Filed 12/20/13 P. v. Taylor CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE

THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A136172
v.
WILLIAM J. TAYLOR,                                                   (Marin County
                                                                     Super. Ct. No. SC175421A)
         Defendant and Appellant.


         Defendant William J. Taylor argues there was insufficient evidence for a jury to
convict him of sexual penetration of a child. He also argues the trial court erred when it
orally pronounced sentence and stayed portions of his consecutive determinate terms.
We affirm. Substantial evidence supports his conviction and the abstract of judgment
correctly specifies authorized prison terms. However, we remand to allow the superior
court to correct an error on the abstract of judgment.
                                                     Background
          On April 26, 2011, Taylor was arrested in Novato after probation enforcement
officers from the Marin County Sheriff’s office conducted a search and found crystal
methamphetamine and drug paraphernalia in his bedroom. Officers also found
approximately 25 DVDs and mini-DVDs in a suitcase in Taylor’s bedroom, including a
mini-DVD labeled “T” (hereafter “T video”). The officers played the T video on a
portable video player and recognized that it contained footage of child pornography.
Taylor’s mobile phone was seized from his pocket during the arrest and from it Novato



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police extracted thousands of pictures of naked children. On May 5, 2011, police
searched a trailer in Petaluma that belonged to Taylor and seized DVDs and a personal
computer that contained thousands of files of child pornography and duplicates of files
found in his bedroom, such as the T video.
       The T video depicted Taylor molesting an eight-year-old girl (Jane Doe)1 on April
12, 2008. In 2008, Taylor employed Doe’s father. When Doe’s father experienced legal
problems and separated from his wife, Taylor allowed him to stay at his house for periods
of time from 2008 to 2009. Doe and her younger sisters would often visit and stay
overnight. After Taylor was arrested, police interviewed Doe and learned that when she
was younger Taylor had removed her clothing and touched her buttocks and genital area
while video-recording her on multiple occasions.
       In a two-minute segment of the T video time-stamped April 12, 2008, 8:03 p.m.,
Doe is lying on her stomach and facing forward. The camera is behind her, focused on
her genital area and buttocks. During the first minute of the video, Taylor rather
vigorously pokes and rubs Doe’s genital area through her panties. During the second
minute of the video, Taylor peels off Doe’s panties, zooms the lens onto her genitalia,
and briefly pulls the genitalia aside to expose her vaginal entrance.
       On April 26, 2012, prosecutors charged Taylor with one count of sexual
penetration of a child ten years old or younger (Pen. Code, § 288.7, subd. (b))2 (count
one); one count of sexual penetration with a foreign object of a child under 14 years old
by a person ten or more years older (§ 289, subd. (j)) (count two); four counts of lewd
and acts on a child under 14 years old (§ 288, subd. (a)) (counts three, four, five, and



1
  Jane Doe was referred to in the information as “Jane Doe #1” to distinguish her from
another victim in one of the charged counts, “Jane Doe #2.” Since no arguments are
raised with respect to the offense against Jane Doe #2, we will refer to Jane Doe #1
simply as “Jane Doe” or “Doe.”
2
  All further undesignated statutory references are to the Penal Code.

