Grenfell
Filed 2/22/13 P. v. Grenfell 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NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
AERON WESLEY GRENFELL,
Defendant and
Appellant.
F062487
(Super.
Ct. Nos. VCF187242 &
VCF238446)
APPEAL from
a judgment of the Superior Court
of
County. Gerald F.
Sevier, Judge.
Mark Alan
Hart, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E.
LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
In Tulare
County Superior Court case No. VCF238446, a jury convicted defendant Aeron
Wesley Grenfell of three counts of committing a lewd or lascivious act against
C.C. when she was under 14 years old (Pen. Code,
counts of committing a lewd or lascivious act against M.T. when she was under
14 years old (§ 288, subd. (a); counts 4-12); two counts of committing a
lewd or lascivious act against M.T. when she was 14 years old and at least 10
years younger than defendant (§ 288, subd. (c)(1); counts 13-14); and one
count of attempting to forcibly rape M.T. (§§ 261, subd. (a)(2), 664;
count 15). With respect to counts 1
through 7 and 9 through 11, the jury found there were multiple victims
(§ 667.61, subd. (b)); and, with respect to counts 3, 6 through 9, and 11
through 12, that defendant had substantial sexual conduct with the victim
(§ 1203.066, subd. (a)(8)). As
to counts 1 through 14, the court found defendant was previously convicted of
an enumerated sex offense (§ 667.51, subd. (a)).
As a result
of his conviction in Tulare County Superior Court case No. VCF238446,
defendant was found to have violated the terms and conditions of his probation
in Tulare County Superior
Court case No. VCF187242. In that
case, defendant pleaded no contest in 2007 to committing a lewd or lascivious
act on a child 14 years old and at least 10 years younger than him (§ 288,
subd. (c)(1)) and contributing to the delinquency of a minor (§ 272, subd.
(a)(1)). A two-year prison term was
imposed and suspended, and he was placed on five years’ probation on condition,
inter alia, that he obey all laws.
On May 12, 2011, defendant was sentenced
in both cases to an aggregate term of 18 years plus 120 years to life, and he
was ordered to pay restitution and various fees, fines, and assessments. In addition, he was prohibited from visiting any
victim under the age of 18 (§ 1202.05), and was ordered to have no contact
of any sort with the victims. He now
appeals, raising claims of trial and sentencing error.
remand for partial resentencing.
FACTS
C.C. was
born in 1996. M.T. was her cousin. Defendant had lived with M.T.’s mother since
C.C. was little.
C.C.
celebrated her 14th birthday two days early at M.T.’s house. Some of C.C.’s family and defendant were
present. C.C. shared some alcoholic
beverages at the celebration.
Eventually
that night, only defendant, C.C., and her brother remained at the
residence. C.C. went into M.T.’s room,
which was like a little apartment in back of the main house, to go to sleep. She was awakened by “really bad pain†in her
vaginal area. She opened her eyes to
find defendant on top of her with his hands on the bed by her sides. The underwear and pants she had been wearing
were down to her ankles. Defendant’s
clothes were down a bit and unbuttoned and unzipped. He was wearing boxers. Although C.C. could not see anything else
because of the boxers, he was sucking on her breasts and it felt like he was
putting his penis in her. His penis area
was directly over the location of the pain.
defendant to get out of the room. He
buttoned and zipped his pants, left the room, and went inside the house. C.C. stayed in the room for a while, then
went inside the house to use the bathroom.
She noticed “some clear stuff†on her underwear. C.C. did not tell anyone right away because
she was scared. About a week later, she
told a friend, who told C.C.’s mother.
The matter
was reported to the sheriff’s department.
Detective Gezzer and C.C.’s mother arranged to make telephone calls to
defendant on June 22 and 23, 2010, that were recorded.
In the
first call, C.C.’s mother demanded to know why defendant had told T. he would
give the mother $500 if she did not call the police.
with T. and asked if she was going to go through it again with C.C., defendant
said no and denied doing anything.
name="_ftnref6" title="">[6] Asked why he offered the money if nothing
happened, defendant said he made the offer just for “all this†to go away. Told C.C. had missed her period and asked if,
should she be pregnant, defendant was going to take care of the child,
defendant responded, “If it’s mine,†and said he would have a DNA test.
In the
second call, C.C.’s mother again demanded to know what happened. Defendant asked what C.C. had said. When the mother said C.C. reported she woke
up and defendant was there, defendant said that was what happened. C.C.’s mother said she wanted to know what
defendant had done to C.C. Defendant
said he touched her “[e]verywhere†with his hands, but he denied putting his
penis inside her. He said he touched
C.C. “[o]n the outside†with his fingers.
