P. v. Clews
Filed 10/4/07 P. v. Clews CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. REGINALD CLEWS, Defendant and Appellant. | D049711 (Super. Ct. No. SCN184062) |
APPEAL from a judgment of the Superior Court of San Diego County, John S. Einhorn, Judge. Affirmed.
Reginald Clews entered negotiated guilty pleas to 18 counts of lewd and lascivious conduct with a minor under the age of 14 years. (Pen. Code,[1] 288, subd. (a).) He admitted substantial sexual conduct in counts 1 through 15. ( 1203.066, subd. (a)(8).) The court sentenced him to ten years in prison; the six-year middle term for count 1 with consecutive two-year terms (one-third the middle term) on counts 2 and 3. It imposed concurrent terms on the remaining 15 counts. Clews appeals, contending the trial court abused its discretion in imposing consecutive sentences in counts 2 and 3.
FACTUAL AND PROCEDURAL BACKROUND
Between August 24, 2000, and June 1, 2001, appellant engaged in a consensual sexual relationship with a girl under the age of 14.
The relationship between appellant and the victim began as a result of a June 2000 tour of Italy taken by the Hutchins Consort, a musical group run by the victim's father. Appellant, a member of the musical group, spent a substantial amount of time with the victim, who was traveling with the group. It was during the tour that the victim developed feelings for appellant and, eventually, confided in him that she loved him. Appellant responded that the feeling was mutual but "took a negative response that it was bad."
On August 24, two days before the victim's 13th birthday, she was invited by appellant to stay with him in his Los Angeles apartment as part of a weekend trip to Six Flags. That night, the victim awoke to find appellant staring at her. The victim stated appellant then rolled on top of her and they had sexual intercourse for the first time. After the initial encounter, appellant and the victim engaged in a 10-month consensual sexual relationship that took place in appellant's Encinitas home and in his vehicle.
On March 21, 2004, the San Diego Sheriff's Department was contacted to investigate a possible lewd act on a minor in Encinitas. The investigating deputy took the victim's statement and contacted the victim's father who told the deputy that he suspected appellant and the victim had been involved for some time but she had "only recently admitted to the situation." On July 20, 2004, the victim's father placed a controlled telephone call to appellant which was recorded by the sheriff's department. During this call, appellant admitted having sexual intercourse with the victim. On September 12, 2004, appellant was arrested.
The district attorney filed an information against appellant, alleging he was guilty of 18 counts of lewd act with a child and also that appellant had substantial sexual conduct with a child under the age of 14 in the commission of counts 1 through 15.
On June 12, 2006, appellant pled guilty to all 18 counts of lewd acts on a child as well as admitted he had substantial sexual conduct with a child under 14. Appellant's plea was part of a plea agreement in which the court agreed to impose no less than six years and no more than fifteen years in prison.
Following the plea, the trial court sentenced appellant to ten years in prison, selecting count 1 as the base term and imposing the middle term of six years. The court imposed a sentence of two years (one-third the middle term) for the second and third counts to run consecutively to count 1. Counts 4 through 18 were imposed as six-year terms to run concurrently with count 1.
DISCUSSION
A trial court has broad discretion to decide if a sentence should be imposed consecutively or concurrently. (People v. Bradford (1976)17 Cal.3d 8, 20.) Absent a clear showing of abuse, the court's discretion is not to be disturbed. (Ibid.; People v. Giminez (1975) 14 Cal.3d. 68, 72.) Abuse of discretion occurs "whenever the court exceeds the bounds of reason, all of the circumstances being considered." (People v. Giminez, supra, 14 Cal.3d. at p. 72.) Appellant contends the trial court did not give proper consideration to factors in mitigation when handing down its consecutive sentence.
Our Supreme Court recently addressed the conditions under which a consecutive sentence can be imposed. In People v. Black (2007) 41 Cal.4th 799, 822, the court stated: "In deciding whether to impose consecutive terms, the trial court may consider aggravating and mitigating factors, but there is no requirement that, in order to justify the imposition of consecutive terms, the court find that an aggravating circumstance exists. [Citations.] Factual findings are not required. In imposing an upper term, the court must set forth on the record 'facts and reasons' [citation], including the 'ultimate facts that the court deemed to be circumstances in aggravation.' [Citation.] But it need only cite 'reasons' for other sentencing choices [citation], and the reasons given for imposing a consecutive sentence need only refer to the 'primary factor or factors' that support the decision to impose such a sentence [citations]."
In determining whether a consecutive sentence should be imposed, the trial court may consider whether the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. (Cal. Rules of Court, rule 4.42.5(a)(3).) During sentencing the court noted that the reason for counts 2 and 3 to run consecutively was that appellant committed the lewd acts "on numerous occasions at various locations." The court further noted the reason the sentences in the remaining counts (4-18) were to run concurrently was because of the factors in mitigation.
The trial court did not abuse its sentencing discretion.
DISPOSITION
The judgment is affirmed.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
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[1] All further statutory references are to the Penal Code unless otherwise specified.
