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The People v. Michael Jay Harris

September 13, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MICHAEL JAY HARRIS, DEFENDANT AND APPELLANT.



(Super. Ct. No. MFE07004358)

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

P. v. Harris CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

The defendant sexually abused the twin daughters of his girlfriend over a period of more than three years. He also committed a lewd act on a neighbor girl. Convicted by jury of many lewd acts and rape and sentenced to state prison for 19 consecutive indeterminate terms of 15 years to life (an aggregate term of 285 years to life), the defendant appeals.

On appeal, the defendant contends: (1) the trial court abused its discretion in admitting evidence obtained from his computer hard drive, (2) the court violated his rights to due process and a fair trial by admitting evidence of the Child Sexual Abuse Accommodation Syndrome (CSAAS), (3) the court improperly instructed the jury on CSAAS, (4) the court improperly admitted evidence of uncharged sexual acts on the same victims, (5) admission of uncharged sexual acts to show the defendant's propensity to commit such acts violated his due process rights, (6) the court improperly allowed lay witnesses to testify concerning their perceptions of the victims' truthfulness, (7) the cumulative effect of errors requires reversal, (8) the court improperly imposed consecutive sentences for multiple acts committed on a single occasion, (9) the court improperly imposed a 10-year parole term instead of the five-year term under the law existing at the time the defendant committed his crimes, and (10) errors in the abstract of judgment must be corrected.

We conclude that the proper parole period was five years and order the judgment to be modified accordingly. We also conclude that several errors in the abstract of judgment must be corrected. Finding no further prejudicial error, we affirm the judgment as modified and remand for preparation of an amended abstract of judgment.

FACTS AND PROCEDURE

The charges against the defendant involved three victims and four locations. The victims were the twin daughters (M.G. and C.G.) of the defendant's live-in girlfriend (K.) and a younger neighbor girl (R.D.). The charges covered the defendant's molestations of M.G. and C.G. from when they were 10 years old until they turned 14 years old and the defendant's molestation of R.D. when she was nine years old. The four locations were: (1) the defendant's trailer in Bishop (Inyo County), (2) a home in Nevada County, (3) a trailer in Chalfant (Mono County), and (4) a home in Orange County.

We recount the charges and the verdicts in connection with the facts. However, the resolution of the issues raised by the defendant on appeal does not require a comprehensive description of the evidence.

A. Locations and Crimes

1. Trailer in Bishop

M.G. and C.G. were born in 1992. In 2002, when the girls were 10 years old, K. moved them into the defendant's trailer in Bishop. K. was there only off-and-on. It was during the time that they lived in the defendant's trailer in Bishop that the defendant began touching them sexually. The girls and the defendant lived in the trailer for about two years.

i. M.G.

During the time that M.G. lived in the trailer in Bishop, the defendant first reached down M.G.'s pants and touched her buttocks while M.G., the defendant, and K. were lying down, watching a movie. On other occasions, the defendant touched M.G.'s vagina (more than once, "probably a little over 10" times) and breasts (more than once). He took her pants off and rubbed her vagina. M.G. estimated that the sexual touching occurred every day while they lived in the trailer in Bishop. On one occasion, the defendant forced M.G. to orally copulate him.

Based on these acts with M.G. in the trailer in Bishop, the information charged the defendant with committing four lewd acts (Pen. Code, § 288, subd. (a)): count I -- touching her breast the "first time" in the trailer; count II -- touching her breast the "last time" in the trailer; count III -- touching her vagina the "first time" in the trailer; and count IV -- touching her vagina the "last time" in the trailer.

The jury convicted the defendant on counts I, III, and IV, and it acquitted the defendant on count II.

ii. C.G.

During the time that C.G. lived in the trailer in Bishop, the defendant touched C.G.'s chest, stomach, and legs, and kissed C.G. all over her body. This happened many times. On one occasion, the defendant started by touching C.G.'s chest. He then kissed her all over and took her clothes off her. Overcoming C.G.'s resistance, the defendant attempted to insert his penis into C.G.'s vagina. According to C.G., "he didn't get it in all the way." The defendant touched her sexually about twice a week.

Based on these acts with C.G. in the trailer in Bishop, the information charged the defendant with committing six lewd acts (Pen. Code, § 288, subd. (a)): count XII -- touching her breast the "first time" in the trailer; count XIII -- touching her breast the "last time" in the trailer; count XIV -- kissing her body the "first time" in the trailer; count XV -- kissing her body the "last time" in the trailer; count XVI -- touching her leg the "first time" in the trailer; and count XVII -- touching her leg the "last time" in the trailer.

The jury convicted the defendant on counts XII, XIV, XV, and XVI, and it acquitted the defendant on counts XIII and XVII.

