Filed 12/3/15 P. v. Davidson CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE

         Plaintiff and Respondent,                                       E061923

v.                                                                       (Super.Ct.No. RIF1314010)

WILLIAM THOMAS DAVIDSON III,                                             OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge.

Affirmed.

         Paul J. Katz, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, and Allison V.

Hawley, Deputy Attorneys General, for Plaintiff and Respondent.



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                                             I

                                    INTRODUCTION

      Defendant William Thomas Davidson, known as Uncle Bobo, routinely tickled the

children who frequented his brother’s home. The information charged defendant with

two felony counts of lewd touching against two girls, Jane Doe 1 and Jane Doe 2. (§ 288,

subd. (a).)1 The pleading also alleged that defendant committed a sexual offense against

more than one victim. (§ 667.61, subd. (e)(4).)

      The jury found not true the multiple-victim allegation. The jury convicted

defendant of a lesser offense included in count 1, misdemeanor battery (§ 242), as well as

count 2, lewd act on a child (§ 288, subd. (a).) The court denied probation and sentenced

defendant to the low term of three years in prison on count 2 with a concurrent sentence

of 180 days on count 1.

      On appeal, defendant argues the court committed instructional error in giving a

modified version of CALCRIM No. 1110, and evidentiary error involving the fresh-

complaint doctrine. We reject defendant’s contentions and affirm the judgment.




      1   All statutory references are to the Penal Code unless indicated otherwise.



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                                            II

                  FACTUAL AND PROCEDURAL BACKGROUND

A. Prosecution Case

       Defendant lived with his brother Robert’s family and frequently babysat his two

nephews and their friends. Two girls, Jane Doe 1 and Jane Doe 2, played at the Davidson

residence two or three times a week under defendant’s supervision. The children called

defendant Uncle Bobo. Defendant often tickled his nephews and their friends as they sat

on his lap.

       Jane Doe 2 testified that defendant would tickle her when she visited the Davidson

home. Once, when she was 11 or 12 years old, he tickled her differently. While the other

children were outside, defendant invited Jane Doe 2 into his bedroom. While she sat on

his lap playing a computer game, he began rubbing her shoulder and then put his hand

inside her T-shirt sleeve and rubbed her chest area. She was uncomfortable and ran

outside to resume playing with the other children.

       Defendant also occasionally tickled Jane Doe 1. Once, when Jane Doe 1 was nine

years old, defendant was sitting and Jane Doe 1 was standing in his bedroom, and he

began tickling her stomach, and then her genital area over her clothing. After defendant

stopped at Jane Doe 1’s request, she continued to play and she returned the next day.

       At a roller skating party in November 2013, Jane Doe 2 told defendant’s brother

Robert about the incident with defendant. She reported that defendant had reached inside

her shirt and rubbed her chest. Robert confronted defendant the next day and, after they

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argued, Robert told him to move out. Defendant moved out within 30 days.

       Robert talked to the police and to Jane Doe 2’s parents and other parents. After

Robert talked to Jane Doe 1’s parents, Jane Doe 1 told her mother about defendant

tickling her genitals. Robert asked his own children whether they had ever seen

defendant touch children inappropriately.

       A detective interviewed the Jane Does and defendant. When defendant was asked

whether he had touched any child’s private areas, he recalled only once when he

accidentally touched Jane Doe 1’s sister’s breast while tickling her. He also remembered

accidentally touching Jane Doe 2’s breast. He denied touching Jane Doe 1’s genitals

although, when he was tickling her, she had gripped his forearm with her legs and pulled

it towards her genital area, causing him to stop tickling her.

B. Defense Case

       Jane Doe 2 had told police that the incident had taken place during the summer of

2013 and she was wearing a tank top under her T-shirt. At trial, she testified that the

touching occurred in February 2013 and she had been wearing nothing under her T-shirt.

Her trial testimony differed about which breast defendant had touched and whether

defendant had squeezed her breast. She gave different testimony about whether she had

asked defendant about what he was doing, or asked to go to the bathroom during the

touching, and whether she reported the incident to Jane Doe 1 at school. She came over

to play at least once after the incident.

       Jane Doe 1 told the police that the touching had occurred in the weeks leading up

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to Halloween in 2013. During trial, Jane Doe 1 repeatedly testified that the alleged

touching had occurred a year earlier. She had also told police that defendant had

scratched and hurt her with his sharp fingernails but she testified that the touching did not

hurt and defendant had touched her only over her clothing.

       On cross-examination, both girls testified that the door to defendant’s bedroom

was open during the two incidents. Defendant’s nephew testified that he had frequently

seen his uncle tickle children, including the Jane Does but he had never seen defendant

tickle them inappropriately and he never saw his uncle alone with either Jane Doe.

