People v. Sigur , 189 Cal. Rptr. 3d 460 ( 2015 )

Filed 7/9/15
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE, C071489
Plaintiff and Respondent, (Super. Ct. No. CRF105047)
v.
JASON STEPHEN SIGUR,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Yolo County, Stephen L.
Mock, Judge. Affirmed as modified.
Kyle Gee, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Jennevee
H. de Guzman, Deputy Attorneys General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of parts I, III, IV, V, VI, and VII of the Discussion.
1
Defendant Jason Stephen Sigur appeals from a judgment of conviction following a
jury trial. After meeting in an Internet chat room, defendant engaged in a sexual
relationship with a thirteen-year-old girl for approximately two months, including in the
home where the victim lived with her mother and grandmother after secretly entering
through the victim’s bedroom window for that purpose. He was charged with 11 counts
of contacting or communicating with a minor (Pen. Code, § 288.3, subd. (a) (Counts 1,
15-16, 21-22, 27-28, 33, 36, 39, 41)),1 one count of kidnapping for purpose of lewd act
upon a child (§ 207, subd. (b) (Count 2)), nine counts of first degree burglary (§ 459
(Counts 3, 17-18, 23-24, 29-30, 34, 37)), 20 counts of lewd and lascivious acts upon a
child under fourteen (§ 288, subd. (a) (Counts 4-14, 19-20, 25-26, 31-32, 35, 38, 40)),
and failure to register as a transient sex offender (§ 290.011, subd. (a) (Count 42)). It was
further alleged that Count 2 came within the meaning of section 667.8, subdivision (b);
Counts 3, 17-18, 23-24, 29-30, 34, and 37 came within the meaning of section 667.5,
subdivision (c)(21); Counts 4-6 and 8-14 came within the meaning of section 667.61,
subdivisions (a) and (b); and Counts 2-14, 17-20, 23-26, 29-32, 34-35, 37-38, and 40
came within the meaning of section 667, subdivision (a)(1), due to defendant’s prior
conviction of a serious felony. A jury found defendant guilty on all counts and found the
sexual conduct enhancement allegations true. In a bifurcated proceeding, the trial court
found all strike allegations true. The trial court sentenced defendant to a determinate
term of 103 years in prison plus an indeterminate term of 550 years to life.
On appeal, defendant contends that: (1) the prosecutor engaged in misconduct by
misstating the law regarding reasonable doubt; (2) the trial court erred in denying
defendant’s section 1118.1 motion for judgment of acquittal as to the burglary counts
because the evidence showed that the victim consented to his entry into the home
1 Undesignated statutory references are to the Penal Code in effect at the time of the
charged offenses.
2
knowing his intent to engage in sexual acts with her; (3) the prosecutor engaged in
misconduct by misstating the law regarding the consent defense to burglary; (4) the
cumulative effect of the prosecutorial misconduct requires reversal of the burglary
counts; (5) section 288.3 is unconstitutionally vague; (6) section 288.3 is
unconstitutionally overbroad; and (7) the fifteen-year enhancement imposed under
section 667.8, subdivision (b), must be stayed because sentence was stayed on the
underlying count.
We agree with defendant that the enhancement under 667.8, subdivision (b), must
be stayed. We reject each of defendant’s other contentions.
In the published portion of this opinion, we address and reject defendant’s consent
defense contentions regarding the burglary counts. We hold that when a defendant does
not have an unconditional possessory right to enter as an occupant of the premises, a
defense of consent to enter the premises for the purposes of engaging in felonious sexual
conduct with a minor requires one of the following: (1) the minor has a possessory
interest in the premises coequal to the parent or other adult owner/occupant and expressly
and clearly invited the defendant to enter so the defendant could engage in felonious
sexual conduct with the minor; or (2) a parent or other adult who has a possessory interest
in the premises expressly and clearly gave the defendant permission to enter for the
purpose of engaging in felonious sexual conduct with the minor; or (3) the minor
expressly and clearly gave the defendant permission to enter for the purpose of engaging
in felonious sexual conduct with the minor, the minor had been given permission by the
parent or other person with a possessory interest to allow entry into the premises for such
purpose, and defendant knew that the minor had been given such permission. The
evidence here did not establish any of the aforementioned alternatives.
We affirm.
3
FACTUAL AND PROCEDURAL BACKGROUND
The Trial Evidence
A.B. testified that she was born on June 21, 1997. A.B.’s parents, D.B. (mother)
and C.B. (father), were divorced and A.B. alternated every other week between her
mother’s and father’s homes. At the time of her contacts with defendant, A.B. had a cell
phone with Internet access and had access to a home computer at her mother’s home.
When she stayed at her father’s home, she was not allowed to use her cell phone except
to call her mother, and she did not have access to a computer there. When A.B. stayed at
her mother’s home, she occupied the front bedroom, her grandmother occupied the rear
bedroom, and D.B. slept on the sofa in the living room.
A.B. testified that in late 2009, when she was 12 years old, she began visiting an
online chat room on the airG website. Because airG required users to be at least 14 to
create a profile and chat, A.B. created a profile listing her age as 14. She would visit the
“singles” and “20’s” chat rooms to chat with others online every day. Her parents were
unaware of her participation in these chat rooms.
In late August 2010, when A.B. was 13, she met defendant in a chat room when
she asked whether anyone in the 916 or 530 area codes was in the chat room and
defendant responded. A.B. viewed defendant’s profile, which indicated he was in his
twenties. A.B. and defendant began chatting privately, and A.B. then gave defendant her
cell phone number. Defendant sent A.B. a text message and they communicated by text
messages for about 90 minutes. During this initial conversation, A.B. revealed that she
was actually 13 and defendant revealed that he was actually 35, and the two agreed to
meet in person. A.B. asked defendant to visit her, and later that same day, defendant met
A.B. outside her mother’s home. He arrived in a purple Ford Ranger pick-up.
Thereafter, defendant and A.B. took a 20-minute walk together. They agreed that if they
ran into someone who questioned their age difference, they would say defendant was
A.B.’s uncle.
4
A.B. testified that she and defendant continued to communicate via text messages
daily, and defendant came to visit her at her mother’s house several days later. They
walked to a more secluded area where defendant and A.B. kissed for a while and at
defendant’s request, A.B. orally copulated him. During this visit, defendant told A.B.
that he wanted to have sex with her. A.B. was a virgin at that time and she told him she
was worried that it wasn’t the right time for her and that her mother would find out. She
also told him that she was worried he would leave her afterward, and defendant reassured
her and told her that he loved her. A.B. then went to stay at her father’s house for a
week, but she and defendant continued to send each other text messages when she was
able to use her cell phone. They discussed their feelings for each other and agreed to
become a couple.
When A.B. returned to her mother’s home the following week, she and defendant
arranged to meet a third time. Defendant asked if he could come visit A.B. at her
mother’s house, and she said yes. This time, defendant came to her bedroom window at
night. Defendant pulled off the window screen and A.B. sat on the window sill. A.B.
testified that she and defendant kissed and defendant touched her breast and vagina.
Defendant again told A.B. that he wanted to have sex with her and she felt somewhat
pressured but said she was not ready. Defendant was outside A.B.’s window for several
hours and then came inside her room to say good night. A.B. promised him that she
would have sex with him the next time he visited her.
