People v. Harless

• Citation: 125 Cal.App.4th 70,22 Cal.Rptr.3d 625
• Decision Date: 20 December 2004
• Docket Number: No. H026885.,H026885.
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Ray HARLESS, Defendant and Appellant.

22 Cal.Rptr.3d 625

125 Cal.App.4th 70

The PEOPLE, Plaintiff and Respondent, v. Robert Ray HARLESS, Defendant and Appellant.

No. H026885.

Court of Appeal, Sixth District.

December 20, 2004.

Review Granted March 23, 2005.

Review Dismissed September 7, 2005.

Marylou Hillberg under appointment by the Court of Appeal, Sebastopol, for Defendant and Appellant Robert Ray Harless.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Michele J. Swanson, Deputy Attorney General, Joan Killeen, Deputy Attorney General, for Respondent The People.

BAMATTRE-MANOUKIAN, Acting P.J.

I. INTRODUCTION

Defendant Robert Ray Harless appeals after conviction by jury trial of one count of lewd and lascivious acts on a child under the age of 14 (Pen.Code, § 288, subd. (a)),¹ 11 counts of forcible lewd acts on a child under the age of 14 (§ 288, subd. (b)(1)); and four counts of aggravated sexual assault (forcible rape, § 261, subd.(a)(2)) of a child under the age of 14 when defendant was more than 10 years older than the victim (§ 269, subd. (a)(1).). As to each of the section 288 counts, the jury found true the allegation that defendant had committed the offense on more than one victim. (§ 667.61, subd. (e)(5).)

Defendant also was convicted of two counts of inducing a minor to use or sell marijuana (Health & Saf.Code, § 11361, subd. (a)); two counts of furnishing cocaine to a minor at least four years younger than defendant (Health & Saf.Code, § 11353.1, subd. (a)(3)), and two counts of furnishing Valium to a minor. (Health & Saf.Code, § 11380.) Prior to trial, defendant pleaded guilty to two counts of child endangerment. (§ 273, subd. (a).)

Defendant was sentenced to a total term of 152 years to life. The trial court also imposed a $10,000 restitution fine (§ 1202.4) and a $10,000 suspended parole revocation fine (§ 1202.45).

On appeal, defendant contends: (1) the admission of the prior statements of victim B. violated his Sixth Amendment right to confrontation under Crawford v. Washington (2004) 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177; (2) CALJIC 10.42, the jury instruction given on the element of duress on the charges of forcible lewd acts on a child under the age of 14 (§ 288, subd. (b)(1)), erroneously includes "hardship" in the definition of "duress"; (3) there was insufficient evidence of duress to prove the charges of forcible lewd acts on a child under the age of 14 (§ 288, subd. (b)(1); (4) there was insufficient evidence of duress to prove the charges of aggravated sexual assault of a child under the age of 14 (§ 269, subd. (a)(1)); (5) the consecutive sentences on all four convictions of aggravated sexual assault of a child under the age of 14 (§ 269, subd. (a)(1)) violate the prohibition against multiple punishments (§ 654); and (6) the imposition of the upper term on count 37 (furnishing cocaine to a minor in violation of Health & Saf.Code, § 11353.1, subd. (a)(3)), based on aggravating factors not found by the jury, violate the right to jury trial under Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403.

We will affirm the judgment.

II. BACKGROUND

The facts underlying defendant's offenses are set forth in the light most favorable to the judgment. (See People v. Valencia (2002) 28 Cal.4th 1, 4, 120 Cal. Rptr.2d 131, 46 P.3d 920.) Victims B. and M. are defendant's daughters.² B. was born in 1992. Her older sister M. was born in 1987. The charges against defendant arose from allegations that he sexually abused B. and M. and provided them with drugs at various times during September 1998 through February 6, 2001.³

Defendant's Household

After their mother, Vicki Harless, died in 1997 or 1998, defendant asked a friend, Rafaela A., and her two teenaged daughters, Maria and Cynthia, to move into defendant's home in Greenfield and help care for B. and M. Both Rafaela and her daughter Maria testified at trial regarding their observations of defendant and his daughters.

While she was living with defendant's family, Rafaela saw M. and B. use cocaine given to them by defendant. Rafaela also observed defendant give marijuana to M. and B., and smoke marijuana and take cocaine with them. M. knew how to prepare the drugs, including cutting lines of cocaine and rolling a marijuana joint. According to Rafaela, M. would wake up and seek cocaine. M. and B. also took Valium. Defendant had a prescription for Valium and would give half a pill to M.

