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People v. Sigur

California Court of Appeals, Third District, Yolo

July 9, 2015

THE PEOPLE, Plaintiff and Respondent, JASON STEPHEN SIGUR, Defendant and Appellant.

[CERTIFIED FOR PARTIAL PUBLICATION] [*]]

APPEAL from a judgment of the Superior Court of Yolo County, No. CRF105047 Stephen L. Mock, Judge.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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COUNSEL

Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jennevee H. de Guzman, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MURRAY, J.

Defendant Jason Stephen Sigur appeals from a judgment of conviction following a jury trial. After meeting in an Internet chat room, defendant engaged in a sexual relationship with a thirteen-year-old girl for approximately two months, including in the home where the victim lived with her mother and grandmother after secretly entering through the victim’s bedroom window for that purpose. He was charged with 11 counts of contacting or communicating with a minor (Pen. Code, § 288.3, subd. (a) (Counts 1, 15-16, 21-22, 27-28, 33, 36, 39, 41)), [1] one count of kidnapping for purpose of lewd act upon a child (§ 207, subd. (b) (Count 2)), nine counts of first degree burglary (§ 459 (Counts 3, 17-18, 23-24, 29-30, 34, 37)), 20 counts of lewd and lascivious acts upon a child under fourteen (§ 288, subd. (a); counts 4 through 14, 19-20, 25-26, 31-32, 35, 38, 40), and failure to register as a transient sex offender (§ 290.011, subd. (a) (Count 42)). It was further alleged that Count 2 came within the meaning of section 667.8, subdivision (b); Counts 3, 17-18, 23-24, 29-30, 34, and 37 came within the meaning of section 667.5, subdivision (c)(21); counts 4 through 6 and 8 through 14 came within the meaning of section 667.61, subdivisions (a) and (b); and counts 2 through 14, 17 through 20, 23 through 26, 29 through 32, 34 through 35, 37-38, and 40 came within the meaning of section 667, subdivision (a)(1), due to defendant’s prior conviction of a serious felony. A jury found defendant guilty on all counts and found the sexual conduct enhancement allegations true. In a bifurcated proceeding, the trial court found all strike allegations true. The trial court sentenced defendant to a determinate term of 103 years in prison plus an indeterminate term of 550 years to life.

On appeal, defendant contends that: (1) the prosecutor engaged in misconduct by misstating the law regarding reasonable doubt; (2) the trial court erred in denying defendant’s section 1118.1 motion for judgment of acquittal

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as to the burglary counts because the evidence showed that the victim consented to his entry into the home knowing his intent to engage in sexual acts with her; (3) the prosecutor engaged in misconduct by misstating the law regarding the consent defense to burglary; (4) the cumulative effect of the prosecutorial misconduct requires reversal of the burglary counts; (5) section 288.3 is unconstitutionally vague; (6) section 288.3 is unconstitutionally overbroad; and (7) the 15-year enhancement imposed under section 667.8, subdivision (b), must be stayed because sentence was stayed on the underlying count.

We agree with defendant that the enhancement under 667.8, subdivision (b), must be stayed. We reject each of defendant’s other contentions.

In the published portion of this opinion, we address and reject defendant’s consent defense contentions regarding the burglary counts. We hold that when a defendant does not have an unconditional possessory right to enter as an occupant of the premises, a defense of consent to enter the premises for the purposes of engaging in felonious sexual conduct with a minor requires one of the following: (1) the minor has a possessory interest in the premises coequal to the parent or other adult owner/occupant and expressly and clearly invited the defendant to enter so the defendant could engage in felonious sexual conduct with the minor; (2) a parent or other adult who has a possessory interest in the premises expressly and clearly gave the defendant permission to enter for the purpose of engaging in felonious sexual conduct with the minor; or (3) the minor expressly and clearly gave the defendant permission to enter for the purpose of engaging in felonious sexual conduct with the minor, the minor had been given permission by the parent or other person with a possessory interest to allow entry into the premises for such purpose, and defendant knew that the minor had been given such permission. The evidence here did not establish any of the aforementioned alternatives.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Trial Evidence

A.B. testified that she was born in June 1997. A.B.’s parents, D.B. (mother) and C.B. (father), were divorced and A.B. alternated every other week between her mother’s and father’s homes. At the time of her contacts with defendant, A.B. had a cell phone with Internet access and had access to a home computer at her mother’s home. When she stayed at her father’s home, she was not allowed to use her cell phone except to call her mother, and she did not have access to a computer there. When A.B. stayed at her

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mother’s home, she occupied the front bedroom, her grandmother occupied the rear bedroom, and mother slept on the sofa in the living room.

A.B. testified that in late 2009, when she was 12 years old, she began visiting an online chat room on the airG Web site. Because airG required users to be at least 14 to create a profile and chat, A.B. created a profile listing her age as 14. She would visit the “singles” and “20’s” chat rooms to chat with others online every day. Her parents were unaware of her participation in these chat rooms.

In late August 2010, when A.B. was 13, she met defendant in a chat room when she asked whether anyone in the 916 or 530 area codes was in the chat room and defendant responded. A.B. viewed defendant’s profile, which indicated he was in his 20's. A.B. and defendant began chatting privately, and A.B. then gave defendant her cell phone number. Defendant sent A.B. a text message and they communicated by text messages for about 90 minutes. During this initial conversation, A.B. revealed that she was actually 13 and defendant revealed that he was actually 35, and the two agreed to meet in person. A.B. asked defendant to visit her, and later that same day, defendant met A.B. outside her mother’s home. He arrived in a purple Ford Ranger pick-up. Thereafter, defendant and A.B. took a 20-minute walk together. They agreed that if they ran into someone who questioned their age difference, they would say defendant was A.B.’s uncle.

A.B. testified that she and defendant continued to communicate via text messages daily, and defendant came to visit her at her mother’s house several days later. They walked to a more secluded area where defendant and A.B. kissed for a while and at defendant’s request, A.B. orally copulated him. During this visit, defendant told A.B. that he wanted to have sex with her. A.B. was a virgin at that time and she told him she was worried that it was not the right time for her and that her mother would find out. She also told him that she was worried he would leave her afterward, and defendant reassured her and told her that he loved her. A.B. then went to stay at her father’s house for a week, but she and defendant continued to send each other text messages when she was able to use her cell phone. They discussed their feelings for each other and agreed to become a couple.

When A.B. returned to her mother’s home the following week, she and defendant arranged to meet a third time. Defendant asked if he could come visit A.B. at her mother’s house, and she said yes. This time, defendant came to her bedroom window at night. Defendant pulled off the window screen and A.B. sat on the window sill. A.B. testified that she and defendant kissed and defendant touched her breast and vagina. Defendant again told A.B. that he wanted to have sex with her and she felt somewhat pressured but said she

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was not ready. Defendant was outside A.B.’s window for several hours and then came inside her room to say good night. A.B. promised him that she would have ...


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