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The People v. Shannon Dale Frasier

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO


December 16, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
SHANNON DALE FRASIER, DEFENDANT AND APPELLANT.

APPEAL from the Superior Court of Riverside County. Eric Helgesen, Judge. Affirmed as modified. (Super.Ct.No. SWF020413)

The opinion of the court was delivered by: Richli J.

P. v. Frasier CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

A jury found defendant and appellant Shannon Dale Frasier guilty of two counts of aggravated sexual assault upon a child under 14 years of age and 7 or more years younger than defendant (Pen. Code, §§ 269, subd. (a), 289, subd. (a))*fn1 (counts 1 & 2) and four counts of forcible lewd acts upon a child under the age of 14 years (§ 288, subd. (b)(1)) (counts 3-6). Defendant was sentenced to a total indeterminate term of 30 years to life, and a total determinate term of 32 years with credit for time served.

On appeal, defendant contends: (1) the trial court erred in denying his motion to suppress statements elicited from him just prior to his arrest absent any Miranda*fn2 advisements; (2) the trial court erred in failing to sua sponte instruct the jury on the lesser offense of nonforcible sexual penetration of a child under 14 to the charged offense alleged in counts 1 and 2; (3) the trial court erred in imposing a $60,000 restitution fine and a $60,000 parole revocation fine. We agree with the parties that the trial court erred in imposing the fines in the amount of $60,000 and will modify the judgment accordingly. We reject defendant's remaining contentions.

I

FACTUAL BACKGROUND

Defendant was Jane Doe's mother's boyfriend. At the time of trial, Jane was 16 years old. In 1999, Jane lived in a two-bedroom apartment with her mother, her two brothers, and defendant. When Jane was about eight years old, defendant began molesting her. Specifically, almost on a daily basis, defendant would remove Jane's underwear and insert his fingers inside her vagina. He would also touch and squeeze her breasts. Defendant continued inserting his fingers inside Jane's vagina and touching her breasts when Jane was nine years old, and he also forced Jane to touch and stroke his penis, sometimes to ejaculation.

Defendant would tell Jane not to scream. When Jane would ask defendant to stop, defendant would ignore her and continue touching her. Jane felt horrified and did not disclose the molestations because she was scared and afraid of defendant.

The molestations stopped briefly when Jane and her family moved into her aunt's house. However, once the family moved into a four-bedroom house when Jane was about 10 or 11 years old, defendant began touching her again. Defendant inserted his fingers into her vagina, squeezed and licked her breasts, and forced her to touch his penis until he ejaculated. The molestations continued in the same manner in that house until Jane was 13 years old.

On at least one occasion, Jane tried to scream for help, but defendant got on top of her, held her down, covered her mouth, and told her to shut up. At times, defendant would "fight" Jane and remove her clothing, pull her hands, and scream and yell at her. At other times, defendant would have Jane's brother leave the bedroom, force Jane to stay, and lock the bedroom door after Jane's brother left. On one occasion, when Jane was 12 years old, defendant tried to make her perform oral sex on him.

Jane explained that the molestations "came so frequently that [she] just went about it like a normal day." She did not tell anyone about defendant molesting her because she was "scared" and "nervous." She was also afraid that defendant would hit her. Defendant told her not to tell anyone because "it will hurt everybody and [he] can never, ever see them again." He also told her that he could not live his life "the same."

Jane was "confused" on whether she should "really" disclose the molestations to anyone. She did not want anyone to judge her or have her mother be disappointed in her or angry at her. In addition, Jane was concerned about defendant and cared about him and did not want to hurt him. Jane eventually disclosed the molestations to defendant's daughter; she believed defendant's daughter would keep the disclosure a secret. Shortly thereafter, the molestations were reported to the police, and the police went to Jane's house and spoke with her. Jane was scared and believed she was "going to go to jail too."

On cross-examination, Jane admitted that defendant never physically threatened her, held a knife or gun to her, hit her, or bit her. However, she had seen defendant at times be "violent" toward her mother. She also noted that after she asked defendant if he would ever hurt her, defendant told her that he did not "think so."

Jane's younger brother reported that one night while he was sleeping with Jane, defendant came in and touched Jane's breasts. He recalled defendant touching his sister on two separate occasions. On another occasion, defendant locked him out of a bedroom so defendant could be alone in the bedroom with Jane. Jane's brother also recalled that defendant had once tried to touch his penis, but he "jumped away" from defendant. Defendant told him not to tell his mother. Jane's brother did not disclose defendant's actions because he thought defendant was "going to hurt [him] or [his] mom or somebody."