A.B. again went to her father’s house for a week, and she and defendant continued
to send each other text messages and spoke over the phone. She told defendant she
would “keep [her] promise.” A.B. testified that she felt like she had to keep her promise
to have sex with defendant because she did not know him very well and “for a while
[she] was scared that he was going to try to hurt [her] or pull a weapon on [her].” The
next week when A.B. returned to stay with her mother, defendant and A.B. planned for
him to come over for the fourth time, again at night while A.B.’s mother was sleeping.
5
A.B. testified that when defendant arrived, she “just told him to come in” and defendant
climbed through A.B.’s bedroom window. Defendant kissed and fondled A.B. and
removed her clothing. A.B. orally copulated him and then defendant had vaginal
intercourse with her. After this fourth visit, defendant made five or six similar visits to
A.B. between September and October 15, 2010, and they had vaginal intercourse and she
performed oral sex on defendant each time.
At some point during this time period, A.B.’s father, C.B., found messages from
defendant on A.B.’s cell phone and confronted her about them. A.B. told her parents that
defendant was a 14-year-old boy who skateboarded in the neighborhood. After that, A.B.
was not allowed to bring her cell phone to her father’s home and her mother would
confiscate the phone at night while A.B. was staying at her mother’s home.
C.B. testified he had a phone conversation with a person who identified himself as
Jason2 and sounded like an adult. C.B. asked Jason if he knew A.B. was a minor, and the
man said A.B. told him she was 18. C.B. told him not to call back because she was only
13. He also told the man he would involve the sheriff’s office if the man contacted A.B.
again. C.B. told A.B. he did not appreciate her talking to an adult and not to contact him
again. C.B. took A.B.’s phone from her.
A.B. testified that on October 14, 2010, she was supposed to return to stay with
her father, but she told defendant that she did not want to go there and wanted to stay
with defendant instead. Defendant had previously told A.B. that he wanted her to come
live with him. Defendant agreed to take A.B. that night to stay with him. When
defendant arrived, A.B. again opened her window to let defendant come into her room.
2 C.B. initially recalled that he interrupted a phone conversation A.B. was having, took
the phone from her and spoke to Jason at that time. Later, he acknowledged he had told a
deputy sheriff he had seen inappropriate text messages and called the number associated
with those messages. Ultimately, he said he was not sure who initiated the call.
6
A.B. packed her clothing and possessions, and defendant brought her a bag to carry them
and helped her pack. A.B. did not pack her cell phone because her mother had it in the
living room. She left with defendant through the window around midnight, and they
replaced the window screen. Defendant drove a white Yukon, which he said he borrowed
because his pick-up was out of gas. They planned to tell others that A.B.’s father could
no longer take care of her and defendant was a friend of her father’s. They stopped at
Walmart for various sundries for A.B. on the way to defendant’s home, which was in a
trailer park in Woodland. When they arrived at defendant’s trailer, defendant and A.B.
had vaginal intercourse. Defendant then returned the Yukon, which he had borrowed
from his estranged wife. Afterward, they returned to the trailer and had vaginal
intercourse a second time.
A.B. testified that the next morning, October 15, she and defendant woke up early
and went for a walk, during which A.B. met defendant’s former roommate, Brandon K.
A.B. testified that defendant received two or three phone calls, and A.B. saw that one of
them was her mother calling from A.B.’s cell phone. Defendant then went to school,
leaving A.B. alone in his trailer.
D.B. testified that when she discovered A.B. was missing on the morning of
October 15, she called 911 and called C.B. Suspecting that A.B. was with defendant,
who she thought to be a 14 year old in the neighborhood, D.B. then called his number
from A.B.’s phone and left a message that she was looking for A.B. After a deputy
sheriff arrived at D.B.’s home in response to her 911 call, D.B. checked the household
computer and found a conversation with defendant on A.B.’s instant messenger account,
which she provided to the deputy.
Deputy Laura Bradshaw testified that after interviewing C.B. and D.B. and
obtaining defendant’s cell phone number, she received authorization to ping the cell
phone and found its location in Dunnigan. She then contacted the Yolo County Sheriff’s
Department and requested a welfare check at that address. Deputies Roman Keister and
7
Matthew Davis conducted the welfare check and spoke with a woman who informed
them that defendant was her stepmother’s husband but no longer lived there. She told the
deputies that defendant lived at a nearby trailer park and drove a purple truck. The
deputies went to the trailer park and found a purple Ford Ranger with a license plate
registered in defendant’s name parked next to a trailer. Deputy Keister testified that A.B.
responded to their knock on the trailer door. She asked Deputy Keister if her parents
were with him. He explained that they were not, but that they were worried about her.
She told the deputies that she did not want to be there and she was afraid that she would
never see her parents again. Deputy Keister testified that A.B. then hugged and thanked
him.
A.B. was taken to the sheriff’s department where she was interviewed by two
detectives. A.B. initially lied to the first detective, Detective Dean Nyland, about having
sex with defendant because she was afraid of getting in trouble and felt awkward talking
about it. Detective Nyland testified that he thought A.B. would be more comfortable
talking to a female detective, and Detective Jennifer Davis took over the interview. A.B.
then told Detective Davis the full story and admitted that she had a sexual relationship
with defendant.
Thereafter, A.B. was taken to a hospital where she underwent a forensic sexual
assault examination. Dr. Angela Rosas testified that she collected swabs of semen from
A.B.’s vagina and underwear. It was later determined that the DNA from these swabs
matched defendant. Additionally, DNA from semen found on A.B.’s mattress cover in
her room at D.B.’s home matched defendant.
Defendant’s former roommate, Brandon K., testified that defendant asked him to
move out of the trailer because his girlfriend was moving in with him. Additionally,
Brandon K. testified that defendant had talked about A.B. by her first name and bragged
about having sex with her. He testified that on the morning of October 15, defendant
introduced him to A.B. as his girlfriend.
8
The prosecution presented additional evidence, including a receipt from Walmart
and security video footage showing defendant and A.B. at the cash register at 1:36 a.m.
on October 15, 2010. Further, there were cell phone records of numerous calls and text
messages between defendant and A.B.
While being transported to the sheriff’s office after his arrest, defendant asked
why he had been arrested and Deputy Keister told him that he was wanted for
questioning about a missing girl found in his trailer. Defendant replied, “What girl[?]
When I left this morning no one was in my trailer.”
Defendant was later interviewed by Detective Nyland. Initially, he said he only
met in person two women he had first met in chat rooms, but denied meeting anyone else
from a chat room in person. He denied knowing anyone in El Dorado Hills and denied
even knowing where El Dorado Hills was located or how to get there. He admitted
receiving a voicemail from a D.B., but said the call came from a phone number he did not
recognize. In the voicemail, D.B. said something about her daughter being missing, but
defendant said he had no idea who D.B. was. He denied ever hearing the name A.B. or
meeting anyone with A.B.’s first name in a chat room. He denied picking A.B. up at her
house and taking her to his trailer. He said he did not know A.B. and claimed he never
met A.B.
Early in the interview defendant claimed he met a young female at his trailer park
the day of his arrest who approached him and asked what it was like to live there. He
first said the girl appeared to be 15 or 16. Later in the interview, when asked how he
would explain his DNA inside the victim, he said the girl he met at the trailer park that
day had flirted with him and followed him into his trailer. He said nothing happened
between the two of them and that when he left his trailer, there was nobody there. Later,
he said the girl indentified herself by her first name [A.] and that he had actually met her
in a chat room in June. Defendant claimed she told him she had just turned 18. He
claimed that she came on to him and he had vaginal intercourse with her in his trailer.
