People v. Jeff

Dist., Aug. F008620. Fifth 1988.] [No. PEOPLE, Respondent,

THE Plaintiff and JEFF, Appellant. DARRELL WILFRED Defendant and Counsel Zall, Defender, R.

Harvey State Public under Court appointment Knox, Defender, Monica Appeal, Acting State Public and Thomas L. Carroll, Defender, Deputy State Public for Defendant and Appellant. General, White,

John Van Attorney K. de Kamp, Steve Chief Assistant General, Attorney Besemer, Janet G. Bangle Cynthia and G. Deputy General, Attorneys for Plaintiff and Respondent.

Opinion MARTIN, 20, 1986, Acting P. J. County On October the Madera District Attorney filed an in information court superior charging defendant as fol I, II, III, XII, XIII, XIV, XXIII, lows: counts XXIV and XXV—rape Code, 261, V, XV, XVII, IV, VI, XVI, XXVI, (Pen. subd. (2));1counts § 286, VII, VIII, XVIII, XXVII and XXVIII—sodomy (§ (c)); subd. counts XIX, 288a, IX, XXIX and XXX—oral counts copulation (§ (c)); subd. and X, XX, XI, XXI, XXII, XXXI, XXXII and XXXIII—lewd and lascivious 288, conduct with a child 14 (§ attorney under subd. The district age (a)). alleged

further in the engaged commission of the defendant offenses 1203.066, substantial sexual position conduct subd. (§ (a)(8)), occupied statutory All references are to the Penal Code unless otherwise indicated. 1203.066, abuse upon committed carnal and (§ (a)(9)), subd. trust special age (§ 645). female under all trial, guilty on verdicts finding

After returned sentencing to be true. At the allegations finding special counts him to 27 and sentenced denied defendant hearing, probation the trial court years on term of three The court the lower imposed state years prison. I, III, XIII, XIV, XXIII, each II, XII, XXIV XXV with (rape), counts The imposed to the other counts. court fully count to be consecutive VIII, XVI, XVII, V, VI, VII, XV, IV, six on counts years middle term of XXVIII, XVIII, XIX, XXVI, XXVII, oral XXIX XXX (sodomy The to the terms imposed. each to be concurrent other count copulation), X, XI, XX, IX, counts years middle term six court also imposed XXI, XXII, XXXI, conduct), and lascivious (lewd XXXII and XXXIII to section 654. stayed each count pursuant sentence on timely filed a notice of appeal.

Defendant

Facts Fork, Califor- adjacent Gene and Morana C. owned two homes North Sadie, June, Defendant was daughters, had three and Karen. nia. C.’s their teenage married Sadie. and Morana lived one house with Gene in the through June. From 1977 Sadie and defendant lived daughter, trial, At the defendant’s other house with their three children. time ten, old, years eight children nine and respectively. were 11, 1975, daughter, Karen married birth to a July gave Gypsy. and on until lived with her Gene and Mora- grandparents, From 1976 years, bring na. those the and her Gypsy up defendant raise During helped like one of his own children. 1981,

In Karen married Karl O. took to live with them in Gypsy Madera. her Fork in later Gypsy periodically grandparents visited North years again. but never lived with them teenage

Sometime between 1983 and 1985 told her mother and Gypsy O., Sandra stepsister, According Gypsy, defendant had molested her. during she informed Sandra of the molestations the summer of 1984 while two her of them were at house in North Fork. said grandparents’ Gypsy done, just she did tell defendant had he had been everything not Sandra that hurting her.

Sandra said told her of the molestations sometime in December Gypsy at year 1983.2Sandra because told Sandra Gypsy was able pinpoint their home on San Carlos Avenue Madera. Sandra moved to that parents’ home 1983 but had during summer of parents Gypsy away longer living moved summer and was no with the following family. told mother of the molestations at Sandra’s Karen

Gypsy urging. However, reaction, Gypsy nothing. disbelieved did her initial despite Karen her mother approached Gypsy sometime 1985 and told her had accused defendant of molestation. Morana did believe the report. 1985,

At the C. family end the entire spent Christmas Madera with Gene, Morana, Karl and Karen. defendant and all Sadie said acted Gypsy normally day. She did not exhibit fear of or the defendant seem de- pressed otherwise unsettled. 1986,

During summer of began Nancy counselor Le- seeing Blank. told LeBlank had defendant molested her. At about the same she time told again her mother the defendant had molested her.

In June Karen told again her mother that Gypsy accusing conversation, defendant molestation. Prompted by that Morana wrote Sadie a letter. Morana stated both Karen and were Gypsy’s psychiatrist accusing defendant of “molesting” his own daughters “messing around” with Gypsy.

Sadie received Friday, the letter on June 1986. When defendant ar- work, rived home from she showed the letter to him. Defendant testified he However, was shocked when he read letter. only he his focused atten- tion on portion of the letter him accusing of molesting his own daugh- ters. Defendant testified there a significant difference to him between acts, around,” which “molesting,” suggested sexual and “messing which result, just meant kidding around. As a little attention to the paid allegations regarding Gypsy.

Immediately letter, after reading the defendant told Sadie to ask their children if he had done to them. anything they Sadie asked the children and denied any such thing had happened. Defendant left angrily the house and drove to the mountains to confront Karl and about Karen the allegations. house,

As Karl, Karen, children, defendant neared O. he saw and their Gypsy However, 2Sandra first testified told in the her summer of 1983. a few moments lat she Gypsy er testified told her about the molestations December 1983.

316 Defendant Fork Mini Mart. in front of the Bass including Gypsy, parked came car and over Karl out of his got next to them. over and pulled parked to talk. why defendant, him Karen he Karl and asked confronted

According daughters. his molesting him of own accusing were psychiatrist and Gypsy’s nor accusations nor mentioned Gypsy neither he Karl Defendant said concerned about at time he was not even her. said about Defendant his own Rather, daugh- the accusations about his sole concern was Gypsy. although 10 minutes and conversation lasted about ters. Defendant said the he of times He said Karl told him a number crying. he he was not angry was However, statement. a similar jail. making defendant denied belonged something have said about Karl he should telling Defendant álso denied years before. misconduct Karl, approached. to be when he

According crying defendant appeared he he done and should sorry Gypsy he was for what had Defendant said he years earlier. Karl told defendant have the situation five told Karl about Karl said “maybe jail belonged.” said is where he needed but defendant help go counseling. how he would have to long defendant also wondered but did stepfather talking testified she saw defendant her Gypsy had “bad on his face hear conversation. She said her a look” stepfather their was crying. it appeared confrontation, In the mini mart counselor July a few weeks after to talk to a sheriff about her Nancy arranged LeBlank for Gypsy deputy result, variety a defendant was with a sexual allegations. charged As offenses. years old and in the sixth testified at trial that she was enrolled

Gypsy with her spent through living She the summers from 1982 grade. babysat North defendant sometimes Fork.3 testified grandparents Gypsy summers, usually grandmother running her when her during those occasions, his errand. On those defendant also took care of three some children, year younger of whom than Gypsy. oldest testimony by her trial an act of sexual inter- began describing

Gypsy occurred the summer of 1984 she was allegedly during course which when years day old. testified at her house the eight grandmother’s one defendant was her and her cousins. Defendant came into the babysitting Morana, aunts, Sadie, uncle, Gypsy’s her June grandparents, Gene and and her defendant, They North were intermittent. said testified visits to Fork visited only occasionally only day grandparents during those for at a summers then two mostly time. The visits occurred on weekends. go house and told her cousins to out and He then told take play. Gypsy off her clothes and the room. did get living onto bed in Gypsy clothes, her, defendant told her. then off his on got top Defendant took his in her and moved it hurt put penis vagina up Gypsy it down. said when defendant inserted his said it when had Gypsy hurt defendant penis. always

intercourse with her but she never told him it hurt. She said she did However, what defendant told her to because she was afraid to refuse. do said she did not she feared. She never Gypsy know what said defendant told her to tell anyone, say nor did he ever he hurt her if she did. would also described another incident which occurred

Gypsy allegedly during day the summer of 1984. She one her said defendant took and her cousins creek, nearby at a swimming creek. While were at they defendant left his own children the swimming Gypsy sandy hole and took to a place some behind rocks. large Defendant and were about 16 from the Gypsy feet children, other who were on the other side of the playing rocks. Defendant told Gypsy to take off her clothes and lie down. did as she told. Gypsy her, Defendant took off his pants, his in her got top placed penis she vagina. Gypsy said with defendant’s directions at the complied creek she because was afraid he do something to her or her if might she parents refused. incidents,

In addition to these two said defendant had Gypsy intercourse “a her lot” during summer 1984. She did not state the specific number of acts did say but intercourse occurred more than three times. said

Gypsy creek, with the exception at the single incident acts always took on the room at place bed her house. living grandmother’s On occasion, each be babysitting would and would tell other children to go out and play. incidents,

In addition to the 1984 said defendant had Gypsy intercourse with her more than three times 1983 and more three than times 1982. said all the

Gypsy acts occurred on the room at living bed her grandmoth- er’s house while her cousins were playing outside. testified first act defendant’s of sexual misconduct occurred in the

summer 1981 when she five or years six old and between kindergar- ten first She grade. grandmother’s said defendant sent inside stay house and told her cousins to outside. then closed and Defendant locked the door. He told her to take off her to lie on bed in clothes and living room. Gypsy did as she was told and defendant stuck penis his her anus. she obeyed said defendant because she was scared. How- ever, defendant did not her in way. Gypsy threaten did not know whether defendant looked mean or anything. intercourse, she noticed blood after least four occasions said on at