Jane's female cousin, who shared a bedroom with Jane, recalled that one night while she was sleeping, defendant came in and touched her buttocks. Defendant also exposed his penis to her and came into the bathroom while she was in the shower. Jane's cousin did not tell her mother because she was scared.

Defendant went to the police station and was interviewed by police on March 13, 2007.*fn3 Defendant initially denied the molestations. He eventually admitted to the conduct described by Jane. Defendant was arrested after the interview.

II

DISCUSSION

A. Admission of Confession

Defendant contends that the trial court erred in denying his motion to suppress his statements to the police. Specifically, he claims that his confession to police was involuntary because it was induced by a promise of finding him private counseling. He also argues that the interview became custodial after the interrogating officer threatened him with a polygraph examination and refused to believe his explanations.

1. Additional factual and procedural background

On March 13, 2007, defendant voluntarily went to the police station after he was notified that police needed to speak with him. At the time of the interview, defendant was 44 years old. During the interview, the door to the interview room was open, and defendant was allowed to take a personal telephone call. The duration of the interview was 51 minutes, and at the beginning of the interview, the detective told defendant "you're not under arrest" and "you're free to go any time you want . . . ." The detective then obtained some background information from defendant and engaged in small talk with him about sports. Thereafter, the detective began asking defendant whether he touched the victim "above the shirt." Defendant repeatedly denied the allegations. The detective asked defendant whether it was possible that he had touched Jane while he was "drinking" and asked defendant to give him some kind of explanation. The detective also repeatedly told defendant to be honest with him and that they had done "forensic interviews" and knew what had happened. The detective suggested that maybe defendant had touched Jane after drinking alcoholic beverages. Defendant said he did not understand why the allegations were made and continued to deny and minimize any wrongdoing.

The detective believed there was more to the story and offered defendant the option of taking a polygraph test. Defendant said that he was willing to take a polygraph test and acknowledged that he had missed several polygraph appointments in the past. The detective also told defendant that he believed defendant was "holding something back" and thought defendant's body language and demeanor suggested that he was being "deceptive." Defendant continued to deny any wrongdoing and suggested Jane's mother was having a sexual relationship with Jane's older brother. After defendant's incest story, the detective stated, "But there's still something here that . . . I can see . . . , you['re] sweating, you['re] nervous." Immediately thereafter, defendant admitted that he touched Jane's breast when he was drunk. The detective then asked defendant if there were other times and told defendant to be honest. Defendant then admitted another incident where he had grabbed the victim's behind in a sexual manner.

After explaining to defendant that he handled crimes against children and that some people were "wired differently," the detective told defendant, "We need to get some private counseling to deal with this so this doesn't happen again." The detective asked defendant more about his drinking and asked him to explain the allegations made by Jane and Jane's younger brother. The detective also inquired, "What did you guys do?" Defendant responded, "I . . . touched her breast and she fondled my penis." Defendant also admitted to "always" ejaculating in a towel. From there on, defendant admitted more sexual misconduct with Jane, including inserting his fingers inside her vagina. The detective arrested defendant after the interview; he did not know before the interview that he was going to arrest defendant.

On February 3, 2009, defendant filed a motion to suppress his statements, claiming his statements were involuntary and taken in violation of Miranda. Following argument by counsel, the trial court found that although defendant was interviewed at the police station, defendant "voluntarily presented himself there to talk about these matters." The court also noted that defendant was advised that he was free to leave, and that he was not placed under arrest until the end of the interview. The court concluded that the interview was investigatory and that there was no violation of Miranda. It thereafter denied defendant's motion to suppress his statements.

2. Voluntariness of confession

"The Fourteenth Amendment to the federal Constitution and article I, section 15, of the state Constitution bar the prosecution from using a defendant's involuntary confession. [Citation.]" (People v. Massie (1998) 19 Cal.4th 550, 576; see also Jackson v. Denno (1964) 378 U.S. 368, 376 [84 S.Ct. 1774, 12 L.Ed.2d 908].) Hence, a criminal defendant's involuntary statement obtained by a law enforcement officer through coercion is inadmissible. (People v. Neal (2003) 31 Cal.4th 63, 79.)

"Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the 'totality of [the] circumstances.' [Citations.]" (People v. Neal, supra, 31 Cal.4th at p. 79.) In considering the totality of the circumstances, "[r]elevant are 'the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity' as well as 'the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health.' [Citation.]" (People v. Williams (1997) 16 Cal.4th 635, 660.)

When a defendant challenges his or her statements as involuntary, the prosecution bears the burden of proving voluntariness by a preponderance of the evidence. (Lego v. Twomey (1972) 404 U.S. 477, 489 [92 S.Ct. 619, 627, 30 L.Ed.2d 618]; People v. Guerra (2006) 37 Cal.4th 1067, 1093, disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.) In reviewing a finding of voluntariness, this court conducts an independent examination of the record and independently determines the ultimate issue. (People v. Jimenez (1978) 21 Cal.3d 595, 609, overruled on other grounds in People v. Markham (1989) 49 Cal.3d 63, 65.)

Defendant's challenge to the voluntariness of his statements rests primarily on the assertion that those statements were coerced by inducements in the form of a promise of getting him help by means of "private counseling . . . conditioned upon talking about further allegations." An involuntary or coerced statement is a statement "obtained by physical or psychological coercion, by promises of leniency or benefit, or when the 'totality of circumstances' indicates the confession was not the product of the defendant's 'free and rational choice.' [Citations.]" (People v. Cahill (1993) 5 Cal.4th 478, 482, fn. 1.) A promise of a benefit renders a confession involuntary only if it is the "motivating cause" of the defendant's statement. (People v. Williams, supra, 16 Cal.4th at p. 661.)

"Although coercive police activity is a necessary predicate to establish an involuntary confession, it 'does not itself compel a finding that a resulting confession is involuntary.' [Citation.] The statement and the inducement must be causally linked. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 404.) This "requisite causal connection between promise and confession must be more than 'but for': causation-in-fact is insufficient. [Citation.] 'If the test was whether a statement would have been made but for the law enforcement conduct, virtually no statement would be deemed voluntary because few people give incriminating statements in the absence of some kind of official action.' [Citation.]" (People v. Benson (1990) 52 Cal.3d 754, 778-779.) Rather, "[t]he statement is involuntary only if the threat [or promise] actually induces defendant to make the statement. [Citation.]" (People v. Lucas (1995) 12 Cal.4th 415,442.)

"The business of police detectives is investigation, and they may elicit incriminating information from a suspect by any legal means. '[A]lthough adversarial balance, or rough equality, may be the norm that dictates trial procedures, it has never been the norm that dictates the rules of investigation and the gathering of proof.' [Citation.] 'The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.' [Citation.]" (People v. Jones (1998) 17 Cal.4th 279, 297-298.) Thus, "'mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequently confession involuntary.' [Citation.] As [the California Supreme Court] stated in People v. Hill (1967) 66 Cal.2d 536[, 549], the distinction between permissible and impermissible police conduct 'does not depend upon the bare language of inducement but rather upon the nature of the benefit to be derived by the defendant if he speaks the truth as represented by the police.' [Citation.] In terms of assessing inducements assertedly offered to a suspect, '"[when] the benefit pointed out by the police . . . is merely that which flows naturally from a truthful and honest course of conduct," the subsequent statement will not be considered involuntarily made [citation].' [Citation.]" (People v. Belmontes (1988) 45 Cal.3d 744, 773.)

After considering the totality of the circumstances in this case, we conclude the prosecution bore its burden of proving, by a preponderance of the evidence, that the statements made by defendant in the interview were voluntary. Contrary to defendant's argument, as explained below, the detective's statement to defendant that "[w]e need to get you some private counseling to deal with this so this doesn't happen again" does not establish coercion. Moreover, there is no evidence to suggest that the detective's statement of getting private counseling was the "motivating cause" of defendant's confession. (People v. Williams, supra, 16 Cal.4th 635, 661.)

