People v. Moore

• Decision Date: 23 September 1986
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Peter Clement MOORE, Defendant and Appellant. E001919.

Page 237

230 Cal.Rptr. 237

185 Cal.App.3d 1005

The PEOPLE of the State of California, Plaintiff and Respondent, v. Peter Clement MOORE, Defendant and Appellant.

E001919.

Court of Appeal, Fourth District, Division 2, California.

Sept. 23, 1986.

Review Denied Jan. 22, 1987.

Gary A. Myers, Redlands, under appointment by the Court of Appeal, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Rudolf Corona, Jr. and Tim J. Nader, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

KAUFMAN, Acting Presiding Justice.

Defendant Peter Clement Moore was convicted by a jury of five counts of misdemeanor child annoyance or molestation (Pen.Code, § 647a), and acquitted of one misdemeanor and four child-related felony counts (Pen.Code, §§ 647a, 288, subd. (a), 273a). His contentions on appeal are that (1) the trial court erred in failing to grant a motion to sever the misdemeanor counts from the felony charges; (2) the court erred in failing sua sponte to instruct on the unanimity requirement as to the particular act underlying the charges; (3) the convictions with respect to one victim were not supported by substantial evidence; (4) a preliminary hearing defect rendered conviction on one count unlawful; and (5) the court erred in considering improper matter at sentencing.

FACTS

An information charged defendant with three counts of felony child molestation (Pen.Code, § 288, subd. (a)) and one count of felony child endangerment (Pen.Code, § 273a) committed against Tania C., a minor under the age of 14. The information also charged defendant with six counts of misdemeanor child molestation or annoyance (Pen.Code, § 647a) committed against five different minor girls, Cherisse P., April G., Danielia G., Tiffany S., and Julie C.

Resolving, as we must, all evidentiary conflicts in the light most favorable to the judgment, the evidence is as follows: Defendant met Tania C., aged 12, and her mother Linda C. at a roller rink where the three practiced their competitive skating. The three became friends. Because defendant's job involved counseling, Linda C. discussed Tania's discipline and behavior problems with defendant. Linda C. arranged for Tania to spend a weekend in January 1984 with defendant and his wife for closer observation.

Tania testified that on the first morning of her visit, she and defendant played backgammon together. During the game, defendant wore only a robe and exposed his genitals to her.

Tania testified that later that day the two drove along a freeway to a skating rink. During the ride, defendant reached over, unbuttoned Tania's blouse, and placed his fingers inside her brassiere. He then opened his fly and had Tania stroke his penis. At the rink, Tania met her mother but did not tell her about the sexual activity.

Tania testified that after skating practice defendant drove her to his home. During the trip defendant again touched her breasts and had her touch his penis. Defendant also reached inside Tania's underwear and touched her genitals.

Tania testified that on the second morning of the visit defendant again exposed himself several times while wearing only a robe. Tania returned to her mother that day but said nothing to her about defendant's sexual conduct. However, she did tell her mother of defendant's conduct two days later when her mother asked her about her unauthorized absences from school.

Tania testified that before the weekend she spoke with her school counselor about a sexual incident with defendant that occurred a week before the weekend of the visit. The school counselor confirmed that Tania had described a molestation after the weekend visit, but could not recall Tania telling her of any sexual activity before the weekend of the visit.

Danielia G., aged 9, was the first misdemeanor victim to testify. After August 9, 1983, she lived in the duplex adjacent to that of defendant's. Until sometime near Christmas 1983, she and her friends would visit defendant nearly every afternoon in his back yard, where defendant kept several turtles and a pond of small fish. When visiting, the girls would knock on his back door and he would invite them in and provide food for the turtles. Except for one occasion when defendant wore shorts and a shirt, defendant always wore a robe. Danielia knew that defendant wore no underwear because during each visit (except the one when he wore shorts) defendant would lie in a lawn chair and spread his legs, exposing his genitals. Danielia further testified to an incident in which defendant raised her shirt and with a stethoscope listened to her heartbeat.

