Filed 10/30/14 P. v. Bodkin CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). The opinion has not been certified for publication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 THREE


THE PEOPLE,

     Plaintiff and Respondent,                                     G049005

                   v.                                              (Super. Ct. No. 11WF1947)

GORDON RAY BODKIN,                                                 OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, M. Marc
Kelly, Judge. Affirmed as modified with directions.
                   Rodger P. Curnow, under appointment by the Court of Appeal, for

Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and

Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
                                              *              *               *
              A jury convicted defendant Gordon Ray Bodkin of sexual intercourse with
a child 10 years of age or younger (Pen. Code, § 288.7, subd. (a); count 1; all statutory
citations are to the Penal Code) and sexual penetration with a child 10 years of age or
younger (§ 288.7, subd. (b); count 2). Bodkin contends the convictions are not supported
by substantial evidence, the trial court erred by failing to instruct the jury sua sponte on
the lesser offense of lewd acts on a child (§ 288, subd. (a)), and the court erred by failing
to impose and stay the sentence (§ 654) on the sexual penetration count. For the reasons
expressed below, we modify the judgment to stay a 30-years-to-life term for sexual

penetration and affirm in all other respects.
                                                I
                        FACTUAL AND PROCEDURAL BACKGROUND
              On August 9, 2011, four-year-old Jane Doe’s grandmother arranged for her
45-year-old twin brother Bodkin, to babysit until Doe’s father returned home from work.
The father arrived home early and found Bodkin in a back bedroom naked from the waist

down on his knees and straddling Doe, who was on the bed, naked and on her back.
Doe’s father saw Bodkin’s penis, but could not determine what he had been doing.
Bodkin immediately got up, put his pants on, and left the house. Doe’s father saw
redness on Doe’s vaginal area. Doe went to the restroom a few times, including the night
of the incident and the next morning, and cleaned up after herself.
              A pediatric nurse practitioner examined Doe the following day. The nurse
found no evidence of trauma, but stated this was common in sexual abuse cases. The
nurse noted the hymen can stretch and return to normal, even in prepubescent girls.
Swabs taken from Doe’s vulva and vestibule (anterior to the labia majora) contained a




                                                2
small amount of Bodkin’s sperm. A forensic scientist testified a fluid such as semen can
be transmitted by wiping.
              Obstetrician and gynecologist Earl Fuller testified as a defense expert. If
Bodkin’s penis penetrated into Doe’s vagina, he would expect to see a large amount of
tearing in the hymenal ring: “You can’t put 35 to 40 millimeters of an erection through a
4 millimeters opening in a prepubertal child who has no estrogen . . . .” “The tissues
there are about 3 to 4 cells thick, and they are very susceptible to damage. And you will
tear easily, very easily. Even a finger could tear it. So if she didn’t have any tearing she

was not penetrated through the hymenal ring.”
                                             II
                                        DISCUSSION
A.   Substantial Evidence Supports Bodkin’s Convictions for Sexual Intercourse and

Penetration of a Child under 10 Years Old
              Bodkin contends there is insufficient evidence of penetration to support the

convictions. We disagree.
              Section 288.7, subdivision (a), charged in count one, provided, “Any
person 18 years of age or older who engages in sexual intercourse or sodomy with a child
who is 10 years of age or younger is guilty of a felony and shall be punished by
imprisonment in the state prison for a term of 25 years to life.” Section 288.7,
subdivision (b), charged in count two, provided, “Any person 18 years of age or older
who engages in oral copulation or sexual penetration, as defined in Section 289, with a
child who is 10 years of age or younger is guilty of a felony and shall be punished by
imprisonment in the state prison for a term of 15 years to life.” Section 289, subdivision
(k)(1), defines sexual penetration as “the act of causing the penetration, however slight,



                                              3
of the genital or anal opening of any person or causing another person to so penetrate the
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.” For both statutes, sexual penetration refers to contact with structures
beyond the labia majora. (People v. Dunn (2012) 205 Cal.App.4th 1086, 1097 [“Sexual
intercourse” as required for the offense of sexual intercourse with child 10 years old or
younger requires only penetration of the victim’s labia majora, not her vagina]; People v.
Quintana (2001) 89 Cal.App.4th 1362, 1364, 1367, 1371 [definition of “sexual

penetration” in section 289 refers to penetration of the labia majora, rather than
penetration of the vagina]; People v. Karsai (1982) 131 Cal.App.3d 244, 232
[defendant’s act of pushing his penis between the lips of the victim’s vagina was

sufficient to meet penetration requirement].)
              “When considering a challenge to the sufficiency of the evidence to support
a conviction, we review the entire record in the light most favorable to the judgment to

determine whether it contains substantial evidence – that is, evidence that is reasonable,
credible, and of solid value – from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Lindberg (2008) 45 Cal.4th 1,
27.) The 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. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319.)

