People v. Boice CA2/2 ( 2020 )

Filed 10/2/20 P. v. Boice CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B296540
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA096279)
v.
MICHAEL LEIGH BOICE,
Defendant and Appellant.
APPEAL from judgment of the Superior Court of Los
Angeles County. Alan B. Honeycutt, Judge. Affirmed.
Jeralyn Keller, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews and J. Michael
Lehmann, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________________
Michael Leigh Boice appeals the judgment entered
following a jury trial in which he was convicted of two counts of
commission of a lewd act on a 14- or 15-year-old child by a person
more than 10 years older than the victim. (Pen. Code,1 § 288,
subd. (c)(1); counts 1 and 2.) The trial court sentenced appellant
to a prison term of one year and eight months, consisting of the
low term of one year on count 1, plus a consecutive term of eight
months (one-third the mid-term of two years) on count 2.
Appellant contends: (1) the evidence is insufficient to
support the conviction on count 2; (2) CALCRIM No. 1112 is
impermissibly argumentative and biased in favor of the
prosecution, and the trial court’s reliance on the instruction for
the elements of the charged offenses prejudiced the defense; and
(3) because the court’s imposition of a restitution fine and court
facilities and government operations fees without a
determination of appellant’s ability to pay violates appellant’s
constitutional rights, the fines and fees must be stricken in
accordance with People v. Dueñas (2019) 30 Cal. App. 5th 1157
(Dueñas). We disagree and affirm the judgment of conviction.
FACTUAL BACKGROUND
Veronica L. started tae kwon do classes at the Quest Studio
when she was in middle school. She excelled in the sport and
soon began spending most of her time outside of school at the
studio taking classes or assisting instructors. Veronica was 13
and appellant 26 or 27 years old when appellant joined the Quest
teaching staff.
Appellant often coached Veronica in tae kwon do
competitions and promotional demonstrations, and for about a
1 Undesignated statutory references are to the Penal Code.
2
year and a half their relationship was strictly that of a student
and her teacher. Over time, however, the relationship became
friendlier, and during the summer of 2014, when Veronica was 14
years old, their conversations in person and over Facebook
Messenger became more frequent and more personal. Around the
same time Veronica developed a crush on appellant, and she
noticed he seemed to act differently around her.
At some point, appellant quit his job at Quest, and in
August 2014, a farewell dinner was held for appellant at a
restaurant. After the last class at the studio the night of the
dinner, Veronica changed out of her uniform into shorts and a
T-shirt and rode alone with appellant in his car to the restaurant.
Veronica sat in the front passenger seat. During the drive,
appellant hovered his right hand over Veronica’s left thigh, and
told Veronica he would not do anything unless it was acceptable
to her. Veronica said nothing but moved appellant’s hand down
to her thigh. Appellant then slid his hand up her leg under her
shorts and underwear. Veronica held onto appellant’s thumb so
she could pull his hand away if she became frightened. She told
appellant that she was at the end of her period and asked him
not to insert his fingers. Appellant then massaged her clitoral
area until they reached the restaurant. As they pulled into the
restaurant parking area, appellant asked Veronica if it felt good.
At the restaurant they sat next to each other, and appellant
kept his hand on Veronica’s thigh throughout the dinner.
Veronica’s father picked her up from the restaurant after dinner
and drove her home. Because she was afraid he would be angry,
she did not tell him what had happened with appellant.
Veronica did not see appellant again until a week or two
later when he came to her 15th birthday party at her house. She
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had invited him to the party because she knew she would not see
him again and she wanted to say good-bye. At the end of the
party Veronica walked appellant to his car. They walked down
the alleyway behind Veronica’s house and stopped at the curb
across the street from appellant’s parked car. Appellant tried to
get Veronica to go to his car with him, but Veronica was scared
and refused to go. She told appellant she had never been kissed
by a boy before, and asked appellant to kiss her. Appellant
hesitated and asked if she really wanted that. Veronica told him
it was up to him, and appellant bent down and kissed her on the
lips. They said good night, and appellant left.
