Super. Ct. No. CRF08-2437
The opinion of the court was delivered by: Butz , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant David Gerald Leonard of four counts of sexually molesting a boy under 14 years old. All of the counts involved lewd or lascivious acts; one of them was found to have been committed through force or duress. (Pen. Code, § 288, former subds. (a), (b)(1).)
Sentenced to state prison for 14 years, defendant appeals. He contends the trial court erred (1) in denying his request that the prosecution elect a specific act for each of the four counts; (2) in denying his motion for new trial because the jury did not agree unanimously as to a specific act for each count; and (3) in admitting molestation testimony, under Evidence Code section 1108,*fn1 from another alleged victim of defendant's; defendant also claims (4) the evidence is insufficient under the generic testimony standard of People v. Jones (1990) 51 Cal.3d 294 (Jones). We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The victim was S.M., whose birth date is in September 1990. At the time of the alleged molestations, S.M. lived with his mother, C.M. (mother), and his brother, M.M.
S.M. was nearly 11 years old when he first met defendant in the summer of 2001 while attending Camp Bushido, a judo summer camp, that defendant ran. The next summer, S.M. returned to the camp, after defendant had called mother and requested S.M.'s presence. Mother accompanied S.M. to the 2002 camp and became friends with defendant.
Mother's family and defendant then exchanged several visits over the next two and a half years, and S.M. sometimes stayed alone with defendant.
The principal evidence against defendant consisted of the following categories: S.M.'s statements to law enforcement, S.M.'s trial testimony, two pretext phone calls between S.M. and defendant, two searches of defendant's residence, and evidence involving another alleged victim of defendant's, J.L. The catalyst for this evidence occurred when S.M., having "to get it off [his] chest," reported the molestations to his school counselor in January 2006.
Defendant countered this evidence with his own testimony, as well as evidence covering alibi, a psychological profile, and his good character. We will summarize this evidence now, using these categories.*fn2
S.M.'s Statements to Law Enforcement
In February 2006, S.M. told a forensic interviewer that he was first molested at defendant's house after the third year at judo camp. Among other acts, S.M. stated that defendant had sodomized him and had molested him on the floor.
In October 2006, Detective David Marshall interviewed S.M. Using a list of visit dates with defendant that mother had compiled from her old calendars, S.M. stated that defendant first molested him in July 2002 when S.M. stayed with defendant following his second judo camp. Defendant pulled S.M. from the bed to the floor and sodomized him. S.M. then told Detective Marshall of the following additional incidents:
In October 2002, after "bear-hugg[ing]" S.M., defendant pulled S.M. to the bedroom floor, forced his (defendant's) penis into S.M.'s mouth and sodomized S.M.
In December 2002, defendant sodomized S.M. and had S.M. sodomize him while mother was apparently asleep in the next room.
In January 2004, defendant touched S.M. while they were in S.M.'s kitchen.
S.M. testified that, following the judo camp in the summer of 2002 or 2003, he stayed alone with defendant at defendant's house for about two weeks. Another boy, J.T., stayed at defendant's house for about two days.
During this two-week period, defendant sexually molested S.M. about five or six times.
The first incident occurred around the fourth night that S.M. was there. Defendant summoned S.M. to his bedroom, showed him a pornographic movie, and then masturbated in front of S.M., telling the boy to "do it" to defendant. The ordered masturbation eventually ensued, with defendant finishing the job on his own and ejaculating onto the floor.
A few nights later, defendant sodomized a shocked and kneeling S.M. on the floor in front of defendant's bed while holding S.M. by the waist and using a lubricant jelly.
On still another occasion during this fateful stay, defendant had S.M. orally copulate and sodomize him while the two wore only shirts.
Between the ages of 11 and 14, S.M. estimated that he visited at defendant's house about 20 times. Three or four times, mother and his brother also visited. When they did so, mother would stay in one of the two guest rooms with S.M., which had two beds, and his brother would stay in the other. After mother and his brother fell asleep, defendant would direct S.M. to defendant's bedroom. From the first to the last of these visits, defendant molested an unwilling S.M. The last touching took place in S.M.'s kitchen when S.M. was finally able to ward off defendant's advances. In the summer of 2005, S.M. begged mother not to send him to Camp Bushido.
S.M. testified that, overall, at defendant's house: Defendant masturbated in front of S.M. about five to six times, and S.M. masturbated defendant on two or three occasions; defendant sodomized S.M. about 12 to 15 times, and had S.M. sodomize him about seven or eight times; and defendant orally copulated S.M. twice and made S.M. return the "favor" twice. Also twice, defendant physically restrained S.M. while sexually assaulting him, but it was clear that S.M. could not stop any of the molestations because defendant was a grown man and S.M. just a boy.
S.M. did not tell mother about defendant's sexual molestations because she would then feel she had "let [S.M.] down"; mother had wanted defendant to be a "father figure" for her two sons, and she had discussed S.M.'s behavioral problems with defendant.
Finally, S.M. was able to accurately describe defendant's unusual penis, which curved to the left, more noticeably so when erect (Detective Marshall testified that when he asked defendant if there was any legitimate way that S.M. could have known this, defendant replied, "not to that detail").
Directed by the police, S.M. made two pretext phone calls to defendant, the first in July 2006 and the second the following month.
In the July 2006 call, defendant advised S.M. that S.M. was "not gay" because of what the two of them had done together--they had just "experimented." Defendant added that if given the chance, he might do it again with S.M. When S.M. asked if he (S.M.) was the only male defendant had had sex with, defendant replied he had experimented a little bit when he was younger.
In the August 2006 call, defendant told S.M. to be "real careful" about what he told his school counselor about what they had done together. Defendant told S.M. not to disclose their age differences, but to tell the counselor he had "experimented" with someone his own age. The counselor was a "mandated reporter," defendant informed S.M., and disclosing what had happened would mean a "very good possibility" that defendant would go to jail.
Two Searches of Defendant's Residence
In September of 2006 and again the next month, the police searched ...