IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR A116806

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1 Filed 9/11/08 P. v. Brackett CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, Plaintiff and Respondent, v. MARK BRACKETT, Defendant and Appellant. A (Solano County Super. Ct. No. FCR230871) A jury convicted defendant Mark Brackett of sexual penetration of a person incapable of giving legal consent due to a developmental or physical disability (Pen. Code, 1 289, subd. (b)) and of sexual battery ( 243.4, subd. (e)(1)). The trial court sentenced defendant to the midterm of six years in prison for the sexual penetration offense, and imposed a concurrent six-month term with respect to the sexual battery. Defendant contends his convictions must be reversed due to insufficient evidence and instructional error. He further claims the case must be remanded due to various sentencing errors. We reverse and remand for the limited purpose of resentencing. In all other respects, we affirm the judgment. I. EVIDENCE AT TRIAL Lavina Harris testified that when her daughter Reina C. (the victim herein) was one year old, she caught the chicken pox and ran a fever of 107 degrees. The fever affected the left side of Reina s brain and her learning ability. As a result, Reina never attained even basic developmental milestones; she also required special education. For 1 All further undesignated statutory references are to the Penal Code. 1

2 example, at the time of trial, Reina was 19 years old, and she could not talk, feed herself, or use the bathroom on her own. She wore diapers and required constant care and supervision. Harris testified that Reina s development disability was clear to anyone who attempted to have a conversation with her or any contact with her; Reina was unable to communicate in a normal way. Harris explained that although it was not apparent from looking at Reina that she functions like an infant, when you try to talk to her or... do something with her, she s not able to respond back. Defendant, who had been a frequent visitor at Harris s home, was aware that Reina had a developmental disability. Ronald Brackett (Ronald) 2 was married to Reina s sister, April. Ronald and April, along with their two children, lived in the same house with Harris, Reina, and Reina s brother, David. Defendant is Ronald s father; defendant would frequently visit Ronald at the home he shared with his in-laws. Ronald testified that Reina s developmental disability was obvious even from minimal contact with her. He further explained that defendant was aware of Reina s developmental disability. On March 4, 2006, Ronald was left in charge of Reina, who was in her bedroom, while Harris was out doing errands. Ronald played poker and pool in the garage with defendant. Also present were Ronald s best friend, his brother-in-law David, and his uncle, Jimmy Young. At some point, defendant went into the house. After defendant had been gone for about two or three minutes, Ronald went into the house to look for him. When Ronald walked down the hallway, he saw defendant with Reina in her room. Reina was lying on her back on her bed, and defendant was on top of her, kissing her mouth. Ronald could see that Reina s diaper was coming off; it was a few inches lower than where it was normally located on her hip. Ronald saw defendant moving his hand back and forth inside Reina s diaper. Although Ronald actually could not see defendant s hand, he explained that he could tell that, from the location of defendant s arm, his hand 2 As defendant and Ronald Brackett share the same last name, we shall refer to Ronald by his first name for purposes of clarity and not out of disrespect. (See In re Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1549.) 2

3 was in Reina s vaginal area. Ronald described defendant s hand movements as rubbing Reina s vaginal area. Ronald, however, could not see whether defendant s fingers penetrated Reina s vagina. In a state of shock, Ronald went back to the garage and asked Young to come into the house with him. After Ronald returned to Reina s room with Young, he could see that defendant was still on top of Reina, kissing her, while his hand was moving inside of her diaper. When Young looked in Reina s room, he saw her lying flat on her back with her bare breasts exposed. Young explained that Reina s shirt was lifted up to her armpits and her pants were down. Young saw defendant with his hand inside Reina s diaper. Young described defendant s hand as moving in Reina s vaginal area. Defendant was also kissing Reina on her neck and lips. After observing defendant s conduct, Young told Ronald, Do what you have to do. Ronald then yelled, Dad, what are you doing? Defendant jumped up and tried to talk to Ronald, but Ronald was too upset to talk about it. Ronald forced defendant to leave and then he called the police. Before driving defendant home, Young noticed that defendant had feces on his hand, primarily the two middle fingers. Later, Young brought defendant back to Ronald s house, where the police arrived shortly thereafter. When Officer Terence Bolden arrived at the scene, he saw Reina lying on her back on her bed. Her hands and head were moving, but she was unable to communicate at all. It was clear to Officer Bolden that Reina had a developmental disability. He also noticed that her room smelled of feces. After reading defendant his Miranda 3 rights, defendant agreed to be interviewed at the police station. Defendant said that when he passed by Reina s room he saw her standing up and having a seizure. Initially, defendant told Officer Bolden that he had special military training in dealing with seizures, and that he had laid Reina down on the bed and rubbed her stomach to calm her down. Defendant later admitted that he had lied, and that he, in fact, had no special training with respect to seizures. Officer Bolden said that defendant changed his story two or three times. At some point, Officer Bolden 3 Miranda v. Arizona (1966) 384 U.S

