People v. Hopkins CA2/6

Filed 2/18/15 P. v. Hopkins CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B251270

Plaintiff and Respondent, (Super. Ct. No. 2011037134)

v. (Ventura County)

RODNEY HOPKINS,

Defendant and Appellant.

David Rodney Hopkins appeals from the judgment entered after a jury convicted him of continuous sexual abuse of a child (his daughter) under the age of 14 years. (Pen. Code, § 288.5, subd. (a).)1 He was sentenced to prison for 12 years. Appellant contends that the trial court erroneously (1) admitted evidence of prior uncharged sexual offenses that he had committed against his daughter, (2) instructed the jury on consciousness of guilt, and (3) imposed a sex offender fine of $1200 pursuant to section 290.3. Only the third contention has merit. We remand the matter to the trial court with directions to impose a $300 sex offender fine plus mandatory penalty assessments and surcharges. In all other respects, we affirm.

1 All statutory references are to the Penal Code unless otherwise stated.

Facts Appellant's daughter, M.H., was born in 1996. When she was in seventh grade, appellant gave her back and belly rubs. On five to ten occasions, he "move[d] his hand up [her] body and start[ed] rubbing her breasts in a circular motion." Appellant made "skin-to-skin contact" with her breasts. On two to five occasions, appellant touched M.H.'s vaginal area. Once or twice, he put his hand underneath her underwear. Once while M.H. was sleeping, appellant awakened her by "massaging and rubbing [her] breasts." M.H. estimated that, while she was in seventh grade, appellant had massaged her and touched her breasts or vagina at least once a month. Appellant stopped the touching in February or March 2010. When M.H. was in eighth grade, she told some friends about appellant's conduct. In June 2011 the police received an anonymous tip that appellant had sexually abused M.H. Appellant voluntarily came to the police station, where Officer Erica Escalante interviewed him for over two hours. Appellant said that, while giving M.H. body rubs, he would sometimes accidentally "bump into her breasts." Later in the interview, appellant explained that as M.H. "developed more, [his] hand would accidentally touch [her breasts] . . . [c]ause there got to be less, you know, free space if you will." On the other hand, appellant said, "I would be curious and a few []times I got bold." When he "got bold," appellant deliberately touched M.H.'s breasts "[t]o see what her breasts felt like." Appellant admitted that, on about five occasions, the touching had sexually aroused him. Appellant told the police that three or four times in the spring of 2011, when M.H. was 14 years old, she would "play this silly little game . . . pretending like she didn't want to go to bed" at night. While M.H. and appellant were walking down the hallway to her bedroom, M.H. would suddenly "go limp and fall forward." Appellant tried to "grab her by the . . . armpit, shoulder area to catch her." But sometimes he grabbed her breasts instead. Appellant insisted that he "didn't purposely grab the breasts" and that he "was