Opinion
D073854
07-26-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DOUGLAS WHEAT, Defendant and Appellant.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Tami Hennick and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1400826) APPEAL from a judgment of the Superior Court of Riverside County, Bernard J. Schwartz, Judge. Affirmed in part; reversed in part, and remanded. Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Tami Hennick and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
In a sexual molestation case involving two child victims, a jury found Michael Douglas Wheat guilty of five counts of sexual intercourse or sodomy with a child under 10 (Pen. Code, § 288.7, subd. (a)); one count of oral copulation of a child under 10 (§ 288.7, subd. (b)), and six counts of committing a lewd act on a child under 14 (§ 288, subd. (a)). The jury also made a true finding that Wheat committed qualifying sex offenses against multiple victims (§ 667.61, subd. (e)(4)). The trial court sentenced Wheat to an indeterminate prison term of 140 years to life.
Unless otherwise indicated all further statutory references are to the Penal Code.
Wheat contends that the trial court violated his right to due process by instructing with a modified version of CALCRIM No. 1191 which stated that if the jury decided that Wheat committed one of the charged sex offenses, it could conclude that he was disposed to commit the other charged sex offenses. Wheat acknowledges that we are bound to follow our Supreme Court's decision in People v. Villatoro (2012) 54 Cal.4th 1152, 1156 (Villatoro), which approved the modified version of CALCRIM No. 1191 used here, and he raises the issue solely to preserve it for further proceedings. We accordingly reject the argument.
Wheat also contends that insufficient evidence supports the verdicts on counts 1, 2, 7, 8 and 9 because the evidence does not support a finding that he penetrated the victims as required for the crime of sexual intercourse or sodomy with a child under 10 in violation of section 288.7 subdivision (a). We conclude that Wheat's challenge to the sufficiency of the evidence has merit as to count 2, but that the other counts are supported by substantial evidence.
Accordingly, we reverse the verdict on count 2, and in all other respects we affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In 2014, Jane Doe 1 and Jane Doe 2 disclosed at separate times to forensic interviewers that Wheat had sexually molested them, and they both later testified on that subject at trial.
When Jane Doe 1 was four years old, she told the forensic interviewer that Wheat "put his wiener in there," referring to her "cooter," which she described as the part of her body she uses to pee. Jane Doe 1 stated that it happened "just one" time. She also indicated that Wheat put his mouth on her genital area. The interviewer showed Jane Doe 1 an anatomical drawing of a girl and asked her to circle "the part of the body you said [Wheat] put his wiener in." Jane Doe 1 circled the "butt" and the genital area. When the interviewer then asked Jane Doe 1, "Okay, what happened when [Wheat] put his wiener in there?" Jane Doe 1 said, "In my butt." The interviewer followed up with the question, "What did that feel like?" Jane Doe 1 stated, "It hurting." The forensic interviewer attempted to elicit more information from Jane Doe 1 on that issue, but it was late in the interview, and Jane Doe 1 became unresponsive and stated that she wanted to go home.
From our review of the video recording of the interview, it is not possible to see what is depicted on the drawing shown to Jane Doe 1 or what she circled in response to the forensic interviewer's question. However, the forensic interviewer testified at trial, "I remember she circled the vagina and the butt."
Two and a half years later during her trial testimony, Jane Doe 1 was reluctant to talk about specific acts of molestation, but she testified that Wheat had orally copulated her and did something else to her "that was bad," but she didn't want to talk about it. At one point during her trial testimony, Jane Doe 1 stated that Wheat's "private" never touched her "butt" or her "pee-pee." She also stated that she only remembered "half" of what happened, which was "a long time ago."
When Jane Doe 2 was eight years old, she told a forensic interviewer that Wheat molested her many times in bed when she was seven and eight years old. Jane Doe 2 stated that Wheat "was putting his private part in mine," and clarified that she was referring to both her "pee-pee" and her "butt." Jane Doe 2 stated that when Wheat put his "wiener" in her "pee-pee" it "just hurt." She stated that when she would turn around the other way in bed, Wheat "does it to my butt," and it hurts. Referring to Wheat putting his penis in her "butt," Jane Doe 2 stated, "He just leaves it there and pushes it in harder and harder." Jane Doe 2 described one time that she cried because Wheat hurt her. On that occasion, Wheat got his "wiener" in the right position "and then he started pushing," and "it hurt really bad." Jane Doe 2 said that the last time Wheat molested her, he used his "wiener" with her "pee-pee" and "butt," and that he always does it both places on her body. The forensic interviewer asked, "Could you feel anything in your butt or your pee-pee?" Jane Doe 2 answered, "His."