Gypsy be would She said there went to the bathroom. in her when she panties spots small, half the always about they were spots three or four such about in the such spots she first noticed said fingernail. Gypsy of her little size 1982, Gypsy her vagina. in penis had his placed after defendant summer usually did in her because she panties the blood spots no one ever saw said laundry. her own on a number his in her anus penis placed defendant

According Gypsy, he his placed penis other than when said he did so at times occasions. She at on room bed living also occurred said those acts vagina. Gypsy in her in her penis it Jeff his placed She said hurt when grandmother’s house. 1984, lot,” in more than three three times anus he did it “a more than 1983, 1982. times in in and more than three times addition, She his in her mouth. defendant placed penis In testified Gypsy at her grandmother’s room bed living acts also occurred said those he her to in her mouth told his placed penis She said when defendant house. it doing about unhappy it She said she was suck on as if it were popsicle. many times she did not know how afraid to refuse. testified Gypsy but was However, it once he did more than in her mouth. penis defendant his placed 1984, 1983, once in 1982. said Gypsy and more than more than once any or of the incidents during defendant’s those penis came out of nothing acts defendant. other sexual with August between June and said all of the incidents happened

Gypsy exactly the various not recall when 1983 and but she could also testified Gypsy those summers. during respective incidents occurred candy if she did what he give her sometimes told her he would not to the incidents but did candy give He her the after the asked. gave candy 1982. time he offered her children. She said the first other why not she candy, complied that was Although Gypsy received directions. defendant’s cross-examination, did not used Vaseline but said defendant Gypsy

On never mentioned times. She admitted she many remember when how trial. testifying at anyone prior use lubricants to hatred when her but did know said she hated defendant Karl, fistfight had a and defendant once She knew her developed. stepfather, admitted, however, that event. She began her hatred before but she insisted about defendant’s her mother before she first told occurred fight misconduct. trial, her in grandfather

At also accused her molested having 1981, initially grandfa- first said her kindergarten grade. between and She then it said the only ther molested her once she said he did twice. She and incident one after Her his day grandfather placed first occurred school. in her one rubbing.

hand started The second incident occurred panties her morning when she was bed with grandparents. Gypsy’s grandmother fix grandfa- out of bed breakfast and in bed with got Gypsy stayed her ther. She was there her started her. just lying grandfather rubbing when told her Gypsy about the incidents in the summer of 1986. parents Gypsy’s Gene, grandfather, only just denied the accusations at trial and said he had learned of them. O.,

Gypsy’s Sandra testified in 1983 told her defendant stepsister, Gypsy Sandra, engaged had in sexual with her. According intercourse Gypsy the said acts occurred at her grandmother’s house at the creek. Sandra testified she Gypsy said had been molested at the creek several times. Gypsy never told how many Sandra times she was that it altogether, just molested happened several times. told Sandra the molestations Gypsy occurred most- ly during the summer time years between the she four and eight old. Voris, M.D.,

Dr. 10, Joan examined Gypsy on November 1986. She small, found Gypsy’s hymen was intact but contained two well-healed scars. first scar could be seen human eye the and was located one side on hymen.

the only The other scar be by using could seen the on higher power the doctor’s The second scar at colposcope.4 was located the bottom of the hymen and was approximately one millimeter wide and two millimeters long. Dr. Voris testified sexual repeated intercourse the average eight However, year old hymen. would much more the produce damage the doctor also testified young children a sometimes describe penis having gone inside them when in fact the has penis only penetrated lips of the The scarring hymen labia. on minimal Gypsy’s consistent such penetration but not with full vagina. of the penetration labia,

Dr. Voris also examined the area where hymen joins called the posterior fourchette. Dr. explained repeated Voris when unsuccessful have made attempts been to insert often penis vagina, into penis fourchette, oif slides and rubs across the leaving scars in area. posterior The doctor said if there had been labia repeated penetration Gypsy’s lips hymen, without actual of the she penetration expect scarring would such Gypsy’s Dr. found posterior Although scarring, fourchette. Voris no such she testified the use of a lubricant could prevent damage posterior to the 4A colposcope vagina is an instrument inserted into examination of the tissues of for vagina (Dorland’s magnifying and cervix means aof lens. Illustrated Medical Dict. (26th 1981) 291.) p. ed. it found rectal area and Finally, Gypsy’s Dr. Voris examined

fourchette. scars, lacerations or other indications sexual There were no normal. abuse. Holland, molested clinical worker who works with a licensed social

Susan children, On November Holland objection. defense testified over attorney. Holland interviewed at the district request They and a half. discussed together Gypsy’s talked for about an hour molestations, herself, feelings alleged about about feelings to the reactions court proceedings. her. of incidents to

Holland described some the molestation Gypsy said times, she when particularly Holland also said was tearful several Gypsy Hol- According to her disclosure. to grandmother’s described her reaction land, grandmother she felt her did believe angry was because Gypsy when talked about the anger her. time she only Gypsy expressed from her negative feelings got grandmother. she several night- also tearful when she described Gypsy Holland said she dreamed defend- nightmare, the incidents. In one mares she had about away. to In the other she nightmare, ant her and she tried run kidnapped the dreams trying defendant was to kill her. told Holland Gypsy dreamed dis- them so often after she although having were recurrent she stopped feelings the molestations. also Gypsy expressed depression closed her and her uncle. when she about what between thought happened sadness defendant told her to the incidents keep Holland asked whether Gypsy no, something stepfa- said but she feared would Gypsy happen secret. she feared During if she told. the molestation incidents ther mother to her and mother. something would happen stepfather the inter- Finally, good during Holland testified self-esteem was Gypsy’s fairly view seemed to the incidents. adjusted and she well who in sexual assault Mary Meyers, psychologist specializes a clinical cases, Holland, Ac- over defense immediately objection. testified after also why young victims fail Meyers, there are number of reasons cording be or else will they of molestation. The victims fear someone disclose acts believed, they for they hurt will not be or will be blamed perpetrator, always does not have Meyers done bad. said the abuser having something they will victims. Children sense or someone else simply threaten young Meyers testified children doing molesting. be hurt also person over a long period molestation when it occurs simply repeatedly accept time.

Meyers have nightmares said research indicates most child victims they are hurt or She added it is unusual for actual perpe- which killed. Meyers

trator to be in such dreams. said can relieve counseling symptoms molestation; recovery the literature one is subject suggests aspect on Meyers recovery based on the child and believed. said feeling accepted more than on the number of incidents depends dealing situation or of time over She it is length which molestations occurred. also said not unusual for child to hate the cases. molestation perpetrator

Defense Defendant testified on own molesting his behalf denied Gypsy telling her he had molested her. Defendant said was a stepfather happy-go-lucky child never He who had been afraid of him. never noticed after looking unhappy, not even she moved to Madera. He could not think of why reason she would make such accusations he up because had never mistreated her. Defendant care admitted but taking 1981, 1982, 1983, said he her was never alone with during summers of wife, June, or 1984. He said one or more the other her adults—his sister and the always With grandparents—were candy, around. defend respect ant said he often it home for all of the brought children—his own and Gypsy.

Defendant he said had taken his Gypsy and own children to the swim- ming hole but Gypsy described denied her. He molesting pointed out six, 1984 two of children his were under age deep water was too for them, and they did not how know to swim. said he stay Defendant had to and watch they his children the entire time were at the creek. Defendant admitted there was at the large swimming rock hole and two could people lie behind it without visible to being on the other side. people

Karl O. he testified and defendant together worked Karl’s cement finishing years business. Defendant worked for Karl for had many they been at best friends one time. he Defendant said and Karl had into a gotten earlier, some fight years 1983. He around said was minor but had fight left some “bad blood” them. between wife, Sadie,

Defendant’s said husband never took care of Gypsy. Defendant never went to the C.’s home with Sadie. except

Rhonda, 10-year-old defendant’s babysat said her father daughter, Gyp- sy. She said he once took and the other to the Gypsy swimming children hole but she denied he Gypsy away took from the told others. Defendant angry That made Rhonda jail. him trying put Gypsy

the children go. him to she did not want she said mother-in-law, C., tes- and defendant’s grandmother Gypsy’s Morana or 1983. during home the summers did not visit her Gypsy tified alone but he was never for and his children Gypsy She cared said defendant When Gypsy’s believe accusations. Gypsy’s them. Morana did not Karen, mother, had raped Morana she been 16 or 17 she told accusations of moles- did not believe the Counsel Morana stipulated uncle. tation. C., Gypsy testified Gypsy’s grandfather, husband and

Gene Morana’s 1981. He said defendant treated his home “a few times” after visited C., the families to Gene According he his own children. the same as treated She attended. at the C.’s home for Christmas gathered time. men at that did not act fearful around

Discussion I. Rape Fear Be Reversed the Nine Counts

Should Made to the Evidence of Threats Because There Was No Victim? evidence convict him there was insufficient

Defendant contends of threats made to because there was no evidence rape of the nine counts the victim. filed, 261 stated relevant part: section

At the time the information a not the with person is an act of sexual intercourse accomplished “Rape any circumstances: following of the under spouse perpetrator, means of force or by a will accomplished against person’s Where it is “(2) or anoth- on the bodily injury person fear of immediate and unlawful er. >> III, XII, XIII, XIV, XXIII, XXIV, XXV, I, II, the district

In counts with as follows: attorney charged rape JEFF, did, County ... in the . . DARRELL WILFRED “. That FELONY, Madera, California, Sec- namely, violation of commit State of California, 261(2) tion of the Penal of the Code State of that the said defendant(s) willfully unlawfully did have and an act of accomplish wit, sexual intercourse awith not his person, [Gypsy], spouse, against by said will person’s means of force and fear of immediate and unlawful Thus, bodily injury on said and another.” person the information charged defendant with the commission of “force or fear.” The clerk of the rape court read the charges at the of trial. beginning

The prosecution did not elicit evidence of during force trial and the trial court struck all references to force when it its prepared instructions to the jury. When the trial court addressed the jury on the elements of it rape, limited its instructions to the element of fear:

“Defendant is charged with rape, violation of Section of the 261(2) Penal Code.

