Filed 4/17/14 P. v. Leite 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,
                                                                         A138456
v.
EDWARD RICHARD LEITE,                                                    (Alameda County
                                                                         Super. Ct. No. H50864)
         Defendant and Appellant.


         Defendant Edward Richard Leite appeals from a judgment convicting him one
count of intercourse with a child under 10 years old, four counts of lewd acts with a child
under 14 years old and one count of possession of child pornography, and sentencing him
to a prison term of 125 years to life plus three years. On appeal, defendant challenges the
sufficiency of the evidence and the instructions with regard to the four counts of lewd
conduct. He also argues that the court erred in imposing consecutive 25-year-to-life terms
on those four counts. We find no reversible error with regard to his convictions but agree
that the sentence must be corrected.
                                      Factual and Procedural History
         Defendant was charged by amended information with one count of intercourse
with a child under 10 years (Pen. Code,1 § 288.7, subd. (a); count one), four counts of
lewd acts with a child under 14 years (§ 288, subd. (a); counts two, three, four, five), and
one count of possession of child pornography (§ 311.11, subd. (a); count six). With


1
    All statutory references are to the Penal Code.


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respect to the section 288 violations, the information included enhancement allegations
that the offenses involved separate occasions and separate victims (§ 667.6, subds. (c),
(d)) and a one strike allegation that defendant committed offenses against more than one
victim (§ 667.61, subd. (e)(5)).
       Defendant was charged with committing offenses against two minors, Jane Doe
(Jane), who was between five and seven years of age at the time of the offenses, and
John Doe (John), defendant’s son, who was between 11 and 13 years old at the time of
the offenses. The following evidence was presented at trial.
      Count one (section 288.7 - intercourse with a child under 10 years)
       Because defendant does not challenge his conviction on count one, only a brief
summary of the facts relating to that offense is necessary to provide context for the
evidence presented in support of the remaining charges. Jane and her mother had been
living with defendant and his son since Jane was four or five years old. Jane’s mother
testified that she left Jane with defendant on the afternoon of October 30, 2010. When she
returned later that evening, Jane was in the bathroom screaming that “her privates hurt.”
Jane told her mother that defendant had hurt her while “playing horsey.” Jane explained
to her mother, and testified at trial, that “playing horsey,” meant getting on top of each
other. While they played horsey, Jane’s private part touched defendant's private part,
which was inside her. Jane testified that this was not the first time she had played
horsey with defendant. Defendant denied having intercourse with Jane and claimed that
she hurt herself on monkey bars earlier that day.
       Counts two through six
       Following the October 30 incident, defendant’s home was searched. Officers
recovered two laptop computers on which a forensic investigator found approximately 25
photographs of suspected child pornography and 160 video files of child pornography.
None of the videos or photographs were found in the trash file. Other videos were found
that depicted defendant involved in sexual activity with Jane’s mother. Defendant
admitted having the videos and photos on his computers that depicted him with Jane’s
mother but claimed that he had never seen the others before. He testified that there were


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many other people who had access to his computers. A selection of the videos
downloaded from defendant’s computers were played for the jury.
       Officers also found two videos depicting Jane and John engaging in sexual
activity. The first video was found on a DVD in defendant’s bedroom. An investigator
testified that defendant was visible at the beginning of the DVD “turning on a camcorder
or some type of video reporting device” and he was also visible at the end of the video.
The second video was found in a file on one of defendant’s computers. According to the
investigator, defendant is again seen “[a]t the beginning of the video. . . walking up to a
video camera that appeared to be mounted on the wall and he had reached up to do some
kind of adjustment to the camera, but the camera was pointed right at his face.”
Defendant admitted on cross-examination that in both videos, the children look directly at
the camera and in one Jane can be heard saying “he’s recording us again.” In closing
argument, the prosecution emphasized sections of the second video in which defendant
can be seen entering the room and telling the children to open the blinds. Then he tells the
children to go back to what they were doing and immediately thereafter Jane and John
engage in sexual conduct. Both videos were shown to the jury.
       John testified that he and Jane had sex about 12 to 14 times and on each occasion
their conduct was videotaped. The video camera was located unhidden in John’s closet.
John testified that his father had shown him pornography and told him to “try these
positions” with Jane. John felt like he “just had to say okay.” He explained, “He was my
father. I tried to gain something from that” and "I couldn't say no to my father” because
he “felt threatened by him” “[e]veryday.” Jane was seven or eight in the video, and John
was 11. John knew what he was doing was wrong, but he did it “for [his] father’s
entertainment.” Afterward, he felt “[s]hocked.” At the time of trial, he felt “[g]uilty.”
       Defendant admitted that he recorded the first video found on the DVD in his
bedroom. The video depicted Jane and John, both of whom were nude, having sex
together. Defendant testified that he had been warned by someone that the children were
playing doctor. John had denied it when he questioned him, but defendant wanted to see
what they were doing. He admitted that after watching the video, he did not tell the