At trial, Jane Doe 2 was 11 years old. She testified that she" got raped" by Wheat, and that his "private" touched her "front private" and her "butt." Jane Doe 2 was asked, "Did his . . . private touch in between—not—not inside, but in between the lips of your private?" Jane Doe 2 answered, "No." Jane Doe 2 was asked "Did it go inside your butt at all? She answered, "No." Jane Doe 2 could not remember at trial whether Wheat hurt her.
At trial, the jury also heard testimony from a woman to whom Jane Doe 2 first disclosed the molestation in 2014. The woman testified that Jane Doe 2 told her that Wheat "put his private part inside of her."
A doctor who performed a forensic medical examination of Jane Doe 1 testified that the findings were normal, and thus she could not tell whether sexual abuse had occurred. The doctor also testified that the "majority" of sexual penetration cases of small children involve "vulvar coitus," in which the perpetrator inserts his penis "through the outer labia or the buttocks," but not through the hymen. As the doctor described, the perpetrator's penis "goes between those outer lips and kind of rubs up and down. Or it can go between the buttocks." The doctor also stated that "just penetration through a buttocks could be uncomfortable to the point of hurt."
Wheat was charged with five counts of sexual intercourse or sodomy with a child under 10 (§ 288.7, subd. (a); counts 1, 2, 7, 8, and 9), with Jane Doe 1 as the victim in counts 1 and 2, and Jane Doe 2 as the victim in counts 7 through 9; one count of oral copulation of a child under 10, with Jane Doe 1 as the victim (§ 288.7, subd. (b); count 3), and six counts of committing a lewd act on a child under 14 (§ 288, subd. (a); counts 4, 5, 6 10, 11 12). The jury found Wheat guilty on all counts, and further found that he committed the crimes against more than one victim.
The trial court sentenced Wheat to prison for an indeterminate term of 140 years to life, which consisted of concurrent 25-year-to-life prison terms on counts 1, 2, 7, 8, and 9, and a 15-year-to-life term on count 3. The trial court stayed the sentence on counts 4, 5, 6, 10, 11, and 12 pursuant to section 654.
II.
DISCUSSION
A. The Trial Court Did Not Err by Instructing with a Modified Version of CALCRIM No. 1191
The trial court instructed the jury with a modified version of CALCRIM No. 1191, which allowed the jury to consider evidence that Wheat committed some of the charged sex offenses in this case as propensity evidence to support a finding that he committed other charged sex offenses. The jury was instructed:
"The People presented evidence that the defendant committed the crime of: sexual intercourse or sodomy with a child 10 or under as alleged in counts 1, 2, 7, 8, 9; oral copulation of a child 10 or under in count 3; and lewd act with a child under 14 in counts 4, 5, 6, 10, 11, and 12. These crimes are defined for you in the instructions for those crimes. If you decide that the defendant committed one of these charged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit the other charged crimes, and based on that decision also conclude that the defendant was likely to and did commit the other offenses charged. If you conclude that the defendant committed a charged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove the defendant is guilty of another charged offense. The People must still prove each
element of every charge beyond a reasonable doubt before you may consider one charge as proof of another charge."
The instruction is premised on Evidence Code section 1108, subdivision (a), which governs the admissibility of propensity evidence in prosecutions for sex crimes. Under that provision, "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." (Evid. Code, § 1108, subd. (a).)
The trial court approved this instruction after considering and rejecting defense counsel's argument that the instruction was unduly prejudicial and not appropriate in this case. In the course of its ruling, the trial court expressly relied on Villatoro, supra, 54 Cal.4th 1152, in which our Supreme Court rejected a challenge to a modified version of CALCRIM No. 1191, which was substantially similar to the instruction given here. Villatoro approved the instruction, reasoning that "[w]hether an offense is charged or uncharged in the current prosecution does not affect in any way its relevance as propensity evidence." (Id. at p. 1164.) Wheat contends that Villatoro was wrongly decided and should be reconsidered by our Supreme Court. He contends that by instructing with the modified version of CALCRIM No. 1191, the trial court violated his constitutional right to due process.
The People contend that Wheat forfeited the right to challenge CALCRIM No. 1191 on appeal, as defense counsel did not object to the instruction on the constitutional ground that Wheat now advances. We reject the argument, and conclude that in light of the clear precedential value of Villatoro, which forecloses a constitutional argument and which defense counsel acknowledged in the trial court, it would have been futile for defense counsel to have pursued a specific objection on constitutional grounds. Accordingly, we conclude that Wheat has not forfeited his argument to argue on appeal that Villatoro was wrongly decided, and that, accordingly, CALCRIM No. 1191 should not have been given because it infringes his right to due process. Because we conclude the issue was not forfeited, we also need not consider Wheat's contention that defense counsel was ineffective for failing to preserve the issue.
