People v. Sharp

• Decision Date: 14 November 1994
• Docket Number: Nos. A060424,A062916,s. A060424
• Citation: 29 Cal.App.4th 1772,36 Cal.Rptr.2d 117
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robin Re SHARP, Defendant and Appellant. In re Robin Re SHARP, on Habeas Corpus.

Page 117

36 Cal.Rptr.2d 117

29 Cal.App.4th 1772

The PEOPLE, Plaintiff and Respondent, v. Robin Re SHARP, Defendant and Appellant In re Robin Re SHARP, on Habeas Corpus.

Nos. A060424, A062916.

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

Nov. 14, 1994.

Certified for Partial Publication ^*

Rehearing Denied Nov. 30, 1994.

Review Denied Feb. 16, 1995.

J. Frank McCabe, under appointment by the Court of Appeal, San Francisco, CA, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Sonna B. Chew, Allan Yannow, Deputy Attys. Gen., San Francisco, CA, for plaintiff and respondent.

PHELAN, Associate Justice.

I. INTRODUCTION

Appellant Robin Re Sharp timely appeals from his conviction after a jury trial of seven felony counts of forcible lewd and lascivious conduct with a child under the age of fourteen years (Pen.Code, § 288, subd. (b) [counts 3 and 5, relating to Joann G.; counts 20, 22, 24 and 26, relating to Tammy G.; count 44, relating to Vanessa P.] ), ¹ one felony count of forcible penetration with a foreign object (§ 289, subd. (a) [count 4, relating to Joann G.] ), three felony counts of nonforcible lewd and lascivious conduct with a child under the age of fourteen years (§ 288, subd. (a) [counts 6 and 7, relating to Joann G.; count 43, relating to Vanessa P.] ), two felony counts of rape (§ 261, subd. (a)(2) [counts 11 and 13, relating to Tammy G.] ), three felony counts of forcible oral copulation with a person under the age of fourteen years (§ 288a, subd. (c) [counts 19, 21 and 23, relating to Tammy G.] ), and one misdemeanor count of battery (§ 242 [count 9, relating to Joann G.] ). Appellant was also convicted, based on a plea of no contest, to five counts of receiving stolen property (§ 496.1 [counts 33, 40, 42, 51 and 52] ), eleven counts of residential burglary (§ 459 [counts 31, 32, 34, 35, 36, 37, 38, 39, 41, 47 and 48] ), one felony count of forcible lewd and lascivious conduct with a child under the age of fourteen years (§ 288, subd. (b) [count 49, relating to Rebecca F.] ), and one felony count of attempted kidnapping (§§ 207, subd. (a), 664 [count 50, relating to Rebecca F.] ).

After a bench trial, the court found true the allegation of a prior conviction of a serious felony, first degree rape of a 12-year-old girl in the state of Washington. (§ 667, subd. (a).) The trial court sentenced appellant to a total of 129 years in state prison for the foregoing offenses.

Appellant's primary contention on appeal (and the sole issue presented in his petition for writ of habeas corpus) is that he was deprived of his constitutional right to face-to-face confrontation with his accuser when the prosecutor positioned herself in the courtroom so that one of the young victim witnesses, Tammy G., did not have to look at him while testifying about his acts of sexual molestation. Appellant also contends that the trial court erred in denying his request for a new attorney to investigate a possible new trial motion based on incompetence of trial counsel. In the published portion of this opinion, we hold that the procedure used by the prosecutor to question Tammy did not violate appellant's confrontation clause rights, and that the trial court did not abuse its discretion by rejecting his post-trial claim of ineffective assistance.

Appellant also claims that the trial court erred by admitting certain hearsay and similar act evidence, and by failing to inquire about an incident in which two jurors were reported to have cried after hearing the victim witnesses' testimony. Finally, appellant contends that the evidence was insufficient to support the convictions on several of the sex offenses, and that the trial court erred in its computation of his sentence. We address all but one of these claims in the unpublished portion of the opinion. As to appellant's claim that there was insufficient evidence of a "lewd or lascivious act" to support the conviction on count 6, we conclude in a published portion of the opinion that even a seemingly innocent act, such as stroking a child's hair or rubbing her back, can be found to be "lewd or lascivious" when viewed in the totality of the circumstances in which it occurred.

Finding no reversible error, we affirm the judgment of conviction in its entirety and deny the petition for writ of habeas corpus. However, we remand for resentencing to correct an error which, respondent concedes, was committed by the trial court in the determination of appellant's sentence.