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children’s mothers or anyone else about the “kids’ ” behavior. As to the second video,
defendant could not remember if he recorded it. He thought it might have recorded
automatically or been activated by a motion sensor. He claimed that he had never seen
the video until his counsel showed it to him. Regarding his presence in the second video,
defendant said he “was checking in on them periodically.” He denied that he told the
minors to engage in sexual activity or that he showed pornography to his son or told him
what to do with Jane.
       The jury found defendant guilty on all counts and found the special allegations to
be true. Defendant was sentenced to a total term of 125 years to life plus three years. He
timely filed a notice of appeal.
                                        Discussion
1. Substantial evidence supports defendant’s section 288 convictions.
       The four counts alleging violations of section 288 were based on the two videos
defendant made depicting the children engaged in sexual acts. Two counts referred to
Jane as the victim and two counts referred to John. Although the videos did not depict
defendant physically touching the children, the prosecutor argued that defendant
nonetheless violated the statute because, while harboring the requisite lewd intent, he
caused the children to engage in the sexual conduct with each other. (See People v. Lopez
(2010) 185 Cal.App.4th 1220, 1229, 1233 [“section 288 is violated by ‘any touching’ of
an underage child, including a constructive touching by the victim at the defendant's
direction, ‘accomplished with the intent of arousing the sexual desires of either the
perpetrator or the child’ ”], quoting People v. Martinez (1995) 11 Cal.4th 434, 452;
People v. Mickle (1991) 54 Cal.3d 140, 176; People v. Austin (1980) 111 Cal.App.3d
110, 114–115.)
       Defendant acknowledges that a “constructive touching” is sufficient to support a
violation of section 288, but argues that there is insufficient evidence that he caused the
children to engage in the sexual conduct or that he did so with “the intent to arouse
necessary for a lewd act conviction.” We disagree.



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       To demonstrate a constructive touching under section 288, the prosecution must
prove only that one minor touched the other “at the instigation of” or “at the direction of”
defendant. (People v. Meacham (1984) 152 Cal.App.3d 142, 153, disapproved on other
grounds in People v. Brown (1994) 8 Cal.4th 746, 756–759; People v. Lopez, supra, 185
Cal.App.4th at p. 1233.) Contrary to defendant’s repeated assertion, the prosecution is not
required to prove that defendant coerced the minors to engage in the sexual conduct. A
touching against the will of a child violates a different provision of the statute, with an
increased penalty. (§ 288, subd. (b); People v. Fulcher (2006) 136 Cal.App.4th 41, 51
[“[F]orce or duress are not required elements of a section 288[, subd.] (a) offense.”].) As
set forth in the instructions discussed post, the jury must find only that defendant
“willfully caused” the touching.
       Although defendant is not seen on camera directing the children’s conduct, John
testified that defendant showed him pornography and directed him to try positions shown
on the pornographic films with Jane. Defendant was visible on both of the videos before,
during, or after the recording. He positioned the cameras and instructed the children to
leave the blinds open, likely to provide enough light for the camera to film. At one point,
defendant is seen interrupting the children and then directing them to “go back to what
they were doing,” after which they immediately resumed their sexual conduct. John’s
statement that he made the videos for his “father’s entertainment” and that he did not
refuse because he “felt threatened” by defendant further supports the jury’s findings.
Contrary to defendant’s argument, the evidence shows more than merely “setting up a
camera or showing a child pornography.” The evidence amply supports a finding that
defendant caused the proscribed touching.
       Defendant also argues that the evidence does not establish a nexus between the
touching and his lewd intent. He suggests that the pornography found on his computers is
“not evidence of a lewd intent accompanying any particular act” and that there is no
evidence to support “a lewd act contemporaneously accompanied by the intent-to-arouse
sufficient to sustain” his convictions. We disagree.