                                             III

                               INSTRUCTIONAL ERROR

       CALCRIM No. 1110—the jury instruction for lewd and lascivious touching under

section 288, subdivision (a)—lists three elements for the offense: (1) willful touching of

a child either on bare skin or through clothing, (2) with sexual intent, and (3) involving a

victim under 14 years old. The trial court’s jury instruction for lewd touching was based

on CALCRIM No. 1110 but included additional language: “The touching need not be

done in a lewd or sexual manner.”2 Although defendant did not object below, defendant

now argues the additional language suggested that defendant could be guilty without

sexual intent.


       2  The jury was also instructed based on CALCRIM No. 252 [Union of Act and
Intent] and CALCRIM No. 3404 [Accident].



                                              5
       We disagree. Defendant’s failure to object below means he forfeited the issue on

appeal. (People v. Hart (1999) 20 Cal.4th 546, 622; People v. Stone (2008) 160

Cal.App.4th 323, 331.) Even so, his claim fails on the merits.

       An appellate court independently reviews instructional error. (People v. Posey

(2004) 32 Cal.4th 193, 218.) CALCRIM No. 1110 defines the requisite intent that must

be present for a defendant to be convicted of the sexual offense: the intent of the

defendant to arouse himself or the child sexually. (People v. Martinez (1995) 11 Cal.4th

434, 442.) In Martinez—a case involving hugging a child for sexual gratification—the

California Supreme Court reiterated that section 288 “require[s] no particular form of

physical contact.” (Id. at p. 438.) “Whether a particular touching is ‘lewd’ and criminal

under section 288 cannot be determined separate and apart from the actor’s intent.”

(Ibid.) “Indeed, the ‘gist’ of the offense has always been the defendant’s intent to

sexually exploit a child, not the nature of the offending act. [Citation.] . . . [¶] [A]

‘touching’ of the victim is required, and . . . sexual gratification must be presently

intended at the time such ‘touching’ occurs. [Citations.] However, the form, manner, or

nature of the offending act is not otherwise restricted.” (Id. at p. 444.)

       Courts addressing the same instructional language as here have not found error. In

People v. Sigala (2011) 191 Cal.App.4th 695, 701, the court held that the phrase

“‘touching need not be done in a lewd or sexual manner’” was “entirely consistent with

Martinez” and “an accurate statement of the law.” In People v. Cuellar (2012) 208

Cal.App.4th 1067, 1071-1072, the court commented that the challenged phrase added

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little of value but did not disagree with the analysis in Sigala. Instead, the court

recommended the Judicial Council “propose new language that simply states that the

touching need not be made to an intimate part of the victim’s body, so long as it is done

with the required intent.” (Ibid.; People v. Cannata (2015) 233 Cal.App.4th 1113, 1126.)

The Cuellar court concluded that, taken as a whole, the instruction did not mislead the

jury. Instead, the challenged language properly clarified that the offense merely requires

a nonaccidental act committed with sexual motivation and that acts such as hugging and

tickling may constitute lewd and lascivious touching when coupled with sexual intent.

(People v. Martinez, supra, 11 Cal.4th at p. 449.)

       Based on Martinez, CALCRIM No. 1110, even as modified by the trial court,

correctly told the jury to determine whether defendant committed any touching of a child

with the required sexual intent. Thus, the trial court properly informed the jury that lewd

acts may include acts that do not appear to be sexual in manner.

       Furthermore, any error was harmless because defendant’s defense was that the

alleged acts did not occur. The disputed issue in the case was not defendant’s intent but

whether he committed the alleged acts. If defendant’s intent had been at issue, his

defense would have been that he tickled the girls for innocent reasons. Instead, he argued

that the acts never occurred. Unlike the hugging in Martinez, touching the girls’ chest

and genitals was inherently sexual. If the jury believed the touching happened, they

could decide that defendant acted with sexual intent. Since the touching was obviously

lewd and sexual, it was immaterial that the trial court instructed the jury that the touching

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need not be done in a lewd or sexual manner.

       The jury obviously understood that innocent tickling without sexual intent

constitutes mere battery because the jury only convicted defendant of battery on count 1.

By convicting defendant on count 2, the jury signaled it believed beyond a reasonable

doubt that defendant did more than merely tickle Jane Doe 2 by rubbing her chest under

her shirt. Defendant does not challenge the sufficiency of the evidence. Even if the court

erred by telling the jury that the touching need not be committed in a sexual manner, that

instruction was irrelevant to the jury’s finding that rubbing Jane Doe 2’s chest was a lewd

act. Therefore, any instructional error was harmless even under the standard for

constitutional errors set forth in Chapman v. California (1967) 386 U.S. 18, 24.