Veronica did not see appellant again after the birthday
party, but they continued to communicate on Facebook
Messenger for about a month. Several times appellant asked
Veronica to send him nude pictures of herself, but she ignored his
requests. Shortly after he asked for pictures of her, Veronica
broke off communication with appellant, concluding she “was in a
toxic situation” and she needed to get out of it.
In September 2014, Veronica told a friend at school that
her tae kwon do instructor had touched her while they were in
the car. Veronica was not ready to speak with an adult and
begged her friend not to tell anyone.
Three years later when Veronica was a senior in high
school, she wrote about the incident in an essay, which she gave
to her English teacher. Veronica then told her school counselor
what appellant had done, and the matter was turned over to the
police.
With Veronica’s permission, Detective Erin Velarde posed
as Veronica and began communicating with appellant through
Facebook. Eventually, Detective Velarde arranged for Veronica
4
to make a recorded telephone call to appellant during which they
talked about appellant touching her genitals and the kiss after
the party. At the end of the call, appellant asked, “So are you
going to want to hear my voice more frequently then?”
Subsequently, Detective Velarde made a recorded
telephone call to appellant. Appellant admitted touching
Veronica’s genitals under her pants, but said it was over her
underwear. He described the incident as a “lapse of judgment.”
As for kissing Veronica after the birthday party, appellant said
that she cornered him, and before he knew it, she had kissed him.
While denying that he kissed her back, appellant admitted
“[t]here may have been like a response with my mouth, but it
wasn’t a kiss back.” Appellant said he did not remember
communicating with Veronica on social media after that and
specifically denied any memory of asking Veronica for photos.
DISCUSSION
I. Substantial Evidence Supports the Conviction
on Count 2
Appellant contends the evidence was insufficient as a
matter of law to support a finding he intended to arouse his or
Veronica’s “lust, passions, or sexual desires” when he gave her a
casual kiss. Appellant thus maintains that the evidence fails to
establish he committed a lewd or lascivious act, and his count 2
conviction must be reversed. We disagree.
A. Relevant legal principles
Section 288, subdivision (a) provides in pertinent part: Any
“person who willfully and lewdly commits any lewd or lascivious
act . . . 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
5
desires of that person or the child, is guilty of a felony.”
Subdivision (c)(1) further provides: “A person who commits an
act described in subdivision (a) with the intent described in that
subdivision, and the victim is a child of 14 or 15 years, and that
person is at least 10 years older than the child, is guilty of a
public offense and shall be punished by imprisonment in the
state prison for one, two, or three years, or by imprisonment in a
county jail for not more than one year.”
Our Supreme Court has noted “the long-standing rule that
section 288 is violated by ‘any touching’ of an underage child
accomplished with the intent of arousing the sexual desires of
either the perpetrator or the child.” (People v. Martinez (1995) 11
Cal. 4th 434, 452; id. at p. 442 (Martinez); People v. Raley (1992) 2
Cal. 4th 870, 907.) Indeed, “the phrase ‘lewd and lascivious act’ is
expansively defined to include any contact with the defendant’s
body and does not require that the touching be to an intimate
part of the body. It is enough that the touching occur with the
requisite intent.” (People v. Cuellar (2012) 208 Cal. App. 4th 1067,
1071, citing Martinez, at p. 442.)
“ ‘Because intent for purposes of . . . section 288 can seldom
be proven by direct evidence, it may be inferred from the
circumstances.’ ” (People v. Villagran (2016) 5 Cal. App. 5th 880,
891, quoting In re Mariah T. (2008) 159 Cal. App. 4th 428, 440.)
Thus, to determine whether the defendant acted with the
required specific intent, the “ ‘trier of fact looks to all the
circumstances, including the charged act, to determine whether it
was performed with the required specific intent.’ [Citations.]
