The People v. Cornett
| Decision Date | 06 December 2010 |
| Docket Number | No. SCR-504048,A123957,SCR-504048 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DAVID CORNETT, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
CERTIFIED FOR PARTIAL PUBLICATION*
Defendant Michael Cornett was charged with molesting his two stepdaughters, 10-year-old Jane Doe 1 and six-year-old Jane Doe 2, with the final instance captured in a photograph taken by defendant's 12-year-old stepson. A jury found defendant guilty on all seven felonies alleged against him, and found all special allegations to be true— including that 11 years earlier he had been convicted of molesting yet another stepdaughter. Defendant was sentenced to 10 years, plus 150 years to life in state prison.
Defendant makes numerous arguments on appeal, asserting myriad errors during trial and at sentencing. The People concede that two of the arguments as to sentencing on count 6 are well taken, and we conclude that an argument as to the conviction on that count has merit as well, requiring a reversal of the conviction on that count.
We shall also reverse the conviction on count 7, alleging commission of a lewd and lascivious act on a child under the age of 14 (because no evidence regarding that offense was presented at the preliminary hearing), modify two rulings made at sentencing, and in all other respects affirm, leaving defendant convicted of six felonies.
The judgment is affirmed as modified, a modification that does not affect the aggregate sentence imposed by the trial court.
All these issues, save one, are addressed in the unpublished portion of this opinion. The singular exception, the one issue addressed in the published portion of the opinion, is an issue apparently never before addressed in California: was Jane Doe 1, who was 10 years 11 months at the time of the molestation, a "child... 10 years of age or younger" within Penal Code section 288.7, subdivision (b), 1 the offense charged in count 6. We answer in the negative, concluding that "a child who is 10 years of age or younger" excludes children who have passed the 10th anniversary of their birth.
Defendant and Angela Cornett, who had been friends since they were young, began dating in May 2003 and married in November the following year. At the time they began dating, Angela had three children from a prior relationship—three-year-old Jane Doe 2, seven-year-old Jane Doe 1, and 10-year-old Dion.2
At some point near the end of 2006, Angela and defendant, who had been living in Marin, bought property in Sebastopol. There were multiple houses on the property, all of which needed work before they were habitable. Angela, defendant, and the children were going to live in one house, and Angela's mother and father were each going to live in one of the two smaller houses. By January 2007, most of the work had been completed on the main house, and Angela and her family had moved in. The house for Angela's father was almost ready, with some minor work remaining to be done.
On the evening of January 9, 2007, Angela was sleeping on the couch in the main house. She woke up, noticed it was time for the girls to go to bed, and asked Dion to tellhis sisters it was bedtime. According to Dion's testimony, at the time, Jane Doe 1 was at her grandfather's future house, and Jane Doe 2 in the main house. Dion went to his grandfather's house and looked in the living room window. He did not see anyone, so he tried to open the front door, but it was locked. Noticing that the bedroom light was on, he walked over to the bedroom window. Peering inside, Dion saw Jane Doe 1 lying on her back on the bed. She was wearing nothing but a shirt and had her legs open. Defendant was on top of her, with his hands pushing her legs down, orally copulating her.
Dion ran back to the main house, grabbed a camera, and returned to his grandfather's house. Again looking through the window, he saw defendant in essentially the same position as before, although his head was now up. Dion took a picture through the window, ran back to the main house, told his mother, "Mom, he's molesting Jane Doe 1," and showed her the picture he had taken.
Angela ran down to the grandfather's house, where she found Jane Doe 1 sitting on the coffee table watching television and defendant doing some work on the countertop in the kitchen. She repeatedly demanded to know "[w]hat the hell's going on here?" Defendant responded that he did not know what she was talking about. Dion, who was right behind Angela, said, "You were licking her vagina," which defendant denied. After sending Dion and Jane Doe 1 back to the main house, Angela continued to confront defendant, at one point punching him in the face. Defendant eventually changed his story, claiming that it happened because Jane Doe 1 instigated it, although he was vague about what happened.
