time. After this second touching, she swam to another part of the pool and saw the man still standing there. She then saw him pull down the front of his pants to his thighs. As he did this, he kept grinning. Joanna never said anything to the man and he did not say anything to her.
Joanna swam to her friend Anna and again told her what had happened. After that, they stayed in the shallow part of the pool. She later told her teacher what had happened. Then, as they prepared to leave, the man walked by and someone asked if that was the person who had touched her. She said, “Yes, ” but when someone asked the man, he said, “No, I did not do it.”
Officer Ayala testified that, on August 9, 2007, she showed Joanna a photo lineup and Joanna identified appellant as the person who had touched her and her friend Anna.
Anna L., who was 11 years old in August 2007, testified that she went to the Rossi swimming pool with Valerie Chen, her after-school tutor; her friends, Joanna and Matthew; and her cousin, Jimmy. She was standing in the middle part of the pool talking to Joanna when she felt a hand touch her vagina for about two seconds. The man, who was swimming when he touched her, was Chinese and had short hair. After touching her, he swam to the end of the pool; then, “he got up and smiled, ” looking in her direction. Anna identified appellant at trial as the man who had touched her.
Anna told her friend Joanna what had happened. She did not tell the lifeguard because she was scared. She also told her cousin Jimmy. Jimmy told Valerie Chen what had happened and Anna saw Chen talk to a lifeguard.
Officer Ayala testified that she showed a photo lineup to Anna and she identified appellant as the person who touched her.
Jimmy L., who was 11 years old in August 2007, testified that he went to the Rossi swimming pool on August 1, 2007 with his tutor, Ms. Chen, and also with Anna, Eric, Joanna, and two other friends. While he was under water playing with his friends, Jimmy saw a swimmer touch his cousin Anna’s “private part” between her thighs while she was in the middle lane of the pool. He did not see the swimmer’s face. He approached Anna and said she had been touched by the swimmer, and she said she knew she had been touched. Later, as the swimmer, who was Asian, walked to the dressing room, Jimmy saw him smiling back at Anna. After Jimmy got out of the pool, he told his tutor what he had seen, and she told the pool manager.
Officer Ayala testified that she showed a photo lineup to Jimmy and that he identified appellant as the person he had seen touch Anna.
Haley F., who was 10 years old in August 2007, testified that, at 7:00 p.m. on August 1, 2007, her father dropped her and her friends, Elaine and Carmen, at the Rossi swimming pool. While she was standing in the middle lane of the pool, a man wearing black goggles and who was standing nearby touched her on the right leg for one second. She thought it was an accident. About 10 minutes later, she was swimming in the middle lane of the pool, when the same man, who was also swimming, touched her on the upper outside part of her leg for about one second. She kept swimming and did not tell anyone she had been touched because she thought it was an accident. On neither occasion did the man look at her or say anything to her.
Later that evening, when Haley’s friend Elaine was talking to one of the lifeguards at the pool, Haley came and told him she had been touched too.
Elaine H., who was 10 years old in August 2007, testified that she went to the Rossi swimming pool on August 1, 2007 with Haley and Carmen. While Elaine was in the middle of the pool, a man who was also swimming touched her on the leg with his hand for about five seconds. The man was wearing goggles and had a dark blue or black bathing suit on. He did not say anything to her, but kept on swimming. Elaine stopped and looked at the man, but then continued swimming because she thought the touching was an accident.
A lifeguard later came up to Elaine and asked, “Did that guy touch you?” She said, “Yes.” She later spoke with a police officer.
Carmen L., who was 10 years old in August 2007, testified that she went to the Rossi swimming pool on the evening of August 1, 2007 with her mother and sister. She met up with Haley and Elaine at the pool. While she was swimming in the middle part of the pool, someone who was swimming in the opposite direction touched her on the outer part of her right thigh. The person was wearing black goggles. A short time later, the same person touched her again in the same area of her body. The person said nothing to Carmen either time he touched her.
Carmen testified that, after she was touched the second time, “something didn’t feel right, ” so she went and told her mother about it. Carmen’s mother said to stay with her and not to go back to that part of the pool. She later told Haley and Elaine what had happened. At some point, she spoke with a police officer and said she had been touched. Haley and Elaine each spoke with the officer separately. She did not remember if she had identified the person who had touched her then, and she could not identify anyone in court.
Gregorio Edmisten testified that he was an instructor and lifeguard at the Rossi swimming pool. On August 1, 2007, he worked a 1:00 p.m. to 10:00 p.m. shift at the pool. From approximately 1:00 p.m. to approximately 3:00 p.m., there was a recreational swim time, which is “a family time... when usually children, schools, families come down.” During that time, the pool was very crowded, with as many as 120 people present.
At the end of the recreational swim period, Edmisten heard a mother complaining to the pool manager about a man touching her children in the shallow end of the pool. The mother and children described the man as “a short Asian male with short hair.” A substitute lifeguard who was not on duty confronted the man in the locker room, but did not bring him to the manager and Edmisten. The off-duty lifeguard should not have let the man leave without giving the woman who complained the opportunity to confront him or call the police.
