Opinion
C078361
05-30-2018
THE PEOPLE, Plaintiff and Respondent, v. GORDON ALLEN WILSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13F05242)
Defendant Gordon Allen Wilson molested K.L., who was about eight years old, on many occasions when she was visiting his home. Convicted of 13 counts of committing a lewd act on a child (Pen. Code, § 288, subd. (a)) and sentenced to consecutive terms totaling 27 years in state prison, defendant appeals. He contends (1) the trial court negated the intent element of section 288(a) by instructing the jury that motive is not an element of the crime; (2) the trial court abused its discretion by denying probation; and (3) the trial court abused its discretion by imposing consecutive terms. We conclude (1) intent and motive are not synonymous, so the jury instructions did not negate the intent element of section 288(a); (2) the trial court did not abuse its discretion by denying probation; and (3) the trial court did not abuse its discretion by imposing consecutive terms.
Hereafter we refer to this statute as section 288(a). Other undesignated statutory references are to the Penal Code.
We will affirm the judgment.
BACKGROUND
K.L.'s family lived next door to defendant and his wife, beginning in 2001. K.L. was born in 2005. The two families were close, and defendant was like a grandfather to K.L.
At times, when K.L. was alone with defendant playing board games, defendant hid dice in his pants and had K.L. reach in to retrieve them, touching his penis. He also lifted up his shorts and showed his "privates" to K.L. At other times, defendant changed his clothing in front of K.L. and asked her to look at his penis. On one occasion, defendant opened a pornographic website on the computer while K.L. was on his lap.
The charges in this case were based on incidents that occurred after K.L.'s sister was born in January 2013 until July 2013. Defendant gave K.L. what they called "VIP massages." This happened in his bedroom or in a boat that was parked on the side of the house. She testified that the massages happened 15 or 16 times in the bedroom and more than five times in the boat. During these massages, defendant removed K.L.'s clothing. He rubbed various areas of her body, including her chest and buttocks, as well as her vagina, both externally and internally. Once, defendant had K.L. massage his penis.
The district attorney charged defendant by information with 13 counts of committing a lewd act on a child under 14 (§ 288(a)), as follows:
Count one: "touched victim's vagina on boat (first time)";
Count two: "touched victim's vagina on boat (time other than in Count One)";
Count three: "touched victim's breast on boat (first time)"
Count four: "touched victim's breast on boat (time other than in Count Three)";
Count five: "rubbed victim's buttocks on boat (first time)";
Count six: "rubbed victim's buttocks on boat (time other than in Count Five)";
Count seven: "touched defendant's penis while playing board game in living room (first time)";
Count eight: "touched defendant's penis while playing board games in living room (time other than in Count Seven)";
Count nine: "touched victim's vagina in defendant's bedroom (first time)";
Count ten: "touched victim's vagina in defendant's bedroom (time other than in Count Nine)";
Count eleven: "touched victim's breast in defendant's bedroom (first time)";
Count twelve: "touched victim's breast in defendant's bedroom (time other than in Count Eleven)";
Count thirteen: "touched defendant's penis in boat."
A first jury empaneled to try defendant was unable to reach a unanimous verdict, so the trial court declared a mistrial.
A second jury convicted defendant on all counts.
The trial court denied defendant's request for probation and sentenced him to the lower term of three years on count one, followed by consecutive terms of two years (one-third the middle term) on each of the other 12 counts, for an aggregate sentence of 27 years in state prison.
DISCUSSION
I
Defendant contends the trial court erred by instructing the jury using CALCRIM Nos. 370 and 1110. CALCRIM No. 370 provides that motive is not an element of the crimes charged, and CALCRIM No. 1110 provides that an element of committing a lewd act on a child (§ 288(a)) is that the defendant committed the act with an intent to sexually arouse or gratify himself or the victim. Defendant asserts that motive and intent are synonymous, so CALCRIM No. 370 negated the intent element of CALCRIM No. 1110, reducing the prosecution's burden of proof and denying defendant a fair trial. We conclude that motive and intent are not synonymous and that the trial court properly gave both instructions.
Defendant failed to cite to the record to support his contention that the trial court gave CALCRIM Nos. 370 and 1110. (Cal. Rules of Court, rule 8.204(a)(1)(C).) While failure to cite to the record may result in forfeiture of an issue (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239), we elect to disregard the noncompliance in this instance. (Cal. Rules of Court, rule 8.204(e)(2)(C).)
"[I]nstructional error relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense violates the defendant's rights under both the United States and California Constitutions." (People v. Flood (1998) 18 Cal.4th 470, 479-480.) "An appellate court reviews the wording of a jury instruction de novo and assesses whether the instruction accurately states the law." (People v. O'Dell (2007) 153 Cal.App.4th 1569, 1574.)
The relevant portion of the section 288(a) instruction, CALCRIM No. 1110, as given here, requires the People to prove the "defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child." The trial court also instructed the jury with CALCRIM No. 370, which states: "The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether the defendant had a motive."
