Opinion
Review Granted Aug. 12, 1998.
Previously published at 63 Cal.App.4th 1276
John Ward, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, W. Scott Thorpe and Clayton S. Tanaka, Deputy Attorneys General, for Plaintiff and Respondent.
SIMS, Associate Justice.
A jury convicted defendant John Joseph Ritson of committing a lewd and lascivious act with a minor under the age of 14 (count 1; Pen.Code, § 288, subd. (c)(1)); three counts of annoying or molesting a minor under the age of 18 after having suffered a prior conviction for a specified sexual offense involving a minor (counts 2-4; § 647.6, subds. (a), (c)(2)); attempted kidnapping of a minor under the age of 14 (count 5; §§ 664/207, subd. (a)/208, subd. (b)); and misdemeanor sexual battery (count 6; § 243.4, subd. (d)(1)).
All further section references are to the Penal Code unless otherwise stated.
In a bifurcated proceeding, the jury then found that defendant had suffered two prior convictions for oral copulation of a person under the age of 14. (§ 288a, subd. (c).) Both priors had been pleaded in the information as "strikes" (§ 667, subds. (b)-(i)), and one had been pleaded as a serious felony enhancement (§ 667, subd. (a)(1)) and a prior prison term enhancement (§ 667.5, subd. (b)). The trial court sentenced defendant to a total term of 105 years to life in state prison, consisting of four consecutive 25 years to life terms on counts 1, 2, 3, and 5 under the "three strikes" law and a consecutive 5-year enhancement under section 667, subdivision (a). The court also imposed a 25-year-to-life term on count 4 and a 6-month term on count 6, but stayed both pursuant to section 654. The court awarded defendant 308 days of presentence credit, consisting of 262 actual days plus 46 days of conduct credit pursuant to section 2933.1.
On appeal, defendant contends: (1) His convictions on counts 2-4 (§ 647.6, subds. (a), (c)(2)) must be reversed or reduced to misdemeanors because he has not been convicted of any prior offense necessary to elevate the offense to a felony; (2) the evidence is insufficient to support his conviction on count 5 (attempted kidnapping of Dane R.); (3) the evidence is insufficient to support his conviction on count 4 (annoying or molesting Dane R.); (4) the trial court's admission of evidence regarding defendant's prior crimes pursuant to Evidence Code sections 1101 and 1108 violated his rights to a fair trial, due process, and equal protection; (5) the trial court erred by failing to instruct the jury sua sponte on annoying or molesting a child as a lesser included offense to count 1; (6) the trial court erroneously failed sua sponte to give a unanimity instruction (CALJIC No. 17.01) as to count 2; (7) the trial court's instruction of the jury with CALJIC No. 2.20.1 (credibility of child witnesses) deprived defendant of due process; (8) so also did the trial court's instruction of the jury with CALJIC No. 2.90 (1994 Rev.); (9) under section 667, subdivision (e), defendant's sentence on the current offenses must be reduced to 25 years to life; (10) the case must be remanded for resentencing because the trial court erroneously believed that the "three strikes" law mandated consecutive sentencing on counts 1-3; (11) defendant's sentence of 105 years to life is cruel and unusual punishment; and (12) the trial court erred by granting defendant only 15 percent conduct credits.
We shall reduce defendant's convictions on counts 2-4 to misdemeanors and order the award of the proper custody credits to defendant. Because counts 2 and 3 will no longer be sentenced as felonies, defendant's argument as to the consecutive sentencing of counts 1-3 is moot. Rejecting defendant's remaining contentions, we shall affirm defendant's convictions as modified and remand the matter for resentencing.
FACTS
Around 2 p.m. on May 28, 1996, 13-year-old Donovan K. and 14-year-old Curt C. rode their bicycles into Hacienda Park in the Cameron Park area. They climbed down into a creek bed.
A white van, later identified as defendant's, pulled into the park's lot. Defendant approached the boys and began talking to them, telling them he was looking for crawdads. Having failed to find any, defendant and the boys started walking back toward the parking lot.
Defendant asked Curt if he wanted defendant to "suck [his] dick." Curt said no. Defendant then asked Donovan the same thing; Donovan also refused. Two minutes later defendant repeated his offer; both boys refused.
Defendant opened the back door of his van and offered the boys vodka; they refused it. He offered again to orally copulate them, adding the incentive of $5, then $10; they continued to refuse. Nor did a renewed offer of vodka tempt them to accept. At one point defendant proposed taking them up into the adjacent hills and giving them vodka and 7-Up.
