IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado)
January 17, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
CLAYTON J. WEBB, DEFENDANT AND APPELLANT.
(Super. Ct. No. P08CRF0371)
The opinion of the court was delivered by: Butz, J.
P. v. Webb
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Before the start of trial testimony, defendant Clayton J. Webb entered guilty pleas to orally copulating a 14-year-old boy in 2007 (three counts), using him as a sex model, possessing child pornography, and violating a restraining order protecting the minor and defendant's now former girlfriend (three misdemeanor counts). At the conclusion of trial, a jury convicted him of forcible oral copulation with the minor, providing the minor with various controlled substances (four counts), making criminal threats and dissuading a witness (both involving the former girlfriend), an additional count of possessing child pornography, and six counts of molestation of a second victim (a 13-year-old boy). The trial court sentenced defendant to 35 years four months in state prison, limiting his pretrial conduct credits to 15 percent of his actual custody. (Pen. Code, §§ 2933.1*fn1  [imposing this limitation notwithstanding any other provision of law if conviction is for violent felony], 667.5, subd. (c)(5) & (6) [designating lewd acts with a child and forcible oral copulation as violent felonies].)
On appeal, defendant argues his convictions for molesting the second victim are insufficient as a matter of law because he did not himself touch the victim nor instigate a third party to touch the victim, and did not coerce the victim to touch himself. Regarding instructions, he contends the admonition that a victim of a sex crime does not need to be corroborated resulted in the jury according special deference to the victim's credibility because it appeared right after instructions on credibility; the jury could have interpreted the instruction on criminal threats to include his threats of suicide; and the lack of a unanimity instruction made it possible that the jury might have failed to agree on the acts underlying the drug convictions and the conviction for criminal threats. Finally, he maintains that a full consecutive sentence for forcible oral copulation was unauthorized. The People properly concede the latter point. We shall modify accordingly and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The parties give lengthy accounts of the trial testimony, including the extensive skein of events from the uncovering of defendant's wrongdoing to his arrest. We include only those facts essential to defendant's arguments and omit the remainder from the opinion.
Offenses Involving the First Minor Victim
Defendant was born in November 1987. The first minor victim, Stephen R. (hereafter Stephen), was born in January 1993. Defendant, a family friend, and Stephen first met in 1999 or 2000 when Stephen was six or seven, and defendant began to baby-sit him. In 2001 or 2002, defendant asked if he could "give [Stephen] a blow job." Stephen was not familiar with the term, but he could tell it had a sexual connotation and he declined. Nothing physical occurred between them. Defendant moved into his own apartment with his girlfriend in 2005, and Stephen lost contact with him.
In July 2007, defendant and his girlfriend moved to a house near defendant's mother. Around the time of a trip he took to Yosemite in September 2007, Stephen reestablished contact with defendant. Stephen soon felt that defendant had become his best friend.
Defendant began to urge Stephen repeatedly to join him in a masturbation "contest" to see who could ejaculate faster. Shortly after the Yosemite trip, Stephen eventually agreed because defendant would get mad at his repeated refusals. The first occasion was in the garage; Stephen recalled that B.W. (the second minor victim) was also present. The three sat next to each other on a platform watching heterosexual pornography on a television while they masturbated. Stephen noticed out of the corner of his eye that defendant was watching him rather than the television. After the first time, this activity took place every other day in various rooms in the house when defendant's girlfriend was away, or at defendant's place of business (Hemp Magic). B.W. joined them a few more times.
After a couple of months, defendant began asking again if Stephen would let defendant fellate him. Stephen kept declining the request until defendant offered him drugs as an inducement. The first time, defendant offered him a freezer bag's worth of marijuana, and Stephen allowed defendant to fellate him while he sat in a chair in the back room of Hemp Magic. The second time was a few weeks later, but ultimately there were more occasions than Stephen could count, every other week. In addition to marijuana, defendant gave him Ecstasy, "acid," methamphetamine, and maybe morphine. Although defendant also asked Stephen to fellate or sodomize him, Stephen refused to do so. On one occasion, defendant apparently videotaped one of their sexual encounters without Stephen's knowledge at Hemp Magic. Stephen believed this must have been just before Christmas 2007, based on the jacket he was wearing in the video.
