P. v. Ferrell

Filed 6/18/08 P. v. Ferrell CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Norman J. Shapiro, Judge. Affirmed.

Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., Lawrence M. Daniels and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

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After a court trial, defendant was convicted of one count of sexual penetration with a foreign object (Pen. Code, 289, subd. (a)(1))[1](count 2); two counts of attempted sexual penetration with a foreign object ( 664/289, subd. (a)(1)) (counts 1 & 3); three counts of committing a lewd act upon a child ( 289, subd. (a)) (counts 4, 6, & 7); one count of committing a lewd act upon a child over 10 years younger than himself ( 288, subd. (c)(1)) (count 5); and one count of assault with intent to commit a felony ( 220) (count 8).

The trial court sentenced defendant to 24 years in state prison. The sentence consisted of the upper term of eight years on count 2; the upper term of eight years on count 4; and consecutive sentences of one-third the midterm on count 1 (one year), count 3 (one year), count 5 (eight months), count 6 (two years), count 7 (two years), and count 8 (one year four months).

Defendant appeals on the ground that his upper term sentences on counts 2 and 4 violate his rights to a jury trial and due process under the Sixth and Fourteenth Amendments.

FACTS

Because defendant appeals only his sentence, we recite the facts in the light most favorable to the judgment below. (People v. Ochoa (1993) 6 Cal.4th 1198, 1206.)

A. Counts 1 and 2 (P.)

P. was 17 years old at the time of trial. In August 2003, she joined the church where defendant was the pastor. P. attended services three times a week, and her church was an important part of her life. Defendants wife, A.F., would sometimes assist him with the services. P. believed defendant was a good spiritual leader, and she respected him.

At one time P. had told defendant that she had problems with issues of lust and other sexual matters, and they prayed after a service. After that occasion, defendant brought up P.s sexual issues on his own and asked her to stay and pray with him. On January 11, 2004, defendant asked P. to stay after church services to pray. As was customary, P. lay face down on the floor to pray in the presence of two other women. P. was partially covered with a blue cloth that was used to cover women while they prayed to avoid showing their underwear. Defendant prayed with P. and, as he did so, he laid his hand on her stomach. He then reached under her pants and underwear and placed his hands on her vagina. Defendant began rubbing P.s vagina with his finger, and P. was so shocked that she was unable to say anything.

During the prayers, defendant told P. and the other women to move to a different place in the church building because a dark force was interrupting their prayers. They settled back down and began praying again. Defendant placed his fingers inside P.s vagina while she prayed. P. was still in shock and felt confused. She tried to move to get out of the situation, but defendant told her to stop and asked two women to hold her down by the hands and legs. P. continued to pray, and she asked God for help while defendants fingers remained in her vagina. The other women did not appear to know what was happening under the cloth. Defendant stopped touching P. when he decided prayer time had ended. P. saw some people outside as she left but did not tell anyone what had happened because she was confused.

Eventually, A.F.s sister, made P. aware that allegations of wrong touching by defendant had surfaced. A.F.s sister gave P. the information about whom to contact, and P. spoke with a Detective Castillo. P. knew nothing about what had occurred to others.

B. Counts 4 and 6 (L.)

L. was 14 at the time of trial, and she lived with her mother and her sister, M.T. Defendants wife and L.s mother were sisters, and in August 2003, defendant and his wife moved in with L.s family.

In November 2003, L. was in her living room with a friend and her sister was in her mothers room. Defendant entered the living room and started tickling L. and her girlfriend. He tickled them below the waist, in the crotch area, and near the chest areaplaces where no one had ever tickled L. before. The tickling stopped when L. got up and ran into the bathroom. L. thought the tickling was weird.

In December 2003, L. was home alone with defendant. She was lying under the covers in her moms bed watching a movie. She wore pajama pants, a shirt, and underwear. Defendant entered the room wearing boxer shorts and a T-shirt. That was the first time L. had seen defendant in his boxer shorts. Defendant sat down on the bed and put his leg and his hand under the cover. Defendant put his hand on L.s crotch area outside her clothing and moved it around. L. got up and went into the bathroom because she did not know what to do. Defendant told L. not to say anything and warned that, if she did, he would do something to her mother.

In January 2004, L. told her mother that something had happened between her and defendant, and eventually L. spoke with Detective Castillo. The first time L. spoke to the detective she was afraid to talk about the incident in the bedroom, but later she did. L. was not told what had happened to other kids and she did not speak with her sister about it.

