People v. Maddox CA5

Opinion

Filed 9/22/26 P. v. Maddox CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F089055 Plaintiff and Respondent, (Super. Ct. No. F16904940) v. CORY ALAN MADDOX, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. Gregory T. Fain, Judge. William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Christopher J. Rench and Jessica A. Eros, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- Defendant Cory Alan Maddox was charged with three counts of lewd acts upon a child under the age of 14 years (Pen. Code, § 288, subd. (a) [counts 1, 2, & 5]),1 two counts of sexual intercourse or sodomy with a child 10 years of age or younger (§ 288.7, subd. (a) [counts 3 & 4]), and one count of lewd acts upon a child of 14 or 15 years by a person at least 10 years older than the child (§ 288, subd. (c)(1) [count 6]). The information further alleged: (1) as to counts 1 and 2, defendant had substantial sexual conduct with a victim under 14 years of age (§ 1203.066, subd. (a)(8)); and (2) as to counts 1, 2, and 5, he committed lewd acts against more than one victim (§ 667.61, subds. (e)(4), (j)(2)). Later, at the prosecution’s behest, count 5 was dismissed and the multiple victim allegation was stricken. Following trial, the jury found defendant guilty as to counts 1 and 2 and not guilty as to counts 3, 4, and 6, and found the substantial sexual conduct allegation true as to count 1 and not true as to count 2. Defendant received a five-year prison sentence: three years on count 1 and two years on count 2. The trial court awarded 43 days of credit for time served: 39 days for actual presentence custody credit plus four days of local conduct credit pursuant to section 2933.1. On appeal, defendant contends the trial court improperly instructed the jury on the definition of substantial sexual conduct. We disagree. Defendant also contends—and the Attorney General concedes—he is entitled to an extra day of local conduct credit. We accept the concession. STATEMENT OF FACTS I. Prosecution’s Case-in-chief Jane Doe is defendant’s second cousin. She “spent a lot of [her] childhood with him,” described their relationship as “very close,” and considered him “one of [her] favorite people.” Jane was molested by defendant for a six- or seven-year period, starting 1 Unless otherwise indicated, subsequent statutory citations refer to the Penal Code.

2. when she was “around five to six years old” and ending when she was 12 years old. Specifically, he would touch her “on the outside of [her] clothes, on [her] vagina, on [her] underwear” and “sometimes underneath as well,” usually while she was “seated in his lap .… The fondling lasted “anywhere from … 30 seconds to two minutes.” At some point, defendant resided at Jane’s home. During that span, incidents occurred “almost every night, multiple times a week .…” Incidents also occurred before and after defendant lived with her. Jane testified she was molested for the first time at defendant’s mother’s house. While she was sitting on defendant’s lap and watching a movie, he was “rubbing [her] vagina” over her clothing. Jane testified defendant touched her underneath her clothing for the first time when he lived with her and she was around eight years old. As she was sitting on defendant’s lap, he “tug[ged] on [her] underwear,” which she took to be an “instruct[ion]” to remove it. Jane did so and defendant felt “the outside” of her vagina. She experienced “[d]iscomfort and a little bit of pain.” Meanwhile, defendant “took his pants off.” After he stopped touching Jane’s vagina, he “put his pants on.” Jane testified she was molested for the last time after he moved out of her residence. At his house, they sat on the couch “kissing” and he touched her vagina over her clothing. Because Jane did not want to create “a divide in [her] family,” she kept secret these incidents. When she was 13 or 14 years old, she revealed the molestation to her best friend, who told Jane’s mother in turn. When asked by her mother about defendant’s actions, Jane denied they transpired. Jane and her mother subsequently met with Detective Hershberger of the Clovis Police Department. During the interview, Jane continued to deny any abuse by defendant because she “didn’t want [her] family to be split up.” The week following the interview, Jane attended a church camp, where she “felt the need to go and talk to a leader.” She spoke to a leader, who “urged [her] … [to] be honest with [her] mom.” Jane texted her mother and revealed what had happened with 3. defendant. After Jane returned from camp, she and her mother met with Detective Hershberger again. This time, Jane disclosed the abuse and “a weight was lifted off [her] shoulders .…” On July 27, 2016, Jane participated in a pretext call with defendant. The following exchange took place: “[Jane]: … I went to like camp and I was just tryin’ tah come to terms with myself, like and[] “[Defendant]: Mm-hm. [¶] … [¶] “[Jane]: … tryin’ tah heal myself emotionally… and I… “[Defendant]: Okay. “[Jane]: … at least need to hear from you that you’re sorry. Just for my emotional… “[Defendant]: For? “[Jane]: … closure. [¶] … [¶] … For what you did to me when I was little. “[Defendant]: Oh, yuh…What did I do? [¶] … [¶] “[Jane]: You know what I’m talking about. [¶] … [¶] … You, at least, owe me an apology. “[Defendant]: (Sighs)… [¶] … [¶] … I’m sorry for anything I did .… [¶] … [¶] “[Jane]: I haven’t told anyone. I just needed that apology. [¶] … [¶] “[Defendant]: I’m sorry for anything I did .… [¶] … [¶] “[Jane]: But, why did you do that, though? [¶] … [¶] “[Defendant]: (Sighs) I don’t know, hn… [¶] … [¶] “[Jane]: But you understand why I’m hurting. Right? [¶] … [¶] “[Defendant]: I do. Mm-hm. [¶] … [¶] “[Jane]: I just don’t understand why you touched me while I was still little and like vulnerable and pure. [¶] … [¶]