Edmisten returned from his dinner break at 5:00 p.m., and was alert because of the earlier complaint. There were less people present at the pool during the evening recreational swim time, which went from about 7:00 p.m. to about 9:00 p.m., than during the afternoon recreational swim time. He saw appellant in the pool toward the middle or end of the evening recreational swim time. He was the only single man in the pool; that is, he appeared to be the only man present who was not with family and friends.
At about 8:40 p.m., Edmisten noticed some girls’ “heads dropping backwards” in the shallow end of the pool and saw a silhouette under water. He believed that someone had either kicked the children by accident or had touched them. He asked another lifeguard if she had seen anything, but she had not. He went into the office and watched the pool from there. He then went back to the pool deck and saw appellant with his back against the pool wall, “scanning, looking.”
Edmisten then saw the man’s eyes focus on some little girls who were walking toward the deep end. The man put his goggles on and began to swim out toward them. As the girls passed him, the man changed his path and reached out and touched one of the girls underwater, somewhere between her mid-torso and lower thigh region. He then continued swimming to the other side of the pool. The girls looked a little startled or scared. Edmisten asked them if “by any chance did that man touch you in a way you felt uncomfortable?” and they said, “Yes.” He told his coworkers to watch the pool while he called the police. He called the police and, once they arrived, he identified the man, who was taken into custody. Edmisten identified appellant at trial as the man he saw touch the little girl.
San Francisco Police Officer Charles Wong testified that he was dispatched to the Rossi swimming pool on August 1, 2007 at approximately 9:19 p.m. He conducted interviews with Carmen, Elaine, and Haley separately. Each of them identified appellant as the person who had touched them.
Defense Case
Appellant testified that he grew up with one sister and six brothers in Vietnam. His family had tried to drown him in a river and his brother had once tried to drown him in a bucket. He now lived in San Francisco with his parents and his brother. He did not know if his parents were his real parents; he needed a DNA test to prove they were his biological parents. He thought they might not be his real parents because there had been “murder attempts within my family when I was a child.”
Appellant was unemployed in July and August 2007. He had been laid off in 2003 from American Airlines, where he had worked as a stock clerk, fleet clerk, and aircraft mechanic. He had had one girlfriend, from 1996 to 1998.
Appellant had been losing energy every day since he went for jury duty in 2005. He believed this was caused by a stink bomb that someone set off in the hallway of the police department. He had tried doing various things to restore his energy, including walking uphill and downhill, running, playing soccer, and lifting weights. But none of those activities helped him “to reach the bottom.” He thought going for a swim would help him reach the bottom of his energy level so that he could start exercising where he was weakest, which he thought was the best way to do his exercise. This was the only way for him to “go back up.”
Appellant went to the Rossi swimming pool to test his physical condition for three days in a row, on July 30, July 31, and August 1, 2007. This was the first time he had been at the pool in about 10 years. On July 30, he arrived at the pool at about 8:00 p.m., during the recreational swim time. He got into the pool, went to the middle section, and began stretching and warming up for a swim. Appellant accidentally touched Rebecca C. while he was warming up. He was standing against the pool wall, doing a swimming motion with his hands when he accidentally touched her on the stomach. Appellant then started swimming back and forth across the pool. His energy was low and he was challenging himself. A.J. was swimming ahead of him and she either kicked his hand or he accidentally touched her on her ankle.
Appellant returned to the pool the next evening, on July 31, for a “lap swim.” He was losing his energy every time he went for a swim. He could not finish the laps without stopping and resting while hanging onto the side wall of the pool. He felt like an old man who was going to die soon. He touched no one that day.
Appellant returned to the pool again on August 1 at 1:00 p.m. and stayed until about 2:45 p.m., when the recreational swim time ended. He went to swim, to test his physical condition. He testified, “I was losing energy, I was losing blood pressure and I had a hard time breathing.” He was feeling very weak, weaker than the two previous days. He was trying to reach his weakest point to see if he could still swim when he was at his weakest. Appellant swam laps in the middle section of the pool. He stayed near the wall so that if he had a problem with his energy and started sinking to the bottom, he could grab the wall. He “was feeling sick, [he] was feeling very old, very—very tired, low blood pressure.”
Appellant again swam in the middle section of the pool, resting often. He was tired and some girls came by “just... to cheer me up.” After they cheered him up, he regained his energy. He explained that when he got tired as he swam back and forth, the girls came, “like rescuing me, but by touching them, like briefly touching them, then I got my energy back, I regain my blood pressure.” The children showed him with their body language that it was okay to touch them, and he would touch them with his finger tip. The girls “pinpointed by their body language where to touch.” He touched the girls because he believed that by doing so he would “regain my energy, to get my blood pressure back, ” so he could continue swimming. He touched about five or six girls on the afternoon of August 1. Touching the girls gave him an energy boost, “like a zip of steroid to give me energy.” This was not a sexual energy, but “a blood pressure energy.” He might feel sexual gratification touching them now when he was “in full energy level, ” but not then when he was at his “lowest level of energy.” Touching adults would not help, but would only make him lose energy.
