209 Cal.App.3d 1098A, People v. Coulter

• Decision Date: 07 April 1989
• Docket Number: No. B034417,B034417
• Court: California Court of Appeals Court of Appeals
• Parties: A, 209 Cal.App.3d 506 The PEOPLE, Plaintiff and Respondent, v. Paul Duane COULTER, Defendant and Appellant.

Page 391

257 Cal.Rptr. 391

209 Cal.App.3d 1098A, 209 Cal.App.3d 506

The PEOPLE, Plaintiff and Respondent, v. Paul Duane COULTER, Defendant and Appellant.

No. B034417.

Court of Appeal, Second District, Division 1, California.

April 7, 1989.

As Modified on Denial of Rehearing May 2, 1989.

Review Denied June 29, 1989.

Harvey Zall, State Public Defender, under appointment by the Court of Appeal, Nancy Gaynor, Deputy State Public Defender, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Richard L. Walker, and Alfredo X. Jarrin, Deputy Attys. Gen., for plaintiff and respondent.

ORTEGA, Associate Justice:

Paul Duane Coulter appeals from the judgment entered following his conviction by jury of 10 counts of lewd conduct with children under 14 years of age with use of obscene or sexually explicit material. (Pen.Code, §§ 288, subd. (a); 1203.066, subd. (a)(10).) He was sentenced to 26 years in prison. Appellant contends the evidence regarding six counts against one victim was insufficient, the prosecutor committed prejudicial misconduct during closing argument, and the trial court improperly imposed consecutive two-year terms on six counts.

We conclude appellant's contentions are unmeritorious or unavailing, and affirm.

FACTS

Viewed in accord with the usual rules governing appellate review (People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal.Rptr. 228, 721 P.2d 110), the evidence established that appellant's nephew Christopher T. lived with him from December 1986 through February 1987. Christopher's three friends Jason T. and Jeffrey F., both 13 years old, and Jason D., 12 years old, occasionally stayed overnight on weekends. Appellant routinely permitted the boys to drink beer and watch a pornographic movie. While living with appellant, Christopher did not know, nor did his friends complain, of any objectionable conduct.

Jason D. first stayed overnight with Christopher and appellant shortly before Halloween in October 1986. Jason D. drank beer and watched a pornographic movie supplied by appellant. Appellant told Jason D. a girl would arrive and orally copulate the boys. Jason D. went to sleep alone in appellant's bed and awoke to find appellant orally copulating him. Jason D. tried to roll away but appellant flipped him over and continued orally copulating him until he climaxed. Appellant then left. Jason D. did not tell anyone because he was embarrassed.

Appellant committed nearly identical assaults on Jason D. on two consecutive weekend nights near Thanksgiving in November 1986, shortly after Christmas in December 1986, the third week in January 1987, and the second week in February 1987. Jason D. stayed overnight on other occasions when nothing happened. When Jason T. or Jeffrey F. stayed overnight along with Jason D., Jason D. was not assaulted. Jason D. told no one of the assaults until Jason T. disclosed appellant had committed a similar assault on him. Jason D. told his second police interviewer that appellant assaulted him five times, including once in November 1986, twice in December 1986, but never in February 1987. He was confused about dates. ¹

In defense, Long Beach Police Officer Bryan McMahon, the first officer to interview Jason D., testified that Jason D. told him appellant assaulted him three or four times between early January and mid-February 1987. Appellant's sister claimed her son Christopher began living with appellant the second week of January 1987 and never stayed overnight from October through December 1986. Appellant admitted permitting the boys to drink beer and watch pornographic movies but denied committing any sexual assaults and claimed Christopher began living with him shortly after Christmas in December 1986. ²

The prosecutor began his closing argument by stating "... I sit and listen to defense attorneys talk. [p] I keep waiting Without further objection, the prosecutor continued: "He told you about, as [defense counsel] said--again, I will repeat it is because I don't want anybody mislead [sic]. [p] What he did, what [defense counsel] talked about--what I'm going to comment about, what he said--I'm not trying to imply it was improper or anything else. [p] I'm just giving you examples of what he did, is a very good job, a very fine job."

                for them to stand up before you and say I'm convinced beyond a reasonable doubt like you are.  [p] And this isn't common of [defense counsel], where he does a very, very good job.  [p] The reality is he has a duty to represent the defendant.  [p] His duty is to come up here before you and try to give you a reason if you want [209 Cal.App.3d 510] that reason to find the defendant not guilty.  [p] His duty is to try to create a doubt."   When defense counsel objected to this argument as improper, the trial court admonished the jury "... remember that whatever counsel say, either attorney, is not evidence.  [p] You heard the evidence.  [p] You will decide the case from the facts.  [p] They are now summarizing the case from their point of view."
                