C. Count 5 (M.T.)

In August 2003, during the time that defendant and his wife were staying at the home of L.s and M.T.s family, M.T. was watching a movie in her mothers room. She fell asleep and was awakened by defendant caressing her vaginal area over her clothing. She woke up but did not move. Defendant reached over with his right hand and pinched her breast area. M.T. then got up without saying anything and left the room. When she returned to the bedroom defendant was gone. She told no one about the incident until she told her mother in January 2004. Defendant held himself out as a spiritual adviser in the family, and that was partly the reason why M.T. did not disclose what had occurred.

D. Count 3 (M.B.)

M.B. attended defendants church three times a week. Before January 2004, she believed defendant was a wonderful man. On January 11, 2004, defendant and his wife asked her to stay after the service so that defendant could pray for her. She waited over two hours while defendant prayed with P. and noticed that P. looked upset when she left. Defendant told M.B. to lie on the floor and she complied.

M.B. lay on her stomach under a cloth and defendant put his hand under her stomach and told the surrounding persons to join in prayer for issues of sexuality. M.B. had never sought defendants prayer on these issues. Defendant began groping her vaginal area and M.B. squirmed and told him to stop. Defendant told someone to hold M.B.s legs because the demons were making M.B. fight. Defendant could not get his hand under M.B.s full body girdle, and he massaged her through the girdle. M.B. was nauseated and threw up on defendant when the session was over.

E. Count 8 (K.)

K. was 24 years old at the time of trial. She met defendant in 1998 when she was 17 and defendant was the alter of the church where she served as secretary. At that time, defendant was married to a woman named C.A., who was the pastor. In 1999, defendant touched K.s breasts. Another time, he rubbed her rear end while she was playing a video game. One time he tried to touch her leg as she sat behind him in a car. He also put his tongue in her ear and grabbed her breast as she worked in the church office. That same day, he tried to grab her and force her to the floor. K. was able to get up, and defendant said he was just playing with her. In the final incident in 2000, defendant grabbed her arm and forced her down on the couch, trying to touch her private area. When a man exited a nearby restroom, defendant let her go. K. told C.A. about the incident that evening.

F. Count 7 (Z.)

Z., defendants daughter, was seven years old at the time of trial. Z. was born in 1998. She remembered that when she wore diapers, she did not like her father to change them because he touched her roughly on her private part.

In 2000, Z. and her parents lived with her maternal grandmother, Viola H. Viola H. saw defendant swipe Z.s clitoral area with his arm while changing her diaper. She made defendant leave her home.

C.A. is Z.s mother. Z. would often tell C.A. that she hurt in the area between her legs, toward the front. One day she said, My Daddy touched my tushy. C.A. confronted defendant with Viola H.s observation and defendant denied it. When C.A. had previously confronted him with K.s account, he was emotional and apologetic and did not deny the conduct. C.A. did not report defendants acts with Z. until her mother told her about the charges pending in this case.

DISCUSSION

I. Defendants Argument

Defendant contends that, since he did not admit the existence of any aggravating factors and had not previously been convicted of any crime, he was denied his right to a jury trial on the aggravating circumstances employed by the trial court to impose the upper terms. Defendant maintains that the error was not harmless beyond a reasonable doubt. According to defendant, he did not waive the issue on appeal by failing to object below, and, if so, his counsel was ineffective.

II. Proceedings Below

In imposing the sentence, the trial court explained to defendant: The way the law proceeds and judges proceed when imposing a sentence is they take the six-year term, which is the mid term, and then they look to any factors in mitigation, and they look to factors in aggravation, and then they balance those factors. The court went on to explain that one factor could outweigh several opposing factors, and the fact that defendant had no criminal record weighted heavily in mitigation. The court noted that the prosecution had named four aggravating factors: the crimes were cruel, vicious, and callous; the victims were vulnerable; defendant occupied a position of trust; and the crimes were carried out with some planning, sophistication, and professionalism. The court found that planning had definitely occurred. The court added that it did not accept defendants theory, voiced before sentencing, that the charges were the result of a conspiracy against him, and the court was confident of its sentence.

In imposing the upper term in count 2, the trial court stated, Although your attorney has set out the factors in mitigation, I believe that, in my judgment, the factors in aggravation outweigh those. . . . With regard to count 4, the court stated it would again select the high term based on the aggravating factors outweighing the mitigating factors, and that eight-year term will run in addition and consecutive to the eight-year term previously imposed.