Other relevant factors can include the defendant’s extrajudicial
statements [citation], other acts of lewd conduct admitted or
charged in the case [citations], [and] the relationship of the
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parties [citation].’ ” (Martinez, supra, 11 Cal.4th at p. 445;
Villagran, at p. 891.)
Appellant’s challenge to the sufficiency of the evidence of
intent with regard to count 2 requires us to review the whole
record in the light most favorable to the judgment, presuming in
its support every fact that a finder of fact could reasonably
deduce from the evidence. (People v. Flores (2020) 9 Cal. 5th 371,
411.) This standard applies regardless of whether the
prosecution relies on direct or circumstantial evidence. (People v.
Thompson (2010) 49 Cal. 4th 79, 113.) Indeed, “[e]ven where, as
here, the evidence of guilt is largely circumstantial, our task is
not to resolve credibility issues or evidentiary conflicts, nor is it
to inquire whether the evidence might ‘ “ ‘be reasonably
reconciled with the defendant’s innocence.’ ” ’ ” (People v. Gomez
(2018) 6 Cal. 5th 243, 278.) Rather, “[i]t is the duty of the jury to
acquit the defendant if it finds the circumstantial evidence is
susceptible to two interpretations, one of which suggests guilt
and the other innocence.” (People v. Zaragoza (2016) 1 Cal. 5th
21, 44.) And “[w]here the circumstances reasonably justify the
trier of fact’s findings, a reviewing court’s conclusion the
circumstances might also reasonably be reconciled with a
contrary finding does not warrant the judgment’s reversal.”
(People v. Zamudio (2008) 43 Cal. 4th 327, 358.) Indeed, we will
not reverse a judgment of conviction for insufficient evidence lest
“ ‘it appears “that upon no hypothesis whatever is there sufficient
substantial evidence to support” ’ the jury’s verdict.” (Id. at
p. 357.) Moreover, “ ‘unless the testimony is physically
impossible or inherently improbable, testimony of a single
witness is sufficient to support a conviction.’ ” (People v. Ghobrial
(2018) 5 Cal. 5th 250, 281.)
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B. There was sufficient evidence to support a finding of
the requisite intent for conviction on count 2
Focusing on the nature of the act⎯“a quick peck on the
lips”⎯appellant argues that there was no evidence that he
intended to arouse his or Veronica’s passion, lust, or sexual desire
when he kissed Veronica. To the contrary, our review of the
record as a whole reveals substantial evidence based on all the
circumstances from which the jury could infer that appellant
harbored the requisite intent for conviction on count 2.
Just a week or two before the kiss, appellant slipped his
hand under Veronica’s panties and massaged her clitoral area as
he drove her to a restaurant for his farewell dinner. He only
stopped when they reached the restaurant, and asked Veronica
“if it felt good.” In the restaurant, appellant sat next to Veronica,
resting his left hand on her right thigh “the entire time.”
When Veronica walked appellant out to his car after the
birthday party, they walked down a dark alley behind her house
and stopped out of view of Veronica’s house and the neighbor’s
home. Appellant’s car was parked across the street from the curb
where they stopped, and appellant invited Veronica to go with
him to his car for “a little bit.” But Veronica was scared and
refused to go, feeling it could be dangerous. Instead, Veronica
told appellant she had never been kissed by a boy before, and
asked appellant to kiss her. Appellant hesitated and asked if she
really wanted that. Veronica told him it was up to him, and
appellant bent down and kissed her on the lips.
Over the next month, appellant asked Veronica “more than
twice” to send him nude pictures of herself. Concluding that the
situation was “toxic” and she needed to get out of it, Veronica cut
off all communication with appellant.
8
“[T]he ‘gist’ of the offense [under section 288] has always
been the defendant’s intent to sexually exploit a child, not the
nature of the offending act.” (Martinez, supra, 11 Cal.4th at
p. 444; People v. McCurdy (1923) 60 Cal. App. 499, 502.) In this
case, appellant’s entire course of conduct, including his actions
supporting count 1, provides substantial evidentiary support for
the jury’s inference that appellant kissed Veronica with the
intent to arouse or gratify his or her passion, lust or sexual
desire.
