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People v. Young

California Court of Appeals, Third District, Siskiyou

November 17, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
SHAWN DARYL YOUNG, Defendant and Appellant.

         CERTIFIED FOR PARTIAL PUBLICATION [*]

         APPEAL from a judgment of the Superior Court of Siskiyou County, No. 131379 Laura Masunaga, Judge. Reversed.

          Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris, Xavier Becerra, Attorneys General, Gerald A. Engler, Michael P. Farrell, Assistant Attorneys General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.

          HOCH, JUDGE.

         Defendant Shawn Daryl Young was convicted by jury of sexually abusing his two daughters, A. and H., as well as their friend, M., who lived next door. With respect to A., defendant was convicted of sexual penetration with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b))[1] and lewd or lascivious conduct with a child under the age of 14 years (§ 288, subd. (a)). (Counts 1 & 2) With respect to H., defendant was convicted of sexual intercourse with a child 10 years of age or younger (§ 288.7, subd. (a)), sexual penetration with a child 10 years of age or younger (id., subd. (b)), oral copulation with a child 10 years of age or younger (ibid.), and continuous sexual abuse of a child under the age of 14 years (§ 288.5, subd. (a)). (Counts 3-6) With respect to M., defendant was convicted of sexual penetration with a child 10 years of age or younger (§ 288.7, subd. (b)). (Count 7) The trial court sentenced defendant to serve an aggregate determinate prison term of 18 years (upper term of 16 years for Count 6 plus 2 years consecutive for Count 2), plus a consecutive indeterminate term of 85 years to life (25 years to life for Count 3, plus 15 years to life each for Counts 1, 4, 5, and 7).

         On appeal, defendant contends: (1) we must reverse the judgment because the trial court lacked good cause to excuse one of the sitting jurors (Juror No. 4) and doing so in the absence of both defendant and his assigned trial counsel violated defendant's constitutional rights; (2) defendant's convictions for Counts 3 and 6 must also be reversed for insufficient evidence; (3) defendant's Count 6 conviction must be vacated because section 288.5, subdivision (c), mandates charges of continuous sexual abuse and specific sexual offenses, pertaining to the same victim over the same period of time, be charged in the alternative; (4) the trial court prejudicially erred and violated defendant's constitutional rights by allowing two prosecution witnesses to testify to their opinion that the complaining witnesses were credible; (5) defendant's trial counsel provided constitutionally deficient assistance by failing to object to certain assertions of prosecutorial misconduct; and (6) the trial court prejudicially erred by failing to instruct the jury on attempted sexual penetration as a lesser included offense to Count 7.

         We conclude the trial court did not have good cause to excuse Juror No. 4. We also conclude doing so outside defendant's presence and while he was represented by an attorney who was standing in for defendant's temporarily ill trial counsel, and who was told she was appearing to agree to a continuance on defendant's behalf, violated defendant's federal constitutional rights. Because we cannot conclude this error was harmless beyond a reasonable doubt, we must reverse the judgment. This conclusion makes it unnecessary to address defendant's remaining claims except those challenging the sufficiency of the evidence. As to those, we conclude sufficient substantial evidence supports defendant's conviction in Count 3. Not so with respect to Count 6. We must therefore reverse the judgment on that count for insufficient evidence.

         FACTS

         Defendant and his family, consisting of his wife and daughters A. and H., moved from Texas to Hornbrook, a rural community not far from the Oregon border, sometime in May 2013. They initially stayed in a small house with defendant's father and stepmother. In July or August, the family moved into a house located on a piece of property managed by a friend of defendant's wife. This friend also lived on the property, in a separate house, with her husband and their four children, including their five-year-old daughter M. A. and H. were four years old and three years old, respectively.

         Sexual Abuse of A. and H.

         Defendant's sexual abuse of his daughters came to light during the third weekend of August 2013. At some point that weekend, M.'s mother discovered from talking to her daughter that A. had tried to put her finger in M.'s vagina while the two were picking blackberries together. On two prior occasions, A. had tried to hold M. down and kiss her. Concerned A. was acting out sexually, M.'s mother spoke to defendant's wife about the latest incident and obtained her permission to ask A. about it.

         M.'s mother then had a private conversation with A. while they played with M.'s hamster. When asked about the incident, A. “got a shy look on her face, ” but then admitted to trying to put her finger in M.'s vagina. M.'s mother told A. several times that she was not in trouble and asked how she knew something could go into a vagina, using the word “pee-pee” for vagina because that was the word the children used for it. A. responded, “Daddy taught me” and added: “This is how we show we love each other.” As M.'s mother explained her reaction: “I tried really hard to keep a straight face for that little baby. Everything in me as a mom wanted to just explode and freak out.” Instead, she calmly asked for more details. A. said it was “not okay to tell because [defendant] might kill Mommy.” After multiple assurances that “it was okay to tell the truth, ” A. revealed defendant played “games” with her while her mom was at work, including defendant touching and putting things into her vagina and making her touch and kiss his penis. In the conversation, A. used the word “pee-pee” for both vagina and penis. A. also said defendant did these things to her when they lived in Texas and continued to do so in California, both at her grandfather's house and at their new house.

