The opinion of the court was delivered by: Mauro , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Troy Barton Wallers was convicted of four counts of lewd and lascivious conduct with a child under the age of 14 years, and two counts of annoying or molesting a child. He was placed on formal probation with the condition that he serve 365 days in jail.
On appeal defendant contends (1) there is insufficient evidence to support one of the convictions for annoying or molesting a child because the evidence does not establish that defendant harbored a sexual intent or motivation when he encouraged the victim to take a pregnancy test; (2) the trial court erred in admitting the victim's prior consistent statements to her aunt; (3) the trial court erred in excluding statements made by the victim's father, upon learning of the victim's allegations, that the victim might have been lying to get attention; (4) we must conduct an in camera review of testimony and materials reviewed by the trial court to determine if the trial court abused its discretion; (5) the trial court erred in failing to instruct the jury with CALCRIM No. 302; (6) two of the probation conditions are unconstitutional; and (7) the trial court imposed a $200 fine without authorization.
The People also appeal, contending the trial court erred in granting probation without considering the factors set forth in Penal Code section 1203.066, subdivision (d)(1).
In addition, our review of the record identified a discrepancy not raised by the parties. On May 18, 2010, the trial court orally pronounced that defendant was to serve 365 days in county jail, but the minutes indicated that defendant was to serve 360 days in jail.
We conclude (1) sufficient evidence supports the convictions for annoying or molesting a child because it is possible to infer from the evidence that defendant harbored a sexual intent or motivation when he encouraged the victim to take a pregnancy test; (2) the trial court did not err in admitting the victim's prior consistent statements; (3) the trial court did not err in excluding a statement made by the victim's father that the victim might have been lying, because defendant did not establish that the statement was anything other than speculation; (4) our in camera review establishes that the trial court did not abuse its discretion; (5) although the trial court erred in failing to instruct the jury with CALCRIM No. 302, the error was harmless; (6) we agree with defendant's constitutional challenges to two of the probation conditions and we will modify the conditions; (7) we will vacate the $200 fine and remand the matter to the trial court to allow it to exercise its discretion regarding whether to impose a fine based on applicable authority; (8) we will dismiss the People's appeal because it is taken from a non-appealable order; and (9) we will direct the trial court to correct the discrepancy in the record regarding jail time.
In all other respects, we will affirm the judgment.
The victim was 12 years old at the time of trial. During a five-year period until a few months before her 11th birthday, the victim often slept at her aunt's house while her parents were at work.
The victim's aunt was married to defendant and they had a three-year-old daughter together. Defendant also had three sons from a previous marriage.
Defendant's sons wrestled in school and liked to roughhouse at home. One of the boys would "pants" the others, meaning he would pull down their pants as a practical joke. One time, when defendant was alone with the victim, he pulled down her pants and underwear and threw them in the laundry room. The victim immediately jumped up and retrieved her clothes.
On an evening in December 2007, when the victim's aunt was away visiting the victim's grandparents, defendant asked the victim to sleep in the same bed with him and kept asking until she agreed. She slept with defendant and his daughter. When the victim woke the next morning, her clothes were on, she was not in pain, and she did not remember anything happening that night. Her aunt had not returned home yet.
The victim took a shower with defendant's daughter. A short time later defendant joined them in the shower. He was naked and had an erection when he entered the bathroom. Defendant began washing the victim's hair and pressed his erection into her back. He had previously showered with her at least 10 times when her aunt was gone, and on two of those occasions his daughter was there. The victim told defendant she did not want to shower with him, but he continued doing so. The victim did not tell her father about what happened because she was afraid defendant would hurt her.
On another day, defendant and the victim were watching the animated series "The Family Guy." The victim was not permitted to watch that show at home because it was inappropriate. Two of the characters had their clothes off and were on top of each other having sex. Defendant said it was what they had done when they slept in the same bed. The victim did not know what he was talking about. Defendant told her to put her finger in her mouth because that is what it felt like. She complied with his directive and it made her uncomfortable.
On February 2, 2008, the victim was alone with defendant and his daughter at defendant's house. Defendant handed the victim a pregnancy test and said it was a vitamin test. He instructed her to take it because her eyes appeared glossy. The victim knew it was a pregnancy test because she had seen one under her aunt's counter. She told defendant she was not going to take the test because she knew she was not pregnant. He replied that she should take it because he had done things to her in bed. The victim knew she could not be pregnant because she had not started having periods.
The victim was angry and tried to use her cell phone to call her dad. Defendant grabbed her arm and took her phone. He also hid the house phone. The victim advised defendant she was going to tell, but he said she was crazy and no one would believe her.
When the victim woke up the next morning, defendant was still asleep. Her phone had been returned and she texted her father that she needed to talk to him and her stepmother. According to the victim's father, the text said, "I need to speak to you alone and [stepmother]. It's an emergency. Please pick me up today."
Later that same day, while the victim was at Costco with her aunt, she told her aunt what defendant had been doing. The victim could not deal with it any more. When they returned home, her aunt packed some things, they left, and the victim never returned.
