Filed 2/4/16 P. v. Rosson CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D069305

Plaintiff and Respondent,

v. (Super. Ct. No. INF063118)

JOHN THOMAS ROSSON III,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Riverside County, Dale R.

Wells, Judge. Affirmed in part, reversed in part, and remanded with directions.

Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kristen

Chenelia, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted defendant John Thomas Rosson III of committing various sex

crimes against his eleven-year-old daughter, S.R., including aggravated sexual assault,

lewd acts, and exhibiting harmful material. On appeal, Rosson challenges (1) the

admission of evidence regarding other prior crimes and bad acts; (2) the omission of

certain jury instructions; (3) his two convictions for exhibiting harmful material to a

minor, Penal Code1 section 288.2, subdivision (a), on grounds of insufficient evidence;

and (4) the trial court's imposition of six consecutive terms for sex crimes under section

667.6, subdivision (d), without making findings as to whether each crime occurred on a

separate occasion.

We conclude substantial evidence supports only one conviction for exhibiting

harmful material to a minor under section 288.2, subdivision (a), and reverse one of

Rosson's convictions. On remand for resentencing, the trial court is directed to make

findings consistent with the requirements of section 667.6. In all other respects, the

judgment is affirmed.

PROCEDURAL BACKGROUND

Rosson was charged by amended information with the following offenses: (1) two

counts of committing lewd and lascivious acts on a child under 14, by use of force,

violence and/or duress, e.g., forcing her hand to touch his penis (§ 288, subd. (b)(1));

(2) two counts of exhibiting harmful matter as defined in section 313 to a minor with

sexual intent and the intent to seduce the minor (§ 288.2, subd. (a)); (3) two counts of

1 All further statutory references are to the Penal Code unless otherwise specified. 2 forcible oral copulation (§ 269, subd. (a)(4)); and (4) two counts of forcible sexual

penetration (§ 269, subd. (a)(5)). As to each count, it was alleged that the crime took

place between September 1 and September 12, 2008, and the victim was S.R. Rosson

pleaded not guilty to each count.

A jury found Rosson guilty of all charges. The trial court imposed sentences to

run consecutively for each of the counts, totaling 79 years eight months to life in prison.

This appeal was taken from a judgment of conviction.

FACTUAL BACKGROUND

The People's principal witnesses regarding detailed sexual acts were the victim,

S.R. and, to a lesser extent, S.R.'s mother, Jessica.2 Jessica was a codefendant and

participant in certain acts of sexual molestation against S.R. Jessica pleaded guilty and

agreed to truthfully testify against her husband, Rosson. Rosson invoked his right not to

testify and did not present any of his own witnesses at trial. We recite the evidence in the

light most favorable to the jury's verdict.

During conversations about their "deepest, darkest secrets," Rosson indicated to

Jessica that he was sexually interested in little girls and believed himself to be a

pedophile. When Rosson was a young teenager, his parents had run a day care in their

home. Rosson confided in Jessica that his parents had "lost their childcare business"

because of his inappropriately touching two and three-year-old girls in his parents' care.

Rosson's mother independently confirmed she had operated a day care in her home and

2 We refer to Jessica Rosson by her first name for the sake of clarity. We intend no disrespect. 3 Rosson had access to the little girls. Jessica also testified that Rosson had asked her to

shave her pubic hair in order to look "innocent" like a child, as well as asked her to dress

up like a prepubescent girl. Photos of Jessica dressed up in this state, taken by Rosson,

were admitted into evidence. Further, Rosson had told Jessica that he liked "child porn."

During their marriage, Rosson physically and sexually abused Jessica. S.R. was

born in May 1997. When S.R. was three years old, Jessica admitted to Rosson that she

had had an extramarital affair, and his abusive behavior worsened. He routinely raped

Jessica, forcing her to have oral, vaginal, and anal sex with him. He hit her, burned her

with cigarettes, and choked her, once to unconsciousness. He also yelled and emotionally

abused her. Rosson repeatedly threatened to kill Jessica, S.R., and himself, if Jessica ever

told anyone about being abused.

