Trial Court: Santa Clara County Superior Court No.: CC818769 Trial Judge: The Honorable Arthur Bocanegra (Santa County Super. Ct. No. CC818769)
The opinion of the court was delivered by: Rushing, P.J.
CERTIFIED FOR PUBLICATION
(Santa County Super. Ct. No. CC818769)
A jury convicted defendant Bruce Allen Rouse of sexual offenses. He claims that there was insufficient evidence for certain convictions and that the trial court erred in allowing all charges to be tried in front of the same jury, instructing on intent and propensity, allowing testimony about child sexual abuse accommodation syndrome, and failing to instruct on lesser included offenses.
We will affirm the judgment.
The jury convicted defendant of multiple crimes arising out of or relating to his sexual abuse of a number of children.
Some of the crimes involved physical contact with minors. Specifically, the jury convicted defendant of four counts of a forcible lewd or lascivious act on a child under age 14 (§ 288, subd. (b)(1)),*fn1 one count of a nonforcible lewd or lascivious act on a child under age 14 (§ 288, subd. (a)), one count of a lewd or lascivious act with a child age 14 or 15 by a person at least ten years older (§ 288, subd. (c)(1); see id., subd. (a)), one count of sexual intercourse with a minor 10 years old or younger (§ 288.7, subd. (a)), and one count of battery (§ 242).
The other crimes involved child pornography. The jury convicted defendant of one count of possessing material depicting a minor engaged in sexual conduct (§ 311.11, subd. (a)), one count of using a minor to model or pose in order to produce sexually oriented images (§ 311.4, subd. (c)), three counts of sexual exploitation of a child by developing or duplicating sexually oriented images of a minor (§ 311.3, subd. (a)), and one count of exhibiting "harmful matter" to a minor for purposes of seduction (§ 288.2, subd. (a)).*fn2
The jury found true allegations under the "One Strike" law that defendant committed sexual offenses against more than one child. (§ 667.61, subds. (b), (c), (e)(4).)
The trial court sentenced defendant to 100 years to life in state prison consecutive to five years therein.
There were five victims. Their first names begin with An., As., Br., Cy., and Sk. We will refer to them in ascending order of age as Victim One (Sk.), Victim Two (Br.), Victim Three (An.), Victim Four (As.), and Victim Five (Cy.).
Victim One is defendant's granddaughter. Victims Two, Three, and Four are the daughters of a Chula Vista (San Diego County) couple. That couple were friends with defendant and his family and would visit and have their children visit the San Jose home where defendant and his family lived.*fn3 Victim Five is defendant's niece by marriage.
In addition to the facts set forth in this section, additional facts will be stated in connection with specific claims that require their elaboration.
Defendant's molestation of Victim One resulted in his conviction of having sexual intercourse with a child 10 years old or younger (§ 288.7, subd. (a)). In this case, the child was 11 months old.
A San Jose police detective who was inspecting digital images found on defendant's computer found about 15 that showed the erect penis of an adult male and a female baby; "in a couple of them, there's a penis penetrating the labia of the baby," a police detective testified. The baby turned out to be Victim One, defendant's granddaughter. The photographs' background showed defendant's bedroom. Other aspects of them, including the testimony of defendant's ex-wife that the erect penis seen in the Victim One pictures "looks like it could very possibly be his," provided evidence that defendant was the adult male, although the record suggests that the pictures did not show his face. The image files' time data showed that the pictures were taken on August 30, 2008. Victim One's mother testified that on that evening she and Victim One's father, defendant's son, went out to celebrate her birthday while defendant babysat Victim One.
On cross-examination, defense counsel explored the possibility that these photographs were falsified composites that could have been produced by a photo-editing program. Five of the photographs had been opened in Photoshop Album Starter Edition 3.2, a program on defendant's computer. The detective had testified that the forensic evidence suggested that no material modification of the pictures had taken place, although some might have been cropped, had contrast adjusted, or had redeye reduced. The detective conceded, however, that sophisticated image editing software exists that could open files of separate photographs of a baby and an adult penis and combine them into one image in a way that he did not forensically detect.
