California Court of Appeal Feb 11, 2025 No. E082718Unpublished
Filed 2/11/25 P. v. Burke CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E082718
v. (Super.Ct.No. SWF2007290)
JONATHAN F. BURKE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Judge John M. Davis,
Judge. Affirmed.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers and Sharon L.
Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Johnathan F. Burke lived with his girlfriend starting when
his girlfriend’s daughter, Jane Doe, was 11 or 12 years old. In 2019, defendant rubbed
Doe’s stomach and back, pinched her buttocks, and commented that he liked her jeans.
In 2020, when Doe was 14 years old, defendant gave her a vibrator with directions on
how to use it and offered to help her use it. Later that day, he entered her bedroom and
slapped and squeezed her buttocks.
Defendant was convicted of two counts of lewd and lascivious acts against a child
under the age of 14 and more than 10 years younger than him (Pen. Code, § 288, subd.
(c)(1); counts 1 & 2). In addition, he was found guilty of misdemeanor annoying and
molesting a child under the age of 18 (§ 647.6, subd. (a); count 3). Defendant was
sentenced to two years, eight months to be served in state prison.
Defendant claims on appeal that his convictions for committing lewd and
lascivious acts against Doe in counts 1 and 2, and annoying and molesting a child in
count 3, were not supported by substantial evidence; the admission of a prior uncharged
sexual act committed by defendant and involving Doe pursuant to Evidence Code
sections 1101, subdivision (b), and 1108, was prejudicial error; the admission of Doe’s
statements to her mother under the fresh complaint doctrine was prejudicial error; and the
imposition of concurrent sentences on counts 2 and 3 was improper under Penal Code
section 654.
2
FACTS
A. PROSECUTION CASE-IN-CHIEF
1. JANE DOE’S TESTIMONY
Doe was 17 years old at the time of trial and had graduated from high school. Her
father was J.B. (Father) and her mother was K.D. (Mother). Defendant was Mother’s ex-
boyfriend. Doe was eight years old when defendant and Mother started dating.
Defendant moved in with them when she was 11 or 12 years old. Doe had a friendly
relationship with defendant. Defendant and Mother had three children together. Mother
would discipline Doe if she got in trouble; defendant never disciplined her. Doe would
sometimes discuss crushes she had on boys with defendant beginning when she was in
fifth grade. She never talked about sex with defendant. Doe did not discuss personal
things with defendant, such as getting her period. She spoke with Mother and Father
about those personal things. Doe did not see defendant as a father figure; he was more of
a friend. As she got older, she did not feel safe talking to defendant about boys as she
thought he started to look at her in a different way.
Doe started to feel unsafe in eighth grade when she and defendant were in his car
and he told her, “he had a dream about me, that we were playing around, fooling around,
doing it, right?” He told her, “You know what I’m talking about” and nodded to her.
She believed he meant they had sex based on how he looked at her and how he said,
“doing it.” It was implied they had sex. Doe was “very uncomfortable” when defendant
told her about the dream. She wanted to get out of the car and did not want to be near
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defendant.1 Doe did not tell Mother because she was worried she would get in trouble.
She also did not want to uproot their lives. She believed at some point she did tell her
grandmother. Doe stopped telling defendant personal things about her after this incident
because she did not feel comfortable with him.
While she was also in the seventh or eighth grade, Doe was in her bedroom and
defendant came in. Defendant gave her an electric toothbrush and told her that she could
“use it as a masturbation vibrator.” Defendant told her that it was not “wrong” or
“sinful.” Doe did not really understand what defendant was talking about; she was
confused. Doe kept the toothbrush in her room.
Doe indicated that the next incident occurred in December 2019 when she was in
eighth grade and was 14 years old. They were living in Temecula. Doe and defendant
were in the kitchen when defendant pinched her buttocks over her clothes. He then put
his whole hand and palm on her waist and stomach area. He moved his hand to her back
and moved it from right to left on her back. He touched her for approximately five
seconds. He “lingered” on her body. He said while touching her either “I like these
jeans” or “Nice jeans.” He used a low voice in her ear. This made her feel “disgusting.”
Mother was in the kitchen with them but was facing away from them. Doe was also
holding her baby sister. Doe did not react or tell Mother because she did not want
Mother to know what had happened.
1 On cross-examination, defendant’s counsel asked Doe if defendant told her the content of the dream. She responded, “He did,” but did not provide the details.
4
In April 2020, when Doe was 14 years old, defendant approached Doe at their
house and told her had a gift for her. He gave her a box that contained a vibrator.
