People v. Donovan

1

THE PEOPLE, Plaintiff and Respondent, v. ROBERT MACK DONOVAN, Defendant and Appellant.

C094550

California Court of Appeals, Third District, Butte

February 16, 2023

NOT TO BE PUBLISHED

(Super. Ct. No. 18CF05509)

McADAM, J. ^[*]

A jury found defendant Robert Mack Donovan guilty of continuous sexual abuse of A.D. (count 1), sexual penetration of a child, A.D., 10 years old or younger (count 2), oral copulation of a child, A.D., 10 years old or younger (count 3), and oral copulation or sexual penetration of a child M.M., 10 years old or younger (count 6). The prosecution however, failed to charge count 1 in the alternative to counts 2 and 3 as required by Penal Code section 288.5, subdivision (c).^[1] At sentencing, the trial court vacated the conviction on count 1. The court sentenced defendant to an aggregate term of 45 years to life, consisting of terms of 15 years to life on counts 2, 3, and 6.

On appeal, defendant asserts the trial court erred by vacating the conviction on count 1 and imposing sentence on counts 2 and 3 instead of imposing sentence on count 1 and vacating the convictions on counts 2 and 3. He further asserts the abstract of judgment must be corrected to accurately reflect the nature of his convictions.

We conclude the trial court did not err by vacating the conviction on count 1 and imposing sentence on counts 2 and 3, and therefore we will affirm the judgment. However, we will order the abstract of judgment amended to reflect the specific nature of defendant's convictions.

BACKGROUND

A third amended information charged defendant with continuous sexual abuse of A.D. (§ 288.5, subd. (a); count 1); oral copulation or sexual penetration of a child, A.D., 10 years old or younger (digital penetration) (§ 288.7, subd (b); count 2); oral copulation or sexual penetration of a child, A.D., 10 years old or younger (oral copulation) (§ 288.7, subd. (b); count 3); forcible lewd act upon a child, M.W. (§ 288, subd. (b)(1); counts 4 &5); and oral copulation or sexual penetration of a child, M.M., 10 years old or younger (§ 288.7, subd. (b); count 6). The information alleged the aggravating circumstance that, in connection with counts 1, 4, and 5, defendant committed the offenses against multiple victims under the age of 14. (§ 667.61, subds. (e)(4), (j)(2).) The information further alleged as to count 1 that A.D. was under 14 years old and defendant had substantial sexual conduct with A.D. (§ 1203.066, subd. (a)(8).) Counts 1 and counts 2 and 3 were not charged in the alternative.

I The Prosecution Case

A. Offenses Involving M.M.

M.M. was 10 years old at the time of the trial. She testified that, when she was younger and lived in California, defendant sat her down on a chair or table, pulled down her pants, pulled down her underwear, held her hips, and kissed her in between her legs. It was an "adult kiss," meaning his mouth was open. Approximately two months after M.M. and her mother moved to Nevada, M.M. told her mother there had been an incident with defendant. M.M.'s mother filed a police report. It stated, in part, that M.M. told her mother defendant "gave [M.M.] adult kisses on her hoo-hoo. When I asked her what she meant by adult kisses, she told me 'Kisses where your mouth is open wide and you wiggle your tongue all around.' "

The prosecution played a Child Abuse Response Team (CART) interview with M.M. for the jury. She told the interviewer defendant pulled down her pants and underwear and kissed her on what she called her "Hoo-hoo," where she crossed her legs. She felt his tongue on her hoo-hoo.

B. Offenses Involving M.W.^[2]

M.W. testified that, when defendant lived with her and her mother, he tried to do things she did not want him to do. He held her and touched her under her clothes on her vagina with his hands. This occurred on more than one occasion. It happened "a lot." Defendant also would sometimes lie down in bed with M.W., which made her uncomfortable. M.W. also testified defendant threatened to hurt her if she told anyone about what he did.

The prosecution played a CART interview with M.W. for the jury. M.W. was 12 years old at the time of the interview. She told the interviewer defendant held her down and touched her "boobs and [her] private part" with his hands. He did the same thing on a second occasion. On both occasions, defendant told her he would hurt her if she told anyone what he had done.

C. Offenses Involving A.D.

A.D. was defendant's biological child. A.D. did not meet defendant, however, until he was at least five years old.^[3] Initially, people identified defendant as a family friend. A.D. only later learned defendant was his father. A.D. visited with defendant almost every weekend.

