People v. Gilbert, No. H007752

• Court: California Court of Appeals
• Writing for the Court: BAMATTRE-MANOUKIAN
• Citation: 5 Cal.App.4th 1372,7 Cal.Rptr.2d 660
• Parties: The PEOPLE, Plaintiff and Respondent, v. Larry GILBERT, Defendant and Appellant.
• Docket Number: No. H007752
• Decision Date: 29 April 1992

Page 660

7 Cal.Rptr.2d 660 5 Cal.App.4th 1372 The PEOPLE, Plaintiff and Respondent,
v.
Larry GILBERT, Defendant and Appellant. No. H007752. Court of Appeal, Sixth District, California. April 29, 1992.
Review Denied Aug. 12, 1992.

Page 663

Sixth District Appellate Program in association with [5 Cal.App.4th 1378] Manual J. Baglanis, Sunnyvale, for defendant and appellant Under Appointment by the Court of Appeal.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Aileen Bunney, Supervising Deputy Atty. Gen., Joan Killeen Haller, Deputy Atty. Gen., for plaintiff and respondent.

BAMATTRE-MANOUKIAN, Associate Justice.

Larry Gilbert was convicted of committing lewd and lascivious acts upon girls named Amanda and Renee, in violation of subdivision (a) of Penal Code section 288, and of forcibly committing lewd and lascivious acts upon a girl named Donnie, in violation of subdivision (b) of the same section. He was sentenced to 10 years in prison. On appeal he contends there was insufficient evidence of "lewd touching" to support his conviction for lewd acts upon Amanda, and insufficient evidence of force to support his conviction of forcible lewd acts upon Donnie. He also argues that the trial court (1) abused its discretion by failing to hold an evidentiary hearing on the issue of juror misconduct raised by his motion for a new trial, (2) erroneously admitted overly broad expert testimony, (3) abused its discretion by refusing his request to conduct a demonstration for the jury, (4) erroneously applied Evidence Code section 1035.8 to limit his examination of a sexual assault counselor, (5) erred by instructing the jury pursuant to CALJIC No. 2.20.1, and (6) employed a procedure for jury voir dire which unconstitutionally limited his ability to exercise his peremptory challenges.

We conclude the evidence was sufficient and that there was no reversible error. Accordingly we shall affirm the judgment.

The facts underlying the counts on which Gilbert was convicted were outlined in the testimony of the three victims.

[5 Cal.App.4th 1379] The incident involving Donnie occurred in 1986, when she was 11 years old. Donnie, a friend of Gilbert's daughter, testified that she often spent the night at Gilbert's house. On one such night, Donnie woke up and found Gilbert straddling her body. He turned her onto her back and began rubbing her chest. He then placed his hand inside her pants and rubbed her vagina. Donnie pretended to be asleep because she was scared. Gilbert next pulled both his and Donnie's pants down and put his penis in Donnie's vagina. He moved up and down and up again and then pulled his penis out. He pulled Donnie's pants back up and started rubbing her chest again. Gilbert again pulled her pants down and placed his penis inside of her. Then he took his penis out and pulled her pants back up. This was painful for Donnie. Donnie tried to move but Gilbert pushed her back. Gilbert had his forearm over her mouth so that she could not cry out.

Amanda and Renee are sisters. The incidents involving them occurred in 1989, when Amanda was 11 and Renee was 8.

Amanda testified that Gilbert acted as a baby-sitter for her and her siblings while their parents were away on a trip. The night before Amanda's parents left, Gilbert

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stayed at Amanda's house, and he and Amanda got up early the next morning to see her parents off. Amanda then got some magazines from her room and sat on the living room floor to read them. Gilbert sat down next to her and began rubbing her lower back from her waist down toward her hip. This lasted for only a few seconds; Gilbert stopped when Amanda's brother came into the room.

The next day Amanda was sitting on the floor in her bedroom when Gilbert came into the room. Gilbert lay down on the floor near Amanda and rubbed her stomach and her right hip down to her groin area. This rubbing lasted for a little while and then Gilbert stopped. On another occasion, Gilbert sat beside Amanda on the couch and rubbed her bare thigh.

Renee testified that Gilbert was at her home baby-sitting her. Renee was sitting on the couch wearing shorts with a blanket over the lower half of her body because she was cold. Gilbert was sitting beside her on the couch. Gilbert placed his hand underneath the blanket and touched Renee in the area of her vagina. He rubbed this area until Renee moved.

Testifying in his own behalf, Gilbert denied any lewd or lascivious behavior.

