Filed 9/30/15 P. v. Owen CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Butte)
                                                            ----




THE PEOPLE,                                                                                  C075048

                   Plaintiff and Respondent,                                    (Super. Ct. No. CM036523)

         v.

BRYAN SCOTT OWEN,

                   Defendant and Appellant.



         A jury convicted defendant Bryan Scott Owen of continuous sexual abuse of a
child. (Pen. Code, § 288.5, subd. (a).) The trial court sustained multiple enhancement
allegations based on four prior convictions for lewd and lascivious acts on a child under
14, and the trial court sentenced defendant to 48 years to life plus 21 years.
         On appeal, defendant contends (1) there is insufficient evidence to support his
conviction, and (2) the lack of an appellate record regarding his prior convictions
warrants vacating the sentence enhancements. Finding insufficient evidence that the
abuse took place for at least three months, we will modify the judgment to reflect
conviction of the lesser included offense of lewd act on a child under the age of 14

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(§ 288, subd. (a)) and remand for resentencing. As modified, we will affirm the
judgment.
                 FACTUAL AND PROCEDURAL BACKGROUND
The Crime
      Defendant has three daughters, S.O., J.O., and T.O. At the time of the trial,
defendant’s youngest daughter, S.O., was 12 years old and living with her aunt. She had
lived with defendant and her mother until she was 10. Defendant began touching S.O.
“in ways [she] didn’t like” when she was eight years old. The family lived in an Oroville
apartment complex at the time.
      Defendant first molested S.O. when she was sitting on her bed. Defendant pulled
down her pants, held her down by putting a hand on her shoulder, and used his other hand
to touch her vagina “for a few minutes.” When defendant touched S.O. she would try to
stop defendant by pushing him away. Defendant touched her this way on more than 10
separate occasions. It happened a “couple times a week.”
      Defendant molested S.O. in other ways. One time, defendant rubbed his erect
penis on S.O.’s hip and ejaculated on her before she could get away to the bathroom.
Another time, S.O. was taking a shower in the locked bathroom. Defendant picked the
lock and entered the bathroom. He left after S.O. told him to ”get out.” Defendant did
this several times even though none of his belongings were in the bathroom. Defendant
would also stare at her while she was in the shower. He would look at her through the
shower curtain. Defendant did this two or three times, from the ages of eight to nine.
      One time, defendant entered S.O.’s bedroom, pulled down her pajamas, held her
by the waist, and licked her vagina. She escaped by kicking him. Another time,
defendant put S.O.’s hand on his erect penis.
      S.O. recalled an instance that started when she used the shower in the master
bedroom suite because her bathroom’s shower was backed-up. As she exited the
bathroom fully clothed, defendant, wearing only boxer shorts, told her to put her hand on

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his erect penis. When S.O. refused, defendant grabbed her hand and put it on his penis.
S.O. wiggled her hand and jerked it back. When asked, “How old were you the last time
your dad touched you in the ways you just described,” S.O. replied, “Nine.”
       S.O. testified these events occurred while her mother was at work. S.O. would
lock herself in the bathroom to keep defendant from molesting her. After school, she
would stay away from home until her mother returned from work at 10:00 p.m. She did
not tell her mother about being molested by her father because she was uncomfortable
talking to her about it. The first person she told was her cousin Tr. S.O. was 10 and
living with her aunt for a few months when she told Tr. About 30 minutes after telling
her cousin, S.O. told her aunt.
       S.O. was removed from defendant’s home on February 17, 2011. Her birth date is
in September of 2000. All of the sexual abuse happened when she was eight and nine
years old.
Prior Crimes
       Defendant’s oldest daughter, J.O., testified that defendant molested her when she
was five or six years old. He called her into the bedroom and put his penis on her vagina.
She was 29 years old when she testified in the present case.
       T.O., who is a year younger than her sister J.O., testified regarding an incident that
took place when she was five or six. Defendant let J.O. out of the master bedroom and
called T.O. into the room. He then laid T.O. down on the bed and started touching her
vagina. Another time, defendant touched her leg with his erect penis while she was
resting with defendant in his bed. T.O. told her mother what happened.
The Defense
       Testifying on his own behalf, defendant admitted that J.O. and T.O. testified
truthfully about his molesting them. He was prosecuted for molesting his older
daughters, pleaded no contest to the charges, and was sentenced to prison as a result.
Defendant testified that he molested J.O. and T.O. because of drug and alcohol use after

