Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside County No. RIF109388, Thomas H. Cahraman, Judge.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Deborah La Touche, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
A jury convicted defendant Gabriel Miguel Brotons of two counts of committing a lewd act on a child under 14 years of age (Penal Code § 288, subd. (a)) and one count of aggravated sexual assault of a child under 14 years of age by oral copulation (§ 269, subd. (a)(4)). The court sentenced defendant to 30 years to life in state prison. Defendant raises two issues on appeal. First, defendant asserts his due process rights were violated when the court denied his midtrial motion for a continuance to allow defendant time to gather information about a prior sexual assault (not involving defendant) mentioned by one of defendant’s victims during her testimony. Second, defendant contends his conviction for aggravated sexual assault (§ 269, subd. (a)(4)) should be reduced to a lesser charge because, he argues, no “force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person” was involved when he orally copulated his five-year-old victim’s vagina. We affirm the judgment.
All statutory references are to the Penal Code, unless otherwise specified.
FACTS
In December 2002 and January 2003, defendant stayed with relatives (defendant’s brother-in-law, sister-in-law, and their five-year-old triplets) for the holidays. Defendant was approximately 30 years old at that time. On one occasion during his visit, defendant entered the bedroom assigned to his two nieces (the other triplet is a boy). Defendant picked up “Jane Doe” by the waist and licked her vagina while holding her leg. Defendant also rubbed his penis against Jane Doe’s vagina. Defendant made noises suggesting he derived pleasure from this act. Before leaving the room, defendant told Jane Doe and her sister not to tell anyone what had happened. When the children informed their father about the incident approximately three months after it had happened, Jane Doe told her father repeatedly she did not want to do the things defendant had done to her. Shortly thereafter, Jane Doe also stated to the police investigator she did not want defendant to lick her vagina.
During the same time period, defendant also visited his mother-in-law. “Jane Doe 2,” the 13-year-old niece of a man who was dating defendant’s mother-in-law, stayed overnight at the same house when defendant was there. After everyone in the house was asleep except defendant and Jane Doe 2, defendant approached Jane Doe 2 while she was lying down in a bed. Defendant lay next to Jane Doe 2, who was clothed, and rubbed her “butt” with his hand. Defendant tried to rub her breasts and vagina, but Jane Doe 2 moved away from defendant. Defendant continued to touch and attempt to touch Jane Doe 2, but eventually his mother-in-law (who was in the same bed) awoke and kicked defendant out of the room. Defendant told his mother-in-law he was in the bed because he was cold; Jane Doe 2 initially said defendant had not touched her, but ultimately told the district attorney’s office the preceding facts.
An amended information based on both of the incidents was filed in December 2005. Count one alleged defendant committed a lewd and lascivious act “upon and with the body and certain parts and members thereof of” Jane Doe, in violation of section 288, subdivision (a). Count two alleged defendant committed oral copulation on Jane Doe “by force, violence, duress, menace and fear of immediate and unlawful bodily injury” in violation of section 269, subdivision (a)(4). Count three alleged defendant committed a lewd and lascivious act “upon and with the body and certain parts and members thereof of” Jane Doe 2, in violation of section 288, subdivision (a).
During the trial, Jane Doe 2 testified that she had “been through another case before.” Upon follow up questioning, Jane Doe 2 explained she had previously reported her mother’s ex-boyfriend to the San Bernardino County authorities based on her allegation that the ex-boyfriend had molested her from when she was 11 years old until she was 13 years old. This alleged abuse was still occurring when Jane Doe 2 had her encounter with defendant. Neither counsel was aware of these facts prior to Jane Doe 2’s revelations at trial. It was promptly determined no charges were ever filed against the other man accused of molesting Jane Doe 2.
The parties attempted to quickly retrieve additional information concerning Jane Doe 2’s other molestation allegation. But, as the court noted, there was insufficient time to track down all of the individuals who likely had information about the previous allegations. Defendant’s counsel claimed his client’s case would be prejudiced if he could not fully explore the issue of Jane Doe 2’s prior molestation allegations and he proposed several options to avoid unfairly prejudicing defendant: “One option would be my requesting a... recess in the trial. A continuance of probably two to three weeks to try and locate these necessary witnesses to conduct an investigation into this prior incident, which is not a great alternative. [¶] Another alternative is to make a motion to strike the testimony of [Jane Doe 2], since I am not... really able to prepare a legitimate cross-examination or to present evidence to challenge her testimony. [¶] The third option, I guess, is make a motion for a mistrial.... [¶]... [¶] The fourth option, if the Court orders me to go forward, then I’m basically shooting blanks at the witness with cross-examination with no backup. Not even an investigating officer from San Bernardino to challenge her accusations, or to give the jury a legitimate picture of that prior accusation, since the detective has retired two years ago. [¶]... I think it’s important... the allegations of [Jane Doe 2] against [her mother’s ex-boyfriend] are very, very similar to the allegations against [defendant].”