Donovan tried to memorize defendant's license number and fix a description of defendant and the van in his mind. As defendant opened his driver's door, sat down, and continued talking to Curt, Donovan rode away from the van on his bicycle.
Defendant asked Curt, then sitting on his bicycle: "Are you sure?" As he said this, he reached out and touched Curt on the crotch area of his shorts. Curt backed away. He and Donovan then left the park.
On arriving home, Donovan reported the incident to his mother, then called the police. Investigating officers interviewed both boys. At about 2:45 p.m. on May 28, 1996 (roughly 45 minutes after defendant encountered Donovan and Curt), 12-year-old Dane R. was with his mother and sister as they waited to see a doctor at a medical center near a shopping center in Cameron Park. Dane's mother gave him permission to walk to a nearby sandwich shop. As Dane walked back from the shop, defendant's van pulled up next to him. Defendant reached over, opened the passenger door, and ordered Dane to "get the hell in [his] van." Afraid, Dane ran across the street and hid in some bushes. Defendant turned into the medical center parking lot and circled it. Dane then returned to the center and told his mother that someone had "tried to take" him. When officers interviewed Dane the next day, he identified defendant in a photo lineup; he also did so later in court.
On May 31, 1996, an El Dorado County Sheriff's Officer observed a white van fitting the description of defendant's in the parking lot of Hacienda Park. He soon afterward detained defendant and took him into custody.
Jason H. testified that in 1983, when he was 10 years old, defendant orally copulated him four times.
Defendant, who was 62 years old at the time of the alleged offenses, testified on his own behalf. He admitted having had encounters with all of the alleged victims on May 28, 1996, but claimed that their stories were all lies.
According to defendant, he encountered Curt and Donovan at the park by chance and talked to them briefly to find out whether they would like to buy a couple of bicycles from him. After they declined the offer and left his company, he walked back to his van and found Curt inside holding defendant's bottle of vodka, with Donovan seated on his bike nearby, apparently acting as a lookout. Curt told defendant he was looking for marijuana in the van. When defendant yelled, Curt left. Defendant never propositioned or touched either boy.
After leaving the park, according to defendant, he drove toward a nearby shopping center. Dane suddenly stepped in front of his van; defendant slammed on his brakes to avoid hitting him. They exchanged no words. Defendant did not follow Dane in the van.
Defendant was impeached on cross-examination with eight prior felony convictions for oral copulation of a minor under 14, including those involving Jason H. He denied guilt as to all the priors, claiming that he had pleaded no contest because he had been told he might receive probation and his attorney had pressured him to enter the plea.
DISCUSSION
I
Defendant contends his felony convictions on counts 2-4 (§ 647.6, subds. (a), (c)(2)) must be reversed or reduced to misdemeanors. We agree with defendant that under the plain terms of the statute his felony convictions on these counts cannot be upheld.
Section 647.6, subdivision (a), provides: "(a) Every person who annoys or molests any child under the age of 18 shall be punished by a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment." Section 647.6, subdivision (c)(2), provides: "Every person who violates this section after a previous felony conviction under this section, conviction under Section 288 [lewd and lascivious conduct with minor under 14], or felony conviction under Section 311.4 [using minor to assist in distribution of obscene matter] involving a minor under the age of 14 years shall be punished by imprisonment in the state prison for two, four, or six years." (Italics added.)
The information charged counts 2-4 (annoying or molesting Curt C., Donovan K., and Dane R.) as felonies on the ground that defendant had previously been convicted of felonies under section 288a, subdivision (c) (oral copulation of victim under 14). The jury found these allegations true. However,
Section 647.6, subdivision (c)(2) permits an offense under section 647.6 subdivision (a) to be deemed a felony only if the defendant has a prior conviction for an offense enumerated in section 647.6, subdivision (c)(2). The Legislature has not seen fit to include the offense of which defendant was previously convicted (§ 288a, subd. (c)) as one of those enumerated in section 647.6, subdivision (c)(2). We must construe the statute according to its unambiguous language, presuming that the Legislature meant what it said. (People v. Snook (1997) 16 Cal.4th 1210, 1215, 69 Cal.Rptr.2d 615, 947 P.2d 808.) So construing it, we cannot uphold defendant's felony convictions on counts 2-4.
By contrast, in other statutes the Legislature has enumerated both section 288 and section 288a as prior offenses triggering enhanced punishment. (§§ 667.51, subds. (b), (c); 667.6, subds. (a), (c); 667.71, subd. (d); 667.72; 667.8; 667.83.)
