People v. Cole, C090105

• Court: California Court of Appeals
• Writing for the Court: DUARTE, J.
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ROBERT EUGENE COLE, Defendant and Appellant.
• Docket Number: C090105
• Decision Date: 02 September 2022

THE PEOPLE, Plaintiff and Respondent,
v.
ROBERT EUGENE COLE, Defendant and Appellant.

C090105

California Court of Appeals, Third District, Placer

September 2, 2022

NOT TO BE PUBLISHED

(Super. Ct. No. 62159526)

DUARTE, J.

A jury found defendant Robert Eugene Cole guilty of committing numerous sex offenses against three male relatives, including sodomy with a child 10 years of age or younger by a person 18 years of age or older (Pen. Code, § 288.7, subd. (a)),^[1] oral copulation with a child 10 years of age or younger (§ 288.7, subd. (b)), two counts of a lewd and lascivious act upon a child under the age of 14 years (§ 288, subd. (a)), forcible

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oral copulation (former § 288a, subd. (c)(2)(A) [now § 287, subd. (c)(2)(A)]), oral copulation of an unconscious person (former § 288a, subd. (f) [now § 287, subd. (f)]), oral copulation of a person under 16 years of age by a person over 21 years of age (former § 288a, subd. (b)(2) [now § 287, subd. (b)(2)]), attempted sodomy of a person under 16 years of age by a person over 21 years of age (§§ 664, 286, subd. (b)(2)), and attempted oral copulation of a person under 16 years of age by a person over 21 years of age (§ 664; former § 288a, subd. (b)(2) [now § 287, subd. (b)(2)]).^[2] The jury also found true the multiple victim enhancement allegations under the one strike law. (§ 667.61, subds. (b), (e)(4).) The trial court sentenced defendant to an aggregate term of 93 years eight months to life in prison.

Defendant timely appealed on July 31, 2019; after multiple extensions of time for record preparation, correction, and augmentation as well as extensions for the parties' oversized briefing, the case was fully briefed on February 25, 2022, and assigned to this panel on March 30, 2022.

Defendant argues that reversal is required for many reasons, including insufficient evidence, evidentiary error, prosecutorial misconduct, instructional error, ineffective assistance of counsel, and sentencing error. We will modify the judgment to correct a minor sentencing error and affirm the judgment as modified.

BACKGROUND

We do not attempt to recite all the evidence adduced at trial. Nor do we attempt to resolve the inconsistencies and conflicts in the evidence. Instead, we summarize the relevant facts in the light most favorable to the judgment (People v. Maury (2003) 30 Cal.4th 342, 396, 403

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[it is the jury's role to resolve the inconsistencies and conflicts in the evidence]) and add facts throughout the Discussion section where necessary to resolve the issues raised on appeal. For purposes of clarity and consistency we refer, as the parties did in the trial court and in their appellate briefs, to the alleged victims in this case as John Doe 1, John Doe 2, and John Doe 3 (hereafter, JD1, JD2, and JD3, collectively John Does).

The John Does are related to defendant, who was in his late 30s and early 40s when the incidents giving rise to this case occurred. JD1 and JD2 are defendant's first cousins once removed; they are the sons of defendant's cousin.^[3] JD3 is defendant's nephew; he is the son of defendant's identical twin brother, J.C. As we describe post, the molestations in this case occurred over the course of several years when the John Does were between the ages of nine and 15. The molestations occurred at three different homes where defendant resided; the homes were located in Auburn, Grass Valley, and Lincoln.

Defendant did not testify at trial. The defense theory was that the John Does fabricated their claims of molestation. Because there was no evidence presented at trial to corroborate the alleged molestation, the outcome of this case hinged on whether the jury believed the John Does, each of whom testified at trial. Next, we briefly summarize the evidence supporting defendant's convictions.^[4]

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JD1 (Counts One, Two, and Three)

JD1 was born in May 2008. He turned 11 years old two days before he testified at trial.

Trial Testimony

In 2017, JD1 and his family celebrated Thanksgiving at defendant's home in Lincoln. At that time, JD1's relationship with defendant was "unique" and "special." Defendant referred to JD1 as his favorite, gave JD1 special attention, treated JD1 as a best friend, and made JD1 feel special and loved. JD1 was nine years old.

JD1 and JD2 stayed at defendant's house from the Wednesday night before Thanksgiving to that Sunday, November 22, 2017 to November 26, 2017. We refer to this time period as the 2017 Thanksgiving holiday. The other members of JD1 and JD2's family went home on the Friday after Thanksgiving.

