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The People v. David Gerald Leonard


May 13, 2011


Super. Ct. No. CRF08-2437

The opinion of the court was delivered by: Butz , J.

P. v. Leonard CA4


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.


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.'s Trial Testimony

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").

Two Pretext Phone Calls

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 defendant's residence.

During the September 2006 search, police found three Hispanic boys (eight to 12 years old) on the premises and, among other items, many photographs of other boys (including a framed photograph of defendant with his arm around S.M.), and a laptop computer. The laptop contained several video clips showing the genitalia of one of the three Hispanic boys who was there, as well as an additional 93 pictures of naked boys.

When officers conducted the second search, in October 2006, defendant was not at home. However, a computer "eraser" program was running, which the officers aborted.

Evidence Involving Another Alleged Victim, J.L.

J.L.'s mother testified that she and her husband used defendant for overnight respite care for their son, J.L., on approximately five occasions from fall 2002 into the summer of 2003 when J.L. was seven to eight years old. In October of 2006, J.L. told his parents that defendant had molested him.

J.L., who was 14 years old at the time of trial, testified that defendant sexually molested him during the second and third weekends that he stayed at defendant's house.

During the second weekend, defendant, overriding J.L.'s objection, got into the bathtub with J.L. and rubbed J.L.'s penis.

On the third weekend, defendant touched J.L.'s penis, had J.L. sit on him after he (defendant) removed his pants, and had J.L. rub his penis between defendant's legs. J.L. asked why defendant's penis was crooked. Someone then knocked on the door, and defendant told J.L. to hide. Defendant also told J.L. not to tell anyone about the touching, or J.L. would get in trouble.

Defendant's Testimony

Defendant acknowledged many of his visits with S.M. and S.M.'s family, disputed others, and denied having any sexual contact with S.M. between July 2002 and January 2004, as charged in the indictment.

When S.M. brought up sexual conduct in the pretext phone calls, defendant thought S.M. was talking about a past incident in which S.M. and an older boy, D.S., had masturbated themselves. Consistent with his training about counseling individuals in crisis, defendant "fed back" S.M.'s statements, and was trying to let S.M. know that it was normal to experiment sexually while growing up. However, defendant acknowledged telling S.M. that S.M. was "not gay" because the two of them had had sex together, that they had experimented, and that defendant might want to do it again.

Alibi Evidence

J.T., a "long-term" family friend of defendant's, testified that after Camp Bushido in 2003, he and S.M. stayed with defendant at defendant's house. S.M. stayed three days, while J.T. remained for about eight. J.T. said S.M. got homesick and called his mother to go home. J.T. never saw S.M. spend the night in defendant's bedroom--the two boys slept in the guest bedroom in two twin beds, and S.M. was there whenever J.T. awoke.

One of three Hispanic boys at defendant's residence during the first search testified that, as a joke, he took the video clip of his naked brother during a camping trip, and inadvertently downloaded the clip onto defendant's laptop computer.

Psychological Profile and Good Character Evidence

Dr. Don Siggins, a psychologist, examined defendant. The doctor opined that defendant's psychological profile was inconsistent with that of a child molester or pedophile.

This psychological evidence was buttressed anecdotally by several friends and family members of defendant, who testified to his good character and their belief that he would not act inappropriately with children.


I. Election of a Specific Act for Each Count Was Not Required on the Facts Here

Defendant contends the trial court erroneously denied his pretrial motion requesting the prosecutor to elect a specific sexual act for each of the four charged counts. We disagree.

The trial court denied the motion, reasoning that (1) the grand jury transcript and the police reports, which defendant was given before trial, adequately notified him of the acts underlying the charges, and (2) the jury would be instructed with CALJIC No. 17.01, the unanimity instruction.