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his father’s death and because he had been sexually abused by an older male cousin when
he was a child. He testified that he never sexually abused S.O. Defendant added that,
since spending time in prison and getting sex offender counseling, he was no longer
sexually attracted to children.
        Defendant admitted to pleading guilty to charges of domestic violence against
S.O.’s mother in 2003.
Enhancement Allegations
        The information alleged that defendant had four prior convictions in 1992 for lewd
and lascivious acts on a child under 14 (Pen. Code, § 288, subd. (a)) 1 which formed the
basis of four serious felony allegations (§ 667, subd. (a)), four violent felony prison term
allegations (§ 667.5, subd. (a)), five one strike allegations (§§ 667.51, subds. (a), (b),
667.6, subd. (a)), and four strike allegations (§ 1170.12). The information also alleged a
prior prison term allegation based on a 2003 conviction for corporal injury to a spouse.
(§ 273.5, subd. (a).)
        At the bench trial on the priors, the prosecution submitted records from the
Department of Corrections and Rehabilitation, which consisted of the abstract of
judgment, fingerprint card, and photograph of defendant regarding his prison
commitment for the 1992 convictions for violating section 288, subdivision (a). The
prosecution also submitted records from the Department of Corrections and
Rehabilitation consisting of the same materials regarding defendant’s 2003 conviction for
violating section 273.5, subdivision (a).
        Defense counsel told the trial court he had “reviewed them in discovery and
compared the originals to those that I’ve reviewed . . . .” After the prosecutor asked for
the records to be admitted into evidence, the trial court asked defense counsel if he




1   Undesignated statutory references are to the Penal Code.

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wished to be heard. Defense counsel replied, “[t]hey are certified, your Honor.
Submitted.” The trial court admitted the offered evidence and sustained the allegations
related to the prior convictions without argument or objection.
                                        DISCUSSION
                                               I.
                             Continuous Sexual Abuse of a Child
         Defendant contends there is insufficient evidence that he molested S.O. over a
three-month period to support his conviction for continuous sexual abuse of a child. We
agree.
         Section 288.5, subdivision (a) provides in relevant part: “Any person who either
resides in the same home with the minor child or has recurring access to the child, who
over a period of time, not less than three months in duration, engages in . . . three or more
acts of lewd or lascivious conduct . . . with a child under the age of 14 years . . . is guilty
of the offense of continuous sexual abuse of a child . . . .”
         “[T]he prosecution must prove defendant committed the minimum number of
proscribed acts within the specified time period. ‘Section 288.5 relates to “continuous
sexual abuse” and accordingly requires at least three acts of sexual misconduct with the
child victim over at least three months to qualify for prosecution of persons who are
either residing with, or have “recurring access” to, the child.’ [Citations.]” (People v.
Mejia (2007) 155 Cal.App.4th 86, 94 (Mejia).) “[T]he prosecution need not prove the
exact dates of the predicate sexual offenses in order to satisfy the three-month element.
Rather, it must adduce sufficient evidence to support a reasonable inference that at least
three months elapsed between the first and last sexual acts. Generic testimony is
certainly capable of satisfying that requirement.” (Id. at p. 97.)
         “ ‘In reviewing a challenge to the sufficiency of the evidence, we do not determine
the facts ourselves. Rather, we “examine the whole record in the light most favorable to
the judgment to determine whether it discloses substantial evidence—evidence that is

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reasonable, credible and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.] . . . “[I]f the circumstances reasonably justify the jury’s findings, the
judgment may not be reversed simply because the circumstances might also reasonably
be reconciled with a contrary finding.” [Citation.] We do not reweigh evidence or
reevaluate a witness’s credibility. [Citation.]’ [Citations.]” (People v. Nelson (2011)
51 Cal.4th 198, 210.) Reversal on the ground of insufficiency of the evidence “is
unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support’ ” the jury’s finding. (People v. Bolin (1998) 18 Cal.4th
297, 331.)
       S.O. testified that defendant molested her when she was eight and nine, but did not
otherwise specify a beginning and ending time for the molestation. Defendant asserts
that this “interval reasonably could have been one of a few days or weeks, but assuming
it was more than 12 weeks is pure speculation.” He concludes that there is insufficient
evidence of the three-month element, which mandates reversing his conviction.
       In Mejia, the court addressed whether the molestation of the victim had occurred
for at least three months before she turned 14 years old, on September 18, 2004. (Mejia,
supra, 155 Cal.App.4th at p. 94.) The court analyzed the problem as follows:
       “Construing the victim’s testimony in the light most favorable to the People’s
case, the evidence showed defendant first abused her sometime in June 2004, when she
was in eighth grade. There were 10 instances of abuse by defendant between June and
the start of ninth grade sometime ‘around July’ of that year. The victim also testified that
during the 12-week period from June through August 2004, defendant molested her more
than three times. In September of that year, defendant molested her at least twice. While
on direct examination, the victim testified generally that defendant molested her ‘two or