Defendant states, without authority, that motive is an element of a section 288(a) offense. He argues: "To convict a defendant of violating section 288, subdivision (a), the prosecution must prove motive, i.e., that his reason for committing the offense was to arouse or appeal to his lust, passions or sexual desires, or those of the child. (§ 288, subd. (a).)" With this argument, defendant essentially assumes that intent and motive are the same, but he provides no authority for that proposition. In support of his argument that the jury was improperly instructed with CALCRIM Nos. 370 and 1110, he cites a case involving a statute that includes motive as an element. (See People v. Maurer (1995) 32 Cal.App.4th 1121, 1126-1128 [the statute at issue (now § 647.6, subd. (a)(2)) required the prosecution to prove defendant was " 'motivated by an unnatural or abnormal sexual interest in children' "].)
An appellate brief must "support each point by argument and, if possible, by citation of authority." (Cal. Rules of Court, rule 8.204(a)(1)(B).) When a party fails to cite authority or present argument, the party forfeits the issue on appeal. (Estate of Cairns (2010) 188 Cal.App.4th 937, 949.) An assumption that intent and motive are synonymous is neither authority nor argument.
In any event, motive and intent are not synonymous. They are separate and distinct mental states. (People v. Hillhouse (2002) 27 Cal.4th 469, 504 (Hillhouse).) In Hillhouse, the defendant argued that, because he was charged with specific intent crimes, the trial court erred by instructing that motive is not an element of the charged offenses. The California Supreme Court rejected the argument: "Motive describes the reason a person chooses to commit a crime. The reason, however, is different from a required mental state such as intent or malice." (Ibid.)
In defendant's reply brief, he attempts to establish that motive and intent are synonymous. But the cases upon which he relies predate Hillhouse, supra, 27 Cal.4th 469. Since 2002, the California Supreme Court has never used motive as a synonym for the intent required for a section 288(a) offense. (See, e.g., People v. Shockley (2013) 58 Cal.4th 400, 404; People v. Lopez (1998) 19 Cal.4th 282, 289.)
Defendant's contention is without merit because giving CALCRIM No. 370 did not negate the intent element of the section 288(a) offense.
II
Defendant next contends the trial court abused its discretion when it denied probation and sentenced him to prison. To the contrary, the denial of probation was well within the trial court's broad discretion.
Trial courts have broad discretion to grant or deny probation. (People v. Sizemore (2009) 175 Cal.App.4th 864, 879.) Rule 4.414 of the California Rules of Court lists "[c]riteria affecting the decision to grant or deny probation."
Defendant has the burden of demonstrating the trial court exercised its discretion in an " 'irrational or arbitrary' " manner, and we will not reverse " 'merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." ' " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
In this case, the trial court gave the following reasons for denying probation:
"The court . . . has considered the factors listed in California Rules of Court [rule] 4.414, and based upon those factors denies probation. Specifically, the court finds that [defendant]'s crimes were particularly serious, given the repeated instances of child molestation under[] subdivision (a)(1) of that rule of court.
"In addition, the court finds the victim in this case was particularly vulnerable being eight year[s] old at the time of the crimes and unable to understand the nature of the acts that [defendant] perpetrated upon her and the acts done to her under subdivision (a)(3) of that rule of court.
"Finally, the court finds that [defendant] took advantage of a position of trust and confidence in committing these crimes. [K.L.]'s father testified that he looked upon the defendant as a father figure and that [K.L.] considered the defendant to be a de facto grandfather. Using this position of trust, [defendant] was able to be alone with [K.L.] while he committed these despicable acts of molestation.
"While [defendant] has no prior record of criminal conduct and could possibly comply with reasonable terms of probation given his age, pursuant to (b)(1) and (b)(4) of that rule of court, the court nevertheless in weighing all of the factors finds that the factors against the grant of probation outweigh the factors in support of probation. The court at this point is finding that the defendant is not suitable for probation."
Defendant argues there was insufficient evidence of each of the aggravating factors relied on by the trial court, or at least that the circumstance was not as bad as the trial court made it out to be. Each of these arguments fails.
The trial court relied on "the nature, seriousness, and circumstances of the crime" (Cal. Rules of Court, rule 4.414(a)(1)), observing there were repeated instances of child molestation. While defendant acknowledges that he was convicted on 13 counts, he claims many of the counts occurred on the same occasion as others and the crimes were far less serious than other violations of section 288(a) can be. These are not arguments negating the existence of the aggravating factor. The trial court correctly observed that there were numerous instances of molestation and they were, indeed, violations of section 288(a).
Defendant speculates that the trial court may have been relying on uncharged conduct because K.L. made contradictory statements to the effect that the acts may have occurred as many as 50 or 60 times but may have been far less. However, because the evidence supported the trial court's statement that there were repeated instances of molestation, defendant's speculation about whether it may have relied on incidents that were not charged is unjustified.