At one point, appellant was resting against the side wall in the middle section of the pool. There were two girls and one boy nearby who went under water a few times and looked into his pants, where his “private area” is, while he was kicking his legs. He understood from their body language that “they wanted to see my private part.” He therefore pulled down his pants and showed it to them as a way of “returning their favor” of letting him touch them. He also did it to show that he had no sexual desire with them. He got no sexual gratification from showing the children his private area, although he knew that it was wrong to do it. The children did not say anything to him and he said nothing to them. The boy was Jimmy, who had testified at trial.
After swimming that afternoon, as he was leaving the locker room, a Chinese man stopped him and asked if he had touched children in the pool. He told the man he had accidentally touched them and the man said to stay away from the children, so he left the pool.
Appellant returned to the pool for the evening swim session. He was feeling a little better, so he did not have to touch children that night. However, while he was in the middle section of the pool, he saw a girl who was pulling her body through the water against the side wall from the shallow area to the deep end. She lost her grip and appellant was afraid she was going to sink to the bottom, so he kept his eye on her. When she came back through the middle section, he was standing near her. As he watched her, she gave him a sign with body language to look under the water. When he did so, her finger pinpointed where to touch her, and he touched her on her vagina. She then pulled herself back into the shallow area. Fifteen minutes later, the police came and arrested him.
Shortly after appellant’s arrest, a female police officer, Officer Ayala, interviewed him at the police station. She asked him if he had touched the girls and he said he had touched them accidentally. In fact, he had read from their body language that they agreed to let him touch them. He did not tell this to the officer, partly because “everybody was touching everybody in the pool, ” and he did not want all the people to be brought to jail because it would be too cold for them to handle. A week later, another police officer, Officer Murray, interviewed him. He also told this officer that the touchings were accidental. He did not tell the officer about his low body energy or about the girls wanting him to touch them. This was because the case “wasn’t that serious, ” and Officer Murray was only concerned about whether he had pinched one of the girls, and he said he did not remember pinching her.
On cross-examination, appellant acknowledged that it was not until a few weeks before trial that he came up with the story about having low body energy. He never told anyone prior to the date the case was set for trial anything about having low body energy and the need to touch little girls. It had been on his mind for a long time, but he “did not want to go in too deep until the trial is on.”
Appellant wrote a letter of apology to the girls he had touched. First, he testified that he wrote the letter as a thank you to the girls for letting him touch them. He then testified that he wrote it because he thought he had misread their body language. Now that he was in full energy, he believed he should not touch anyone. He thinks differently depending on his energy level.
After he was released from custody in 2007, appellant started to regain his energy little by little by working hard. He worked out, ran, ate better, and slept better. He was 100 percent cured now and was back to his 2005 energy level.
Khang Vo (Khang), appellant’s brother, testified that appellant’s behavior changed significantly in 2006 after he lost his job and moved back in with his parents. He seemed very disconnected and quiet, and it did not seem like he wanted to do anything. After appellant got arrested, he did not seem like himself. He tried to get appellant help, but appellant did not think there was anything wrong with him. Khang never tried to drown appellant.
Hung Nguyen, appellant’s mother, testified that after appellant lost his job and moved back to his parents’ house, he was very quiet and sad. He stayed in his room and did not interact with the family.
Dr. Roland Levy testified as an expert in forensic psychiatry. He believed that appellant suffered from a delusional disorder. He based his opinion on a single one and one-half hour interview with appellant on October 23, 2009, a police report, and a jail psychiatric services report from March 12, 2008. He did not rely on the diagnosis from jail psychiatric services in reaching his opinion. Rather, “it was an independent finding which coincided.” After writing his report, Dr. Levy also talked to appellant’s mother and brother and listened to appellant’s interview with police. His diagnosis was based largely on appellant’s statements to him, unchanged by subsequent information.
A delusional disorder is “a firm belief in something that is not reality based.” A delusion can become fixed in a person’s mind and be ongoing. Appellant’s delusional disorder had to do with “his feeling low energy and like an old man.” Specifically, his delusion was “that he was suffering from a state of weakness and feeling like an old man, and he was trying his best to get his energy back....” From the other records he reviewed, Dr. Levy found that appellant had other delusional beliefs as well, which involved his family and were essentially paranoid in nature. Levy relied on appellant’s statements to him in making his diagnosis. If appellant was not truthful with him, that could change his diagnosis. He saw no indication that appellant was malingering, although he did not test for it. Instead, appellant was acting upon a somatic delusion, that is, “a bizarre physical belief.”