Following additional argument by the parties and questioning by the court, the court ultimately disagreed with defendant. “To me, I don’t see how the defense is going to get anything more out of this whole issue... than [the timeline Jane Doe 2 already testified to and the difference in the time she took in reporting her experiences to the police in the two circumstances]. I don’t think it’s worth a continuance while we lose jurors. [¶] And I remain with the view that this is largely a tempest in a teapot. And to the degree that it will do the defense any good, it’s already in evidence.” The court indicated that details concerning Jane Doe 2’s alleged molestation by her mother’s ex-boyfriend lacked probative value in the instant case. The court therefore refused to allow defendant to question Jane Doe 2 about such details. The parties agreed with the court’s suggestion to stipulate to the precise date the police interviewed Jane Doe 2 about the incident with defendant (December 15, 2004) and the date she was interviewed about her molestation allegations against her mother’s ex-boyfriend (August 19, 2003).
The jury convicted defendant of all three alleged counts. The court sentenced defendant to 30 years to life in state prison.
DISCUSSION
Due Process
Defendant appeals the court’s refusal to grant his motion for a continuance to investigate Jane Doe 2’s prior molestation allegations against her mother’s boyfriend. Defendant argues his due process rights were violated because he did not have time to effectively present a defense based on issues of credibility suggested by Jane Doe 2’s testimony. In essence, defendant asserts he could have received a fair trial only if the court granted a continuance for him to investigate Jane Doe 2’s prior molestation charges (i.e., to track down Jane Doe 2’s mother’s boyfriend, any investigating officers, and other percipient witnesses). Concomitantly, defendant argues his due process rights were violated by the court’s preemptive decision to exclude any evidence garnered by defendant’s proposed investigation, regardless of whether defendant opted to contest the truth of the prior charges (to assert Jane Doe 2 was not credible because she had already made false allegations) or illustrate the similarity of the prior charges (to assert Jane Doe 2 falsely charged defendant with molestation using the knowledge she obtained from her previous molestation).
Section 1050 authorizes trial courts to grant a continuance of a criminal trial only upon the showing of “good cause.” (§ 1050, subd. (e).) “‘“‘The granting or denial of a motion for continuance in the midst of a trial traditionally rests within the sound discretion of the trial judge who must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.’”’” (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1548.) We review the court’s denial of defendant’s motion for a continuance under an abuse of discretion standard. (Ibid.)
We conclude the court acted within its discretion. The court found that any evidence uncovered (during the proposed continuance of the trial) about the prior molestation allegations would be immaterial to the issues at trial. (People v. Howard (1992) 1 Cal.4th 1132, 1171 [“To establish good cause for a continuance, defendant had the burden of showing... that the witness’s expected testimony was material and not cumulative”].) Applying Evidence Code section 352, the court prospectively declined to allow a mini-trial on either the truth or the details of Jane Doe 2’s prior molestation allegations, as pursuing this issue would necessitate an undue consumption of time, and would create a substantial danger of confusing the issues and misleading the jury. As it would not allow the introduction of evidence defendant intended to seek during the proposed continuance (such as the testimony of Jane Doe 2’s alleged molester), the court saw no reason to grant the continuance.
The court’s reasoning was sound. First, any information uncovered by defendant during the continuance would not definitively answer the question of whether Jane Doe 2’s prior molestation allegations were true. A mini-trial on the guilt of Jane Doe 2’s mother’s ex-boyfriend would not shed light on the guilt of defendant. (People v. Bittaker (1989) 48 Cal.3d 1046, 1097 [“The value of [evidence that a witness made false charges of sexual molestation] as impeachment depends upon proof that the prior charges were false. This would in effect force the parties to present evidence concerning two long-past sexual incidents which never reached the point of formal charges. Such a proceeding would consume considerable time, and divert the attention of the jury from the case at hand”]; People v. Tidwell (2008) 163 Cal.App.4th 1447, 1457-1458 [“Defendant’s problem in showing that the trial court abused its discretion in excluding the evidence concerning the prior rape complaints is that it is not readily apparent that those prior complaints were false. While a prior false complaint establishes an instance of dishonesty on the very issue hotly disputed in this case... a prior complaint not proven to be false has no such bearing”].)
Second, this is not a case in which the nature of the victim’s allegations and the age of the alleged victim provide “an aura of veracity by [the victim’s] accurate description of the acts.” (People v. Daggett (1990) 225 Cal.App.3d 751, 757 (Daggett).) In Daggett, the appellate court found error by the trial court in its refusal to conduct a hearing to assess evidence purportedly establishing that the defendant’s alleged victim had been molested by older children prior to the defendant’s alleged molestation. (Id. at pp. 757-758.) The defendant in Daggett was accused of sodomizing and orally copulating his former step-son (id. at pp. 754-755); the court explained that “if the acts involved in the prior molestation are similar to the acts of which the defendant stands accused, evidence of the prior molestation is relevant to the credibility of the complaining witness and should be admitted.” (Id. at p. 757.)