                                              2
six)3; one count of using a minor for sex acts (§ 311.4, subd. (c)) (count seven); and one
count of possessing child pornography (§ 311.11, subd. (a)) (count eight). Taylor was
also charged with one count of possession for sale of methamphetamine (Health & Saf.
Code, § 11378) (count nine) and one count of possession of a smoking device (Health &
Saf. Code, § 11364, subd. (a)) (count ten).
         A Novato police officer testified about images found on Taylor’s mobile phone, in
his bedroom, and in his trailer as an expert in child pornography investigations. He
described the anatomical differences that police use to identify the subjects of
photographs as being under 18 years of age. Footage from the T video was played for the
jury and the officer identified Doe as the girl in the film. He also identified the hand and
arm in the footage as Taylor’s because of the distinctive tattoos on the forearm.
         Twelve-year-old Doe testified against Taylor. The prosecutor also played footage
of Doe’s interview by a police sergeant for the jury and a transcript of the audio was also
admitted into evidence. Doe’s interview largely corroborated her testimony in court. In
her testimony, Doe described how she would visit her father when he lived at Taylor’s
house when she was around eight years old. Taylor would buy her candy. He would
video-record her while the two were alone in his bedroom, where he had left out
photographs, magazines, and computer screen images of posing women. She described
how “quite often” he would “physically and sexually touch” her in “private spots” such
as her “vagina…butt and … boobs.” She did not estimate the number of times, but stated
that Taylor touched her vagina “often.”
         Doe described one occasion in 2008, when she visited her father at Taylor’s house
and Taylor invited her into his bedroom to watch television and then proceeded to give
her a backrub. As she lay on the bed, Taylor rolled her pants and underwear down and
used his hands to “sexually” rub her butt and vagina while he took pictures for about a


3
    Count four was the offense against Jane Doe #2.

                                              3
half hour. On another occasion in 2008, Doe described sleeping at Taylor’s house in the
basement with her sisters and father, and awakening in the “middle of the night.” She
rose from bed to go to the bathroom and noticed Taylor awake “on the other side of the
room.” Although she did not remember Taylor touching her then, she described how her
vagina felt “weird” and “tingly like inside or on the skin.”
       Taylor testified in his own defense. He denied possessing methamphetamine,
downloading pornography on his mobile phone or knowing anything about the mini-
DVDs containing footage of the victims. He could not explain how the child
pornography ended up in his trailer in Petaluma. He claimed he was set up for the
crimes. He acknowledged that E.’s daughters stayed in his home, but he did not recall
video-recording them. Although he recognized his tattooed arm in the videos, he did not
have any explanation for the videos and insisted Doe was coached to accuse him. He
denied fondling, molesting, or penetrating Doe. He criticized Doe’s account of events
and specifically that she had not accurately described the bedroom and some other details
about his living situation.
       On May 17, 2012, the court instructed the jury from a version of CALCRIM 1128
(“Engaging in Oral Copulation or Sexual Penetration With Child 10 Years of Age or
Younger”) for counts one and two. The jury was instructed that “sexual penetration
means penetration, however slight, of the genital or anal opening of the other person by
any foreign object, substance, instrument, or device, or by any unknown object for the
purpose of sexual arousal or gratification. [¶] Penetration of the genital opening includes
penetration of the labia majora. The labia majora are part of the female genitalia. It does
not require penetration of the vagina.”
       During closing arguments, the prosecution argued that CALCRIM 1128 did not
require finding Taylor stuck “his finger all the way into the vagina,” and that penetration
occurred when his finger slightly penetrated the labia majora covering Doe’s vagina. The
prosecutor then played the portion of the T video showing Doe laying bare-bottom on her

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stomach while Taylor’s hand rubs her genital area. The prosecutor proceeded to argue
Taylor penetrated Doe when he pulled back skin in her genital area, exposed her genital
opening, and touched her labia majora. Defense counsel rejected that interpretation of
the video and argued penetration was not apparent. The defense further argued Taylor
was merely manufacturing child pornography and therefore lacked the intent necessary to
find him guilty of penetrating a child under the law because he was not touching Doe for
sexual arousal or gratification.
       The jury returned guilty verdicts for counts one through five and seven through
ten. The court declared a mistrial on count six, an alleged lewd act committed on Doe,
because of the failure to reach a verdict. The court imposed a sentence of 15 years to life
in prison on count one (§ 288.7, subd. (b)). Sentences on counts two, three, and seven
were stayed under section 654. The court imposed the upper term of eight years on count
four (288, subd. (a)). For count five (§ 288, subd. (a)), the court imposed two years as
one-third of the middle term because the count was subordinate to the principal term
assessed in count four. For count eight (§ 311.11, subd. (a)), also a subordinate offense,
the court imposed one-third of the midterm, or eight months that was to run
consecutively. The court imposed one-third of the mid-term pursuant to section 1170.1,
another eight months, to run consecutively on count nine. Thus, Taylor received an
aggregate determinate term of 11 years and four months, in addition to the life term on
count one.4 The court did not impose a sentence for count ten (Health & Saf. Code, §
11364) because it was a misdemeanor.
       Appellant filed a timely notice of appeal on August 1, 2012.