Except for Saturday night, JD1 slept with defendant in his downstairs bedroom during the 2017 Thanksgiving holiday. At trial, JD1 explained that defendant touched him between his legs in the "wrong parts" (i.e., his "wiener") while they were in bed at night. JD1 noted that defendant's mouth touched his "wiener" more than once while they were in defendant's bed at night, and that it felt "[d]isturbing." When JD1 told defendant to stop, he refused, which made JD1 feel nervous. JD1 also testified that defendant sodomized him "[u]pstairs," although he did not specify whether the sodomy occurred during the 2017 Thanksgiving holiday.

On April 11, 2018, JD1 met with a Child Protective Services (CPS) social worker, Gilka Marian, who was conducting an investigation unrelated to defendant. During that interview, JD1 disclosed that defendant had orally copulated him. JD1 explained that this incident occurred at defendant's home in Lincoln over the 2017 Thanksgiving holiday. JD1 said to Marian: "You know when you suck on a sucker? [Defendant] did that to me where I go pee-pee." He explained that he did not immediately report this incident because defendant told him to keep it a secret.

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Later that same day, JD1's mother learned that defendant had done something inappropriate to JD1. JD1 explained to her that defendant told him not to tell anyone.

When JD1's mother testified, she recalled an incident that occurred around New Year's 2018 where defendant slapped JD1 in the face and spanked him with a belt. She explained that defendant believed JD1 had broken a record player and lied about doing so. JD1's mother noted that defendant's actions made JD1 upset, hurt, and confused. There was also evidence that defendant spanked JD1 with a belt on another occasion after JD1 lied about taking gum that was not his.

JD1's Forensic Interview

On April 19, 2018, JD1 participated in a forensic interview, which was recorded (video and audio) and played for the jury. JD1 was nine years old.

Over the course of the interview, JD1 described several instances of molestation that occurred at defendant's home in Lincoln during the 2017 Thanksgiving holiday. JD1 initially indicated that defendant orally copulated and sodomized him while he was in bed in defendant's downstairs bedroom. As for the oral copulation, JD1 explained that defendant rolled him over, pulled his pants down, and sucked his "pee-pee." JD1 further explained that when he tried to turn away, defendant rolled him over, and continued to suck his "pee-pee." Defendant also orally copulated him the next morning.

As for the sodomy, JD1 specifically recalled an incident that occurred in the morning during the 2017 Thanksgiving holiday. JD1 explained that he decided to sleep in an upstairs bedroom with JD2 after defendant molested him downstairs, and that defendant put his "pee-pee" in JD1's butt while JD1 was asleep the next morning. In recalling this incident, JD1 described how defendant's body was moving back and forth. He also noted that he felt "[s]haky, weird" and told defendant to stop. JD1 explained that, after he put his clothes "back up," defendant became angry and asked JD1 why JD1 would not let him "do it." Because defendant was mad, JD1 let him do "it again." JD1 explained that he complied because defendant would spank him with a belt and he did not

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want to get "beat." When asked for more details about this incident, JD1 said that he did not want to "keep on explaining the same thing," but noted that JD2 could describe the incident because he was in the bedroom when it occurred.

JD1 explained that he disclosed defendant's molestation to his mother because defendant was being rude to JD2; defendant was hitting JD2 in the face and slapping JD2's "butt" with a belt.

JD2's Testimony About JD1 and Defendant

When JD2 testified, he recalled an incident that occurred in Lincoln after Thanksgiving day. JD2 explained that he was cooking lunch when he heard JD1 call out for help, and that when he went into defendant's downstairs bedroom, he saw that defendant and JD1 were both naked, JD1 was crying, and defendant was "sucking [JD1's] dick." JD2 further explained that he left to check on the food he was cooking and when he returned defendant and JD1 were under a blanket and defendant's body was going back and forth on JD1. When JD2 moved the blanket, he saw defendant's penis in JD1's "butt." JD2 also indicated that he saw JD1 "sucking [defendant's] dick" during this incident.

JD2 took JD1 outside so he could calm down and stop crying and yelling. While they were outside, JD1 said that he was "very uncomfortable with what he did," and that he was hurting "bad" because "it went in too deep."

JD2 (Counts Four through Eight)

JD2 was born in October 2002. He was 16 years old at the time of trial.

Trial Testimony

In June 2017, approximately six months prior to the incidents of molestation involving JD1, JD2's parents sent him to live with defendant in Lincoln. At that time, JD2 was not doing well in school and there were problems at home. Although JD2 enjoyed living with defendant, he did not like that defendant yelled "a lot in [his] face"

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and spanked him with a belt. JD2 explained that he was afraid of being hit with the belt because it hurt.

At some point between Thanksgiving and...