4. “[Defendant]: (Sighs) [¶] … [¶] “[Jane]: Like I’ve been praying about it a lot, but I just need you to like be very sincere with your apology and just acknowledge what you did to me when I was little and just say it. I just need you to say it. I just need to hear that from you. [¶] … [¶] “[Defendant]: (Sighs) [¶] … [¶] “[Jane]: Like I just need you to say that and then we can put this behind us. I just need to hear those words from you. What you did to me and why you did it and I need to hear your apology. “[Defendant]: I’m… [¶] … [¶] … (Sighs) Suh-uh, I’m sorry, I’m tryin’ tah… (Sighs) I’m still tryin’ tah think of what you’re talking about. (Sighs) [¶] … [¶] “[Jane]: … [I]f I can hear this from you, just tah be like up front, I just… It will be uh, over, otherwise I feel like I would need to tell my mom. [¶] … [¶] “[Defendant]: Like I said, I am truly sorry but I don’t remember nothing and I don’t… [¶] … [¶] “[Jane]: Like doesn’t it feel better for you to like say sorry and like… Would it feel better if you could just like say it? Just to get it off your… “[Defendant]: I did… “[Jane]: … shoulders? “[Defendant]: … say I’m sorry and I said… I said sorry many times. “[Jane]: What are you sorry for, though? You haven’t given me that. [¶] … [¶] “[Defendant]: Juh… You’re telling me to [say] sorry for something that you’re sure that I remember and that I did, but I’m telling you I really… (Exhales sharply)… I don’t remember doing that and that’s why it doesn’t… I can tell you, and I’ve told you that, so even if I say…, it doesn’t mean anything to you. [¶] … [¶] “[Jane]: … [C]an you please try and explain to me what you know you did. [¶] … [¶] “[Defendant]: Should I apologize for, like you said, touching you, underwear and stuff when you were younger? (Sighs) [¶] … [¶]

5. “[Jane]: … [I]f I would’ve done something like that I wouldn’t have been able to live with that. “[Defendant]: Yes, suh… [¶] … [¶] “[Jane]: So it has been weighing you down? “[Defendant]: It’s a mistake, hn… (Sighs)”

Tiffany Anderson, a licensed clinical and forensic psychologist, testified about child sexual abuse accommodation syndrome (CSAAS), a “model … for helping … adults better understand the behaviors of children that they may demonstrate if they’ve been sexually abused.” Two aspects of CSAAS—delayed disclosure and retraction— explain that (1) “it’s common for kids to not tell someone right away when they have been sexually abused,” with many waiting “weeks, months, even years” to do so; and (2) a child “is more likely to retract or recant” when “perpetrators … continue to have access to the child .…” II. Defense’s Case-in-chief K.F. is defendant’s partner. She and her two daughters have lived with defendant for 10 years. K.F. was “shocked” and “absolutely baffled” when she learned defendant was being arrested. She considers him a man of good character. In addition, defendant has “a good relationship” with K.F.’s daughters and K.F. has never observed him engaging in any inappropriate behavior towards them. Defendant testified he lived with Jane and her mother between September and December 2010 while he was in the process of purchasing and renovating a house. He had “a very good relationship” with Jane and there were no problems during his time living there. Defendant “wasn’t home alone with [Jane] a lot” as Jane’s mother “was essentially always there.” During the pretext call, he “tried to calm [Jane] down” because she “sounded very upset” and he “tried to get her to clarify an actual situation that she was upset about.” Defendant “apologized” “because she just kept asking [him] over and over again to please apologize.” He recalled Jane was the one who said he “touched her 6. everywhere” and “touched her underwear.” After defendant was arrested, he was interviewed “for over two hours.” He denied ever touching Jane inappropriately. III. Jury Instruction At the jury instruction conference, the trial court informed the parties that its instruction on substantial sexual conduct would be based directly on section 1203.066’s language. The prosecution requested a “pinpoint instruction defining ‘masturbation’ since it is not defined by statute, and there is some case law that clarifies that.” The prosecution cited People v. Chambless (1999) 74 Cal.App.4th 773 (Chambless), which held “the definition of masturbation under the [Sexually Violent Predators] Act [(Welf. & Inst. Code, § 6600 et seq.)] encompasses any touching or contact, however slight, of the genitals of either the victim or the offender, with the requisite intent .…” (Id. at p. 783.)2 The court indicated it would append Chambless’s wording to the instruction. Defense counsel did not object thereto. Prior to deliberation, the trial court instructed the jury:

