(Super. Ct. No. 09F0001157)
The opinion of the court was delivered by: Nicholson , Acting P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Scott T. Curry was convicted by a jury of felony exhibiting harmful matter to a minor (A.F.) with intent to seduce. (Pen. Code, § 288.2, subd. (a); further statutory references are to this code.) The jury returned verdicts of not guilty on three counts of lewd and lascivious acts on a child under 14 years (§ 288, subd. (a)) and a second count of exhibiting harmful matter to another minor -- K.J. Defendant was granted probation with credit for time served.
On appeal, defendant contends (1) the evidence was insufficient to sustain his conviction, (2) the trial court erred by failing to instruct the jury sua sponte on a lesser included offense, and (3) the court lacked authority to amend the judgment two weeks after it was entered and the notice of appeal was filed.
We conclude that only the last contention has merit. Therefore, we affirm the judgment and strike the order attempting to modify the judgment.
Between sometime in 2005 and August 2006, defendant lived in a house with his wife (Rochelle), their son (born in 2005), his wife's daughter (K.J., born in 2001), his wife's sister (Brandi) and her daughter (A.F., born in 1999). Defendant babysat A.F. and K.J. when their mothers were at work.
In 2008, A.F. disclosed to her mother that, when they lived with defendant, he showed K.J. and her "porns of women," told them about different sexual positions, touched her thigh and took pictures of them.
At trial in March 2010, A.F. testified that, on more than one occasion, defendant showed her and K.J. movies on the television about "S-E-X." A.F. said she had not spoken to her parents about sex or learned about it at school, and she did not know how to explain what "S-E-X" meant, although she stated that "one night . . . [defendant] told [her] about S-E-X . . . ." A.F. testified that the people in the movies were women and they were not wearing clothes. A.F. stated that defendant "showed us these movies and . . . he taught us about it and he showed us pictures of it."
According to A.F., defendant asked the minors "to copy what was going on in the movie," and K.J. and she copied "[t]he kissing" but not "all of" what happened in the movie. Defendant was not in the room when this occurred. One time when he showed them one of these movies, the minors did a fashion show for defendant, during which defendant took pictures of them. When A.F. was asked whether they were wearing clothes during the fashion show, she responded, "[s]ome clothes."
A.F. initially testified that defendant never touched her "in a private area" and she had never seen him touch K.J. in a "private spot." After she was reminded of a statement she made to a police officer, A.F. testified that one night she woke up and saw defendant touching K.J. "kind of by the private spots," and another night, she felt defendant touching her leg and saw him standing over her holding a camera. A.F. clarified that when she said "by her privates," she meant "by her butt."
According to A.F., once during the daytime, defendant came into their room and asked K.J. if she "[w]anted her privates licked," and K.J. stood on the bed without any clothes on while defendant lay on the bed and licked her "privates." A.F. denied that defendant ever licked her "privates." Defendant told A.F. not to tell anybody and that she would get in trouble if she did.
K.J. also testified. She said that defendant "touch[ed] [A.F.'s and her] private area[s] with his tongue" on more than one occasion. According to K.J., defendant was lying down, and A.F. and she were standing up and had no clothes on. K.J. testified that their clothes had been taken off by their mothers.
Rochelle testified that defendant had "adult films" at the house on his computer and possibly on DVDs. According to Rochelle, in July 2008, A.F. told her that defendant had touched K.J. and her "in a very indecent manner" and that K.J. later verified this. K.J. also told her that defendant had them watch pornographic movies on the computer. A.F. told Rochelle that defendant had threatened them.
Rochelle testified that defendant "admitted to molesting" the minors and explained to her that he had "been fighting that feeling since he was 14." Defendant wrote a letter, which was admitted into evidence, stating that he remembered "playing dress-up" with the minors and that he did "not know how far it went" but that he thought he had "pushed it too far."
Brandi testified that, around the same time that A.F. made her initial disclosure to Rochelle, A.F. told her that, when they lived with defendant, he showed K.J. and her "porns of women and told them about different sexual positions," "[t]ried to take pictures of them at one point," "tried to touch her," and did touch her thigh.
Defendant was confronted by a police officer with the minors' accusation in July 2008. At that time, he stated that the minors entered his room on two occasions while he was watching pornography on his computer and thought the door was locked. He did not deny that he had molested the minors, and when confronted with the accusation that he had touched the minors' genitals, he responded, "'If they say so, I must have.'"
When defendant was later interviewed by a police detective who was investigating the allegations, he stated that he did not remember touching either of the minors in a sexual way, but acknowledged that the minors "caught [him] watching porn." He testified that, during that period in his life, he "was just basically drunk all the time" and although he did not remember having "them watch a movie of two girls" or "act out the porn on each other," and did not remember touching them in a sexual way, it was possible it could have happened. When the detective asked defendant for a reason why it happened, defendant stated he was "a massive porn . . . person" and "had lots of porn." He stated: "I go through a lot of porn . . . . I almost go through that like I do alcohol." He said he has a problem with pornography, and he masturbates "[a]t least twice a day." When the detective asked him again why he thought "this ...