Throughout her childhood, S.R. witnessed Rosson's yelling, his physical abuse of

Jessica, Jessica's emotional state, and the burn marks left on Jessica's body. Rosson was

"a very controlling person" and larger in height and weight than S.R.3 He also physically

abused S.R., including spanking her with a belt. S.R. was scared of her father, and did

what he told her to do; otherwise, she believed she "was going to be in trouble." When

S.R. was seven, Rosson forced her to orally copulate him. S.R. testified that Rosson

"grabbed my hair and told me to give him a blow job"—his penis touched her mouth, and

as he grabbed her hair with his hands, Rosson moved her head back and forth. S.R. told

Jessica about the incident, but Rosson stopped Jessica from calling the police.

3 In a 2014 probation officer's report, Rosson's height and weight were noted as over six feet tall and 200 pounds. 4 The events underlying the People's charged offenses occurred in September 2008

when S.R. was 11 years old. S.R. was beginning sixth grade, a time when children are

offered sex education courses in school. Rosson did not want S.R. enrolled in the classes

because he thought it would be better for his daughter to learn "stuff like that" from him,

in their home. Rosson and Jessica sent the school a letter opting S.R. out of sex

education classes. According to Jessica, the letter ignited (or refueled) Rosson's desire to

"teach" S.R. about how to have sex and have S.R. involved in his and Jessica's sexual

activities. S.R. had already begun menstruating.

One day, S.R. was coming out of the shower and had not yet gotten her towel,

when Rosson walked into the bathroom and "closed the door really quick," causing S.R.

to "freak[] out." The next day, S.R. was sitting in her room, playing "build-a-bear" (an

online game) on her computer. Rosson said he wanted to show her something, and she

followed him into his room. In his bedroom, Rosson first said, "Oh, I want to show you

it's okay for parents to see their child naked." From his laptop computer, Rosson

proceeded to show S.R. "all of these [W]eb[]sites of a beach," which S.R. described as

images of "a family . . . on a nude beach," while he made comments of it being normal

for parents to see their child naked.

Rosson further showed S.R. what she described as "child pornography" that he

"wanted to demonstrate . . . on me." When asked to describe the "child pornography" she

had been shown by Rosson, S.R. first did not remember, but when asked whether it was

"just pictures or whether they were videos," S.R. responded, "one was a video." S.R

described what she saw in the video: "[a] girl giving a guy a blow job, then the guy

5 having sex with her." Rosson said he wanted to demonstrate the video on S.R., which

S.R. understood to mean that "[Rosson] wanted to do what the video was doing." Rosson

unclothed S.R. and himself. While Rosson kissed her lips and body, he inserted his

fingers in her vagina, and then stuck his penis in her vagina. S.R. was in pain, but no one

else was home, and she was "terrified" and "too scared" of getting in trouble to make

Rosson stop. Next, "after he was done," Rosson wanted to teach S.R. how to give him a

"blow job" like the girl in the video had been doing. Rosson stuck his penis in her mouth,

and directed S.R. to "suck on it," "like a lollipop." Eventually, Rosson ejaculated on

S.R.'s stomach, and said to her: "Some girls like to taste it. You can taste it if you want."

S.R. did not taste Rosson's semen, and instead went to the bathroom. She experienced

bleeding from being vaginally penetrated.

The next day, S.R. was in her room listening to a song from "High School

Musical." Rosson came in her room, wanted to dance with her, and began taking off her

clothes. He then took S.R. into his bedroom, removed all of his own clothing, and started

playing with his penis by moving it up and down. He next kissed S.R. "everywhere" on

her body, including her lips, breasts, and vagina. Further, he "mess[ed] around with" her

vagina, touching inside of it with his fingers and moving his fingers up and down. After

putting S.R.'s clothes back on, he made her give him a "hand job"—"putting [her] hand

on his penis and moving it up and down." S.R. testified that Rosson's penis was erect

while she touched it. Although the exact timing is unclear, Rosson also put his penis in

S.R.'s mouth during the "High School Musical" incident.