         After speaking to A., M.'s mother spoke to H. to find out whether defendant was also abusing her. After telling H. it was okay to tell the truth, M.'s mother said A. had told her “about the games that [they] play with Daddy, ” without saying what these games were. H. initially avoided eye contact and remained quiet, but eventually said they played “pee-pee kissing games” because “that's what Daddy likes to do when [M]ommy is not home.” H. also confirmed defendant did these things when they lived in Texas and at their new house in California.

         M.'s mother reported these disclosures to defendant's wife, who “flipped out, ” going from “sobbing and crying” to “screaming angry.” At some point, defendant's wife took A. outside and asked about what she had told M.'s mother. A. told her mother she touched M.'s vagina because she loved her friend and, as she put it, “that's how Daddy showed us love.” When asked how defendant showed her love, A. said he “would touch [her] pee-pee and [they] would play pee-pee kissing games, ” elaborating: “I would kiss H.'s pee-pee, and Daddy would kiss mine.” A. also told her mother defendant “would stick carrots inside of [their] pee-pees.” Defendant's wife then had a private conversation with H. about what she had told M.'s mother. When she asked H. what the “pee-pee kissing game” meant, H. said: “Daddy... would kiss my pee-pee and put carrots inside.” She also said he put his “pee-pee” on her face and it hurt when he put his fingers and carrots inside of her “butt.” Both A. and H. said they did not tell her about the abuse because defendant threatened to shoot her if they told.

         M.'s mother and defendant's wife decided to call the Siskiyou County Sheriff's Department and Child Protective Services (CPS) to report the abuse. M.'s mother made the call because defendant's wife “was physically ill at that point.” Defendant moved out after his wife confronted him with the allegations.

         A social worker from CPS, Angeline Brophy, came out to the house to interview A. and H. the following week. The purpose of these initial interviews was not to document the abuse in detail, but to determine whether or not to refer the matter to law enforcement authorities. Brophy spoke with A. first. After establishing A. knew the difference between the truth and a lie through introductory questions, Brophy asked her who lived at the house. When A. got to defendant, she added: “But he is naughty.” Brophy asked what she meant. A. responded, “My dad is naughty because he puts sticks and stuff in my pee-pee, ” pointing to her vagina. Brophy asked when the last time something like that happened. A. said defendant put a carrot in her vagina at their house in Hornbrook, he told her not to tell anyone, and she was afraid of him. Brophy also asked about the incident with M., but A. denied touching her vagina. She also denied defendant ever asked her to touch him. Brophy ended the interview without getting additional details because A. seemed nervous and Brophy already had enough information to refer the matter to law enforcement.

         Brophy then interviewed H. After establishing she knew the difference between the truth and a lie, Brophy also asked her who lived at the house. When H. got to defendant, she said: “My dad touches my pee-pee with his fingers.” She also pointed to her vagina to indicate that is what she meant by “pee-pee.” After establishing H. knew the difference between inside and outside, Brophy asked whether defendant put his fingers inside her vagina. H. said he did. She also revealed that he put a carrot inside her vagina. When asked how many times he did that, H. responded: “A lot. More than five times.” She said the last time defendant put his fingers in her vagina was at the recreational pool in Hornbrook. Defendant told her not to tell anyone about the carrots. Finally, H. said defendant put his penis on her eye, but denied he put his mouth on her vagina or had her put her mouth on his penis. Again, because Brophy had enough information to refer the matter to law enforcement, she ended the interview without getting additional details.

         Brophy referred the matter to law enforcement the first week of September. The following week, Detective Jacques Morlet went out to the house to conduct follow-up interviews with A. and H. The detective spoke to A. first. When he asked her if she knew why he wanted to talk to her, A. said: “Because Daddy's a bad, bad man.” After establishing A. knew the difference between the truth and a lie, much like Brophy had done, the detective asked whether defendant did anything to her that he told her not to tell anyone. A. responded: “He, um, messed with me.” When the detective asked how defendant messed with her, A. said he made her eat an apple when she did not want to and also made her touch a flower. The detective then established A. knew what her “private parts” were and “the difference between a good touch and a bad touch” and asked whether she remembered telling Brophy about defendant doing something that was “kinda like a bad touch.” A. said defendant made her dinner, but she “didn't eat it all.” The detective then told A. it was okay to be embarrassed, but he wanted her to tell him the truth about what she told Brophy. A. responded: “He um, he, he sticked carrots in my pee-pee.” She said this happened “a long time ago” when they lived in Texas. A. also said this happened only one time and defendant told her not to tell anyone. After speaking to A., the detective tried to interview H., but she did not want to answer his questions, which he said was “perfectly fine.”

