ORIGINAL PROCEEDINGS in mandate or prohibition. Harvey Giss, Judge. Petition for writ of mandate granted. (Super. Ct. No. PA058712).
The opinion of the court was delivered by: Mallano, P. J.
CERTIFIED FOR PUBLICATION
Petitioner Michael Donnell Brown filed the instant petition for a writ of mandate to challenge the trial court's denial of his double jeopardy motion to preclude retrial after a jury acquitted him of some counts, convicted him of a lesser included offense as to one count, and hung on the remaining counts. We conclude that double jeopardy bars retrial of all of the charges the trial court permitted to be retried because, (1) in the case of one victim, the jury acquitted petitioner of offenses, all of which were alleged to have been committed within the same five-month interval, and the prosecutor failed to show that none of the acquittals pertained to the offense the court agreed to permit the prosecutor to retry, which was also alleged to have been committed in the same five-month interval; and (2) in the case of the other victim, the jury acquitted petitioner of continuous sexual abuse of a minor based upon the same conduct and during the same 22-month interval alleged in four counts the court agreed to permit the prosecutor to retry. Accordingly, we grant the petition.
A 23-count information filed April 30, 2008, charged petitioner with the commission of various sexual offenses against two minors, Caleb C. and Kyle C. With respect to alleged victim Caleb, counts 1 through 13 charged petitioner with forcible oral copulation in violation of Penal Code section 288a, subdivision (c)(2) on or between the dates of October 1, 2006, and March 8, 2007; counts 14 through 16 charged him with sodomy by force during the same range of dates; count 17 charged him with assault with intent to commit a felony on August 1, 2006; and count 18 charged him with attempted sodomy by force on or between the dates of October 1, 2006, and March 8, 2007. (All undesignated statutory references pertain to the Penal Code.) With respect to alleged victim Kyle, counts 19 through 22 charged petitioner with committing a forcible lewd act upon a child under the age of 14 in violation of section 288, subdivision (b)(1) on or between the dates of April 15, 2005, and March 2, 2007; count 23 charged him with continuous sexual abuse of a child under the age of 14 in violation of section 288.5, subdivision (a) during the same date range. The information also alleged, with respect to all counts, that the crimes involved multiple victims. (§ 667.61, subd. (b).)
Petitioner waived a preliminary hearing and proceeded to trial on all of the charges.
Alicia C., the mother of Caleb and Kyle, testified that petitioner is her nephew. She and her husband permitted petitioner and his girlfriend, Maria Pereyra, to move in with her family in their two-bedroom mobile home in March of 2004 because petitioner and Pereyra had nowhere else to go. Petitioner and Pereyra slept and kept some of their property in the living room. They did not move out until February of 2007. (Unless otherwise noted, all further date references pertain to 2007.) Alicia moved out of the mobile home in September of 2006 and moved back in after March 8.
Alicia testified that when petitioner first moved in with her family, she saw him "moon" the boys and they responded in kind. She instructed petitioner and the boys not to "moon" anyone. Sometime in 2006 she noticed that petitioner seemed "guarded" around Caleb, and in December of 2006, she learned that Pereyra had complained that petitioner spent too much time with Caleb and Kyle. But prior to March 8, neither of the boys complained that petitioner did anything to them or asked not to be left alone with petitioner. Alicia testified that starting around January of 2007, petitioner spent more time with Caleb and volunteered to watch him. She noticed that around the same time, Caleb, who suffers from severe sickle-cell anemia, slept more, was more withdrawn, and had more health crises. On at least one occasion after petitioner and Pereyra moved out of the mobile home, Caleb and Kyle went--without objection--to petitioner's new residence to play video games with him.
Caleb was born in October of 1992. He testified that he called the police on March 8 because petitioner "sexually assaulted" him. Caleb stayed home from school that day due to a sickle-cell crisis that caused him pain and fatigue. Caleb was in his room, polishing his bowling ball, when petitioner arrived at the mobile home. Caleb was not expecting him. They briefly conversed, then petitioner went into the living room. Caleb joined petitioner in the living room. He testified that he did so because he did not want petitioner to know he was upset and because he "knew that something had to happen in order for me to, to , you know--arrested, obviously." Caleb sat down on the couch. Petitioner pulled down Caleb's pants and put Caleb's penis into his mouth. Caleb thought he might have pushed petitioner's hand away when he began to pull down Caleb's pants. Caleb did not want petitioner to orally copulate him, but he did not fight or say anything because he was tired. After about a minute, petitioner stopped. Caleb pulled his pants back on or tried to. Petitioner gave him a pair of sweatpants to put on. As Caleb stood and put on the sweatpants, petitioner pulled them down and again orally copulated Caleb for about a minute. Caleb did not do anything to try to stop petitioner from doing so.
