People v. Carson

• Decision Date: 22 December 1994
• Docket Number: No. D019199,D021379,D019199
• Citation: 36 Cal.Rptr.2d 790,30 Cal.App.4th 1810
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 30 Cal.App.4th 1810, 35 Cal.App.4th 432, 39 Cal.App.4th 1713 30 Cal.App.4th 1810, 35 Cal.App.4th 432, 39 Cal.App.4th 1713 The PEOPLE, Plaintiff and Respondent, v. Patrick CARSON, Defendant and Appellant. Patrick CARSON, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; The PEOPLE, Real Party in Interest.

Page 790

36 Cal.Rptr.2d 790

Previously published at 30 Cal.App.4th 1810, 35 Cal.App.4th 432, 39 Cal.App.4th 1713

30 Cal.App.4th 1810, 35 Cal.App.4th 432, 39 Cal.App.4th 1713

The PEOPLE, Plaintiff and Respondent, v. Patrick CARSON, Defendant and Appellant.

Patrick CARSON, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent;

The PEOPLE, Real Party in Interest.

No. D019199, D021379.

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

Dec. 22, 1994.

Review Granted March 16, 1995.

Review Dismissed and Cause Remanded to the Court of Appeal Jan. 18, 1996.

[39 Cal.App.4th 1716] Elizabeth A. Missakian, under appointment by the Court of Appeal, San Diego, for defendant and appellant and for petitioner.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Asst. Atty. Gen., Janelle B. Davis and Maxine P. Cutler, Deputy Attys. Gen., for plaintiff and respondent and for Real Party in Interest.

KREMER, Presiding Justice.

In this case we consider together an appeal and a petition for a writ of mandate. Patrick Carson was convicted by a jury of one count of lewd and lascivious conduct on the body of Stephanie H., a child 14 or 15 years of age (PEN.CODE , § 288¹, subd. (c)), and entered a guilty plea to one count of forcible lewd and lascivious conduct on the body of Serina T., a child under the age of 14 (§ 288, subd. (b)). Carson was sentenced to a principal upper term of three years for the offense involving Stephanie and a concurrent lower term of three years for the offense involving Serina.

Carson contends the trial court erred in instructing the jury by defining lewd and lascivious act as "any touching" with the required intent, and by defining reasonable doubt pursuant to CALJIC No. 2.90. Carson also contends the trial court erred in denying his motion to dismiss based on pre-information delay. He has also filed a petition for writ of mandate asserting the trial court abused its discretion by denying his application for certificate of probable cause pursuant to section 1237.5. We affirm the judgment and deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Count 1: Forcible Lewd and Lascivious Act, Serina T.

Serina lived with her father, but visited her mother every other weekend when she was between 9 and 11 years old. Carson lived with Serina's mother. Between April and November of 1989, while Serina was visiting her mother, Carson entered Serina's bedroom and rubbed Serina's back while she lay in bed. Carson removed his and Serina's clothes then got into bed with her. Carson proceeded to have sexual intercourse with Serina. Carson told Serina not to tell anybody, warning her he could kill her mother and father.

Count 10: Lewd and Lascivious Act, Stephanie H.

In May 1991, 13-year-old Stephanie spent the night with Serina at Serina's mother's apartment. Stephanie and Serina were sleeping on a futon in the living room when Stephanie was awakened by someone rubbing her back. Stephanie turned her head, and Carson, who was lying on the floor next to the futon, quickly jerked his hand away. Stephanie laid her head back down, and Carson touched her arm. She moved her arm away, but Carson touched her again. Stephanie then lifted her head and remained awake to watch a movie on television. When the movie ended, Carson got up from the floor, changed the television channel, and lay down in front of Stephanie. Carson proceeded to turn his body toward Stephanie, pull down his pants, and expose himself to her.

The information charged Carson with nine counts of forcible lewd acts upon Serina, a child under the age of 14; and one count of a lewd act upon Stephanie, a child 14 or 15 years of age. ²

Carson moved to dismiss under section 1385 on the ground he was denied a speedy trial, but on April 14, 1993 the superior court denied his motion. On April 29, 1993 Carson's jury trial commenced.

On May 14, 1993 Carson was found guilty of committing a lewd act on Stephanie (count 10) and not guilty of two counts of forcible lewd acts upon Serina. The court declared a mistrial on the remaining six counts of forcible lewd acts upon Serina.

Carson entered a plea of guilty to committing a forcible lewd and lascivious act upon Serina (count 1) on June 15, 1993.