Appellant’s story and behavior did not fit the typical pattern of a child molester in that most child molesters molest family members, and those that molest strangers tend to be very timid and act in a situation where they can run away. While it is possible that appellant’s conduct could be typical behavior for a child molester, it was not so in appellant’s case. Dr. Levy acknowledged on cross-examination that the nature of the incidents could potentially be sexually motivated. Moreover, a person can be delusional and still be able to form the intent to act. He further acknowledged that some pedophiles blame the victim for what occurred and that indecent exposure is a type of child molestation.
DISCUSSION
I. Exclusion of the Psychiatrist’s Testimony Regarding Appellant’s Statements on Which He Based His Opinion
Appellant contends the trial court erred when it excluded, on hearsay grounds, Dr. Levy’s testimony regarding appellant’s statements to him on which he based his opinion.
A. Trial Court Background
Appellant points to five instances in which the trial court sustained the prosecutor’s hearsay objections to Dr. Levy’s testimony regarding statements appellant made to him during their interview.
First, when defense counsel asked what appellant had said regarding his age, Dr. Levy responded, “He told me that he was 36, but he wasn’t sure if that was true.” The trial court sustained the prosecutor’s hearsay objection. A short time later, the trial court sustained a hearsay objection to virtually the same question.
Second, when defense counsel asked Dr. Levy whether appellant told him “about problems that he was having with his body, ” the trial court sustained the prosecutor’s hearsay objection.” Then, when defense counsel asked about “the general nature of [appellant’s] delusions, Dr. Levy answered, “His delusion is that he was suffering from a state of weakness and feeling like an old man, and he was trying his best to get his energy back, and he started exercising, running. That didn’t help, working out, that didn’t help—” The trial court sustained the prosecutor’s hearsay objection and instructed the jury to disregard the answer after “trying to get his energy back.”
Third, when defense counsel asked what appellant did in regard to his delusion and trying to get his energy back, Dr. Levy answered that “he tried various types of exercises.” The prosecutor objected on hearsay grounds and the trial court sustained the objection. Then, defense counsel asked if appellant took up “activity with respect to that delusional disorder, and Dr. Levy said, “Yes.” Counsel followed up, asking, “And what was that?” As Dr. Levy answered, “Various types of—, ” the prosecutor interjected a hearsay objection, which the court sustained.
Fourth, when defense counsel asked what jail psychiatric services’ diagnosis of appellant was, the trial court sustained the prosecutor’s hearsay objection. Counsel then asked if Dr. Levy relied on that diagnosis as part of his opinion in this case, and Dr. Levy responded, “No, it was an independent finding which coincided, ” after which counsel again asked, “And what was that independent finding that coexisted with your opinion?” The trial court again sustained the prosecutor’s hearsay objection.
Fifth, when defense counsel asked about the nature of appellant’s other delusional disorder, the trial court sustained the prosecutor’s hearsay objection. When counsel then asked a nearly identical question, Dr. Levy answered that it was “essentially paranoid in nature” and that he had a disorder involving his family. Counsel then asked, “In most general terms, what was the nature of that disorder involving his family?” The court sustained a hearsay objection, stating that counsel had to lay a foundation.
After Dr. Levy confirmed that he had gotten information about appellant’s thoughts about his family, counsel asked what Dr. Levy had found “in that regard with respect to a delusion.” Dr. Levy responded, “That he did not believe his parents were really his parents, and that his brothers had tried to kill him when he was young.” The prosecutor objected again on hearsay grounds. When the court then asked whether “these are the expert’s conclusions or the basis for his view, ” counsel asked Dr. Levy whether his answer was “part of the basis of your opinion as far as his mental state, ” Dr. Levy answered, “Not in terms of his—the delusional disorder that I saw, but it indicated that he has other delusions.” The court then sustained the prior hearsay objection and instructed the jury to disregard Dr. Levy’s answer about the substance of appellant’s delusions regarding his family.
B. Legal Analysis
Dr. Levy testified that he relied in part on his interview with appellant in reaching his opinion. Appellant argues that the inability of the defense to elicit from Dr. Levy appellant’s statements to him on which he based his opinion that appellant suffered from a delusional disorder violated his constitutional rights, including his due process right to present a complete defense and to present a psychiatric defense, and his constitutional right to compulsory process. Respondent counters that the defense failed to establish that Dr. Levy relied on the excluded evidence, that it was inadmissible hearsay, and that, regardless, any error in excluding the evidence was harmless.
Evidence Code section 801, subdivision (b), requires that expert opinion testimony be “[b]ased on matter... perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.” So long as the material is reliable, “even matter that is ordinarily inadmissible can form the proper basis for an expert’s opinion testimony.” (People v. Gardeley (1996) 14 Cal.4th 605, 618.) This includes reliable hearsay. (Id. at pp. 618-619.)
