APPEAL from the Superior Court of Riverside County. Albert J. Wojcik, Judge. Affirmed. (Super.Ct.No. SWF015153)
The opinion of the court was delivered by: Hollenhorst Acting P. J.
CERTIFIED FOR PUBLICATION
Defendant Wayne Frederick Tompkins appeals from his conviction of 11 counts of lewd and lascivious acts with a minor under the age of 14 (Pen. Code,*fn1 288, subd. (a), counts 1 through 11); two counts of penetration of a person under the age of 18 with a foreign object (§ 289, subd. (h), counts 41 through 42); one count of using a minor to perform prohibited acts (§ 311.4, subd. (c), count 44); and four counts of lewd and lascivious acts with a minor under the age of 16 and more than 10 years younger than defendant (§ 288, subd. (c)(1), counts 45 through 48).
Defendant argues the evidence was insufficient to support several of the counts involving victim Jane Doe 2, because (1) the corpus delicti rule prohibited convicting him of acts described only by his out-of-court statements, (2) the victim's generic testimony was insufficient to establish his guilt, and (3) with respect to his conviction of a violation of section 311.4, subdivision (c), there was no evidence he filmed the victim. He further contends the trial court erred in permitting a detective to testify as an expert on child sex abuse about victims' difficulties remembering the number of molestations and distinguishing between the times they were molested. Finally, defendant argues the imposition of the upper term for one count violated his constitutional rights to a jury trial and proof beyond a reasonable doubt. We find no prejudicial error, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
Defendant's victim, Jane Doe 2, is his daughter, who was born in February 1992. Defendant and Jane Doe 2's mother divorced in 1996, and Jane Doe 2 lived with her mother. In 2004 and 2005, Jane Doe 2 visited defendant about twice a month. Jane Doe 2 testified that when she was 11 or 12 years old, defendant began molesting her during some but not all of the visits. She testified that he molested her more than once and less than 50 times. He touched her on her breasts about four times and digitally penetrated her vagina once or twice, but possibly more times than that. Once when she was on the Internet, using a Webcam while talking to males, defendant gave her a dildo and told her to use it to have fun, and she did so. Jane Doe 2 testified that she had difficulty remembering back to 2004 and 2005, but she had told the truth when she had been interviewed by a detective.
Investigator Trevor Montgomery of the Riverside County Sheriff's Department testified that he had interviewed Jane Doe 2 in January 2006. She had cried and had been distraught and embarrassed during the interview. She told Investigator Montgomery that defendant had touched her on the shoulders, arms, sides, back, legs, hips, thighs, buttocks, breasts, and vagina from February 2004 through late 2005. Defendant had digitally penetrated her vagina "three specific times" or "two or three times." Once, defendant caught her having conversations with adult men on the Internet, and he gave her a Webcam and vibrator so she could masturbate online for the men, which she did.
Jane Doe 3 was 14 years old in 2005 when she lived about three blocks away from defendant. Defendant gave her and her sister kittens, and she began visiting defendant with her sister or a friend, Jane Doe 4. Defendant provided the girls with alcohol and marijuana. More than once, defendant said inappropriate things to her, put his hand on her shoulder, and tried to touch her breasts or put his hand on her thigh and tried to move it toward her vaginal area. She saw defendant trying to touch Jane Doe 4 in a similar way several times.
Jane Doe 4 was born in 1990, and she also lived down the street from defendant. She testified defendant often hugged her and caressed her shoulder. If he had tried to kiss her, she would have pushed him away.
Investigator Reece Burchett testified that Jane Doe 4 had told him defendant put his head in her lap and that of Jane Doe 3 and hugged them. Defendant told the girls they were beautiful, and he asked Jane Doe 4 to kiss him and have sex with him. When he tried to kiss her, she turned her head so he kissed her on the cheek. Jane Doe 4 told the investigator she had seen defendant touch or slap the breast of Jane Doe 3 four times.
D.A., a witness who had been 14 in 2003, testified she had lived next door to defendant. Once when she had visited his house to borrow some bread, defendant had told her she had beautiful eyes and he dreamed of making love with her and her mother.
Investigator Montgomery testified that he had interviewed defendant twice in January 2006. The interviews were recorded, and edited portions of the recordings were played for the jury. Defendant told the investigator he had seen D.A.'s breasts and pubic hair through gaps in her loose clothing, and he wanted to make love to her. He said he had imagined a sexual relationship with D.A. and her mother together.
Defendant told Investigator Montgomery about giving kittens to Jane Doe 3. He admitted he had bought alcohol and marijuana and had parties with Jane Does 3 and 4 over the course of several days. He told the girls marijuana made him horny. Jane Doe 4 had been on his computer and had exposed her bra and breasts. He and Jane Doe 4 "tag[ed] and tickl[ed]" each other in the kitchen, and he saw her underwear when she bent down. He told her he wanted to make love to her. He also described watching Jane Doe 3 at the computer and wanting to touch her.
Defendant told Investigator Montgomery he had had some form of sexual contact with his daughter, Jane Doe 2, almost every time she visited him from February or March 2004 through November 2005. He had taught her how to kiss. He had her sit on his lap, and she moved around. He came up behind her while she was on the computer, and he touched her breasts. Another time while she was on the computer, he knelt beside her and touched her. He also described sitting in the back of his son's car with her and touching her breasts, having her lie on top of him with her breasts against his chest, squeezing her buttocks and asking her to shower with him, lying on top of her, lying next to her on the couch and feeling her breasts and putting his finger in her vagina. Defendant said he learned that Jane Doe 2 had met a man on an Internet chat room, and he had given her a dildo to use while on the Webcam and had offered her advice on how to start.
The jury found defendant guilty of 11 counts of lewd and lascivious acts with a minor (Jane Doe 2) under the age of 14 (Pen. Code, § 288, subd. (a)); two counts of penetration of a person under the age of 18 (Jane Doe 2) with a foreign object (§ 289, subd. (h)); one count of using a minor (Jane Doe 2) to perform prohibited acts (§ 311.4, subd. (c)); and four counts of lewd and lascivious acts with a minor under the age of 16 and more than 10 years younger than defendant (two of those counts involved Jane Doe 3 and two counts involved Jane Doe 4) (§ 288, subd. (c)(1).) The jury found defendant not guilty of 29 additional counts of section 288, subdivision (a) as to Jane Doe 2.
The trial court sentenced defendant to the upper term of eight years on count 1, consecutive terms of two years (one-third the middle term) for each of counts 2 through 9, and consecutive terms of eight months (one-third the middle term) for each of counts 41, 42, and 44 through 48, for a total of 28 years eight months. The court also imposed six-year terms for each of counts 10 and 11, but stayed those terms under section 654.
Additional facts are set forth in the discussion of the issues to which they pertain.
Defendant argues the corpus delicti rule prohibited convicting him of acts described only by his out-of-court statements, and therefore, his conviction of six of the counts involving Jane Doe 2 should be reversed because the only evidence to support ...