9
Thereafter, at her request, they walked around the trailer park together. Defendant denied
ever going to the girl’s house, but said they had texted each other daily since they met in
the chat room. He said multiple times that he did not know how the girl got to his trailer
park and that day had been the first time he physically met the girl. He said he did not
know in advance that she was coming. On multiple occasions during the interview, he
denied picking her up at her house. He also denied entering the house through the girl’s
window and said the last time he had climbed through a window was when he was 17.
Multiple times during the interview, he denied ever going to the girl’s house. And he
denied being with the girl in Walmart earlier that morning. In contrast to his earlier
statement that the girl was around 15 or 16, at this point in the interview he claimed the
girl seemed at least 18 to him.
While defendant was in custody at the jail, he asked a volunteer to send a message
to A.B.’s email on his behalf. The message said, “[H]e still loves you and asks that you
please write him.”
Defendant did not present any testimony in his defense.
Verdict and Sentencing
The jury found defendant guilty on all counts and found all sexual conduct
enhancement allegations true. In a bifurcated proceeding, the court found the strike
allegations true.
The trial court sentenced defendant to a total determinate term of 103 years in
prison plus an indeterminate term of 550 years to life.
DISCUSSION
I. Prosecutor’s Comment on Reasonable Doubt
A. Background and Defendant’s Contentions
During closing argument, defense counsel argued the following: “[T]he thing
about -- with reasonable doubt is that it has two separate components to it, and it is our
highest legal standard of proof, but also it is that it has to have an abiding conviction,
10
meaning that the decisions you make as to this case ha[ve] to last over time. Not just
during the course of your deliberations, not just from a week or two from now, the
decisions that you make in regards to this case have to last you for the rest of your lives.
That is how important these concepts are . . . . [¶] And just as a hypothetical anyways is
that you would be able to bring this whole concept of reasonable doubt to you [sic]. We
used to be able to get up and be able to argue with you that the decision you make is as
important as the decision that you make in who you choose to marry. [¶] You know
what, we can’t make that argument any more because what we know of some statistics is
that most marriages, they end in five years. So what that means is that you did not have
an abiding conviction as to who you chose to marry, and to be able to sync this all home
to you is that you might want to think about that, that the decisions that you make here in
this courtroom during deliberations are even more important than who you choose to
spend the rest of your life with. [¶] That is what it means to be able to review the
evidence beyond a reasonable doubt.”
The prosecutor responded to defense counsel’s argument in rebuttal. The
following argument, objection, and ruling took place at that time:
“[THE PROSECUTOR]: I’m going to close with talking about reasonable doubt a
little bit. When I sit and I listen to [defense counsel] it sounds like, oh, my gosh, that is
so such an unattainable standard, but it is not an unattainable standard. Excuse me. [¶]
Every juror -- jury across the nation uses the same standard and jurors return guilty
verdicts every day. The standard is the same in a DUI case as in a murder case, and DUI
convictions come along every day. Murder convictions come along every day. It is not
an unattainable standard. It is -- and it’s not analogous to you deciding to get married. I
mean, those two things don’t even -- aren’t in the same ballpark, the same playing field.
[¶] Being convinced beyond a reasonable doubt just means you feel good about your
decision. You feel you’re making the right decision, and you’re going to feel that way
tomorrow --” (Italics added.)
11
“[DEFENSE COUNSEL]: Objection --
“[THE PROSECUTOR]: -- and the next day.
“[DEFENSE COUNSEL]: -- misstatements.
“THE COURT: Overruled.
“[THE PROSECUTOR]: And you’re going to feel that way the next day, and the
next day. You’re not going to question yourself. That’s all it means. [¶] And in this
case aren’t you convinced, is there any doubt in your mind as you sit here right now that
the defendant has been having sex with [A.B.] since mid August? Is there any doubt in
your mind that he kidnapped her on October 14th, and that he had sex with her two times
on October 15th. [¶] The evidence in this case is overwhelming, and as you sit here
today you should have no doubt in your mind of the truth of the charges.”
Defendant contends that the prosecutor engaged in misconduct by misstating the
law on reasonable doubt and this misconduct prejudiced defendant. Specifically, he
contends that the prosecutor “temporally quantified ‘abiding conviction’ in terms of
‘feel[ing] good’ for a few days about the decision.”
B. Analysis
“ ‘The applicable federal and state standards regarding prosecutorial misconduct
are well established. “ ‘A prosecutor’s . . . intemperate behavior violates the federal
Constitution when it comprises a pattern of conduct “so egregious that it infects the trial
with such unfairness as to make the conviction a denial of due process.” ’ ” [Citations.]
Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is
prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury.” ’ ” [Citation.]’
[Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill), overruled on another
ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
A prosecutor commits misconduct when she misrepresents the standard of proof or
trivializes the quantum of evidence required to meet the standard of proof. (Hill, supra,12
17 Cal.4th at pp. 828-829.) “When the claim focuses on the prosecutor’s comments to
the jury, we determine whether there was a reasonable likelihood that the jury construed
or applied any of the remarks in an objectionable fashion.” (People v. Booker (2011) 51
Cal.4th 141, 184-185 (Booker); see also People v. Pierce (2009) 172 Cal.App.4th 567,
572 (Pierce).)
Defendant claims reversible error based on the comments preceding his timely
objection, which was expressly grounded on misstatement of the law, and the court’s
decision to overrule that objection, as well as the comments the prosecutor made
thereafter. Defendant contends that the following comment by the prosecutor was
misconduct: “Being convinced beyond a reasonable doubt just means you feel good
about your decision. You feel you’re making the right decision, and you’re going to feel
that way tomorrow. . . .” Defendant argues this was a misstatement of law because it
impermissibly reduced the prosecution’s burden of proof to a mere duty to persuade
jurors to make a decision about which they felt good. In context, we do not see it that
way. The prosecutor’s remarks before and after the objection make plain that she was
not equating her burden of proof with the creation of good feelings but was illustrating
the lasting and permanent nature of the term “abiding.”
The prosecutor argued, “You feel you’re making the right decision, and you’re
going to feel that way tomorrow -- [¶] -- and the next day. [¶] . . . [¶] And you’re going
to feel that way the next day, and the next day. You’re not going to question yourself.”
This argument was responsive to and consistent with defense counsel’s argument that
“the decisions you make as to this case ha[ve] to last over time. Not just during the
course of your deliberations, not just from a week or two from now, the decisions that
you make in regards to this case have to last you for the rest of your lives.” Contrary to
defendant’s interpretation, the prosecutor’s comments did not imply that the jury’s
“abiding conviction” only had to last a few days; the language “the next day, and the next
day” implied perpetuity. Much like defense counsel’s remarks, the prosecutor’s
13
comments evoked the concept of permanence. (See Pierce, supra, 172 Cal.App.4th at
pp. 573-574 [no reasonable likelihood that jury was misled by prosecutor’s remarks
evoking permanence].)
