People v. Atkins

• Decision Date: 25 July 1988
• Docket Number: No. F008738,F008738
• Citation: 203 Cal.App.3d 15,249 Cal.Rptr. 863
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Tony Dorlus ATKINS, Defendant and Appellant.

Page 863

249 Cal.Rptr. 863

203 Cal.App.3d 15

The PEOPLE, Plaintiff and Respondent, v. Tony Dorlus ATKINS, Defendant and Appellant.

No. F008738.

Court of Appeal, Fifth District, California.

July 25, 1988.

Certified for Partial Publication. ^*

Joseph C. Gasperetti, Oakhurst, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Jane N. Kirkland and Susan J. Orton, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

BALLANTYNE, Associate Justice.

Defendant, Tony Atkins, appeals following his jury trial which resulted in his conviction for five sex crimes arising out of the sexual molestation of his stepdaughter, N. The jury took approximately 20 minutes to reach their verdict. The court denied defendant's motion for a new trial based on jury misconduct and a motion requesting disclosure of jurors' addresses and/or phone numbers.

FACTS

Defendant was the stepfather of the victim, N. He lived with N. and her mother from the time she was six years old. N. testified to a continual pattern of sexual abuse. The five counts of sexual abuse defendant was found guilty of occurred some time after March 2, 1985, when the family moved to Coarsegold.

The case essentially involved a credibility contest between defendant and N. N.'s credibility was bolstered by her mother who testified that in Atascadero, prior to their move to Coarsegold, she walked into the room and saw defendant hovering over N. in a "push-up" position. When she asked, "What the hell is going on?" defendant moved away and said, "I know what it looks like. I know what you are thinking." Defendant denied any wrongdoing and N. said nothing was wrong. The mother told N. that if he ever molested her she would kill him. Linda Ship, a registered nurse, testified that she aided in an examination of N. and N.'s hymen was not intact.

Count I alleged that in 1985 defendant committed a lewd and lascivious act against a minor under the age of 14 in violation of Penal Code section 288, subdivision (a). As to this count, N. testified that within the first two weeks after moving to Coarsegold defendant kissed her breasts and mouth and touched her vagina and breasts. This occurred before N.'s fourteenth birthday on June 13, 1985.

Count II alleged that in 1985 defendant committed an act of oral copulation upon N. in violation of Penal Code section 288a, subdivision (b)(1). N. testified that an act of oral copulation occurred at least once prior to June 13, 1985. When being questioned regarding an oral copulation which occurred in 1986, N. responded that an act of oral copulation occurred also in 1985. Other than this testimony, N. did not specify the act of oral copulation with any particularity.

Count III alleged that in 1986 defendant engaged in an act of oral copulation with N. in violation of Penal Code section 288a, subdivision (b)(1). N. recollected a particular incident in 1986 when defendant came into the living room in the evening when it was getting dark. He took N.'s pants off and put his mouth on her vagina. She said she did not want it, and he said it would not hurt and to just relax. No one else was home at the time except N.'s younger sister who was in her room when the incident occurred.

Count IV alleged that in 1985 defendant engaged in an act of sexual intercourse with a minor, N., in violation of Penal Code section 261.5. N. testified that she remembered a particular incident in the spring of 1985. Defendant came into the living room from the kitchen in the afternoon. N. was on the couch. Defendant said, "You want to play?" and took N.'s shorts off. N. tried to pull her shorts up but defendant prevented her. He kissed and touched her. Her mother was gone at the time. N. also testified to another act of sexual intercourse in the spring of 1985. N. was in the living room, lying down on the couch watching television. Defendant came in and told her to sit on him. She did and he started touching her. He told her to lie down. Defendant tried to take off N.'s "jammies." She tried to pull them back up. He told her to relax and that it would not hurt. N. said she did not want to do it. He put his penis in her and ejaculated. She told him it hurt and he kept doing it; then he stopped.

Count V was identical to count IV, except it alleged that the act occurred in 1986. N. described an incident in 1986 when her stepfather came into her bedroom, got on top of her and said he was going to have sex with her. She said no and ran into the bathroom. He opened the door and slapped her. N. did not testify that they had intercourse on this occasion. She did testify that defendant had intercourse with her after June 13, 1985. N. testified she had intercourse with defendant 10 to 15 times in Coarsegold. She did not testify to a particular act of sexual intercourse occurring in 1986.