Reversal of the judgment is not warranted even though the evidence might support a
contrary finding. (People v. Bolin (1998) 18 Cal.4th 297, 331.) As long as there is a
hypothesis supported by sufficient substantial evidence, the conviction will be upheld.

(People v. Zamudio (2008) 43 Cal.4th 327, 357.)



                                                4
              Bodkin argues there was no substantial evidence to demonstrate he
penetrated Doe. “[Doe’s father] . . . was unable to ascertain if appellant had been doing
anything with [his penis]. He also was unable to see [Bodkin’s] hands. . . . [The]
pediatric nurse . . . was unable to discern any trauma . . . or detect any indication [Doe]
had been sexually abused. . . . [T]he prosecution’s forensic expert, was unable to testify
that [] Doe had been sexually abused. . . . [¶] It is only by way of conjecture that one
could conclude that [Bodkin] engaged in sexual intercourse with [] Doe. . . . There was
an alternate explanation for the presence of the [one nanogram] of semen in [] Doe’s

vestibule. The experts uniformly agreed that a fluid such as semen could be transposed
or transferred by wiping, and [] Doe’s father confirmed that she wiped herself and went
to the bathroom at least twice after his discovery of her and [Bodkin] in the bedroom.

Hence, if [] Doe had sperm on her when she went to the bathroom – and she likely would
have if [Bodkin] indeed had masturbated on her – she might have transmitted that amount
to her vestibule.”

              While the absence of trauma to Doe’s hymen could indicate Bodkin’s penis
did not pass into her vagina, the sperm on Doe’s vestibule, the area between the labia
minora and the hymen, supports the jury’s conclusion his penis passed Doe’s labia
majora, which constitutes penetration under the law. Doe’s father saw a naked Bodkin
straddling his daughter. The outside of her vagina was red, which supports an inference
Bodkin sexually molested Doe. The jury reasonably could conclude penetration, as

defined by the law, occurred.




                                              5
B.   Lesser Included Offenses
              Bodkin next argues the trial court erred by failing to instruct the jury on the
lesser offense of lewd acts on a child as defined in section 288, subdivision (a). A trial
court must instruct on the general principles of law relevant to the issues raised by the
evidence, including instructions on lesser included offenses when the evidence suggests
all of the elements of the charged offense are not present and there is substantial evidence
to support the lesser included offense. (People v. Breverman (1998) 19 Cal.4th 142,
154.) An uncharged offense is included in a greater charged offense if the greater

offense, as defined by statute, cannot be committed without also committing the lesser
(the elements test), or the language of the accusatory pleading encompasses all the
elements of the lesser offense (the accusatory pleading test).1 (People v. Parson (2008)
44 Ca1.4th 332, 349.) We apply the independent standard of review. (People v. Waidla
(2000) 22 Cal.4th 690, 733.)
              Section 288, subdivision (a), provides, “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 . . . .” Section 288, subdivision (a), is a specific intent crime. (People v. Warner
(2006) 39 Cal.4th 548, 556.) It requires the specific intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires of the perpetrator or the child. (People v.
Raley (1992) 2 Cal.4th 870, 907.)


       1
               Here, the charges contained in the information largely mirror the statutory
language and the accusatory pleading test does not yield a different result than the
elements test.