Defendant's episodes of misconduct with Victim Two resulted in three forcible lewd or lascivious act convictions (§ 288, subd. (b)(1)) and conviction on the sole pornography count not involving Victim Three, i.e., the modeling or posing conviction (§ 311.4, subd. (c)).
In the first episode, Victim Two was a five-year-old kindergarten student and defendant was a houseguest of her family in Chula Vista. Defendant told Victim Two to remove her pants. She declined, but he persisted, even though she warned him that he would be in trouble. He pulled down her clothing and fondled her external genitalia. Victim Two told him to stop during the assault. Victim Two was scared during the episode, which ended when a neighbor walked onto the outdoor part of the premises and could be heard rummaging through garbage cans by Victim Two and defendant. Defendant told Victim Two not to tell her parents what he had done, which also scared her.
Victim Two did not tell anyone about the molestation and later her parents let her visit defendant's house in San Jose for about 10 days. She was then six years old. Defendant showed her pictures of teenagers engaged in sexual acts. He told her that he had taken the photographs. Later during this visit, defendant pulled down her clothing and touched her buttocks with something that was moving up and down and was "[f]loppy." She was sure that it was his penis, although she did not see it. It was "going up my butt." The contact hurt to a minor extent. She was scared and thought defendant was "crazy." She asked defendant to stop the contact with her buttocks three times, and finally he desisted.
There was also evidence that defendant fondled Victim Two's external genitalia during her visit to San Jose, and the jury found him guilty of one of the section 288, subdivision (b)(1) violations for doing so, although Victim Two's in-court and extra-judicial statements conflicted--at trial she testified both that he did and did not do this, but the jury heard evidence that she had told a San Jose police detective and her father about this incident. Victim Two's father testified that she told him defendant "touched her [external genitalia] two times, had made her pull down her panties; one time in San Jose when she was there, and one time in Chula Vista."
The San Jose police detective's interview of Victim Two was played to the jury. It elicited detailed information about the two incidents of defendant's contact with her external genitalia:
"[Victim Two] I was watching TV"--this was the incident in Chula Vista when she was five years old--"and then um, he started pulling down my pants, and then um, and then I told him to stop, and he didn't . . . ." "I said uh, 'Pull back my pants,' and then he didn't." Once defendant did this "[h]e was keep on touching me there, and then um, I told him to stop again . . . .
"[Detective] When you said he was touching you there, where was he touching?
"[Victim Two] Um, on, under.
"[Detective] . . . Um, and where, um, how did he touch you?
"[Victim Two] With his hand.
"[Detective] . . . And what did he do when he touched you?
"[Victim Two] Mm, he was like, trying to touch me under there.
"[Detective] When you say under there, tell me . . . . [ellipsis in original]
"[Victim Two] Like on my private.
"[Detective] Okay . . . so he was touching you on your privates?
"[Detective] Um, when he, when he touched you on your privates, how did that make you feel?
"[Detective] . . . how many times did he touch you there?
"[Detective] Two times? Was, were they both in the same, the same . . . . [ellipsis in original]
"[Victim Two] One at my old house [in Chula Vista], and at uh, oh, in San Jose.
"[Detective] . . . And so tell me what happened there [in San Jose].
"[Victim Two] I was laying on his bed, and then he started touching me.
"[Victim Two] [H]e started, he started pulling down my pants, and then he started touching me.
"[Detective] Uh-huh. When you, when you say pulled down your pants, did he, were you wearing underwear?
"[Detective] Yeah? Did he, what'd he do with those?
"[Victim Two] He pulled them down too.
"[Detective] Okay. And you said that he touched you; tell me about that.
"[Victim Two] The same thing that happened down at my old house [in Chula Vista].
"[Detective] Okay. Um, and did you tell ...