Caleb initially testified that petitioner then got tired and lay down on the couch, while Caleb went into his room, locked the door, and thought about his "next plan." After a time, he got his pool cue and left to phone 911 from a public restroom. After a lunch break, during which Caleb listened to a recording of his police interview, he changed his testimony to describe additional sex acts on March 8. He testified that there was a third incident of oral copulation, then petitioner lay atop him, with petitioner's head toward Caleb's toes and vice versa. Petitioner attempted to put his penis in Caleb's mouth, but Caleb turned his head and petitioner's penis hit Caleb's cheek. Caleb tried to move but petitioner was too heavy. Caleb then somehow got out from beneath petitioner and onto all fours on the couch, with his "butt . . . kind of in the air." Petitioner licked Caleb's buttocks. This caught Caleb "off guard" and he turned his body. Petitioner then orally copulated Caleb again. Caleb somehow ended up in the same all-fours position and petitioner placed one of his fingers between Caleb's buttock cheeks "next to" the anus and also placed his penis "on the crack." Caleb moved his body and this apparently ended the incident. Without a word to petitioner, Caleb went into his room and locked the door. Caleb testified that petitioner came to the door of Caleb's room and said he was going to play with Caleb's Play Station. Caleb grew quite angry about the prospect of petitioner using his Play Station, so he opened the door and argued with petitioner. Caleb also pointed an Air Soft gun at petitioner and threatened to shoot him if he used the Play Station. Petitioner then lay down on the sofa and fell asleep. Caleb got his pool cue and left his room. He knew that he had petitioner's DNA on him and did not shower or wash. He awakened petitioner and said that he was going to play pool, then left and phoned 911 and his father.
Caleb testified that he had experienced prior incidents of "sexual assault" by petitioner. The first incident was around the middle of October 2006. Caleb was out of school recovering from an appendectomy performed a week earlier. He was lying facedown on the floor behind the couch in an area where petitioner kept his clothes and television. Petitioner got on top of Caleb and began grinding against Caleb's buttocks. Caleb felt petitioner's penis become erect. Both were fully clothed at the time. Petitioner's weight hurt Caleb's surgical incision. About 90 minutes later, petitioner orally copulated Caleb for the first time, but Caleb testified he did not remember any details. Caleb also remembered no details regarding other instances, but testified that petitioner orally copulated him at least 25 times. The incidents were not all the same, but every incident occurred either in the living room or in Caleb's bedroom at around noon on a day that Caleb did not attend school. On one occasion, Caleb's father was home while petitioner orally copulated him, but Caleb thought his father was taking out the trash. Caleb did not cry out for his father or threaten to do so. In fact, he did not say anything to petitioner, but he testified that on every occasion he "slapped [petitioner's] hands away." He did not say what petitioner was doing with his hands when Caleb slapped them. On another occasion, Caleb's mother was home, but Caleb thought she was in the shower at the time.
Caleb testified that on two occasions prior to March 8, petitioner attempted to have Caleb sit on petitioner's penis as petitioner sat on the couch. On each occasion, petitioner's penis touched Caleb's buttocks. Caleb testified that on one other occasion prior to March 8, petitioner "grabbed his penis and put it in [Caleb's] mouth" while petitioner orally copulated Caleb. Caleb tried to turn his head, and was eventually able to do so.
Caleb testified that he did not tell anyone about the incidents "[b]ecause if I would have done that, it would have never got this far where we are right now." He further explained, "Because he would have denied. And then we would have had no evidence, and he would have walked." Caleb later added that he knew his parents would believe him, but he thought his father would hurt petitioner and his mother would purchase a gun, then shoot petitioner. He also failed to tell anyone at school because they would have told his parents and the result would have been the same. Instead, he took his time to formulate his plan, which included preserving petitioner's DNA as evidence. After each incident, his plan came together a bit more. He testified, "I told myself that I was going to let it happen to a point where, you know, I just couldn't deal with myself any more." Asked what was different about March 8 that caused Caleb to report the incident, Caleb replied, "He fell asleep." Although Caleb phoned his father and told him about the incident right after phoning 911, he hoped the police would arrive before his father.