III. Relevant Authority

In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), the United States Supreme Court held: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. In Blakely v. Washington (2004) 542 U.S. 296, 303 (Blakely), the Supreme Court explained that the relevant statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), the United States Supreme Court held that Californias determinate sentencing law, which authorizes a judge to find the facts permitting an upper term sentence by a preponderance of the evidence, violates a defendants right to trial by jury. (Cunningham, supra, 549 U.S. ___ [127 S.Ct. at pp. 860, 871].)

Cunningham vacated the judgment in People v. Black (2005) 35 Cal.4th 1238 (Black I) and remanded the case to the California Supreme Court for further consideration in light of Cunningham. In People v. Black (2007) 41 Cal.4th 799 (Black II) the court held that the existence of at least one aggravating circumstance established by means that satisfy the governing Sixth Amendment authorities renders a defendant eligible for the upper term sentence under the determinate sentencing law. (Id. at p. 812.) In a companion case filed on the same day as Black II, People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), the court further held that if no aggravating factors have been found consistent with Sixth Amendment principles (that is, found to be true by a jury beyond a reasonable doubt, admitted by the defendant or included within the recidivism exception recognized in Cunningham and Blakely), the denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18. . . . (Sandoval, supra, at p. 838.) [I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless. (Id. at p. 839.)

IV. Harmless Error

In this case, the trial court imposed the upper term based on its own factual findings regarding the aggravating circumstances, which did not involve a prior conviction or any circumstance that involved recidivism. Therefore, defendants Sixth Amendment right to a jury trial was violated. (Sandoval, supra, 41 Cal.4th at pp. 837838; see also Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. 856 at pp. 860, 871]; Black II, supra, 41 Cal.4th at p. 815.) Nevertheless, we believe that at least two of the factors in aggravation found by the trial court would necessarily have been found true beyond a reasonable doubt if submitted to a jury: the fact that the victims were particularly vulnerable, and the fact that defendant took advantage of a position of trust or confidence in committing the offense. (See Cal. Rules of Court, rules 4.421(a)(3), (a)(11).)

Although a determination as to whether the victim was particularly vulnerable or whether the defendant was in a position of trust in relation to the victim might in some cases require an imprecise quantitative or comparative evaluation of the facts we are confident that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court. (Sandoval, supra, 41 Cal.4th at p. 840.)

For purposes of finding a victim particularly vulnerable, [p]articularly . . . means in a special or unusual degree, to an extent greater than in other cases. Vulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendants criminal act. [Citation.] (People v. Loudermilk (1987) 195 Cal.App.3d 996, 1007.)

Defendant took advantage of P. and of her confidences when she was only 15 or 16 years of age. During a prayer session that was supposed to help P. with some very personal issues of a sexual nature, defendant touched her private parts, thus harming her in the very aspect of her life where she was most susceptible to injury. P. was lying prostrate when the touching began, and when she tried to escape defendants touching, defendant had P. held down by the hands and feet, rendering her unable to escape or defend herself in any way.

L. was 12 years old when defendant began touching her. Although a victims age alone is not a proper basis for a finding of vulnerability when the victims age is an element of the offense (People v. Flores (1981) 115 Cal.App.3d 924, 927), the victims age may be considered along with other factors (People v. Alvarado (2001) 87 Cal.App.4th 178, 195). In this case, L. was with her friend when defendant began a tickle fight with the girls. In the midst of her laughing and giggling, however, L. found herself being tickled in places that she had not been tickled before. She had to run to the bathroom to escape the touching, which she knew was weird. Because defendant was living in her home, L. could not escape defendant entirely, however, leaving her accessible and defenseless. (People v. Loudermilk, supra, 195 Cal.App.3d at p. 1007.) Indeed, defendant victimized L. again the following month.

Defendant was clearly in a position of trust with respect to L. both as her uncle and as a spiritual adviser in the family. L. and her sister, who was 15, were left in his care. As for P., defendant clearly occupied a position of trust as her pastor and spiritual leader. He was a person P. respected and consulted for spiritual guidance.

We conclude that under the circumstances of this case, the Cunningham error was harmless beyond a reasonable doubt.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

____________________, P. J.

BOREN

____________________, J.

DOI TODD

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[1] All further statutory references are to the Penal Code unless otherwise indicated.