N. also describes several other incidents involving sexual touching.

DISCUSSION

I. DID THE PROSECUTOR FAIL TO MEET HIS BURDEN OF PROOF ON COUNTS II AND V DUE TO THE LACK OF ANY SPECIFIC EVIDENCE AS TO A PARTICULAR ACT?

As previously set forth, N. testified with particularity to specific incidents to support counts I, III and IV. We are concerned here with the sufficiency of N.'s testimony to support defendant's convictions on counts II and V. As to count II, other than N.'s statement that an act of oral copulation took place in 1985, there was absolutely no testimony specifying with any detail the particular act which would support this count. Count V is even more troubling. Not only did N. not testify to a particular act of sexual intercourse occurring in 1986, testimony regarding sexual intercourse in 1986 was virtually nonexistent. As we shall discuss, the prosecutor did not meet his burden to prove a specific offense with regard to counts II and V. Such a failure results in our finding that there is insufficient evidence to support these counts, and the judgment must be reversed as to these counts with retrial barred.

The "resident child molester" ¹ cases pose perplexing questions. They involve two very important, yet somewhat conflicting, considerations. One overriding concern is that a child who has been molested on a regular basis and in a consistent manner might not have a meaningful reference point of time or detail by which to distinguish one specific act from another. The concern is that this problem will be exacerbated the more frequent and repetitive the molestation and the younger the victim. Thus, the prosecution's ability to establish one or more specific acts via the testimony of the minor victim decreases. Since minor children are usually molested outside the presence of witnesses and many of these acts leave no permanent physical evidence, the testimony of the minor victim may be the only evidence on which the prosecution can base its case. To render such testimony inadequate as a matter of law under circumstances like those here under discussion could effectively insulate the most egregious child molesters from prosecution.

The other consideration is predicated upon fundamental notions of due process which were first articulated by our Supreme Court in two 1901 decisions, People v. Castro (1901) 133 Cal. 11, 65 P. 13 and People v. Williams (1901) 133 Cal. 165, 65 P. 323. In both cases the defendant was charged with a single act of rape involving a young victim under the age of consent, and the victims each testified that there were multiple acts of sexual intercourse extending over a period of several months. In reversing the conviction in Castro, the Supreme Court stated:

"Under the instructions given to the jury in the case at bar, the defendant should have been convicted, if any one of the various acts of intercourse sworn to by the prosecutrix was established beyond a reasonable doubt; but, certainly, the defendant was not called upon to defend himself against all of these respective acts of intercourse, extending through a period of several months. The information only charged one act, and upon that allegation the case must stand or fall. Possibly, any one of the acts sworn to by the prosecutrix could have been selected by the state as the act charged in the pleading, but the entire four acts could not be so selected. The state, at the commencement of the trial, should have been required to select the particular act upon which it relied to make good the allegation of the information. This was not done; and even conceding that the failure to make such election at that time did not constitute error because of the want of demand upon the part of the defendant to make the election, still, when the case went to the jury, the court, in some form, should have directed their minds to the particular act of intercourse which it was incumbent upon the state to establish by the evidence, before a verdict of guilty could be returned against the defendant. This was not done." (People v. Castro, supra, 133 Cal. at pp. 12-13, 65 P. 13.)

Also, in reversing the conviction in Williams, the Supreme Court held:

"Each of these acts was a separate offense, and the defendant could be tried for either, and separately for each of them. The jury were not even told that they must all agree that some specifically described act had been performed. A verdict of guilty could have been rendered under such an instruction, although no two jurors were convinced beyond a reasonable doubt, or at all, of the truth of the charge, as to any one of these separate offenses. Even worse than that was possible. As to every specific offense which there was an attempt to prove, and which could be met by proof, the defendant may have established his defense, and yet upon the general evidence of continuous crime, which, in the nature of things, he could only meet by his personal denial, he may have been convicted. And how could he defend when he was not informed as to what particular offense, out of hundreds testified to by the...