4 pointed out the feces on defendant s fingers. Defendant explained it was possible that, as he was trying to lay Reina down, he may have swiped his hand down the back of her diaper. When Officer Bolden confronted defendant about the possibility of finding vaginal fluid on his fingers, defendant admitted to touching Reina s pubic hair, and further stated that his finger may have accidentally penetrated Reina s vagina. II. DISCUSSION A. Sufficiency of Evidence Defendant contends there was insufficient evidence that Reina was incapable of consenting due to a developmental disability and that he penetrated her genital or anal opening. He further claims there was insufficient evidence to support his conviction for sexual battery because there was no evidence that the touching was done against the will of the victim. We reject each of these claims. In reviewing a claim of insufficiency of the evidence on appeal, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576, italics omitted, quoting Jackson v. Virginia (1979) 443 U.S. 307, ) The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence [citation].... An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) 1. Incapacity Viewed according to applicable appellate standards, there is substantial evidence of Reina s incapacity. Sexual penetration under section 289, subdivision (b) requires proof of mental disorder or developmental or physical disability that renders the victim incapable... of giving legal consent, and this is known or reasonably should be known to the person committing the act.... In prosecutions under Section , in which consent is at issue, consent shall be defined to mean positive cooperation in act or 4

5 attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. ( ) 4 Three witnesses testified that it was clear and obvious from even minimal contact with Reina that she suffered from a developmental disability. Also, Harris and Ronald each confirmed that defendant was aware of Reina s developmental disability. At the time of trial, Reina was 19 years old and could not talk, feed herself, or use the bathroom on her own. She wore diapers and required constant care and supervision. This evidence amply demonstrated Reina s physical and mental limitations, which rendered her unable to freely and voluntarily, with knowledge of the nature of the act, provide positive cooperation in the sexual encounter with defendant. ( ) Clearly, Reina was unequipped to consent to sexual penetration with a foreign object. (People v. Thompson (2006) 142 Cal.App.4th 1426, 1437 [34-year-old victim incapable of giving consent even though she could speak, had gone to high school, and could dress and feed herself]; see also People v. Mobley (1999) 72 Cal.App.4th 761, 767, , [two victims in their early 20 s could speak, hold a job, vote, and had received sexual education, deemed incapable of giving consent], disapproved on other grounds in People v. Trujillo (2006) 40 Cal.4th 165, 181, fn. 3.) Defendant argues that it is disconcerting that in a case such as this... no experts were called to testify whether Reina s intellect was impaired, [and] no questions were ever asked of her mother regarding Reina s familiarity or experience with either sexual conduct or her knowledge and understanding of her surroundings in general. Defendant further complains that no questions were ever asked regarding Reina s grade level at school, her ability to walk, how she communicated with her mother, how she communicated with her teachers, what skills she was taught in her special education classes,... and whether she had ever been given an IQ test. Indeed, there were many disconcerting things in this case, but the absence of expert testimony is not among them. The question whether a person possesses sufficient resources intellectual, emotional, social, psychological to determine 4 The jury was instructed with this definition of consent. 5

