People v. Betts

• Decision Date: 08 October 2002
• Docket Number: No. E029720.,E029720.
• Citation: 126 Cal.Rptr.2d 64,102 Cal.App.4th 922
• Parties: The PEOPLE, Plaintiff and Respondent, v. John Paul BETTS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

126 Cal.Rptr.2d 64

102 Cal.App.4th 922

The PEOPLE, Plaintiff and Respondent, v. John Paul BETTS, Defendant and Appellant.

No. E029720.

Court of Appeal, Fourth District, Division 2.

October 8, 2002.

Certified for Partial Publication.^*

Review Granted Jan. 15, 2003.

Jeffrey J. Stuetz, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Robert M. Foster and Garrett Beaumont, Supervising Deputy Attorneys General, and Warren P. Robinson, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

RAMIREZ, P.J.

A jury convicted defendant of four counts of committing a lewd act upon the body of a child under the age of 14 years involving victim Nichole. (Pen.Code, § 288, subd. (a)).¹ The jury also convicted defendant of one count of committing a lewd act by use of force or menace (§ 288, subd. (b)(1)), one count of attempted commission of a lewd act without use of force (§§ 664 & 288, subd. (a)), and one count of committing a lewd act without use of force (§ 288, subd. (a)), involving victim Breanna. After defendant waived his right to a jury trial on a section 667.61 multiple victim allegation, the court found this allegation true. The court then reduced the forcible lewd act conviction to a lesser violation of section 288, subdivision (a).

The court sentenced defendant to 15 years to life for count 1, to be served consecutively to a determinate sentence of six years for count 2. Sentences for the other counts were ordered to be served concurrently.

Defendant contends that the trial court erred in the following respects: (1) failing to provide defendant with advisory counsel when he requested to represent himself; (2) failing to instruct the jury regarding jurisdiction; (3) instructing the jury with CALJIC No. 2.50.01; (4) admitting evidence of defendant's prior molestation offenses; and (5) imposing the section 667.61 punishment. Defendant also contends that there is insufficient evidence to support the convictions and venue was improper on two counts.

We find no prejudicial error. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

In June 1999, defendant married Linda. Linda and defendant were both long-haul truck drivers. When they were not on the road, defendant and Linda often stayed in Hemet, sometimes staying at the home of Linda's daughter, Shellie. Shellie had four daughters: Nichole, Breanna, Christina and Tammy. Shortly after their marriage, defendant invited Nichole to accompany him and Linda on a trucking trip to North Carolina. Nichole was 11 years old at the time. The truck had a sleeping area with two bunk beds. Defendant drove during the day and Linda drove at night.

While Linda was driving the truck at night in New Mexico, defendant got into the bottom bunk where Nichole was sleeping. Defendant put his fingers underneath Nichole's shorts and began to move them up her leg. After Nichole moved, defendant removed his hand. Nichole attempted to get away from defendant by moving closer to the wall, but he moved closer to her. Nichole then reached behind her and felt a damp spot which was warm and sticky. Nichole also felt defendant's erect penis. Then Nichole left the bed and joined Linda in the driver's area of the truck.

Linda observed Nichole rubbing her hand on her leg and on the seat and appearing very upset. When Linda asked Nichole if something was wrong, she said she did not like sleeping with defendant. Linda asked Nichole if defendant had touched her. Nichole responded she did not like being touched by defendant. She later described an inappropriate touching. As a result, Linda pulled the top bunk down so Nichole could sleep there. Defendant protested that it was illegal for Nichole to sleep in the top bunk while the truck was moving.

Although defendant did not touch Nichole again during the trip while she was sleeping, he did press against her after which she felt a wet, warm, sticky spot near her on approximately five occasions. Nichole also felt defendant's penis behind her while she was sleeping approximately three times on this trip. It is unknown where these incidents happened, although they apparently occurred somewhere between New Mexico and North Carolina, not in California.

When Linda and defendant returned to Hemet after their trip to North Carolina, they left on another trip to Oregon the same day. This time both Nichole and Breanna accompanied them. This was

Breanna's idea. Breanna was nine years old at the time. Somewhere on their way to Oregon, Breanna was left sleeping in the bottom bunk bed while Linda and Nichole left the truck at a rest stop. Defendant then entered the sleeping area, took off his pants, leaving his boxer shorts on, and lay down on the bed with Breanna. Breanna woke up and told defendant she had to go to the bathroom. Defendant told Breanna he would hurt her if she was not quiet, and he put his leg over her. When Breanna attempted to escape, the defendant tried to grab her leg, which caused Breanna to jump off the bed and fall. Breanna does not know if this incident occurred in California or Oregon. Defendant did not touch Nichole on this trip.