The People attempt to avoid this conclusion by discussing the supposed intent of the Legislature with respect to other statutes and case law construing those statutes. However, the Legislature's intent with respect to other statutes is irrelevant to our construction of section 647.6.
The People also assert, apparently in support of a claim that "the interest of justice" requires us to rewrite section 647.6 so as to uphold defendant's felony convictions: "There is little dispute that had [defendant's] prior conviction been originally charged as a ... section 288 violation rather than a more specific violation of ... section 288a [, subdivision] (c), [defendant]'s prior conviction would have fallen within the terms of ... section 647.6, subdivision (c)(2)." However, our Supreme Court has explained, " 'It is a prime rule of construction that the legislative intent underlying a statute must be ascertained from its language; if the language is clear, there can be no room for interpretation, and effect must be given to its plain meaning. [Citations.] "An intent that finds no expression in the words of the statute cannot be found to exist. The courts may not speculate that the legislature meant something other than what it said. Nor may they rewrite a statute to make it express an intention not expressed therein." ' (Hennigan v. United Pacific Ins. Co. (1975) 53 Cal.App.3d 1, 7 [125 Cal.Rptr. 408].)" (Mutual Life Ins. Co. v. City of Los Angeles (1990) 50 Cal.3d 402, 412, 267 Cal.Rptr. 589, 787 P.2d 996.) We may not rewrite section 647.6 as the People suggest.
We recognize that an offense under section 288a might be deemed morally equivalent to one under section 288 and that therefore persons previously convicted of both types of offenses ought to be treated similarly under section 647.6, as they are under other statutes. (See fn. 2 ante.) Whether this is so, however, is for the Legislature to decide.
Defendant does not challenge the sufficiency of the evidence to support his convictions on counts 2 and 3 for a violation of section 647.6, subdivision (a), a misdemeanor. He does so as to count 4, but his challenge fails. (See part III, below.) Because sufficient evidence supports his convictions on all three counts, we shall not reverse those convictions. Rather, we shall reduce them to misdemeanor violations of section 647.6, subdivision (a). (§ 1260.)
II
Defendant contends that the evidence is insufficient to support his conviction on count 5 (attempted kidnapping of Dane R.). He is wrong.
A person is guilty of kidnapping "who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains or arrests any person in this state, and carries the person into another country, state, or county, An attempt to commit a crime (§ 664) requires the specific intent to commit the crime, plus a direct but ineffectual act done toward its commission. (People v. Buffum (1953) 40 Cal.2d 709, 718, 256 P.2d 317; People v. Anderson (1979) 97 Cal.App.3d 419, 425, 158 Cal.Rptr. 727.) Mere preparation is insufficient. (People v. Welch (1972) 8 Cal.3d 106, 118, 104 Cal.Rptr. 217, 501 P.2d 225.) The specific intent to commit an attempted crime, as with specific intent in general, may and usually must be inferred from circumstantial evidence. (People v. Cole (1985) 165 Cal.App.3d 41, 48, 211 Cal.Rptr. 242.)
When viewed in the light most favorable to the verdict, drawing all reasonable inferences in support thereof (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738), the evidence showed that almost immediately after his frustrating encounters with Curt and Donovan, defendant pulled up alongside Dane--a boy about the same age as Curt and Donovan, alone, with no adult protector in sight--and ordered him to get into defendant's van. The fact that he gave Dane an order suggests that he did not believe Dane would accept a polite invitation. In other words, defendant could only have intended to overbear Dane's will in order to get him into the van. The only apparent reason to do so was to take Dane somewhere he would not have gone if not intimidated into complying with defendant's wishes. The jury could properly have inferred from these facts that defendant intended to "take[ ], or hold [ ], detain[ ], or arrest[ ]" Dane by "instilling fear." (§ 207, subd. (a).) Whether it was reasonable for defendant to think he could accomplish his purpose in this way is immaterial.
Since defendant had already revealed to Curt and Donovan that he wanted to take them up into the hills, a substantial distance from the place where he found them, it could reasonably be inferred that he had the same intent as to Dane. This intended movement would have been sufficient to satisfy the asportation element of kidnapping; thus it was sufficient to prove that he attempted to carry out this element of the offense. (Cole, supra, 165 Cal.App.3d at p. 50, 211 Cal.Rptr. 242; People v. Fields (1976) 56 Cal.App.3d 954, 956-957, 129 Cal.Rptr. 24.)