         About two weeks later, Brophy conducted a forensic interview with H. During the interview, H. said her father was “mean” because he “put carrots... and all that stuff in [her] pee-pee” at the house in Hornbrook. When Brophy asked what else defendant put inside her vagina, H. pointed to various stuffed animals and other items in the interview room and said: “He put that. Not that. That and that and that and that. He put all the stuff in my pee-pee.” She then directed Brophy: “So write it.” When Brophy asked whether she had seen defendant's “pee-pee, ” H. said: “He put it together to my pee-pee.” Brophy then established H. knew the difference between inside and outside and asked: “Did your daddy put his pee-pee inside your pee-pee or outside your pee-pee?” H. answered: “Inside my pee-pee.” Brophy asked what happened then, to which H. responded: “He put the teddy bear in my pee-pee too.” She again directed: “Write that.” Brophy asked whether defendant ever put his mouth on her vagina. H. answered: “Yes. And inside his pee-pee and inside my pee-pee.” Brophy also asked whether defendant ever had her touch his penis. H. answered: “He want me to touch, he touched my pee-pee and I touched his pee-pee.” When Brophy asked what defendant's penis looked like, H. said it looked like a “cracker” and pointed to a Nutter Butter cookie that was on a table in the interview room. Brophy asked how many times defendant touched H.'s vagina. She responded: “Um, five times, like three times.” When Brophy asked whether A. was involved in any of these incidents, H. answered: “Yes. He took [A.'s] pee-pee and my pee-pee and my mom's pee-pee. And his pee-pee.” Brophy responded: “Your mom was there when he touched your pee-pee?” H. answered, “Yes. She said it, ” and, “She said, ‘Don't do that again.' And [defendant] didn't listen to my mom, ” so “she just killed him.” Brophy asked: “Where's your dad right now?” H. answered: “He's in jail.”

         At this point in the interview, Brophy brought out some anatomical drawings of a girl and a man and had H. identify the various parts and point out where defendant touched her and where she touched him. Brophy then asked whether anything happened at the pool. H. said defendant “put his pee-pee on the ground and he touched [her] pee-pee” during a pool party. Brophy asked: “How did your daddy get his pee-pee into your pee-pee in the pool?” H. answered: “Like he put inside his finger in my pee-pee like this.” Brophy then asked: “Did he put his pee-pee in your pee-pee in the pool?” H. answered: “Yes.” After stepping outside to talk to Detective Morlet, Brophy returned and had H. color on the drawings to represent the various places defendant touched her and had her touch him.

         A. and H. testified at trial, although H. refused to answer any questions relating to the abuse, repeating, “I don't want to talk about it” and, “I don't want to say it” several times. She also stated there was someone in the courtroom she was afraid of, identifying that person as “a boy, ” but providing no further details. A. did provide testimony regarding the abuse. She testified defendant touched her on her “pee-pee” and her “butt, ” identifying her vagina and buttocks on anatomical drawings shown to her on the witness stand. She testified defendant touched her vagina with his hands and finger on one occasion at the house in Hornbrook and did so on other occasions when they lived in Texas. Defendant also touched her buttocks twice at the house in Hornbrook. A. also testified defendant put carrots inside her vagina on two occasions at this same house.

         Sexual Abuse of M.

         During the second week of September, two days after Detective Morlet interviewed A., M. revealed to her mother that defendant also put his finger inside her vagina on one occasion. M.'s mother testified: “She told me that [defendant] had -- the girls were over there playing at their rental on my property, and they were all running around in bathing suits, like every day, and that he was on his computer, and that she ran in that room to ask him something and that he put his finger underneath her bathing suit on her pee-pee, and that she got scared and tried to pull away and said, ‘I want my Mommy.' And he said, ‘You can't go tell your mommy, you can't tell anybody, you can't go over. You need to go play with the girls right now.' ” When M.'s mother asked her daughter where defendant put his finger, M. put her finger “onto her pee-pee, right in her labia.” M. did not say when this occurred. M.'s mother estimated it must have happened during the “middle to the third week” of August, based on when M. would have been over there playing with her friends.

         M.'s mother reported the incident to Detective Morlet, who came out to her house with Brophy two days later to conduct an interview with M. Brophy tried to interview M. in private, but she refused, so the interview took place in the living room with M. sitting on the couch with her parents and Brophy sitting on the floor facing the child. During the interview, after establishing M. knew the difference between the truth and a lie, Brophy asked whether there was a time M. “got in trouble” while she was over at defendant's house playing with her friends. M. responded: “I did.” When Brophy asked why she got in trouble, M. apparently looked up at her mother, prompting her mother to say: “I don't know why hunny. Just tell her what happened.” M. then pointed to her vagina. Brophy asked what she called that part of the body. M. answered: “Our pee-pee.” Brophy then asked what happened to her pee-pee. M. responded, “He did this, ” grabbing her vaginal area with one hand and lifting upwards. In response to further questions, M. identified defendant as the “he” who did that to her and also said she was wearing a bathing suit at the time and defendant's finger went underneath the bathing suit and inside her vagina.

         M. also testified at trial. She testified defendant touched her “pee-pee” and “butt” on the outside of her bathing suit. She claimed to not remember what he touched her with, but said it happened on one occasion while she was over at his house playing with A. and H. According to M.'s testimony, she immediately ran home and told her mother what defendant had done.

         DISCUSSION

...


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