Also in connection with the nature, seriousness, and circumstances of the crimes, defendant argues K.L.'s allegations "show[ed] that K.L. was permitted at [defendant's residence] but not urged to come over, that she was not induced to stay, but did so on her own accord. Under any gauge, the offenses were the most benign of any possible violations of the statute." This argument strains credulity. Molesting this child, however it was accomplished, was a serious criminal offense, not to be minimized as something benign, and the molestations occurred numerous times.
Defendant claims the trial court was wrong in stating that the victim was particularly vulnerable. (See Cal. Rules of Court, rule 4.414(a)(3).) In support of this claim, defendant quotes People v. Clark (1990) 50 Cal.3d 583, at page 638, which states: "The 'particularly vulnerable victim' factor supports imposition of the upper term if the victim is vulnerable 'in a special or unusual degree, to an extent greater than in other cases [and is] defenseless, unguarded, unprotected, accessible, assailable . . . susceptible to the defendant's criminal act.' [Citation.]" He asserts the trial court could not use the victim's age in considering vulnerability because her age was an element of the crime.
That K.L. was particularly vulnerable is supported by the record. She was at defendant's house, isolated from other adults and sometimes taken outside to a boat. She trusted defendant as a de facto grandfather. Moreover, although age is an element of the crimes, there may be a big difference between an eight-year-old and a 14-year-old when it comes to vulnerability, and K.L. was about eight years old at the time of the crimes.
Defendant also contends the trial court erred by saying defendant abused "a position of trust." He claims, "there is no indication that [defendant] used that relationship to forward crimes of which he was convicted." To the contrary, his position of trust, both as to K.L. and her parents, gave him access to K.L. and allowed him to isolate her so that he could commit his crimes.
Finally, defendant faults the trial court for not mentioning that he scored low on a test measuring risk for sexual offense recidivism and that prison will have adverse health effects for him. These matters were in the probation report, which the trial court said it read and considered.
The trial court did not abuse its broad discretion when it denied probation.
III
Defendant further contends the trial court abused its discretion by imposing consecutive rather than concurrent sentencing. The contention is without merit.
"[A] trial court has discretion to determine whether several sentences are to run concurrently or consecutively. [Citations.] In the absence of a clear showing of abuse, the trial court's discretion in this respect is not to be disturbed on appeal. [Citation.] Discretion is abused when the court exceeds the bounds of reason, all of the circumstances being considered." (People v. Bradford (1976) 17 Cal.3d 8, 20.)
When a defendant is convicted of multiple offenses, the trial court must state whether the sentences imposed are to run consecutively or concurrently. (See § 669.) To assist the trial court in the exercise of its discretion, former rule 4.425 of the California Rules of Court lists "[c]riteria affecting the decision to impose consecutive rather than concurrent sentences." Those nonexclusive criteria include that "[t]he crimes involved separate acts of violence or threats of violence," and "[t]he 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." (Cal. Rules of Court, rule 4.425(a)(2) & (3).) "Only one criterion or factor in aggravation is necessary to support a consecutive sentence." (People v. Davis (1995) 10 Cal.4th 463, 552.)
In sentencing defendant to consecutive sentences for each of the subordinate terms, the trial court relied on those two criteria: (1) the crimes involved separate acts of violence and (2) 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.
On appeal, defendant argues the crimes were committed, in his words, "during a short, circumscribed period of time." He also argues that crimes committed during a single encounter, such as on the boat on a certain occasion, should have been sentenced concurrently. But defendant does not claim each crime was not a separate act of violence. Because the trial court may rely on the presence of only one criterion favoring consecutive sentencing, defendant's argument that one of the two criteria was not present does not establish an abuse of discretion. In other words, the trial court did not abuse its discretion in sentencing consecutively because the crimes involved separate acts of violence, a criterion defendant does not challenge. (Cal. Rules of Court, rule 4.425(a)(2).)
In any event, defendant violated section 288(a) on several occasions over a six-month period, even if some of the acts were temporally related to other violations; therefore, the trial court was justified in concluding that the crimes were not committed "so closely in time and place as to indicate a single period of aberrant behavior." (Cal. Rules of Court, rule 4.425(a)(3).)
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, J. I concur: /S/_________
RAYE, P. J. Robie, J.
I concur fully in this opinion. I write separately to urge the Judicial Council Advisory Committee on Criminal Jury Instructions to consider adding a Bench Note to CALCRIM No. 370 recommending this motive instruction not be given in cases such as the instant case involving a violation of Penal Code section 288, subdivision (a) and similar sex offenses.
As exemplified in the instant case, there is a high potential for confusing jurors who may consider the motive of a sex offender the same as the specific intent required for these crimes. Because motive is never required for a conviction in sex offense cases, CALCRIM No. 370 serves no useful purpose and should not be routinely given.
/S/_________
Robie, J.