People v. Peterson, A117254 (Cal. App. 10/14/2009)

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THE PEOPLE, Plaintiff and Respondent, v. LUTHER PETERSON, Defendant and Appellant.

A117254

Court of Appeals of California, First Appellate District, Division One

October 14, 2009

Not to be Published in Official Reports

Appeal from the San Francisco City & County, Super. Ct. No. 195480.

MARGULIES, J.

Defendant Luther Peterson was convicted of sexual abuse of several young girls. He argues that the jury instructions were erroneous in several respects and that the trial court erred in enhancing his sentence on the basis of an alleged prior conviction because there was insufficient evidence that the conviction occurred before the criminal acts underlying his present convictions. While we find no error in the jury instructions, we agree there was insufficient evidence to support the sentence enhancement and remand for resentencing.

I. BACKGROUND

Defendant was charged in a second amended information, filed February 14, 2006, with four counts of continuous sexual abuse of a child under the age of 14 (Pen. Code,¹ § 288.5) and four counts of aggravated sexual assault of a child through forcible oral copulation (§§ 269, 288a, subd. (c)(2)), involving four different victims. Defendant was also charged with three counts of oral copulation with a child under the age of 14 years, involving a fifth victim. (§ 288a, subd. (c)(1).) As sentence enhancements, the information alleged one prior strike conviction under sections 667, subdivisions (d) and (e) and 1170.12, subdivisions (b) and (c) and four prior convictions under section 667.5, subdivision (b). The prosecution ultimately dismissed counts 4 and 10, after the victim named in these counts failed to testify at trial.

The four victims who testified were Shany., S.P., and A.P., defendant's daughters, and L., the little sister of the mother of Shany. and S.P. Shany. and S.P. each testified that when she was between the ages of 6 and 10 years, defendant, on several different occasions, blindfolded her and, under the pretense of checking her teeth, inserted his penis in her mouth. L. testified that when she was between the ages of 9 and 11, defendant on several occasions entered her bedroom, placed his penis in her mouth, and moved it around until he ejaculated. A.P. testified that when she was in the fifth and sixth grades, defendant took her to a secluded place on several occasions, placed her hand around his penis, and moved it up and down.

The trial court gave CALCRIM No. 1123 on count 8, adapted to recite the elements of aggravated sexual assault of a child through forcible oral copulation under sections 269 and 288a, subdivision (c)(2). Consistent with the statutory language, the court instructed the jury, "To prove that a person is guilty of oral copulation by force, the People must prove, one, the defendant committed an act of oral copulation with someone else; two, the other person did not consent to the act; and three, the defendant accomplished the [act] by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to anyone." After retiring, the jury sent a note to the court asking for "a legal definition of: force, violence, duress, menace, or fear of immediate and unlawful bodily injury to anyone." The court concluded it had inadvertently omitted the explanatory jury instruction and, after consultation with counsel and without objection, gave the definitions from CALCRIM No. 1015, reading:

"An act is accomplished by force if a person uses enough physical force to overcome the [other] person's will.

"Duress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do or submit to something that he or she would not otherwise do or submit to. When deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the other person and [the] relationship to the defendant.

"Retribution is a form of payback or revenge.

"Menace means a threat, statement, or act showing an intent to injure someone.

"An act is accomplished by fear if the other person is actually and reasonably afraid or is actually but unreasonably afraid and the defendant knows of the fear and takes advantage of it."

Defendant was convicted of count 2, continuous sexual abuse of S.P., count 5, oral copulation of L., and count 8, aggravated sexual assault through forcible oral copulation of Shany. He was acquitted of the remaining counts.

Defendant waived his right to a jury trial of the prior convictions, and they were tried to the court. The court found that each of the alleged convictions occurred, but it made no findings about the relative timing of the prior convictions and the events on which defendant's present convictions were based.