6 whether to participate in sexual contact with another is an assessment within the ken of the average juror, who likely has made the same determination at some point. [Citation.] (People v. Thompson, supra, 142 Cal.App.4th at p ) Moreover, while the hypothetical questions posed by defendant arguably would have been helpful in assessing the extent of Reina s disability, the existence of her developmental disability was amply supported by other evidence. The witnesses uniformly testified that Reina was unable to speak or communicate and that she was incapable of performing even the most basic developmental skills, including controlling her bowel movements. From this testimony, the jury properly concluded that Reina was unable to appreciate the nature of the sexual act committed by defendant, and thus, was unable to knowingly consent to it. 2. Sexual Penetration There is substantial evidence of sexual penetration. Section 289, subdivision (k)(1) defines sexual penetration as the act of causing the penetration, however slight, of the genital or anal opening of any person.... The uncorroborated testimony of [even] a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable. [This] rule is applicable to sex cases. (People v. Scott (1978) 21 Cal.3d 284, 296; see Evid. Code, 411.) Here, Ronald and Young testified that they saw defendant atop Reina, with his hand moving around in her diaper. Each of them demonstrated the hand movements before the jury. During the incident, Reina s breasts were exposed, and defendant was kissing her on the mouth. From this circumstantial evidence, the jury could have reasonably inferred that some penetration must have occurred while defendant was moving his hand around in Reina s diaper. In addition, defendant admitted that he put his hand down Reina s diaper, that he felt her pubic hair, and that he may have accidentally penetrated her vagina. Defendant s admissions, together with the feces on his fingers, and the eyewitness accounts of his hand movements inside Reina s diaper, constitute substantial evidence supporting the jury s conclusion that he penetrated Reina s genital or anal opening. 6

7 3. Sexual Battery Defendant s conviction for sexual battery is supported by substantial evidence. A sexual battery occurs when a person... touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse.... ( 243.4, subd. (e)(1).) In challenging his sexual battery conviction, defendant does not claim that there was insufficient evidence of an intimate touching for sexual purposes. Rather, he contends there was no evidence that the touching was done against the will of the victim. Defendant notes that the inability to consent is an element of certain crimes of sexual misconduct (see, e.g., 261, subd. (a)(1), 288a, subd. (g), 289, subd. (b)), but is not an element of sexual battery ( 243.4, subd. (e)(1)). He argues that because the sexual battery statute requires the prosecution to prove the defendant s conduct was against the will of the victim, it is not typically applied to persons who by reason of their mental or developmental disability are incapable of testifying [that] the conduct was against their will. We disagree. The relevant question is whether Reina assented to the touching, regardless of her ability to legally consent to the touching. (People v. Thompson, supra, 142 Cal.App.4th at pp ) The jury considered testimony of four separate witnesses that Reina was unable to talk or otherwise communicate, and that she suffered from a substantial developmental disability, which rendered her unable to feed herself or control her eliminatory functions. From this evidence, the jury was able to assess the likelihood that Reina, given her developmental disability, would freely assent to the intimate touching committed by defendant. We conclude ample evidence supports the jury s finding that the touching was against the victim s will. B. Jury Instructions Defendant s claim of instructional error involves the meaning of sexual penetration. He asserts that the trial court erred in giving a special instruction on penetration because the instruction was confusing and included medical terminology 7