Defendant characterizes the evidence here as "flimsy." He distinguishes cases such as Cole, supra, and Fields, supra, on the ground that the defendants there used force on their victims and displayed a "clear" intent (though defendant does not discuss what that intent was). But a defendant need not use force to come within section 207, subdivision (a): he need only use "any ... means of instilling fear," such as a yelled command to a young boy walking alone to "get the hell in the van." And the facts permit of no reasonable inference as to defendant's intent other than the one the jury drew.
Defendant also notes that he did not attempt to kidnap Curt and Donovan. This fact, however, does nothing to prove that he did not intend to kidnap Dane. The jury could reasonably have inferred that defendant's failure to coax Curt and Donovan into doing his will so frustrated and angered him that the next time he spotted a potential victim he decided to skip the preliminaries.
Substantial evidence supports defendant's conviction on count 5.
III
Defendant contends that there is insufficient evidence to support his conviction on count 4 (annoying or molesting Dane R.). We disagree.
Under section 647.6, " '[a]nnoy and molest' are synonymous and mean to disturb or irritate, especially by continued or repeated acts; to vex; to trouble; to irk; or to offend. (People v. Carskaddon (1957) 49 Cal.2d 423, 426 [318 P.2d 4]; People v. Thompson (1988) 206 Cal.App.3d 459, 463 [253 Cal.Rptr. 564].)" (People v. Kongs (1994) 30 Cal.App.4th 1741, 1749, 37 Cal.Rptr.2d 327.) "In interpreting [this statute], the courts have focused on the defendant's intent and an objective assessment of the defendant's conduct." (Ibid.) " '[T]he acts forbidden are those motivated by an unnatural or abnormal sexual interest or intent with Although section 647.6 has most often been applied to explicit sexual conduct, it is not restricted to such conduct. (Kongs, supra, 30 Cal.App.4th at p. 1750, 37 Cal.Rptr.2d 327.) Where the evidence shows that a defendant's outwardly ambiguous behavior was motivated by an abnormal sexual interest in children and would have disturbed a child under an objective test, a conviction under section 647.6 is proper. (Ibid.; People v. Thompson (1988) 206 Cal.App.3d 459, 468, 253 Cal.Rptr. 564 [defendant followed 12-year-old victim in car, slowly passing and repassing her numerous times, at one point shaking his hand and moving his mouth as if whispering or pursing his lips; victim became alarmed]; In re Sheridan (1964) 230 Cal.App.2d 365, 372, 40 Cal.Rptr. 894 [defendants gave minor females a ride, then refused to let them out and headed to isolated spot; victims escaped].)
Under this standard, the evidence was manifestly sufficient to support defendant's conviction for annoying or molesting Dane. As we have explained, the jury could reasonably have found that defendant's conduct was motivated by an abnormal sexual interest in young boys; indeed, it could not reasonably have found any other motivation. And it is evident to us not only that Dane was disturbed by defendant's conduct but that any reasonable minor in his circumstances would have been, whether or not the minor perceived the sexual motivation for that conduct. Defendant's bald assertion to the contrary is unpersuasive.
IV
Defendant contends that he suffered prejudice from the admission of evidence of his prior crimes under Evidence Code sections 1101 and 1108 (hereafter "ss 1101, 1108"). He argues that this evidence was inadmissible for any purpose under section 1101, that its admission under section 1108 deprived him of his constitutional right to a fair trial, and that it was more prejudicial than probative under Evidence Code section 352. We shall conclude the evidence was properly admitted under section 1108.
Background.
Citing section 1108 and section 1101, subdivisions (b) and (c), the prosecution moved in limine to introduce evidence of defendant's eight 1983 felony convictions under section 288a, subdivision (c), in its case-in-chief. Defendant opposed the motion.
Evidence Code section 1101 provides in pertinent part: "(a) Except as provided in this section and in Section[ ] 1108 ..., evidence of a person's character or a trait of his or her character ... is inadmissible when offered to prove his or her conduct on a specified occasion. [p] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. [p] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness."
At a pretrial hearing the parties argued the motion. The trial court tentatively ruled that the evidence was admissible in the prosecution's case-in-chief: "The District Attorney has summarized in their [sic ] moving papers sufficient similarities, identical common points such as to demonstrate this is some kind of modus operandi of your client, ... Not just asking to orally copulate the boys, but trying to get them [into] a private location to accomplish that as happened in the other charges...." Before the presentation of evidence began, the trial court confirmed its tentative ruling, expressly finding that the probative value of the evidence under Evidence Code sections 1101 and 1108 outweighed its prejudicial effect. However, the prosecution did not offer evidence of all eight of defendant's prior convictions in its case in chief. Rather, it called Jason H. to testify as to some of the prior offenses.