6 Within a week or so, another incident occurred in the middle of the night. Jessica

and Rosson were trying to have sexual intercourse, but "it wasn't working," and he was

getting frustrated. Rosson woke S.R. up and brought her into his and Jessica's bedroom

from her room. All three were naked. According to S.R., her parents rubbed lotion on

"her tummy." Next, her parents began having sex with each other while she sat on the

bed. Rosson instructed S.R. and Jessica to "make-out" with each other. Despite

whispering to each other that they did not want to do it, S.R. kissed her mother on the

lips. Rosson also told Jessica to touch S.R., and after initially objecting, Jessica

proceeded to touch S.R.'s breasts and vagina. Rosson watched S.R. and Jessica as

everything was going on. Jessica testified that Rosson told her to give him a blow job

(oral copulation) while S.R. sat on the bed, and then Rosson instructed S.R. to do the

same, which S.R. did.4 Rosson's penis was erect during the oral copulation. Further,

Rosson touched, and put his penis in, S.R.'s vagina. S.R. testified that she was lying on

the bed, face up, when her vagina was penetrated, and she could not push her father off

because "he was too heavy." Jessica testified that, from her viewpoint, "it appeared"

Rosson's penis penetrated S.R. Jessica remembered with certainty that Rosson

"ejaculated on [S.R.'s] stomach," and Rosson told Jessica and S.R. "to go clean up."

4 S.R. denied oral sex with Rosson on this occasion. The jury could have chosen to believe Jessica's testimony on this point, which was more expansive. For example, Jessica specifically testified that she recalled thinking to herself that "[S.R.'s] done this before" because "it just seemed like [S.R.] knew what she was doing." S.R. testified that she "held" Rosson's penis. 7 After that night's events, S.R. agreed with her mother to "pretend it was all a

dream," i.e., keep everything a secret, because she was scared of Rosson and she did not

want her parents to get in trouble. Several days later, Jessica confided in a friend about

some of Rosson's inappropriate behavior toward S.R., and her friend became alarmed.

Despite Jessica's pleas to keep everything secret, her friend notified the police, which

prompted a criminal investigation of Rosson and Jessica.

In forensic interviews, S.R. first denied any sexual abuse and said it had just been

a dream. Eventually, S.R. disclosed most of what her father had done to her. A forensic

medical exam of S.R.'s vagina revealed damage and scarring to her hymen tissue

consistent with a chronic injury from sexual abuse. The medical examiner testified that

the genital examination of S.R. was consistent with the history relayed by S.R., and

sexual abuse was "highly suspected." A psychologist at trial testified regarding common

behaviors of sexually abused children, including reluctance or delays in disclosing

instances of abuse.

Cyber investigators and forensic specialists were able to uncover a host of

information stored in Rosson's laptop computer, under the username and password-

protected profile "John," which was the only profile on the computer. A digital forensic

examiner found links to four pornographic Web sites saved in the "favorites" section of

the computer's Internet browser. Two of the Web sites required paid membership access

the examiner apparently did not have; however, two of the sites were observed to contain

rows of squares, and each "square" was a screenshot of a different pornographic video.

8 The examiner testified that in each of these screenshots, he observed people engaged in

sexual acts, including penile/vaginal intercourse, oral sex, and/or digital penetration.

Further evidence showed that "the user name of John" had actually visited various

Web sites, including his "favorites" and other known child pornography Web sites and he

had searched and/or viewed information on "family nudism." From the Web sites

previously viewed by Rosson, the examiner saw pornographic images of children in

various states of undress or completely undressed. Finally, the forensic examiner also

recovered approximately 14 pictures of young girls that had been deleted (but previously

viewed) from Rosson's laptop. The pictures, which were admitted into evidence, showed

the "young females in various states of undress as well as sexual acts." From a desktop

computer in S.R.'s home, someone on September 16, 2008, had run the Internet search,

"Can an 11-year-old get pregnant?"

When S.R. was seven to 11 years old, she had observed Rosson's ongoing violent

behavior, was scared of him, and believed she or her mother would be hurt if she did not

do what he wanted. S.R. never wanted Rosson to touch any part of her body in the ways

he had, it had made her feel worthless, and she felt that her mother should have protected

her.

Several years after the charged offenses occurred, Rosson wrote a letter to Jessica,

which was admitted into evidence at trial. Rosson wrote he wanted to "prevent future

acts against children" and "protect the future" from his "thoughts for children" by giving

himself to a mental institution.