DISCUSSION

I CALJIC No. 10.42.5, Definition of Lewd and Lascivious Act

Carson asks this court to reverse his conviction under section 288, subdivision (c) (count 10), because the trial court removed an essential element of the crime from the jury's consideration by defining a lewd or lascivious act according to the language of CALJIC No. 10.42.5 ³ as "any touching" with the required intent. He argues the jury should have been instructed according to the court's holding in People v. Wallace (1992) 11 Cal.App.4th 568, 14 Cal.Rptr.2d 67, which defined a lewd and lascivious act as "any touching of the body of a child which to an objectively reasonable person is sexually indecent or tends to arouse sexual desire. [Citation.]" ⁴ (Id. at p. 579, 14 Cal.Rptr.2d 67.)

In People v. Wallace, a jury found the defendant's attempt to persuade two 15-year-old girls to do a striptease while he videotaped them, a violation of section 288, subdivision (c). The videotape showed innumerable touchings of the girls' bodies by the girls and their boyfriends. The Court of Appeal for the Fifth District noted there was sufficient evidence to support a rational inference the defendant touched the girls in a lewd and sexual manner, because a touching for purposes of section 288 may be done by the child victim or by a third party on the child's own person at the instigation of the defendant. ⁵ (People v. Wallace, supra, 11 Cal.App.4th at p. 574, 14 Cal.Rptr.2d 67; see People v. Austin (1980) 111 Cal.App.3d 110, 113, 168 Cal.Rptr. 401.) However, the court held the jury instructions on an essential element of the crime were erroneous in that they defined the crime as "any touching" of the body of the child with the required specific intent. ⁶ (People v. Wallace, supra, 11 Cal.App.4th at p. 571, 14 Cal.Rptr.2d 67.)

The court first observed "[a] lewd act for purposes of section 288 requires a touching." (People v. Wallace, supra, 11 Cal.App.4th 568, 574, 14 Cal.Rptr.2d 67.) The court, relying on previous cases, explained "a lewd or lascivious act is one which is sexually unchaste or licentious, suggestive of or tending to moral looseness, inciting to sensual desire or imagination, inclined to lechery, or tending to arouse sexual desire." (Id. at p. 574, 14 Cal.Rptr.2d 67, citing People v. Pitts (1990) 223 Cal.App.3d 606, 887, 273 Cal.Rptr. 757.) The court then turned to the words of section 288 which, in relevant part, state:

"(a) Any person who shall willfully and lewdly commit any lewd or lascivious act including any of the acts constituting other crimes provided for in Part 1 of this code upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions of sexual desires of that person or of the child, shall be guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or eight years.

"...

"(c) Any person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and the defendant is at least 10 years older than the child, shall be guilty of a public offense and shall be imprisoned in the state prison for one, two, or three years, or by imprisonment in the county jail for not more than one year." (Emphasis added.)

The Wallace court concluded the language of section 288 required the commission of a "lewd or lascivious act" separate and apart from the intent of the perpetrator and that the touching itself must be lewd or lascivious. (People v. Wallace, supra, 11 Cal.App.4th 568, 578, 14 Cal.Rptr.2d 67.) The court stated, "If this were not the law a defendant could be convicted for his or her thoughts, regardless of his or her deeds." (Id. at pp. 578-579, 14 Cal.Rptr.2d 67.) Attempting to clarify the actus reus necessary for a violation of section 288, the court then offered its own definition of a lewd and lascivious act "as any touching of the body of a child which to an objectively reasonable person is sexually indecent or tends to arouse sexual desire. [Citation.] In sum, it is a sexual act." (Id. at p. 579, 14 Cal.Rptr.2d 67.) The court went on to explain:

"The application of an objective standard to determine the commission of a lewd or lascivious sexual act is consistent with the requirement that in every crime there must exist a union or joint operation of act (the actus reus) and criminal intent or negligence (the mens rea). [Citation.] This reflects the general principle that a mere intention of the accused to commit a crime or his belief that he is committing a crime, does not give rise to criminal liability. Apart from the mens rea, there must be some act or conduct in violation of law which itself is socially harmful. [Citations.]" (People v. Wallace, supra, 11 Cal.App.4th 568, 579-580, 14 Cal.Rptr.2d 67.)

The Wallace court concluded the "any touching" instruction which had been given removed "an essential element of the crime charged from the jury's consideration" resulting in "a denial of federal due process principles which require the prosecution to prove beyond a reasonable doubt every fact necessary to convict under the statute. [Citation.]" (People v. Wallace, supra, 11 Cal.App.4th 568, 580, 14 Cal.Rptr.2d 67.) The court reviewed the error under the Chapman test. In concluding the error was not harmless beyond a reasonable doubt, the court stated:

"Here, the trial court failed to instruct the jury that an essential element of the crime charged was that the defendant's touching of the victims had to be lewd and lascivious, regardless of his specific intent. Further, the prosecutor misled the jury by arguing...