“The crime of charged against defendant in this case is an also act of sexual intercourse with a person who is not the of the spouse perpe- trator, accomplished such against person’s bywill means of fear of immedi- ate and bodily unlawful injury such or to the mother person and father.

“In order to prove commission of the crime of each of the rape, following elements must be proved: 1) That the defendant in an act engaged of sexual intercourse a person, 2) That such other person was not the of the spouse 3) That the act of perpetrator, intercourse was against the will of such other person, 4) That such act was accomplished means of fear of immediate and unlawful bodily injury to such or to the person mother and father.”

Defendant contends on . . . appeal: said that the first time Jeff “Gypsy ever did anything to her was in (Jeff 1981. was not charged with acts to have alleged occurred in She 1981.) said that she did what Jeff her on told that first occasion because she was afraid not to. But she said that Jeff had not threatened her in . . any way. . When asked whether Jeff specifically occasion, had looked mean or on that anything she that she did not replied . . . know.

“Thus, fear, despite Gypsy’s testimony that she submitted out of no kind, evidence was elicited that a any threat of let alone a threat of immedi- harm, bodily ate was ever made. Nor testify did that anything ever said or done might induce a fear of bodily immediate and unlawful injury. Finally, there conveyed by is no evidence that ever Gyspy word or deed her fear that she be harmed if might she did not submit to the of acts intercourse. Given such a absence total of evidence ‘the could not jury

324 of by a means rape committed reasonably [appellant] have concluded that 190 Young v. bodily [(1987)] injury.’ (People fear immediate and unlawful of 248, 361].)” 259 Cal.Rptr. Cal.App.3d [235 reviewing a challenged, evidence is sufficiency

When the the most favorable to light record in the court must examine the entire it evidence from which contains substantial to determine whether judgment Substantial beyond reasonable doubt. guilty find defendant could A judgment of an offense. must each essential element support evidence insufficiency of the evidence to support not be set aside for conviction will it there is no basis which jury’s clearly verdict unless is shown credibility witnesses jury. of the The evidence can conclusion support are matters to be to be accorded the evidence determined weight and the 557, 26 Cal.3d 576-577 by (1980) the trier of fact. v. Johnson (People [162 431, 738, v. Redmond 1255]; 606 P.2d 16 A.L.R.4th People Cal.Rptr. 529, 745, v. 321]; 457 P.2d People 71 Cal.2d 755 (1969) Cal.Rptr. [79 738, 467, 267], 523 P.2d Cal.Rptr. Thornton 11 Cal.3d 754 (1974) [114 668, 25 (1979) v. Flannel Cal.3d People on other grounds disapproved 84, Code, 684, 1]; 312.) Evid. fn. 12 603 P.2d Cal.Rptr. § [160 1980, 261, 2 3 former section subdivisions Until its amendment where act sexual intercourse under circumstances “ defined an ” resists, is force or violence’ but where ‘resistance overcome person “ threats of and imme resisting by great ‘a is from prevented where person harm, . .’” . . of execution bodily accompanied by power diate apparent 284, 228, 721 P.2d Cal.Rptr. v. 292 (1986) Barnes Cal.3d (People [228 261, makes criminal (2) As section subdivision 110].) amended not the of the with accomplished person spouse act of sexual intercourse by means of against it will person’s where is perpetrator accomplished victim or bodily on the injury force or fear of immediate and unlawful to the relating deletes earlier provisions another. amended section force, violence or threats. (People element of resistance connected with Only in 750].) Cal.Rptr. Montero (1986) [229 factor, applies is “threat” a and then it subdivision section of retaliation in the future. threats clearly Legislature the resistance

By eliminating requirement, No rape. of force in regard with the use change prior intended to law it not element. In this is regard respect, such intent to the fear appears accomplished intercourse was for the to show sexual enough prosecution is a further require victim means of fear. There against the will of the However, bodily injury.” and unlawful ment the victim fear “immediate “ takes knowingly ‘if accused may fear suffice even an unreasonable ” (People to intercourse.’ fear in order sexual advantage accomplish of that 325 Barnes, 248, 259, Young, v. v. quoting People supra, 190 supra, Cal.App.3d may by causing at fn. also be committed acts 20.) Rape Cal.3d p. harm no only bodily longer fear of immediate to the victim or another and two mean generally threats of imminent harm. Fear has common requires alarm caused ings: (1) feeling disquiet expectation danger, or disaster, like; terror; dread; extreme pain, (2) or apprehension Montero, awe, supra, reverence toward a supreme power. (People 415, 424-425, Heritage American Dict. Cal.App.3d citing p. 480.)

Defendant v. Young, contends this court’s decision People supra, 190 248 compels Young, reversal here. In defendant was convicted by jury of lewd and with lascivious conduct a child under oral age with a copulation age years child under and more than 10 younger than defendant, and forcible (§261, (2)). subd. The further found the rape defendant substantial sexual engaged conduct while occupying special position carnally trust and abused a 10. age female under The victim in brother, Young lived Madera with her her her younger stepsister, step- mother, father, 26-year-old and her the defendant. Defendant was home alone with the children at the house while the work. was at The stepmother defendant called the victim into his bedroom and told her to come to the bed get on it. He then her told under get the covers. He put him, down, victim top her pulled pants her and had slide down his “private place” which she felt as she down. slid Defendant touched her his vagina with he finger finger his When his into her penis. put vagina it hurt. When he his into put vagina it did not feel penis good. The victim testified it “felt like kinda” water and when defendant stopped, the victim went to the wipe bathroom to herself off. The victim not did want defendant to his place but not penis vagina she did tell him because she was “too scared.” victim was afraid of the defendant and afraid he would do to her something touching such as her on her private again. place However, say defendant did anything to the victim made her sufficiency afraid. Defendant challenged the of the evidence to support his conviction of and this court reversed of conviction on judgment that count.

We held the victim’s provided substantial evidence show an act of sexual force accomplished intercourse means of evidence, against her will. Under the the jury could conclude the properly victim had capacity to exercise free will and had knowledge of the nature of the act. This was true since she had a especially prior experience sexual her cousin. The jury could find the properly also act sexual intercourse against the victim’s will since she did not want do it and the evidence did not otherwise establish positive Finally, in act or attitude. cooperation penetration both the by defendant in

some force was used the act. victim in accomplishing of the positioning movement and physical However, evidence that there was no substantial we further concluded fear of means of by of intercourse the act sexual accomplished defendant evidence of a threat or There was no bodily injury. immediate and unlawful Moreover, defendant did a bodily of harm such as spanking. threat prior and unlawful fear of immediate that could induce say anything not do or to indicate ever state or otherwise bodily Nor did the victim injury. Therefore, could not injury. jury scared of defendant she was such of fear of by a means rape committed reasonably have concluded defendant We defendant’s conviction bodily injury. reversed and unlawful immediate certainty which theo- any degree to of because we were unable state defendant to find the may have used ry—either jury force or fear—the of guilty rape. conviction, our earlier distinguished opin- we Young’s

In reversing rape 153, 168-169 Cal.Rptr. ion in v. Jones People [202 Jones, threat by counts of multiple rape In defendant was convicted 162], female had four lived with a woman who bodily injury. of Defendant great their friends. children and one of victims three of these children. The were any respect threats with specific no evidence defendant made There was of by great threat rape he was convicted of those counts for which However, in a he had engaged there was evidence bodily harm. immediate of nine victims over a period conduct with the exploitative sexual pattern time, by slapping punished spanking he had them years. During that majority The majority in a opinion. We the convictions them. affirmed the rape conviction on defendant’s support found substantial evidence The to force or threats. relating counts the absence of despite evidence was from may be inferred conduct. court held threat young the victims’ light in Jones in the convictions sufficient to support years, of nine for a authority held ages, position period resistance, fear of and conditioned embedded deeply the uselessness of which retribution, authority parent of the natural submission of defendant’s vulnerability, perception victims’ and their contributed to the they if bodily harm great immediate and implied conduct an threat of as case, or a of a threat there was no evidence Unlike the Jones were to resist. Moreover, Young Young. bodily harm such a spanking threat prior and unlaw- fear of immediate that could induce say anything did not do or otherwise state or Young ever bodily injury. ful Nor did the victim Therefore, as injury. previ- she was scared such indicate the defendant stated, defendant com- reasonably have concluded ously could bodily injury. and unlawful means of immediate mitted case, In the instant testified defendant committed numerous Gypsy intercourse, sodomy with her copulation, during acts of sexual oral and years when Nine eight summers of 1983 and 1984 she was six old. With testimony.

counts of were based this of one rape upon exception creek, act of intercourse which took at the testified allegedly place Gypsy during the acts all at her house at various times grandparents’ occurred three defendant Gypsy watching summers. said the acts occurred while her when the other adults in the household were absent. counts,