Where, as here, the number of specific sexual acts exceeds the counts charged, the doctrine of election protects the defendant's due process rights (1) to be notified of the charges, and (2) to a unanimous jury verdict. (People v. Gordon (1985) 165 Cal.App.3d 839, 865-866 (conc. opn. of Sims, J.) (Gordon), maj. opn. disapproved on other grounds in People v. Frazer (1999) 21 Cal.4th 737, 765 & fn. 28 and People v. Lopez (1998) 19 Cal.4th 282, 292; People v. Dunnahoo (1984) 152 Cal.App.3d 561, 570-571 (Dunnahoo).) In the context of acts exceeding charges, an "either/or" rule has evolved: Either the prosecution must select the specific act relied upon to prove the charge, or the jury must be instructed that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. (People v. Gear (1993) 19 Cal.App.4th 86, 90; Gordon, supra, 165 Cal.App.3d at p. 853.)

The trial court did indeed instruct the jury with the unanimity instruction of CALJIC No. 17.01, stating as pertinent: "The prosecution has introduced evidence . . . that there is more than one act upon which a conviction may be based. . . . [I]n order to return a verdict of guilty [on any count], all jurors must agree [beyond a reasonable doubt] that [defendant] committed the same act or acts. It is not necessary that the particular act agreed upon be stated in your verdict."

Defendant contends, however, that the trial court erred in not granting his request to have the prosecution elect the specific act for each of the four charged counts, so as to provide defendant with fair notice of the charges he had to defend against. As defendant argues, the "either/or" rule, while protecting the right to jury unanimity, does not provide notice of specific charges if the prosecution does not elect specific acts at the outset of trial. (See Gordon, supra, 165 Cal.App.3d at pp. 865-866 (conc. opn. of Sims, J.).) Further complicating the issue of providing notice of specific charges occurs where, as here, the evidence shows a number of nonspecific "generic" molestations by a defendant who had repeated access to the victim. (Jones, supra, 51 Cal.3d at pp. 299-300.)

The dilemma of providing sufficient notice to satisfy due process--where the sexual acts exceed the charges and are described via nonspecific generic testimony--has been resolved as follows: The defendant is afforded sufficient notice through the triad of (1) the preliminary hearing, or, as here, the grand jury indictment transcript, (2) the pretrial pleading challenge afforded by a demurrer, and (3) pretrial discovery (e.g., police reports). (Jones, supra, 51 Cal.3d at pp. 317-319.)

The answer to the rhetorical inquiry as to how an indicted defendant can prepare a defense against nonspecific molestation charges is that a defendant must be prepared to defend against all offenses of the kind alleged in the indictment as were shown by the evidence before the grand jury (and by the information in the police reports) to have occurred within the time frame pleaded in the indictment. (See Jones, supra, 51 Cal.3d at p. 317; see also Gordon, supra, 165 Cal.App.3d at pp. 870-871 (conc. opn. of Sims, J.).) A defendant has no right to notice of the specific time or place of an offense, so long as it occurred within the applicable statute of limitations period. (Jones, at p. 317.) This is because the prosecution cannot provide more explicit notice than human nature and science permit; and mandating there be precise notice or otherwise the case be dismissed--in the context of the generic molester--may ironically let the most dangerous offenders off the hook. (Jones, supra, 51 Cal.3d at pp. 300, 317; see Gordon, supra, 165 Cal.App.3d at p. 868 (conc. opn. of Sims, J.).)

As we shall explain, given the facts presented at the outset of trial, the trial court did not err, on notice grounds, in denying defendant's motion for prosecutorial election.

In denying the election motion, the trial court reasoned, as noted, that the grand jury transcript and the police reports provided sufficient notice of the acts underlying the charges. As for his grand jury testimony, S.M. testified that the first sexual touching, which was masturbation, occurred during his first extended visit with defendant, which happened after S.M.'s second year at Camp Bushido. During this same visit, S.M. testified, defendant put him on the floor in front of defendant's bed and sodomized him, and then sodomized him again in the shower. S.M. testified more generically to several additional acts encompassing masturbation, oral copulation and sodomy during subsequent visits. S.M. stated that defendant would touch him sexually every time he visited defendant; and S.M. estimated, overall, there were at least 20 to 30 acts of masturbation, 10 acts of oral copulation, and 20 to 30 acts of sodomy.

