People v. Dilbert, A111802 (Cal. App. 4/14/2008), A111802

CourtCalifornia Court of Appeals
Writing for the CourtSepulveda
Decision Date14 April 2008
PartiesTHE PEOPLE, Plaintiff and Respondent, v. CLIFFORD ALAN DILBERT, Defendant and Appellant.
Docket NumberA111802

Page 1

THE PEOPLE, Plaintiff and Respondent,
CLIFFORD ALAN DILBERT, Defendant and Appellant.
Court of Appeals of California, First Appellate District, Division Four
April 14, 2008

Appeal from the Napa County, Super. Ct. No. CR 118418.


A jury found defendant Clifford Dilbert guilty of committing four counts of lewd acts upon children under the age of 14 in violation of Penal Code section 288, subdivision (a).1 At the time of the offenses, defendant was 53 years old. The jury also found true allegations that three of the four counts involved more than one victim. (§ 1203.066, subd. (a)(7).) With respect to count one, the jury found true the allegations that defendant befriended the child victim for purposes of committing the offense (§ 1203.066, subd. (a)(3)) and that defendant engaged in substantial sexual conduct with the victim (§ 1203.066, subd. (a)(8)). The trial court sentenced defendant to prison for three concurrent terms of 15 years to life, plus a consecutive six-year determinate term. On appeal, defendant alleges a multitude of errors, including evidentiary errors, instructional error, ineffective assistance of counsel, and cumulative error. We affirm.2


By information filed on September 8, 2004, defendant was charged with four counts of violating section 288, subdivision (a), between May and June 2004. The information alleged that defendant committed the offenses against three children who were all under the age of the 14: C. Doe (count one), N. Doe (count four), and L. Doe (counts two and three). As to count one, the information alleged that defendant had befriended the child victim (C. Doe) for purposes of committing an act in violation of sections 288 and 288.5 and that defendant had engaged in substantial sexual conduct with the victim (§ 1203.066, subd. (a)(8)). As to counts one, three, and four, the information alleged that the offenses were committed against more than one victim within the meaning of section 1203.066, subdivision (a)(7). Additionally, the information alleged aggravated circumstances by reason of multiple victims (§ 667.61, subds. (a), (b) & (e)(5)).

On September 10, 2004, defendant entered pleas of not guilty and denied the special allegations.

On February 10, 2005, the jury convicted defendant of all counts and found all allegations true but for the special allegation that defendant committed count three against more than one victim.

On September 12, 2005, the trial court sentenced defendant to prison for three concurrent terms of 15 years to life on counts one, two, and four, and one six-year determinate term on count three, consecutive to the terms imposed on counts one, two, and four.

This appeal followed.


A. Prosecution Evidence

The charged offenses related to two instances of lewd conduct. The first instance (counts one, two, and four) occurred in defendant's bedroom and involved C. Doe (count one), L. Doe (count two), and N. Doe (count four). The second incident occurred in defendant's living room (count three), and involved L. Doe.

In addition to the charged offenses, the prosecution presented evidence that defendant provided or offered to provide the victims, as well as other boys, with cigarettes, alcohol, and marijuana, and showed them or offered to show them pornographic movies. Evidence was also introduced that defendant asked and/or offered to engage in sexual activities with boys on various occasions.

1. The Incident in Defendant's Bedroom

a. Testimony of C. Doe

C. Doe, who was 13 years old, met defendant in May 2004. C. Doe was introduced to defendant by C. Doe's friend, J.T., who was 17 years old. C. Doe regularly began to spend time at defendant's house, where he "hung out" with J.T., L. Doe, age 12, and N. Doe, C. Doe's brother, age 12. On one occasion, defendant gave C. Doe $5 for no apparent reason.

C. Doe testified that defendant touched him in late May or early June 2004, just before his fourteenth birthday. Just prior to the incident, C. Doe had been downstairs with L. Doe, N. Doe, and defendant, watching a pornographic movie. C. Doe explained that L. Doe asked if he could use defendant's lubrication and that L. Doe asked defendant if he could show them how to masturbate. C. Doe thought it was a little bit unusual for L. Doe to say something like that. C. Doe testified that defendant responded to the request by saying, "Uh, sure. Let's go upstairs and I'll show you." C. Doe, L. Doe, and N. Doe went upstairs with defendant. C. Doe could not remember why he went upstairs, but he remembered being a "little" scared and unsure of what was going to happen. He thought he might be using the lubricant on himself, but he did not think that anyone else was going to touch him.