In Villatoro, the challenged instruction stated: " 'The People presented evidence that the defendant committed the crime of rape as alleged in counts 2, 4, 7, 9, 12 and 15 and the crime of sodomy as alleged in count 14. These crimes are defined for you in the instructions for these crimes. [¶] If you decide that the defendant committed one of these charged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit the other charged crimes of rape or sodomy, and based on that decision also conclude that the defendant was likely to and did commit the other offenses of rape and sodomy charged. If you conclude that the defendant committed a charged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove the defendant is guilty of another charged offense. The People must still prove each element of every charge beyond a reasonable doubt and prove it beyond a reasonable doubt before you may consider one charge as proof of another charge.' " (Villatoro, supra, 54 Cal.4th at p. 1167.)
Wheat does not suggest that the trial court failed to follow the procedures required by Villatoro, including conducting an analysis under Evidence Code section 352 prior to instructing with a modified version of CALCRIM No. 1191. (Villatoro, supra, 54 Cal.4th at p. 1168.) Wheat's sole argument is that Villatoro was wrongly decided.
Wheat acknowledges that we are bound by our Supreme Court's decision in Villatoro, supra, 54 Cal.4th 1152. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Nevertheless, Wheat raises the challenge to CALCRIM No. 1191 to preserve the issue for further proceedings. As we are bound by our Supreme Court's decision in Villatoro, we reject Wheat's constitutional challenge to CALCRIM No. 1191 on that ground and do not further consider the issue. B. Substantial Evidence Supports All but One of the Counts Requiring Penetration
We next consider Wheat's challenge to the sufficiency of the evidence to support the verdict in each of the counts charging him with sexual intercourse or sodomy with a child under 10. (§ 288.7, subd. (a).)
In considering a challenge to the sufficiency of the evidence, "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. . . . We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. . . . If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. . . . 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Albillar (2010) 51 Cal.4th 47, 60, citations omitted.)
As we have explained, Wheat was convicted of five counts of sexual intercourse or sodomy with a child under 10. (§ 288.7, subd. (a).) Counts 1 and 2 pertained to Jane Doe 1, and counts 7 through 9 pertained to Jane Doe 2.
Section 288.7, subdivision (a), makes it a crime for a person 18 years of age or older to "engage[] in sexual intercourse or sodomy with a child who is 10 years of age or younger." (§ 288.7, subd. (a).) The prosecution did not specify to the jury whether it was relying on an act of sodomy or an act of sexual intercourse as to any of the counts, and thus the jury could have relied on evidence of either type of act to find Wheat guilty on a specific count.
For the purposes of section 288.7, subdivision (a), "[s]exual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis." (People v. Mendoza (2015) 240 Cal.App.4th 72, 79.) Specifically, at a minimum, the statute "require[s] penetration of [the girl's] labia majora, not her vagina." (People v. Dunn (2012) 205 Cal.App.4th 1086, 1097.) Sodomy is defined in the Penal Code as "sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy." (§ 286, subd. (a); see also Mendoza, at p. 79 [relying on definition of sodomy in § 286, subd. (a) to define the term in § 288.7, subd. (a)].) Sodomy "requires penetration past the buttocks and into the perianal area but does not require penetration beyond the perianal folds or anal margin." (People v. Paz (2017) 10 Cal.App.5th 1023, 1038 (Paz), italics added.) Case law emphasizes "that mere penetration of the buttocks is not sufficient to establish penetration of the anal opening. 'An intrusion into the space between a person's buttocks, while perhaps a necessary step on the path to intrusion of the anal opening, is not, in itself, an intrusion into the anal opening.' " (Ibid.)
Wheat contends that insufficient evidence supports a finding on any of the counts in which he was found guilty of sexual or intercourse or sodomy with Jane Doe 1 or Jane Doe 2 because the evidence does not establish that his penis penetrated the genitals or the anus. We consider the evidence as to each of the girls in turn.
At trial, the jury viewed the forensic interview of Jane Doe 1. During the interview, Jane Doe 1 stated that Wheat "put his wiener in there," referring to her "cooter," which she described as the body part she uses to pee. Jane Doe 1 specified that it happened only one time. A doctor testified that "if a little girl says, ['h]e put his peepee in my peepee,['] it's what we call vulvar coitus. Usually the penis just goes between the outer lips and kind of rubs up and down" and is "more a rubbing between the genital tissue." Taken together, Jane Doe 1's statement to the forensic interviewer that Wheat puts his penis in her "cooter," along with the doctor's description of vulvar coitus, provides substantial evidence in count 1 to support a finding that Wheat penetrated between Jane Doe 1's labia majora with his penis on one occasion.