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       People v. Lopez, supra, 185 Cal.App.4th 1220 is instructive. In that case, the court
considered, as an issue of first impression, “whether a touching out of the presence of the
defendant can satisfy the touching element within the meaning of section 288.” (Lopez,
p. 1231.) The court noted that there was “overwhelming evidence that defendant was
sexually exploiting” certain children, but that “[t]he question . . . is whether there was
sufficient evidence of a touching concurrent with lewd intent, where the girls dressed
themselves out of defendant’s presence but under defendant's direction.” (Id. at p. 1232.)
The court concluded, based on the “legislative intent to apply section 288 expansively to
any sexually motivated touching,” that “section 288 encompasses the defendant's act in
the instant case of directing the victims to change into provocative clothing for the
sexually motivated purpose of watching the girls search for money in the provocative
clothing. The defendant committed the touching acts constructively, through the victims
as conduits, for the purpose of sexual arousal. Even though defendant may not have
experienced sexual arousal at the moment the victims touched themselves when putting
on the provocative clothing, defendant’s intent when instigating or causing the touchings
was lewd and lascivious within the meaning of section 288, since the touchings were
sexually motivated and committed for the purpose of defendant's sexual gratification.”
The same is true in the present case. Whether or not defendant experienced sexual arousal
as the children were actively engaged in the sexual conduct, the evidence supports the
finding that his intent when instigating or causing the conduct was lewd and lascivious
within the meaning of section 288. The jury could reasonably find that the conduct was
sexually motivated and committed for the purpose of defendant's sexual gratification.
2. The jury was properly instructed on the elements of section 288, subdivision (a).
       The jury was instructed, pursuant to CALCRIM No. 1110 on the elements of a
violation of section 288, subdivision (a) in relevant part as follows: “The defendant is
charged in counts two, three, four and five with committing a lewd or lascivious act on a
child under the age of 14 years in violation of Penal Code section 288(a). [¶] To prove
that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant
willfully caused a child to touch his/her own body, the defendant’s body, or the body of


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someone else, either on the bare skin or through the clothing; [¶] 2. The defendant
committed the act with the intent of arousing, appealing to, or gratifying the lust,
passions, or sexual desires of himself or the child; [¶] AND [¶] 3. The child was under the
age of 14 years at the time of the act.” On appeal, defendant argues for the first time that
the trial court was required sua sponte to instruct the jury further on “constructive
touching.” We disagree.
       The Bench Notes to CALCRIM No. 1110 provide, “In element 1, give
alternative lA if the prosecution alleges that the defendant touched the child. Give
alternative 1B if the prosecution alleges that the defendant cause[d] the child to do the
touching.” Alternative lA provides, “The defendant willfully touched any part of a child’s
body either on the bare skin or though the clothing.” Alternative 1B, which was given
here, provides, “The defendant willfully caused a child to touch his/her own body, the
defendant’s body, or the body of someone else, either on the bare skin or through the
clothing.” Contrary to defendant’s argument, alternative 1B properly defines the crime in
situations, such as shown by the evidence in this case, where the defendant is alleged to
have caused one child to touch another child.
       Defendant’s reliance on CALJIC No. 10.41 is misplaced. As defendant notes,
CALJIC No. 10.41 includes an alternative definition of “touching” to be given when the
defendant does not directly touch the child: “[A ‘touching’ may be actual or constructive.
It is constructive when a [defendant] [perpetrator] without actually touching the alleged
victim, [compels] [directs] [causes] the victim to be touched by [himself] [herself]
[another person][.] [, regardless of whether the [defendant] [perpetrator] is present.]]”
The CALJIC instruction thus indicates that any of the three suggested verbs, including
“causes,” is adequate to establish a violation. Moreover, we do not agree with defendant
that the words “compels” or “directs” nessarily “imply much more substantial actions on
the part of the accused” than the phrase “willfully caused” used in CALCRIM No. 1110.
Contrary to defendant’s suggestion, the jury was not required to answer the question,
“[D]id [defendant] direct or coerce the children to perform those acts?” As noted above,
coercion is not an element of the offense.