Jason H. testified that in 1983, when he was 10 or 11 years old, defendant was employed to work on Jason's grandfather's roof and Jason helped him. After a while, defendant started asking him to accompany defendant down to the basement, saying he wanted to "touch" Jason and "suck [Jason's] penis" and that "no one would see" them there. After three or four such requests, Jason gave in and went down there with him. Defendant orally copulated him, then asked him not to tell anyone. Jason remained silent for fear of getting in trouble. The same thing happened at least once more in the basement and once while they were out horseback riding, every time only after repeated demands by defendant and initial refusals by Jason. Defendant never offered Jason anything in exchange for the favor he was asking. Jason finally confessed what had been happening to his mother, who reported it to the police. When defendant testified, he was impeached with his eight prior convictions for violation of section 288a, subdivision (c).
Analysis.
Defendant makes no argument that the trial court erred in allowing defendant to be impeached with his prior convictions when he testified, and we see no error in that regard. This leaves the testimony of Jason H.
The parties debate the admissibility of Jason's testimony under Evidence Code section 1101 at length. We need not consider this question, however, because the trial court also admitted the evidence under Evidence Code section 1108. By enacting section 1108 the Legislature determined that in prosecutions for sexual offenses the policy considerations in favor of admitting evidence of prior sexual offenses so far outweigh those in favor of excluding such evidence that it is presumed admissible without regard to the limitations of section 1101. The only constraint on the admissibility of evidence under section 1108 is the concern for undue prejudice which is codified in Evidence Code section 352. (People v. Fitch (1997) 55 Cal.App.4th 172, 181-183, 63 Cal.Rptr.2d 753.)
Defendant vainly argues that Evidence Code section 1108 violates the constitutional guarantees of due process and equal protection. As he acknowledges, we recently rejected a constitutional challenge to the statute raising the same grounds. (Fitch, supra, 55 Cal.App.4th at pp. 177-184, 63 Cal.Rptr.2d 753.) We decline to revisit this issue.
Defendant asserts that even if Evidence Code section 1108 applies generally to this case it is irrelevant to count 5, the attempted kidnapping of Dane R., because that offense is not a sexual offense enumerated in section 1108. Assuming for the sake of argument the evidence was inadmissible as to count 5, the burden was on defendant to request a limiting instruction, which he did not do. (Evid.Code, § 355; People v. Nudd (1974) 12 Cal.3d 204, 209, 115 Cal.Rptr. 372, 524 P.2d 844; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 887-888, 92 Cal.Rptr. 162, 479 P.2d 362.)
Thus the only remaining question we must resolve is whether the admission of the past-acts evidence under Evidence Code section 1108 caused defendant undue prejudice under Evidence Code section 352. The trial court's exercise of discretion under Evidence Code section 352 must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124, 36 Cal.Rptr.2d 235, 885 P.2d 1.)
In considering this question we are guided by a recent decision of this court, People v. Harris (1998) 60 Cal.App.4th 727, 70 Cal.Rptr.2d 689 (review den.). In Harris, on the unusual facts presented, we found an abuse of discretion in admitting evidence under Evidence Code section 1108 and resulting prejudice In Harris the defendant, a 52-year-old mental health nurse, was accused of nonviolent sexual offenses against two women, one a schizophrenic patient admittedly prone to hallucinating and the other a former sexual partner, both of whom remained on speaking terms with him thereafter. The prosecution was allowed to introduce evidence under Evidence Code section 1108 that 23 years earlier the defendant had committed a violent and perverse sexual assault on a stranger after burglarizing her home--an offense significantly different in nature and quality from the present charges. Furthermore, the evidence of the former act, as presented, was incomplete, distorted, and likely to provoke speculation: the jury learned that the victim was beaten, that the defendant was found with blood on his penis as well as other parts of his body, and that he was convicted of burglary with the infliction of great bodily injury, but the jury did not learn the true facts as to the sexual nature of the attack. However, the prosecutor used the version of the facts the jury heard in order to argue that defendant had committed a vicious sexual assault and that this formed part of a pattern of preying sexually on helpless women, as in the present offenses. Moreover, because the jury learned only of the burglary conviction, it might have been misled into believing that the defendant escaped punishment for the sexual assault, whereas in fact he obtained a dismissal of that charge by pleading guilty to the burglary and was then treated under the former Mentally Disordered Sex Offender law. (Harris, supra, 60 Cal.App.4th at pp. 730-739, 70 Cal.Rptr.2d 689.) We held that the admission of the past-crimes evidence was a prejudicial abuse of discretion under Evidence Code section 352 because the evidence was extremely inflammatory, likely to confuse and distract the jury, remote in time, and so dissimilar to the current offenses as to have minimal probative value. (Id. at pp. 737-741, 70 Cal.Rptr.2d 689.)