Sufficiency of the Evidence

"When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the [5 Cal.App.4th 1380] judgment to determine whether it contains substantial evidence--i.e., evidence that is credible and of solid value--from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Green (1980) 27 Cal.3d 1, 55, 164 Cal.Rptr. 1, 609 P.2d 468.)

(1) Amanda

Gilbert contends that Amanda's testimony that he had rubbed her stomach, back and thigh was insufficient to support the "lewd and lascivious act" requirement of subdivision (a) of section 288. We disagree. The "lewd and lascivious" act need not be inherently sexual in nature nor need it be shown that the offender touched the child's private parts. (People v. Dontanville (1970) 10 Cal.App.3d 783, 795-796, 89 Cal.Rptr. 172.) The crime is committed by any touching of a child with the requisite intent. " '[T]he purpose of the perpetrator in touching the child is the controlling factor and each case is to be examined in the light of the intent with which the act was done.' " (People v. Nothnagel (1960) 187 Cal.App.2d 219, 225, 9 Cal.Rptr. 519, quoting from People v. Hobbs (1952) 109 Cal.App.2d 189, 192, 240 P.2d 411.)

Criminal intent will rarely be shown by direct evidence and must frequently be inferred from a defendant's conduct. "The criminal intent required to prove a violation of section 288 is 'the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires' of perpetrator or victim. The intent with which the act is done is manifested by the circumstances under which the act is committed. [Citation.] Each case involving a lewd act must be decided on its own facts." (In re Paul C. (1990) 221 Cal.App.3d 43, 54, 270 Cal.Rptr. 369, fn. omitted; cf. People v. McCurdy (1923) 60 Cal.App. 499, 502, 213 P. 59.) Intent may properly be inferred from evidence of other specific acts of a similar nature. (Evid.Code, § 1101, subd. (b).)

In this case, the People submitted evidence of Gilbert's pattern of conduct with Amanda as well as with other young girls. Upon consideration of the whole record we conclude the jury reasonably could have found, beyond a reasonable doubt, that Gilbert committed the acts with the intent required by the statute. People v. Mansell (1964) 227 Cal.App.2d 842, 39 Cal.Rptr. 187, on which Gilbert relies, was an affirmance of a superior court order setting aside an information under Penal Code section 288. The case is factually distinguishable from this one: In that case the defendant's acts were susceptible of innocuous explanation and occurred in a place open to the public and within view of third persons, and there was no course-of-conduct [5 Cal.App.4th 1381] evidence. In any event the determination

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whether particular evidence meets the requisite standard of substantiality cannot be governed by what other courts, in other procedural contexts, thought of other facts: "Each case ... must be decided on its own facts." (In re Paul C., supra, 221 Cal.App.3d 43, 54, 270 Cal.Rptr. 369.) In this case the evidence was sufficient.

(2) Donnie

Gilbert next asserts there was insufficient evidence that he used force to commit the described acts upon Donnie. He asks us either to reverse his conviction for violation of subdivision (b) of section 288, or to modify the judgment to reflect no more than a violation of subdivision (a), and in either event to resentence him inasmuch as the trial court's conclusion it could not admit him to probation was influenced by the conviction under subdivision (b). This contention is similarly without merit.

A conviction for violating subdivision (b) of section 288 requires the prosecution "to prove that the defendant used physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself." (People v. Cicero (1984) 157 Cal.App.3d 465, 474, 204 Cal.Rptr. 582.) Because subdivision (b) subjects the offender to greater penal consequences than subdivision (a) of section 288, the required force must be greater than that necessary to commit the act proscribed in subdivision (a). (Id. at pp. 472-474, 204 Cal.Rptr. 582.)

Donnie testified that Gilbert's forearm was over her mouth rendering her unable to cry out during the assault described in her testimony, and that in response to Donnie's attempt to move, Gilbert pushed her back. It was not necessary to accomplishment of the described sexual acts that Donnie be prevented from moving or from crying out. Gilbert's described acts therefore exceeded any force necessary to the acts.

The jury was correctly instructed. We conclude the evidence was sufficient to support a finding, implicit in the jury's verdict, that Gilbert used force within the meaning of subdivision (b).

Refusal to Hold an Evidentiary Hearing on Juror Misconduct

Gilbert contends the trial court abused its discretion by refusing to hold an evidentiary hearing to determine the truth of his allegation of jury misconduct made in support of his motion for a new trial.

During voir dire by the trial judge, prospective juror Jones disclosed that he had met both trial counsel, that Jones's wife was an attorney who taught [5 Cal.App.4th 1382] at local colleges and who "used to be a prosecutor with the County," that both trial counsel had been...