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The People v. Christopher Burlew

October 5, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CHRISTOPHER BURLEW, DEFENDANT AND APPELLANT.



(Super. Ct. No. 08F02694)

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

P. v. Burlew

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant was convicted by a jury of seven counts of lewd and lascivious conduct with a child under the age of 14 years (Pen. Code, § 288, subd. (a); further undesignated section references are to the Penal Code), six counts of sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b)), and one count of sexual intercourse with a child 10 years of age or younger (§ 288.7, subd. (a)). The jury also found true special allegations that defendant engaged in substantial sexual contact with respect to each of the lewd and lascivious act charges. Defendant was sentenced to an aggregate determinate term of 18 years plus an indeterminate term of 115 years to life.

Defendant appeals, contending: (1) the trial court erred in permitting the prosecution to amend the information late in the proceedings to expand the time frame for the various offenses; (2) the trial court erred in permitting the prosecution to amend the information during jury deliberations to conform the section 288.7 charges to the wording of the statute; (3) the section 288.7 convictions violate ex post facto principles, because that section went into effect during the time frame of the alleged offenses and it cannot be determined if the jury concluded the offenses were committed before or after the effective date; and (4) the trial court improperly coerced a holdout juror.

We disagree on all points and affirm the judgment.

Facts and Proceedings

The offenses in this matter occurred sometime between September 1, 2006 and September 7, 2007, when defendant was at least 20 years old and the victim was under 10. During this period, defendant was living in the home of his aunt, T.O., and uncle, who had two children, H.O. and C.O. H.O., the victim in this matter, had her ninth birthday in November 2006, and attended the third grade between September 2006 and May 2007.

At approximately 8:00 p.m. on September 7, 2007, T.O. walked to the doorway of C.O.'s bedroom and saw C.O. sitting on the floor playing a video game and defendant and H.O. sitting on a bed. Defendant had his arm around H.O. and his hand on her chest. T.O. immediately backed away and called for the children to go to the bathroom to brush their teeth and get ready for bed. She also asked defendant to drive to Blockbuster Video to rent a movie.

As soon as defendant departed, T.O. asked H.O. what was going on. H.O. answered, "With what?" T.O. asked if defendant was touching H.O., and H.O. put her head down and began crying. T.O. insisted that H.O. tell her what was going on, and H.O. acknowledged defendant was touching her. When T.O. asked where defendant had been touching her, H.O. grabbed her mother's hand and put it on her chest and her "private" area. H.O. also indicated the touching was under her clothes. T.O. asked if defendant had ever put anything inside her, and H.O. "was crying and crying and said, 'Yes.'" When asked what defendant put inside her, H.O. said, "His wee wee." T.O. then asked where and how this happened. H.O. went to her bedroom and, after a minute, got on her hands and knees on top of the bed. H.O. said defendant "put his wee wee inside of her and went back and forth." H.O. indicated this happened more than once.

T.O. woke her husband, who worked at night and slept during the day, and they took H.O. to the U.C. Davis Medical Center. However, an examination of H.O. was indeterminate for sexual penetration.

On September 18, 2007, H.O. was taken to the Sacramento "S.A.F.E. Center" for a one-on-one forensic interview. However, H.O. refused to discuss the molestations during the interview.

On October 3, 2007, H.O. began attending weekly counseling with a child and family therapist. For many months, H.O. would not discuss the molestations.

On January 31, 2008, T.O. made a pretext call to defendant. During the call, defendant admitted molesting H.O. but indicated the molestations did not occur over a very long period. He also admitted placing his penis close to H.O., touching her "private" with it, and masturbating H.O. However, he denied ever penetrating H.O. or having intercourse with her.

On March 3, 2008, during a counseling session, H.O. finally told the therapist that defendant had touched her "privates" and would have her get on her hands and knees.

Three days later, H.O. was again taken to the S.A.F.E. Center for an interview. During that interview, H.O. discussed the molestations and indicated they occurred when she was nine years old. She also said they occurred during the day while her mother was gone and her father was asleep. H.O. indicated defendant touched her "private" but nowhere else. She also indicated defendant touched her with his fingers and then his "private." H.O. asserted defendant touched her with his fingers perhaps six times and with his "private" four to five times. She also said defendant touched her private with his private both outside and inside and, when his private was inside her, defendant moved around a minute or so and pulled her to him. H.O. also indicated defendant was in front and facing her at the time.

On August 21, 2008, defendant was charged with four counts of lewd and lascivious conduct (§ 288, subd. (a)) and one count of sexual intercourse with a child 10 years of age or younger (§ 288.7, subd. (a)), all occurring between January 1 and September 7, 2007. Approximately 11 months later, on July 29, 2009, the People amended the information to add three more counts of lewd and lascivious conduct and six counts of sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b)).

Trial commenced five days later. At trial, H.O. testified defendant touched her "private" with his finger and with his "private" while she was in the third grade. She also indicated defendant touched her inside her "private" about five times. H.O. testified defendant touched the inside of her "private" with his "private" approximately three times while in front of her. She denied that defendant ever had her get on her hands and knees.

In addition to testimony from H.O.'s mother, H.O.'s therapist, the physician's assistant who examined H.O. at U.C. Davis, and the investigating officer, the jury heard both the second S.A.F.E. interview and the pretext call.

The defense consisted of expert testimony that H.O.'s medical examination showed there had been no penetration. Defendant did not testify. In argument to the jury, defense counsel did not contest that defendant had touched H.O. inappropriately.

During trial, the People were granted leave to amend the information to expand the time frame of the offenses backward to September 1, 2006.

During jury deliberations, the People were granted further leave to amend the information to substitute penetration of the victim's "genitalia" for penetration of the victim's "vagina" on the section 288.7 charges.

Defendant was convicted on all charges and all special allegations were found true. He was sentenced on one section 288 charge to the middle term of six years and on each of the other section 288 charges to two years (one-third the middle term), to run consecutively. On each of the section 288.7, subdivision (b) charges, defendant received consecutive indeterminate terms of 15 years to life. Finally, defendant received a consecutive indeterminate term of 25 years to life on the section 288.7, subdivision (a) charge.

Discussion

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