At sentencing, the trial court doubled defendant's sentence terms on the basis of the prior strike conviction. (§§ 667, subds. (d), (e); 1170.12, subds. (b), (c).) Again, the court made no express factual finding regarding the relative timing of the strike conviction and defendant's present criminal conduct. The doubling resulted in terms of 24 years on count 2, four years on count 5, and 30 years to life on count 8. The court ordered the two determinate terms to be served consecutively before commencement of the indeterminate term, resulting in a sentence of 58 years to life. The court stayed the four one-year prior conviction enhancements alleged under section 667.5, subdivision (b).

II. DISCUSSION

Defendant challenges several of the jury instructions and contends there was insufficient evidence that the prior strike conviction alleged as a sentence enhancement actually predated the acts of sexual misconduct for which he was convicted.²

A. Definition of "Fear"

Defendant first contends that the trial court erred in defining "fear" for purposes of sections 269 and 288a in response to the jury's note.

Section 288a, subdivision (c), which is incorporated in section 269, subdivision (a)(4), defines forcible oral copulation as oral copulation accomplished against the victim's will "by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." As discussed above, when the jury requested a "legal definition" of "force, violence, duress, menace, or fear of immediate and unlawful bodily injury to anyone," the trial court read a portion of CALCRIM No. 1015, which contains definitions of the terms "accomplished by force," "duress," "retribution," "menace," and "accomplished by fear." The definition of "accomplished by fear" reads, "[a]n act is accomplished by fear if the other person is actually and reasonably afraid or is actually but unreasonably afraid and the defendant knows of the fear and takes advantage of it."

In defining the phrase "accomplished by fear," CALCRIM No. 1015 does not repeat the statutory requirement that, under section 288a, the victim's fear must be of "immediate and unlawful bodily injury on the victim or another person." Defendant contends the supplemental instruction therefore permitted the jury to find defendant guilty if the oral copulation was accomplished by means of fear of something other than the bodily injury required by sections 269 and 288a.

Because the supplemental instruction was not a definition of the entire phrase "accomplished . . . by means of . . . fear of immediate and unlawful bodily injury on the victim or another person," but only the first portion of that phrase, "accomplished by fear," there was no error in its failure to mention bodily injury. The supplemental instruction, in stating that "[a]n act is accomplished by fear if the other person is actually and reasonably afraid or is actually but unreasonably afraid and the defendant knows of the fear and takes advantage of it," did not purport to be a comprehensive statement of the elements of forcible oral copulation by fear. Rather, it purported to define only the first portion of the "fear" element: "accomplished . . . by . . . fear." The supplemental instruction did not refer to, and was not required to refer to, bodily injury because the instruction did not purport to include that portion of the statutory element. Accordingly, the instruction did not incorrectly define the crime of forcible oral copulation. Further, there was no error in the court's decision not to include a definition of "immediate and unlawful bodily injury on the victim or another person" because that phrase is not intended to be interpreted in a manner different from its commonly understood meaning. (See People v. Griffin (2004) 33 Cal.4th 1015, 1022-1023.)

Defendant must therefore contend that the jury would have concluded that the supplemental instruction was intended to delete the statutory requirement of fear of immediate bodily injury merely because the instruction did not mention it. There is no basis for such a conclusion. In defining only a portion of the statutory phrase, the court did not suggest that the remainder of the phrase was to be disregarded. Rather, the jury would have understood that the definition provided by the court referred only to the portion of the phrase actually defined, leaving the remainder of the phrase intact. There can be no doubt the jury was aware of the remainder of the phrase, since it included that portion in the note requesting further instructions. Taken as a whole, therefore, the instructions provided by the court properly informed the jury that it was required to find fear of immediate bodily injury.

B. Definition of "Force"

Defendant contends that the trial court erred in defining "force" for purposes of sections 269 and 288a.

Defendant's argument is based on People v. Cicero (1984) 157 Cal.App.3d 465 (Cicero), which addressed the definition of "force" as used in section 288. Subdivision (a) of section 288 prohibits "any lewd or lascivious act" upon a child under the age of 14. Subdivision (b) separately prohibits the commission of "an...