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       Finally, the court did not err in failing sua sponte to instruct the jury with the
CALCRIM No. 240 pattern instruction on causation.2 Defendant asserts that the “pattern
instruction on causation would have provided guidance for the jury, especially in regard
to the concept of what constitutes a ‘substantial’ causal factor and the idea that some acts
may be too ‘remote’ to incur criminal liability or show the appropriate nexus between act
and intent.” The court has a sua sponte duty to instruct on proximate cause only if
causation is at issue. (People v. Bland (2002) 28 Cal.4th 313, 333–336.) Causation was
not raised as an issue at trial. Defendant argued solely that he did not know what was
about to occur when he set up the video. He made no argument, as he does on appeal, that
John caused the conduct to occur without any direction from his father or that his
(defendant’s) acts of setting up the camera and showing John pornography were too
“remote” to have legally caused the sexual conduct. Moreover, even if further instruction
on the legal definition of causation was required, the court’s failure to give such an
instruction was harmless under any standard. No reasonable jury could have found that
defendant’s actions were not a substantial factor in causing the proscribed touching. (See
id. at p. 338; People v. Burnett (2003) 110 Cal.App.4th 868, 879.) Because the jury
undoubtedly would have found defendant guilty even if the additional instructions had
been given, there was no prejudice.



2
  CALCRIM No. 240 reads: An act [or omission] causes (injury/ _________________
<insert other description> ) if the (injury/ ________________ <insert other description>)
is the direct, natural, and probable consequence of the act [or omission] and the (injury/
_________________ <insert other description> ) would not have happened without the
act [or omission]. A natural and probable consequence is one that a reasonable person
would know is likely to happen if nothing unusual intervenes. In deciding whether a
consequence is natural and probable, consider all the circumstances established by the
evidence. [¶] <Give if multiple potential causes.> [¶] [There may be more than one cause
of (injury/ _________________ <insert other description> ). An act [or omission] causes
(injury/ _________________ <insert other description> ), only if it is a substantial factor
in causing the (injury/ _________________ <insert other description> ). A substantial
factor is more than a trivial or remote factor. However, it does not have to be the only
factor that causes the (injury/ _________________ <insert other description> ).]


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3. John was not an accomplice.
       Defendant contends that John was an accomplice so that the court was required to
instruct the jury that his testimony had to be corroborated. (See § 1111 [“A conviction
cannot be had upon the testimony of an accomplice unless it be corroborated by such
other evidence as shall tend to connect the defendant with the commission of the
offense”].) An accomplice is defined as “one who is liable to prosecution for the identical
offense charged against the defendant on trial in the cause in which the testimony of the
accomplice is given.” (§ 1111.) “Whether a person is an accomplice within the meaning
of section 1111 presents a factual question for the jury ‘unless the evidence permits only
a single inference.’ [Citation.] Thus, a court can decide as a matter of law whether a
witness is or is not an accomplice only when the facts regarding the witness’s criminal
culpability are ‘clear and undisputed.’ ” (People v. Williams (1997) 16 Cal.4th 635, 679.)
“ ‘When there is sufficient evidence that a witness is an accomplice, the trial court is
required on its own motion to instruct the jury on the principles governing the law of
accomplices, including the need for corroboration.” (People v. Tobias (2001) 25 Ca1.4th
327, 331.)
       John was not an accomplice to the violation of section 288 committed against
Jane. Where a minor is a victim of a sexual offense, such as incest, he or she is not liable
as an accomplice. (People v. Tobias, supra, 25 Ca1.4th at pp. 334-335.) “ ‘It has long
been settled that where a penal statute expressly outlaws conduct against minors, a minor
who is a victim of the proscribed conduct is not an accomplice and the jury need not be
instructed that the minor’s testimony requires corroboration.’ ” (Id. at p. 334.) “The
rationale underlying this rule is that prosecution of the minor for cooperating with the
defendant would be inconsistent with the purpose of the law, which is to protect the
minor.” (Ibid.) “Because the minor, even if a willing participant in the defendant’s
conduct, is a victim and cannot be prosecuted as an accomplice, accomplice instructions
are not appropriate.” (Ibid.)
       Defendant is correct that “a minor can be prosecuted for a criminal act, including a
lewd act upon another minor, where the minor knew the nature of his act and knew it was