Besides this grand jury testimony, there was the pretrial discovery including the police reports of the forensic investigator and Detective Marshall. These two reports roughly aligned with S.M.'s grand jury testimony, without providing the generic scope or number of assaults: Defendant first molested S.M. after the second or third year of judo camp, sodomizing him after pulling him from the bed to the floor; a second assault encompassed oral copulation and sodomy; and subsequent sexual assaults took place.

Furthermore, Detective Marshall had mother determine, using her old calendars, when S.M. visited defendant during the period alleged in the indictment: July 2002 to January 2004. This gave defendant notice of discrete time periods to defend against. And aside from the time of the offenses, defendant was well acquainted with their place: It was primarily at his place; one was in S.M.'s kitchen.

As for defenses, defendant was able to tender those which were available on the facts here: credibility, alibi, psychological profile, good character. Mistaken identity was not among the viable. (See Dunnahoo, supra, 152 Cal.App.3d at p. 571 ["Whether an accused has been adequately advised depends on the nature of the crime and the available defenses thereto."].)

Given S.M.'s grand jury testimony, the police reports, the discrete time periods, and the available defenses, we conclude the trial court did not err, on notice grounds, in denying defendant's request for prosecutorial election.*fn3

Defendant disagrees for two reasons. We are not persuaded.

First, defendant looks to People v. Salvato (1991) 234 Cal.App.3d 872. As relevant here, Salvato involved a prosecution for the offense of criminal threat (Pen. Code, § 422), which charged one offense on evidence showing several distinct threats. (Salvato, at pp. 878, 882, 884.) To ensure a defendant's due process right to be notified of charges, Salvato held that where the evidence in a criminal prosecution shows a larger number of distinct, potentially criminal acts than have been charged, the prosecution must, upon the defendant's request, elect a specific act for each charge. (Id. at pp. 878-879, 882.)

Salvato is inapplicable here because here we confront, not the kind of distinct criminal acts (criminal threats) as in Salvato, but essentially generic molestation testimony involving an alleged molester who had repeated access to the victim over a lengthy period. (See Salvato, supra, 234 Cal.App.3d at pp. 882, 884.)

Second, defendant asserts that while the pretrial notice furnished by the police reports encompassed a small number of sexual acts, the trial evidence mushroomed exponentially based on generic incidents. However, as we have seen, S.M.'s grand jury testimony, the transcript of which defendant had before trial, generically set forth an abundance of acts too. So, defendant was on notice in this regard: He would have to be prepared to defend against all offenses of the kind alleged in the indictment as were shown by the evidence before the grand jury to have occurred within the time frame pleaded in the indictment. (Jones, supra, 51 Cal.3d at p. 317.) The prosecution had no duty to provide more explicit notice than human nature and science permit. (Ibid.) And the facts here helped to provide notice to defendant because the indictment's time frame encompassed a series of discrete visits to which defendant could turn his defensive attention.

II. The Trial Court Properly Denied the Motion for New Trial

Defendant contends the trial court erroneously denied his motion for a new trial based on juror misconduct, in that the jury failed to follow the unanimity instruction of CALJIC No. 17.01 to find a specific act for each charged count within the time period alleged in the indictment (July 2002 to Jan. 2004). (Pen. Code, § 1181, subd. 3 [juror misconduct is basis for new trial].) We disagree.

This motion was decided largely on dueling declarations from jurors.

When a party moves for a new trial based on juror misconduct, the trial court undertakes a three-step inquiry. (People v. Von Villas (1992) 11 Cal.App.4th 175, 255 (Von Villas). First, the court determines, pursuant to the Evidence Code, whether the declarations supporting the motion are admissible under section 1150, subdivision (a) (overt acts and statements, if otherwise admissible, are admissible; effect of such acts and statements on a juror's thought process is not). Second, if the evidence is admissible--and it is undisputed the declarations were admissible here concerning the issue of whether the jury followed the unanimity instruction--the court determines whether the facts establish misconduct. Finally, assuming misconduct, the court determines whether the misconduct was prejudicial. (Von Villas, supra, 11 Cal.App.4th at p. 255.)

