People v. Herman

• Decision Date: 30 April 2002
• Docket Number: No. A092493.,A092493.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Daniel Lee HERMAN, Defendant and Appellant.

119 Cal.Rptr.2d 199

97 Cal.App.4th 1369

The PEOPLE, Plaintiff and Respondent, v. Daniel Lee HERMAN, Defendant and Appellant.

No. A092493.

Court of Appeal, First District, Division 4.

April 30, 2002.

Certified for Partial Publication.^*

Victoria H. Stafford, Oakland, under appointment by the Court of Appeal, for Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Gerald A. Engler, Supervising Deputy Attorney General, Joan Killeen, Deputy Attorney General, for Respondent.

SEPULVEDA, J.

Defendant Daniel Lee Herman was convicted of numerous charges of engaging and attempting to engage in lewd conduct with minors, and soliciting minors to engage in lewd conduct with him. On appeal he contends that (1) the statute governing criminal solicitation does not reach the conduct shown by the evidence; (2) the evidence was insufficient to support the convictions for attempted child molestation; (3) prosecution on certain 30-year-old charges was barred by the statute of limitations; (4) the admission of uncharged acts to support those older charges was an unconstitutional application of an ex post facto law; and (5) a pattern jury instruction concerning the relevance of uncharged acts is unconstitutional. We sustain the first contention and direct dismissal of the solicitation charges. In all other respects we affirm the judgment.

BACKGROUND

Defendant was charged by consolidated information with 24 counts involving 11 victims. The oldest charges were five counts of lewd acts from 1969 to 1972 upon Karen P., then defendant's minor stepdaughter, in violation of Penal Code section 288, subdivision (a).¹ The majority of the remaining charges involved sexual advances, importunities, propositions, or similar conduct directed towards high school children from February to May 1998. One charge concerned an instance of alleged annoying of a child in December 1999.

Karen P.

The jury found defendant guilty of three counts of lewd acts upon Karen P., then a child under 14 (§ 288, subd. (a)), between 1969 and 1972.² In support of the charges Ms. P. testified that when she was probably 10 years old, i.e., in 1969 or 1970, defendant took her into his workshop to show her how the lathe worked. He put his hand in her panties and put his finger into her vagina. This occurrence was repeated maybe three or four days later. She thought, but wasn't sure, that it occurred a third time in the workshop. On another occasion defendant inserted his finger in her vagina in her bedroom.

Kathy H.

Karen P.'s sister, Kathy H., testified that defendant rubbed her pubic region on one occasion and felt her breast on another. These acts were not charged, perhaps for reasons of limitations. Karen and Kathy, along with their mother, also testified that defendant masturbated in their presence on a daily basis, spied on them while they bathed, and kept books with pedophilic themes.

The jury heard evidence of other uncharged acts from this era, including that defendant twice exposed himself to some girls riding horses near his house.

Michelle and Brandi

The jury convicted defendant of two counts of solicitation to join in the commission of lewd acts upon a child (§ 653f, subd. (c)) and two counts of attempted lewd acts upon a child (§§ 664, 288, subd. (c)(1)) based upon conduct directed toward Michelle and Brandi on February 24, 1998. Brandi did not testify, so these convictions rested largely on the testimony of Michelle.

Michelle testified that many children of junior high or high school age "hung out" at Anthony's Liquors in Sebastopol because its pay phone "was the only phone in town that you could get calls back from, so people would go there after school to page people or get ahold of people." On February 24, 1998, she and Brandi were there when the pay phone rang. Michelle answered.³ The caller, who identified himself as "Shawn," asked if "Sarah" was there. Michelle said nobody by that name was present. The caller asked Michelle "what [she] would do for money, sexually," and "What would you do for $200?" She replied, "I'm not interested." He said, "Do you suck dick?" and "[t]hat kind of stuff." She couldn't remember other exact words, but was "sure" the caller used other graphic or lewd words, including "really disgusting things." She said, "We're not interested."

Not long after the phone call defendant appeared at Anthony's in a car. After going into the store he "came up to" Michelle and Brandi, and asked, "Are you the two girls I talked to on the phone?" They asked who he was, and he said, "Shawn." They said, "Ewh, we're not interested." Defendant pulled out money and held it in front of them, showing it to them. He invited them into his car and "wanted [them] to go with him around the corner to the park."⁴ They said, "We're not interested, and then we're like, We're going to call the cops, or something like that.... [¶] And he said, Well, just get out of here, then." So they went to a Safeway store where Brandi "called the cops."