Once back at the house, Dion called "Auntie Yaqinah," a close family friend considered to be an aunt by Dion and his sisters. Dion told Yaqinah he saw defendant on top of Jane Doe 1 and they were "doing it." When Yaqinah suggested that perhaps he was mistaken and that he should get some evidence, Dion told her he had already taken a picture. She then told him to call the police, which he did.
Yaqinah also spoke with Jane Doe 1, who sounded "shaky." Jane Doe 1 told her that she was playing in her grandfather's house when defendant came into the room, pushed her down on the bed, and pulled down her clothes. He started touching her with his hand and then, according to Jane Doe 1, "He did it."
Yaqinah also spoke with Angela who was "really, really upset." Angela told her that defendant had admitted everything.
Santa Rosa Sheriff Deputies Cutting and Salkin arrived within minutes and found defendant and Angela standing in the driveway. As Deputy Cutting began speaking with defendant, he detected an odor of alcohol but observed no outward symptoms of intoxication. When the deputy asked defendant if he knew why he, the deputy, was there, defendant responded that his stepson had called the police. Defendant then volunteered that he had been doing some work at what was going to be his father-in-law's house when Jane Doe 1 came in to have a conversation. During this conversation, she was seated on the bed and he was standing a few feet away. According to the deputy, at no point did defendant ever mention that he horsed around with Jane Doe I, tickled her, or gave her a raspberry, or that he bent down to pick up screws.
That night, Jane Doe 1 was taken to Redwood Children's Center (RCC) for a forensic interview. 3 A genital swab and a blood sample were also taken, and analysis of the swab determined that the sample contained amylase, an enzyme found in saliva. A DNA analysis of the genital swab and an oral swab taken from defendant determined that his DNA matched that found on the genital swab. The likelihood that someone's DNA would match that found in the genital sample was 1 in 3.2 quadrillion AfricanAmericans, 1 in 51 trillion Caucasians, and 1 in 800 trillion Hispanics.
The next day, Detective Joel Pedersen of the Sonoma County Sheriff's Department spoke with Angela. She told him that Jane Doe 2 had told her defendant hadorally copulated her the previous night. Consequently, Jane Doe 2 was taken to RCC to be interviewed.
Defendant was taken to the Sonoma County Sheriff's Department, where he was interviewed by Detective Pedersen in the early morning hours of January 10, 2007. Defendant initially told the detective that while he was working on the kitchen that evening, Jane Doe 1 came into the house and went into the bedroom, where she started doing gymnastics on the bed. She called for him to come into the room because she wanted to discuss something that had happened. While she was still jumping on the bed, defendant dropped some screws so he bent down to pick them up. Dion then ran into the room or began banging on the door and saying," 'I took a picture of you. I took a picture of you.' " When Detective Pedersen asked defendant if he had touched or come into close contact with Jane Doe 1, defendant responded," 'I mean, I don't even remember—I don't remember even brushing up against her, but it's—it's a very tight space right there.' "
Over the course of the interview, defendant's version of the incident evolved. At one point he claimed he "probably" horsed around with Jane Doe 1 a bit while she was bouncing on the bed and that it was possible he tickled her on his way back up from picking up the screws. At another point, he said he believed he pushed her down on the bed and then tickled her. He later claimed he sometimes tickled the girls and gave them raspberries—"you know, blow on their belly"—but he could not remember if he had given Jane Doe 1 a raspberry that night, and was pretty sure he had not.
Detective Pedersen specifically asked defendant about Jane Doe 1's pants coming down. At that point, defendant denied that her pants were down. When asked about her shirt coming up, defendant first said he did " '[n]ot specifically' " remember that happening, but then later said," '[Y]ou know, I mean, we're jumping around on the bed and you're wearing loose clothes, it's entirely possible that, um, clothes move around.' "
When Detective Pedersen again asked defendant what happened that night, defendant offered yet another version. This time, he claimed Jane Doe 1 was in the bedroom doing flips on the bed. He told her to get off the bed and may have tickled and horsed around with her a bit:" " When asked again about her pants coming down, defendant this time responded, ...
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