C. Doe testified that when he, L. Doe, and N. Doe got to the bedroom, defendant "told us to take our pants off or better yet, just to take all [our] clothes off." Initially, C. Doe took off only his shoes because he was uncomfortable taking off all of his clothes. C. Doe explained that he felt uncomfortable because he barely knew defendant, who was older than the boys. N. Doe and L. Doe also took off their shoes. Defendant took off everything but his underwear. Defendant told the boys to sit on the bed and get comfortable. C. Doe, who was still fully clothed, sat on the bed as directed. C. Doe testified that defendant "told us just take our pants off" and that defendant said it was all right because "we were all guys." C. Doe took down his pants and underwear to his knees. C. Doe said that defendant helped him take down his pants by "kinda pull[ing] them down a little." C. Doe saw N. Doe take down his own pants without help from defendant. Defendant helped L. Doe pull down his pants.

C. Doe explained that after his pants and underwear were lowered to his knees, he was lying on the bed. Defendant was on C. Doe's right, L. Doe was diagonal to C. Doe, and N. Doe was "right in front." Defendant put the lubricant on C. Doe's penis. Defendant then started rubbing C. Doe's penis, which made C. Doe feel uncomfortable. C. Doe explained that he felt uncomfortable because he did not expect defendant to do this and because "he was older . . . ."

Defendant rubbed C. Doe's penis for approximately ten minutes. At some point, the other boys left the room. C. Doe said that he felt even more uncomfortable after the other boys left the room. N. Doe and L. Doe returned five to seven minutes later; J.T. was with them. Defendant asked J.T. if he wanted to join them; J.T. declined the offer.

When defendant finally stopped rubbing C. Doe's penis, C. Doe put his clothes on and went downstairs. The other boys went with him. All the boys then left defendant's house. C. Doe said that he and his brother N. Doe briefly talked about the incident. Once home, C. Doe did not tell an adult about what had occurred because he was nervous and embarrassed and did not want anyone to know about it.

After the incident in the bedroom, defendant never touched C. Doe's private parts again. However, defendant offered to touch C. Doe "about every other time that [C. Doe] came over." On more than one occasion, defendant asked C. Doe, "Do you want to go back upstairs?" C. Doe was never alone with defendant after the incident. C. Doe did not think about calling the police because he was uncomfortable and did not want to tell anyone about the incident.

b. Testimony of N. Doe

N. Doe testified that something strange happened with C. Doe and defendant in defendant's bedroom. N. Doe explained that he, L. Doe, C. Doe, and defendant had been in the living room watching television, when L. Doe asked "how to use lube." N. Doe was "not really sure" what "lube" was. N. Doe thought that defendant would show L. Doe how to use the "lube."

N. Doe said that he went upstairs because he was following C. Doe and L. Doe. N. Doe felt "nervous" about going upstairs with defendant because he did not know what was going to happen. Once they were in the bedroom, defendant told the three boys, "you can pull down your pants." N. Doe said that he pulled down his pants and underwear because defendant "kind of persuaded" him to do so. N. Doe could not remember what defendant said or if defendant touched his (N. Doe's) pants. N. Doe saw defendant help C. Doe and L. Doe pull down their pants. N. Doe explained that defendant "kinda tugged on them" with "his two fingers and sort of pulled them down further."

N. Doe saw defendant take down his shorts to his ankles. He could not remember if defendant removed his underwear. When defendant said to get on the bed, N. Doe did so. C. Doe, L. Doe, and defendant also got on the bed. Once the four of them were on the bed, defendant showed C. Doe, instead of L. Doe, "how to use lube and touched his private parts using the lube."

It made N. Doe "really uncomfortable" to see defendant touching and rubbing his brother's penis. N. Doe did not want "that" to happen to C. Doe, and N. Doe was scared. N. Doe watched defendant rub C. Doe's penis for about five to seven minutes.

When N. Doe heard a knock at the front door, he left the room with L. Doe. N. Doe went downstairs to see who was at the door. As N. Doe was leaving the bedroom, defendant said to him, "don't leave, you're next."

N. Doe greeted J.T. at the front door, and he brought him upstairs to make sure that defendant would stop touching his brother. N. Doe was worried about his brother. When N. Doe and J.T. went upstairs, C. Doe was already pulling up his pants. After C. Doe and defendant got dressed, everyone went downstairs. The boys left a few minutes later. When he got home, N. Doe did not tell anyone about the incident. N. Doe said that he was embarrassed about what had happened.

c. Testimony of L. Doe

L. Doe remembered the incident when defendant touched C. Doe. The incident occurred in defendant's bedroom around 5:00 or 6:00 p.m. L. Doe explained that...

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