“Penal Code [section] 1203.066[, subdivision ](b) states … : Substantial sexual conduct means penetration of the vagina or rectum of either the victim or the offender by the … penis of the other or by any foreign object, oral copulation or masturbation of either the victim or the offender.

“‘Masturbation’ is any intentional touching or contact, however slight, of the genitals of either the victim or the offender.”

2 Although Chambless addressed the meaning of “masturbation” for the purpose of Welfare and Institutions Code section 6600.1, former subdivision (b) (Chambless, supra, 74 Cal.App.4th at p. 784), that provision “took [its] definition of substantial sexual conduct … directly from … section 1203.066, subdivision (b)” (id. at p. 786).

7. DISCUSSION I. The Trial Court Properly Instructed the Jury on Substantial Sexual Conduct and Masturbation A. Standard of Review “[T]he trial court’s obligation is to state the law correctly.” (People v. Runnion (1994) 30 Cal.App.4th 852, 858.) “The independent or de novo standard of review is applicable in assessing whether instructions correctly state the law.” (People v. Posey (2004) 32 Cal.4th 193, 218.)

B. Analysis At the outset, the Attorney General contends defendant “forfeited his claim” “by failing to object to [the] instruction.” However, the Attorney General also acknowledges “[a]n exception to the forfeiture rule arises when the instruction affected the defendant’s substantial rights.” Section 1259 provides an appellate court may review “any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” (Accord, People v. Brown (2003) 31 Cal.4th 518, 539, fn. 7.) “The cases equate ‘substantial rights’ with reversible error, i.e., did the error result in a miscarriage of justice?” (People v. Arredondo (1975) 52 Cal.App.3d 973, 978; see People v. Watson (1956) 46 Cal.2d 818, 836 [“a ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is 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”].) “‘Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim .…’” (People v. Lawrence (2009) 177 Cal.App.4th 547, 553–554, fn. 11.) We now conduct this examination. “In a criminal trial, the court must give an instruction requested by a party if the instruction correctly states the law and relates to a material question upon which there is 8. evidence substantial enough to merit consideration by the jury.” (People v. Anderson (2015) 232 Cal.App.4th 1259, 1279.) “Even without a request, the court is required to give correct jury instructions on the general principles of law relevant to issues raised by the evidence.” (Ibid.) “‘In considering a claim of instructional error[,] we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys.’” (People v. Lopez (2011) 199 Cal.App.4th 1297, 1305.) Under section 1203.066, subdivision (a)(8), “probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within the provisions of this section be stricken pursuant to Section 1385 for … [¶] … [¶] (8) A person who, in violating Section 288 …, has substantial sexual conduct with a victim who is under 14 years of age.” The phrase “‘Substantial sexual conduct’” is defined as “penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender.” (Id., subd. (b).)3 Here, the trial court’s instruction incorporated section 1203.066, subdivision (b)’s language. However, the statute does not specify what constitutes “masturbation.” At the prosecution’s behest, the instruction included the Chambless definition of masturbation, which has been adopted in numerous cases. (See, e.g., People v. Dunn (2012) 205 Cal.App.4th 1086, 1098, fn. 8; People v. Carlin (2007) 150 Cal.App.4th 322, 333; People v. Whitney (2005) 129 Cal.App.4th 1287, 1294; People v. Terry (2005) 127 Cal.App.4th 750, 771–772.)4 Since the court’s instruction recites almost verbatim “‘what the relevant 3 The original statutory language likewise identified “masturbation of either the victim or the offender” as substantial sexual conduct. (Stats. 1981, ch. 1064, § 4, pp. 4095–4096.) 4 Defendant cites Justice Walsh’s concurring opinion in People v. Lopez (2004) 123 Cal.App.4th 1306, 1315–1316 (conc. opn. of Walsh, J.), criticizing the Chambless definition. A concurring opinion, however, is nonbinding. (See People v. Byrd (2001) 89 Cal.App.4th 1373, 1383 [“‘no opinion has value as a precedent on points as to which there is no agreement of a majority of the court’”].)

