People v. DeLOUIZE

120 Cal.Rptr.2d 95 (2002) 98 Cal.App.4th 887 The PEOPLE, Plaintiff and Respondent,

v.

Robert Bernard DeLOUIZE, Defendant and Appellant.

No. A093574. Court of Appeal, First District, Division Four.

May 28, 2002. Review Granted August 14, 2002. George Oliver Benton, First District Appellate Project, Santa Rosa, for Appellant.

[96] Office of Attorney General, Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Matthew P. Boyle, Deputy Attorney General, for Respondent.

Certified for Partial Publication.[*]

SEPULVEDA, J.

A jury found defendant Robert Bernard DeLouize guilty of three counts of lewd or lascivious acts with a child under the age of 14 years (Pen.Code, § 288, subd. (a)). On appeal he contends (1) the trial court lacked jurisdiction to reverse its order granting him a new trial, and (2) the version of CALJIC No. 2.50.01 read to the jury permitted a conviction without proof of guilt beyond a reasonable doubt.

We conclude the trial court had the discretion to reconsider its order granting a new trial and that the jury was properly instructed. We affirm the judgment.

BACKGROUND

Defendant was a karate instructor in Fort Bragg. His victim, Heather H., was 11 years old when she began taking karate instruction from defendant.

Heather testified regarding a series of escalating sexual advances by defendant. First defendant instructed her to hit him in the groin area during a karate move. This was unusual. Defendant showed other students a similar move, but only Heather was told to make contact. Next defendant told her that her breasts and vagina belonged to him. Then, under the guise of helping her to meditate, defendant began to touch Heather's breasts and genitals. Finally, he took her hand and rubbed his penis with it through his clothing.