The trial court did not err by overruling the defense objection to the prosecutor’s
argument. There is not a reasonable likelihood the jury construed or applied the
prosecutor’s remarks in an objectionable fashion. (Booker, supra, 51 Cal.4th at pp. 184-
185.) No reasonable juror would have understood the prosecutor’s argument to mean
that, contrary to the court’s instructions, an “abiding conviction” merely required the jury
to “ ‘feel[] good’ for a few days about the decision.” The prosecutor’s argument was
neither deceptive nor reprehensible, and it did not constitute misconduct. (Hill, supra, 17
Cal.4th at p. 819.)
Even if the prosecutor’s remarks amounted to misconduct, the remarks were not
prejudicial. The evidence against defendant was overwhelming. (See Booker, supra, 51
Cal.4th at p. 186 [jury properly instructed on the prosecution’s burden of proof and
evidence of defendant’s guilt was overwhelming]; People v. Katzenberger (2009) 178
Cal.App.4th 1260, 1264, 1268-1269 [prosecutor’s use of puzzle picture of the Statue of
Liberty with missing pieces to illustrate reasonable doubt was misconduct, but the error
was harmless, in part, because of the strength of the evidence].)
Here, the trial court properly instructed the jury on reasonable doubt. The court
read the standard reasonable doubt instruction during the preliminary instructions at the
beginning of the trial. It reread the instruction as part of the predeliberation instructions.
Additionally, the court reinforced the primacy of that instruction by instructing the jury
that if “the attorneys’ comments about the law conflict with my instructions, you must
follow my instructions.” The evidence against defendant -- including A.B.’s testimony,
the circumstances of how and where she was found, the DNA evidence, the electronic
communications between defendant and A.B., and defendant’s false statements to the
police -- was overwhelming.
14
Defendant argues that the evidence was not overwhelming on the nine burglary
counts, because he presented a “highly persuasive” consent defense grounded on A.B.’s
invitation to enter her room on each occasion. The prosecutor’s purported misstatement
as to reasonable doubt, according to defendant, was particularly prejudicial on these
counts. We disagree. We address the consent defense in more detail, post. For now, we
note that the evidence is overwhelming on the burglary counts as well. The evidence of
defendant’s nocturnal and clandestine visits, his false statements about never visiting the
victim’s house, and the inference from this evidence that he knew A.B.’s mother did not
authorize his visits or give A.B. permission to allow these visits negate his consent
defense.
Considering the record as a whole, including the trial court’s instructions and the
overwhelming evidence of guilt, we conclude that even if the prosecutor’s argument was
misconduct, any error was harmless beyond a reasonable doubt.
II. Burglary and the Consent Defense
A. Background and Defendant’s Contentions
At the conclusion of all of the evidence, defendant moved for judgment of
acquittal as to five of the burglary counts, contending that A.B.’s testimony was
insufficient to support a jury finding that defendant entered D.B.’s home on five of the
charged occasions.3 The trial court denied defendant’s motion on the basis raised by
defendant, finding sufficient evidence to proceed to jury deliberation on these counts.
The court then considered a separate basis for a judgment of acquittal that defendant did
not raise himself: “There is a separate issue, and that is a consent issue. . . . [¶] . . . To
3 In his opening brief, defendant contends that he moved for a “judgment of acquittal as
to all nine burglary counts” and implies that he did so on the basis of the consent defense.
(Emphasis added.) This characterization of defendant’s motion is not supported by the
record. In fact, defendant moved to dismiss five of the burglary counts (counts 18, 24,
30, 34, and 37), contending there was insufficient evidence of entry.
15
support a consent defense the evidence has to show that the occupant, that is [A.B.],
expressly invited the defendant into the bedroom. [¶] In reviewing my notes I don’t find
any evidence of an express invitation before October 14th or October 15th. So I don’t
find that one of the prerequisites to a consent defense is supported by the evidence. The
jury may take a different tack on this, but I would not dismiss any of the burglary charges
based on a purported consent defense until -- through October 14th, 15th.” The court
reasoned that while there was evidence of A.B.’s express consent to enter the home on
October 14th, the night of the kidnapping, there was not sufficient evidence that A.B.
knew of defendant’s felonious intent. Thus, the court ruled that “the consent defense
would [not] justify dismissing any of the burglary charges.” However, the court later
instructed the jury on the consent defense in a special instruction requested by
defendant.4
On appeal, defendant contends the trial court erred in ruling an “ ‘express
invitation’ ” is required to establish the consent defense to burglary charges. Defendant
also argues that the trial court should have granted his section 1118.1 motion because
there was substantial evidence that A.B. consented to defendant’s entry into her mother’s
home and did so with knowledge of his felonious intent, i.e., that defendant intended to
have sex with her.
4 Defendant’s special instruction read as follows: “Consent is a defense to the charge of
burglary. In order to establish this defense, the defendant must establish a reasonable
doubt as to the following: [¶] 1) The occupant actively invited the accused to enter, [¶]
2) At the time of consent, the occupant knew of the illegal and/or felonious intent of the
defendant; [¶] 3) and that the defendant was aware that the occupant knew of his
felonious intent, and the occupant did not contest or challenge the defendant’s entry. [¶]
Once established the People have the burden of proving that the defendant did not enter
the residence with consent beyond a reasonable doubt. If the People have not met this
burden, then you must find the defendant not guilty of this crime.”
16
B. Analysis
A trial court’s evaluation of a motion for acquittal is governed by the same
substantial evidence test used in an appellate challenge to the sufficiency of the evidence.
The trial court determines “whether from the evidence then in the record, including
reasonable inferences to be drawn therefrom, there is substantial evidence of every
element of the offense charged.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1,
89.) The court must evaluate the evidence in the light most favorable to the prosecution.
(Porter v. Superior Court (2009) 47 Cal.4th 125, 132; People v. Cole (2004) 33 Cal.4th
1158, 1212.) If the record can reasonably support a finding of guilt, a motion for
acquittal must be denied even if the record might also justify a contrary finding. (See
People v. Holt (1997) 15 Cal.4th 619, 668.)
The offense of burglary is committed when a person enters a building with the
intent to commit a theft or a felony. (§ 459.) However, a defense to a charge of burglary
is available “when the owner actively invites the accused to enter, knowing the illegal,
felonious intention in the mind of the invitee. [Citation.] But the invitation by the owner
to enter must be express and clear; merely standing by or passively permitting the entry
will not do. [Citation.] . . . [T]he owner-possessor must know the felonious intention of
the invitee. There must be evidence ‘of informed consent to enter coupled with the
“visitor’s” knowledge the occupant is aware of the felonious purpose and does not
challenge it.’ ” (People v. Felix (1994) 23 Cal.App.4th 1385, 1397-1398 (Felix), third
italics added.) “[T]he burglary law is designed to protect a possessory right in property
against intrusion and the risk of harm.” (People v. Superior Court (Granillo) (1988) 205
Cal.App.3d 1478, 1485 (Granillo), citing People v. Gauze (1975) 15 Cal.3d 709, 713-715
(Gauze).) Lack of consent is not an element of burglary. (People v. Sherow (2011) 196
Cal.App.4th 1296, 1304; Felix, at p. 1397.) The burden of proof regarding the consent
defense is on the defendant, because the exonerating facts establishing the consent
defense are particularly within the knowledge of the defendant. (Sherow, at pp. 1304-
17
1305.) But the defendant’s burden is simply to raise a reasonable doubt as to the facts
underlying the consent defense: (1) whether an owner/possessor invited defendant to
enter; (2) whether the owner/possessor knew of defendant’s felonious intention; and (3)
whether defendant knew the owner/possessor knew of defendant’s felonious intent. (Id.
at pp. 1305-1309.) As the Felix court explained, the invitation to enter must be express
and clear. (Felix, at p. 1398 [implied consent of defendant’s sister to enter her home and
take her property was insufficient to establish a consent defense to burglary].)