Here, on the other hand, defendant's past crimes committed against Jason H. were not fundamentally different in nature or quality from the present offenses: they were simply more successful manifestations of essentially the same conduct. Thus they had strong probative value as to defendant's intent and modus operandi: to make the acquaintance of potential victims, to win their trust, and then to persuade them to allow oral copulation, preferably in a remote and secluded spot. Nor were the past crimes likely to inflame the jury emotionally against defendant without regard to any issue in the case, which is the test of undue prejudice under Evidence Code section 352. (People v. Brogna (1988) 202 Cal.App.3d 700, 709-710, 248 Cal.Rptr. 761.) Nor was the past-crimes evidence particularly remote: defendant committed the prior crimes 13 years before, spent 11 years in state prison, and reoffended only 2 years after his release. Nor did the presentation of the past-crimes evidence take up undue time at trial.
For all of these reasons, we see no abuse of discretion or prejudice to defendant from the admission of the past-crimes evidence.
V
Defendant contends that the trial court erred by failing to instruct the jury sua sponte on annoying or molesting a child (§ 647.6, subd. (a)) as a lesser included offense of count 1 (lewd and lascivious act with Curt C.; § 288, subd. (c)(1)). In the alternative, if annoying or molesting a child is not a lesser included offense of lewd and lascivious conduct with a minor but only a lesser related offense as to which defendant was not entitled to an instruction absent a request (People v. Geiger (1984) 35 Cal.3d 510, 531, 199 Cal.Rptr. 45, 674 P.2d 1303), defendant contends he received ineffective assistance of counsel because counsel did not request such an instruction. We reject both contentions.
The lesser-included-offense argument.
Assuming without deciding that annoying or molesting a child (§ 647.6, subd. (a)) is a lesser included offense of lewd and lascivious conduct with a minor under 14 (§ 288) (see People v. Memro (1995) 11 Cal.4th 786, 870-871, 47 Cal.Rptr.2d 219, 905 P.2d 1305), the trial court was not required to instruct thereon because the prosecution evidence, if believed, established all the elements The lesser-related-offense argument.
For the reasons given above, defendant's counsel did not provide ineffective assistance by failing to request an instruction on annoying or molesting a child as a lesser related offense to count 1. Instruction on a lesser related offense, like that on a lesser included offense, is improper where there is no basis on which the jury could find that the offense was less than that charged. (Geiger, supra, 35 Cal.3d at p. 531, 199 Cal.Rptr. 45, 674 P.2d 1303.) As we have explained, the jury could not have done so here. It is not ineffective assistance of counsel to refrain from seeking instructions unsupported by the evidence. (See People v. Reeves (1980) 105 Cal.App.3d 444, 453-454, 164 Cal.Rptr. 426; People v. Moles (1970) 10 Cal.App.3d 611, 618, 89 Cal.Rptr. 226.)
VI
Defendant contends the trial court erred by failing sua sponte to give a unanimity instruction (CALJIC No. 17.01) as to count 2 (annoying or molesting Curt C.) because a conviction thereon could have been based on two different acts--his repeated requests to orally copulate Curt and his actual touching of Curt--and the prosecution not only failed to elect one of the two but argued expressly that the jury could convict based on either. We conclude that any error was harmless.
"When the defendant is charged with an offense in a single count, the evidence shows more than one criminal act of the kind alleged, and the prosecution has not elected to rely on a particular act, the trial court must generally give CALJIC 17.01, sua sponte, requiring the jury to agree unanimously that a particular criminal act was committed beyond a reasonable doubt." (1996 CJER Mandatory Criminal Jury Instructions Handbook (1997) § 3.8, p. 99.)
However, error in failing so to instruct is harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710-711) if the jury could only have believed that the defendant committed both acts or neither. (People v. Deletto (1983) 147 Cal.App.3d 458, 472, 195 Cal.Rptr. 233.)
The jury could not logically have found that defendant asked Curt to permit oral copulation but did not lewdly touch Curt, or vice versa. According to Curt, defendant did both; according to defendant, he did neither. Thus the issue was a pure credibility contest. Defendant points to no basis on which the jury could reasonably have chosen to believe part of Curt's story and disbelieve the rest. Thus any error in failing to give a unanimity instruction was harmless beyond a reasonable doubt. (Ibid.)