8 which was not defined for the jury and is not within the common knowledge of a reasonably intelligent juror. The trial court instructed the jury with CALJIC No , which provides, in pertinent part, as follows: Sexual penetration is the act of causing the penetration, however slight, of the genital or anal opening of any person.... The trial court further instructed the jury with the following: Penetration, however slight, does not require proof of vaginal penetration. It includes contact with the victim s hymen, clitoris, and other genitalia inside the exterior of the labia majora. Defendant claims prejudicial error based upon the failure of the trial court to instruct the jury on the meaning of the terms hymen, clitoris, and labia majora. He argues that these are technical terms and, thus, the trial court had a sua sponte duty to so instruct. Additionally, he contends that the special instruction defining penetration improperly suggests that there is some part of the labia majora, i.e. the inside part of the labia majora, which if touched is sufficient to constitute penetration. The law is settled that when terms have no technical meaning peculiar to the law, but are commonly understood by those familiar with the English language, instructions as to their meaning are not required. (People v. Anderson (1966) 64 Cal.2d 633, 639.) We disagree that the subject terms are technical ones requiring special instruction. Based on common experience and general anatomy, most people are familiar with the female genitalia related to sexual penetration. While they may not be able to define hymen, clitoris, or labia majora, in exact, scientific language, they can describe them in terms of function and general location. (See People v. Cantrell (1992) 7 Cal.App.4th 523, [ rectal area not a technical term requiring definition]; see also (People v. Stitely (2005) 35 Cal.4th 514, [ sexual intercourse has a common meaning in the context of rape[;]... the term can only refer to vaginal penetration or intercourse ]; People v. Holt (1997) 15 Cal.4th 619, 676 [ sexual intercourse is not a technical term with various meanings ; juries understand that it requires penetration of the victim s vaginal genitalia ].) 8

9 Here, the trial court instructed the jury on sexual penetration in the words of section 289 itself as stated in CALJIC No It further defined sexual penetration in accordance with People v. Quintana (2001) 89 Cal.App.4th 1362, decided by another panel of this division, which holds that contact with the hymen as well as the clitoris and the other genitalia inside the exterior of the labia majora constitutes sexual penetration within the meaning of section 289. (Id. at p. 1371, italics added.) We find no error in this respect. In any event, on this record, any error in failing to provide further definition of the anatomical terms was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18.) C. Sentencing Defendant contends the case should be remanded for resentencing because the trial court erroneously believed he was statutorily ineligible for probation absent unusual circumstances. Specifically, the trial court declared that defendant was ineligible for probation under section However, that section does not apply to defendant s conviction for violating subdivision (b) of section 289. Accordingly, as the Attorney General concedes, the case must be remanded for resentencing due to the trial court s mistaken belief that defendant was ineligible for probation. (People v. Read (1990) 221 Cal.App.3d 685, [denial of probation based on mistaken belief of ineligibility constitutes reversible error].) Defendant next claims that the trial court s imposition of the concurrent sentence on the sexual battery count violated section 654 s prohibition against double 5 Section provides, in pertinent part, as follows: (a) Notwithstanding any other provision of law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person who is convicted of violating... subdivision (a) of Section [ ] (b)(1) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who is convicted of violating... subdivision (g) of Section

10 punishment. (Fn. omitted.) Section prohibits multiple punishment for an indivisible course of conduct with a common intent and objective, even though the conduct at issue violates more than one statute. (People v. Latimer (1993) 5 Cal.4th 1203, ) Here, it is unclear from the record whether the defendant was punished twice for penetrating Reina s genital or anal opening, or if he was punished for a separate intimate touching. 7 (See 243.4, subd. (b).) Inasmuch as the instant case must remanded for resentencing, this uncertainty in the trial court s sentencing decision can be remedied below. Finally, we note that the abstract of judgment failed to include any reference to defendant s conviction on the sexual battery count. That was error. Even if sentence on a particular count is stayed pursuant to section 654, the abstract of judgment must reflect the defendant s conviction on that count. III. DISPOSITION We remand for resentencing. On remand, the trial court is directed to exercise its discretion in determining whether to grant or deny probation. (See People v. Bolton (1979) 23 Cal.3d 208, 216.) The trial court is also directed to clarify the basis for its sentencing decision with respect to the sexual battery conviction on count 2. The trial court is further directed to prepare an amended abstract of judgment, including the sexual battery conviction on count 2, and reflecting whether the sentence on this count is stayed 6 Section 654, subdivision (a), provides, in pertinent part, as follows: An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. 7 An intimate part for purposes of the sexual battery statute means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female. ( 243.4, subd. (g)(1).) 10

11 pursuant to section 654. A copy of the revised abstract of judgment shall be transmitted to the Department of Corrections and Rehabilitation. In all other respects, we affirm the judgment. Reardon, Acting P. J. We concur: Sepulveda, J. Rivera, J. 11