II. The Challenge to CALCRIM No. 1112 on Appeal
Has Been Forfeited; In Any Event, the
Instruction Constitutes a Correct Statement of
the Law
Appellant next contends the trial court erred in instructing
the jury with CALCRIM No. 1112, lewd or lascivious act, child 14
or 15 years old.2 (§ 288, subd. (c)(1).) Appellant asserts that the
2 In accordance with CALCRIM No. 1112, the jury was
instructed as follows:
“The defendant is charged in counts 1 and 2 with a lewd or
lascivious act on a 14 or 15 year old child who was at least ten
years younger than the defendant in violation of Penal Code
section 288(c)(1).
“To prove that the defendant is guilty of this crime, the
People must prove that:
“1. The defendant willfully touched any part of a child’s
body, either on the bare skin or through the clothing;
9
instruction is impermissibly argumentative because it focuses on
matters that need not be proved rather than elements that must
be proved to sustain a conviction, and thereby diminishes the
prosecution’s burden of proof. In so arguing, appellant points
specifically to the portions of the instruction that inform the jury
that “[t]he touching need not be done in a lewd or sexual manner”
and “[a]ctually arousing, appealing to, or gratifying the lust,
“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;
“3. The child was 14 or 15 years old at the time of the
act;
“And
“4. When the defendant acted, the child was at least ten
years younger than the defendant.
“The touching need not be done in a lewd or sexual manner.
“When someone commits an act willfully, he or she does it
willingly or on purpose. It is not required that he intend to break
the law, hurt someone else, or gain any advantage.
“Actually arousing, appealing to, or gratifying the lust,
passions, or sexual desires of the perpetrator or the child is not
required.
“It is not a defense that the child may have consented to
the act.
“In determining whether a person is at least ten years older
than a child, measure from the person’s birth date to the child’s
birth date.
“Under the law, a person becomes one year older as soon as
the first minute of his or her birthday has begun.”
10
passions, or sexual desires of the perpetrator or the child is not
required.”
A. Appellant forfeited his challenge by failing to object
to the instruction below
Appellant did not object below to CALCRIM No. 1112 or
any of its wording, nor does he contend that CALCRIM No. 1112
failed to state the elements of the charged offense. His failure to
object to the instruction or propose any modification to its
language forfeits his challenge to the instruction on appeal.
(People v. Mora and Rangel (2018) 5 Cal. 5th 442, 471, citing
People v. Bolin (1998) 18 Cal. 4th 297, 326 [failure to object to
wording of jury instruction forfeits appellate claim of error].)
B. CALCRIM No. 1112 is a correct statement of the law
and was properly given
In any event, no error occurred. Of course, a trial court has
a sua sponte duty to instruct the jury on the essential elements of
a charged offense. (People v. Mil (2012) 53 Cal. 4th 400, 409.)
This duty extends also to instruction “ ‘ “on general principles of
law that are closely and openly connected to the facts and that
are necessary for the jury’s understanding of the case.” ’ ” (People
v. Mitchell (2019) 7 Cal. 5th 561, 586.) An appellate court reviews
a claim of instructional error de novo. (People v. Posey (2004) 32
Cal. 4th 193, 218.)