The trial court ruled that there was insufficient evidence of A.B.’s express
invitation to warrant a directed acquittal under section 1118.1. However, as defendant
points out, A.B. testified that she expressly invited defendant to come into her bedroom
through the window on the fourth visit and testified that she intended to “fulfill [her]
promise” by having sex with defendant for the first time. Additionally, in reference to
the final occasion where defendant entered A.B.’s bedroom on the night of the
kidnapping, A.B. testified that she opened her bedroom window to let him in. Further,
A.B. described all of defendant’s other visits after the fourth visit as substantially the
same as the fourth visit. Accordingly, there was undisputed evidence establishing that
A.B. expressly invited defendant into the home knowing his intent to engage in sexual
activity with her. However, as we discuss in detail post, more is required.
This case raises an issue not squarely addressed in published California case law:
whether, for purposes of the consent defense to a burglary charge, a minor may consent
to entry of her parent’s home by someone who intends to engage in felonious sexual
conduct with the minor. While this case presents a novel question, we are not without
guidance.
We begin with Gauze, supra, 15 Cal.3d 709, where presented with the question of
whether a person can burglarize his or her own home, our high court discussed the
common law underpinnings and statutory intent of section 459 and the concept of
consent. In Gauze, the defendant was charged with burglarizing his own apartment
18
where he lived with roommates when he entered the apartment with the felonious intent
of shooting one of the roommates. (Id. at pp. 711-714.) The court noted that “section
459, while substantially changing common law burglary, has retained two important
aspects of that crime. A burglary remains an entry which invades a possessory right in a
building. And it still must be committed by a person who has no right to be in the
building.” (Id. at p. 714.) The court reasoned that the defendant invaded no possessory
right of habitation. (Ibid.) Thus, the court concluded that the defendant could not be
guilty of burglarizing his own home because he had “an absolute right to enter the
apartment” and that right was not “conditioned on the consent of defendant’s
roommates.” (Ibid.)
In reaching its conclusion, the Gauze court distinguished People v. Sears (1965)
62 Cal.2d 737. In Sears, a man who had been living in his wife’s home but who was
separated from her and living in a hotel was charged with the murder of his wife’s
daughter. The murder took place in his wife’s home and the prosecution advanced a
felony murder theory grounded on the theory that the defendant committed a burglary
when he entered the home with the intent to assault his wife. (Id. at pp. 740-741.) The
Gauze court reasoned that Sears was properly convicted of felony murder because “even
if he had a right to enter, the right was based on former section 157 of the Civil Code
[currently Fam. Code, § 753], which gave a person the right to enter the separate
property of his or her spouse, subject to certain conditions. Thus Sears’ ‘right’ to enter
his wife’s house . . . was at best conditional. An entry for anything but a legal purpose
was a breach of his wife’s possessory rights . . . .” (Gauze, supra, 15 Cal.3d at p. 715.)
The concept of consent in burglary cases was further refined in Granillo, supra,
205 Cal.App.3d 1478. There, the defendant was charged with burglary after entering an
apartment upon the invitation of undercover police officers who set up a sting operation
by inviting the defendant and others to enter the apartment in order to sell stolen goods to
the officers. (Id. at pp. 1480-1481.) Fleshing out the consent defense, the Court of
19
Appeal noted that the occupant was fully aware of the defendant’s felonious purpose in
entering the apartment. (Id. at pp. 1484-1485.) The court also cited Gauze and explained
that “the burglary law is designed to protect a possessory right in property against
intrusion and the risk of harm. [Citation.] Granillo was not an intruder, nor did any
danger to personal safety arise from his mere entry.” (Id. at p. 1485.) Because the
defendant entered the apartment with the officers’ informed consent, the court concluded
that to find him “guilty of burglary would be contrary to the primary basis of the burglary
law.” (Ibid.)
The rule was further evolved by this court in People v. Salemme (1992) 2
Cal.App.4th 775 (Salemme), in which the defendant entered a residence with the intent to
sell the occupants fraudulent securities. (Id. at p. 777.) The Salemne court held, “since
burglary is a breach of the occupant’s possessory rights, a person who enters a structure
enumerated in section 459 with the intent to commit a felony is guilty of burglary except
when he or she (1) has an unconditional possessory right to enter as the occupant of that
structure or (2) is invited in by the occupant who knows of and endorses the felonious
intent.” (Id. at p. 781.) Citing Gauze, the court reasoned that “a ‘burglary remains an
entry which invades a possessory right in a building. And it still must be committed by a
person who has no right to be in the building.’ [Citation.] [¶] A person has a right to be
in a structure when he or she has an unconditional possessory right to enter (as in Gauze
where the accused had the right to enter his own home, even for a felonious purpose) or
where the person has expressly or impliedly[5] been invited to enter and does so for a
lawful reason.” (Id. at p. 779.)
5 The Salemme court cited Gauze for the proposition that the invitation could be implied.
(Salemme, supra, 2 Cal.App.4th at p. 780.) In discussing the notion of an implied
invitation, however, our high court in Gauze spoke of an “implied invitation to enter a
store during business hours for legal purposes only.” (Gauze, supra, 15 Cal.3d at p. 713,
italics added.) We emphasize that valid consent grounded on an invitation to enter for a
20
With this history of the consent defense in mind, we turn to cases involving
minors. In In re Andrew I. (1991) 230 Cal.App.3d 572 (Andrew I.), another minor, Scott,
invited Andrew and a third minor to enter Scott’s mother’s home for the purpose of
stealing her property. (Id. at p. 577.) Scott’s mother testified that Scott had resided with
her, but left the home one or two weeks prior to the burglary and had not returned. (Id. at
p. 576.) While Andrew’s felonious intent to steal was known to Scott and Scott helped
him enter the home for that purpose, there is no indication that Scott’s mother consented
to Andrew entering her home for the purpose of committing a theft. (Ibid.) On appeal,
Andrew challenged the burglary finding in his juvenile proceeding, contending that Scott
had a possessory interest in the premises and invited Andrew to enter with knowledge of
his felonious intent. (Id. at p. 578.) The Court of Appeal affirmed the burglary finding,
first noting that Andrew lacked any possessory interest in or right to enter the premises.
(Ibid.) The court then reasoned that Andrew could not invoke the consent defense
because “Scott did not have an unconditional possessory interest in his mother’s
residence.” (Id. at p. 579.) The court further reasoned that, separate from the fact Scott
had left the home one or two weeks before the burglary, Scott did not “acquire a
possessory interest simply because his mother had an obligation to support him. ‘The
parental obligation to provide for necessaries does not imply a possessory right in the
parental residence. . . . Financial support is all that is required by law. No possessory
right in a parental residence is implied by this duty of financial support.’ ” (Ibid., quoting
In re Richard M. (1988) 205 Cal.App.3d 7, 15.)