                                            IV

                           FRESH-COMPLAINT EVIDENCE

       The trial court ruled that the fresh-complaint doctrine permitted the prosecution to

elicit testimony about the initial statements the Jane Does made to Robert and to their

adult family members about the two incidents. Defendant claims the trial court

erroneously allowed impermissible factual details. We disagree.

       An appellate court reviews trial court rulings on the admissibility of evidence for

abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 203.) Reversal is only

appropriate when the court erred by admitting the evidence and that error resulted in

prejudice. (People v. Marks (2003) 31 Cal.4th 197, 226-227.) The testimony by the girls

was extremely general and not detailed in the least. The evidence consisted only of basic

                                             8
facts about the charged offenses. Furthermore, there was no reasonable probability of a

different verdict.

       Jane Doe 2 testified that she told Robert defendant had touched her chest. Jane

Doe 1 testified that she first reported defendant’s conduct to her mother and began crying

because she was scared. The trial court ruled that Robert could testify that, after Jane

Doe 2 complained to him, he contacted the parents of children who regularly played at

his house but he could not testify about the substance of the conversations. Robert

testified that Jane Doe 2 had described sitting on defendant’s lap and playing a computer

game when he rubbed her chest. Robert confronted his brother and spoke to Jane Doe 2’s

parents. Over defense objection, the court also permitted the detective to testify about the

girls’ prior consistent statements.

       A party seeking to exclude evidence must renew the objection during trial to

preserve the issue for appeal. (People v. Holloway (2004) 33 Cal.4th 96, 133.)

Defendant’s motion in limine was only directed at Jane Doe 2’s complaints to her aunt

and uncle. Defendant did not address the statements made to Jane Doe 1’s mother and to

Robert. Defendant did not object to Robert’s testimony about what Jane Doe 2 said.

Instead, when the court specifically asked defense counsel about her reaction, she

responded by objecting only to Robert’s reports to other parents. Because defendant did

not raise “a specific objection,” directed to this “particular, identifiable body of

evidence,” he has forfeited his claim on appeal. (People v. Crittenden (1994) 9 Cal.4th

83, 127.)

                                               9
       On the merits, defendant also cannot prevail. Evidence that a victim of a sexual

offense made a complaint is admissible under the fresh-complaint doctrine. The

California Supreme Court has explained the doctrine: “[P]roof of an extrajudicial

complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be

admissible for a limited, nonhearsay purpose—namely, to establish the fact of, and the

circumstances surrounding, the victim’s disclosure of the assault to others—whenever the

fact that the disclosure was made and the circumstances under which it was made are

relevant to the trier of fact’s determination as to whether the offense occurred.” (People

v. Brown (1994) 8 Cal.4th 746, 749-750.)

       However, evidence of the victim’s disclosure of the alleged offense should be

“limited to the fact of the making of the complaint and other circumstances material to

this limited purpose.” (People v. Brown, supra, 8 Cal.4th at p. 763.) Although “details”

are not allowed, limited relevant evidence may be admitted. (Id. at p. 756.) In People v.

Burton (1961) 55 Cal.2d 328, 351, the victim’s testimony that the victim’s stepfather

“‘made me play with his peter’” was permissible as a statement of the fact of molestation.

(Id. at pp. 337; People v. Butler (1967) 249 Cal.App.2d 799, 804; People v. Cordray

(1963) 221 Cal.App.2d 589, 594.) The Burton court held that “the alleged victim’s

statement of the nature of the offense and the identity of the asserted offender, without

details, is proper. [Citations.] (Burton, at pp. 351-352.)

       It was necessary for the girls to testify because their initial statements identified

the conduct supporting the criminal charges. The minimal detail the girls provided

                                              10
logically connected their reports to the charged offenses. Otherwise, the charged offenses

may have involved entirely different conduct that was wholly foreign to the charged

offenses. (People v. Brown, supra, 8 Cal.4th at p. 756.) Admission of the girls’

statements was not an abuse of discretion. (People v. Alvarez, supra, 14 Cal.4th at p.

203.)

        Finally, any error was harmless because there was no reasonable probability of a

different result. (People v. Watson (1956) 46 Cal.2d 818, 836.) The mixed verdict

indicates that the jury evaluated all the evidence, including the witnesses’ credibility as

they testified, and did not give the girls’ initial statements undue weight. Any error was

harmless.

                                              V

                                      DISPOSITION

        No prejudicial error occurred at trial. We affirm the judgment.

        NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                 CODRINGTON
                                                                                              J.

We concur:


HOLLENHORST
                  Acting P. J.


KING
                            J.




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