                                               6
              Intercourse or penetration with a sexual organ, as defined under section
288.7, subdivision (a), is a general intent crime, and can be committed without the intent
of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the
defendant or the child. Because section 288.7, subdivision (a), can be committed without
violating section 288, subdivision (a), the trial court had no duty to instruct sua sponte on
lewd acts as a lesser included offense of count one.
              Sexual penetration with something other than a sexual organ, as defined
under section 288.7, subdivision (b), requires penetration “for the purpose of sexual

arousal, gratification, or abuse . . . .” (§ 289, sub. (k)(1).) The Attorney General argues
that “Although in this instance both [section 288.7, subdivision (b), and section 288,
subdivision (a)] are specific intent crimes, the intent is sufficiently different between the

two offenses so that one would not necessarily commit the lesser offense when
committing the greater. The intent required for sexual penetration includes, ‘for the
purpose of . . . . abuse.’ (Cal. Penal Code, § 289, subd. (k); People v. Senior (1992) 3

Cal.App.4th 765, 776.) Penal Code section 288, subdivision (a) does not include the
intent to abuse. Thus, one could commit an act of penetration on a minor with intent to
abuse but would not necessarily commit a lewd act on a child at the same time. Because
the greater can be committed without committing the lesser, Penal Code section 288,
subdivision (a) is not a lesser included offense of section 288.7, subdivision (b).
Consequently, the trial court had no obligation to provide the instruction.”

              We agree with the Attorney General. Section 288.7, subdivision (b) can be
committed for the purpose of abuse, and that would not violate section 288, subdivision
(a). Because section 288.7, subdivision (b), can be committed without violating section




                                              7
288, subdivision (a), the trial court did not have a duty to instruct sua sponte on lewd acts
as a lesser included offense of count two.
              Bodkin replies even if the Attorney General is correct, the trial court has a
duty to instruct on “defenses that are closely and openly connected with the evidence and
necessary for the jury’s understanding of the case,” and “defense counsel’s argument was
that the evidence supported [Bodkin]’s position that he masturbated on Jane Doe but did
not penetrate her. The offense which he admitted committing certainly was a defense as
being a lesser offense to the offenses of which he was charged, and it was closely and

openly connected with the case.” A lesser, nonincluded offense is not a defense. The
trial court may not instruct on lesser, nonincluded offenses unless the parties agree to the
instructions. (People v. Birks (1998) 19 Cal.4th 108, 136 [according the defendant power

to insist over the prosecution’s objection that uncharged, nonincluded offenses be placed
before the jury usurps the prosecution’s exclusive charging discretion], overruling People
v. Geiger (1984) 35 Cal.3d 510.) If the jury had a reasonable doubt whether Bodkin

penetrated Doe, its duty was to acquit him of violating section 288.7. In any event the
jury was not faced with an “all or nothing” verdict as the court provided instructions for
assault, battery, and attempts on each offense.2




       2
               Bodkin also argues trial counsel was ineffective for failing to request
instructions on the lesser offenses. Nothing suggests the prosecutor would have agreed to
instructions on lesser, nonincluded offenses, and we perceive no other legal basis for
requesting the instruction. Bodkin has not met his burden to show that counsel was
ineffective or that he was prejudiced by any omission. (Strickland v. Washington (1984)
466 U.S. 668, 687, 692-694.)

                                              8
C.   Sentence for Count 2
              The parties agree the trial court erred in failing to impose and stay (§ 654) a
term for the section 288.7, subdivision (b), sexual penetration conviction charged in
count 2. (See People v. Alford (2010) 180 Cal.App.4th 1463, 1466 [when a trial court
determines that § 654 applies to a particular count, the trial court must impose sentence
on that count and then stay execution of that sentence].) The parties agreed in the trial
court Bodkin could not be punished separately on both convictions because they arose
from one act. The trial court agreed section 654 applied. The court imposed a term of 50

years to life for count one (25 years to life doubled because Bodkin suffered a strike
prior), and added a five-year serious felony enhancement under section 667, subdivision
(a). The court stated sentence on count two would be stayed pursuant to section 654.

There are two abstracts of judgment. One reflects the sentence imposed for count one.
The second reflects the court stayed a term on count two but does not specify the term.
              The court failed to impose and stay the term for count 2. Because the only

possible term for Bodkin’s conviction for violation of section 288.7, subdivision (b), as
charged in count 2 of the information is a term of 30 years to life (15 years to life doubled
because of Bodkin’s prior strike conviction), we will modify the judgment (§ 1260) to
impose that term, and direct a stay pursuant to section 654.




                                             9
                                             III
                                       DISPOSITION
              The judgment is modified to impose a term of 30 years to life for violation
of section 288.7, subdivision (b), as charged in count 2 of the information, which is
stayed pursuant to section 654. The trial court is directed to prepare a corrected abstract
of judgment and to forward a copy to the Department of Corrections and Rehabilitation.




                                                   ARONSON, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



IKOLA, J.




                                             10