The record here shows that defendant voluntarily went to the police station. At the beginning of the interview, the detective informed defendant that he was not under arrest and that he was free to leave at any time. The door to the interview room was left open. Defendant was not cut off from the outside world, as he had his cellular telephone with him and was allowed to take a personal call. The interview was not terribly long; it lasted 51 minutes. Defendant had no prior experience with the criminal justice system, but he was 44 years old at the time of the interview. The record does not suggest that he had any mental problems or low intelligence. Insofar as the record shows, the detective did not lie to defendant. It appears that defendant was neither frightened nor vulnerable to coercion, as evidenced by his persistent denial. "'His resistance, far from reflecting a will overborne by official coercion, suggests instead a still operative ability to calculate his self-interest in choosing whether to disclose or withhold information.' [Citation.]" (People v. DePriest (2007) 42 Cal.4th 1, 36.) It was only after the detective told defendant about the statements made by Jane's younger brother of having seen one incident and statements made by Jane that defendant further admitted molesting Jane. Before the detective made any suggestions of getting defendant help in the form of private counseling, defendant had admitted on two separate occasions that he had touched the victim in a sexual manner.*fn4

Under the totality of the circumstances, we do not find defendant's will to have been overborne or that the detective's statement of getting private counseling was the "motivating cause" of defendant's confession. The interview was no more "coercive" than any interview conducted by police at a police station. The record contains no evidence of badgering, misrepresentation, overreaching, coercion, "or a course of conduct on the part of the interrogator designed to break the will of" defendant. (People v. Ramos (2004) 121 Cal.App.4th 1194, 1203; compare, People v. Neal, supra, 31 Cal.4th at pp. 81-85 [investigators made threats and promises, and deliberately violated Miranda rights of immature and uneducated the defendant who was held incommunicado, and without food, for more than 24 hours]; People v. Jimenez, supra, 21 Cal .3d at pp. 610-612 [investigator told the defendant he could get the death penalty if he did not confess, but a co-defendant -- the actual killer -- probably would not get the death penalty]; People v. Johnson (1969) 70 Cal.2d 469, 478-479 [investigators told the defendant his companions had accused him of shooting the victim and that he could get the gas chamber, that no one would believe him because he denied everything, and that if they were the jury they would give him the gas chamber]; People v. Cahill (1994) 22 Cal.App.4th 296, 314-317 [investigator deceptively omitted felony-murder doctrine and understated seriousness of the defendant's position when he implied that if the defendant admitted his role in killing but had not premeditated, he might avoid trial and conviction of first degree murder].)

Defendant relies primarily on People v. Hogan (1982) 31 Cal.3d 815 (Hogan) (disapproved on another point in People v. Cooper (1991) 53 Cal.3d 771, 836). In Hogan, the defendant was convicted and sentenced to death for murdering two members of a co-worker's family. (Hogan, at pp. 820-822.) The defendant had been interviewed three times by police and denied culpability during the first two interrogations. (Id. at p. 836.) Police interrogators had advised the defendant: "'if there is a particular problem why this thing could have been committed let me know and if it's a mental problem, whatever it might be, maybe we can help you with this part of the treatment or you know what might happen.'" (Id. at p. 838.) By this and similar assertions, the police implied something worse would happen to the defendant if he did not admit a mental problem he did not have. Further, the officers instructed, "'"Why don't you just tell us that you did it [and] then we'll get help for you,"'" suggesting he would receive their help only if he confessed to committing the crime, whether he had actually committed it or not. (Id. at p. 839.) In addition, the officers repeatedly misrepresented that eye-witnesses had identified the defendant as the perpetrator, and repeatedly suggested he had a "mental problem." After several interrogations, they finally convinced him that he had blacked out and perpetrated the homicide, prompting him into making incriminating statements while vomiting and sobbing uncontrollably. (Id. at pp. 839-840.)

The nature, intensity, and duration of the police conduct in Hogan, as well as the defendant's extreme emotional state at the time of his confession, are not comparable to the circumstances in defendant's case. The officers in Hogan repeatedly exploited defendant's weakness by promising him psychiatric treatment. (Hogan, supra, 31 Cal.3d at pp. 836-838.) The detective's single comment here about getting defendant help by means of private counseling "falls well short . . . of the egregious misconduct in Hogan, where the defendant repeatedly expressed anxiety that he might be 'crazy' and the police exploited that weakness by promising psychiatric treatment. [Citation.] The single, passing comment at issue here cannot reasonably be characterized as coercive, or be said to constitute a motivating cause of defendant's subsequent confession." (People v. Kelly (1990) 51 Cal.3d 931, 954.)