9

DISCUSSION

I

Admissibility of Evidence Regarding Prior Uncharged Sexual Offenses

The trial court admitted evidence of prior sex crimes/acts by Rosson, showing his

propensity to commit the charged offenses against S.R. Rosson contends evidence

regarding his commission of spousal rape against Jessica and his molestation of young

girls at his parents' daycare should not have been admitted.5

"Subject to Evidence Code section 352, Evidence Code section 1108 permits a

jury to consider prior incidents of sexual misconduct for the purpose of showing a

defendant's propensity to commit offenses of the same type, and essentially allowing such

evidence to be used in determining whether the defendant is guilty of the current sexual

offense charge." (People v. Miramontes (2010) 189 Cal.App.4th 1085, 1096

(Miramontes).) On appeal, we review the admission of other crimes evidence under

Evidence Code section 1108 for an abuse of the trial court's discretion. (Id. at p. 1097.)

The trial court weighs the probative value of proffered prior crimes evidence with its

potential of causing undue prejudice. (Id. at pp. 1097-1098.)

Rosson first argues that his alleged rape of Jessica, a physically mature adult

woman, was not sufficiently similar to the charged offenses to establish his propensity to

molest children. Under Evidence Code section 1108, subdivision (d)(1)(A)-(F), the prior

5 Rosson also challenges the admission of evidence concerning prior uncharged molestations of S.R., but concedes defense counsel did not object to the evidence at trial. The issue is forfeited. (People v. Navarette (2003) 30 Cal.4th 458, 497.) 10 and charged offenses are considered sufficiently similar for admissibility if they are both

the type of sexual offenses enumerated there, which is the case here. (Miramontes,

supra, 189 Cal.App.4th at p. 1099; People v. Frazier (2001) 89 Cal.App.4th 30, 41 ["It is

enough the charged and uncharged offenses are sex offenses as defined in section

1108."].) Moreover, Rosson made Jessica pretend to be a prepubescent girl and wanted

her to look sexually "innocent." Admitting Jessica's testimony on these points did not

require much time, did not create a danger of undue prejudice, and was unlikely to

confuse or mislead the jury. (Evid. Code, § 352.) The trial court did not abuse its

discretion in admitting evidence of spousal rape.

Similarly, evidence concerning Rosson's prior molestations of young girls at his

parents' day care was properly admitted under Evidence Code sections 352 and 1108.

The evidence tended to show Rosson's propensity to sexually molest little girls, and his

lewd touching of girls at his parent's day care was less likely than the charged offenses to

evoke an emotional bias against him. (See Miramontes, supra, 189 Cal.App.4th at

p. 1098.)

Rosson asserts there was no independent evidence to prove the day care

molestations, relying on the corpus delicti rule. Under current law, the corpus delicti

rule, which requires proof regarding the occurrence of a crime independent of the

defendant's own statements, does not apply to propensity evidence introduced during

trial. (People v. Davis (2008) 168 Cal.App.4th 617, 636-638 [surveying cases].) Rosson

did not assert an objection at trial on corpus delicti grounds, and has accordingly forfeited

the issue on appeal. (People v. Horning (2004) 34 Cal.4th 871, 899.) The record

11 supports the conclusion that if defense counsel had asserted such an objection, the People

could have elicited additional testimony from Rosson's mother (or called another witness)

rather than limiting her testimony to foundational facts. Further, defense counsel's failure

to object on corpus delicti grounds did not constitute ineffective assistance because

counsel's conduct was objectively reasonable based on current law. (People v. Bolin

(1998) 18 Cal.4th 297, 333.) Finally, defense counsel may have made the tactical choice

not to raise an objection that could have resulted in additional evidence being introduced

to support Rosson's commission of other child molestations. (See Strickland v.

Washington (1984) 466 U.S. 668, 689.)

Rosson also argues admission of propensity evidence under section 1108 violates

a defendant's constitutional right of due process. He acknowledges our Supreme Court

has rejected the argument. (People v. Falsetta (1999) 21 Cal.4th 903, 921-922.) As in

Falsetta, we conclude the trial court had the option of excluding unduly prejudicial

propensity evidence under Evidence Code section 352, and thus, Rosson's due process

rights were not violated. (Ibid.) The court did not abuse its discretion in admitting

evidence of Rosson's prior sex crimes.