In May 2008, Stephen moved in with defendant and the girlfriend. He did not think it was worth it any longer to accept drugs in exchange for being defendant's unwilling sex partner, and began to refuse defendant. Defendant accordingly started forcing Stephen to comply, yanking down the latter's pants, pushing him into a chair, and fellating him while pinning down his forearms. Stephen submitted because defendant was always physically dominating him, making him feel "small and worthless." He would feel ashamed afterward.
Offenses Involving the Second Minor Victim
B.W., the second minor victim, was born in July 1994, and is the younger brother of defendant's girlfriend. When defendant met his girlfriend, B.W. felt that defendant became the "[b]est friend [he] ever had." B.W. would visit defendant at his home once a week, watching television or playing games, and sometimes would stay for the weekend. In August 2007, defendant broached the subject of masturbation contests, telling B.W. that he had done this with a couple of friends in high school. They were in the defendant's living room, and masturbated while watching pornography. A couple of days later, defendant asked B.W. to join in another contest, and B.W. agreed. There were more of these incidents than he could count in various sites in the house and down by the river. They stopped in December 2007 because B.W. was feeling "nervous and . . . a little awkward." Defendant did not engage in any other type of sexual conduct with him, or ask B.W. to do so. In B.W.'s recollections, Stephen was never present for the contests.
Criminal Threats and Defendant's Arrest
By the summer of 2008, defendant and his girlfriend had separated, although they were working at reconciliation. She lived elsewhere, but her belongings were still in their home and she spent time there with defendant. As defendant had behaved suspiciously regarding the memory card in a camera she had given him, she looked at the camera in his absence. She was able to view the first video; it was about 35 seconds in length, panning over the body of Stephen, who was asleep in his boxers (on which the camera focused several times).*fn2  She was aware that defendant had an omnivorous sexual taste, and was concerned that he was fantasizing about Stephen When she was finally able to access the other video at her mother's home, it was the recording of the act of fellatio with Stephen at Hemp Magic.
The girlfriend and a female companion went to Hemp Magic to confront defendant. The girlfriend came straight to the point, asking him, "How long have you been sucking [Stephen's] dick for?" Defendant initially blustered a denial. After about 45 minutes of argument, he eventually admitted the truth, insisting he had simply been showing his love for Stephen by making him feel good, which should not be a cause for her to be upset. He looked at her "very seriously, and very calmly said [that] if [she] told anyone about this, he was going to kill us all." Aware that defendant owned guns, the girlfriend took this threat seriously. Defendant initially prevented her from leaving, grabbing her purse and cell phone. Eventually, he needed to use the bathroom, which was outside. After he walked out of the store, the girlfriend quickly left (taking the guns that were in his car with her). The entire encounter had lasted four hours.
The girlfriend returned to defendant's home. About 5:00 a.m. the following morning, defendant called. He had not been home. He calmly asked if she had taken his guns. When she admitted that she had, he reminded her that she "forgot [his] other .22," and hung up. This made her feel "terrified" for both herself and him, as "it occurred to [her] that he might want to kill himself." She tried to call him back but was unable to reach him at Hemp Magic and left two messages. He then called her back to say, "it doesn't matter what anybody thinks about [me] if [I'm] dead." He eventually came home.
Omitting all the intermediate conversations among various friends and relatives over the remainder of that day about the course of action the girlfriend should take, we note only that she finally made a report to the police on the following day. She gave the officer a copy of the recording that she had made. The police were able to arrest defendant the day after. The police obtained defendant's computer from his sister. The drive contained pornographic images of minor males engaging in sexual conduct with each other that had been deleted.