An appellate court reviews independently the determination of prejudice arising from juror misconduct, but the trial court's credibility determinations and factual findings are reviewed under the more deferential substantial evidence standard. (People v. Nesler (1997) 16 Cal.4th 561, 582 & fn. 5.)

A. The Juror Declarations

In his motion for new trial, defendant submitted four juror declarations. As pertinent:

(1) Juror No. 276610 stated the four counts occurred between September 2003 and February 2006; the "incidents were never broken down that a specific incident was a specific count"; and the juror could remember only that count 1 was masturbation;

(2) Juror No. 279652 could recall only that count 1 was the masturbation and count 3 was the sodomy, and both occurred when S.M. stayed with defendant following the second judo camp;

(3) Juror No. 287216 stated the "entire 12 person jury, as a whole, never agreed what was the sexual act" that supported each of the counts; and could recall only, based on the juror's belief, that count 1 was sodomy; and

(4) Juror No. 299667 could remember only that one of the forcible counts involved sodomy.

The prosecution countered with eight declarations, three of which were from the defense declarants (1), (2) and (3). As pertinent:

(1) Juror No. 276610 (also, defense declarant (1) above) stated "that the jury discussed the acts that took place, and that the acts took place during the time in question, but we did not put the acts on any specific day"; (2) Juror No. 279652 (also, defense declarant (2) above) stated that "we decided on each specific act . . . found for each count and . . . decided unanimously. I am unable to remember each of them now"; (3) Juror No. 287216 (also, defense declarant (3) above) now remembered that the first count involved masturbation, and stated that "[w]e talked about specific acts and agreed what they were"; (4) and (5) Juror Nos. 279325 and 306037 both stated that the jury agreed on the four counts that fell within the timeline given, and that the jury discussed the specific sex acts and agreed as to each count "what we were finding the defendant guilty of"; (6) and (7) Juror Nos. 297909 and 286507 both stated essentially that the timeline in the case was not a big issue because it was a given; and (8) Juror No. 284599 could not now recall the specific counts, but remembered that one had to do with defendant's forcing himself into S.M. (sodomy) while on the floor and another involved masturbation.

In rebuttal, defendant submitted what was now the third declaration from Juror No. 287216, stating that "we, as the entire jury, never all agreed that a specific and discrete act supported a specific count" and "my personal opinion [now] is count [1] was sodomy [this juror's first declaration stated that count 1 was sodomy; but the second declaration stated masturbation]."

B. Analysis

At the outset, we reject any contention that the jury used the wrong timeline for the offenses. Defendant points to Juror No. 276610's initial declaration, for the defense, that this timeline ran from September 2003 to February 2006. The indictment alleged that the offenses occurred between July 2002 and January 2004. In a subsequent declaration for the People, this same juror, No. 276610, noted that the jury discussed that the acts "took place during the time in question"; and two other jurors confirmed that the timeline was not a big issue as it was a given (presumably because it was alleged in the indictment). Against this backdrop, Juror No. 276610's lone initial statement of the timeline for the offenses appears to be a simple numerical error.

That brings us to the crux of the new trial motion--whether the jury agreed unanimously on a specific act for each count as instructed by CALJIC No. 17.01.

As the trial court found, the four defense declarations, in describing a failure to remember which act led to which count, do not establish misconduct; they establish only a failure to remember, not surprising given that over three months elapsed between when the trial ended and the declarations were made. Indeed, we add that the stated failure to remember the acts for some counts, while remembering the acts for other counts, supports a conclusion that the jury did link certain acts with certain counts, as instructed by CALJIC No. 17.01.*fn4

The more pertinent defense declaration statement from Juror No. 276610 that "[t]he incidents were never broken down that a specific incident was a specific count" was stated in the context of the issue of when the offenses occurred rather than what those offenses were. As explained in Juror No. 276610's subsequent declaration for the People, "the jury discussed the acts that took place, and that the acts took place during the time in question, but we did not put the acts on any specific day. We all understood that as long as the act took place during the time in question, it counted."