II

Admissibility of Evidence to Show Sexual Intent

Rosson next challenges the admission of character evidence introduced for the

specific purpose of proving a fact relevant to the charged crimes, i.e., sexual intent. The

disputed evidence includes Rosson's request for Jessica to dress up like a prepubescent

girl, asking her to shave her pubic hair to look like a little girl, his viewing of child

12 pornography, and opting S.R. out of sex education courses for the purpose of teaching her

about sex at home. Rosson contends his "intent" was not at issue because the acts

described by S.R. were unquestionably sexual and the proffered evidence was more

prejudicial than probative. His objections to the admission of this evidence at trial

sufficiently preserved the issue for appeal.

Evidence that a defendant committed crimes or acts other than the crimes charged

in the information may be admitted if such evidence tends to be relevant on an issue other

than to establish defendant's propensity or character trait to commit the charged offenses.

(Evid. Code, § 1101, subd. (b); People v. Swearington (1977) 71 Cal.App.3d 935, 947

[evidence that defendant was previously seen nude in public was relevant to establish the

requisite sexual intent for charged acts of indecent exposure].) Evidence Code section

1101, subdivision (b), provides a nonexhaustive list of potentially relevant facts that may

be admitted to prove other than the defendant's disposition to commit the charged crimes,

including intent, preparation, or absence of mistake.

Rosson contends neither his intent nor his mental state was at issue. However,

Rosson pleaded not guilty to the charged offenses and did not concede any elements,

requiring the prosecution to prove every element of each charged offense beyond a

reasonable doubt. (People v. Escudero (2010) 183 Cal.App.4th 302, 313 ["A not guilty

plea puts at issue all elements of the charged offense."] (Escudero).) The prosecution

was required to prove Rosson committed lewd acts on S.R. with sexual intent and

exhibited harmful materials to her for the purpose of engaging in sexual conduct, rather

than inadvertently or innocently. (§§ 288, subd. (b)(1), 288.2, subd. (a).) The other acts

13 evidence tended to show Rosson's contacts with his daughter were made with the intent

to satisfy his sexual desires.

Relying on Evidence Code section 352, Rosson argues that even if evidence

regarding his other bad acts was admissible, its potential for undue prejudice outweighed

its relevance. The trial court's weighing process is reviewed for an abuse of discretion,

and will not be disturbed unless shown to be arbitrary, capricious, or patently absurd.

(Escudero, supra, 183 Cal.App.4th at p. 310.) We conclude there was no abuse of

discretion. Rosson's theory at trial was that Jessica had been the only perpetrator, she had

dreamed up events against her husband, and S.R. had been brainwashed. The People's

evidence was relevant to proving Rosson methodically initiated and carried out the

incidents because he was driven by a sexual attraction to children. The other acts were

not likely to motivate a purely emotional reaction, and were not unduly prejudicial within

the meaning of Evidence Code section 352. (Escudero, at p. 312.) The trial court did not

abuse its discretion in admitting evidence about Rosson's conduct toward Jessica, his

collection of child pornography, and his desire to teach S.R. about sex at home.

III

Jury Instructions

Rosson argues the trial court omitted certain jury instructions, the cumulative

effect of which was prejudicial. We discuss each in turn.

A. Instruction on Permissible Uses of Sexual Intent Evidence

Rosson argues the trial court erred by not sua sponte instructing on limited uses of

evidence admitted under Evidence Code section 1101, subdivision (b), discussed above.

14 He concedes the instruction was not requested at trial. We conclude the court had no

duty to instruct sua sponte on the limited admissibility of evidence of past crimes or acts.

(People v. Collie (1981) 30 Cal.3d 43, 64.) This is not an "extraordinary case" where

"evidence of past offenses is a dominant part of the evidence against the accused,"

requiring the court to act when counsel has not. (Ibid.) The principal evidence to support

each charged offense was S.R.'s testimony, and to a lesser extent, Jessica's testimony for

the events in which she was involved. The evidence regarding other acts by Rosson was

ancillary.