I. Constructive Touching of B.W.
Defendant begins his argument with a criticism of the deviation between the statutory definition of lewd and lascivious acts with children younger than 14 (§ 288, subd. (a)) and the pattern instruction (CALCRIM No. 1110). Actually, his focus is on the line of cases on which the instruction bases this deviation. He contends that if a defendant does not personally touch the victim's body, we should repudiate entirely existing authority to the extent that it allows a conviction where the act (as in the case at bar) involves a victim touching himself (rather than a third party touching the victim), or we should limit the rule to coerced self-touching. He thus concludes that because the evidence at trial did not include any coercive circumstances in connection with the five convictions based on B.W.'s masturbations in concert with defendant, the convictions are not supported by substantial evidence.
In People v. Roberts (1972) 26 Cal.App.3d 385, 387-388, the court held that a defendant could properly be charged with aiding and abetting child molestation where he "instructed and encouraged" five children younger than 14 to engage in sexual activities, even where he did not personally touch any of the victims.
People v. Austin (1980) 111 Cal.App.3d 110, citing Roberts, upheld the conviction of a defendant who coerced a child with a knife and an offer of money to pull down her pants even though he did not touch the child himself; it premised his liability on the theory that he was a principal of an innocent agent's actual commission of the touching. (Austin, at pp. 112, 114-115.)*fn3 
In People v. Meacham (1984) 152 Cal.App.3d 142, 153-154, the court agreed with the result in Austin but reached it by a different analytic route--applying the concept of a defendant's "constructive" touching of a victim that it imputed to him where he directed the victims to place their hands upon their genitals (likening it to a burglar directing homeowners to open a door to their home).
Recently, People v. Lopez (2010) 185 Cal.App.4th 1220, 1228-1233, described the concept of constructive touching as well accepted and having the imprimatur of the Supreme Court in People v. Mickle (1991) 54 Cal.3d 140, 176 (Mickle),*fn4  before deciding if the constructive touchings in the case before it constituted independent offenses of themselves or were merely preparatory (at the defendant's request, the victims had changed into provocative clothing in another room).
Whatever the shortcomings of Austin's agency theory, we have not found any authority impugning the jurisprudential underpinnings of applying the concept of constructive touching in the context of lewd acts with a child molestation.*fn5 While it is true (as defendant points out) that Mickle was not asked to rule on the doctrine itself, and thus is not authority for that principle (Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1166 [ratio decidendi determined from facts and issues before court rendering opinion]), nothing in Mickle or the other Supreme Court cases in footnote 4, ante, indicates that the parties or the court had any qualms about the validity of the doctrine. As Martinez, supra, 11 Cal.4th at page 444, holds, the "'gist'" of the offense is the sexually exploitative intent of a defendant, not the particular type of touching. Consequently, we reject defendant's effort to challenge the viability of applying constructive touching where victims touch themselves at a defendant's lewdly inspired behest.
Defendant's effort to find a persuasive rationale for a limitation of constructive self-touchings to coercive situations is ineffective. A touching against the will of a child has its own proscription. (§ 288, subd. (b).) "[F]orce or duress are not required elements of a section 288[, subd.] (a) offense." (People v. Fulcher (2006) 136 Cal.App.4th 41, 51.) If coercion is not an element of the offense, it cannot be a criterion for conduct otherwise included within the offense.
Defendant has failed to convince us we should apply the law to the facts of the present case in his suggested manner. We therefore reject his claim of the evidentiary insufficiency of the convictions involving B.W.
II. Instructional Issues
A. Proximity of Single-witness and Noncorroboration Instructions
The trial court delivered the following two pattern instructions one after the other: "The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all of the evidence in the case. [¶] A conviction of a sexual assault crime may be based upon the testimony of a complaining witness alone."