Defendant told her that it was a vibrator and told her to let him know if she needed help
with it. She initially told him she did not want it. She felt it was not okay that he had
tried to give it to her. She felt she was very young, and it was not something she was
supposed to do. She felt violated and disgusted. She believed that defendant, based on
his suggestive tone of voice, was offering to assist her with using it. Doe was afraid to
tell Mother about the device because she did not want her to blame Doe for defendant
giving her the device.
Doe went to her room but eventually went and found defendant in his office and
agreed to take the vibrator. She wanted to show Mother what he had tried to give her.
There were directions with the vibrator, which showed it should be attached to an erect
penis. She took a shower and tried to use it. She then washed it. After her shower, she
went to her room. Approximately 30 minutes later, she was lying on her stomach on her
bed.2 She was on her cellular telephone and did not see defendant enter her room.
Defendant suddenly was by her bed on his knees, but she did not see how he got on his
knees. She did not know if he fell. He slapped her buttocks hard with an open hand. He
then twice grabbed her buttocks and squeezed. She did not feel good about him touching
her and thought she did not “deserve” to be touched by him in that way. Defendant gave
2 At oral argument, defendant’s counsel argued that the incident in the bedroom where Doe stated defendant slapped and squeezed her buttocks occurred prior to her going to his room and asking for the vibrator. The record clearly provides that she obtained the vibrator before the incident in the bedroom.
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her some roller skates, which he said were another gift for her. She thanked him so he
would leave. After defendant left her room, she decided she needed to tell someone what
was happening.
Doe texted her cousin.3 The text messages were shown to the jury. Doe texted
her cousin that her “mom’s boyfriend” had been hitting on her and giving her stuff for
masturbation. She stated she felt “really uncomfortable.” Doe also stated that defendant
was making her feel uncomfortable and he asked to help her with “the vibration thingy.”
Later that day, while they were both upstairs and defendant was downstairs, Doe
told Mother what had happened. Doe only told her about the vibrator and defendant
squeezing and touching her buttocks that day. Doe gave the vibrator to Mother. Mother
told her she was going to call the police. Doe called Father to pick her up because she
wanted to get out of her house. Doe was afraid that defendant would be angry with her.
Doe did not tell law enforcement officers she used the vibrator because she was
embarrassed and Father was sitting next to her. Doe did not think of defendant as a father
and she believed that he could not discipline her.
2. OTHER WITNESSES
Mother dated defendant until April 2020. They had three children together. They
broke up after April 2020 because of the incidents involving Doe. While Mother and
defendant were dating, she advised him that Doe was her daughter and that she made the
3 Doe was not certain whether she texted her cousin before or after defendant came in her room and touched her buttocks.
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ultimate decision of what went on with Doe, including discipline. If there were any
issues, Mother would address them with Doe.
When Doe was 14 years old, around March 2019, she would need to be driven to
Father’s house. Doe would get upset if defendant was going to drive her. As of April
2020, Mother and defendant had not had sex in about one year and their relationship was
rocky.
On April 19, 2020, Mother went with Does grandmother to the grocery store in the
middle of the day. Defendant was at home with Doe and the other three children. Doe
was in her room lying on her bed when Mother came back from the store. Later that
evening, Doe approached Mother and seemed very nervous. Doe told Mother that
defendant had given her a vibrator and explained to her he would teach her how to use it.
Mother was “shocked.” Doe was very upset. Doe also told Mother that defendant had
slapped and grabbed her buttocks. Doe showed the vibrator to Mother, and Mother gave
it to the police. Mother never gave defendant permission to give the vibrator to Doe.
Several days later, Doe told Mother about the dream defendant told her he had about
them having sex.
Prior to April 2020, Doe had told Father that defendant gave her an electric
toothbrush for masturbation. Father was outraged and discussed with Doe disclosing the
incident. Doe did not want to uproot the family so Father agreed not to say anything.
Father became aware of the April 19, 2020, incident based on receiving copies of the text
messages from Doe to her cousin. Father saw the text message where Doe stated that
defendant was hitting on her and gave her stuff for masturbation. He also saw the
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message that Doe stated defendant offered to help her use the vibrator. Father
immediately called the police. Father spoke with law enforcement and then Doe called
him to pick her up from the house in Temecula. Doe at that point told him that defendant
had touched her on her buttocks and about the vibrator.
Riverside County Sheriff’s Deputy Vega was on patrol in the Temecula area on
April 20, 2020, when he received a call around 10:30 a.m. to respond to the home of Doe
and Mother. He met with defendant, who advised Deputy Vega that he was 54 years old.