Similarly, we conclude defense counsel's failure to request a limiting instruction

did not constitute ineffective assistance of counsel. It is not reasonably probable Rosson

would have obtained a more favorable result had his counsel requested a limiting

instruction on uses of prior crimes or other acts evidence. (People v. Watson (1956)

46 Cal.2d 818, 836 [reversal required if after examining all the evidence, we are of the

opinion that "it is reasonably probable that a result more favorable to the appealing party

would have been reached in the absence of the error"].) As Rosson acknowledges, most

of the acts described by S.R. were "overtly" sexual in nature, such that his intentions

could hardly be doubted. By finding Rosson guilty of all charges, the jury necessarily

chose to believe S.R. Consequently, even if defense counsel's performance was deficient

in some respect, there was no prejudice to Rosson. The trial court was not required to sua

sponte instruct on limited uses of evidence under Evidence Code section 1101,

subdivision (b).

15 B. Instruction on Accomplice Testimony

Rosson argues the trial court erred by not instructing the jury to view Jessica's

testimony with caution because she was an accomplice to the crimes against S.R.6

"[W]hen an accomplice is called to testify on behalf of the prosecution, the court must

instruct the jurors that accomplice testimony should be viewed with distrust." (People v.

Guiuan (1998) 18 Cal.4th 558, 565.) The People do not contest that Jessica was an

accomplice, but contend the court's omitting to provide a specific cautionary instruction

was harmless. We agree any error was harmless. (People v. Watson, supra, 46 Cal.2d

at p. 836.)

In People v. Lewis, (2001) 26 Cal.4th 334, our Supreme Court discussed how the

provision of other jury instructions on evaluating witness credibility in conjunction with

the prosecutor's arguments to consider whether the accomplice witness was telling the

truth can effectively inform the jury to view that witness's testimony with distrust absent

the specific instruction. (Id. at p. 371.) Here, the jury was instructed generally on how to

judge witnesses (CALCRIM No. 105), evaluating witness credibility (CALCRIM

No. 226), and how to consider the testimony of a witness with a felony conviction

(CALCRIM No. 316). The jury knew Jessica pleaded guilty to molesting S.R. and

entered a plea agreement to testify against Rosson, and Rosson's trial strategy consisted

of discrediting Jessica and portraying her as a liar. Moreover, in closing, the prosecutor

6 Rosson also contends the trial court should have instructed generally on the need for an accomplice's testimony to be corroborated (§ 1111), but apparently concedes Jessica's testimony was corroborated, rendering any error harmless. 16 highlighted the issue of evaluating Jessica's credibility. The prosecutor argued there was

"no doubt" Jessica was a "horrible mom, a horrible person, [and] a child molester" who

would spend 16 years in state prison; nevertheless, the prosecutor walked the jury

through independent pieces of evidence that corroborated Jessica's testimony. Thus, the

existing instructions and circumstances sufficiently informed the jury to view Jessica's

testimony with caution. (People v. Lewis, supra, 26 Cal.4th at p. 371 ["Any reasonable

juror would reach this conclusion without instruction."].)

C. Instruction on Rosson's Out-of-court Statements

Rosson argues the trial court erred by not sua sponte instructing the jury to view

Rosson's unrecorded out-of-court statements with caution (CALCRIM No. 358). The

statements in question include him being sexually attracted to little girls and liking child

pornography, and directions to S.R. in connection with sexually assaulting her

(e.g., wanting to "demonstrate" the pornographic video or instructing her to suck his

penis like a "lollipop"). Rosson contends that the instruction was required to be given sua

sponte at the time of his trial, a requirement since eliminated by the Supreme Court.

(People v. Diaz (2015) 60 Cal.4th 1176, 1189 [trial court has no sua sponte duty to give

cautionary instruction on defendant's extrajudicial oral statements since general

instructions on witness credibility must be given].)

Regardless of whether the instruction was required sua sponte, we conclude it is

not reasonably probable the jury would have reached a result more favorable to Rosson

had the cautionary instruction been given. The purpose of a cautionary instruction on

unrecorded statements is to assist the jury in determining if a defendant's oral statement

17 was in fact made. (People v. Dickey (2005) 35 Cal.4th 884, 905.) Here, there is no

evidence in the record contradicting the fact that Rosson's statements were made, and

S.R.'s and Jessica's testimonies were generally consistent and corroborated. (See id.

at p. 906 ["Where there was no such conflict in the evidence, but simply a denial by the

defendant that he made the statements attributed to him, we have found failure to give the

cautionary instruction harmless."].) Moreover, even if we disregard Rosson's unrecorded

oral statements, the described acts committed by Rosson against his daughter were

repulsive, sexual in nature, and established the elements of each charged crime. A more

favorable result was not reasonably probable absent the error.

