People v. Senior

• Decision Date: 31 January 1992
• Docket Number: No. H007224,H007224
• Citation: 5 Cal.Rptr.2d 14,3 Cal.App.4th 765
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Eric Robertson SENIOR, Defendant and Appellant.

Page 14

5 Cal.Rptr.2d 14

3 Cal.App.4th 765

The PEOPLE, Plaintiff and Respondent, v. Eric Robertson SENIOR, Defendant and Appellant.

No. H007224.

Court of Appeal, Sixth District, California.

Jan. 31, 1992.

Review Denied April 16, 1992.

Philip H. Pennypacker, San Jose, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Ronald S. Matthias, Supervising Deputy Atty. Gen., Jeremy Friedlander, Deputy Atty. Gen., for plaintiff and respondent.

ELIA, Associate Justice.

1. Introduction

Defendant Eric Senior appeals from the judgment following his conviction after jury trial of nine counts involving sexual molestation of his daughter (the victim), all by force, violence, duress, menace, or fear of immediate and unlawful bodily injury. Counts one and two involved lewdly touching her body before she was fourteen years of age with the intent of arousing or gratifying his or her lust or passions. (Pen.Code, § 288, subd. (b).) ¹ Counts three and seven involved penetrating her vaginal opening with a foreign object against her will for the purpose of sexual arousal, gratification, or abuse. ² (§ 289, subd. (a).) The remaining five counts, four, five, six, nine, and ten, involved oral copulation against her will. (§ 288a, subd. (c).) ³ The jury found true enhancements that defendant kidnapped his daughter for the purpose of committing counts nine and ten and found this not true of count seven. (§ 667.8, subd. (a).) Defendant was sentenced to thirty-three years' imprisonment, consisting of two fully consecutive midterms of six years each on counts nine and ten (§ 667.6, subd. (c)), seven fully consecutive lower terms of three years each on counts one through seven (§ 667.6, subd. (d)), two three-year kidnapping enhancements of counts nine and ten with the second one stayed, and a three-year term stayed on count two pursuant to section 654.

Defendant testified at trial and essentially admitted every molestation with which he was charged. ⁴ The key issue at trial was whether defendant accomplished the molestation by force, violence, duress, menace, or fear of immediate and unlawful bodily injury. On appeal defendant challenges the sufficiency of the evidence of this element on counts three through seven. He also claims the court should have instructed the jury that this element of the charged offenses requires specific intent. He claims the court should not have instructed the jury to view his admissions with caution or admitted evidence of a threat to kill one of his children. Defendant makes three different arguments about counts nine and ten: he should not be punished separately for each; he could not have kidnapped his own daughter; the court failed to state reasons for fully consecutive sentences. For the reasons stated below, we are persuaded only by the last argument. We will reverse the judgment and remand for resentencing. The facts are stated where relevant.

2. Trial evidence

A. Counts one and two

On January 14, 1989, two days before the victim turned fourteen, defendant entered her bedroom, put his hands under her shirt and pants, and touched her breasts (count one) and her vagina (count two). He said if she told anyone there would be a divorce. She tried to stop his hands with her hands. He told her to move her hands, it would not hurt, and she complied.

According to the victim, she pulled away and he pulled her legs back. He told her he would hit her if she moved and she might get hurt if she told anyone. He was often angry and sometimes hit her, her sister, and her brother for no reason. He always told her he was stronger and would hurt her if she ran away.

According to defendant, he spanked all his children, but denied hitting them without reason and denied telling the victim if she tried to run away he would hurt her because he was stronger and bigger. Defendant denied ever threatening to hurt her to obtain compliance. Defendant denied ever grabbing her legs to keep her from leaving. He testified he never used force because he "never had to." She was often stiff and rigid but reluctantly accepted his advances because she was "extremely obedient."

According to defendant, this first molestation set the stage. He "gave her the lecture on the first time" and after that he "didn't have to" have a similar conversation.

B. Count four

About two days after the victim's fourteenth birthday, defendant entered her room and told her to take her clothes off and lie down. She protested but complied. He touched her breasts and vagina and licked her vagina (count four).