April G., Danielia's sister, was the alleged victim of the acts charged in counts VI and VII. April testified that often after school she would go to visit defendant's back yard, where she would play with the turtles; that defendant always wore a robe during her visits; and that, except for one visit, "every time" when he had on "regular clothes," which he later changed, defendant would lie on a lawn chair and expose himself by spreading his legs. April also testified that defendant once placed a stethoscope under her shirt to hear her heartbeat.

Julie C., aged 10, testified that she also visited defendant in his back yard. Most often when she visited, defendant would wear a robe. In the back yard defendant would sit on a lawn chair and spread his legs, exposing his "private part." Defendant also exposed himself to Julie when the two played backgammon indoors and when they were washing defendant's car.

Julie recalled one incident in which she and other girls were in defendant's bathroom when defendant listened for her heartbeat by placing an instrument under her shirt. On cross-examination, Julie revealed that "about maybe three times" she and her friends had peeked from the neighboring yard through the fence to see defendant uncovered by his robe.

The testimony of eight-year-old Cherisse P. nearly matched that of the preceding misdemeanor victims. Cherisse was a friend of April's, Danielia's, and of another misdemeanor victim, Tiffany S'. Almost every day during school, Cherisse would play in defendant's back yard with his turtles. She stated that both indoors and on a lounge chair outdoors defendant would spread his legs open while not wearing underwear. Cherisse's testimony differed from her friends in that she did not indicate that defendant had listened to her heartbeat. Although she recalled an incident in his bathroom when defendant had lifted Julie's shirt and listened to Julie's heartbeat, defendant did not attempt to listen to hers. On cross-examination, Cherisse admitted on one occasion she peeked over a fence to view defendant's genitals.

Tiffany S., aged 7, testified she met defendant at his house when accompanying April and Danielia. She too observed defendant's "private parts" on several different occasions when defendant would lie in a lawn chair wearing only a robe. Tiffany remembered one incident in which defendant pulled her shirt up and placed a listening device on her chest.

Testifying in his own behalf defendant denied exposing himself to Tania or committing any sexual acts with her. Defendant testified that during the weekend visit Tania claimed she had previously engaged in sexual intercourse and oral sex. Defendant testified that Tania related having the symptoms of a vaginal infection, of which symptoms she had not yet told her mother.

Regarding the misdemeanor counts, defendant testified that from August through autumn 1983, he would sun himself while wearing a robe and boxer shorts or a towel covering his genitals. Later when defendant learned that the neighborhood children were watching him, he altered the position of the chair so that from the fence they could see only his back side. Later still, he stopped sunning himself.

Defendant estimated that the children visited him on about twelve occasions when they were not expected. Of these, he estimated that on five occasions he wore a robe without underwear. However, on these occasions he stated he took particular care in arranging his robe so that he was not exposed.

Defendant further testified that because of concern for his blood pressure, he owned a kit for measuring blood pressure which included a stethoscope. On one occasion, the children noticed the instrument in the living room and expressed curiosity. Accordingly, while in the living room he placed the ear pieces in Cherisse's ears, and the listening bell over his own heart. He then let the children experiment with each other--all but Julie C. wore bathing suit tops so their play "[r]equired no movement of clothing by anybody at all." At no time did he place the bell on a girl's chest. After the girls had listened to each other, defendant put the instrument away.

Tony Carrillo, who had known Tania and Linda C. for more than two years, testified that in his opinion neither Tania nor Linda were truthful people and had reputations of not being truthful. Sergio Tosto, Helen Clifford, and Marilu Bagley had all known Tania and Linda for at least three years. Each witness stated that Tania did not have a reputation for being truthful. Barbara Carter's videotaped testimony was that she had met Tania and Linda on several occasions and that Tania definitely was not to be believed.

In rebuttal, Riverside Police Officer Cory Sheffield testified about his interviews with several of the children while he was investigating the case. On February 2, 1984, he contacted Tania C. who told him of two instances of sexual molestation by defendant. After interviewing Tania, Officer Sheffield attempted to find other persons with knowledge of defendant's sexual behavior. At the home of their mother, Julia V., he interviewed Danielia and April G., as well as Cherisse P. He interviewed each child separately, and did not tell the children what he had learned from each previous witness. Some time later, he interviewed Julie C. and Tiffany S.

The jury acquitted def...