Although outside the context of burglary case law, the California Supreme Court’s
analysis in People v. Jacobs (1987) 43 Cal.3d 472 (Jacobs) is also instructive. There, the
court analyzed the question of whether a minor may consent to a police search of her
felonious purpose requires an invitation to enter that is “express and clear.” (Felix,
supra, 23 Cal.App.4th at p. 1398.)
21
parents’ home. The court held that the 11-year-old child lacked authority to permit plain
clothes police officers to enter and search the home while her parents were away. (Id. at
pp. 481-482.) The court reasoned, “Minor children . . . do not have coequal dominion
over the family home. [Citation.] Although parents may choose to grant their minor
children joint access and mutual use of the home, parents normally retain control of the
home as well as the power to rescind the authority they have given. ‘It does not startle us
that a parent’s consent to a search of the living room in the absence of his minor child is
given effect; but we should not allow the police to rely on the consent of the child to bind
the parent. The common sense of the matter is that the . . . parent has not surrendered his
privacy of place in the living room to the discretion of the . . . child; rather, the latter
[has] privacy of place there in the discretion of the former.’ [Citations.]” (Id. at p. 482.)
In Jacobs, the court acknowledged that “[a]s a child advances in age she acquires
greater discretion to admit visitors on her own authority. In some circumstances, a
teenager may possess sufficient authority to allow the police to enter and look about
common areas.” (Jacobs, supra, 43 Cal.3d at p. 483.) However, the court reasoned that
“[a]n entry based on the unauthorized consent of an 11-year-old child . . . frustrates the
objectives of [section 844]. It violates the privacy rights of the parents and increases the
likelihood that an adult occupant will be startled by the apparently unauthorized intrusion
and react violently out of concern for the safety of the child.” (Ibid.) Accordingly, the
Supreme Court clarified that a minor’s authority over the family home derives from the
parents’ authority as the primary legal possessors. (Ibid.)
Courts in several sister states have discussed a minor’s purported consent to
burglary. We discuss two such cases because they illustrate circumstances showing both
the minor’s lack of authority to consent and the defendant’s knowledge that the minor did
not have authority to consent.
In a North Carolina case, State v. Brown (N.C.Ct.App. 2006) 626 S.E.2d 307(Brown), the 45-year-old defendant engaged in a sexual relationship with a 13-year-old
22
girl he met online. The minor agreed to help sneak the defendant into her bedroom in her
parents’ home for the purpose of engaging in sexual acts. (Id. at pp. 310-311.)
Defendant challenged his burglary conviction on appeal, contending there was
insufficient evidence to support the conviction because the minor consented to his entry
of her bedroom for the felonious purpose. (Id. at p. 312.) In North Carolina, the consent
defense requires that the defendant show a good faith belief that he has the consent of the
owner/occupant or his or her authorized agent to enter the premises. (Ibid.) The court
held that the evidence did not support a consent defense, reasoning that “[a] child who
has a room in his or her parents’ house does not have unlimited authority to allow entry
to visitors. [Citation.] Courts considering consent to entry given by a son or daughter
have focused on the purpose of the entry and whether the child had authority to consent
to entry for that purpose.” (Ibid.) The court explained that the “[d]efendant’s covert
actions such as arriving late at night, wearing camouflage, signaling [the minor] with a
red penlight, taking precautions about turning off lights, and hiding in [the minor’s]
closet all suggest that he did not believe [the minor] had full authority to allow him into
her parents’ house.” (Ibid.; see also State v. Tolley (N.C.Ct.App. 1976) 226 S.E.2d 672,
674 [reasoning that that the defendant could not have reasonably believed that the child
had authority to permit him to enter the home for the purpose of committing a felony].)
In an Indiana case, Holman v. State (Ind.Ct.App. 2004) 816 N.E.2d 78, a minor
invited her adult boyfriend to enter her parents’ home through her bedroom window. (Id.
at pp. 80-81.) He was convicted of residential entry and contended on appeal that the
evidence was insufficient to support his conviction because the minor consented to his
entry into the home. (Id. at p. 81.) Like North Carolina, in Indiana, the consent defense
requires that the defendant have a reasonable belief that he has permission to enter.
(Ibid.) Further, the Holman court required that defendant have a reasonable belief that
the minor had authority to give consent to enter. (Id. at p. 82.) The court held that the
defendant should have known that the minor lacked authority to admit him: “on every
23
occasion that [the minor] had Holman over to her house, she did so surreptitiously
without her parents’ knowledge or permission.”6 (Ibid.)
Based on both our review of California case law and cases in sister states, we
conclude that the consent defense is not applicable here. When the defendant does not
have an unconditional possessory right to enter as an occupant of the premises, a defense
of consent to enter the premises for the purposes of engaging in felonious sexual conduct
with a minor requires one of the following: (1) the minor has a possessory interest in the
premises coequal to the parent or other adult owner/occupant and expressly and clearly
invited the defendant to enter so the defendant could engage in sexual conduct with the
minor; or (2) a parent or other adult who has a possessory interest in the premises
expressly and clearly gave the defendant permission to enter for the purpose of engaging
in sexual conduct with the minor; or (3) the minor expressly and clearly gave the
defendant permission to enter for the purpose of engaging in sexual conduct with the
minor, the minor had been given permission by the parent or other person with a
possessory interest to allow entry for such purpose, and defendant knew that the minor
had been given such permission. Here, there is no evidence to support a consent defense
under any theory.
There is no evidence that D.B. consented to defendant’s conduct. There is no
evidence in the record that A.B., a 13-year-old minor living in her mother’s home, had
authority to invite an adult man into the home for the purpose of having unlawful sexual
6 Our discussion of cases from sister states where the law provides a consent defense
when the defendant shows a good faith or reasonable belief he has been given permission
and a reasonable belief the minor had authority to give permission should not be seen as
an endorsement of a reasonable belief defense for burglary cases in our state. None of
the California cases we have discussed involving the defense of consent in burglary cases
permit the consent defense based on a mere good faith or reasonable belief that the
person providing consent had the authority to do so and we do not extend the consent
defense to such situations.
24
relations with her. Indeed, there is evidence in the record suggesting that both A.B. and
defendant knew that A.B. lacked authority to invite an adult male into her room. Every
aspect of defendant’s encounters with A.B. was secretive and designed to prevent
discovery by her mother. A.B. specifically testified that she “knew that it wasn’t right for
an adult and a minor to be together.” She told defendant that she was worried her mother
would find out about their relationship. A.B. testified that this is why she and defendant
agreed to have defendant sneak through her bedroom window late at night after D.B. was
asleep.7 Additionally, A.B. hid the identity of defendant from D.B. by telling her that he
was a 14 year old who skateboarded in the neighborhood. And defendant’s false
statements to the police about not knowing who D.B. was and claiming he had never
7 As our state’s Supreme Court reasoned in Jacobs, “[a]n entry based on the
unauthorized consent of an 11-year-old child . . . violates the privacy rights of the parents
and increases the likelihood that an adult occupant will be startled by the apparently
unauthorized intrusion and react violently out of concern for the safety of the child.”