At oral argument before this court, the People argued that even if the excluded testimony in this case was not inadmissible on hearsay grounds, the trial court could have excluded it as irrelevant to Dr. Levy’s opinion regarding appellant’s motivation for committing the charged offenses. Therefore, according to the People, we should affirm the court’s ruling even if it sustained the objection on the wrong ground. The People, however, ignore “ ‘the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.’” (People v. Smith (2007) 40 Cal.4th 483, 520.)
Although, as we shall discuss, post, Dr. Levy did not rely on much of the excluded testimony in forming his opinion, he was entitled to testify to any of appellant’s statements that did form the basis of his opinion that appellant was acting under a delusion when he committed the charged offenses, even if that testimony was hearsay. (People v. Gardeley, supra, 14 Cal.4th at pp. 618-619.) We also conclude, however, that the trial court’s refusal to admit this evidence was harmless under any standard of error. (See Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)
First, Dr. Levy was permitted to testify that appellant had told him that he was having problems with his body and that his delusion was “that he was suffering from a state of weakness and feeling like an old man, and he was trying his best to get his energy back....” This testimony corresponded to appellant’s testimony about his motivation for touching the girls in the pool, and formed the basis for the expert’s opinion that appellant was acting upon a somatic delusion, i.e., “a bizarre physical belief” when he committed the charged acts.
That Dr. Levy was not permitted to testify to certain details did not undermine the power of his opinion. For example, Dr. Levy was not allowed to testify that appellant tried various types of exercise to get his energy back or to follow up on his testimony that appellant said he was 36 years old, but this in no way negated or weakened Dr. Levy’s expert opinion on the issue at hand. Moreover, to the extent appellant is arguing that Dr. Levy should have been able to testify specifically that appellant touched the girls to try to get his energy back, counsel did not ask any such question.
Moreover, that appellant touched the girls for that reason is implicit in Dr. Levy’s opinion, in response to a hypothetical question based on the facts of this case, that the touchings were caused by appellant’s delusion rather than by sexual desire. Indeed, when counsel asked Dr. Levy what his opinion that appellant suffered from a delusional disorder was based on, Dr. Levy testified, “The way he described it, how it started, how he’s been nonfunctional since it started, and what he found made him feel better.”
With respect to the question regarding jail psychiatric services’ diagnosis of appellant, Dr. Levy testified that he did not rely on that diagnosis as part of his opinion in this case. Rather, it was “an independent finding which coincided.” Similarly, Dr. Levy was permitted to testify that appellant had a paranoid delusional disorder involving his family, but was not permitted to testify in detail to the substance of his delusions about his family. However, Dr. Levy again testified that these facts did not form the basis of his opinion about appellant’s mental state “in terms of... the delusional disorder that I saw.”
As appellant states in his opening brief, Dr. Levy’s opinion that appellant suffered from a delusional disorder was “critical evidence.” However, Dr. Levy was permitted to testify that appellant suffered from a delusional disorder and to describe the nature of appellant’s delusion; he further testified that appellant was acting upon that delusion when he touched the girls in the pool. Accordingly, although the trial court erred in sustaining hearsay objections to some of counsel’s questions to Dr. Levy, those errors did not prejudice appellant. (See Chapman v. California, supra, 386 U.S. at p. 24; People v. Watson, supra, 46 Cal.2d at p. 836.)
II. Sufficiency of the Evidence of Three Counts of Lewd and Lascivious Conduct With a Child
Appellant contends the evidence is insufficient to support three of appellant’s five convictions under section 288, subdivision (a), for lewd and lascivious conduct with a child under the age of 14.
“In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we ‘examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—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.’ [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1129.)
Section 288, subdivision (a), punishes “any person who willfully and lewdly commits 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.”
In determining whether the act was performed with the required specific intent, the trier of fact looks at all of the circumstances, including the charged act and other relevant factors, such as “other acts of lewd conduct admitted or charged in the case.” (People v. Martinez (1995) 11 Cal.4th 434, 445 (Martinez).)
“Nothing in [the] language [of section 288, subdivision (a)] restricts the manner in which such contact can occur or requires that specific or intimate body parts be touched. Rather, a touching of ‘any part’ of the victim’s body is specifically prohibited.” (Martinez, supra, 11 Cal.4th at p. 442.) Thus, the “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.]” (Id. at p. 444.)
Here, appellant argues that it is pure speculation to conclude that he had the requisite sexual intent when he briefly touched Haley F., Elaine, H., and Carmen L. on their legs. We disagree. First, that he did not touch these girls in their vaginal area, as he did with Anna L. and Joanna J., is plainly not dispositive. (See Martinez, supra, 11 Cal.4th at p. 442.) Rather, looking at the totality of the circumstances, the evidence supports the jury’s determination that appellant acted with a sexual intent when he touched the three girls on their legs. First, only a few hours earlier, he had touched two girls on their vaginas and had exposed himself to them. (See id. at p. 445.) Second, the jury could reasonably question appellant’s credibility regarding his reasons for touching the girls, given that he had claimed that all of the touchings were accidental until shortly before trial and had continued to claim that the similar touchings of the two older girls two days earlier were accidental.