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three days a week,’ but she clarified that defendant did not molest her every week within
that time period.
       “Accordingly, the only reasonable inference permitted by the evidence was that
defendant’s abuse began sometime in June and continued to some date in September—
but the jury could only speculate that the first incident occurred early enough in June to
satisfy the 90-day requirement expiring on September 17, 2004. Indeed, there was no
evidence as to when defendant abused her in September, including whether the abuse
occurred before and/or after her birthday. As defendant correctly argues, although there
was ample evidence that at least three qualifying sexual offenses occurred during the
charging period, there was no substantial evidence that at least three months elapsed
between the first and third offenses committed against her as a 13 year old.” (Mejia,
supra, 155 Cal.App.4th at pp. 94-95.)
       As in Mejia, the evidence here does not include any evidence showing the lapse of
time between the first and last offenses. S.O. testified to defendant molesting her when
she was eight and that the offenses stopped when she was nine, but she does not say when
in her eighth year the abuse began or how long after she turned nine the abuse stopped.
Nor does any evidence support an inference for either a beginning or ending date or some
other duration that would support the three-month element of continuous sexual abuse of
a child. S.O. testified that defendant would touch her vagina a couple of times a week
and did this act more than 10 times; this supports an inference of molesting for five
weeks, but no longer time can be inferred. The other acts she described provide no
support for a longer period.
       “[T]here must be evidence to support an inference and the prosecution may not fill
an evidentiary gap with speculation. [Citations.]” (People v. Felix (2001)
92 Cal.App.4th 905, 912.) While generic testimony can support a conviction under
section 288.5, such testimony must nonetheless identify some period of time that satisfies
the three-month element. “ ‘[E]ven generic testimony (e.g., an act of intercourse “once a

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month for three years”) outlines a series of specific, albeit undifferentiated, incidents,
each of which amounts to a separate offense, and each of which could support a separate
criminal sanction.’ ” (People v. Matute (2002) 103 Cal.App.4th 1437, 1445, quoting
People v. Jones (1990) 51 Cal.3d 294, 314, original italics.) This case for continuous
sexual abuse contains the same deficiency as Mejia: The evidence supports no more than
speculation that defendant molested his victim continuously over the three-month period.
Put another way, the evidence presented allows an inference that the sexual abuse might
have occurred within a 90-day window around S.O.’s ninth birthday. Because the
evidence does not support an inference that the sexual abuse occurred during a period
lasting more than 90 days, an element of the charged offense, defendant’s conviction
must be reversed.
        Although the evidence does not support a conviction for continuous sexual abuse
of a child, it does support a conviction for the lesser included offense of lewd act on a
child under the age of 14. (§ 288, subd. (a).) There are two methods for determining
whether an offense is a lesser included offense: “[A] lesser offense is necessarily
included in a greater offense if either the statutory elements of the greater offense [(the
elements test)], or the facts actually alleged in the accusatory pleading [(the accusatory
pleading test)], include all the elements of the lesser offense, such that the greater cannot
be committed without also committing the lesser.” (People v. Birks (1998) 19 Cal.4th
108, 117.) In their supplemental briefs, both parties agree that section 288, subdivision
(a) is a lesser included crime of a section 288.5 offense under the accusatory pleading
test.
        Section 288.5 can be violated either by means of substantial sexual conduct or the
lewd and lascivious conduct required by section 288. Lewd and lascivious conduct under