(Jacobs, supra, 43 Cal.3d at p. 483.) While that analysis pertained to a minor’s consent
to police to enter the parents’ home and the potential for violence is not required to
negate a consent defense in a burglary case (Salemme, supra, 2 Cal.App.4th at pp. 777-
778, 781-782), we note the potential for violence here. A.B. testified, “I was scared that
he was going to try to hurt me or pull a weapon on me.” She also testified during cross-
examination that defendant had tried to force her to do something against her will at some
point. This indicates that there was a substantial risk of harm created by defendant’s
presence in the home without D.B.’s consent or authorization. Apart from these
circumstances, the prospect of defendant’s discovery in the home by D.B. or A.B.’s
grandmother and the events that might follow raised the real danger that violence might
occur, whether it be a violent attack by the mother on defendant, a violent attack on the
mother or the victim by defendant, or violence that might result if there was a
confrontation with law enforcement. The situation in this case is thus in sharp contrast to
Granillo, where the defendant “was not an intruder, nor did any danger to personal safety
arise from his mere entry.” (Granillo, supra, 205 Cal.App.3d at p. 1485.) Applying the
consent defense here would also be at odds with Gauze. As the Gauze court clarified, the
burglary law is “ ‘primarily designed . . . not to deter the trespass and the intended crime,
which are prohibited by other laws, so much as to forestall the germination of a situation
dangerous to public safety.’ Section 459, in short, is aimed at the danger caused by the
unauthorized entry itself.” (Gauze, supra, 15 Cal.3d at p. 715.) Here, defendant’s entry
created a real risk of harm or violence.
25
been to the house show that defendant knew that he did not have permission from D.B. to
enter her home to have sex with her daughter and that A.B. did not have D.B.’s
permission to allow him to enter for that purpose.
In his briefing on a related issue, defendant raises the valid point that “[n]ot
everyone present on a premises need give consent for the ‘consent’ defense to apply”;
however, D.B. was not merely “present” at the home. Rather, D.B. was the occupant
with a possessory interest in the home and any authority A.B. had over the premises
would have derived from her mother’s possessory interest. Unlike, for example, a case
where one of two or more adult roommates or one spouse provides consent to burglary
without the other’s knowledge,8 minor children do not generally have a possessory
interest in the home. Unlike the facts in Gauze, where the defendant had “an absolute
right to enter the apartment” and that right was not “conditioned on the consent of
defendant’s roommates” (Gauze, supra, 15 Cal.3d at p. 714), a minor’s authority over the
premises is derivative. (See Jacobs, supra, 43 Cal.3d at p. 482 [“Minor children . . . do
not have coequal dominion over the family home.”]; Andrew I., supra, 230 Cal.App.3d at
p. 579 [“ ‘The parental obligation to provide for necessaries does not imply a possessory
right in the parental residence.’ ”].)
We conclude that defendant invaded D.B.’s possessory interest in the home and
the evidence did not show that A.B. had the authority to allow defendant into the home to
engage in felonious sexual relations with her. Moreover, the evidence shows defendant
8 We do not opine on whether the consent defense is applicable in these scenarios but
note that such cases would present a potential distinction from the instant case and are
closer to the facts in Gauze, supra, 15 Cal.3d at pages 711 through 714.
26
knew A.B. had no such authority. Accordingly, we conclude that the court did not err in
denying defendant’s motion for judgment of acquittal.9
III. Prosecutor’s Comment on the Consent Defense
A. Background and Defendant’s Contentions
During closing argument, the prosecutor argued that defendant’s entry into the
home “presented a dangerous situation to the people inside of the home. What if the
defendant had been coming inside the home or what if he had been discovered by [D.B.]
[and] in an attempt to getaway or free he hurt [D.B.]. I mean, it is not uncommon for
someone whose [sic] interrupted during a first degree burglary in someone’s home to hurt
the homeowners. [¶] Those situations and dangers are present in this case, and that’s
why the defendant is guilty of the burglary, even though [A.B.] was letting him inside.
“[DEFENSE COUNSEL]: Objection, misstatement of the law.
“THE COURT: Overruled. Go ahead.
“[THE PROSECUTOR]: And finally regarding the burglary, when he entered to
kidnap her on October 15th, 2010. You’ll get the jury instruction that -- there again, the
same dangers apply . . . .”
Defendant contends that the prosecutor engaged in misconduct by misstating the
law on the consent defense and this misconduct prejudiced defendant. He argues that it
was a misstatement to argue that A.B.’s permission to enter the home was not sufficient
consent.
B. Analysis
As discussed ante, “ ‘ “ ‘[a] prosecutor’s . . . intemperate behavior violates the
federal Constitution when it comprises a pattern of conduct “so egregious that it infects
9 We note that while defendant nevertheless received the benefit of his special jury
instruction on the consent defense (see fn. 4, ante), the jury also rejected his incorrect
theory by convicting him on all burglary counts.
27
the trial with such unfairness as to make the conviction a denial of due process.” ’ ” ’ ”
(Hill, supra, 17 Cal.4th at p. 819.) We conclude that the prosecutor did not misstate the
law in such a way that it infected defendant’s trial with unfairness. Here, the prosecutor
accurately summarized the concerns about the risk of harm raised in burglary case law
and why that risk was present in this case as opposed to other cases where the consent
defense has been successful like Gauze and Granillo. (See fn. 7, ante.) The reason
consent tends to mitigate against the dangers created by burglary, and thereby provides a
valid defense to burglary, is that the possessor with authority to consent already has
knowledge of the alleged burglar’s presence and felonious intent when the alleged
burglar enters the home. In other words, there is no element of surprise; there is no
danger of violence. While A.B. had this knowledge, her mother, as an adult and the
primary possessor, certainly did not have knowledge of defendant’s presence, much less
his felonious intent. Thus, the fundamental danger that section 459 was enacted to curb
remained unmitigated by A.B.’s consent in this case.
The prosecutor accurately summarized the concerns underlying the burglary law
and the trial court did not err in overruling the defense objection to the prosecutor’s
argument. There was no misconduct.
IV. Cumulative Error
Defendant contends that the cumulative effect of the two alleged instances of
prosecutorial misconduct warrants reversal. We reject this contention. The premise
behind the cumulative error doctrine is that while a number of errors may be harmless
taken individually, their cumulative effect requires reversal. (People v. Bunyard (1988)
45 Cal.3d 1189, 1236-1237.) Any of the potential errors identified above “were
harmless, whether considered individually or collectively. Defendant was entitled to a
fair trial but not a perfect one. [Citations.]” (People v. Cunningham (2001) 25 Cal.4th
926, 1009.) We have found no errors or prejudice when considering defendant’s claims
separately. Viewed cumulatively, our conclusion is the same. The evidence against
28
defendant was overwhelming, and he has failed to demonstrate prejudice. Accordingly,
defendant was not deprived of a fair trial.
V. Statutory Vagueness
A. Background and Defendant’s Contentions
Prior to trial, defendant filed a motion to dismiss the section 288.3 counts under
section 995. Defendant contended that section 288.3, contact with a minor with intent to
commit a sexual offense, violated his right to due process and is unconstitutionally vague.
The trial court heard argument on the motion and denied it, reasoning that section 288.3
“is clear, it does not punish speech, and one would reasonably know that it punishes the
act of communicating with a minor intending to commit one of several specified sex
offenses.”
Subsequently, defendant filed a second non-statutory motion to dismiss the
charges under section 288.3, again contending that the statute is unconstitutionally vague
and also contending that it violates the First Amendment guarantees of free association
and free speech. The court denied defendant’s motion, ruling that the statute is
constitutional.