Because Jane Doe 1 stated that Wheat put his penis in her "cooter" only once, the second charge of sexual intercourse or sodomy with Jane Doe 1 must necessarily be based on the allegation that Wheat committed sodomy during the instance that Jane Doe 1 described as Wheat putting his penis "[i]n my butt." As we have explained, Jane Doe 1 provided very little information on that subject and shut down when the interviewer tried to ask follow up questions. The only thing she stated on the subject was "[i]n my butt" and "[i]t hurting." Further, Jane Doe 1 described oral copulation during her trial testimony, but refused to testify about the other "bad" thing that she said Wheat did to her. The doctor testified that molesters of young girls will often rub a penis between the child's buttocks, and that "just penetration through a buttocks could be uncomfortable to the point of hurt." Based on this evidence, there is simply not enough information about the manner in which Wheat put his penis "in [Jane Doe 1's] butt" as she described. Consistent with the type of act described in the doctor's testimony, Wheat may have simply rubbed his penis between Jane Doe 1's buttocks, with no penetration of any anal structure. That act could have caused Jane Doe 1 to experience a sensation that she described as "it hurting." Because sodomy "requires penetration past the buttocks and into the perianal area," and "mere penetration of the buttocks is not sufficient" (Paz, supra, 10 Cal.App.5th at p. 1038), the evidence is insufficient to support a finding in count 2 that Wheat committed sodomy against Jane Doe 1. We will accordingly reverse the conviction on count 2 because it is not supported by substantial evidence.
In contrast, Jane Doe 2 provided information to the forensic investigator about Wheat's molestation of her that was significantly more detailed and amply supports a finding that Wheat committed at least three acts of sexual intercourse or sodomy with her to support the verdicts in counts 7, 8, and 9.
As an initial matter, the evidence supports a finding that the molestation occurred on numerous occasions. Jane Doe 2 told the forensic interviewer that Wheat molested her over the course of "a long time" when she was seven and eight years old, and that he would do it every time that she was in bed with him, which was often. She also stated that Wheat would molest her genitals and her "butt" on each occasion. From this evidence, a reasonable jury could find that genital molestation and anal molestation both happened at least three times.
The evidence is also sufficient to support a finding that the genital molestation and the anal molestation of Jane Doe 2 involved penetration. In describing the anal penetration to the forensic interviewer Jane Doe 2 stated, "[h]e just leaves it there and pushes it in harder and harder." Further, she described one especially painful incident in which Wheat got his penis in the right position "and then he started pushing," and "it hurt really bad." Because Jane Doe 2 described Wheat continuously pushing in his penis when anally molesting her, the evidence is sufficient to support a finding that Wheat did not merely rub his penis between her buttocks, but that he actually penetrated her anal opening to some extent by pushing forcefully into her anus with his penis.
The evidence is also sufficient to support a finding that when Wheat touched Jane Doe 2's genitals with his penis, he penetrated at least as far as her labia majora. Jane Doe 2 described the act as "putting his private part in mine," which caused her "pee-pee" to "hurt." She also told the woman to whom she first disclosed the molestation that Wheat "put his private inside of her." Although Jane Doe 2 answered "no" at trial when asked if Wheat's penis touched "in between the lips of your private," the jury was not required to rely on that testimony to find that there was no genital penetration. Significantly, counsel did not clarify at trial whether he was referring to the labia majora or the labia minora, and thus when answering the question Jane Doe 2 may have meant that Wheat did not penetrate her labia minora even though he did rub between her labia majora. Further, Jane Doe 2 was 11 years old when she testified at trial and did not have a good memory for many of the things that she was asked about from the time when she was seven and eight years old. The jury could have discounted her trial testimony on that basis and could have relied instead on what she told the forensic interviewer about Wheat putting his penis "in" her "pee-pee." Moreover, as we have explained, the doctor who testified stated that a molester who touches a young girl's genitals with his penis will usually rub his penis in between the labia majora, and the jury could have relied on that testimony in understanding what Jane Doe 2 was describing to the forensic interviewer. Based on this evidence, the jury could reasonably conclude that when Jane Doe 2 stated that Wheat put his penis in her "pee-pee" she was referring to penetration between the labia majora.
Accordingly, substantial evidence supports the verdicts in counts 7 through 9 that Wheat committed three acts of sexual intercourse or sodomy with Jane Doe 2.
Wheat's final contention is that his indeterminate sentence of 140 years to life constitutes cruel and unusual punishment under the State and federal constitutions. Because we reverse the conviction on count 2, the trial court will be required to resentence Wheat. Thus, Wheat's sentence is not yet final, and his cruel and unusual punishment argument is not ripe for review.
DISPOSITION
The conviction in count 2 is reversed for insufficiency of the evidence. In all other respects the judgment is affirmed, and this matter is remanded to the trial court for proceedings consistent with this opinion.
IRION, J. WE CONCUR:
NARES, Acting P. J.
GUERRERO, J.