APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson, Judge. Affirmed with directions. (Super.Ct.No. FSB702103)
The opinion of the court was delivered by: Hollenhorst J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant Jamie Lopez challenges his convictions for molesting his two step-daughters, N.E. and C.H. Defendant appeals judgment entered following jury convictions for two counts of the lesser-included offense of misdemeanor battery (Pen. Code, § 242*fn2; counts 1 and 2) and three counts of committing a lewd act upon a child under the age of 14 (§ 288, subd. (a)*fn3; counts 3, 4, and 5). The jury also found true the multiple victims enhancement as to counts 3 through 5. (§ 667.61, subds. (b), (c) & (e).)
Defendant contends the trial court erred in permitting the prosecutor to amend the information to add count 4. Defendant asserts that adding the new count was improper because there was no evidence presented at the preliminary examination supporting the additional offense. Defendant also contends the trial court erred in denying his motion for acquittal as to counts 3 and 4; erred in failing to instruct the jury on the requisite concurrence of act and intent in counts 3 and 4; and erred in precluding cross-examination of N.E. regarding her pregnancy and suicide attempt. As to these contentions, we conclude there was no reversible error and affirm the judgment.
Defendant further argues, and the People agree, the court erred in not giving defendant proper credit for pretrial custody served. The trial court erroneously subtracted 360 days custody credit, rather than 180 days, for counts 1 and 2, and failed to award defendant 97 days work time credit. Defendant was in continuous custody until his sentencing for 647 days. Accordingly, the trial court is directed to modify the judgment to reflect that defendant is entitled to 564 days of credit (744 days (647 97) - 180 days), rather than 324 days credit erroneously awarded by the court. The judgment is affirmed in all other respects.
Defendant and Michelle Lopez married in 1999. Defendant had two daughters of his own, B.L., and a younger daughter, A.L. (born 1990). Michelle also had two of her own daughters, C.H. (born in 1990) and N.E. (born in 1992). In 2001, a Wal-Mart employee notified the police that defendant had dropped off film at Wal-Mart to be developed. The film contained inappropriate photographs of naked girls in the shower, and photos of girls blindfolded, wearing lingerie.
Police Officer Mouwerik investigated the photographs. He took blowups of the photos to local elementary schools and determined that C.H. and N.E. were the girls in the photographs. Officer Mouwerik then went to defendant's apartment. Defendant and Michelle were not home. C.H. told Officer Mouwerik defendant had taken the pictures. When Officer Mouwerik returned 45 minutes later, B.L. was there with C.H. and N.E. B.L. told Officer Mouwerik she had taken the pictures.
When Officer Mouwerik returned a third time that same day, Michelle was home with C.H. and N.E. Officer Mouwerik showed Michelle the photos. Two were of N.E. and C.H. together, naked in the shower. Two additional photos were of C.H. wearing a lingerie top. Michelle said the lingerie top was Michelle's and she gave it to Officer Mouwerik. Michelle also said defendant had called there sometime between Officer Mouwerik's three visits to the apartment.
Officer Mouwerik then spoke to C.H. She again told him B.L. had taken the photos but when questioned further, said defendant had taken the photos. C.H. said that when defendant took the photo of her, in which she was blindfolded, she and N.E. were playing a game in which they searched for coins blindfolded. They called this "the money game."
Officer Mouwerik also spoke to N.E. during the third visit. She initially said that B.L. took the shower pictures but later told Officer Mouwerik defendant told her to say B.L. took the pictures. She said she wanted to protect defendant and began to cry. She did not want defendant to go to jail. N.E. conceded defendant took the photos.
Four days later, on June 12, 2001, Officer Mouwerik spoke to defendant. When asked why he took the picture of C.H. wearing lingerie, defendant responded that "he was still trying to figure that one out." When asked about the photos of C.H. and N.E. naked in the shower, defendant said it was "horseplay."
A Child Protective Services (CPS) worker interviewed the girls. The CPS worker and Officer Mouwerik asked the girls if they had ever been touched inappropriately. The girls said they had not. Defendant was not arrested or charged with any crime at that time.
Six years later, in June 2007, N.E. and defendant got into a loud argument over N.E.'s clothing. N.E. wanted to wear swim-short bottoms under her skirt for her physical education (PE) class. Defendant told her he did not want her wearing such skimpy clothing and took away N.E.'s swimsuit. Defendant yelled at N.E. and kicked her in the leg. N.E. was upset and crying when defendant dropped her off at school. N.E. told her school counselor defendant had kicked her and told her counselor defendant had been molesting her.
At trial, N.E. testified that defendant first touched her when she was around nine years old and had the chicken pox. After N.E. put lotion on to control the itching, she fell asleep on the living room couch naked, with a blanket covering her. N.E. awoke to defendant putting his hand under the blanket, touching her breasts and vaginal area. Defendant was simultaneously rubbing his penis. This incident is the basis of count 1.