4
 The court granted Taylor a total credit of 517 days for time served, and ordered him to
pay restitution (§ 1202.4) and register as a sex offender (§ 290).

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                                        Discussion
a. Sufficient Evidence of Penetration
       Taylor argues there was insufficient evidence for the jury to conclude beyond a
reasonable doubt that he violated section 288.7, subdivision (b), or section 289,
subdivision (j), by penetrating Doe. He claims the footage of him molesting Doe on the
T video does not show that his fingers penetrate her genital opening. Because there was
no other evidence besides the video footage that could directly show penetration, he
argues, the jury had no basis to conclude a penetration took place.
       A defendant challenging a conviction based on insufficient evidence must
“demonstrate that there is no evidence of a sufficiently substantial character to support
the verdict upon any reasonable hypothesis.” (People v. Hatton (1952) 114 Cal.App.2d
195, 196.) We review the entire record “to determine whether it discloses substantial
evidence—that is, evidence which is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”
(People v. Johnson (1980) 26 Cal.3d 557, 578.) Substantial evidence has “ponderable
legal significance” (id., at p. 576), that “a reasonable jury could find persuasive” (People
v. Barton (1995) 12 Cal.4th 186, 201, fn. 8). If there is substantial evidence to support
the verdict, “we must accord due deference to the trier of fact.” (People v. Jones (1990)
51 Cal.3d 294, 314.) As such, we will not “reweigh any of the evidence” and we will
“draw all reasonable inferences, and resolve all conflicts, in favor of the judgment”
(People v. Poe (1999) 74 Cal.App.4th 826, 830.) The verdict must be upheld “if, on the
basis of the evidence presented, the jury's determination is reasonable” (People v.
Garrison (1989) 47 Cal.3d 746, 774), and “may not be overturned when the
circumstances might also reasonably support a contrary finding” (People v. Lewis (2001)
25 Cal.4th 610, 644).
       Sexual penetration, “is the act of causing the penetration, however slight, of the
genital or anal opening of any person or causing another person to so penetrate the

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defendant's or another person's genital or anal opening for the purpose of sexual arousal,
gratification, or abuse by any foreign object, substance, instrument, or device, or by any
unknown object.” (§ 289, subd. (k)(1).) Penetration of the genital opening does not
require penetration of the vagina. (People v. Quintana (2001) 89 Cal.App.4th 1362,
1367.) The labia majora is an external part of the female genitalia. (Ibid.) Thus, sexual
penetration can occur when a finger penetrates the labia majora. (Ibid.) But, bare skin
contact with the victim’s genital opening is not required for penetration. (People v.
Ribera (2005) 133 Cal.App.4th 81, 85 [immaterial whether there was any clothing or
barrier between the opening and the object at the time of the penetration].) Moreover,
proof of penetration can be based on circumstantial evidence. (People v. Peters (1957)
149 Cal.App.2d 94, 97.)
       Viewed in the light most favorable to the judgment, the evidence supports the
jury’s finding that Taylor penetrated Doe. The T video shows Taylor poking and rubbing
Doe’s genitals through her panties with sufficient force to support an inference that his
fingertips penetrated her labia majora in the process. The requisite penetration could also
be found from his pulling aside her genitals to reveal her vaginal entrance. Based on the
manner and movement of his touching, it is not unreasonable for a fact finder to infer that
Taylor’s fingers penetrated her genital opening at some point during this molestation.
After all, the element was satisfied when there is even a slight penetration of the exterior
genitalia (People v. Quintana, supra, 89 Cal.App.4th at p. 1367), and penetration can
occur through the fabric of her underwear (People v. Ribera, supra, 133 Cal.App.4th at p.
85). Further, Doe testified at trial and stated during her interview with police that Taylor
touched her vagina on multiple occasions. Taken together and viewed with favor to the
jury’s conclusion, the evidence supports a reasonable inference that his fingers penetrated
her genital opening.




