APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge. Affirmed in part and reversed in part with directions. (Super.Ct.No. RIF129302).
The opinion of the court was delivered by: King, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant Raymond Eugene Peyton was convicted of one count of committing a lewd act with duress, fear or force on a child under the age of 14, in violation of Penal Code section 288, subdivision (b)(1)*fn2 (count 1), three counts of aggravated sexual assault (penetration by a foreign object), in violation of section 269, subdivision (a)(5) (counts 2-4), and one count of aggravated sexual assault (oral copulation), in violation of section 269, subdivision (a)(4) (count 5). All of the convictions involved the 12-year-old daughter, K., of defendant‟s live-in girlfriend, C. Defendant was sentenced to an aggregate indeterminate term of 66 years to life.
In the published portion of this opinion, we address defendant‟s claim that his defense counsel was ineffective in failing to object to the filing of an amended information at the close of the prosecution‟s case when no preliminary hearing had been held. In the unpublished portion of this opinion, we address defendant‟s claims that (1) there was insufficient evidence to establish that any of the acts were committed with force or duress, and (2) he was unconstitutionally deprived of a jury‟s findings on the facts used for imposition of consecutive sentences. For the reasons we explain, we reverse defendant‟s section 288, subdivision (b) conviction in count 1. In all other respects, we affirm the judgment.
II. THE EVIDENCE PRESENTED AT TRIAL
At the time of the alleged molestations, defendant, a program director, talk host, and newscaster for a radio station in San Bernardino, was in his late 40‟s. He first met K.‟s mother, C., in December 2003. Defendant and C. started dating at that time. When he first met C. she was living in a two bedroom apartment with her children, J. and K. At some point during 2004, defendant cosigned a lease so that C. and her children, J. and K., could move into a house. He moved into the house on August 1, 2004. He lived there until October 4, 2004, at which time he moved out. Defendant testified that the reason for his leaving was that C., who had been previously diagnosed with colon cancer, was irrational and illogical; they would fight over everything on an almost daily basis. C. died on December 9, 2004.
During the fall of 2004, K. was 12 years old. Her father had died when she was three. She had been home schooled for approximately three years. K‟s cousin, J.M., with whom K. went to live following her mother‟s death, described K. as lacking in social skills and able to read and write at only a first grade level. Developmentally she was at the age of about eight. K.‟s older brother J. had brain damage stemming from a roller blade accident.
Following the death of her mother and after moving to J.M.‟s house, K. saw defendant three times.*fn3 After seeing a show about Michael Jackson and his molestation cases, K. did not want to see defendant on a proposed fourth visit. During a conversation with J.M.‟s daughter following the third visit, K. told her she had been molested by defendant. Thereafter, K. told J.M. that defendant had molested her.
J.M. testified that before K. told her about the molestations, defendant had asked to see K. because he wanted to stay in touch with her and felt they were bonded. K. had agreed to see him. There were three visits before K. told J.M. that she did not want to see defendant anymore. In October 2005, K. spoke with J.M. about being molested. K. was crying; she wrote down, "He licked in my privates." K. told J.M. she thought it was normal and it was what dads do. She also said she didn‟t know it was wrong, but after living at J.M.‟s house and learning about things, she realized it was wrong.
At trial, K. testified there were four separate incidents of molestation. They occurred in September 2004, around the time of her birthday, while defendant was living at the house. All of the occurrences were during the nighttime when defendant and K. were watching television. At the time of each instance they were the only two people in the room.
On the first occasion they were on the couch. K. was wearing sweatpants and was lying down on her right side, with her head on defendant‟s lap. Defendant reached his hand inside her pants and touched her vagina with his fingers, under her underwear. He put his fingers just inside the lips of her vagina and did not remove her underwear. He asked K. if it felt good, and she said "yes." K. testified she answered "yes" because she thought that was what defendant wanted to hear.
The second incident happened in either the living room or entertainment room. K. was on the couch watching television. Defendant came to the couch. He reached his hand inside her pants and he inserted his fingers into her vagina. K. believed she was lying in the same position as during the first incident. She did not remember how long the touching continued.
On the third occasion, K. and defendant were on the couch watching television. Defendant was next to the arm of the couch; K. had her head on the arm of the couch and was lying on her back with her upper torso across his lap. He pulled her sweatpants and underwear down to her thighs and started rubbing her legs; shortly thereafter he started touching her vagina with his fingers. She believed he moved her to the edge of his lap by scooting her out a little; in doing so, he grabbed her by the upper bicep and pulled her up. He then bent down and put his tongue into her vagina.