N.E. told police detective Deutscher, who was assigned to investigate the molestation, that on two occasions, at the time of the chicken pox incident, defendant had touched her vaginal area while N.E. was sleeping on the couch. N.E. testified defendant had done this at least five times when she was between 10 and 14 years old. Defendant persuaded N.E. not to tell anyone. When she was 11 or 12 years old, defendant told her "You don't want your dad to go to jail right?"*fn4 These allegations are the basis of count 2.
About the same time defendant was molesting N.E., he was also inappropriately touching C.H. at night. C.H. testified that on one occasion, defendant rubbed her body over her clothing, from her leg up to her arm. He also rubbed her breast. She was lying in the bottom bunk bed in her room. Her sisters were sleeping in the other bunk beds. It happened in 2001, when C.H. was about 11 years old. A.L. testified that she saw defendant enter the girls' bedroom, kneel down next to C.H.'s bunk bed, lift up C.H.'s shorts, and rub her bottom as he masturbated. On another occasion, when C.H. fell asleep on the living room floor, with defendant sitting next to her, she discovered upon awaking that her underwear was missing. Defendant told her she peed on herself. Count 5 is based on these allegations.
N.E. and C.H. further testified that defendant took pictures of them in the shower, beginning when N.E. was about 10 years old and C.H. was 11. N.E. and C.H. noticed that there were video cameras hidden in the house, including in the girls' bathroom and bedroom. The bathroom camera was pointed toward the shower.
N.E. and C.H. testified that defendant played "the money game" with them. He directed them to dress in lingerie or bathing suits, and look for money blindfolded. They played this several times. Counts 3 and 4 are based on the money game allegations.
Defendant also would direct them to put on their mother's lingerie and take pictures of them posing. This continued until shortly before N.E. reported defendant's abuse to the police in 2007. When officers searched defendant's apartment, they found film and photos inside a comic book in the master bedroom. There were photos of C.H.'s and N.E.'s vaginal areas. They also found a red negligee and skirt N.E. was wearing in the photos.
After defendant was arrested and CPS removed the girls from Michelle and defendant's custody, defendant sent N.E. letters that she said made her feel bad about what had happened to defendant. N.E. attempted to recant some of her allegations.
Dr. Jody Ward, a clinical and forensic psychologist testified as an expert on Child Sexual Abuse Accommodation Syndrome.
Defense investigator, Victor Paul, testified that about a month after N.E. reported the molestation in June 2007, he interviewed N.E. She told him defendant would not let her visit her boyfriend because he was 18 years old. N.E. told Paul that what she had told the police was incorrect. The incidents she claimed happened in 2007 did not occur. She said she wanted to clear up the inaccuracies in her original report and claimed she had lied because she was upset with defendant.
Defendant's brother, A.M., testified that after defendant's arrest, he had spoken to the girls about their allegations. N.E. told him defendant was strict with her and did not let her see her boyfriend. She also told him she had made up the abuse allegations because she was upset with defendant.
Defendant contends the trial court erred in permitting the prosecutor to amend the information to add count 4, in violation of section 1009. Defendant claims there was no evidence of this new offense presented at the preliminary examination. Count 4 of the second amended complaint alleges that on January 1, 2001, through June 2, 2003, defendant committed a lewd act upon C.H., a child under the age of 14 years, in violation of section 288(a). Count 4 is based on the money game incident.
A criminal complaint was filed and defendant was arraigned in June 2007, for molesting his stepdaughters, N.E. and C.H., between 2001 and 2005.
During the preliminary hearing in June 2007, police detectives Deutscher and Kelly testified they investigated molestation allegations against defendant and interviewed N.E., C.H., A.L. and defendant. N.E. told Detective Deutscher that defendant had been molesting her and her sisters. He started molesting her when she was about nine years old. Defendant also played the money game with her and C.H.
Police Detective Kelly testified at the preliminary hearing that in the course of investigating defendant, she interviewed C.H. C.H. told Kelly that defendant played the money game with her. C.H. estimated they played the game around five times when she was between the ages of 14 and 15 years. Detectives Deutscher and Kelly also testified that N.E., C.H. and A.L. described other acts of molestation committed by defendant.
The original information was filed in June 2007. It alleged three counts of molestation upon a child under the age of 14 years (§ 288(a)), from January 10, 2003, to January 10, 2005. N.E. was the alleged victim in counts 1 and 2 and C.H. was the victim in count 3.
In December 2007, the information was amended to add a multiple victim enhancement (§ 667.61, subd. (b)).
On January 6, 2009, the prosecution filed on the eve of trial a second amended information, adding two new counts, counts 3 and 4, and renumbering count 3 as count 5. The new count 3 alleged an additional molestation offense involving N.E. and count 4 added an additional molestation offense involving C.H. The new ...