California Court of Appeal Dec 4, 2013 No. E056841Unpublished
Filed 12/4/13 P. v. Daniels 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E056841
v. (Super.Ct.No. SWF028088)
RAYMOND WALLACE DANIELS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Angel M. Bermudez,
Judge. Affirmed.
Siri Shetty, 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, Senior Assistant Attorney General, Kristine A. Gutierrez and
Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
1
According to his niece, defendant Raymond Wallace Daniels raped her twice,
once when she was 7 or 8 and again when she was 12 or 13.
A jury found defendant guilty on two counts of a forcible lewd act on a child
under 14. (Pen. Code, § 288, subd. (b)(1).) It acquitted him on two counts of forcible
rape (Pen. Code, § 261, subd. (a)(2)) and two counts of aggravated sexual assault on a
child by means of rape (Pen. Code, § 269, subd. (a)(1)). Defendant admitted one “strike”
prior (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and one prior serious felony conviction
enhancement (Pen. Code, § 667, subd. (a)). As a result, he was sentenced to a total of 37
years in prison, along with the usual fines and fees.
Defendant now contends:
1. The trial court erred by failing to instruct the jury on the lesser included offense
of a nonforcible lewd act.
2. The trial court erred by denying defendant’s Romero motion.1
We find no error. Hence, we will affirm.
1 A “Romero motion” is a motion to dismiss a strike prior in the interest of justice. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)
2
I
FACTUAL BACKGROUND
Jane Doe2 was born in 1994. Thus, in 2002, she was 7 or 8 years old; in 2007, she
was 12 or 13 years old.
A. 2002 Incident.
Defendant is Doe’s uncle. As of 2002, he was living with Doe and her parents at
their house in Temecula.
One night in 2002, Doe fell asleep on a couch. She awoke to find defendant lying
on top of her. He pushed her arms over her head and held them both down with his
2 The trial court accepted the parties’ stipulation that the victim’s true name would be used at trial, but that the court reporter would “plac[e] a black line through the name in order to protect the privacy of the victim.” The parties forfeited any objection to this order by stipulating to it. We note, however, that while the prosecution cited Penal Code section 293 in support of this order, that section merely provides that, if the victim of a sex crime so requests, the investigating law enforcement agency shall not disclose the victim’s name or address, other than to certain authorized officials. (Pen. Code, § 293, subds. (a), (c), (d).) We do not see how it authorizes the trial court’s order here. We also note that the order was not entirely effective, because the court reporter failed to redact several instances of the victim’s true name, and the victim’s true name also appears in the clerk’s transcript. The more immediate problem, for our purposes, is that the trial court’s order did not authorize the use of a fictitious name, such as Jane Doe. (See Pen. Code, § 293.5.) We believe, however, that we have the authority to order that the victim be referred to by a fictitious name in this appeal, not only under Penal Code section 293.5, but also under the long-standing common-law tradition allowing the use of fictitious names to protect privacy. (See Doe v. Lincoln Unified School Dist. (2010) 188 Cal.App.4th 758, 766- 767.) We hereby so order.
3
forearm. His other hand was over her mouth. She tried to “squirm” and “wiggle out”
from under him, but she could not.
Her pajama pants had been pulled down. Defendant rubbed his penis against her
genitals. It entered her labia majora but not her vagina. He kept telling her, “‘Shh,’ like
over and over again.” “[She] asked why, and he said because he loved [her].” Doe
started crying. She did not scream because she was “scared.”
Afterward, Doe did not tell anybody, and she tried to act “[l]ike nothing
happened,” because she was afraid that defendant would hurt her or her parents would
hurt him.
B. 2007 Incident.
Defendant continued to live with Doe’s family for a while, then moved out for a
while, and then, in 2007, moved back in.
In June 2007, Doe’s parents went out of town for a couple of days, leaving Doe in
defendant’s care. She was asleep in bed when she was awakened by defendant pulling up
her nightgown. He pulled her underwear down, then lay on top of her. Again, he
pushed her arms over her head. She “br[oke] them free,” but defendant put his arm
across her chest, “kind of cutting [her] off at [her] forearms with his arms, so there was
really nothing [she] could do.” Again, he covered her mouth with his hand.
As before, defendant rubbed his penis against her genitals, and it entered her labia
majora but not her vagina. She kept telling him to stop. He “kept telling [her] to be quiet
and to shut up and just shushing [her] over and over again.”
4
Once again, at first, Doe did not tell anyone and tried to act normal because she
was scared. Not long afterward, however, defendant moved out and went to live in a
cabin on the Pala Indian Reservation. Doe’s parents advanced his first and last month’s
rent.
In July 2007, while at church camp, Doe disclosed the molestation to her best
friend. This led to further disclosures — to camp and church officials, to her parents, and
eventually to the police. Doe’s parents told the police that defendant lived on the Pala
campground, but could not give them an address. The case languished because the police
could not find defendant until June 2009, when he was located in Missouri and arrested.
C. Defense Case.
Defendant denied that the alleged sex acts ever occurred. In July 2007, when he
was first accused of molesting Doe, he was living at a campground near the Pala Indian
Reservation. He stayed there until June 2008, when he moved to Missouri for work-
related reasons.
Doe always seemed comfortable with defendant and never acted any different
around him.
Doe had told the police that in 2002 and 2007, defendant’s penis penetrated her
vagina and also that, in 2002, he digitally penetrated her.
5
II
FAILURE TO INSTRUCT ON THE LESSER INCLUDED OFFENSE
OF A NONFORCIBLE LEWD ACT
Defendant contends that the trial court erred by failing to instruct the jury on the
lesser included offense of a nonforcible lewd act (Pen. Code, § 288, subd. (a)).
“‘“The trial court is obligated to instruct the jury on all general principles of law
relevant to the issues raised by the evidence, whether or not the defendant makes a formal
request.” [Citations.] “That obligation encompasses instructions on lesser included
offenses if there is evidence that, if accepted by the trier of fact, would absolve the
defendant of guilt of the greater offense but not of the lesser.” [Citations.]’ [Citations.]
‘Nevertheless, “the existence of ‘any evidence, no matter how weak’ will not justify
instructions on a lesser included offense . . . .” [Citation.] Such instructions are required
only where there is “substantial evidence” from which a rational jury could conclude that
the defendant committed the lesser offense, and that he is not guilty of the greater