Deputy Vega spoke with Doe on the telephone and she disclosed defendant had given her
a vibrator and he had grabbed and squeezed her buttocks. Mother gave Deputy Vega the
vibrator. The vibrator had a ring on one side and there were instructions with the vibrator
that showed how to put it on a penis. Defendant was arrested. Doe told Deputy Vega
that she had washed the vibrator. Doe also told him that she washed the electric
toothbrush that defendant gave her.
B. DEFENSE
Defendant testified on his own behalf. Defendant had been with Mother while
Doe was growing up. Doe talked to defendant about boys. Defendant became concerned
about a boy that Doe met online.
Defendant admitted to giving Doe a vibrator in April 2020. He was worried about
her attraction to boys and he wanted to give her an alternative, independent way to
manage her personal needs. Defendant claimed he got the idea from television and other
articles that recommended giving vibrators to teenage girls to prevent pregnancy. Doe
rejected the vibrator at first but then came to find him to get it. He told her if she had any
8
questions she could ask him. He never told her would help her use it. His intention in
giving her the vibrator was not sexual; he intended to give it to her as a good parent.
Defendant claimed he accidentally slapped the back of Doe’s leg when he tripped
in her room chasing his toddlers. He did not slap or squeeze her buttocks. As for the
discussion of his dream, Doe had been telling him about a dream she had and he just
stated that he had a dream about her the prior night. He never told her they were having
sex. He denied he had ever grabbed Doe’s buttocks. He had only commented once that
she looked nice but said nothing more. Defendant admitted to giving her the electric
toothbrush for masturbation based on advice from a television show. He never told her
what to do with it despite his intent to have her use it for masturbation. He expected that
Doe would figure out how to use the toothbrush on her own despite her being only 12
years old. He was sexually attracted to adult women, not 14-year-old girls. At trial, he
claimed he viewed Doe as his daughter.
Defendant had told Deputy Vega that he did not consider Doe as a daughter. He
admitted he was not in charge of making decisions for Doe. He was not in charge of
giving discipline to Doe. Defendant admitted to doing research on teenage sex drive and
then gave the vibrator to Doe so that she could satisfy herself sexually. He expected her
to read the instructions on the box to use it. Defendant told Deputy Vega that when he
gave Doe the vibrator, he asked if she needed help and if she understood. He indicated
that if Doe did have questions for him, he intended to tell her how much pressure to use
and explain her anatomical positioning. Defendant never talked to Mother about giving
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Doe the vibrator despite all of his research. He claimed not to have known the device he
gave Doe was meant to fit on a penis.
DISCUSSION
A. INSUFFICIENT EVIDENCE
Defendant contends there was insufficient evidence presented to support his
convictions of committing lewd and lascivious acts within the meaning of Penal Code
section 288, subdivision (c)(1) in counts 1 and 2. He claims there was no evidence that
the acts of touching in counts 1 and 2 were done with the intent of arousing, appealing to,
or gratifying his or Doe’s sexual desires within the meaning of Penal Code section 288,
subdivision (c)(1). He also insists that there was insufficient evidence presented to
support his conviction in count 3 of annoying and molesting a child under the age of 18
within the meaning of Penal Code section 647.6, subdivision (a)(1). He claims that 14-
year-old Doe had “free choice” whether to accept the vibrator and the “record in this case
does not . . . contain any expert or otherwise objective testimony concerning whether a
normal person in modern America would ‘unhesitatingly be irritated’ if a stepparent or de
facto stepparent gave a teenage child a vibrator designed to be used for masturbation.”
Defendant insists that a jury that finds the giving of a vibrator to a 14-year-old girl
violates Penal Code section 647.6, subdivision (a)(1), is “prudish indeed.”
“In reviewing a claim for sufficiency of the evidence, we must determine 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 or special circumstance
beyond a reasonable doubt. We review the entire record in the light most favorable to the
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judgment below to determine whether it discloses sufficient evidence—that is, evidence
that is reasonable, credible, and of solid value—supporting the decision, and not whether
the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the
evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support
of the judgment the existence of every fact the jury reasonably could deduce from the
evidence. [Citation.] If the circumstances reasonably justify the findings made by the
trier of fact, reversal of the judgment is not warranted simply because the circumstances
might also reasonably be reconciled with a contrary finding.” (People v. Jennings (2010)
50 Cal.4th 616, 638-639.)
“Reviewing the sufficiency of evidence, . . . , necessarily calls for analysis of the
unique facts and inferences present in each case, and therefore comparisons between
cases are of little value.” (People v. Rundle (2008) 43 Cal.4th 76, 137-138, disapproved
on another point in People v. Doolin (2009) 45 Cal.4th 390, 421.) “Because we must
draw all inferences in support of the judgment, [a] defendant bears an ‘enormous burden’
when challenging the sufficiency of the evidence.” (People v. Vasco (2005) 131
Cal.App.4th 137, 161.)