D. Cumulative Error

Rosson contends that the cumulative effect of the trial court's errors resulted in a

fundamentally unfair trial and violation of due process. Based on our review of the

record, the jury understood its responsibility to carefully evaluate each witness's

testimony in the context of all the evidence. More importantly, as we have noted, the

jury necessarily believed S.R. and found her to be truthful; she alone was the victim and

witness to all of the charged crimes. Even if the jury had been instructed to more closely

scrutinize certain testimony, we do not believe the jury would have accepted Rosson's

trial theory that Jessica had dreamed and/or fabricated his involvement. There was no

violation of due process.

18 IV

Exhibiting Harmful Material to a Minor

A. Guiding Principles

We review Rosson's convictions for substantial evidence. (People v. Dyke (2009)

172 Cal.App.4th 1377, 1381 (Dyke).) Under this standard, we review the whole record

most favorably to the judgment below to determine whether it discloses substantial

evidence—that is, evidence that is reasonable, credible, and of solid value—such that a

trier of fact could find the defendant guilty beyond a reasonable doubt. (People v.

Johnson (1980) 26 Cal.3d 557, 578.) "We presume every fact in support of the judgment

the trier of fact could have reasonably deduced from the evidence." (People v. Albillar

(2010) 51 Cal.4th 47, 60.)

Section 288.2, subdivision (a)(1) provides in material part: "Every person who

knows . . . that another person is a minor, and who knowingly . . . exhibits . . . any

harmful matter that depicts a minor or minors engaging in sexual conduct, to the other

person with the intent of arousing, appealing to, or gratifying the lust or passions or

sexual desires of that person or of the minor, and with the intent or for the purposes of

engaging in sexual intercourse, sodomy, or oral copulation with the other person, or with

the intent that either person touch an intimate body part of the other, is guilty . . . ."

Rosson was convicted of section 288.2, subdivision (a)(2), which prohibits the

same conduct as section 288.2, subdivision (a)(1) with the exception that the harmful

matter used by the person "does not include a depiction or depictions of a minor or

19 minors engaged in sexual conduct."7 (§ 288.2, subd. (a)(2), (3).) "Harmful matter" as

used in section 288.2 is defined by section 313, which states: " '[h]armful matter' means

matter, taken as a whole, which to the average person, applying contemporary statewide

standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts

or describes in a patently offensive way sexual conduct and which, taken as a whole,

lacks serious literary, artistic, political, or scientific value for minors." (§§ 313, 288.2,

subd. (c).) With certain exceptions, the test for harmful matter is comparable to the test

for obscene materials. (Dyke, supra, 172 Cal.App.4th at pp. 1382-1383 [reviewing

Miller v. California (1973) 413 U.S. 15, 24].)

B. Analysis

We conclude substantial evidence supports only one of Rosson's two convictions

under section 288.2, subdivision (a). The People acknowledge it is "unknown" whether

the stored images and/or Web site links seized from Rosson's laptop computer were

actually the ones shown to S.R. In fact, there is no evidentiary basis to conclude that

those specific images were shown to her. As a result, the images could not have assisted

the trier of fact, and do not assist us, in determining what was actually shown to S.R.

Based solely on S.R.'s testimony, the first set of Web sites Rosson showed her depicted a

family on a nude beach. While showing her these Web sites, Rosson commented, "it's

okay for parents to see their child naked." From this evidence, we cannot determine

whether the material appealed to the prurient interest, was patently offensive, or lacked

7 Rosson was convicted of the 2008 version of this Penal Code statute, which is embodied in section 288.2, subdivision (a)(2). 20 any value to minors, nor do we see how the jury could so conclude. (Dyke, supra,

172 Cal.App.4th at p. 1385.)

However, S.R. went on to describe one video Rosson showed her of "[a] girl

giving a guy a blow job, then the guy having sex with her." Rosson then wanted to

"demonstrate" and "do what the video was doing," and he proceeded to force S.R. into a

variety of sexual acts, including digital penetration, vaginal penetration, and oral

copulation. Throughout her testimony, S.R. used particular words to describe sexual acts.

