People v. Moore

• Decision Date: 30 June 1989
• Docket Number: No. B032021,B032021
• Citation: 211 Cal.App.3d 1400,260 Cal.Rptr. 134
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Carter Terrell MOORE, Defendant and Appellant.

Page 134

260 Cal.Rptr. 134

211 Cal.App.3d 1400

The PEOPLE, Plaintiff and Respondent, v. Carter Terrell MOORE, Defendant and Appellant.

No. B032021.

Court of Appeal, Second District, Division 1, California.

June 30, 1989.

Review Denied Sept. 27, 1989.

Harvey R. Zall, State Public Defender, and Patricia A. Castillo, Deputy State Public Defender, under appointment by the Court of Appeal, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., Mark Alan Hart, Supervising Deputy Atty. Gen., and Donald J. Oeser, Deputy Atty. Gen., for plaintiff and respondent.

SPENCER, Presiding Justice.

INTRODUCTION

Defendant Carter Terrell Moore appeals from a judgment of conviction entered after a jury trial. The jury found defendant guilty of one count of committing a lewd act upon a child under the age of 14 during which defendant engaged in substantial sexual conduct (Pen.Code, §§ 288, subd. (a), 1203.066, subds. (a)(8) and (a)(9)), one count of attempted oral copulation with a person under the age of 14 (Pen.Code, §§ 664/288a, subd. (c)), five counts of rape (Pen.Code, § 261, subd. 2), two counts of oral copulation with a person under the age of 14 (Pen.Code, § 288a, subd. (c)), one count of forcible oral copulation (ibid.) and three counts of sodomy (Pen.Code, § 286, subd. (c)). Thereafter, the trial court found defendant previously had been convicted of a felony within the meaning of Penal Code section 667, subdivision (a). Defendant was sentenced to state prison for a total of 45 years.

STATEMENT OF FACTS

Defendant, M.'s father, returned home after a term of imprisonment when M. was nine or ten years old. Shortly before Christmas in 1983, when M. was in the third grade, she was on a bed with defendant in the apartment she shared in Pomona with her parents. Defendant put his toes between her legs. In January 1984, while relatives were visiting the apartment, M. slept on the floor with defendant. He asked her to perform an act of oral copulation, pushing her head in the direction of his penis, but M. bit his finger and defendant released her. He told her men in Africa had five or ten wives at one time. M. told her mother about this incident; her mother repeated this information to M.'s maternal grandmother, but neither of them took any steps as a result.

In approximately the middle of M.'s 1984-1985 fourth grade school year, M. moved with defendant to her grandparents' home in Lynwood, where she and defendant shared a bedroom. Once, while M. was doing her homework, defendant came into the room and sat on the bed. He began tugging on her arm and told her he should have whipped her for some things she had done, then he told her to lie on the bed; M. complied. Defendant began pulling down her clothing. When M. attempted to stop him, he said he was going to whip her (meaning hit her with a belt or strap), so she stopped resisting. After defendant pulled down her underclothing, while she was lying on her side, defendant lay on the bed behind her and initiated an act of sexual intercourse. M. told him this hurt. Defendant had sexual intercourse with her on the following day and thereafter from two to three times a week during the remainder of her fourth grade year. To escape him, M. attempted to sleep with cousins who used another bedroom but defendant came and got her.

In May 1985, defendant quarrelled with M.'s uncle, after which he and M. resided in several hotels in Signal Hill throughout the summer of 1985. On M.'s thirteenth birthday, May 22, 1985, defendant bought her a birthday cake and ice cream. When they went to bed, he had sexual intercourse with her, even though she asked him not to do so because it was her birthday. While they were living in Signal Hill, defendant had sexual intercourse with her almost every night. Periodically, she would attempt to resist him. When she did so, defendant, who was trained in karate, would strike her in the stomach and rib cage with karate-type movements. During this same period, defendant asked M. to perform acts of oral copulation; she did this on three or four occasions.

In August 1985, defendant and M. moved to an apartment in Long Beach. Just before M. began her fifth grade school year, during her menstrual period, defendant again had sexual intercourse with her. This time he ejaculated, something he had promised her he would never do. Some time after school started that fall but before Thanksgiving, defendant performed an act of sodomy. He did this on three separate occasions. Later, M. told him this made her feel as if she were going to have a bowel movement and complained to him about the pain she felt. In response, defendant looked at her with great anger, as though he was going to "jump on" her. Defendant continued to have sexual relations with M. during the remainder of her fifth grade school year.

