People v. O'Connor
Decision Date | 07 August 1992 |
Citation | 8 Cal.App.4th 941,10 Cal.Rptr.2d 530 |
Court | California Court of Appeals |
Parties | The PEOPLE, Plaintiff and Respondent, v. Michael O'CONNOR, Defendant and Appellant. B052152. |
Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting Sr. Asst. Atty. Gen., Robert Katz, Supervising Deputy Atty. Gen. and Kristofer Jorstad, Deputy Atty. Gen., for plaintiff and respondent.
Appellant was charged with 20 counts of child molestation (PEN.CODE, § 2881, subd. (a)) involving 5 boys. Various no probation provisions were alleged. (§§ 1203.066, subd. (a)(3), 1203.066, subd. (a)(7), 1203.066, subd. (a)(8)). Trial was by the court. A judgment of acquittal (§ 1118) was entered as to all six counts involving three of the boys (Victor, Francisco, and Steven). The trial court convicted appellant of all 14 counts involving the other two boys (Israel and Pedro). The court sentenced appellant to a 34-year state prison term, 8 years (the upper term) on one count and one-third of the middle term (6 years), i.e., 2 years, on each of the other 13 counts.
Appellant contends: (1) a special statute (§ 311.4, subd. (c)) precludes conviction under the general statute (§ 288, subd. (a)), (2) insufficient evidence supports some or all of the 14 counts, (3) the court erred in admitting appellant's sexually explicit sketches, (4) the court erred in failing to entertain an in-trial suppression motion, and (5) the court committed sentencing error.
We find the contentions lack merit and affirm the judgment.
Although appellant makes an insufficiency of evidence claim, his arguments are essentially legal not factual. Accordingly, we summarize the evidence, with a perspective favoring the judgment (People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal.Rptr. 228, 721 P.2d 110), and later consider each of those arguments.
Appellant was a postal employee and worked the 3 a.m. to 11:30 a.m. shift. After work he would return to his bungalow on Idell Street near 26th Avenue in Los Angeles. His mother lived in an adjacent bungalow. Nearby, approximately 100 feet away, there were apartment houses in which the five boys, the alleged victims, lived.
In 1987, when the offenses occurred, Israel and Pedro were 11 years old, Steven and Francisco were 10 years old, and Victor was 7 years old. 2 The boys would come home from school about 2:30 p.m. and often see appellant.
The events began by appellant telling Israel to come to his house and clean his yard. Israel went there with Steven. Instead of yard cleaning, the boys went inside and appellant told them to take their clothes off. Once undressed, he then had them wrestle while he videotaped them. He gave each boy $20.
When Israel and Steven went to appellant's house the second time, appellant had the boys undress, then, later, touch each other's penis. Appellant also put his mouth on each boy's penis. He gave them $20 each.
Israel described three other visits to appellant's house, accompanied each time by a different friend: Francisco, Victor, or Pedro. The events were similar: 3 appellant told them to undress, he gave them props, including a plastic knife, and had them "play Indians," had the boys touch each other's penis, he orally copulated each boy, he videotaped the events, and he gave each boy money.
Pedro described two similar visits to appellant's house, one with Israel, one with Victor. Steven testified to being inside appellant's house with Israel and described the undressing, wrestling, videotaping, and oral copulation by appellant, followed by appellant giving them each $40. Another time he went to appellant's house with Francisco, did not go inside, and appellant gave them $5 each. Francisco and Victor also testified to similar visits in appellant's house where there was undressing, wrestling, "playing Indian," oral copulation by appellant, videotaping, and payments of $20 (Victor) or $40 (Francisco).
None of the boys made a complaint. The police were contacted a year and a half later, in May 1989, only because of a comment by another boy, Edwardo. When Edwardo was told he could not steal automobile hood ornaments to obtain money, he said he'd "go with Michael [appellant]." His explanation precipitated an investigation by Detective Hales who interviewed Victor and then obtained a search warrant for appellant's house.
Detective Hales searched appellant's house on May 23, 1989. He found many video cameras, videotape machines, hundreds of videotapes, and 17 sketch notebooks. The notebooks contained drawings of naked boys engaged in sexual acts. Detective Hales selectively viewed the videotapes but found none of any of the five boys and none depicting child sex.