Rafaela also noticed something unusual about the relationship between defendant and M. As she described it, whenever M. wanted something and defendant was against it, M. would say, "`Can I talk to you, Dad?,'" and they would go into defendant's bedroom. M. would then come out with whatever she wanted.

Maria A. was 13 years old when she and her mother, Rafaela, and her older sister, Cynthia, lived with defendant's family in Greenfield. Like her mother, Maria saw M. and B. use cocaine. Sometimes the drugs would be available on a table in the home, and other times M. would ask defendant for drugs. M. used cocaine almost every day. All of them, including Maria, her mother and sister, and defendant and his daughters, would use cocaine together. Maria also saw defendant give B. marijuana two or three times, and give Valium to M. When asked whether she ever saw defendant do anything strange with M., Maria replied that defendant used to shower with M.

Defendant's wife, Lona Ranell Harless (Ranell), testified that she became a member of defendant's household in 1999 and married him in 2000. B. and M. were living with defendant at that time. Ranell observed M. under the influence of Valium, crack cocaine, and marijuana. Nevertheless, Ranell asserted that she and defendant took care of his daughters' general welfare and they had plenty of food to eat.

Removal from Defendant's Care

Monterey County Child Protective Services removed M. and B. from the care and custody of defendant in February 2001 because it was determined that he could not appropriately provide for their general welfare. The two girls were then placed in foster care with Karen Craig.

Karen Craig recalled her observations of M. and B. in her trial testimony. When the girls were placed with her, they were both thin and lethargic. She took them to Dr. Barnes at Natividad Medical Center for a physical exam. B. was admitted to the hospital for several days. Several months later, Craig received a call from B.'s school about an incident involving B. that led to an investigation. B. was interviewed by a deputy sheriff and by Susan Gleason (a child abuse interview specialist) at Natividad Medical Center's Bates Clinic. B. also underwent a physical examination at the Bates Clinic in the course of the investigation, as well as an interview at the district attorney's office. Eventually, Craig asked Child Protective Services to remove B. because of B.'s conduct in her home. B. would get Craig's three-year-old daughter out of Craig's sight, then pinch her nipples.

Susan Gerard, the school principal, testified regarding the incident at B.'s school. B. told Gerard that she and another girl were engaged in sexual activity, including exposing their breasts and private parts and kissing, in the school restroom when the school custodian walked in. As a result of B.'s report, Gerard contacted the sheriff's department. At trial, the school custodian, Debra Bauer, denied that she had ever walked in on two girls having sex or doing anything unusual in the bathroom.

Medical Investigation

As part of their physical examinations at Natividad Medical Center upon entering foster care, both B. and M. underwent urinalysis, including a drug screening test. A clinical laboratory scientist, Carmen Kovacs, testified that M. tested positive for cocaine and benzodiazepine. B. tested positive for benzodiazepine only. Benzodiazepine is another name for Valium.

Valerie Barnes, M.D. is the Director of Pediatric Services at Natividad Medical Center. She is also Director of the Child Abuse Center, where children who may have been abused are interviewed and examined. Dr. Barnes testified regarding her physical examinations of the two girls. When M. was examined shortly after being placed in foster care in February 2001 at the age of 13, she was emaciated to the point of looking like an eight-year-old girl. Dr. Barnes diagnosed M. as suffering from failure to thrive and suspected that M. had symptoms of drug withdrawal. B. was also very thin and failing to thrive. Because she had bronchitis, B. was admitted to the hospital for treatment.

M. was also examined by an ear, nose and throat specialist, Albert Roller, M.D., in February 2001. Dr. Roller testified that M. had a chronic perforation of the nasal septum similar to that seen in cocaine users. However, he could not positively state that the hole in M.'s septum was caused by cocaine use.

Several months after her initial physical examination, Dr. Barnes performed a sexual abuse examination of B. Before the examination, B. was interviewed by Susan Gleason at the Bates Clinic, who obtained a general history of abuse that she passed on to Dr. Barnes. Dr. Barnes also obtained a history of abuse. B. told Dr. Barnes that her father put his penis and his finger in her vagina. He also put his penis in her anus and rubbed her there with his finger. Additionally, defendant fondled, licked, kissed and sucked B.'s breast area. On examination, B.'s genitalia were normal in appearance. Dr. Barnes noted that the majority of sexually abused children do not show any signs of injury.

However, B. had an abnormal reaction when Dr. Barnes examined her anal sphincter. Although a child's anal sphincter normally relaxes in one or two minutes upon examination, B.'s anal sphincter dilated very rapidly, in 5 to 10 seconds. Rapid dilation usually indicates that repeated penetration of the anus has occurred. Dr. Barnes...