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wrong.” The facts of the present case, however, are clearly distinguishable from such a
circumstance. Defendant points to no case in which a minor was charged with a sexual
offense against another minor, where an adult perpetrator caused him to commit the
offense or where the minor was also a victim of the offending adult’s conduct. The
suggestion that John was an accomplice in the crimes against Jane disregards the fact that
John too was a victim of defendant’s conduct. Regarding John as an accomplice would be
no more sensible than characterizing as an accomplice the victim of an armed robbery
who at gunpoint and pursuant to the robber’s command removes the wallet of a second
victim and hands it to the robber. There was no need for an accomplice instruction in the
present case.
4. The sentence imposed on counts two through five must be modified.
        Defendant was sentenced to consecutive sentences of 25 years to life on counts
two, three, four, and five under section 667.61, subdivision (j)(2). That provision
provides that any person convicted of an offense specified under subdivision (c), under
one of the circumstances specified in subdivision (e), upon a victim under 14 years, must
be sentenced to 25 years to life. (§ 667.61, subd. (j)(2).) Under subdivision (b), a person
convicted of an offense specified under subdivision (c), under one of the circumstances
specified in subdivision (e), is otherwise sentenced to 15 years to life. (§ 667.61, subd.
(b).)
        Defendant contends, among other things, that the application of the enhanced
punishment under section 667.61, subdivision (j)(2) violates ex post facto principles
because it was enacted after the offenses were committed. The Attorney General agrees
that for this reason the punishment under subdivision (j)(2) cannot apply here, and that
the term prescribed under pre-existing subdivision (b) instead should be imposed. Under
this subdivision, defendant’s sentences on counts two, three, four, and five should have
been 15 years to life for each count. The Attorney General explains correctly, “Section
667.61, subdivision (j)(2) became effective on September 9, 2010. (Stats. 2010, ch. 219
(A.B. 1844) § 16, eff. Sept. 9, 2010.) [Defendant] was arrested on October 30, 2010. The
evidence showed the acts in counts two through five occurred well before September 9,


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2010. As detailed above, John testified he was 11 years old when they were committed, a
point with which appellant concurred. John was 13 years old when appellant was
arrested. No evidence showed the acts occurred between September 9 and October 30,
2010. Accordingly, imposition of the enhanced sentencing provisions under subdivision
(j)(2) would violate ex post facto principles. (People v. Hiscox (2006) 136 Cal.App.4th
253, 260-262.)” Accordingly, defendant’s sentence on counts two though five must be
corrected to reflect imposition of the proper consecutive 15-year-to-life terms under
section 667.61, subdivision (b).3




3
        In light of this conclusion we need not reach defendant’s additional argument that
the subdivision (j)(2) enhancement cannot be applied to him because that provision was
not pleaded and proved in the information.
        In addition, we also do not reach defendant’s argument asserted in his opening
brief that the court had a sua sponte obligation to instruct on battery as a lesser included
offense of the lewd act counts. Defendant concedes in his reply brief that after the filing
of his opening brief, the California Supreme Court decided in People v. Shockley (2013)
58 Ca1.4th 400, 406 that “battery is not a lesser included offense of lewd conduct.
Accordingly, if only lewd conduct is charged, the trial court has no duty to instruct on
battery as a lesser included offense.” As such, no further discussion of this issue is
required.


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                                       Disposition
       The judgment is reversed and remanded with directions to modify the sentence on
counts two through five to impose consecutive 15-year-to-life terms under section
667.61, subdivision (b). The judgment is affirmed in all other respects.




                                                 _________________________
                                                 Pollak, Acting P.J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




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