The fourth and last incident occurred in the entertainment room. The lights were off and the television was on. There was a blanket over her at the time. She was wearing jeans with a belt. He unbuckled her belt and reached his hand inside her pants underneath her underwear and rubbed the top of her vagina with his fingers. Her mother walked into the room while this was happening. She thereafter rebuckled her pants.*fn4
K. testified that she did not think defendant was doing anything wrong or against the law during any of the incidents. Nor did she feel embarrassed at the time the conduct was happening. She went along with defendant touching her because she thought that‟s what he wanted. She further stated she did not feel she had a choice in the matter and felt pressured to let him touch her vagina. One of the reasons she did not tell anyone right away was she thought it was partly her fault for letting it happen. She was also concerned her older brother J. would be accused of committing the molestations.*fn5
Defense evidence was provided by the testimony of defendant and his cousin. Defendant denied the molestations.*fn6 The essence of the defense evidence was that during C.‟s life there had been discussions about defendant adopting J. and K., and C. wanting him to adopt the children. Some of these discussions occurred in front of both J. and K. In September or early October 2004, defendant announced that he was not going to adopt the children. This news threw K. into a rage.
According to defendant and his cousin, who was present at the house prior to going to a San Francisco 49ers game with defendant, K. stated, after hearing the announcement: ""My father had died and left me. My mother is dying. My stepfather treated me like a maid. I thought you were different. You were like a father to me. I thought you were different, but you‟re not. I wish I could hurt you like you‟ve hurt me.‟"*fn7 Aside from the defense that K.‟s accusations were fabricated to get back at defendant for his failure to adopt J. and K., there was also subtle innuendo that J. was the perpetrator of the molestations.
A. Defendant's Section 288, Subdivision (b) Conviction in Count 1 Must Be Reversed, But All Other Charges Were Properly Pleaded
In October 2006, the prosecution filed an amended complaint charging defendant with four counts of aggravated sexual assault, specifically, three counts of oral copulation (§§ 269, subd. (a)(4), 288a) and one count of sexual penetration (§§ 269, subd. (a)(5), 289, subd. (a).) In December 2006, defendant waived his right to a preliminary hearing, and the prosecution filed an initial information charging defendant with the same crimes charged in the amended complaint. (§ 737 ["All felonies shall be prosecuted by indictment or information," subject to exceptions not applicable here].) Thereafter, the prosecution filed two amended informations. The first amended information was filed on the first day of trial; the second amended information was filed following the presentation of the prosecution‟s case. Both amended informations changed the charging allegations to allege three counts of sexual penetration and one count of oral copulation, rather than three counts of oral copulation and one count of sexual penetration as had been alleged in the amended complaint and initial information. The second amended information added a fifth count of aggravated lewd conduct in violation of section 288, subdivision (b)(1).
Defendant claims his trial counsel was ineffective in failing to object to the filing of the first and second amended informations on the ground they alleged crimes that differed from those alleged in the amended complaint and, on the further ground that the newly alleged crimes were not shown by the transcript of any preliminary hearing. On this basis, he claims his section 288, subdivision (b), or lewd act conviction, and two of his sexual penetration convictions must be reversed.
We agree that defendant‟s section 288, subdivision (b) conviction in count 1 must be reversed, because it constituted an additional charge not pled in the amended complaint to which defendant waived his right to a preliminary hearing. We further conclude, however, that each of defendant‟s four section 269 convictions in counts 2 through 5 were effectively pleaded in the amended complaint and that there was not a substantial variance between the amended information upon which defendant was convicted and the amended complaint. Accordingly, we affirm defendant‟s convictions in counts 2 through 5.
Suffice it to say, the pleadings are a mess. In March 2006, the People filed a felony complaint alleging in four counts that defendant violated section 288, subdivision (a). While the underlying conduct is not identified, it was alleged that the acts took place in October and November 2005, as opposed to 2004. In October 2006, an amended complaint was filed, alleging in three counts that defendant violated section 269, subdivision (a)(4) (the underlying conduct of which was oral copulation in violation of § 288a) and in a fourth count, section 269, subdivision (a)(5) (the underlying conduct being sexual penetration in violation of § 289, subd. (a)). It was again contended that the conduct occurred in 2005. In December 2006, defendant waived his right to a preliminary hearing. Thereafter, an information that mirrored the amended complaint was filed. Defendant was arraigned and pled not guilty. Thus, as of the date of waiving his preliminary hearing, defendant was on notice that the charged underlying conduct involved three instances of oral copulation and one incident of sexual penetration, each in violation of section 269 and all occurring in 2005. On July 2, 2007, the first day of trial, the People filed an amended information alleging that the underlying acts occurred in 2004. While keeping the same number of counts, the allegations were changed to allege that three of the underlying acts involved sexual penetration in violation of section 269, subdivision (a)(5) and one involved oral copulation in violation of section 269, subdivision (a)(4).
On July 10, following the presentation of the People‟s case, the prosecutor orally moved to amend the ...