Megan and Deanna

The jury found defendant guilty of two counts of solicitation to join in the commission of lewd acts upon a child (§ 653f, subd. (c)) and two counts of attempted lewd acts upon a child (§§ 664, 288, subd. (c)(1)) based upon conduct directed toward Megan and Deanna on March 17, 1998. The jury acquitted defendant of a charge of violation of personal liberty by violence, menace, fraud, and deceit (§ 236) directed toward Megan. The court dismissed a count for misdemeanor annoying of a child (§ 647.6, subd. (a)), directed toward Megan.

The testimony of Megan and Deanna established that a few days before March 17, Megan received a "[v]ery vulgar" call on the pay phone at Anthony's. The caller "ask[ed] if there was anybody that ... would want to do, any sex acts for money. Saying that he could make a young girl a millionaire ... [¶] ... [¶] [i]f there was any interest." He "[p]retty much ... said he was looking for young girls to ... perform acts on him for money." The conversation probably ended with her saying something like, "You're disgusting, you're a sicko," and hanging up.

On the morning of March 17, before school, Megan again answered the pay phone at Anthony's. The caller said "this is Shawn" and asked her what she looked like. She hung up. The phone rang again. She didn't answer, but a boy named Blake did. She heard Blake describe her to the caller.

Early that afternoon, a group of children including Megan, Deanna, and Blake, were hanging around Anthony's when the pay phone rang. Megan, who was expecting a call, answered. She recognized the voice as the same one she had heard that morning. The caller again identified himself as "Shawn," said he was waiting at Ives Park, and that he "thought [she was] supposed to meet" him there. She hung up and reported the exchange to her friends. Blake then said that when he had spoken to the caller that morning, the caller had said that he wanted the girl to whom he had spoken to meet him at the park at 1:00 p.m. Blake might have told the caller "that we would be meeting him down there."

Some of the youths, including Megan and Deanna and at least two male friends, decided to walk to the park to see the caller. When they got there, Megan and Deanna separated from their companions and went to the ladies' bathroom. When they emerged, defendant approached them and said, "[M]y name is Shawn." He told them to follow him to his car, about 150 feet away in a parking lot, so he could get a cigarette. The girls complied. Their friends were sitting on some grass about 15 to 25 feet from defendant's car.

When they got to the car defendant got into the front seat. He opened the passenger door and invited or "directed" Megan to take a seat. She "sat on the ledge of the passenger door." Deanna first stood outside the driver's side, but then came around to Megan's side.

Deanna testified that beginning during the walk to the car, and continuing after they got there, defendant "said he wanted to pay us for sex." He asked if they would "do sexual acts for him." He "said that he did it a lot.... [¶] ... [T]hat he had sex with younger girls." He said that "he would make [them] the richest girls at [their high school], if they did what he asked." Megan testified that defendant said "that he could take us to his mansion on [the street where defendant lived]. That he could—that he had a friend that worked on Palm Drive, or that owned some sort of building, and that we could go there. Or he said he usually had done this at—on Barlow Road. I don't know whereabouts. And that he had a lot of—or about five other men that were interested and involved with him in this, and that they would—we could go to any of those places also." He said that "he had made many girls millionaires ... that he could make us millionaires. He had many other people interested in this. He had friends he could hook us up with. He had places where we could go. People, older men that would spend money on us."

Similarly, Deanna testified that defendant said "that he would make us rich, and that if we didn't want to have sex with him, he has a lot of friends. And his older friends owned—they owned businesses in Sebastopol and they're also as rich as him. And he told us—he just described his house. It was like a really large house with a lot of expensive things, and the cars that he drives are nice. He told us he was really wealthy and he would share that with us. And he would introduce us to a lot of older men that owned businesses in town that were also wealthy. [¶] .... [¶] ... [H]e pulled his wallet out of his back pocket, I believe, and he just said to Megan, he said that he—kept pointing out that he wanted sex. And he pulled out his wallet to show money, and he pulled out like I think two $100 bills or something. He said, I'll give you some of this now, and he said, after—if you were to do this for me,...