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section 2882 requires the specific intent of “ ‘arousing, appealing to, or gratifying the lust,
passions, or sexual desires’ of the perpetrator or the child.” (People v. Whitham (1995)
38 Cal.App.4th 1282, 1290.) Substantial sexual conduct requires no specific intent.
(People v. Avina (1993) 14 Cal.App.4th 1303, 1313 (Avina).) Accordingly, under the
elements test, section 288, subdivision (a) is not a lesser included offense of section
288.5. (Avina, supra, at pp. 1313-1314.)
       We agree with the parties that as charged in this case, the offense of continuous
sexual abuse of a child includes the lesser offense of lewd act on a child under the age of
14. The information charged that defendant, in committing section 288.5, “did
unlawfully engage in three and more acts of ‘substantial sexual conduct’ as defined in
Penal Code section 1203.066(b), and three and more lewd and lascivious acts, as defined
in Penal Code section 288, with [S.O.], . . . a child under the age of 14 years.”
       In the interest of judicial economy, an appellate court can modify a judgment of
conviction to a lesser-included offense. (People v. Matian (1995) 35 Cal.App.4th 480,
487; § 1181, subd. (6).) We will modify the judgment to reflect a conviction under
section 288, subdivision (a) as a lesser included offense and remand for resentencing.3




2  Section 288 states in pertinent part: “Except as provided in subdivision (i), any person
who willfully and lewdly commits any lewd or lascivious act, including any of the acts
constituting other crimes provided for in Part 1, upon or with the body, or any part or
member thereof, of a child who is under the age of 14 years, with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual desires of that person or the child,
is guilty of a felony and shall be punished by imprisonment in the state prison for three,
six, or eight years.” (§ 288, subd. (a).)
3 In supplemental briefs, both defendant and the Attorney General agreed we can modify
defendant’s conviction to the section 288 offense if we find insufficient evidence to
support the section 288.5 conviction.

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                                              II.
                           Appellate Record of Prior Convictions
       Defendant contends the appellate record of his prior convictions is insufficient to
permit adequate review of the trial court’s true findings as to the strike, serious felony,
and prior prison term allegations and asks us to reverse them. We disagree.4
       “[S]tate law entitles a defendant only to an appellate record ‘adequate to permit
[him or her] to argue’ the points raised in the appeal. [Citation.] Federal constitutional
requirements are similar. The due process and equal protection clauses of the Fourteenth
Amendment require the state to furnish an indigent defendant with a record sufficient to
permit adequate and effective appellate review. [Citations.] . . . The defendant has the
burden of showing the record is inadequate to permit meaningful appellate review.
[Citation.]” (People v. Rogers (2006) 39 Cal.4th 826, 857-858.)
       The trial court sustained the various allegations based on evidence of defendant’s
prior convictions found in People’s exhibits 1 and 2, the section 969, subdivision (b)
packets for the relevant prior convictions. We granted defendant’s application to
augment the record to include these exhibits. In response, the superior court filed a
declaration that the exhibits had been returned to the district attorney, but upon the
clerk’s inquiry, the district attorney was unable to locate the exhibits.
       “Inconsequential inaccuracies or omissions in a record cannot prejudice a party; if
in truth there does exist some consequential inaccuracy or omission, the appellant must
show what it is and why it is consequential.” (People v. Chessman (1950) 35 Cal.2d 455,
462.) Defendant identifies no claim he could make that is prejudiced by the failure to
include the exhibits in the appellate record. Defendant’s trial counsel reviewed the



4 We grant defendant’s request that we take judicial notice of our own file in this case.
 (Certain Underwriters at Lloyd’s of London v. Superior Court (2001) 24 Cal. 4th 945,
955, fn. 2 [reviewing court may take judicial of its own records in the case].)

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exhibits and raised no objection when they were presented at the trial on the allegations.
Defendant testified at trial that he had prior convictions for molesting his older daughters
and was sentenced to prison as a result. The summary of defendant’s criminal record
contained in the probation report lists the convictions and prison terms alleged in the
information; four prior convictions for lewd acts on a child resulting in a prison term, and
a prior conviction for corporal injury to a spouse that resulted in a prison term.
Defendant, who has not asked the trial court to reconstruct the missing exhibits, has failed
to identify what claim, if any, for which he is denied meaningful appellate review due to
deficiencies in the appellate record.
       Since defendant has failed to carry his burden of establishing prejudice, we reject
his contention.
                                        DISPOSITION
       The judgment is modified to reduce defendant’s conviction of continuous sexual
abuse of a child (Pen. Code, § 288.5) to lewd act on a child (Pen. Code, § 288, subd. (a)).
As modified, the judgment of conviction is affirmed. The case is remanded to the trial
court for resentencing.



                                                   RENNER                      , J.



We concur:



RAYE                        , P. J.



BUTZ                        , J.



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