VII
Defendant contends that the trial court erred by instructing the jury, over objection, with a modified version of CALJIC No. 2.20.1 as follows: "In evaluating the testimony of a child you should consider all of the factors surrounding the child's testimony, including the age of the child and any evidence regarding the child's level of cognitive development. Although, because of age and level of cognitive development, a child may perform differently as a witness from an adult, that does not mean that a child is any more or less credible a witness than an adult. You should not discount or distrust the testimony of a child solely because he or she is a child. [p] 'Cognitive' means the child's ability to CALJIC No. 2.20.1, which is taken directly from section 1127f, is titled "Evaluation of Testimony of Child Ten Years of Age or Younger" and includes the bracketed phrase "ten years of age or younger" after the opening clause. (CALJIC No. 2.20.1 (6th ed.1996) p. 65.) Section 1127f mandates the instruction in any criminal trial in which a child 10 or younger testifies. Here, however, the victims were all over 10 years of age. Defendant protested that the instruction was therefore inapplicable and proposed a different, non-CALJIC instruction on the subject of child witnesses' credibility. The trial court found that CALJIC No. 2.20.1 is not expressly restricted to cases where the testifying children are under 10 and decided to give that instruction rather than defendant's.
The use note explains that the bracketed phrase should be used where more than one child testifies and one is 10 or under but another is over 10. (Ibid.)
Defendant asserts that CALJIC No. 2.20.1 unconstitutionally deprived him of due process because it instructed the jury to give special deference to the testimony of the child witnesses. As he acknowledges, such attacks on the constitutionality of the instruction have been repeatedly rejected. (People v. Jones (1992) 10 Cal.App.4th 1566, 1572-1574, 14 Cal.Rptr.2d 9; People v. Gilbert (1992) 5 Cal.App.4th 1372, 1393, 7 Cal.Rptr.2d 660; People v. Harlan (1990) 222 Cal.App.3d 439, 455-457, 271 Cal.Rptr. 653.) We believe these cases were correctly decided. For the reasons given therein, we reject defendant's due process argument.
Defendant also asserts, as below, that the instruction should not have been given here because the child witnesses were all over 10. He cites no authority for this proposition, and we are aware of none. Section 1127f mandates the giving of the instruction upon request where a witness is a child 10 years of age or younger. But the statute does not preclude the instruction where a child is older than 10. Here, the trial judge, who viewed the witnesses testify, and was therefore able to evaluate their maturity, was in the best position to determine whether CALJIC No. 2.20.1 would aid the jury. We conclude the instruction was properly given.
But even assuming the instruction should not have been given, any error was necessarily harmless because CALJIC No. 2.20.1 does not tell the jury that it should consider the testimony of child witnesses more credible than that of others. (Jones, supra, 10 Cal.App.4th at pp. 1572-1574, 14 Cal.Rptr.2d 9.)
VIII
Defendant attacks the constitutionality of the reasonable doubt instruction (CALJIC No. 2.90) given in this case, which was in the form suggested by our Supreme Court in People v. Freeman (1994) 8 Cal.4th 450, 504, footnote 9, 34 Cal.Rptr.2d 558, 882 P.2d 249.
Defendant's attack on this instruction has been repeatedly and unanimously rejected by other districts of the Court of Appeal. (See People v. Aguilar (1997) 58 Cal.App.4th 1196, 68 Cal.Rptr.2d 619 [First District]; People v. Barillas (1996) 49 Cal.App.4th 1012, 1022, 57 Cal.Rptr.2d 166 [Second District]; People v. Carroll (1996) 47 Cal.App.4th 892, 895-896, 54 Cal.Rptr.2d 868 [Fourth District]; People v. Hurtado (1996) 47 Cal.App.4th 805, 815-816, 54 Cal.Rptr.2d 853 [Sixth District]; People v. Tran (1996) 47 Cal.App.4th 253, 262-263, 54 Cal.Rptr.2d 650 [Sixth District]; People v. Light (1996) 44 Cal.App.4th 879, 884-889, 52 Cal.Rptr.2d 218 [Fifth District]; People v. Torres (1996) 43 Cal.App.4th 1073, 1077-1078, 51 Cal.Rptr.2d 77 [Second District].)
We agree with these cases and reject defendant's contention of error.