As to the testified defendant would tell other rape children He outside. would then take her inside the house present play and tell take her to off her on the bed in the room. get living clothes undress, her, After complied, she defendant would on his top put get penis vagina her and move it up Although down. it hurt when her, defendant his placed penis inside she never told him so. she always testified did what the told her defendant to do because

she was scared. She said she was afraid or might defendant hurt her do However, to her if something parents she did not she had no idea comply.

what he do. She might said defendant never her anyone told not to tell about the incidents and the defendant never said he would hurt if she her told anyone. testimony

Gypsy’s about the creek incident was similar to her about the incidents at the She they house. said when were at her the creek uncle took her behind a big rock told her undress He and lie down.

then of her got his top placed penis vagina. her she did Gypsy said as defendant told her because she was afraid he hurt or her might However, if parents she did not she testified never comply. also threatened to hurt and she parents did not know where she that got idea. said the Gypsy also first time defendant ever did her was anything to in 1981. She she said with defendant she complied on that occasion because However, was afraid to. not she said not her in defendant had threatened any way. When whether specifically asked defendant had looked mean occasion, on that anything she she not know. replied did The People acknowledge this evidence is insufficient to a convic- support tion of threat in Young: “It this rape light opinion appears child, Court requires express statements harm or menace to the or evi- of, to, dence that the child victim the victim or the witness one or more acts of violence committed it by the molester before will sustain theory.

conviction on this While evi- respondent concedes there is no case, dence of statements harm or violence in express acts of this essential, why type this of evidence is to demonstrate respondent hopes and, Young.” holding its why this court should reconsider consequently, Jones, 153 to estab- rely on People supra, People in the instant case. of the victim’s fear lish the reasonableness Jones, of by threat counts of multiple rape In defendant was convicted on there was no evidence defendant bodily immediate harm. While great and of the acts of the actual commission made threats at time specific victims, defend- reflected (1) the various the evidence intercourse with they using sexually very young, were ant had assaulted when girls first in accomplishing their resistance overcoming physical force and physical acts, many years during which abuse for and the sexual continued them, them with punish slapping, to intimidate time defendant continued he, defendant, them, it felt whenever using and a “switch” spanking, to do so. appropriate court, Young there was sub majority in its concluded opinion,

This on the counts rape despite Jones’s convictions stantial evidence to support said, We referring to force or threats. relating the absence of may be inferred from the Jones “The court held that threat opinion: conduct, and, together (the young ages, victims’ under all the circumstances years, defendant for a of nine authority by period held position with resistance, fear of embedded and conditioned the uselessness the deeply retribution, authority of the to the and the natural submission punishment vulnerability, perception and their contributed to the victims’ parent which bodily and great as an threat of immediate implied of defendant’s conduct sufficient to resist), support if the evidence was they harm were to Jones, 153, 172-173, 174, v. (People supra, Cal.App.3d convictions. 248, 257.) 177.)” Young, supra, (People Here, the Young distinguishable are from Jones. Both instant case the acts of inter- only that defendant argued accomplished prosecution injury fear of immediate unlawful by means of Gypsy course stricken All references to “force” were or to her and stepfather. her mother evidence, jury. Upon from the instructions read to the by the trial court were of sexual intercourse reasonably could conclude that the acts jury things the defendant to do these she did not want will since against Gypsy’s and, by defendant in the penetra- force was used Young, some and, it at least in the beginning, involved tion and movement physical her. painful for here,

However, there is no substantial Young, as in we must conclude by intercourse the acts of sexual accomplished evidence defendant bodily means fear of immediate and The defendant was injury. unlawful uncle, not her father or did not live with defend- Gypsy’s stepfather. Gypsy certainly ant and he did not exercise the dominion and control over her and in Young. acts conduct as was the case in Jones and Defendant her, i.e., her, never threatened never Gypsy, punished slapped spanked he never told would hurt her if she did not with his sexual Gypsy comply and never demands told her not to tell. While said she was afraid to Gypsy demands, know, refuse these sexual she did not or at least could Jones, articulate, And, what it feared. unlike was she there was no history of acts and conduct defendant toward such as slapping, sum, spanking, other to dominate and control her. In punishments, there is no evidence in this record simply from which the could have reasonably concluded that defendant committed any course,

means of fear of bodily immediate and unlawful injury. Of this does conduct, not mean by defendant’s as described Gypsy, was lawful or to be

condoned and go unpunished. Such conduct does constitute a violation of 288, section (a), subdivision lewd and lascivious conduct with a child under 14, However, age whether by force or fear or not. accomplished such con- 261, duct is not as defined in section (2) subdivision and interpreted Thus, by construed this district. appellate defendant’s convictions of I, II, III, XII, XIII, XIV, XXIII, rape on counts XXIV and XXV must be reversed. We must further note further on the proceedings rape counts are barred the double clause. v. jeopardy (1980) Green 27 Cal.3d (People 1, 1, 62 609 P.2d Cal.Rptr. 468].) [164

II. Erroneously Did the Trial Court Permit Introduction of

Gypsy’s Postmolestation Behavior and Statements to Prove Alleged Actually the Molestations Occurred? Defendant next the trial erroneously contends court the permitted prosecution to introduce the victim’s postmolestation behavior and state ments to prove the alleged actually molestations occurred. He argues the testimony of two expert witnesses describing and emo explaining Gypsy’s tional state after the alleged molestations was for the improper following (1) reasons: the evidence was offered to the molestations in fact prove occurred; (2) evidence introducing of Gypsy’s postmolestation behavior statements, the prosecution unnecessarily relied on an expert witness herself, when a nonexpert, Gypsy testimony; could have the same provided (3) most of the testimony regarding behavior and Gypsy’s postmolestation statements hearsay; (4) the improper evidence offered to explain significance of Gypsy’s postmolestation mostly statements and behavior was irrelevant but nevertheless lent the case an unwarranted aura of prosecution

330 avoid sought authenticity; (5) prosecution improperly scientific rely of the an witness on the facts having expert against proscription two one to the facts of this by using experts, present case trauma explain of those facts. significance case and the explain second of evidence based Kelly-Frye admissibility test5 conditions the The has of on a showing technique on new scientific method proof it community in the which been as reliable scientific generally accepted 243, 18, 34 Shirley Cal.Rptr. v. 31 Cal.3d (1982) developed. (People [181 1400, 13].) 458 103 S.Ct. 775], 641 P.2d cert. den. U.S. 1125 L.Ed.2d [73 method and reliability proper qua must establish proponent v. Roehler 167 testifying (1985) lifications of the witness. (People 353, cert. 474 U.S. 1021 353], 388 den. Cal.Rptr. Cal.App.3d [88 [213 represent A witness is insufficient to 571].) single L.Ed.2d S.Ct. technique. reliability community views an scientific regarding entire 24, 37.) v. Those are not Kelly, techniques 17 Cal.3d (Pe ople supra, also necessarily evidence but include manipulation physical limited evidence. The purely psychological new processes operating scientific unpro standard is to from misled being purpose prevent Shirley, v. ultimately (People supra, ven and unsound scientific methods. 18, 53; Gray 218-219 Cal.3d People [231 658].) Cal.Rptr. 919], the

In v. Jackson 18 504 People (1971) Cal.App.3d Cal.Rptr. [95 testi- the use of medical Appeal expert Fourth District Court of approved indicates a mony syndrome. syndrome the battered child The concerning by accidental injuries child with did not receive them specific types commented are testifying injuries typically means. The doctor these However, for he did ostensibly the child. not caring inflicted someone to for the any opinion might particular as who have been give responsible admissible, In the court noted this injuries. ruling syndrome the evidence extensively had and the battered subject been studied medical science medical syndrome diagnosis. child had become an accepted 450, 681 P.2d In v. Bledsoe 36 Cal.3d 236 People (1984) Cal.Rptr. [203 admissibility the of evidence 291], Supreme the California Court addressed A the testifying counselor for concerning syndrome. rape the rape trauma syndrome the as an acute stress reaction trauma described prosecution i.e., syndrome, three of the disorienta- psychological phases explained tion, The concluded the victim reorganization, integration. counselor defendant con- syndrome. suffered from trauma On rape appeal, Bledsoe (D.C. 1923) 145]; 5Frye App.D.C. 34 A.L.R. v. States Cir. 293 Fed. 1013 United [54 Kelly People (1976) Cal.Rptr. 24 549 P.2d v. 17 Cal.3d [130 1240].

331 it because did was inadmissible syndrome of a trauma rape tended evidence methods of scientific reliability for new Kelly-Frye meet the standard error was not prejudi- but concluded the agreed Court Supreme proof. syndrome The court noted the case. strong cial because of the prosecution victim’s the argument to rebut a defense behavior was not introduced Rather, evidence was rape. inconsistent with a claim of behavior was rejected had in fact occurred. The court prove rape introduced child as in the battered that this use was argument proper prosecution’s devised as syndrome trauma syndrome cases. The court found rape tool, whether a determining rape treatment not as a means of a therapeutic trauma Because of the and nature of actually purpose rape occurred. evidence was inadmissible

syndrome, syndrome the court concluded the victim was prove raped. In syndrome has discussed the child molest two cases.

This court 880], v. 1054 People Willoughby (1985) Cal.App.3d Cal.Rptr. [210 testimony court in one sentence concluded of a sexual trauma expert (Id. at In subject p. 1069.) inadmissible on the victim’s truthfulness. 45], v. Roscoe the court (1985) Cal.Rptr.