By the time M.'s sixth grade school year began, she and defendant had returned to live in her grandparents' home in Lynwood. On one occasion during this time, defendant asked her to perform an act of oral copulation, asserting that M. did this better than a girlfriend would. Defendant placed a chair against the bedroom door and sat on it. They agreed she would perform an act of oral copulation for five minutes, but he insisted that she continue beyond that time. On a later occasion, defendant again had her perform an act of oral copulation; he ejaculated in the process, something he had said he would not do. During this period, M. told her paternal grandmother Throughout this period, M. engaged in sexual relations with defendant against her will. She submitted because she was afraid of him. He threatened her and told her he would kill her if she ever told anyone about these incidents. M. was well aware of her father's temper and violence. When she was four years old, she had seen him kill a man by stabbing; he spent five years in prison for this.

her cousin Randi and Uncle Ronnie that defendant was "messing with" her, but no one took any steps to protect her.

On October 26, 1986, defendant was having difficulty performing sexual intercourse and hence made M. perform an act of oral copulation. On the following day, she was crying in her classroom; this prompted her teacher, Ms. Williams, to take her out into the hallway. Mrs. King walked by and asked whether M. wanted to talk to her. After some initial reluctance, M. told Mrs. King what had happened the previous night; M. then talked to the principal and a police officer who was called to the school. The police officer took her to a hospital for an examination. Dr. Dora Burchette discovered damage to M.'s hymen; there were old tears at three locations and four bands of scar tissue extending from the hymen to the interior vaginal lips. In addition, M.'s hymenal orifice was larger than normal; it had an irregular border, very scarred and torn, and there was redness at and inside of the vaginal lips. The scars were at least two weeks old, but Dr. Burchette could not date them with any greater precision. The scarring and old tears were consistent with repeated trauma, including sexual abuse. The redness indicated recent trauma. Dr. Burchette did not examine M.'s anal area.

DEFENSE

Defendant denied ever touching M. in the vaginal area or asking her to perform oral copulation. He and M. had had a dispute over sleeping arrangements; M. wanted to sleep in the garage with her cousins, but defendant refused to permit this because his brother also shared the garage. This upset M. In defendant's view, he was a good father; he was strict and would not permit M. to date. When she came to live with him, her grades improved. Shortly before defendant's arrest, he and M. had other clashes of temperament. Defendant attributed these to M.'s jealousy of his girlfriend, from whom he ultimately separated because of the friction M. caused.

Two social workers who visited M. while she was living with her father observed no signs that she was being subjected to defendant's sexual molestation. She never gave any indication this sort of thing was happening.

CONTENTIONS

I

Defendant contends the trial court erred prejudicially in failing to instruct the jury that penetration was an essential element of forcible sodomy.

II

Defendant asserts there is insufficient evidence to support more than one conviction of sodomy or to support the conviction of rape between June 1, 1985 and August 31, 1985, as charged in count 4.

III

Defendant further asserts the trial court erred prejudicially, as to the forcible rape charged in count 4, in failing to instruct the jury sua sponte with CALJIC No. 17.01.

IV

Defendant contends the trial court improperly imposed full consecutive sentences pursuant to Penal Code section 667.6, subdivision (d), on counts 5, 7, 8, 9, 10 and 12.

V

Finally, defendant contends the trial court erred in calculating the credit against his sentence to which he was entitled for time served in presentence custody.

DISCUSSION

I

Defendant contends the trial court erred prejudicially in failing to instruct the jury that penetration was an essential element of forcible sodomy. We disagree.

The trial court has a duty, sua sponte, to instruct the jury correctly on all essential elements of the crimes charged. (People v. McNiece (1986) 181 Cal.App.3d 1048, 1057, 226 Cal.Rptr. 733, review den. September 11, 1986, disapproved on other grounds in People v. McFarland (1989) 47 Cal.3d 798, 805, 254 Cal.Rptr. 331, 765 P.2d 493; People v. Birreuta (1984) 162 Cal.App.3d 454, 462, 208 Cal.Rptr. 635.) The failure to so instruct is error whenever there is any evidence deserving of any consideration from which the jury could have found in the defendant's favor on the omitted element. (Ibid.) Any such error must be harmless beyond a reasonable doubt. (People v. Dyer (1988) 45 Cal.3d 26, 62-64, 246 Cal.Rptr. 209, 753 P.2d 1, cert. den. (1988) 488 U.S. 934, 109...