Defendant argues that a jury reading these two instructions in sequence would be substantially likely to conclude that the noncorroboration instruction is actually an instruction that the complaining witness should be accorded a special deference, which would violate his right of due process because it would lessen the prosecution's burden of proof. Defendant admits that People v. Gammage (1992) 2 Cal.4th 693, 700-702 (Gammage), found the two instructions had different foci, and did not have any synergistic effect on the credibility of a complaining witness when both appeared in the charge to a jury. However, he argues Gammage is premised (apparently sub silencio) on the fact that there were "25 intervening instructions" between the two. (Id. at p. 696.) He then launches into an extensive criticism of the credibility of the two minor victims here, claiming instructions that give them special credence resulted in prejudice to him.
Defendant agrees "the general rule is that the order in which instructions are given is immaterial and is left to the sound discretion of the trial court" (People v. Visciotti (1992) 2 Cal.4th 1, 61), but other than that case's suggestion that the order of instructions under certain circumstances might lead to confusion of a jury (ibid., citing People v. Ford (1964) 60 Cal.2d 772, 793 [making similar suggestion]), defendant does not identify (and we have not found) any case holding that the order in which a trial court assembled jury instructions resulted in a substantial likelihood of misinterpretation.
In point of fact, Gammage (and any court evaluating a claim of instructional error) was required to look at the instructions as a whole to determine a substantial likelihood of a reasonable jury interpreting the instructions in the manner a defendant posited. (Boyde v. California (1990) 494 U.S. 370, 378, 380 [108 L.Ed.2d 316, 326, 329]; People v. Holt (1997) 15 Cal.4th 619, 677; People v. Kelly (1992) 1 Cal.4th 495, 525.) Defendant's argument rests on a skewed view that the Gammage holding depends on viewing each instruction in isolation from the other. That Gammage described the single-witness instruction as "given with other instructions advising the jury how to engage in the fact-finding process" and the noncorroboration instruction as "given with other instructions on the legal elements of the charged crimes" (Gammage, supra, 2 Cal.4th at pp. 700-701) is simply descriptive, to emphasize that the class of instructions to which each belongs have different objects: "one instruction merely suggests careful review when a fact depends on the testimony of one witness. The other tells the jury there is no legal corroboration requirement. Neither eviscerates or modifies the other." (Id. at p. 701.) This is just as true when they are far apart as when they are rubbing shoulders. We thus do not agree with defendant that it is substantially likely a jury would misinterpret the proximate instructions as he posits.
B. Ambiguity of Instruction on Criminal Threat
A criminal threat occurs where "Any person . . . willfully threatens to commit a crime which will result in death or great bodily injury to another person" that causes others "reasonably to be in sustained fear for [their] own safety or for [their] immediate family's safety," the latter including anyone "who regularly resides . . . or, . . . within the prior six months, regularly resided in the household" of the victim of the threat. (§ 422, subds. (a), (b).)
Defendant's threat at Hemp Magic to "kill us all" on its face could have included not only the girlfriend (or Stephen) but defendant himself. The girlfriend in fact stated she did not leave immediately after defendant made that threat because she wanted first to defuse the situation, since she was afraid defendant might use his guns to harm not only her but himself as well.
The instruction on the elements of criminal threat in each instance specified that they involved a criminal threat against the girlfriend of death or great bodily injury; however, when it came to the element of fear, the instruction stated that the jury must find that she feared for her own safety or for the safety of her immediate family. Defendant argues the jury could have convicted him of making a criminal threat, even if it did not believe that the girlfriend experienced sustained fear for her own safety, if it believed she was in fear for his safety (as a member of her immediate family under the statutory definition included in the instruction). Because suicide (or self-infliction of great bodily injury) are neither crimes themselves nor are threats against any other, this would allow the possibility of defendant's conviction for an act not within the statute.
We agree that the failure to delete the phrase relating to fear for the safety of the girlfriend's immediate family created the possibility that the jury could have considered her fear for defendant's safety. However, we do not believe that there is a substantial probability that a reasonable juror--otherwise focused on the threat against the girlfriend in the other paragraphs of the instruction--would suddenly take the opportunity afforded as a result of the ambiguity to abandon this focus and instead convict defendant of a criminal threat under the scenario he poses. We thus reject the argument.