9. law provides’” (People v. Lopez, supra, 199 Cal.App.4th at p. 1305), the court met its obligation to “state the law correctly” (People v. Runnion, supra, 30 Cal.App.4th at p. 858) and “defendant’s substantial rights were not violated” (People v. Quinonez (2020) 46 Cal.App.5th 457, 467). On appeal, defendant acknowledges the term “‘masturbation’” has been judicially defined, but believes the case law “should be rejected.” He argues: “If merely touching the victim’s vagina is all that is necessary to establish substantial sexual conduct, this effectively eliminates the statutory language defining substantial sexual conduct as ‘penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object …’ [Citation.] … [¶] If the Legislature had intended that simply touching the victim’s vagina was enough to qualify as ‘substantial sexual conduct,’ it would not have included penetration of the vagina within its definition of that term. [Citation.] Instead, the Legislature would have simply defined ‘substantial sexual conduct’ as any touching of the vagina or rectum, and left it at that.” (Italics omitted.) The premise that the Chambless definition conflicts with the Legislature’s intent is fallacious. Since its original enactment in 1981, section 1203.066, subdivision (b), has identified vaginal or rectal penetration, oral copulation, and masturbation as separate and distinct categories of “substantial sexual conduct.” (Compare Stats. 1981, ch. 1064, § 4, pp. 4095–4096 with Stats. 2021, ch. 626, § 47.) In 1999, Chambless specified masturbation refers to “any touching or contact, however slight, of the genitals of either the victim or the offender .…” (Chambless, supra, 74 Cal.App.4th at p. 783.) Multiple courts have subsequently relied upon this definition. Since 1999, section 1203.066 has been amended repeatedly. (See Stats. 2021, ch. 626, § 47; Stats. 2018, ch. 423, § 93; Stats. 2011, ch. 296, § 216; Stats. 2010, ch. 49, § 1; Stats. 2006, ch. 538, § 506; Stats. 2005, ch. 477, § 5.) Yet, not once has the Legislature modified section 1203.066, subdivision (b), in a manner repudiating the Chambless definition. (See In re Greg F. (2012) 55 Cal.4th 393, 407 [“[t]he Legislature is presumed to be aware of all laws in 10. existence when it passes or amends a statute”].) Such inaction instead suggests the Legislature has endorsed it.5 II. The Attorney General Concedes Defendant is Entitled to One Additional Day of Local Conduct Credit The record demonstrates defendant was awarded 43 days of credit for time served: 39 days of actual presentence custody credit plus four days of local conduct credit pursuant to section 2933.1. On appeal, defendant points out:

“Section 2933.1 limits to 15 percent the accrual of worktime credit for persons like [defendant] convicted of violent felonies within the meaning of section 667.5, subdivision (c).[6] However, calculating 15 percent of 39 yields a figure of 5.85. Therefore, [defendant] should have been awarded 5 days of local conduct, not 4 days.” The Attorney General concedes defendant is entitled to one additional day of local conduct credit. We accept this concession. (See People v. Guillen (1994) 25 Cal.App.4th 756, 764 [erroneous computation of presentence credits “subject to correction by the trial court or the appellate court when presented”].) DISPOSITION The trial court shall prepare an amended abstract of judgment and minute order reflecting defendant is entitled to 44 days of credit for time served—39 days of actual presentence custody credit and five days of local conduct credit pursuant to 5 In light of our conclusion on this issue, we need not discuss defendant’s other arguments. 6 Section 667.5, subdivision (c)(6) identifies a lewd act upon a child under the age of 14 years as a “‘violent felony.’”

11. section 2933.1—and transmit certified copies thereof to the appropriate authorities. As so modified and in all other respects, the judgment is affirmed.

MEEHAN, J. WE CONCUR:

DETJEN, Acting P. J.

SNAUFFER, J.

12.