People [215 v. 36 Cal.3d called 236,] prosecution stated: Bledsoe People “[In [t]he counselor, victim, 14-year-old an had who assisted expert rape syndrome. testimony trauma Such testify that she suffered from crisis rape occurred, had the court although was held inadmissible to prove rape admitted for a ‘may noted that on aftereffects of be expert Bledsoe, at variety 238.) 36 Cal.3d purposes.’ (People supra, p. the victim’s

“Credibility arise whenever the defendant denies questions If, story, or fabrication. in suggesting or misrecollection explicitly implicitly case, every the informed that a doctor had the jury diagnosed such could be case, based the facts in the as a child molest complainant, upon specific victim, (or against victim then the misuse rape whatever), protection testimony by largely erected Bledsoe would be dismantled. psychologists’ events, and “Where the to and expert specific people, personalities refers witness, the credibility his of this then diagnpsis bases his as to on opinion the conclusion that the is credible rests the upon premise witness accurate, The in is and that in fact molestation had occurred. diagnosis the to that the doctor’s being diagnosis, agree effect is asked to believe Such a result would analysis guilty. is correct and that the defendant is in Bledsoe. by rule a Court Supreme subvert sound unanimous adopted follows, therefore, by Bledsoe to testimony It that the authorized expert credibility rehabilitation of a is limited to discussion permit complainant’s 332 class, literature and experience references to

of victims as a supported and not extend to discussion normally upon) as an relies does (such expert 1097-1100, at fns. (Id. in the case at hand.” diagnosis pp. and witness omitted.) 658], defend- Gray (1986) Cal.Rptr.

In People [231 (§ a under the of 14 age ant with lewd conduct child charged upon nine-year-old on charge step- The was based statements his (a)). subd. victim had initial- alleged to to the The stepmother and daughter police. incidents her accounts were ly alleged been reticent to disclose the and such An witness for the testified prosecution somewhat inconsistent. expert abuse victims. young reticence and were child typical inconsistencies Second District Court of Appeal Defendant was convicted affirmed. a a The admitted as means of testimony proving was not expert’s molesta- trauma. The tion had fact occurred from the victim’s alleged postincident anyone not after victim testified she did tell evidence was admitted a ques- to detective’s touching penis except response about defendant’s court, anyone did tell Until the victim testified she not tioning. said, you.” might She told her she have defendant had “It won’t bite mother with her father because she agreed been incorrect about some incidents but inconsistency are delayed reporting his The said anger. expert feared and the defense con- expert not unusual with victims of child molestation In Bledsoe and other cases discussing rape curred that statement. to a syndrome, trauma was used had occxirred. diagnosis prove Thus, syndrome Kelly-Frye trauma made subjecting rape parameters Gray, purport sense. In the evidence was not introduced did Rather, it bona fide molestation had occurred. was admissible as prove rebuttal, literature or as to general experience such as based class, victims, or discuss investigators the reluctance of molest talk the incidents. intimate details of 605], In re M. (1987) Cal.Rptr. In Sara 194 Cal.App.3d [239 County of the Sacramento Juvenile Court adjudged dependent minor was juvenile court custody grandfather. in the her maternal placed Code, & subd. (Welf. (d)) sustained a Inst. dependency petition § lewd and lascivious acts (1) upon minor’s alleging stepfather performed no parent she in the care of her mother and minor had while Among and effective care or control. capable exercising parental proper two hearing psy- at the were jurisdictional numerous witnesses petitioner’s The trial concerning syndrome. testified the child molest chologists who syndrome the but did allow court the witnesses to describe permitted in a had fact occurred. Minor’s moth- testify those witnesses to molestation testimony con- allowing trial erred in prejudicially er contended the court The Third Dis- had molested. the minor been cerning syndrome prove One of the clinical judgment. and reversed the agreed trict Court of Appeal minor as diagnosed testified she had who treated minor psychologists testified disorder. The suffering psychologist from a stress posttraumatic characteristics, includ- child molestation exhibit certain common victims of molestation, denial the molestation consistency the ing recounting molestation, occurred, and a ability to recall the knowledge, unusual sexual clinical over the victim’s life. The second feeling psycholo- of loss of control of the child molest who had treated minor elaborated on gist symptoms witnesses, syndrome. The allowed numerous these juvenile including court testify minor’s behavior and statements to demon- psychologists, about syndrome. the the child molest strate existence of associated with symptoms The jurisdictional Third District concluded the evidence adduced at the hearing Kelly-Frye failed to meet the standard. The testified psychologists syndrome the is neither included in the Manual Diagnostic Statistical of Mental Disorders the (DSM-III) Psychiatric American Association recognized by nor the American Psychological Association or other profes- organizations. syndrome sional The the psychologists being described beginning stages No treatises on the development acceptance. syndrome were introduced into evidence. A syndrome basic defect of the to the apparent reviewing syndrome court. The on developed the children assumption studied were in fact While at molested. no one hearing directly testified concerning syndrome’s the reason for develop- ment, treatment, it to be a tool appeared for much like the therapy trauma syndrome. the same Consequently, problem discussed Bledsoe would seem to be in the present syndrome. case of the child molest In other words, syndrome if the was not a developed as truth-seeking procedure but aid, rather i.e., as a therapeutic it cannot be a used for different purpose, prove a molestation occurred. 4, 1988, January

On court filed a settled superior case, statement on in the appeal instant in relevant stating “On part: 17, 1986, December the trial during of Darrell Wilfred Jeff in Superior Court case number an unreported was held in proceeding chambers.

During proceeding prosecution attorneys and defense sought ruling admissibility testimony of the prosecution two witnesses. Holland, worker, “Those witnesses were Susan clinical licensed social Mary Meyers, Beth a registered The Mr. Paul psychologist. prosecutor, Avent, sought through Ms. Holland’s establish that com- case, victim in the plaining commonly exhibited certain [Gypsy], symptoms found child molest Meyers’ victims. prosecutor sought through Ms. testimony to explain to the the nature commonly symptoms

334 syn- traumatic stress from child molest suffering post children exhibited drome. Gendron, counsel, J. exclude the testimo- sought Mr. Lester

“Defense testimony would be ny prejudi- the that their ground of both witnesses on defendant, testimony would ground cial and on the further that their jury.’ the ‘invade the province v. Bledsoe 36 Cal.3d 236 Cal.Rptr. on

“Relying People (1984) [203 681 Delia S. v. 134 471 (1982) P.2d Torres [184 291] ruled of both witnesses would 787], this Court that Cal.Rptr. be exhibited symptoms complaining admissible respect victim, opinion that witness be allowed to state their but neither would fact, had, a molestation in occurred. regarding whether chambers, renewed defense counsel “Following hearing partially record, be allowed to state asking his motion on the that Ms. Holland not conclusions, testify. While this any Meyers and that Ms. not be allowed to motions, it did that rule on the renewed note specifically court did not neither witness be to state conclusions.”6 would allowed [her] that two opening “pro- advised his statement prosecutor testify: fessional would persons” She will describe has a Master’s Social Work. Degree

“[Susan Holland] case. the examination she made this making for qualifications examination, in this “She will she observed symptoms describe merely She you child. She will not comment on will symptoms. describe that she observed. symptoms any Dr. Susan will Meyers

“Now Holland Dr. not draw conclusions did will regarding something whether or did not Susan Holland happen. show, Meyers, describe the Dr. evidence did symptoms. will not contact the child or see her. will tell Meyers you the child wouldn’t know Dr. what these mean. symptoms

“Any yours. conclusion that is to be drawn will be reason, transcription any part proceedings If a of the oral cannot be obtained for discovered, may appellant, impossibility obtaining transcript as soon as the is serve application permission place. proceed and file an to prepare for a settled statement in its Oral ings may reporter unreported include those that a court did not attend. An discussion that Court, may bearing appeal proceeding (Cal. has no is not an oral be settled. Rules 580, 584-585, 36(b); People rule Cal.Rptr. Gzikowski Cal.3d fn. 2 [186 1145].) P.2d course, Meyers, you Beth indicate to her “Mary particular qual- will (Italics added.) ifications in this case.” particular Holland, worker, clinical was the first expert

Susan licensed social testify. had all the child victims witness to Holland testified she counseled three-year and 25 Counseling seen Fresno Service over Rape period of her devoted to child percent private counseling practice was victims.

Holland examined on one occasion for about one and a half hours. Gypsy interview, times, During the Holland noted was tearful Gypsy par- several ticularly her describing grandmother’s when reaction to her disclosure and when about the describing nightmares incidents. Holland further noted described a which “un- Gypsy feeling depression, thought Holland usual.” Holland believed an feel- gave of her Gypsy adequate description Holland asked if ings. she “had been told to this secret.” Gypsy keep Gyspy said “[no,] but that she feared something would to her dad and happen mother if she told. ...” said,

When the prosecutor asked Ms. Holland relate what Gypsy objected hearsay defense counsel grounds. The stated the prosecution evidence was offered for state-of-mind Gypsy’s and defense counsel with- drew objection. his The court then any advised the jury statements quoting Gypsy were not to be considered true statements but only for the purpose explaining Holland’s opinion.

Holland testified was fearful when Gypsy she described two nightmares of “being kidnapped trying away.” to run said the defendant Gypsy However, in both nightmares. also told her the Gypsy dreams occurred less after she frequently disclosed what had and her happened mother believed her. mother, said she Gypsy felt comfortable with her who was supportive, and felt uncomfortable her grandmother, who disbelieved her. Holland also testified said she had Gypsy the incident reported stepsister mother. Although interviewed, had Gypsy good self-esteem when she also described feelings which led Holland to believe had Gypsy problems with low self-esteem the past. also “articulated” Gypsy anger when talking about her grandmother and her grandmother’s failure to believe her. cross-examination,

On Holland testified described two dreams: one in which the defendant kill tried to her and he one which kidnapped her. She also stated Gypsy did not indicate guilt feelings.