On appeal, defendant asserts that the language of section 288.3, subdivision (a), is
“unconstitutionally vague” because it fails to define the terms “ ‘contact’ ” or
“ ‘communicate.’ ” According to defendant, “[a]s written, the statute requires law
enforcement authorities to evaluate whether casual words, looks, glances, or smiles
constitute contact or communication with a minor.” He claims that because the statute is
vague, “section 288.3 permits complete discretion in law enforcement to determine
whether and when an adult had contacted or communicated with a minor within the
meaning of the statute.”
B. Analysis
Section 288.3, which was adopted by the voters and effective November 8, 2006,
provides in pertinent part: “(a) Every person who contacts or communicates with a
29
minor, or attempts to contact or communicate with a minor, who knows or reasonably
should know that the person is a minor, with intent to commit an offense specified in
Section 207, 209, 261, 264.1, 273a, 286, 288, 288a, 288.2, 289, 311.1, 311.2, 311.4 or
311.11 involving the minor shall be punished by imprisonment in the state prison for the
term prescribed for an attempt to commit the intended offense. [¶] (b) As used in this
section, ‘contacts or communicates with’ shall include direct and indirect contact or
communication that may be achieved personally or by use of an agent or agency, any
print medium, any postal service, a common carrier or communication common carrier,
any electronic communications system, or any telecommunications, wire, computer, or
radio communications device or system.”
As defendant acknowledges, in People v. Keister (2011) 198 Cal.App.4th 442(Keister), this court squarely rejected defendant’s argument. The defendant in Keister
likewise asserted that “section 288.3 is void for vagueness because it ‘allows for the
personal predilections of law enforcement officials to establish standards for what
constitutes “contact with a child” and how the required intent is shown.’ [Defendant]
claims that a glance, wink, or smile could suffice . . . .” (Id. at p. 448.) The court
disagreed, explaining that “ ‘[w]hat renders a statute vague is not the possibility that it
will sometimes be difficult to determine whether the incriminating fact it establishes has
been proved; but rather the indeterminacy of precisely what that fact is.’ [Citation.] [¶]
There is no such indeterminacy here. The statute requires the defendant to contact or
communicate with a minor or attempt to do so with the specific intent to commit an
enumerated sex offense. [Citation.] Those are questions of fact. Whether a defendant
made the contact or communication and had the requisite intent are yes-or-no
determinations, not subjective judgments. ‘To be sure, it may be difficult in some cases
to determine whether these clear requirements have been met. “But courts and juries
every day pass upon knowledge, belief and intent—the state of men’s minds—having
before them no more than evidence of their words and conduct, from which, in ordinary
30
human experience, mental condition may be inferred.” ’ [Citation.]” (Id. at p. 449.) We
adhere to this court’s analysis in Keister and conclude that section 288.3 is not
constitutionally vague.
VI. Statutory Overbreadth
Defendant contends that section 288.3, subdivision (a), violates the First
Amendment because it is an overbroad, content-based regulation of free speech. He
asserts that the statute is overbroad because it “bans any communication with a minor if
made with the intent to commit a lewd act, or to commit any other offense listed in the
statute, . . . even if it had nothing to do with the intended sex crime, so long as it was
made with the intent to commit that crime in the future.” He claims that “section 288.3
effectively prohibits potential child molesters from communicating with children at
anytime, anywhere, and under virtually any circumstance. If a person is sexually
attracted toward children, he violates the statute whenever he communicates with a child
because he has the constant intent to molest if given the opportunity.” Thus, according to
defendant, section 288.3 is an overbroad content-based restriction of free speech that fails
under strict scrutiny.
Statutes are presumed constitutional and should be construed to uphold their
constitutionality unless the opposite “ ‘clearly, positively and unmistakably appears.’ ”
(In re Dennis M. (1969) 70 Cal.2d 444, 453.)
“A statute may not be found constitutionally invalid on overbreadth grounds
simply because it is possible to conceive of one or a few impermissible applications; such
invalidity occurs only if the provision inhibits a substantial amount of protected speech.”
(People v. Toledo (2001) 26 Cal.4th 221, 234-235.) “Where the statute in question is
narrowly drawn to protect a legitimate state interest, and proscribes conduct and not
purely speech, the overbreadth of the statute ‘must not only be real, but substantial as
well, judged in relation to the statute’s plainly legitimate sweep.’ [Citation.]” (People v.
Hernandez (1991) 231 Cal.App.3d 1376, 1381.) “In order to successfully challenge a
31
statute as overbroad, a party ‘must demonstrate from the text of [the statute] and from
actual fact that a substantial number of instances exist in which the [statute] cannot be
applied constitutionally.’ [Citation.] ‘[T]he mere fact that one can conceive of some
impermissible applications of a statute is not sufficient to render it susceptible to an
overbreadth challenge.’ [Citation.]” (Id. at pp. 1382, 1379.)
This court considered defendant’s argument in Keister and rejected it, explaining,
“Defendant is wrong on his factual assertion and on his legal conclusion. [¶] His factual
assertion—a person who is sexually attracted to children violates section 288.3 anytime
he communicates with a child—is not true. The only time the communication is criminal
is if it is motivated by a specific intent to commit an enumerated sex crime. [Citation.]
[¶] While there is a limit on free speech to the extent that section 288.3 criminalizes
otherwise protected communications with a minor, the statute has been written in a way
that does not unconstitutionally restrict protected speech. Before the statute is violated,
the defendant must know or reasonably should have known the other person was a minor,
have the specific intent to commit an enumerated sex offense, and then contact or
communicate with that minor or attempt to do so. [Citation.] Thus, without the unlawful
sexual intent, the statute is not violated.” (Keister, supra, 198 Cal.App.4th at pp. 449-
450.)
Again, we adhere to this court’s analysis in Keister and conclude that section
288.3 is not unconstitutionally overbroad.
VII. Section 667.8 Enhancement
Defendant contends, and the People concede, that the fifteen-year enhancement
related to Count 2, imposed under section 667.8, subdivision (b), must be stayed because
the sentence on the underlying offense was stayed pursuant to section 654. We agree.
“[F]ailure to stay an enhancement, where the base term to which it is added is stayed, and
requiring that time be served only for the enhancement has the effect of elevating the
enhancement to the status of an offense. Enhancements are not offenses, they are
32
punishments. [Citation.]” (People v. Guilford (1984) 151 Cal.App.3d 406, 412; accord,
People v. Smith (1985) 163 Cal.App.3d 908, 914 [“[O]ne cannot be punished for the
enhancement separately from the underlying offense.”]; People v. Bracamonte (2003)
106 Cal.App.4th 704, 709 [“Where the base term of a sentence is stayed under section
654, the attendant enhancements must also be stayed.”], disapproved on another ground
in People v. Gonzalez (2008) 43 Cal.4th 1118, 1130, fn. 8.) Accordingly, the fifteen-year
sentence on the enhancement related to Count 2 must be stayed pursuant to section 654.
DISPOSITION
The judgment is modified to stay execution of the sentence for the section 667.8,
subdivision (b), enhancement imposed on Count 2. The trial court is directed to amend
the abstract of judgment in accordance with this opinion and forward the amended
abstract to the Department of Corrections and Rehabilitation. The judgment is otherwise
affirmed.
MURRAY , J.
We concur:
NICHOLSON , Acting P. J.
MAURO , J.
33