When they arrived in Oregon, Nichole stayed with Shellie's sister in Bend, Oregon, for two more weeks, and she came back on an airplane because she did not want to get back into the truck with defendant. On the trip back from Oregon, Breanna was sick with bronchitis. Breanna eventually called Shellie from the Frazier Park area in California, and Shellie picked her up.

On October 31, 1999, defendant took Breanna and Christina on an overnight trucking trip to Los Angeles without Linda. Breanna went on the trip because she wanted to protect her younger sister. When she was in bed, Breanna heard defendant tell Christina to go to the sleeping area and take Breanna's pants off. When Christina tried to do so, Breanna hit her. Later that evening, defendant succeeded in getting Breanna's pants halfway to her knees, but Breanna pulled them back up and told defendant she did not want him touching her. Later on, when Breanna was in the bunk bed, defendant put his hand down her pants between her underwear and her sweat pants. Breanna removed defendant's hand and went up front with Christina. At the end of this trip, defendant gave Breanna $5 and told her not to tell anyone what had happened.

Sometime around Christmas, Breanna told a counselor whom she had been seeing that defendant had molested her. After this, Nichole was questioned and revealed that defendant molested her also. After the girls reported the allegations, defendant had a telephone conversation with Linda in which he stated, "How much money do you want to keep quiet about the kids? You know I didn't do it anyway, but how much?" The disclosures by Breanna and Nichole tore the family apart.

On December 23, 1999, an officer with the Hemet Police Department interviewed Nichole and Breanna about the incidents. On January 14, 2000, a case worker with the Riverside County Child Protective Services interviewed both girls and her reports were consistent with the prior police interview. Later in January, Nichole recanted her accusations against defendant because of pressure from Linda and family members.

Nichole was reinterviewed by a police detective on January 25, 2000. She reaffirmed her original accusation that defendant rubbed her leg and put his hands inside her shorts. However, she recanted all the rest of her allegations. During Breanna's second interview with the detective, she also recanted one of her allegations against defendant, but reaffirmed the others.

The day before the start of trial, Nichole confessed to her mother that all of her molestation allegations were true. She stated that her prior recantation was a lie because she felt her allegations were responsible for breaking the family up and she wanted her family back together. Both girls testified at trial consistently with their initial reports.

At a hearing on September 29, 2000, defendant informed the court that he was dissatisfied with his representation by the deputy public defender and wished to represent himself with advisory counsel. After a hearing on the matter, the court denied defendant's request for advisory counsel, but granted his request that the deputy public defender be replaced by new counsel.

At trial, the prosecution offered evidence of prior sex crimes defendant had committed. Witness Kendra K. testified that in 1982 to 1983, when she was nine years old, defendant inappropriately touched her in the area of her vagina and her breasts. At the time, defendant was Kendra's mother's boyfriend and resided with her. Witness Brandy T. testified that when she was nine years old, defendant took her to his bedroom on two occasions when she spent the night at Kendra's home. Defendant had Brandy take off her clothes and he touched her in her genital area. A deputy, who had investigated these prior incidents, also testified that defendant admitted he had "accidental" sexual contact with both victims.

DISCUSSION

1. Subject Matter Jurisdiction

Defendant contends that the trial court lacked jurisdiction to prosecute him for all the molestation counts involving Nichole and one molestation count involving Breanna, which occurred outside the State of California. Defendant also asserts he was erroneously denied a jury determination of jurisdiction. We disagree.

It is presumed that a court has acted within its jurisdiction, and therefore it is defendant's burden to overcome such a presumption. (Evid.Code, § 666; Branson v. Martin (1997) 56 Cal.App.4th 300 306, 65 Cal.Rptr.2d 401.) The jurisdictional power of a court to act is comprised of territorial and subject matter jurisdiction. (People v. Gbadebo-Soda (1995) 38 Cal. App.4th 160, 169-170, 45 Cal.Rptr.2d 40.) Territorial jurisdiction, or venue, refers to the...