At sentencing, the court considered a probation report which included appellant's lack of any prior criminal record, continued denial of culpability, and lack of remorse. The report listed the vulnerability of multiple victims, premeditation, and violation of a position of trust as aggravating factors, and no mitigating factors. The probation officer stated appellant was ineligible for probation and, based on the aggravating factors and the unlikelihood of rehabilitation, recommended imposition of a maximum upper base and consecutive subordinate sentence.

Appellant argued his lack of prior criminal record was a mitigating factor and he now was remorseful. The prosecutor conceded appellant's lack of criminal record was a mitigating factor but argued his remorse was feigned. Based on the same considerations listed in the probation report, the prosecutor recommended imposition of an eight-year upper base term and consecutive two-year subordinate terms on the remaining nine counts for a total of 26 years.

In determining whether to grant probation, the court agreed appellant's lack of prior criminal record was a mitigating factor, but nonetheless found the case not unusual and denied probation. The court imposed a 26-year sentence structured as recommended by the prosecutor. ³

ISSUES

Appellant contends (I) his convictions for the six crimes committed against Jason D. must be reversed because there was insufficient evidence to tie any crime to a specific date or charge or otherwise distinguish it from any other. Appellant further contends (II) the prosecutor committed prejudicial misconduct by arguing to the jury that defense counsel was obligated to create a doubt even if he believed appellant guilty. Finally, appellant contends (III) the case must be remanded for resentencing because the court improperly relied on the factors of multiple, young, vulnerable victims and cruelty in imposing consecutive sentences on six of the nine subordinate terms.

DISCUSSION

I.

The contention that appellant's convictions for the six crimes against Jason D. must be reversed because the evidence failed to tie any crime to a specific date or charge or otherwise distinguish it from any other is without merit. Appellant was charged with committing six sexual assaults against Jason D. between October 1, 1986 and February 22, 1987. Jason D. testified to six such assaults, all occurring within the charged period. The jury was instructed pursuant to former CALJIC No. 17.01. All the crimes occurred on weekends. Jason D. tied each assault to a specific time: shortly before Halloween in October 1986; two consecutive nights near Thanksgiving in November 1986; shortly after Christmas in December 1986; the third week in January 1987; and the second week in February 1987. Appellant's defense was neither alibi nor misidentification but rather denial. Appellant ignores the prosecution evidence or argues it should be discounted because Jason D.gave prior inconsistent statements to the police and Christopher, his mother, and appellant claimed Christopher neither resided nor stayed with appellant before December 1986. However, those three witnesses all had a motive to assist appellant and contradicted each other regarding when Christopher began staying with appellant: Christopher said he began living with appellant in December 1986; appellant claimed Christopher's stay began after Christmas in December 1986; and Christopher's mother testified he began living with appellant the second week of January 1987. Thus, it was reasonable for the jury to accept Jason D.'s testimony and reject that of appellant and his relatives. In any event, appellant's claim amounts to no more than a request that this court reweigh the evidence and substitute its judgment for that of the jury. That is not the function of an appellate court. (People v. Barnes, supra, 42 Cal.3d at p. 303, 228 Cal.Rptr. 228, 721 P.2d 110.)

Even if this case were factually similar to those upon which appellant primarily relies (People v. Luna (1988) 204 Cal.App.3d 726, 737-749, 250 Cal.Rptr. 878; People v. Atkins (1988) 203 Cal.App.3d 15, 17-23, 249 Cal.Rptr. 863; People v. Van Hoek (1988) 200 Cal.App.3d 811, 814-818, 246 Cal.Rptr. 352), we decline to follow those cases, all decided by the Fifth District. Those cases all reverse convictions of "resident child molester[s]", defined as "... person[s] who either reside[] in the same home with the minor or ha[ve] unchecked access to the child and repeatedly sexually molest[] the child over a prolonged period of time." (People v. Van Hoek, supra, 200 Cal.App.3d at p. 814, fn. 1., 246 Cal.Rptr. 352) In each case, victims testified to identical recurring sexual assaults during periods of contact with the defendants, but did not link specific attacks to particular times, dates, locations, or charges. The Fifth District struggled to balance the undesireable result of "insulat[ing]...