Santa Clara County Super. Ct. No. CC807553
The opinion of the court was delivered by: Rushing, P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Keith Lynn Dix was sentenced to 30 years to life based upon testimony that he molested two prepubescent neighbor girls. On appeal he contends that the evidence was insufficient to support the judgment, that the court stated insufficient reasons for consecutive sentences, and that this court erred by denying two requests for expert witness fees on appeal. We find no error, and affirm the judgment.
Defendant was charged by information with (1) a lewd and lascivious act on K.D., a child under 14, in violation of Penal Code section 288, subdivision (a) (§ 288(a)); (2) a lewd and lascivious act on S.D., a child under 14, in violation of section 288(a); (3) a second such act on S.D.; (4) a third such act on S.D.; and (5) attempting to dissuade a witness in violation of Penal Code section 136.1, subdivision (b)(1).*fn2
Defendant waived a jury and the case was tried to the court. At trial it was established that during the time in question, defendant lived in a studio apartment in a large house occupied by K.D., S.D., their mother, and several extended family members. He testified that he was living on disability due to chronic nerve damage that made him unable to feel his legs, back, or feet "like a normal person would." The girls often visited his apartment to watch TV. He sometimes babysat them and their brother, R.D. According to K.D., on one occasion while she was six, when she was watching cartoons with defendant, he asked her to sit in his lap. When she did so, he touched her "lady part" with his hand. He reached under her pants but over her underwear. At her sister's urging she reported the incident to their mother. Her mother did not believe her and spanked her for lying. She did sometimes lie to her mother about "[l]ittle stuff." This incident formed the foundation for Count 1 of the information.
S.D. testified about two episodes when she was nine. The first took place while she was watching a cartoon on a television in a garage or storage area. Defendant had been working on something in the same area. At some point he sat on the chair with her and asked her to sit in his lap.*fn3 He touched her on her lady part. He put his hand inside her underwear and his fingers inside her private area. She did not tell her mother what had happened. This incident formed the basis for Count 2 of the information.
S.D. testified that a few days later she walked into a bathroom where defendant was working on an air vent. While sitting on the side of the bathtub with her in his lap, defendant put his fingers inside her private lady part. This formed the basis for Count 3.
Immediately after this incident, S.D. testified, defendant said that he needed to use the toilet. She saw him take out "[h]is lower half" and go to the bathroom. At some point he took her hand. At trial she did not recall having told a police officer or having testified that he grabbed her hand and tried to put it on his private part. However, she had testified at the preliminary hearing that after defendant finished urinating, and after wiping himself with tissue, he asked her to touch his part. When she said no, he "tried to force [her]" by grabbing her hand and trying to pull it toward his part. She pulled her hand away. It happened three times. She never touched his part or got close to doing so. This formed the basis for Count4.
Defendant testified that on "[t]he day the girls here are saying this here happened," he had frightened them by grabbing the arm of their brother R.D., whom defendant considered a "smart ass" and who had been calling the girls "pussies" and riding his bicycle past defendant's residence in defiance of directives from defendant. After this "big incident" the girls "[f]or a little bit acted different, but then they acted the same."
Defendant linked K.D.'s testimony to an occasion when she was visiting him in the company of her deaf uncle. At some point during the visit, K.D. sat on defendant's legs and put his hand on her knee. Her uncle had apparently come to use the toilet, but it was not immediately accessible because defendant had placed a stereo there pending repairs. When he rose to move it, the chair slid on the tile floor, and defendant fell. In the course of the fall, his hand "hit" K.D. somewhere; he didn't know where, and had told an officer that he "could have hit her anywhere." He acknowledged that although he had described this incident to officers, he had not previously mentioned that the uncle was present.
As to S.D., defendant testified that both the garage and bathroom incidents occurred on "the same day that I grabbed ahold of" her brother. S.D. did sit on his lap that day, but he did not touch her private parts or reach under her jeans. She sat on his lap a couple of times during the time they were acquainted. As to the bathroom incident he testified that he and S.D. were working on a heater vent together when he had to go to the bathroom. He asked ...