Mary Meyers, Beth a licensed clinical psychologist engaged private practice, testified as the next Meyers witness. did not examine read any reports about her. After an initial objection, defense the prosecu- tion all posed Meyers questions the form of hypotheticals. The first indi- Meyers Dr. molestation. concerned failure

hypothetical report fear immediately for for children not tell cated it is not unusual molested never (3) hurt the hurt; having perpetrator; of someone else (1) being (2) Meyers Dr. testified believed; being for bad. also being blamed being dream they in which nightmares most child victims have research indicates The if it is for the they perpe- are hurt or killed. asked common prosecutor usually dreams are Meyers in the Dr. stated the trator to dreams. appear the is not the adult to hurt the child but actual trying perpetrator about likely if the recovery the She the is more suggests dream. testified literature child, if adults not believe the Meyers child and believed. said do accepted is very or become symptomatic the child will be more fearful and sometimes not for family and hate members. She also testified it is unusual angry other fail to victims to hate the and to molestation perpetrator report child Meyers fear. Dr. the child occurring experi- while it is because of also noted On a of if the molestation is cross-exam- feeling helplessness repeated. ences ination, if the Dr. of Meyers agreed symptoms depression there would be for three molestation lasted summers. Meyers reviewed in his testimony of Holland prosecutor Susan jury: to the “Now the next came from

closing argument Holland, Voris, Mary and Dr. testimo- Meyer[s] Beth the psychological call, earlier, ny or a basically you is what I what I indicated to psychological in this maybe maybe mental more fingerprint, footprint, appropriately memory case a left on the of this child. penis print “Among things other that told us was that the child is recover- [Holland] denied. ing. That not discovered, recovery

“She’s told in this that crime was process us this that, had, you but told one nightmares involving she that this child her, involving one the defendant her and killing kidnapping her, justified, one would believe is because expressing no which indeed her, an neither the mother nor the believed and that left grandmother . . . imprint on child’s mind.

“Look at the child’s when it first time cried crying, occurred. The she testify, she also cried as she indicated these incidents attempting child, office, Susan Holland in comfortable another indicia of the child’s state of mind. I am testimony Mary

“Now into detail on the Beth going great Meyers. basically you She indicated to us that the she first told symptoms abused, are consistent with the child that been and she symptoms has are told us the items that consistent with abuse.” erroneously allowed the use of the trial court Defendant contends variety Meyers and Dr. for testimony” from Susan Holland this “expert here for we They enumerated. need not be repeated of reasons previously testimony, the error admitting conclude the trial court erred will reversed as to all counts and the below must be judgment prejudicial, trial. and remanded for new (excluding rape counts) law summary regarding We a brief of the state of the present start with that the the “child In Bledsoe Court held syndrome.” Supreme molest our the of admissibili syndrome Kelly-Frye trauma does not meet standard rape a a occurred. ty scientifically establishing rape as test for whether accepted Therefore, such evidence is not admissible to in a criminal trial. guilt prove and, In Roscoe this court extended Bledsoe to child molest cases as defend states, ant testimony clarified the manner in which trauma expert explaining may testimony behavior be introduced. As the explained, we should opinion be based the literature in the field upon and general, professional experience of the analysis witness rather than an and a upon diagnosis based upon review and evaluation of the in the say: facts case at hand. We went on to “Credibility questions arise whenever the defendant denies the victim’s If, story, explicitly or in implicitly suggesting misrecollection or fabrication. case,

every such the jury could be informed that doctor had the diagnosed case, complainant, based the in upon specific facts the as a child molest victim, (or victim then the whatever), against misuse of protection psychologists’ testimony erected by Bledsoe would be largely dismantled.” Roscoe, v. (People In supra, Cal.App.3d 1099.) Gray, the Second District Court of held in a child it Appeal molest case was not error to admit testimony expert it was child delay common for victims to reporting incidents of abuse and give inconsistent accounts of such incidents to different where such people, (1) evidence was not prove offered occurred, in molestation fact but rather was offered to rebut the infer ence the alleged victim by delay untruthful as and being shown inconsistencies in Such reporting. testimony is it expert proper long so as is limited ato discussion of victims as a class and (e.g., children), does not extend to discussion and diagnosis of the witness in the case at hand. M„

(People Gray, supra, And in In re Sara 218.) Third District Court of in a Welfare Appeal, and Institutions Code section 300 proceeding, reversed a and directed the dependency finding juvenile court to decide the matter absent the syndrome child molestation evidence which, concluded, the court was offered below to child had been prove sexually abused. mind,

With this brief in summary we address record before us instant case. This is not a case in which testimony of “child molest expert syndrome” was offered in rebuttal to rehabilitate a victim-witness. two psy- Holland and clinical social worker Susan question, witnesses

expert in the Meyers, prosecution’s Beth were called as witnesses Mary chologist case-in-chief, The district immediately following Gypsy. Holland in his statement—“Susan attorney opening outlined his strategy you . . . tell what these Meyers Dr. will will describe [Gypsy’s] symptoms. And, exactly The record reflects is what happened. mean.” this symptoms Holland, detail re- then was examined substantial objection, Ms. over said, what her interview evaluation garding Gypsy—what defendant, exhibited, Ms. she about etc. emotions she what fears expressed who, by Meyers responded Dr. also over objection, Holland was followed as the exact same facts details “hypothetical questions” incorporating Meyers, questions, Dr. to such response told to Ms. Holland. emotions, fears, are and reactions to others jury Gypsy’s explained by a child victim. It is not significant prose- exhibited molest symptoms merely she symptoms cutor told Susan Holland would describe effect yours.” that is to be drawn will be In “[a]ny observed conclusion result, he what brilliant prosecutor, apparently perceived court, conduct, by in the the trial subterfuge, exact here condoned engaged Bledsoe, Roscoe, and In re Sara M. The chal- proscribed Gray, that was testimony wavering was not to a lenged equivocal offered rehabilitate Rather, they the it told that should version Gypsy. accept Gypsy’s true, victim, three-year events as that a period these she was molested over defendant, by how child victims act and typical because here is molest Holland, fits of Ms. perfectly. following testimony the mold defendant, by “Q [by prosecuting is of the record before us: exerpted typical attorney] talk to her about? subject you What matter did generally Very generally

“A reactions the court feelings, proceed- discussed had discussion of her she ings feelings experi- about molest enced.

“Q you? Did she describe some of the molest incidents . . “A Yes she . did. Okay. you Did

“Q notice emotional reactions? “A Several times the interview was tearful.” during earlier, we objected As noted of evidence of a admission “child molest syndrome” testimony two from through experts these beginning trial. The trial court it is objections denied defendant’s testimony” to this objections “expert continued that renewed or apparent that trial was aware The record reflects the court have been fruitless. would admissible, best, limited circumstances very at under testimony such had occurred. and never to a molest prove for specific purposes view, allowed Meyers Dr. should not have been In Ms. Holland and our the record before us. case-in-chief testify upon part prosecutor’s record, If, testimony expert the then the trial court concluded on depending victim, rebuttal, then was appropriate, for to rehabilitate example hearsay. have been disallowed as testimony much of Ms. Holland’s should by the trial judge, argument, accepted Nor do we accept prosecutor’s mind. testimony admissible as evidence of state of Gypsy’s addition, Moreover, its value. In outweighed its effect prejudicial probative testify Dr. other than to assuming Meyers could for properly purposes occurred, have been al- molestation had should not prove prosecutor her, to ask framed the facts hypothetical questions upon lowed supposed Holland, her, immediately testified to Ms. before Gypsy. trial,

Although defendant is not entitled to a he is entitled to a perfect case, fair trial. In the instant defendant did fair not receive a trial. There is no a reasonable exists that had the question probability of Ms. excluded, and Dr. Meyers Holland been a different result would have been cert, obtained. v. Watson 46 Cal.2d P.2d (People 243], [299 den. 355 U.S. 846 L.Ed.2d 78 S.Ct. 70].) [2

III. Separate Corpus Did the Prosecutor’s Failure to Establish Require Delicti for Each Offense Reversal of Defendant’s Copulation? Rape, Sodomy, Convictions for and Oral Defendant all sodomy, contends of his convictions for rape, and oral must copulation be reversed because the did not establish prosecutor delicti separate corpus for each offense.