That leaves the two defense declarations from Juror No. 287216, stating that the entire jury never agreed what sexual act comprised what count. These statements constitute evidence of juror misconduct--i.e., a failure to follow the unanimity instruction of CALJIC No. 17.01. But for the reasons set forth below, we agree with the trial court that the prosecution successfully countered this evidence of misconduct.

Juror No. 287216 also submitted a declaration for the People, sandwiched between the juror's two defense declarations, stating: "[W]e did discuss all the evidence, including specific sex acts, and how it related to the counts. . . . [¶] . . . We talked about specific acts and agreed what they were. . . . [¶] . . . [¶] . . . On the final vote the jury took, we all agreed that [defendant] was guilty of all four counts." Furthermore, the People submitted declarations from Juror Nos. 279325 and 306037 stating that the jury discussed the specific sex acts and "agreed as to each count what we were finding the defendant guilty of." Finally, to the extent that Juror No. 287216's three declarations were inconsistent, the trial court found, and this was a credibility call for the trial court, that Juror No. 287216 seemed to be a people-pleasing person who would "continue to sign conflicting declarations for the next ten years." In light of Juror No. 287216's succession of supporting declarations for both sides, substantial evidence supports this finding.

We conclude the trial court properly denied defendant's motion for new trial alleging juror misconduct.

III. The Trial Court Properly Admitted J.L.'s Testimony Under Section 1108

Defendant contends the trial court abused its discretion in admitting, under section 1108, J.L.'s testimony that defendant sexually molested him. We disagree.

Section 1108 authorizes, in a criminal action in which the defendant is accused of a sexual offense, the admission of evidence that the defendant committed another sexual offense or offenses, to show the defendant's propensity to commit such offenses. (§ 1108, subd. (a); People v. Falsetta (1999) 21 Cal.4th 903, 907.) To satisfy due process concerns, however, the admission of section 1108 evidence is subject to section 352, under which the prejudicial effect of such evidence must be weighed against its probative value. (Falsetta, supra, at pp. 907, 916.)

The trial court did not abuse its discretion in finding the probative value of J.L.'s testimony outweighed any prejudicial effect. As for probative value, both J.L. and S.M. were molested around the same time (2002-2004) when J.L. was seven to eight years old and S.M. was 11 to 13 years old; both boys were entrusted to defendant's care, and were exceptionally vulnerable--each had emotional problems of which defendant was aware; both molestations included penis rubbing; and J.L.'s claims were independent of S.M.'s. As for prejudicial effect, J.L.'s claims were not more inflammatory than S.M.'s; and the evidence involving J.L. encompassed only two witnesses (J.L.'s mother testified too) and was not likely to confuse or mislead the jury. (See People v. Hollie (2010) 180 Cal.App.4th 1262, 1274 [setting forth these factors of probative value and prejudicial effect].)

Defendant recognizes this unfavorable state of affairs, and tries another approach in his argument. He claims the J.L. evidence was unduly prejudicial and misled the jury because the jurors did not believe S.M., but convicted defendant anyway because they believed J.L.

For this argument, defendant relies on two brief passages from two juror declarations that the People had submitted to counter defendant's motion for new trial (i.e., the motion which alleged the jury did not follow the unanimity instruction).

First, Juror No. 297909's declaration stated: "The testimony of the two boys, [S.M.] and [J.L.] was believable. [J.L.] was more believable than [S.M.] I believe that [S.M.] was not as believable, but that was only because of his age and when this happened. . . ." Assuming for the sake of argument that this portion of the declaration was admissible under section 1150 (a juror's decisionmaking mental processes is inadmissible), this juror found S.M. believable. Defendant argues the J.L. testimony confused the juror, however, because S.M., not J.L., was the older of the two boys when they were molested. Still, though, the juror found S.M. believable. Furthermore, perhaps this juror meant the older boy was the more believable one, i.e., S.M.