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b. Sentencing
       Taylor argues the trial court erred when it orally pronounced his sentence and
therefore his sentence should be reversed. He contends that rather than staying portions
of upper term sentences for counts five, eight, and nine, the trial court should have
imposed one-third of the middle terms for each offense.
       When someone is convicted of more than one felony, a court imposing
consecutive determinate prison terms must impose the full term for the principal term—
that is, the term with the longest sentence—and one-third of the middle term of each of
the subordinate terms. (§ 1170.1, subd. (a)5; People v. Neely (2009) 176 Cal.App.4th
787, 797-798.) One-third of the middle term is imposed for all subordinate terms “even
if the trial court had initially selected the lower or upper term as the base term.” (People
v. Neely, supra, 176 Cal.App.4th at p. 798.) For subordinate terms, the sentencing court
must indicate on the abstract of judgment whether each term is imposed as an upper,
middle, or lower term. (People v. Saibu (2011) 191 Cal.App.4th 1005, 1013.)
       Here, the oral pronouncement was flawed because it erroneously stayed portions
of the terms for counts five, eight and nine. But, the abstract of judgment properly
reflects the authorized prison terms for counts five, eight and nine as subordinate terms
under section 1170.1. The court correctly imposed two years for count five, which is
one-third of the six-year middle term for violating section 288, subdivision (a); eight

5
 Section 1170.1, subdivision (a), provides in pertinent part: “when any person is
convicted of two or more felonies, . . . and a consecutive term of imprisonment is
imposed . . . , the aggregate term of imprisonment for all these convictions shall be the
sum of the principal term, the subordinate term, and any additional term imposed for
applicable enhancements for prior convictions, prior prison terms, and Section 12022.1.
The principal term shall consist of the greatest term of imprisonment imposed by the
court for any of the crimes . . . . The subordinate term for each consecutive offense shall
consist of one-third of the middle term of imprisonment prescribed for each other felony
conviction for which a consecutive term of imprisonment is imposed, and shall include
one-third of the term imposed for any specific enhancements applicable to those
subordinate offenses.”


                                              8
months for count eight, which is one-third of the 24-month middle term for violating
section 311.11, subdivision (a); and eight months for count nine, which is one-third of the
24-month middle term for violating Health & Safety Code, section 11378. (CJER Felony
Sentencing Handbook (CJER 2012) pp. 14, 18, 61.) Because the abstract of judgment
will control the terms of Taylor’s imprisonment, the court’s flawed oral pronouncement
has no legal effect and does not require reversal. (See People v. Mitchell (2001) 26
Cal.4th 181, 185.)
       The abstract does contain one error that requires correction. It does not correctly
identify which term of the aggregate determinate sentence the trial court intended for
counts five and eight. The court designated the prison terms for counts five and eight as
“consecutive 1/3 [one-third]” terms, which is consistent with section 1170.1. But, those
subordinate terms are also identified as ‘U,’ or upper terms in the abstract, which does
not technically comport with section 1170.1’s requirement that one-third of the middle
term be imposed. Therefore, the entries for counts five and eight in the ‘Term’ column
must be corrected to indicate the middle term for each. (People v. Saibu, supra, 191
Cal.App.4th at p. 1013.)
                                       Disposition
       The convictions and the sentences are affirmed. The trial court is directed to
prepare a corrected abstract of judgment showing that one-third of the midterm sentences
were imposed on counts five and eight, and to forward a certified copy to the Department
of Corrections and Rehabilitation.




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                                 _________________________
                                 Siggins, J.


We concur:


_________________________
Pollak, Acting P.J.


_________________________
Jenkins, J.




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