At some point, after defendant had moved from an apartment to a house, defendant began to do things to A.D. in a shed that made A.D. uncomfortable. Defendant removed A.D.'s pants and touched A.D.'s vaginal area. Defendant's fingers did not penetrate A.D.'s vagina, but touched the outer portion of A.D.'s vagina. Defendant also touched A.D.'s breasts and had A.D. suck defendant's penis.

A.D. more specifically testified defendant would rub A.D.'s vagina with his fingers "[a]lmost every weekend." Defendant did so possibly more than 20 times. He would have A.D. put defendant's penis in A.D.'s mouth. Defendant did that more than five times. He would also "[q]uite often" have A.D. use A.D.'s hands on defendant's penis. Defendant also put his mouth on A.D.'s vaginal area and licked it with his tongue. Defendant did so more than 10 times. Defendant also rubbed his penis on A.D.'s vaginal area. Defendant did so fewer than five times. At some point, defendant attempted to put his penis in A.D.'s vagina but he was unable to do so. Defendant kissed A.D. on the lips, breasts, stomach, and vagina. Defendant would also sometimes get into bed with A.D. and he would touch A.D.'s vagina and breasts under the clothing.

At some point, based on the information A.D. supplied, A.D.'s grandmother called the sheriff's office. She obtained a restraining order protecting A.D. against defendant.

The prosecution played a recording of a CART interview with A.D. for the jury. A.D. was 10 years old at the time. The interviewer asked A.D. about the reason for the interview, and A.D. responded, "[m]y dad touched me in a place that was inappropriate" beginning when A.D. was seven or eight years old. A.D. told the interviewer defendant would call A.D. into a shed and he would start touching A.D. underneath A.D.'s clothing. Defendant would touch A.D. on "inappropriate parts" of A.D.'s body, including A.D.'s breasts and crotch. Defendant also kissed and licked A.D. "[i]n those parts." Defendant also made A.D. touch defendant's "inappropriate part." Defendant would also do these things with A.D. in the bedroom. Defendant told A.D. he loved A.D. "in a lover kind of way and he wanted to do lover like things to" A.D. A.D. told the interviewer the last time the touching took place was "a couple months" prior to the CART interview.

A.D. testified he did not always "recall things accurately." A.D. also acknowledged possibly having "false memory," or memories of things that did not happen. However, A.D. also testified to being able to distinguish between real and false memories because real memories are "so vivid." A.D.'s memories of the events involving defendant were vivid.

Lieutenant Christopher Oakley was the primary investigating officer on this case. He worked with District Attorney Investigator Jake Hancock.

At some point, Lieutenant Oakley, posing as A.D., engaged in a text message conversation with defendant on Kik, a social media communication application that erases messages when the user logs out. Oakley took screenshots of the Kik exchange, and the trial court admitted into evidence a document containing those photographs. For present purposes, it is sufficient to say, as acknowledged by defendant in his briefing, that the Kik text message exchange "revealed a sexual relationship" had occurred between defendant and A.D. The exchange also made clear defendant's concerns that the text message exchange was a "setup," about whether A.D. was going to tell anyone about the relationship, and his reminders that A.D. delete the text messages when they were finished.

Lieutenant Oakley and Investigator Hancock thereafter interviewed defendant. During the interview, Oakley presented defendant with the screenshots of the Kik text message exchange, and defendant acknowledged being the other participant in that exchange. During the interview, when Hancock asked if defendant expressed love for A.D. in a way society deemed inappropriate, defendant responded," 'Sure.'" Defendant admitted he had touched A.D.'s breasts over A.D.'s clothing and that he had kissed A.D. Defendant said A.D. was lying about the other things and said he would not sexually assault A.D. The prosecution played clips of the interview for the jury.

During the interview, Investigator Hancock suggested defendant write a letter to A.D. The trial court admitted the letter, People's exhibit 28, into evidence. In the letter, defendant apologized to A.D. "for the pain and any issues" and "for everything." In a second document, People's exhibit 27, defendant wrote: "I . . . [c]onfess to the charges that w[ere] ma[de] about me."

II The Defense Case

Defendant testified he had "ADD ADHD" and anxiety disorder. He had been hospitalized with anxiety attacks. One trigger for such events for defendant was confrontation. He testified that as his interview with law enforcement progressed, he began to feel very uncomfortable and he "started having issues focusing where communication, it starts getting limited."

Defendant testified he wrote the...