2. Home in Nevada County

During the time the girls were living with the defendant in the trailer in Bishop, they drove to visit K. at her house in Nevada County. They all watched a movie together in the bedroom. The defendant and K. lay on the bed, while the two girls sat in chairs. The defendant and K. began kissing under the covers, and the defendant grabbed C.G.'s hand and made her hold his penis while he had intercourse with K.

Based on this act with C.G. in the home in Nevada County, the information charged the defendant with committing a lewd act (Pen. Code, § 288, subd. (a)): count XXIV -- placing her hand on his penis.

The jury convicted the defendant on count XXIV.

3. Trailer in Chalfant

In 2003, the defendant, K., and the girls moved to a trailer in Chalfant.

i. M.G.

During the time that M.G. lived in the trailer in Chalfant, the defendant continued to molest her. As often as every day, the defendant touched her breasts and vagina. He also attempted to insert his penis in her vagina more than once. On one occasion, the defendant took M.G. into K.'s bedroom, where he put M.G. on a bed and took her pants and underwear off her. He rubbed her vagina and put his finger inside. M.G. told the defendant that he was hurting her, but the defendant continued and then attempted to put his penis in her vagina. He succeeded in putting his penis about an inch and a half into her vagina. This caused M.G. even more pain, and she cried. On other occasions, the defendant kissed M.G. on her breasts and licked her vagina. He also rubbed his penis on her vagina and, again, put his penis inside her vagina.

Based on these acts with M.G. in the trailer in Chalfant, the information charged the defendant with committing six lewd acts (Pen. Code, § 288, subd. (a)): count V -- touching her vagina with his hand the "first time" in the trailer; count VI -- touching her vagina with his hand the "last time" in the trailer; count VII -- touching her breast the "first time" in the trailer; count VIII -- touching her breast the "last time" in the trailer; count IX -- touching her vagina with his penis the "first time" in the trailer; and count X -- touching her vagina with his penis the "last time" in the trailer.

The jury convicted the defendant on counts V, VII, VIII, IX, and X, and it acquitted the defendant on count VI.

ii. C.G.

During the time that C.G. lived in the trailer in Chalfant, the defendant continued to molest her too. On many occasions, the defendant touched her body with his mouth, hands, and, later, his penis. Once, he touched her leg, took her clothes off her, and inserted his penis two and a half to three inches into her vagina.

Based on these acts with C.G. in the trailer in Chalfant, the information charged the defendant with committing four lewd acts (Pen. Code, § 288, subd. (a)): count XVIII -- kissing her body the "first time" in the trailer; count XIX -- kissing her body the "last time" in the trailer; count XX -- touching her vagina with his penis the "first time" in the trailer; and count XXI -- touching her vagina with his penis the "last time" in the trailer. The information also charged the defendant with committing two aggravated rapes of a child (Pen. Code, § 269, subd. (a)(1): count XXII -- having intercourse with her the "first time" in the trailer, and count XXIII -- having intercourse with her the "last time" in the trailer.

The jury convicted the defendant on counts XVIII, XIV, XX, and XXII, and it acquitted the defendant on counts XXI and XXIII.

iii. R.D.

In October 2003, R.D. was nine years old when she visited M.G. and C.G. at the trailer in Chalfant. The defendant came into the room as they were watching television. He rubbed her legs, then reached up her shorts and touched her vagina.

Based on this act with R.D. in the trailer in Chalfant, the information charged the defendant with committing a lewd act (Pen. Code, § 288, subd. (a)): count XXV -- touching her vagina with his hand.

The jury convicted the defendant on count XXV.

4. Home in Orange County

The defendant took M.G. to visit the defendant's father in Orange County. While they were there, the defendant took her clothes off her and put his penis in her vagina.

Based on this act with M.G. in the home in Orange County, the information charged the defendant with committing a lewd act (Pen. Code, § 288, subd. (a)): count XI -- touching her vagina with his penis.

The jury convicted the defendant on count XI.

B. M.G.'s and C.G.'s Disclosure of Molestations

The defendant was arrested, in 2003, after R.D. reported that the defendant had molested her. While the defendant was in jail, K. asked M.G. and C.G. whether the defendant had ever molested them. They responded that he had, but K. said she did not believe them and that the defendant "wouldn't do anything like that."

The twins did not report the defendant's sexual abuse again until more than three years later. M.G. and C.G. told their friends that the defendant had been touching them sexually. The twins also told a Child Protective Services worker about the sexual abuse, but did not reveal the extent of the abuse until later.

C. Medical Evidence

In February 2008, about 10 days before the twins' 16th birthday, they were examined by a nurse certified to perform child abuse examinations. She reported findings consistent with the twins' statements concerning how the defendant had abused them.

The defense presented testimony from a doctor who stated that the pictures taken from the twins' physical examinations were inconsistent with claims of rape and sexual penetration.

D. Defendant's Testimony

The defendant testified and denied sexually touching the twins and R.D.

E. Additional Evidence

We recount a substantial amount of additional evidence in connection with our discussion of the ...


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