She was 16 years old at the time of trial. We are persuaded that she understood the

nature of, and distinction between, various sexual acts. The evidence sufficiently

supports that Rosson showed S.R. one sexually explicit pornographic video qualifying as

"harmful" under sections 313 and 288.2, subd. (a)(2). (People v. Powell (2011)

194 Cal.App.4th 1268, 1295 (Powell).)

The People assert that S.R. was shown at least one other piece of harmful material

to support a second conviction under section 288.2, based on S.R.'s testimony of Rosson

showing her "child pornography" in combination with his possession of child

pornography. However, as noted above, there is insufficient evidence to infer Rosson

showed S.R. the specific Web sites or deleted images recovered from his laptop, and

S.R.'s characterization of "child pornography" neither establishes it to be so nor does it

speak to the quantity of materials she was shown. (People v. Powell, supra,

194 Cal.App.4th at p. 1290.) One of Rosson's convictions under section 288.2 must be

reversed.

21 V

Sentencing under Section 667.6

Rosson contends the trial court erroneously concluded it had no discretion but to

impose consecutive terms for the crimes implicated by section 667.6, subdivision (d),

without a corresponding finding that each crime occurred on "separate occasions." The

People respond that even though the trial court correctly found that the sex crimes of the

same type occurred on separate occasions from each other (e.g., the lewd acts occurred

separately from each other), the trial court did not make findings that each crime occurred

on a separate occasion from every other crime. We agree remand is required for

resentencing consistent with the requirements of section 667.6.

Section 667.6, subdivision (d) provides in relevant part: "[a] full, separate, and

consecutive term shall be imposed for each violation of an offense specified in

subdivision (e) if the crimes involve separate victims or involve the same victim on

separate occasions." (Italics added.) Subdivision (e) of section 667.6 includes the

offenses of lewd acts, oral copulation, and sexual penetration.

"In determining whether crimes against a single victim were committed on

separate occasions under this subdivision, the court shall consider whether, between the

commission of one sex crime and another, the defendant had a reasonable opportunity to

reflect upon his or her actions and nevertheless resumed sexually assaultive behavior.

Neither the duration of time between crimes, nor whether or not the defendant lost or

abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the

issue of whether the crimes in question occurred on separate occasions." (§ 667.6,

22 subd. (d); see People v. Garza (2003) 107 Cal.App.4th 1081, 1092 [surveying cases and

finding that oral copulation, digital penetration, and rape perpetrated on the same night in

defendant's vehicle occurred on "separate occasions" because defendant had an adequate

opportunity to reflect upon his actions between each act].)

The trial court did not make complete findings. Although the court recited the

requirements of section 667.6, subdivision (d) in imposing what it believed to be

mandatory consecutive terms, it only considered whether sex crimes of the same type

occurred on separate occasions and did not determine whether each sex crime occurred

on a separate occasion from another sex crime. On remand for resentencing, the trial

court shall make these specific factual findings. (People v. Irvin (1996) 43 Cal.App.4th

1063, 1072.)

If the court determines that certain crimes occurred on the same occasion, it should

consider whether to impose consecutive terms under section 667.6, subdivision (c)'s

discretionary sentencing scheme. Section 667.6, subdivision (c) provides in relevant part:

"a full, separate, and consecutive term may be imposed for each violation of an offense

specified in subdivision (e) if the crimes involve the same victim on the same occasion."

(Italics added.) We note the trial court already found a number of aggravating

circumstances in its original sentencing decision. The court shall provide a statement of

its reasons for imposing any consecutive terms. (People v. Quintanilla (2009)

170 Cal.App.4th 406, 411.)

23

DISPOSITION

Rosson's second conviction for exhibiting harmful material to a minor under

section 288.2, subdivision (a) (Count 5), is reversed. On remand for resentencing, the

court shall: (1) strike the eight-month sentence previously imposed on Count 5; (2) make

specific factual findings on the question of whether the sex crimes were committed on

"separate occasions" within the meaning of section 667.6, subdivision (d); and (3) if

necessary, provide a statement of reasons for any consecutive terms imposed in which the

court retains sentencing discretion. In all other respects, the judgment is affirmed.

McDONALD, J.

WE CONCUR:

BENKE, Acting P. J.

McINTYRE, J.

24