The delicti is corpus established when it is a crime been proved has committed someone. The delicti consists of two elements: corpus (1) injury or loss or harm and a criminal (2) agency them to exist. The causing preliminary beyond of the delicti need a proof corpus not be reasonable only doubt and a slight showing necessary. facie is v. prima (People 1, (1977) Manson 71 41-43 435 275], cert. den. Cal.Rptr. [139 U.S. 953 L.Ed.2d 1582].) 98 S.Ct. defendant Although [55 characterizes this issue as failure of the prosecution to establish separately convicted, delicti for each offense of which corpus defendant stands

340 view, is, of the victim failure of defendant’s here his argument essence identify charged each of the various describe and to adequately separate, the information. charged acts from the multitude of other identical acts first in People the rule enunciated is argument premised upon Defendant’s analy- In 323], 133 165 P. its our progeny. Cal. (1901) v. Williams [65 P. sis, Cal. 11 (1901) v. Castro we start with People [65 13]. Castro, new At and secured a trial. rape In defendant was convicted de- four acts of sexual intercourse with separate trial victim swore to the infor- holding affirmed the new trial order fendant. The Court Supreme fall. only act and had to stand or allegation mation one charged upon any have of the acts sworn to Although the state could selected trial, victim, At the commencement of the state it could not select all four. act upon to select the of intercourse required particular should have been make at the com- it relied. The failed to the selection either which state the jury. trial or at the time when the case went to mencement of Williams, 133 Cal. defendant was convicted People In supra, year of a 13 old and Court reversed rape appealed. Supreme a a victim lived defendant for ordered new trial. The testified she they months and intercourse five or six engaged four sexual period day. times a Each of the acts was a offense the defendant could separate jury they for them. The trial did tell the separately be tried each of court all had to some Our defendant described act. agree performed specifically stated the must charge Court offense Supreme prosecution specific an must of that offense alone. Proof of upon conviction depend proof A on a different is a not fatal. although generally offense date variance trial on a criminal has a right defendant on indictment demand be against ordinary him and concise Defendant charge language. stated may know he is to tried so his charge must what be he upon specific prepare defense. 40],

In v. Abdullah P.2d People Cal.App. [25 of two of a charges operated was convicted minor. Defendant health farm on the outskirts of and lived there with his wife. Angeles Los victim, father, brother, The and a widowed female housekeeper in a lived on the health farm. Defendant residence separate engaged sexual relations with the victim between 1930 and 1932. When the victim chief, attorney was examined in defense counsel moved the district elect acts. trial specific stating “Any to The court denied the motion time years. within the three The date is in this The specific not essential case.” attorney later to two district elected stand on dates—June 1932 and specific 25, 1932. The Second District both September Court reversed Appeal and duty counts remanded for a retrial. The had a than prosecution greater years. to of a produce general extending evidence series acts over several 341 and a duty naming, identifying, proving specific had the prosecution charged A man every charged. act the statute of limitations for count within to defend and not with a serious offense is entitled to an opportunity sexual many acts merely deny. The witness did not remember how prosecuting occurred, many. the acts are moored to although Only there were where meet them. The some date or circumstance can the defendant be expected any one any designating witness failed to mention circumstance prosecuting act and reversal required. particular v. Creighton 249],

In 57 314 People (1976) Cal.App.3d Cal.Rptr. [129 457, on other v. Thomas 20 Cal.3d disapproved grounds (1978) People 215, 468 433], 573 P.2d defendant was convicted of commit- Cal.Rptr. [143 a lewd and lascivious act on a female under 14 ting age (§ 288) acquit- (§ ted of He did not 261.5). appealed, contending (1) People prove even one act the trial court errone- specific during period alleged (2) ously instructed the jury CALJIC No. 4.71. The Second District Court of Appeal erroneously concluded the trial court instructed the in CALJIC erroneously No. 4.71 and denied a defense motion for because the acquittal never prosecution a offense. The proved single reviewing court found sub- stantial evidence of crimes before the trier of fact but no evidence as to an individual, crime. All the specific elements were time and a present except 4.71, incident. specific Absent CALJIC No. could not have sin- jurors any out gled one act or incident from the general evidence on which to convict the defendant. This was not due failure an act occurred prove Rather, on a date or time. specific there was a failure to one act prove within the statute of limitations. evidence Although general was sub- stantial, it was too general to verdict. The court con- support appellate cluded there was way no possible singling out one individual act from among those claimed and there was saying substantial evidence to prove that act.

We briefly first address defendant’s contention the delicti of the corpus view, individual charges here involved was not established. In our such a challenge is here because the timeframe is an inappropriate Rather, element of the crime for delicti corpus purposes. time is a problem associated with Time pleading proof. affects the defendant’s specifically right to notice of the charge specific alleged ability his or her to ade quately prepare defense. v. Gordon 165 (People (1985) Cal.App.3d Sims, 870 (conc. v. Ramirez Cal.Rptr. opn. J.); (1979) People [212 174] 91 Cal.App.3d v. Cal.Rptr. 789]; Puckett People [153 607, 611 884].) Notice of the Cal.Rptr. specific [118 Puckett, charge is a right constitutional of the accused. (People supra, at An Cal.App.3d p. 611.) information a criminal charges which defendant with counts of the multiple same offense does not violate due process so

342 the conduct the nature of informs defendant of

long as the information (1) at the preliminary the evidence (2) presented with which he is accused and of which the prosecution him of the the offenses hearing informs particulars 362, 369-370 Cal.App.3d v. Jordan may (People (1971) at trial. prove [97 690, 685, fn. 2 Cal.App.3d v. Cal.Rptr. 570]; People Tolbert [222 tells role—it important The a limited but 313].) plays information Cal.Rptr. and the number he is states charged kinds of offenses defendant what However, time, the place, in prosecution. of that can result offenses tran hearing left are to the charged preliminary circumstances of offenses (People to a defendant. is the touchstone of due notice script. Gordon, process This Sims, 839, So J.).) 870-871 of (conc. opn. supra, the the preliminary hearing supports evidence at long presented the timeframe(s) and covers the charged number of offenses defendant against information, Constitution a defendant has all the notice the charged in the greater if he the lack of may The defendant demur or she believes requires. charges. subd. ability (§ to defend specificity hampers against of any demur assertion on 2.) appeal Failure of defendant to bars 1012.) in the vagueness (§ information. here, argument of defendant’s

Addressing specific aspect more of he evidence acts concedes the sufficient of prosecution presented specific the first in the informa alleged intercourse to sustain two of three counts The alleged tion. These counts acts of intercourse which occurred 1984. act of his examination of describe an prosecutor began Gypsy by having she intercourse which she said occurred the summer of 1984 when during the third and fourth asked grades. between also prosecutor at during to an unrelated of intercourse that occurred the creek describe act those same summer. Defendant acknowledges Gypsy’s descriptions two acts evidence to two of first three rape constituted sufficient sustain However, counts in the there was alleged information. defendant contends no evidence of intercourse the third count of specific rape acts of to support 1984, the have alleged to have occurred in three counts of rape alleged three counts of occurred alleged occurred have rape 1982. further failed prosecution Defendant contends to introduce evidence acts nine sodomy sodomy counts specific support evidence acts of oral specific copulation support copulation six counts. during testified defendant had intercourse with her “a lot” 1982, 1983, the summers of and 1984. She defendant in sexual said engaged intercourse with her than three each also said more times summer. She than three during defendant sodomized more times each of the summers 1982, 1983, engaged copula 1984. She also said in oral years. tion with her more in each three than once of those issue, For of discussion of this will our conclusions purposes ignore we retrial, I of this the nine part opinion reversing Upon Gypsy’s counts. during testimony as to the various acts of intercourse with as to the nine counts three involved would be admissible properly summers (a). violation of section subdivision alleged factually distinguishable note the instant case is People properly First, by testify vague from the ones cited the defendant. did not Gypsy each act occurred. With to the terms as to number of times respect they a lot” but later it than rapes, she said said more “happened happened three times each summer. She similar to the gave with respect sodomy charges and said the oral offenses occurred more than copulation Thus, once each summer. she testified there were at least three separate rape and sodomy offenses and two oral each Unlike copulation offenses summer. Abdullah, Creighton the victims in as to the Gypsy specific months June, involved. She said these every July, incidents happened August between the first and fourth She grades. they only also said occurred during the week and never on weekends. said the in the room came light from the sun. This established the daytime. events occurred She during further testified the events occurred when her uncle cared for her and her cousins while her aunt and grandparents gone. were She indicated her cousins arrived at about 4 from p.m. which the could infer reasonably cases, events occurred in the afternoon. Unlike the victims in the cited identified where the incidents occurred. With the of the exception creek, at the rape all Gypsy said of the incidents occurred on the bed in her detail, grandmother’s room. She living described that room including placement of the Clearly, windows. Gypsy was more about the time precise place of incidents than the victims in the by cases cited defendant. date, Although she could not identify each act specific she did narrow down the timeframe within which the individually acts as charged more specifically described her occurred. More specificity the vari- regarding desirable, ous criminal victim, acts is alleged on the depending age of the involved, the number of incidents the similarity of some of the incidents to others, another or and the time between occurrence lapse and trial. How- ever, such may always specificity be possible. This to be such a appears case. view,

In our the prosecution adequately charged the various proved defendant, offenses alleged against excepting counts as previ- stated, ously and reversal is not for failure required to establish a separate corpus delicti.

IV. Lewd on the Nine Counts of Should the Convictions Impossible be Because It Is Behavior Reversed Lascivious Jury Upon Verdicts? What the Based Its Determine Acts must the nine lewd lascivious conduct Defendant contends counts of jury the what acts upon reversed it is to determine impossible be because based its verdicts. in is deemed

In view of II of this this issue part opinion, our conclusions retrial, infor have been from the moot. the counts will stricken Upon rape not, not, or need be between overlap mation there should at least and the lewd conduct sodomy the and oral counts and lascivious copulation addition, record, trial In then state the counts. the of the depending upon may in of 17.01 or 4.71.5 jury language court instruct the the CALJIC No. unanimously agree beyond their that it must a reasonable equivalent or that the same charged doubt as to each count committed Gordon, I, Const., 16; 165 (Cal. People supra, criminal act. art. v. specific § 212, 839, v. 853; 219 People (1981) Madden Cal.App.3d in remind counsel and trial court that Cal.Rptr. 897].) We [171 case, duty an in CALJIC 17.01 or its appropriate equiva- instruct No. lent is a sua one. (Ibid.) sponte

The conviction is all the matter is judgment of reversed as to counts and remanded except for new trial to the counts as more set rape particularly forth herein.

