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.
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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.
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 ...