3. Miranda

In Miranda, "the United States Supreme Court 'recogniz[ed] that any statement obtained by an officer from a suspect during custodial interrogation may be potentially involuntary because such questioning may be coercive' and 'held that such a statement may be admitted in evidence only if the officer advises the suspect of both his or her right to remain silent and the right to have counsel present at questioning, and the suspect waives those rights and agrees to speak to the officer.' [Citation.]" (People v. Guerra, supra, 37 Cal.4th at p. 1092.) As is the case in our review of a voluntariness determination, "we review independently a trial court's ruling on a motion to suppress a statement under Miranda. [Citation.] In doing so, however, 'we accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence.' [Citation.]" (Id. at pp. 1092-1093.) Where the facts are uncontradicted, we determine independently whether the trial court's legal conclusion was properly found. (People v. Stansbury (1995) 9 Cal.4th 824, 831.)

"'Absent "custodial interrogation," Miranda simply does not come into play.' [Citation.]" (People v. Ochoa (1998) 19 Cal.4th 353, 401.) "Custodial interrogation" means "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (Miranda, supra, 384 U.S. at p. 444, fn. omitted.) "Whether a person is in custody is an objective test; the pertinent inquiry is whether there was '"'a "formal arrest or restraint on freedom of movement" of the degree associated with a formal arrest.'"' [Citation.]" (People v. Leonard (2007) 40 Cal.4th 1370, 1400.) "Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave." (Thompson v. Keohane (1995) 516 U.S. 99, 112 [116 S.Ct. 457, 133 L.Ed.2d 383], fn.omitted.)

"In deciding the custody issue, the totality of circumstances is relevant, and no one factor is dispositive. [Citation.]" (People v. Boyer (1989) 48 Cal.3d 247, 272, disapproved on other grounds in People v. Stansbury, supra, 9 Cal.4th at p. 830, fn. 1.) Important considerations include the site of the interrogation, whether objective indicia of arrest were present, and the length and form of the questioning. (People v. Boyer, supra, 48 Cal.3d at p. 272.) In this regard, what matters are the objective circumstances of the interrogation, not the subjective views harbored by the interrogating officers or person being questioned. (Stansbury v. California (1994) 511 U.S. 318, 323 [114 S.Ct. 1526, 128 L.Ed.2d 293].)

Defendant argues that the interview became custodial after the detective threatened him with a polygraph examination and refused to believe his explanations. Hence, since he was not given the Miranda warnings, the confession should have been excluded as having been obtained in violation thereof. We disagree.

As noted previously, defendant voluntarily went to the police station. He was told that he was not under arrest and free to leave at any time. The door to the interview room was left open. Defendant was not cut off from the outside world as he had his cellular telephone with him and was permitted to take a personal call. The interview lasted 51 minutes. He was previously offered a polygraph examination and made excuses as to why he failed to appear for the appointments. The record indicates that defendant agreed to take a polygraph examination previously, and when mentioned at the time of the interview, defendant again expressed his intention of taking a polygraph examination. The interview appears to be nonconfrontational, and defendant was not arrested until after the interview.

Having independently considered the totality of the circumstances, we conclude there is compelling evidence that defendant did not believe he was in custody and that a reasonable person in defendant's position would have believed he was free to terminate the interview and leave. Defendant was expressly told he was free to leave at any time. He was also expressly informed that he was not in custody or under arrest. Defendant had his own transportation and was not dependent on the detective to take him home. The interview was relatively short. Defendant had previously agreed to take a polygraph test. In light of these facts, a reasonable person would not have interpreted the polygraph statement to mean he was not free to leave unless and until he talked or took a polygraph examination. That a reasonable person would not have believed himself to be in custody is bolstered by the fact the door to the interview room was left open and it appears the interview never became confrontational. (Compare California v. Beheler (1983) 463 U.S. 1121, 1122, 1124-1125 [103 S.Ct. 3517, 77 L.Ed.2d 1275] [no custodial interrogation where the defendant, told he was not under arrest, voluntarily accompanied police to station house, where he was questioned for approximately 30 minutes, allowed to return home, and then arrested five days later, despite fact the defendant was a suspect at the time he was questioned]; Oregon v. Mathiason (1977) 429 U.S. 492, 495 [97 S.Ct. 711, 50 L.Ed.2d 714] [no custodial interrogation where, despite fact police suspected the defendant and questioned him at station house, the defendant came voluntarily to police station, was immediately informed he was not under arrest, and, at close of one-half hour interview, left police station without hindrance]; People v. Leonard, supra, 40 Cal.4th at pp. 1400-1401 [no custodial interrogation where interrogation of young man with low intelligence and developmental disability initiated by police, the defendant was fingerprinted before being questioned, interrogation was relatively long (three and a half hours) and took place in small room with door closed and with detective sitting between the defendant and door]; People v. Stansbury, supra, 9 Cal.4th at pp. 831-834 [no custodial interrogation where the defendant was asked if he would come to police station to answer questions as a possible witness and given choice of finding own transportation or accepting ride from police, and questioning was brief and not accusatory, despite fact police arrived at the defendant's house at 11:00 p.m. with guns out of holsters but possibly not visible to the defendant, and interview took place in jail area of police station]; People v. Chutan (1999) 72 Cal.App.4th 1276, 1279, 1282-1283 [no custodial interrogation where the defendant was asked to go to police station for interview, transported in unmarked car and without physical restraint with his agreement, told he was not under arrest, and returned home after the interview].)