C. Absence of a Unanimity Instruction
1. Criminal threat.
As noted above, at Hemp Magic defendant threatened to kill "us all" if the girlfriend disclosed the existence of the video recording of his oral copulation of Stephen, and suggested in the phone call on the following morning that he had another gun (after she admitted taking the guns from his car). Referring to the first incident in her closing argument, the prosecutor said, "It's then, at that place, at Hemp Magic, on August 18th . . . , [t]hat's when the threat to [the girlfriend] happened. That's the date of that. [¶] What happens . . . the next day . . . , around 5:00 a.m., . . . [t]hat's part of the intimidating a witness. [¶] The actual threat is also intimidating a witness [along with the early-morning phone call]." The prosecutor later reiterated that the criminal threat against the girlfriend "was just one specific date. There's no question it happened on . . . the date she went into Hemp Magic, on the 18th." She also reiterated "the facts that support dissuading a witness" were the threat at Hemp Magic, the phone call claiming to have an additional gun, and a threat to report the girlfriend to Animal Control (which we omitted from our account), "all of those facts go[ing] to show that that's what the defendant was doing." After arguing that the girlfriend's actions did not indicate sustained fear from the threat after leaving Hemp Magic, defense counsel otherwise connected the various threats solely with dissuading a witness.
Defendant invokes the settled proposition that where there are alternative factual bases for an offense, the prosecution must affirmatively communicate to the jury an election of the act on which it based the count with a "clarity and directness" sufficiently akin to an instruction; otherwise, the trial court must instruct the jury on the need to agree unanimously on the factual basis. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1536, 1539.) He contends the prosecutor in the present case did not adequately communicate that only the Hemp Magic threat, and not the implied threat in the phone call the following morning, was the basis for the count alleging a criminal threat.
We disagree. The argument we have quoted communicated as clearly as any instruction that the count involving the criminal threat had only the Hemp Magic threat as its basis. Therefore, we reject defendant's argument that a unanimity instruction was needed in this context.
2. Furnishing controlled substances.
In his testimony regarding defendant's provision of drugs to Stephen as an inducement for the latter's acquiescence to defendant's acts of fellatio, Stephen estimated defendant consistently gave him Ecstasy throughout the summer of 2008 more times than he could count, and gave him acid on two occasions. The information charged one count of providing Ecstasy and one count of providing acid.
Although defendant makes an amorphous prejudice argument from the failure to instruct the jury to agree unanimously on a particular incident of providing each of the two controlled substances, we reject it out of hand. He does not identify any discrete defenses on the evidence at trial that would allow the jury to conclude that some of these ongoing acts of furnishing drugs occurred but not others. Therefore, prejudice was not a possibility. (People v. Riel (2000) 22 Cal.4th 1153, 1199; People v. Curry (2007) 158 Cal.App.4th 766, 783-784.)
III. Unauthorized Full Consecutive Term
For the count involving the forcible fellation of Stephen (count V), the trial court in its discretion imposed a full consecutive middle term of six years, purportedly under the authority of section 667.6, subdivision (c). However, the trial court had earlier found that all the crimes were committed on different occasions in announcing its intent to impose consecutive terms for all the convictions. A full consecutive term is authorized under the statute only where a conviction involves the same victim on the same occasion. Defendant claims we must vacate the sentence and remand for resentencing.
The People properly concede the issue, but maintain remand is unnecessary. We agree.
The trial court has already manifested its intent to impose consecutive sentences for all counts. The only effect of the error is to reduce the length of the consecutive sentence for the forcible oral copulation of Stephen (count V) from six years to two years. We can make this modification without the need for remand.
Sentence on count V is modified to a consecutive term of two years (one-third of the middle term for the offense). The trial court shall prepare an amended abstract of judgment to reflect this modification and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: NICHOLSON , Acting P. J. MAURO , J.