In addition, appellant himself testified that he touched one of girls at the evening swim session on the vagina just before he was arrested.
Appellant also testified at trial that, if it were not for his purported low energy, the touchings in this case could have been for sexual gratification. Even Dr. Levy acknowledged that the nature of the incidents could potentially be sexually motivated. Hence, even if the jury were to believe that appellant was suffering from a delusion involving the need to touch young girls to restore his energy, the evidence still would support the conclusion that the energy appellant sought to restore was sexual and/or that he sought to restore his energy by touching young girls and becoming sexually aroused.
We also observe that, as the prosecutor argued to the jury, appellant’s claim that he touched the girls where they “asked” him to via their body language and exposed himself for the same reason, would still constitute to a violation of section 288, subdivision (a), in that he would be acting for the purpose of “gratifying” the “sexual desires” of the child. (§ 288, subd. (a).)
In short, although the evidence in this case might also have supported a finding that appellant acted without the requisite sexual intent, there plainly was substantial evidence to support the jury’s conclusion that appellant violated section 288, subdivision (a), when he touched Haley F., Elaine H., and Carmen L. (See People v. Guerra, supra, 37 Cal.4th at p. 1129.)
III. Sufficiency of the Evidence of Three Counts of Annoying or Molesting a Child
Appellant contends the evidence is also insufficient to support three of appellant’s five convictions for annoying or molesting a child. (See People v. Guerra, supra, 37 Cal.4th at p. 1129.)
Section 647.6, subdivision (a)(1), punishes as a misdemeanor any person who “annoys or molests any child under 18 years of age.” Unlike section 288, subdivision (a), section 647.6, subdivision (a), does not require a touching, but does require both “conduct a ‘ “normal person would unhesitatingly be irritated by” ’ ” and “conduct ‘ “motivated by an unnatural or abnormal sexual interest” ’ in the victim.” (People v. Lopez (1998) 19 Cal.4th 282, 289.)
In the present case, appellant does not challenge the finding that a normal person would have been irritated by a stranger touching her on the leg. Instead, he argues that the evidence was insufficient to show that his touching of Haley F., Elaine H., and Carmen L. was motivated by an unnatural or abnormal sexual interest in the girls. We disagree. Without repeating our analysis, we find that, based on the identical evidence discussed in part II., ante, of this opinion, there was abundant evidence presented at trial that appellant was motivated by an unnatural and abnormal sexual interest when he touched the girls. Hence, substantial evidence supports the jury’s finding that appellant violated section 647.6, subdivision (a). (See People v. Lopez, supra, 19 Cal.4th at p. 289.)
IV. Consecutive Sentences
Appellant contends the trial court abused its discretion when it sentenced him to consecutive terms.
A. Trial Court Background
The court’s 14-year sentence was structured as follows: the middle term of six years on the first count of lewd and lascivious conduct (§ 288, subd. (a)), and consecutive sentences of two years (one-third the middle term) for each of the other four counts of lewd and lascivious conduct. The court stayed the one-year sentences on the five counts of misdemeanor child annoying or molesting a child (§647.6, subd. (a)), pursuant to section 654, and imposed concurrent sentences of six months each on the two misdemeanor battery counts (§ 242).
During the sentencing hearing, defense counsel requested that the court impose concurrent, rather than consecutive, terms on the lewd and lascivious conduct counts in light of the evidence that appellant suffers from a significant mental illness. He noted that, in addition to the expert opinion of Dr. Roland Levy that appellant suffers from a delusional disorder that caused him to act as he did, appellant’s mother and brother had testified about appellant’s bizarre beliefs and behavior, and Dr. Paul Good submitted a report before sentencing concurring in Dr. Levy’s findings. Counsel therefore asked that the court consider the fact that appellant had a mental illness at the time of the offenses as a factor in mitigation.
The prosecutor acknowledged that there was evidence that appellant suffered from a mental illness, but nonetheless argued against treating it as a factor in mitigation because “it’s clear what appellant wanted to do” and “his intended actions were illegal.”
The court relied on numerous factors in aggravation when it imposed consecutive sentences on appellant, explaining its reasoning as follows:
“First, the five felony convictions of Penal Code Section 288(a) each against a different victim were predominantly independent of each other. Two of the crimes occurred on the afternoon of August 1, 2007 against two separate victims. Three of the felonies occurred in the evening of August 1, 2007 against three separate victims when the defendant went back to the Rossi pool, even though he had been told not to.
“Second, this was not a single period of abhorrent [sic] behavior. The defendant was convicted of misdemeanor battery of two other women occurring on July 30, 2007 occurring in the Rossi pool. He then went back to the pool on August 1, 2007 in the afternoon and committed more crimes. Later in the evening of August 1, 2007, he was back at the pool again.