Second, Juror No. 287216's declaration stated as pertinent: "[S.M.'s] testimony was 'iffy' to me. . . . To me, J.L. was 'straight up' and very believable." Assuming again for the sake of argument that the section 1150 hurdle is cleared, this juror says S.M.'s testimony was "iffy," not unbelievable.

Defendant proceeds to argue from these two declarations that without J.L.'s testimony, "at least two jurors would likely not have found [defendant] guilty based upon hearing S.M." This is a big stretch in light of what we just said. Furthermore, aside from S.M.'s testimony, the evidence against defendant included the devastating pretext phone calls with S.M. and productive searches of defendant's residence.

We conclude the trial court did not err in admitting into evidence J.L.'s testimony under section 1108.

IV. The Evidence Is Sufficient

Continuing his theme that the jury failed to find four sexual acts to support his convictions, defendant claims the evidence is insufficient because S.M.'s testimony did not meet the standard for sufficient generic testimony set forth in Jones, supra, 51 Cal.3d 294, and because S.M.'s testimony was inherently improbable. We disagree.

A. Jones Standard

Under Jones, supra, 51 Cal.3d 294, a child's purely "generic" testimony regarding multiple sexual molestations over a period of time constitutes sufficient evidence to support multiple convictions if the testimony describes "[(1)] the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy)[;] . . . [(2)] the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., 'twice a month' or 'every time we went camping')[;] . . . [and (3)] the general time period in which these acts occurred (e.g., 'the summer before my fourth grade,' or 'during each Sunday morning after he came to live with us'), to assure the acts were committed within the applicable limitation period. Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim's testimony, but are not essential to sustain a conviction." (Jones, 51 Cal.3d at p. 316.)

S.M.'s testimony, summarized in the Factual and Procedural Background of this opinion, satisfies these three criteria and includes significantly more than four sexual acts. As noted, the indictment charged defendant with a first and final incident, and a first and final incident with force, within the time frame of July 2002 to January 2004. S.M. testified to several separate sexual acts, which took place when S.M. visited defendant during this time period, and the dates of these visits were established from old calendars of S.M.'s mother. S.M. testified that defendant sexually molested him every time S.M. visited, and S.M. estimated the overall numbers of each kind of sexual act.

More specifically, S.M. described a masturbation act as the first incident and a sodomy as the first incident with force. S.M. testified that these took place during his first extended visit with defendant following the judo camp in 2003. The prosecutor argued along these very lines in closing argument, and logically explained to the jury that if it believed defendant molested S.M. more than once and more than once with force, there were, respectively, first and final incidents in these two respects. The jury was instructed that it must agree unanimously as to each act for each count, and, as explained in part II of this opinion, substantial evidence shows the jury did so.

Furthermore, S.M.'s statements to law enforcement, as well as the pretext phone calls and the searches of defendant's residence, corroborated S.M.'s testimony and provided further evidence of defendant's guilt. We conclude that S.M.'s generic testimony constituted sufficient evidence under the Jones standard.

B. S.M.'s Testimony Not Inherently Improbable

Alternatively, defendant argues that S.M.'s testimony was inherently improbable on all counts. We disagree.

Defendant has misperceived the principle of inherent improbability. Defendant argues, for example, that S.M.'s testimony that he told Detective Marshall the sexual molestation began after the 2002 judo camp was inherently improbable because S.M. also testified the molestation first occurred after the 2003 judo camp; and that the sexual incidents S.M. described when his mother and brother were also visiting defendant were inherently improbable because the bedrooms were near one another and the floors creaked. But these examples are not examples of inherent improbability. Inherent improbability does not encompass testimonial inconsistencies or contradictions, or unusual circumstances; instead, the term means unbelievable on its face or physically impossible. (See People v. Carpenter (1955) 136 Cal.App.2d 726, 728; People v. Moreno (1938) 26 Cal.App.2d 334, 336.)


The judgment is affirmed.*fn5

We concur: RAYE , P. J. ROBIE , J.

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