IX
Defendant contends that the trial court erred under "three strikes" by imposing consecutive 25-years-to-life sentences on counts 1, 2, 3, and 5, rather than a total aggregate term of 25 years to life for all four counts. As he acknowledges, this court and
X
Defendant contends that the trial court erred by imposing consecutive sentences on counts 1, 2, and 3 in the belief that such sentencing was mandatory under section 667, subdivision (c)(6), even though these crimes were all committed on the same occasion. Because his convictions on counts 2 and 3 will be reduced to misdemeanors, this contention is moot.
XI
Defendant contends his sentence of 105 years to life is cruel and unusual. We disagree.
In Harmelin v. Michigan (1991) 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 the United States Supreme Court upheld a mandatory sentence of life in prison without possibility of parole for a single conviction of possession of cocaine. In Rummel v. Estelle (1980) 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 the court upheld a life sentence for a recidivist convicted of a series of nonviolent financial offenses. In light of the court's determination that these sentences were not cruel and unusual, defendant's sentence for multiple counts of attempted sexual offenses against minors, after prior convictions for eight felony counts of similar completed offenses, is not cruel and unusual under the federal constitutional standard.
Under the California standard of "cruel or unusual" punishment, according to which we must consider the nature of the offense and/or the offender, the nature of the penalty as compared to those prescribed in California for other, more serious offenses, and the nature of the penalty as compared to those prescribed for the same offense in other jurisdictions (In re Lynch (1972) 8 Cal.3d 410, 425-427, 105 Cal.Rptr. 217, 503 P.2d 921), we reach the same conclusion.
Defendant tries vainly to minimize the seriousness of both his present and his past crimes. He asserts that the present crimes "primarily consisted of pleading requests" which were "easily evaded by all three boys" and that he was "unarmed and injured no one," while the past crimes arose from only one set of charges and were over a decade old. But all his crimes, both attempted and completed, fall into a class of crime which the Legislature has singled out for harsh punishment, regardless of whether defendant physically injured any of his victims or whether some of them could evade him. Moreover, the fact that he attempted to kidnap Dane R. after failing to get his way with "pleading requests" to the other victims shows that defendant becomes increasingly dangerous when frustrated. Furthermore, as we have already noted, the age of the past crimes does not count in his favor because he reoffended within a short time after being released from prison. Finally, defendant fails to reckon with the fact of his recidivism, which in itself justifies the sentence imposed. (People v. Cooper (1996) 43 Cal.App.4th 815, 823-825, 51 Cal.Rptr.2d 106; People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630, 47 Cal.Rptr.2d 769.)
Defendant makes no argument as to the second and third Lynch factors. Thus we need not address them.
XII
Defendant contends that the trial court improperly calculated his conduct credits by awarding him only 15 percent of worktime credit pursuant to section 2933.1, which limits credit in that manner where a defendant is convicted of a felony offense listed in section 667.5. Defendant maintains that this The probation report recommended that defendant be awarded 262 actual days' credit plus 46 days' conduct credit pursuant to section 2933.1, finding that this limitation applied because of defendant's conviction on count 5 (attempted kidnapping). The trial court accepted this recommendation in sentencing. However, as defendant points out, although kidnapping is one of the "violent felonies" listed in section 667.5, subdivision (c), attempted kidnapping is not.
Section 2933.1 provides in part: "... [A]ny person who is convicted of a felony offense listed in Section 667.5 shall accrue no more than 15 percent of worktime credit...."
Defendant and the People agree that he is entitled to 130 days of conduct credits in addition to his 262 days of actual credits. (§ 4019; People v. Smith (1989) 211 Cal.App.3d 523, 527, 259 Cal.Rptr. 515.) On remand the trial court is directed to amend the abstract of judgment to reflect this amount of credit and to forward the amended abstract to the Department of Corrections.
DISPOSITION
Defendant's convictions on counts 2, 3 and 4 are reduced to violations of section 647.6, subdivision (a), misdemeanors and as reduced are affirmed as are his remaining convictions. The sentence is vacated and the matter is remanded to the trial court for resentencing in light of this opinion.
PUGLIA, P.J., and CALLAHAN, J., concur.
Evidence Code section 1108 provides in pertinent part: "(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352. [p] ... [p] (c) This section shall not be construed to limit the admission or consideration of evidence under any other section of this code. [p] (d) As used in this section, the following definitions shall apply: [p] (1) 'Sexual offense' means a crime under the law of a state or of the United States that involved any of the following: [p] (A) any conduct proscribed by Section ... 288a ... of the Penal Code."