“Three, the Court has considered the circumstances [in] aggravation and mitigation [in selecting the middle term], and [as] provided for in [California Rules of Court, ] rule 4.425(b) in considering whether or not the sentence should be concurrent or consecutive. Those circumstances in aggravation which the Court listed earlier in explaining why the Court is imposing the middle term, are all factors that support the imposition of consecutive rather than concurrent sentences on the five felony counts of Penal Code Section 288(a).”
All further rule references are to the California Rules of Court.
These additional circumstances in aggravation, which the court found applicable pursuant to rule 4.425(b) in imposing consecutive sentences, included the following:
“[O]ne, the crime involved a high degree of callousness, preying upon victims in a public swimming pool.
“Two, the victims were particularly vulnerable. And as I stated earlier, by that I do not mean simply that the victims were children under the age of 14, which is an element of the offense charged. The victims were particularly vulnerable because they were swimming and playing with friends in a public swimming pool during a recreational swim session on a summer day. The young victims had no reason to be alert to their surroundings or to suspect they would be in danger of the felonious conduct committed by the defendant.
“Third, the manner in which the crimes were carried out indicated planning. The defendant went to the public pool during open swim hours twice in the same day, even after being told not to come back, and, of course, that leaves—it’s also true that two days earlier he had been at that pool and committed the misdemeanor batteries charged and convicted on counts 11 and 12.
“And also another aggravating factor is the Court believes that the conduct by the defendant does pose a serious danger to society.”
The trial court also found that there was one factor in mitigation: that appellant had no prior known criminal record. However, the court found that this factor in mitigation “does not outweigh the strong factors in aggravation.”
B. Legal Analysis
“ ‘Section 669 grants the trial court broad discretion to impose consecutive sentences when a person is convicted of two or more crimes. [Citations.]’ [Citation].” (People v. Leon (2010) 181 Cal.App.4th 452, 467.) Rule 4.425(a), provides, inter alia: “Criteria affecting the decision to impose consecutive rather than concurrent sentences include: “[¶]... [¶] Facts relating to the crimes, including whether or not: [¶] (1) The crimes and their objectives were predominantly independent of each other; [¶] (2) The crimes involved separate acts of violence or threats of violence; or [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.”
Rule 4.425(b) provides: “Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except: [¶] (1) A fact used to impose the upper term; [¶] (2) A fact used to otherwise enhance the defendant’s prison sentence; and [¶] (3) A fact that is an element of the crime may not be used to impose consecutive sentences.”
Here, as we shall discuss, post, we conclude that the court abused its discretion when it failed to find that appellant’s delusional disorder was a circumstance in mitigation. We also conclude that the court should have taken this circumstance into account when it considered the applicability of the aggravating factors in question.
1. Circumstances in Mitigation
The trial court found a single circumstance in mitigation: that appellant had no known prior criminal record. (Rule 4.23(b)(1).) Appellant argues that the record also reflects that he suffered from a delusional disorder, which the court should have considered as another circumstance in mitigation. (See rule 4.423(b)(2).) We agree.
Rule 4.423(b)(2) provides, as a circumstance in mitigation: “The defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime....”
Here, evidence of a mitigating mental condition pervaded the case. First, two mental health professionals concluded that appellant suffered from a delusional disorder at the time he committed the offenses. We have already discussed the testimony of Dr. Levy on this point. In addition, appellant’s counsel submitted a report by Dr. Good prior to sentencing, in which Dr. Good, who had interviewed appellant and reviewed relevant materials, concluded that appellant was “suffering from a Delusional Disorder” and that his “somatic delusion was the primary motive in the offense.” Moreover, according to both psychologists, an earlier jail psychiatric services report also concluded that appellant was suffering from a delusional disorder. Finally, the testimony of appellant’s brother and mother provided additional support for the professionals’ findings that appellant suffered from such a disorder.
As we mentioned at oral argument, and contrary to the People’s position, this was a close case. That the jury found that appellant had the intent necessary to be found guilty of the charges against him does not negate the extremely strong evidence that appellant nonetheless suffered from a delusional disorder “that significantly reduced culpability for the crime.” (Rule 4.423(b)(2).) The court abused its discretion in failing to consider this circumstance in mitigation. (See People v. Leon, supra, 181 Cal.App.4th at p. 467.)