HAMLIN, part holding I dissentfrom I of Justice opinion J. Martin’s there was evidence to the jury’s insufficient that defendant support finding nine of guilty rape counts This follows from Gypsy. holding lead that opinion’s conclusion “there is no substantial evidence that defend ant accomplished the acts of sexual intercourse fear of immedi means of ate and bodily injury.” unlawful (Ante, 328.) majority could p. properly have arrived at that conclusion all the if it deemed only as to charges nature, testimony the unequivocal of the victim to be not reasonable totality credible and solid value when light considered of the circumstances. Barnes Cal.3d 303-307 (People [228 110].) 721 P.2d Cal.Rptr. case,

In this victim testified she defendant’s unequivocally followed directions and to his submitted sexual acts because she was afraid not to do mother, She feared explained so. she what to her might happen stepfa- ther her. testimony necessarily That evaluated light victim, of the defendant and that defendant and the others six-year-old victim’s Karl had a A victim could stepfather fistfight 1983.

readily baby- have considered her uncle’s directions to her while he was and, her in her sitting grandmother’s home were authoritative under all of case, have been circumstances of this resistance would useless her, likely bodily in injury to result mother or her stepfather.

As our Supreme Court reminded us in v. Huston 21 Cal.2d People (1943) 690, 758], 693 P.2d v. disapproved another in Burton point People [134 328, 65, 55 (1961) Cal.2d 352 Cal.Rptr. 359 P.2d an “Although [11 433]: court appellate will not a verdict uphold judgment or based evidence upon inherently testimony which improbable, merely discloses unusual circum- stances does not come within that category. To warrant [Citation.] rejection of the by statements a given by witness who has been believed a court, trial true, there must exist either a physical they that are impossibility falsity or their must be without apparent resorting to inferences or deduc- tions. Conflicts and even testimony subject which is justifiable [Citations.] suspicion justify do not a reversal of for it judgment, is exclusive province of the trial judge to determine credibility of a witness and the truth or falsity of the facts which a upon determination depends. Barnes, (Cited with in v. 42 approval People Cal.3d at supra,

[Citation.]” p. 306.)

Thus, I cannot agree with the lead that opinion’s holding there is “no evidence in this record from which the jury could have reasonably conclud ed that defendant committed any of by means of fear of imme diate and unlawful bodily injury.” (Ante, p. 329.)

I concur in the remainder of Justice Martin’s lead I opinion. would reverse the and judgment remand for new trial on all counts.

BEST, J. I dissentfrom that of III portion part of Justice Martin’s lead opinion that holding the prosecution evidence presented sufficient to prove IV, V, each of the nine VI, XV, XVI, acts of sodomy in charged counts XVII, XXVI, XXVII, XXVIII; and each of the six acts of oral copulation VII, VIH, XVIII, XIX, in charged XXIX, counts XXX; and each of the nine acts of lewd and lascivious conduct a with child under age fourteen IX, X, XI, XX, XXI, in charged XXII, XXXI, XXXII, counts XXXIII. For reasons set forth this court’s v. Van opinions People Hoek (1988) 200 811 Cal.App.3d 352], review denied Cal.Rptr. August [246 18, 1988, and v. People (1988) Atkins 203 15 Cal.App.3d Cal.Rptr. [249 that, 863], I would hold for two except acts of sexual intercourse in 1984 346 meet burden failed to their sodomy People one act offenses. for of the charged offense each

proving specific Atkins, (1901) v. Castro In after a discussion People Van Hoek and 323], Cal. 165 P. Williams Cal. 11 P. and People [65 13] [65 stated, and the specificity charges we in the cases “Implicit requiring funda at trial is the given being supported specific charges rule, must prosecution steeped antiquity, mental due process act.” jurors agree (Van must on one specific act and twelve prove specific Atkins, Hoek, 817; pp. at at p. 200 Cal.App.3d supra, supra, aout jurors single is of a nature to permit Unless evidence 21.) com act that act was unanimously agree identifiable criminal specific information, funda in each count charged the defendant as mitted due has not been with. process complied mental Here, sodomy by act of committed defend- specific testified to one Gypsy in of at her when she grandmother’s ant the summer 1981 house occurring Defend- years kindergarten grade. was and between and first about six old ant house He then stay told her cousins to outside the and locked door. take lie on in the room. living told her clothes off and to the bed Gypsy in her Gypsy did as she told and defendant stuck his anus. Gypsy penis was in “a than lot”; also that his her anus more placed penis testified defendant times in three 1982; 1983; three in than three times and more than more in She that all these acts on the room living times 1984. testified of occurred bed in her house. grandmother’s by de- testified to a act of sexual intercourse committed

Gypsy specific during fendant that occurred summer of 1984 when she was between She grades. third and fourth also described another act of sexual specific testify intercourse that occurred that same summer at the creek. She did not Rather, any specific about other acts sexual intercourse. she stated 1984, times; defendant had intercourse with her “a lot” more than three 1982; more than three and more than three times in 1983. She times creek, testified that with the of the incident at the all of the single exception acts took bed place grand- of sexual intercourse room at living mother’s house while her were playing cousins outside. mouth, testified that

Although Gypsy placed his in her penis testify any many she did not as to incident. specific She did not know how however, occurred; times this he it more than 1982; did than once more 1983; and once in more than once in these oral 1984. Each of incidents of occurred on the bed in the at her copulation living grandmother’s room year they and each took house between June and place August. jury single

The nature made it for the Gypsy’s impossible unanimously out and that defendant committed a act of oral agree specific circumstance, time, much less six identifiable or other copulation place, From the nature of and identifiable acts of oral separate specific copulation. evidence, unanimously out and jury singling was also incapable any than the one agreeing occurring acts of sexual intercourse other upon old, the summer and the during eight years of 1984 when one reason, that same summer at the creek. For the same jury incapable singling unanimously out and that defendant agreeing committed spe sodomy cific and identifiable act occurring other than the one in 1981 therefore, view, years when was about In my six old. consistent with Atkins, our opinions Van Hoek and the evidence was insufficient to support any conviction for other alleged criminal acts and retrial for acts of sexual molestation than just other the three acts referred to specific would be barred double jeopardy principles. Green (People Cal.3d Cal.Rptr. 468].) 609 P.2d [164 reasons,

For the same I must dissent from IV of the lead part opinion moot holding defendant’s contention that his convictions of lewd and las civious conduct must be reversed because it is to tell what impossible upon acts the based its verdicts. Other than the one act of specific sodomy— that would have a conviction supported of either a violation of Penal Code 286, 288, section (c), subdivision or a violation of Penal Code section subdi (a)—and vision above, two acts of specific sexual intercourse referred to there was a absence complete of evidence of specific identifiable acts of sexual abuse to support charges lewd and lascivious conduct. I also dissent from the suggestion in IV part of the lead opinion that a giving unanimity instruction—CALJIC No. 17.01 or CALJIC No. 4.71.5 or an equivalent—would cure the problem. As we stated in Van Hoek and Atkins: “The Attorney General relies on the apparently so-called ‘either/or’ rule which was recently stated as follows: ‘Emerging from recent cases dealing with the problems when a arising crime is and the charged evidence acts, describes several any such one of which could constitute the crime charged, “is so-called rule: . . . either the prosecution ‘either/or’ must select the act specific relied to upon prove the or the charge jury must be instructed the words of CALJIC No. 17.01 or 4.71.5 or their equivalent that it must unanimously beyond a agree reasonable doubt that defendant committed the same act. specific v. Callan (People [Citations.]” [Citation.]’ 1101, 1111, (1985) 174 Cal.App.3d fn. omitted Cal. 339].) Rptr. [220 “While the rule as stated above will cure a failure ‘either/or’ of election by the in the prosecutor usual case where evidence of several acts is specific any presented, one of which could constitute the crime charged, rule can have no application in a case such as the present one where there a is

348 charged crime. act to any specific support

failure evidence present Where, here, committed over many of such acts were the evidence is time, for the impossible prosecution an extended it would be period relied and prove charge’ equally impossi ‘select the act specific upon reasonable doubt that ‘unanimously agree beyond for a ble v. As stated People the same criminal act.’ specific defendant committed Williams, 168, trial, 165, charge a a so indefinite upon 133 Cal. ‘Such supra, by the general time or particular, except as to circumstance of place, farce, a deal judicial something great a if it were not designation, would be ” Hoek, 811, v. 816; People v. Van 200 (People supra, Cal.App.3d worse.’ Atkins, 15, 21.) supra,

I concur the rest Justice lead opinion. Martin’s only I for retrial

Accordingly, judgment, would reverse but remand X, IX two information on counts the first counts set forth 288, Penal subdivision defendant with violation of Code section charging 1984, XXVI (a), through August committed between June 1984 and counts XXXI, charging the first counts of the information defendant with 286, 288, (c), violation of Penal Code sections subdivision subdivision (a), August Although between June 1982 1982. respectively, committed occurring the information did not defendant with criminal acts charge 1981, during a timeframe which included the summer of this variance sodomy would a retrial defendant for an act of or lewd and preclude Wrigley at that occurring (See People lascivious conduct time.

Cal.2d Cal.Rptr. 580].) 154-159 P.2d [70

Case Details

Case Name: People v. Jeff

Court Name: California Court of Appeal

Date Published: Aug 31, 1988

Citation: 251 Cal. Rptr. 135

Docket Number: F008620

Court Abbreviation: Cal. Ct. App.