Detective Hales interviewed each of the five boys and in July 1989 arrested appellant. The trial began in April 1990. Appellant testified, denying that any of the five boys had ever been inside his house or that any of the described events had occurred.
Prosecution under a general statute is precluded by a special statute when the general statute covers the same matter as, and thus conflicts with, the special statute. (People v. Gilbert (1969) 1 Cal.3d 475, 479, 82 Cal.Rptr. 724, 462 P.2d 580; In re Williamson (1954) 43 Cal.2d 651, 654, 276 P.2d 593.) In determining whether the two statutes conflict
Appellant contends that section 288, subdivision (a) 4 is a general statute precluded by section 311.4, subdivision (c), 5 a special statute. He is mistaken.
The elements of section 288, subdivision (a) are: (1) a lewd touching (2) of a child under 14 years of age (3) with the intent of sexual arousal. None of these elements is present in the latter statute. Its elements are: (1) using a person as a model (2) with knowledge the person is under 17 years old (3) in a film involving sexual conduct. None of these elements is present in section 288, subdivision (a). Nor is there anything about the statutory "context" that suggests a violation of section 311.4, subdivision (c) "will necessarily or commonly result in a violation" of section 288, subdivision (a). (See generally People v. Robertson (1990) 223 Cal.App.3d 1277, 273 Cal.Rptr. 209.) One can readily use a 16 year old model in a sexual conduct film without lewdly touching a child, 13 years old or younger, for the purpose of sexual arousal.
The contention is without merit.
Appellant argues that because the evidence shows only eight, not fourteen, separate incidents of penis touching, only eight counts can be sustained. Appellant is mistaken.
The prohibition of section 288 is not limited to genital touchings. Made criminal is a lewd touching of "the body, or any part or member thereof ..." when the intent is sexual arousal. The section may be violated by rubbing the stomach of a seven year old (People v. Dontanville (1970) 10 Cal.App.3d 783, 796, 89 Cal.Rptr. 172), requiring a child to drink urine (People v. Pitts (1990) 223 Cal.App.3d 606, 887, 273 Cal.Rptr 757), or requiring a child to undress (People v. Austin (1980) 111 Cal.App.3d 110, 114-115, 168 Cal.Rptr. 401; People v. Mickle (1991) 54 Cal.3d 140, 175-176, 284 Cal.Rptr. 511, 814 P.2d 290).
Appellant would distinguish Austin on the ground that in the instant case The distinction fails for two reasons. First, as an appellate court we must draw inferences "in support of the judgment." (People v. Barnes, supra, 42 Cal.3d 284, 303, 228 Cal.Rptr. 228, 721 P.2d 110.) Underwear, like pants and shirts, are "clothes." Second, the statute is violated even if, initially, the children did not remove their underwear.
Appellant's second insufficiency of evidence argument is based upon his acquittal of the six counts involving Victor, Francisco, and Steven. He argues that the conduct underlying these acquittal counts is identical to the conduct underlying some of the conviction counts, rendering the latter impermissibly inconsistent.
Prior to 1927 there might have been merit to appellant's argument. But " 'to avoid the result of those cases which interpret inconsistent verdicts as acts of stupidity rather than acts of leniency, section 954 of the Penal Code was amended in 1927.' " (6 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) § 3045, p. 3766.) The amendment added this sentence: "An acquittal of one or more counts shall not be deemed an acquittal of any other count." (§ 954.)
The "limited judicial exception to this rule which is applicable in conspiracy cases" (People v. Pahl (1991) 226 Cal.App.3d 1651, 1657, 277 Cal.Rptr. 656), does not here apply.
Appellant's final argument is a reweighing of the evidence: he finds reasonable doubt. As an appellate court we may not reweigh the evidence. If "on the entire record, a rational trier of fact could find appellant guilty beyond a reasonable doubt" (People v. Barnes, supra, 42 Cal.3d 284, 303, 228 Cal.Rptr. 228, 721 P.2d 110) we must affirm that finding. We have carefully read the entire record,...
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