The aunt testified that the victim was acting strange the day they went to Costco. That morning the victim had been adamant that she needed to contact her dad. The victim asked where her cell phone had come from because it was not there when she went to bed the night before. The aunt did not know what the victim was talking about or why she was making such a big deal about it. After they arrived at Costco, defendant left to run an errand. As soon as defendant was out of sight, the victim told the aunt she needed to talk to her.
The victim was acting very jittery and apprehensive, and said that when the aunt went out of town "weird things happened." For example, defendant slept in the same bed with his daughter and the victim. The victim said defendant took showers with them when they were running late "and then things happened." On one occasion when defendant slept in the same bed with the victim, the next morning he asked if she remembered anything happening. The victim did not remember anything happening, but defendant acted really weird. Defendant told the victim he was concerned because he thought she was his wife in the middle of the night, and wanted to know if the victim remembered anything about it.
The victim said defendant never kissed her, but had been acting strange toward her. Defendant showered with the victim when nobody else was around and she felt uncomfortable about it. On one occasion in the shower the victim felt something pressing up against her, but did not know what it was. Her aunt said it was a small shower and the thought of three people in there was a "bit much." The victim also told her aunt that the night before the trip to Costco, defendant tried to get her to take a pregnancy test. Defendant said the test would check her iron and tell her if she was okay.
When they arrived home, the aunt told the girls to stay in the car. The aunt went into the house, gathered a few items, and then they left. The aunt did not return to the house for several days and did not discuss the matter with defendant.
After meeting with an investigator, the aunt agreed to telephone defendant. He was rude and said he would not talk to her because he thought she was recording the call. It was the first time she had spoken to him since coming home from Costco. At the investigator's request, she agreed to meet with defendant and wear a recording device so the investigator could listen to the conversation. The aunt offered to meet defendant at a Starbucks across from her office, but he said he wanted to meet in the open. She agreed to go to a park, but defendant kept changing the meeting location, saying he did not want any people around. He said he thought she was recording him and trying to get him to admit something. Defendant was "skittish" and would not answer any questions. He was paranoid and pointed out people that he thought were the police.
The aunt confronted defendant about the showers. Defendant said he had taken tons of showers with the victim over the years and had bathed her since she was small. He could not figure out why the aunt thought it was a big deal. The aunt testified this was the first time defendant told her he had taken showers with the victim. She asked him about the pregnancy test and he said he did not know what she was talking about. Defendant never stated that the victim had been coming on to him.
Prior to trial, defendant told the aunt that if anything happened to him he would "slaughter" her and her entire family because he did not do anything wrong. He also told her he was not going to jail and he would rather "take everybody with him."
The victim's grandfather (the aunt's father) testified that on February 5, 2008, defendant surprised him outside his place of employment at a veteran's home. Defendant was unkempt, combative and waving his arms in the air. Defendant asked the grandfather what he "knew about this." The grandfather knew that the victim had alleged defendant molested her, but told defendant he knew very little.
Defendant told the grandfather they were saying defendant had sex with the victim or did something wrong. Defendant denied having any inappropriate contact with the victim, but when the grandfather said he heard defendant had taken showers with the victim, defendant's attitude changed. In a bragging manner, defendant said, "Well, I did. I took 50 showers with her naked. Fifty." Defendant called the victim a slut and said she had been coming on to him in a sexually flirtatious manner for a long time. The grandfather never saw the victim behave in that manner. Defendant also made a comment about buying a pregnancy test and giving it to the victim, which the grandfather thought was so bizarre it had to be true.
Defendant asked the grandfather where they were hiding the aunt, and threatened to kill the aunt and the grandfather's wife. The grandfather told defendant the conversation was over and asked him to leave.
Redding Police Officer Kristen Fredrick, an investigator in the child abuse and sexual assault division, explained that child molesters will groom children in an effort to desensitize them to sexuality prior to an age when they would be curious about those things themselves. Officer Fredrick spoke with the victim about the allegations in the case, and the victim told her there was an instance when defendant was washing her hair in the shower and she felt his "thing." The victim later clarified that she was referring to defendant's penis, which was hard and touched her on the lower back.
Defendant's three sons testified at trial. They all wrestled in school and did so around the house, too. The victim would join in and seemed to enjoy it. Every once in awhile, they would "pants" each other as a joke. One of the brothers "pantsed" the victim once and it seemed like she was having fun and was not offended. Everyone "pretty much knew" that defendant sometimes showered with his daughter and the victim. The victim did not seem uncomfortable about it or afraid of defendant.
Defendant testified in his own defense. He denied having any sexual intent toward the victim, whom he considered to be like his own child. He had known the victim for nearly 11 years and had played an active role in helping to raise her. Defendant admitted showering with the victim, whom he had bathed since she was small. He remembered the aunt being in Napa in December 2007, and explained that he was responsible for getting the children ready in the morning. The victim had difficulty washing herself thoroughly and needed the assistance of an adult. Defendant was only in the shower with her for 15 seconds. He got soap all over himself while washing the ...