C. Counts three, five, and six

On one or more occasions in August 1989 defendant touched the victim's breasts, put his fingers inside her vagina (count three) ⁵, licked her vagina (count six), and made her suck on his penis (count five). According to the victim, she tried to pull away when he licked her vagina. He pulled her back. She tried to pull away from sucking his penis. He held her shoulders. Once during an August molestation he got her out of bed. She was shaking because she was cold. He pushed her down and told her to stop shaking. Defendant denied pushing her down and telling her to stop shaking.

D. Counts seven, nine, and ten

On September 11, 1989, defendant came home and found a note from his wife saying she was leaving him after she had promised they would work things out. The victim had revealed the molestations to her mother at the end of January 1989 without saying her father had threatened to hurt her. The victim's mother had left with the six children for six days in early February but had returned. Defendant and his wife had talked about the molestation. Defendant had contacted their bishop and admitted the molestation to him during counseling.

After reading his wife's note, defendant picked up two of their children after school. She picked up three. Defendant drove up after his wife returned home and told two of their children to get into his car. He told her she would never be with them again and drove off. She called defendant's brothers to come over while waiting for the victim to come home from school. She left home with the victim and called defendant at home. He asked if she had the victim. She would not say. She testified in rebuttal over defendant's objection that defendant said if she did not come home in a half hour he would kill one of their children. On cross-examination defendant denied using the word "kill" but said that was the "flavor" of his message. ⁶

Uncle Lee took the victim and her siblings out for a pizza dinner while her mother, defendant, and the bishop talked at her house. Defendant was distressed to hear the bishop say the church was going to take action. He felt his wife and his church were leaving him.

Defendant left and came to the pizza parlor around 7 p.m. According to defendant, he wanted to pick the victim up so she could talk to her mother and the bishop. According to the victim, defendant said her mother was in the car and wanted to talk with her. Defendant could not recall saying her mother was in the car. The victim saw her mother was not in the car when she was a few feet from it.

Defendant guided the victim into the car with his hands on her shoulders. He said her mother was talking to the bishop at home and wanted to talk to her. He drove to their nearby house and past it. According to defendant, he drove past his house when he saw the bishop was still there.

Defendant said he wanted to talk to the victim. He drove around, telling her his problems. He told her he was going to be excommunicated and he did not care anymore. They stopped twice for her to go to the bathroom. First they stopped at a gas station that had no bathroom. Then he told her to go in the parking lot of an office building.

According to the victim, while they were talking in the car, defendant said it was better that he take her out and molest her rather than kill her. She said she would rather be dead. He said angrily, " 'What do you want me to do, pull the car over and bash your head in?' " He said he was just kidding, but he did not seem to be.

According to defendant, the victim said it would be better if he bashed her over the head instead of molesting her. He replied, "[y]eah, like I'm going to pull over and bash your head in." He testified it was not a threat.

While they were driving around, he touched her breasts and put his finger inside her vagina (count seven). She tried to pull away but it did not help.

Defendant stopped driving to call his wife to see if everyone had left yet. He put the victim on the phone to her mother. They got back in the car and drove to a motel. According to defendant, he decided to go to a motel while driving around.

At the motel defendant locked the victim in the car, saying he did not want her kidnapped. She tried to get out, but could not unlock her door. Defendant called home from the motel. Defendant's brother Lee answered the phone.

According to defendant, he called to see who was still at the house. He said he would be home in an hour. Neither defendant nor Lee could recall defendant saying he would kill his wife and the victim if the police were called. Lee had never seen defendant be violent. A police officer testified Lee told him that evening defendant had threatened to kill both of them if the police were called. The officer assumed defendant was referring to the victim and himself.

Defendant got a motel room, unlocked the car door, and guided the victim inside the room with his hands on her shoulders. He shut and locked the door and told her to take her clothes off and act sexy. He touched her breasts and vagina and licked her vagina (count nine). He made her lick his penis (count ten). He took her back home after midnight.

According to the victim, defendant said he would hurt her if she did not act sexy. The victim told a police officer who interviewed her...