II. FACTUAL AND PROCEDURAL BACKGROUND

Appellant's claims of error all relate to his convictions, entered upon the jury's verdict, of sex offenses against three young girls. Joann G. was nine or ten years old when she lived on Heidi Place in Santa Rosa, where appellant was her neighbor from 1989 to 1992. Joann testified to four incidents of lewd and lascivious conduct.

In the first incident, charged in counts 6 and 7, Joann and a friend were washing appellant's truck when appellant told her he wanted to show her something in the back yard. Joann followed him, waited at the fence and, while she was there, appellant "dangled" her hair ² and massaged her back. Appellant also reached down and around under her shirt and pinched her breast. Appellant told her, "[I]t's okay, you don't have to do nothing, just don't tell your mom or nothing." Joann said this made her afraid. Joann then returned to the truck. Appellant tried to touch her breast again, but she put her hand down to block him.

On another occasion, charged in count three, appellant rubbed Joann's genital area hard enough so that it hurt. When Joann returned home, she started to bleed when she went to the bathroom. On yet another occasion, charged in count four, appellant used his hand to pull down her shorts and panties and then put something "really greasy up [her] butt." She did not know what it was and did not turn around to look because she was afraid. She said her rectum hurt that day and the next day. Trudy Crough, a physician's assistant and the pediatric sexual abuse coordinator at the county hospital, examined Joann in February 1992 and found a tear in her anus in a position consistent with penetration while she was standing. Crough found no signs of trauma to Joann's vagina.

In the fourth incident, charged in counts 5 and 9, Joann saw appellant walking on the street looking disheveled, with his penis exposed. Appellant told her to approach him and then accused her of telling her mother about his prior conduct. He also made her touch his penis by holding her hand to it and, when she did, he slapped her. She then fell down and appellant tried to kick her. Earlier, appellant had told her he would kill or hurt her or her family if she told anyone.

Appellant also sexually assaulted Joann's younger sister, Tammy G., who was eight years old at the time of the incidents alleged in this case. Tammy initially testified that appellant never touched her, but that she was afraid of him. At that point, the prosecutor asked for a recess. After the break, the prosecutor moved to a position in the courtroom so Tammy would not have to look at appellant while testifying. Tammy then testified that appellant took her into his bedroom twice and touched her in the vaginal and anal areas. She also said that, on one occasion, he took her clothes and his clothes off and lay on top of her but did not penetrate her. At that point, Tammy told the court she was tired and her testimony was continued to the next court day.

When Tammy took the stand again two days later, she testified that appellant penetrated her vagina twice with his penis. On either that or another occasion, appellant penetrated her rectum with his hand. She further testified that he touched her rectum with his penis three or four times when she was in his bedroom, and put his mouth on her vagina three times. Appellant told her not to tell anyone or he would kill her mom.

Trudy Crough also examined Tammy in February 1992 and found a tear in her hymen that she believed was caused by penetration. There was also, however, undisputed evidence that Tammy had been molested by a friend's father between July 1990 and February 1992. During the examination by Crough, Tammy said that appellant molested her by, among other things, anal-penile and anal-finger contact.

The jury also heard testimony from Carol Brandt, a special education teacher for the Santa Rosa School District who works with children with learning disabilities. Brandt described her work with both Tammy and Joann. As to Tammy, Brandt said she had disabilities in auditory memory, auditory perception, and language development. In her opinion, Tammy was able to remember events but sometimes had difficulty explaining them. When asked if Tammy was truthful, Brandt said, "I think so." In 1989, Brandt also worked with Joann who, at the time, had an auditory attention deficiency and difficulty in focusing. According to Brandt, Joann's memory seemed fine and she appeared to be truthful.

Appellant molested a third neighborhood girl, Vanessa P., when she was eight or nine years old. Vanessa testified that appellant would occasionally pay her to wash his truck. One time, while Vanessa was washing the truck, appellant touched her breast. She tried to get away from appellant by moving to the other side of the truck, but he went around and tickled her on the breast again. Appellant said he was not going to hurt her. Vanessa further testified to another occasion on which appellant picked her up after she fell off a swing and held her for "[k]ind of long" and "[a] little tight," touching her knee with his penis.

Appellant did not take the stand in his own defense. In fact, the only defense witness to testify was Dr. Kevin Coulter, a pediatrician, who reviewed the slides of the anal and vaginal areas of Joann and Tammy G. taken in February 1992. Dr. Coulter...