To summarize, the trial court did not err in refusing to suppress defendant's statements and the fruits thereof.*fn5 It follows that this evidence was properly admitted at trial.

B. Failure to Instruct on Lesser Included Offenses

Defendant next contends that the trial court erred in failing to sua sponte instruct the jury on the lesser offense of nonforcible sexual penetration of a child under 14 years of age to the charged offense of aggravated sexual assault on a child under 14 years of age (§§ 269, subd. (a)(5), 289, subd. (a)) as alleged in counts 1 and 2. The People respond the trial court did not have any such duty and, in the alternative, claim any error was harmless.

The first question is whether nonforcible sexual penetration of a child under 14 was a lesser included offense of the charged aggravated sexual assault on a child under 14. "An uncharged offense is included in a greater charged offense if either (1) the greater offense, as defined by statute, cannot be committed without also committing the lesser (the elements test), or (2) the language of the accusatory pleading encompasses all the elements of the lesser offense (the accusatory pleading test)." (People v. Parson (2008) 44 Cal.4th 332, 349.)

The aggravated sexual assault counts (counts 1 and 2), as charged in the information, alleged that defendant had committed aggravated sexual assault by sexual penetration under section 269, subdivision (a)(5). Section 269, subdivision (a) provides, "Any person who commits any of the following acts [here sexual penetration in violation of section 289, subdivision (a)] upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child."

Section 289 proscribes the offense of "sexual penetration when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person" or "by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat . . . ." (§ 289, subd. (a)(1) & (2).) Thus, as charged, the elements of the aggravated sexual assault on a child count were: (1) sexual penetration, (2) on a child under 14 who is seven or more years younger than the perpetrator, (3) accomplished against the victim's will, and (4) by means of force, violence, duress, menace, fear, or a threat to retaliate.

The lesser offense that defendant asserts the court should have instructed upon is nonforcible sexual penetration of a child under 14, a violation of section 289, subdivision (j). "Any person who participates in an act of sexual penetration with another person who is under 14 years of age and who is more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years." (§ 289, subd. (j).) This offense has just two elements: (1) sexual penetration, and (2) on a child under 14 who is more than 10 years younger than the perpetrator. These elements of this lesser offense are close to, but not quite included within, the elements of the aggravated sexual assault on a child under 14 (counts 1 and 2), as those counts were charged in the information.

Aggravated sexual assault on a child under 14, as charged in the information, could be committed by sexually penetrating a child under 14 who is seven or more years younger than the perpetrator. If the child was eight or nine years younger than the perpetrator, this offense would not violate section 289, subdivision (j), as a violation of that section requires that the child be "more than 10 years younger" than the perpetrator. (Italics added.) Because a violation of section 289, subdivision (j) was therefore not a lesser included offense of the charged aggravated sexual assault on a child under 14 counts in violation of section 269, subdivision (a)(5), the trial court had no obligation to instruct on this lesser offense.

Even if a violation of section 289, subdivision (j) had been a lesser included offense of the charged aggravated sexual assault on a child under 14 counts, the trial court still would not have been obligated to instruct on this lesser offense. "[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support." (People v. Breverman (1998) 19 Cal.4th 142, 162.) "A criminal defendant is entitled to an instruction on a lesser included offense only if [citation] 'there is evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense' [citation] but not the lesser." (People v. Memro (1995) 11 Cal.4th 786, 871.)