Here, defendant argues the “similarity” of the alleged attacks warranted further investigation and introduction of evidence, even if the allegations were true. Jane Doe 2’s previous alleged victimization consisted of repeated instances in which she woke up to find the accused individual penetrating her vagina with his fingers. The allegations in count three of the instant action are that defendant fondled Jane Doe 2’s “butt” over her clothes and then attempted to touch her vagina and breasts. The logic of Daggett, supra, 225 Cal.App.3d 751, is inapplicable here. There is no need to explain a teenage girl’s knowledge of how a man could touch her “butt” and attempt to touch her vagina and breasts. The jury was free to believe or disbelieve Jane Doe 2’s testimony. But it is preposterous to suggest the jury was misled in assessing Jane Doe 2’s credibility by the absence of detail concerning the sexual knowledge Jane Doe 2 derived from her prior alleged molestation.
Finally, we agree with the court that defendant had already received any potential legitimate benefit from this area of inquiry. Jane Doe 2 testified that she had been molested by another man during the same time period defendant molested her. The parties stipulated to the dates on which Jane Doe 2 reported her separate molestation allegations to the authorities. The information in the record provided a basis on which to question the credibility of Jane Doe 2. She did not immediately report defendant’s actions to the authorities, despite the fact that she reported her mother’s ex-boyfriend after her encounter with defendant. Delaying the trial for weeks to allow defendant a full investigation (“not a great alternative,” as conceded by defendant’s trial counsel) simply made no sense in light of the court’s judgment that any probative value to come out of the process would be substantially outweighed by undue consumption of time and confusion of the issues.
Substantial Evidence Supporting Conviction on Count Two
Defendant also claims on appeal that there was insufficient evidence of force to support a conviction on count two under section 269, subdivision (a)(4), which provides that “[a]ny person who commits any of the following acts upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child: [¶]... [¶] (4) Oral copulation, in violation... of Section 288a,” when committed by force, violence, duress, menace, or fear of immediate and unlawful injury on the victim or another person. Defendant asserts the evidence establishes he “simply held on to Jane Doe’s legs in the same manner that any male would necessarily do while performing this sexual act” and thus there “was nothing done that differentiated the act from non-forcible molests.” Defendant asserts his conviction for orally copulating Jane Doe should be reduced to a lesser charge not dependent on the element of “force,” which could potentially result in a substantial reduction in his sentence.
“In considering defendant’s claim of insufficiency of the evidence of force necessary to affirm his conviction..., we must determine only whether, on the record as a whole, any rational trier of fact could find him guilty beyond a reasonable doubt. [Citation.] We view the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Griffin (2004) 33 Cal.4th 1015, 1028 (Griffin).) “[O]ral copulation by force within the meaning of section 288a, subdivision (c)(2) is proven when a jury finds beyond a reasonable doubt that defendant accomplished an act of oral copulation by the use of force sufficient to overcome the victim’s will.” (People v. Guido (2005) 125 Cal.App.4th 566, 576 (Guido).)
Here, defendant, a trusted 30-year-old uncle, entered the bedroom of his two five-year-old nieces. Defendant grabbed Jane Doe around the stomach and lifted her in order to position her for oral copulation. There is also evidence defendant held Jane Doe’s leg while performing oral copulation. Jane Doe subsequently stated to her father and investigators she did not want defendant to orally copulate her. There is substantial evidence supporting the jury’s verdict. (See In re Asencio (2008) 166 Cal.App.4th 1195, 1204-1206 [affirming section 269, subdivision (a)(5), conviction based on description of incident in which six year old girl’s underwear was pulled down by defendant, defendant rolled on top of her, and girl testified she was touched by defendant “‘in a bad way’”].) Under the circumstances, the jury could conclude defendant overcame Jane Doe’s will by picking her up and holding her while he licked her vagina.
The jury was not required, as asserted by defendant, to find the use of “physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.” (People v. Cicero (1984) 157 Cal.App.3d 465, 474; see also People v. Senior (1992) 3 Cal.App.4th 765, 774.) In Griffin, supra, 33 Cal.4th at page 1025, our Supreme Court made clear that, in a forcible rape case, “‘force’ plays merely a supporting evidentiary role, as necessary only to insure an act of intercourse has been undertaken against a victim’s will.” To convict a defendant of forcible rape, there is no need to find a defendant applied physical force “substantially different from or substantially greater” from that needed to complete the act of sexual intercourse. (Griffen, at p. 1027.)
The Guido court extended this rule to forcible oral copulation: “These concepts apply equally to the crime of forcible oral copulation. Consensual oral copulation, with or without physical force greater than that normally required to accomplish the act, is not unlawful except when accomplished under circumstances violative of section 288a. As with forcible rape, the gravamen of the crime of forcible oral copulation is a sexual act accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury.” (Guido, supra, 125 Cal.App.4th at p. 576.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., ARONSON, J.