California Court of Appeals, Second District, Sixth Division
Superior Court County of Ventura No. 2009018366 James P. Cloninger, Judge
Law Offices of Danalynn Pritz, Danalynn Pritz, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Roberta L. Davis, Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
A parent has an exceptional and unique relationship with his or her children; this principle needs no citation.
A mother knows her child is continuously sexually molested by mother’s boyfriend. She can act to protect her child from this crime, but chooses not to do so. We conclude that the mother's failure to protect her child from continuous sexual abuse supports her conviction as an aider and abettor of the crime.
Lynda Gabriella Ogg appeals from a judgment after conviction of aiding and abetting the continuous sexual abuse of her daughter A. R. by Daniel Ogg. (Pen. Code, §§ 31, 288.5.) The trial court sentenced Ogg to the upper term of 16 years in prison. It imposed fines and fees, including a $70 acquired immune deficiency syndrome (AIDS) education fee. (§ 1463.23.) We modify the judgment to strike an AIDS education fee, but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 1993, A. R. was born. When she was about 6 years old, Ogg began dating Daniel and he moved into her home. During the following 10 years, Daniel sexually abused A. R. Ogg was not present during the abuse. At trial, A. R. testified that Daniel performed oral sex on her more than three times when she was between the ages of 6 and 10, more than three times when she was between the ages of 10 and 12, and more than three times when she was between the ages of 12 and 14.
A. R. testified that the abuse began as a "food game" when she was 6 years old. Daniel told A. R. to close her eyes and he put food in her mouth, asking her to guess what it was. Then he placed his penis in her mouth and told her that it was a hot dog. Later, he placed his penis in her mouth without the "food game" pretense. A. R. believed this happened about seven times.
When A. R. was 6 years old, she informed her mother that Daniel had placed his penis in her mouth. In a later police interview, Ogg denied that this conversation occurred. Thereafter, Daniel's sexual abuse of A. R. ceased for approximately a year. A. R. testified that when she was about 8 years old, he forced her to orally copulate him once a month. When she was 10 years old, Daniel performed oral sex on her. A. R. did not remember the frequency of the abuse.
Daniel's biological daughter P., who was 4 years younger than A.R., also lived in the Ogg home. Ogg worked outside the home, but Daniel did not.
When A. R. was 10 years old, she again informed her mother that Daniel placed his penis in her mouth. Ogg asked "if [she] liked it." A. R. replied, "No." Ogg responded that A. R. could either call the police or give Daniel another chance. Ogg said to A.R. that if A. R. "gave him another chance, [A. R.] couldn't tell anyone because they would go to jail and [A. R. would] go to foster care." A. R. decided to give Daniel another chance. She "was scared to go to the police." A. R. feared that if she told the police about her abuse, her little brother would be placed in foster care. Ogg told her that foster care "was really bad and [Ogg] used to get raped and molested in foster care."
In 2004, Ogg married Daniel; A. R. was then 11 years old. Daniel continued to orally copulate A. R. When she was 12, he began kissing her on her mouth and digitally penetrating her. Before she was 14, he tried to have sexual intercourse with her but she "squirmed away" and complained of pain. When she was 14, he had sexual intercourse with her every two weeks. When she was 15, he stopped for five months, but then began again. The abuse stopped at age 16 when A. R. told a friend who reported it.
Police officers arrested Daniel. When interviewed by the police, Ogg denied knowing "anything" regarding the sexual abuse. Eventually, she admitted to an investigator that Daniel had mentioned it when A. R. was 10 years old. Ogg stated that Daniel awoke from sleep and said that "he had been having impure thoughts, and that he had had [A. R.] take off her clothes, sit next to him and... touch his penis." Daniel added that he "would have [A. R.] get undressed and sit next to him, and he would put her hand on his penis and she'd take it off and he'd put it back, and then he'd take it off and then that was it." Ogg stated that she was upset and did not go to work the following day. Instead, she took A. R. to breakfast and spent the day with her discussing Daniel's acts. A. R. "confirmed" the abuse. Ogg did not express disbelief about the abuse to the investigator.
Ogg said she did not know how many times it happened. She said, "[I]t probably -- [¶] -- happened a few times but I don't know.... Nobody gave me a number." The investigator asked, "But you inferred from -- [¶] -- the one time that it happened several times?" Ogg answered, "It kind of seemed like it...." Ogg said she asked Daniel "if anything else happened" and he said "No." Ogg claimed no knowledge of sexual touching, oral sex, or sexual intercourse between Daniel and A. R.
Ogg admitted that she had no "good reason" for not calling the police. She "asked [A. R.]... what she wanted [Ogg] to do" and "[A. R.]... didn't know." Ogg "didn't know what to do either." Ogg thought Daniel's behavior was inappropriate, but he "said he wouldn't do it again and [she] believed him...." She "kept checking with [A. R.]" whether anything else happened and A. R. said "No." Ogg did not question Daniel again. She expressed fear that she would lose her children.
For several months afterward, Ogg did not leave A. R. alone with Daniel. She occasionally asked A. R., "Has anything happened?" and A. R. would respond, "No." Ogg "figured everything's okay" because when the family watched television A. R. would "lay down behind ...