1. COUNTS 1 AND 2
Penal Code section 288, subdivision (a) provides in pertinent part, “a 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 desires of that person or
the child, is guilty of a felony and shall be punished by imprisonment in the state prison
11
for three, six, or eight years.” Subdivision (c)(1) of Penal Code section 288 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. In determining whether the person is at least 10 years older than the
child, the difference in age shall be measured from the birth date of the person to the birth
date of the child.”
“[A] lewd and lascivious act can . . . involve ‘any part’ of the victim’s body.”
(People v. Martinez (1995) 11 Cal.4th 434, 444.) “Conviction under the statute has never
depended upon contact with the bare skin or ‘private parts’ of the defendant or the
victim.” (Ibid.) “[T]he lewd character of an activity cannot logically be determined
separate and apart from the perpetrator’s intent. It is common knowledge that children are
routinely cuddled, disrobed, stroked, examined, and groomed as part of a normal and
healthy upbringing. On the other hand, any of these intimate acts may also be undertaken
for the purpose of sexual arousal. Thus, depending upon the actor’s motivation, innocent
or sexual, such behavior may fall within or without the protective purposes of section
288. As the vast majority of courts have long recognized, the only way to determine
whether a particular touching is permitted or prohibited is by reference to the actor’s
intent as inferred from all the circumstances.” (Id. at p. 450.) Relevant factors include
the charged act, other acts of lewd conduct charged in the case, the relationship between
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the parties, and any “coercion, bribery, or deceit used to obtain the victim’s cooperation
or to avoid detection.” (Id. at p. 445.)
As for count 1, the incident in the kitchen, Doe testified that defendant came up
behind her and pinched her buttocks. He then took the palm of his hand and rubbed her
waist, stomach, and moved back and forth on her back. In a low voice, he told her “nice
jeans.” She described the touching as lasting for five seconds and that he “lingered” on
her body. Doe testified that this made her feel “disgusting.”
Prior to this incident, defendant had given Doe the electric toothbrush and told her
she could use it for masturbation. Doe and defendant had not previously discussed sex
and defendant’s actions made her feel uncomfortable. The jury could reasonably
conclude that defendant’s pinching of her buttocks and rubbing his hand on her stomach
and back, while telling her he liked her jeans, was inappropriate touching that he did with
the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of
himself or Doe.
Defendant places the onus on Doe indicating that she could have told him to
“ ‘Stop it,’ ” if it truly bothered her. Further, her claim that she did not tell Mother
because she did not want to uproot her family was “contrived.” He insists her late
disclosure of the incident amounted to her not being offended by the incident. Further,
the touching did not “seem out of line” and the words of praise with non-intimate
touching could not be reasonably seen as sexually motivated. However, the evidence
establishes that Doe was disgusted by defendant’s touching of her and that his hands
“lingered” on her while he told her in a low voice that she looked nice in her jeans. The
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jury heard Doe’s testimony and believed her version of what occurred in the kitchen. On
appeal, we do not “reweigh the evidence []or reevaluate the credibility of witnesses.”
(People v. Jennings (2010) 50 Cal.4th 616, 638-639.) Substantial evidence supported the
jury’s finding as to count 1.
There was also strong evidence supporting count 2. Prior to the incident in the
bedroom, defendant had already given Doe an electric toothbrush and advised her to use
it for masturbation, he had touched her in the kitchen and had 30 minutes prior, given her
a vibrator that was designed to be placed on an erect penis. Doe was lying on her
stomach on her bed and defendant entered her room. Although she did not see how
defendant got down on his knees next to her bed, she was clear that he slapped her
buttocks hard with an open hand. He then twice grabbed her buttocks and squeezed. She
did not feel good about him touching her and thought she did not “deserve” to be touched
by him. Based on the incidents occurring prior to this act, the jury reasonably could
conclude that defendant possessed the intent of arousing or appealing to his or Doe’s
sexual desires when he slapped and squeezed her buttocks. Defendant is essentially
asking this court to reassess the credibility of Doe and reweigh the evidence. The jury
properly found the evidence supported that the incident in the bedroom was a violation of
Penal Code section 288, subdivision (c)(1), in count 2.
2. COUNT 3
There was also sufficient evidence to support his conviction of violating Penal
Code section 647.6, subdivision (a). “Every person who annoys or molests any child
under 18 years of age shall be punished by a fine not exceeding five thousand dollars
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($5,000), by imprisonment in a county jail not exceeding one year, or by both the fine