2. Circumstances in Aggravation
a. The Crimes and their Objectives Were Primarily Independent of Each Other
The trial court’s finding that each of the five offenses involved a separate act against a different victim and that the offenses were therefore predominantly independent of each other (see rule 4.425(a)(1)) was well within its broad discretion. That appellant was seeking sexual gratification each time he touched a different victim does not negate the fact that the offenses against each victim were independent acts involving separate objectives, i.e., an intent to achieve sexual gratification from each separate encounter with each girl. (See People v. Bishop (1984) 158 Cal.App.3d 373, 377-380, 382-384 [defendant’s separate sex offenses against two girls kidnapped and held together were independent of each other and supported consecutive sentences]; cf. People v. Harrison (1989) 48 Cal.3d 321, 325-326 [section 654 does not preclude punishment for a defendant who repeated the same sexual offense against a victim since “no special treatment” should be afforded to a defendant “simply because he chose to repeat, rather than to diversify or alternate, his many crimes”].) Nonetheless, the trial court on remand should consider that appellant was acting under compulsion of a delusional disorder when he committed each offense.
b. The Crimes Were Committed at Different Times or Separate Places
The trial court’s finding that the five offenses “were committed at different times or separate places, rather than being committed so closely in time and places as to indicate a single period of aberrant behavior” (rule 4.425(a)(3)) was also within the court’s discretion. The offenses here were each committed against different victims at different times. Although some of the offenses occurred perhaps only minutes apart, that does not change the fact that the trial court could reasonably find that they were not a single period of aberrant behavior but, instead, appellant chose to continue touching young girls after having an opportunity between to reflect before committing the next offense against the next victim. (See, e.g., People v. Kilpatrick (1980) 105 Cal.App.3d 401, 407, 415, disapproved on other grounds in People v. Bustamante (1981) 30 Cal.3d 88, 102 [consecutive sentences for oral copulation and rape occurring “some time later” on same victim while in defendant’s car].) Again, given appellant’s mental illness, the court should consider his ability to reflect and change his behavior in this situation.
c. Circumstances in Aggravation also Supporting Imposition of the Middle Term
Finally, the trial court found additional factors supporting imposition of consecutive sentences, including the crimes’ high degree of callousness, victim vulnerability, planning, as well as that appellant’s conduct posed a serious danger to society. (Rule 4.425(b).) First, the trial court found that appellant’s acts involved a high degree of callousness in that he chose to repeatedly victimize these girls in an environment—a swimming pool—in which they could have suffered additional injury beyond the touchings alone. For example, Joanna testified that when appellant touched her, she felt like she was drowning, and lifeguard Edmisten described that the heads of some of the girls were “dropping backwards” as appellant touched them. (See rule 4.421(a)(1).) However, this callousness finding must be questioned in light of appellant’s delusional disorder.
Second, as the trial court found, the girls who were victimized were particularly vulnerable beyond the fact of their young age. (Rule 4.421(a)(3); see also rule 4.425(b)(3) [“A fact that is an element of the crime may not be used to impose consecutive sentences”].) The victims here had no reason to be alert to the danger of being preyed upon as they swam and played in their bathing suits during a recreational swim session at a public swimming pool. (See People v. Huber (1986) 181 Cal.App.3d 601, 629 [“ ‘Vulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant’s criminal act’ ”]; see also People v. Weaver (2007) 149 Cal.App.4th 1301, 1321 [“ ‘ “[P]articular vulnerability” is determined in light of the “total milieu in which the commission of the crime occurred....” [Citation.]’ [Citation.]”].)
Third, the trial court found that the manner in which the crimes were carried out indicated planning in that these offenses were not merely opportunistic. (See rule 4.421(a)(8).) Rather, appellant came to the Rossi swimming pool in his swimming suit and goggles on two occasions on the same day, during the specific hours of the recreational swim session when many young children were present in the pool in their bathing suits, with the plan to touch young girls as they swam. Moreover, these offenses took place two days after appellant came to the pool during a recreational swim session and touched two young women. This evidence of planning, however, must be considered through the lens of his mental illness.
Fourth, the trial court concluded that appellant poses a serious danger to society. (Rule 4.421(b)(1).) Neither party has referred to the fact that rule 4.421(b)(1) addresses a defendant who has “engaged in violent conduct that indicates a serious danger to society.” (Italics added.) Here, there is no argument that appellant engaged in particularly violent conduct. Hence, the trial court’s consideration of this circumstance in aggravation in determining whether to impose consecutive terms was improper.
In conclusion, appellant was entitled to have the trial court consider at sentencing the compelling mitigating factor that he suffered from a delusional disorder at the time he committed the charged offenses. We find that the mitigating effect of this circumstance on appellant’s culpability “creates a reasonable probability that [it] will affect the sentencing calculus favorably.” (People v. Tatlis (1991) 230 Cal.App.3d 1266, 1274.) This is particularly true in light of the court’s erroneous finding, pursuant to rule 4.421(b)(1), that appellant poses a danger to society and its failure to also consider the impact of appellant’s mental illness when determining the applicability of other potentially aggravating factors. Appellant is entitled to a new sentencing hearing at which this mitigating factor is expressly considered, the plainly inapplicable aggravating factor is excluded from consideration, and four of the five other aggravating factors are reconsidered in light of appellant’s reduced culpability due to his serious mental illness. (See People v. Covino (1980) 100 Cal.App.3d 660, 672.)
DISPOSITION
The judgment of conviction is affirmed. The sentence is vacated and the matter is remanded for resentencing in a manner consistent with the views expressed herein.
We concur: Lambden, J.Richman, J.