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People v. Pathan12/13/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendant Atik Pathan appeals after conviction, by jury trial, of two counts of aggravated sexual assault on a child under 14 years old and 10 or more years younger than the defendant (counts 1& 2, Pen. Code, § 269), six counts of a lewd or lascivious act on a child under the age of 14 (counts 3-8, § 288, subd. (a)), and one count of continuous sexual abuse of a child under the age of 14 (count 9, § 288.5, subd. (a)). He was sentenced to a prison term of 15 years to life for count 1, with a concurrent 12-year term for count 9. The trial court dismissed count 2 pursuant to section 1385 and stayed the terms for counts 3-8 pursuant to section 654.
Defendant contends: (1) his statements to the victim's father should have been suppressed; (2) his confession to the police should have been suppressed; (3) there was insufficient evidence to support his aggravated sexual assault convictions; (4) the trial court gave erroneous jury instructions on sodomy; and (5) section 288.5, subdivision (c) precludes conviction of both continuous sexual abuse (count 9) and individual sex offenses (counts 1-8) concerning the same victim and the same time period.
We will reverse the judgment and remand the matter for resentencing.
I. Background
Defendant is a native of India whose primary language is Hindi. In January of 1998, Nasir R. hired defendant to teach Islamic religion to his children. Shaikh R., his son, was 10 years old at the time. Defendant taught Shaikh two to three days per week, for one hour at a time, except for a few months when defendant was in India, through June of 1999.
According to Shaikh, on two to 10 occasions, defendant touched Shaikh's penis with his hand. Defendant would sometimes rub his own penis on the front of Shaikh's body. Defendant would also touch Shaikh's butt. Defendant had Shaikh touch defendant's penis on many occasions. Defendant would grab Shaikh's hand, place it on defendant's penis, and pat it. Defendant's penis would get hard and Shaikh would feel "something sticky" come out of it. These incidents occurred "most of the times" that defendant came over to tutor Shaikh. Defendant would sometimes talk to Shaikh about the religious lesson during the touchings.
Shaikh described a specific touching in the family room. Defendant had instructed Shaikh to perform a push-up exercise, so that Shaikh was kneeling with his chest pressed against the back of the sofa. Defendant touched Shaikh's penis.
Shaikh described another touching, in the upstairs study. Shaikh was lying face-down pursuant to defendant's instructions for another exercise. Defendant told Shaikh to move his butt up and down. Defendant sat on Shaikh's legs and rubbed his penis "in the crack" of Shaikh's butt. Shaikh tried to move away "when he was trying to penetrate," because it hurt. Defendant's penis did not go into Shaikh's anus, but it "put pressure on" the anus. Defendant tried to do the same thing the next day, but Shaikh made an excuse about having to go to the bathroom. On more than 20 other occasions, defendant rubbed his penis against Shaikh's butt but did not try to penetrate.
Shaikh wanted to tell defendant that he didn't want to do the exercises, but he "didn't have the guts to." Shaikh felt "some sort of fear inside [himself]."
On June 18, 1999, Nasi
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