CALCRIM No. 1112 is an accurate statement of the law:
The instruction contains both a clear statement of the elements of
the offense and a brief clarification of some of the principles of
law necessary for the jury’s understanding of its charge. Our
Supreme Court has unequivocally held that “ ‘[a]ny touching of a
child under the age of 14 violates [section 288], even if the
touching is outwardly innocuous and inoffensive, if it is
11
accompanied by the intent to arouse or gratify the sexual desires
of either the perpetrator or the victim.’ ” (People v. Shockley
(2013) 58 Cal. 4th 400, 404; Martinez, supra, 11 Cal.4th at
pp. 444, 452.) The instruction therefore correctly informs the
jury that the touching need not be done in a lewd or sexual
manner. Similarly, the instruction appropriately informs the
jury that it is the defendant’s intent in touching the child that
determines criminal liability, not whether arousal, passion, or
gratification actually occurs. (People v. Cordray (1963) 221
Cal. App. 2d 589, 593 [“ ‘ “It is not necessary to show that the
sexual desires of the child, or of both child and defendant, were
actually affected, since the gist of the crime is the intent and not
its accomplishment” ’ ”]; People v. McCurdy, supra, 60 Cal.App. at
p. 502 [“Whether the acts actually, or in point of fact, have the
effect of arousing the passions or sexual desires of the person
upon whom they are committed, is immaterial”].)
Further, contrary to appellant’s contention, by defining and
clarifying the elements of the offense in accordance with the
statute and case authority, CALCRIM No. 1112 is neither
argumentative nor one-sided. “An argumentative instruction
‘invite[s] the jury to draw inferences favorable to [a party] from
specified items of evidence on a disputed question of fact, and
therefore properly belongs . . . in the arguments of counsel to the
jury.’ ” (People v. Flores (2007) 157 Cal. App. 4th 216, 220
[CALCRIM No. 875, which informed jury that assault does not
require proof of intent to use force, actual touching, or resulting
injury, was not impermissibly argumentative]; People v. Wright
(1988) 45 Cal. 3d 1126, 1135.)
CALCRIM No. 1112 did not invite the jury to draw any
inferences favorable to the prosecution. Rather, in neutral
12
language, it accurately explained the elements of the offense and
did not lighten the prosecution’s burden or in any way discourage
the jury from considering the evidence on appellant’s intent.
III. Appellant’s Dueñas Claim Lacks Merit
Appellant contends the trial court’s imposition of
restitution and parole revocation fines as well as the criminal
conviction assessment and the court security fee was
unconstitutional under Dueñas, supra, 30 Cal. App. 5th 1157.3
The trial court imposed the fines and assessments without
objection from appellant after Dueñas was decided. Despite his
failure to raise this claim in the trial court and the absence of any
evidence or concern over his ability to pay, appellant nevertheless
asserts he is entitled to remand to enable the trial court to
determine his ability to pay. Appellant has forfeited any
challenge to the fines and fees imposed at sentencing. (People v.
Aguilar (2015) 60 Cal. 4th 862, 866 [failure to object to imposition
of fees at sentencing forfeited the issue for appeal]; People v.
Avila (2009) 46 Cal. 4th 680, 729 [defendant’s failure in the trial
court to assert his inability to pay a restitution fine over the
3 In the statement of the case and the introduction to his
Dueñas argument, appellant also refers to the “$300 sexual-
offender-fund fine under section 290.3.” However, appellant fails
to provide any argument or authority to support his contention
that this fine should be stricken. Accordingly, appellant has
forfeited any challenge to the imposition of the sex offender fund
fine pursuant to section 290.3. (People v. Whalen (2013) 56
Cal. 4th 1, 72, fn. 28 [failure to provide argument or authority
supporting the defendant’s contention forfeits the issue]; People v.
Gionis (1995) 9 Cal. 4th 1196, 1214, fn. 11.)
13
statutory minimum forfeited the challenge].) In any event, we
reject the claim on the merits.
We decline to extend Dueñas’s broad holding beyond the
extreme facts in that case, which are not present here. Dueñas
was a disabled, unemployed, and often homeless mother of two
young children. Over the course of several years she served jail
time because she could not pay the fines imposed in connection
with various misdemeanor vehicle offenses. (Dueñas, supra, 30
Cal.App.5th at pp. 1160–1162.) Applying a due process analysis
to the particular facts before it, the appellate court concluded
that “[b]ecause the only reason Dueñas cannot pay the fine and
fees is her poverty, using the criminal process to collect a fine she
cannot pay is unconstitutional.” (Dueñas, at p. 1160.)