Caleb testified that he did not want to engage in sex acts with petitioner and did not voluntarily participate. He knew it was illegal and felt it was immoral. The court asked Caleb whether he did anything, with respect to any of the incidents, to "show displeasure or let the defendant know that you didn't want to do it?" Caleb replied that he slapped petitioner's hands away and "[o]n most of them when . . . he was on top of me, I was trying to get [out] from under him." Caleb admitted that petitioner never threatened or hit him and he did not fear petitioner. When the court asked Caleb whether petitioner did anything to overcome his will, Caleb testified, "Only well, laying on top of me and holding me down."
When defense counsel questioned Caleb about how often he missed school in the fall of 2006, Caleb testified that he had nearly perfect attendance. On redirect, Caleb testified that his attendance was actually poor, and when he referred to near perfect attendance, he had been thinking of his attendance while he was home-schooled in 2007.
The assistant principal of Caleb's high school testified that Caleb's attendance rate during the months of September through December of 2006 was 4 percent. He missed many full or partial days, and on a number of days he was present at the beginning and end of the school day, but not for some of the classes in between. In December of 2006, Caleb withdrew from the school and entered an alternative program for two months, due to his health. He re-enrolled at the high school in February. On March 8, he was absent for all periods except homeroom.
A sexual assault nurse examined Caleb on the night of March 8 and collected swabs for DNA testing. A swab taken from the shaft of Caleb's penis contained epithelial cell DNA matching petitioner, as the "major donor," and Caleb, as the "minor donor." Epithelial cells are present in both saliva and skin. The DNA expert testified that while it would be possible for a person to acquire some of a second person's DNA on his skin by wearing the second person's watch, only a small amount of DNA would be transferred, so the watch owner would be the minor donor.
Kyle was born in April of 1998. Kyle testified that from the summer of 2006 to the beginning of November of 2006, petitioner "molested" him. On every occasion, Kyle was in his bedroom, sitting on his bed. Kyle testified that on five occasions, petitioner pushed him so that he was lying facedown on his bed. Petitioner then lay on top of Kyle and "humped" him by moving his body up and down against Kyle's body. Although both petitioner and Kyle were completely clothed, Kyle testified that he could feel petitioner's erect penis against his buttocks. Each incident lasted about 30 seconds, and there were five such incidents. Except during the third incident, neither Kyle nor petitioner spoke. During the third incident, petitioner told Kyle that if he told anyone, petitioner would tell Kyle's mother that Kyle "wanted to do it."
Kyle initially testified that neither he nor petitioner was ever unclothed during any of the incidents. He reviewed a portion of a police report and testified he did not remember "those things happening." After proceedings outside of Kyle's and the jury's presence, Kyle testified that the report had helped him to remember two other incidents in which petitioner put his penis in Kyle's mouth and Kyle's penis in his mouth. The first time this happened was later on the day of the third "humping" incident. Kyle did not state when the second incident of oral copulation occurred. Each of these incidents also lasted about 30 seconds. During the second incident, petitioner used his hands to pull Kyle's mouth open.
Kyle testified that prior to March 8, he did not tell anyone what petitioner had done because it was embarrassing. Also, Kyle was "kind of afraid" of petitioner, although petitioner never hit him, physically hurt him, or threatened to physically hurt him. After petitioner was arrested, Alicia asked Kyle if petitioner "did it to [him], too." Kyle said, "Yes."
Pereyra testified that petitioner was her boyfriend while they lived with the C. family. She stopped communicating with petitioner about one year before trial. After petitioner was arrested, he called Pereyra from jail. She asked him what happened. Petitioner told her that "something was happening between him and Caleb," "they were getting too close to each other," and "[t]here was too much playing" "and mooning each other." Pereyra was an extremely reluctant and emotional witness. The trial court repeatedly ordered Pereyra to answer questions and threatened her with contempt. Eventually, Pereyra testified that petitioner told her he and Caleb touched each other's penis. She testified that petitioner told her he went to the C. house "to pick up some mail. And they were playing with each other, you know playing with the bowling ball. And got to the point where Caleb was naked. And he--[petitioner] had said that he didn't want to play at the moment. But Caleb kept playing with him and eventually he started playing with him." Petitioner told her they were wrestling and "Caleb was playing with [petitioner's] Bluetooth and his watch." After reviewing the police report, Pereyra testified that petitioner told her "there were . . ...