Here, the greater offense required that the sexual penetration be accomplished against the child victim's will and by force, violence, duress, menace, fear, or a threat to retaliate, while the lesser offense did not. It follows that instructions on the lesser offense would not be merited (even if it were a lesser included offense) unless there was evidence which, if believed by the jury, would have shown that the sexual penetration was either (1) not accomplished against Jane's will or (2) not by means of force, violence, duress, menace, fear, or a threat to retaliate.

Jane's testimony established without equivocation that defendant's sexual penetration of her was accomplished against her will. "A defendant uses 'force' if the prohibited act is facilitated by the defendant's use of physical violence, compulsion or constraint against the victim other than, or in addition to, the physical contact which is inherent in the prohibited act." (People v. Bolander (1994) 23 Cal.App.4th 155, 163.) "The evidentiary key to whether an act was forcible is not whether the distinction between the 'force' used to accomplish the prohibited act and the physical contact inherent in that act can be termed 'substantial.' Instead, an act is forcible if force facilitated the act rather than being merely incidental to the act." (Id. at pp. 163-164.)

Defendant removed Jane's underwear and insert his fingers inside her vagina. He also grabbed Jane's hand and forced Jane to touch and stroke his penis to ejaculation. Jane tried to scream for help but defendant got on top of her, held her down, covered her mouth, and told her to shut up. At times, defendant would "fight" Jane and remove her clothing, pull her hands, and scream and yell at her. Defendant's actions here showed that he plainly constrained her and facilitated his act of sexual penetration. No evidence to the contrary was placed before the jury, and no rational juror could have concluded that this conduct was insufficient to establish force. Nor was there any evidence which could have served as a foundation for a jury to disbelieve Jane's testimony about defendant's utilization of force to constrain her and facilitate his act, while at the same time believing her testimony about his sexual penetration. As no evidence was presented to the jury that could have absolved defendant of the greater offense, but not the lesser offense, the trial court was not obligated to instruct the jury on the lesser offense of nonforcible sexual penetration of a child under 14. (People v. Memro, supra, 11 Cal.4th at p. 871.)

In any event, the trial court's failure to instruct on the lesser offense of nonforcible sexual penetration of a child under 14 was harmless. "Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions. [Citation.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1085-1086.) The jury had to make findings on whether the lewd acts charged in counts 3 through 6 were committed with force. The evidence on those counts was essentially the same. The jury was instructed with the nonforcible lesser included offense of lewd acts upon a child under section 288, subdivision (a) on counts 3 through 6. In regard to all of the counts, the jury was also instructed on the lesser offense of simple battery (§ 242).*fn6 The jury found that all of the counts involved force. By finding counts 3 though 6 involved force, based on essentially the same evidence as counts 1 and 2, it is not reasonably probable that the failure to instruct on the lesser offense of nonforcible sexual penetration of a child under 14 affected the jury's verdicts. In view of the evidence at trial, no reasonable juror could have concluded that defendant committed the aggravated sexual assault on a child under 14 without force.

C. Imposition of Restitution Fine and Parole Restitution Fine

Section 1202.4 allows a restitution fine between $200 and $10,000: "( b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony . . . ."

Defendant contends, and the People correctly concede, that the trial court erred in imposing a restitution fine and a parole revocation fine in the amount of $60,000. We also agree.

As a matter of statutory interpretation, "'[t]he maximum [restitution] fine that may be imposed in a criminal prosecution is $10,000 "regardless of the number of victims or counts involved." [Citation.]' [Citations.]" (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534 [Fourth Dist., Div. Two]; see also § 1202.4, subd. (b)(1).) Plainly, the trial court intended to impose the maximum allowable restitution fine. Accordingly, we will modify the amount of this fine to $10,000. (See Blackburn, at p. 1534.) Likewise, because the amount of the parole revocation restitution fine imposed under section 1202.45 must be identical to the amount of any restitution fine imposed under section 1202.4, we will also modify the amount of the parole restitution revocation fine to $10,000.

III

DISPOSITION

The judgment is modified so as to reduce both the restitution fine under section 1202.4 and the parole revocation restitution fine under section 1202.45 from $60,000 to $10,000. The trial court is directed to modify the minute order of the April 6, 2009, sentencing proceedings and the abstract of judgment accordingly and to provide the modified abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

We concur: RAMIREZ P.J. MILLER J.


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