This case plainly does not implicate the same due process
concerns at issue in the factually unique Dueñas case. Unlike the
defendant in Dueñas, there is no indication here that appellant
suffers from a disability, that he has been unable to pay court
assessments in the past, that he lacks savings or assets that
could be sold, or that he needs to devote his limited resources to
vital childcare needs. At sentencing, appellant was a 33-year-old
former tae kwon do instructor, and prior to trial he had been
employed in construction. There is nothing in the record to
indicate he lacks the ability to obtain the funds for payment of
his obligations in the future. And unlike the defendant in
Dueñas, appellant does not face incarceration because of an
inability to pay court-imposed fines, fees, and assessments. (See
Dueñas, supra, 30 Cal.App.5th at p. 1163.)
14
In People v. Hicks (2019) 40 Cal. App. 5th 320, 322, 329
(Hicks), review granted November 26, 2019, S258946,4 we
concluded that Dueñas was wrongly decided and rejected its
holding that “due process precludes a court from ‘impos[ing]’
certain assessments and fines when sentencing a criminal
defendant absent a finding that the defendant has a ‘present
ability to pay’ them.” (Accord, People v. Petri (2020) 45
Cal. App. 5th 82, 92; People v. Aviles (2019) 39 Cal. App. 5th 1055,
1067–1068; People v. Caceres (2019) 39 Cal. App. 5th 917, 923,
926–927; People v. Kingston (2019) 41 Cal. App. 5th 272, 279–282;
People v. Kopp (2019) 38 Cal. App. 5th 47, 96–97, review granted
Nov. 13, 2019, S257844.)
Here, as in Hicks, “imposition of these financial obligations
has not denied [appellant] access to the courts,” nor has their
imposition resulted in his incarceration. (Hicks, supra, 40
Cal.App.5th at p. 329.) And nothing prevents appellant from
trying to satisfy these obligations through future earnings. (Id.
at pp. 327, 329.)
4 The California Supreme Court ordered briefing deferred
pending decision in People v. Kopp, S257844, which presents the
following issues:
“(1) Must a court consider a defendant’s ability to pay
before imposing or executing fines, fees, and assessments? (2) If
so, which party bears the burden of proof regarding the
defendant’s inability to pay?” (People v. Hicks, S258946,
[as of Apr. 20, 2020], archived at
.)
15
Moreover, the restitution fine is classified as a form of
punishment. (People v. Souza (2012) 54 Cal. 4th 90, 143.) Its
imposition without regard to present ability to pay therefore does
not violate appellant’s due process rights because it is “not a user
fee imposed on court access.” (People v. Son (2020) 49
Cal. App. 5th 565, 592.) As the United States Supreme Court has
recognized, due process is implicated only where a defendant,
who has no ability to pay, is imprisoned for failure to pay a
punitive fine. (See Bearden v. Georgia (1983) 461 U.S. 660, 665,
667–668; Tate v. Short (1971) 401 U.S. 395, 398 [“ ‘the
Constitution prohibits the State from imposing a fine as a
sentence and then automatically converting it into a jail term
solely because the defendant is indigent and cannot forthwith pay
the fine in full’ ”].)
Finally, the fines and fees imposed in this case are not
excessive. Appellant was convicted of two counts of committing
lewd acts upon a victim who was 14 years old when he committed
the first (count 1), and had just turned 15 a few weeks later when
he committed the second. He was sentenced to state prison. The
$300 restitution fine was the minimum fine provided under the
statute. On this record, we do not find the $300 fine and $140 in
assessments to be “ ‘grossly disproportional to the gravity of
[appellant’s] offenses.’ ” (Cooper Indus. v. Leatherman Tool
Group, Inc. (2001) 532 U.S. 424, 434.)
16
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
17