Asked why C.C. was complaining of being sore, defendant said he did not
know why, and that he did not know what was wrong with him and he was sick or
something. When C.C.’s mother asked why
there was ejaculate on C.C.’s underwear, defendant said maybe from his
hand. He admitted rubbing against her on
the underwear, but insisted he did not put anything in her. Defendant admitted pulling C.C.’s clothes
down seven or eight inches, but swore he only put a finger and not his penis
inside her. He thought he could have
gotten C.C. pregnant because there might have been semen on his hands. Defendant admitted C.C. was telling the truth
about being asleep when he did it.
M.T. was
born in 1989. She was five or six when
she first met defendant, who was her mother’s boyfriend and who moved in with
them. M.T. had problems with defendant
between the ages of eight and 14, and again when she was 18. During those periods, she lived in four
different residences. The first was on
Date, where she lived from age eight to age 12.
The second was on Gibbons, where she lived from the time she was 12
until just before she turned 13. Six
months to a year later, she moved to Salisbury, where she lived from age 13 to
age 17. She lived in the fourth
residence from age 17 until age 21.
M.T. was
eight the first time something happened with defendant. She would wake up in the morning and find her
shirt pulled up and her bra, which she began wearing at an early age,
undone. This happened at least once a
week. After a couple of weeks, she
started waking up when it was happening and would find defendant with his hands
on her breasts, underneath her clothing. Sometimes the touching would be over her bra
and sometimes under. Defendant would run
out of the room when she woke up. This
happened more than once a month.
A few
months later, defendant started touching M.T.’s vagina. She would wake up and find her pants and
underwear down. Defendant would rub his
fingers on her vagina, sometimes multiple times a week, sometimes once a week,
and sometimes he would skip a week. At
first, it was over her clothing. Later,
it was under her clothing. She would
wake and find her underwear to the side.
Sometimes, he would penetrate her with his fingers. He did this less often than everything else,
but more than once. Sometimes he would
masturbate. Sometimes he would have a
lighter, which he would flick so he could see.
M.T. could not remember if he ever touched her while he was touching
himself. This all occurred at the Date
home. It never stopped while she was
living there. When M.T. would wake and
find defendant doing things, she would kick him and yell at him. Most of the time, he would get up and
run. M.T. did not tell anyone at that
time.
Defendant
did not touch M.T.’s breasts very often during their time at the Gibbons home,
as they lived with M.T.’s uncle and all slept in a single open area. It happened at least once there,
however. Defendant never rubbed M.T.’s
vagina at the Gibbons home.
Defendant
touched M.T.’s breasts more than once while living at the Salisbury home. He also touched her vagina and penetrated it
more than once at that location. This
all occurred more than once at that location while M.T. was still 13 years
old. When she was still 13, he would
also use his tongue on her vagina.
Sometimes he would put his mouth over her breasts. Both occurred more than once.
When M.T.
was 14, she walked in on defendant when he was watching pornography on the
computer. She told him to “get off†of
the computer. Defendant said to her that
she looked at his penis and that she wanted him. He put her on the bed and put his mouth on
her breasts over her shirt. She hit him
and he finally got off, and she called her aunt, as her mother was gone. M.T. then told her aunt what had been
happening. Prior to this time, but while
M.T. was still 14 and living on Salisbury, defendant had touched her breasts,
and rubbed and penetrated her vagina, more than once.
stopped except for one time when M.T. was 18.
She was intoxicated, and defendant followed her into her room. She was on her bed, and he got on top of her,
pulled her pants down, and tried to put his penis inside her vagina. She kept kicking him and yelling at him to
stop, and he got off of her. She told
her boyfriend what had happened.
M.T. first
told detectives what defendant had done when she talked to Detective Gezzer in
June 2010. She did not tell detectives
before that, although she had the opportunity, because she was scared. She did not think it would make a difference. When she told her mother the first time, her
mother said they could not afford to live without defendant.
In the
summer of 2010, after she told Detective Gezzer about defendant and after the
birthday celebration, M.T. received a letter from defendant. In it, he said she did not have to testify,
because he knew he was going to prison.
He apologized for “the bullshit [he] put [her] in,†and said he would
save her the trouble of coming to court.
He said he would probably take a deal so “you guys won’t have to.†He wrote that whatever happened, M.T. should
remember that he loved her and missed her, but that he understood if she did
not want to forgive him.
DISCUSSION
I
of Information (Counts 8, 9, 11, & 12)
Defendant
contends the trial court erred by allowing the prosecution to amend counts 8,
9, 11, and 12 to change the factual bases to ones not shown by evidence
presented at the preliminary hearing. The Attorney General concedes the conviction
on count 8 must be reversed, but maintains the amendments to counts 9, 11, and
12 were proper. We agree with the Attorney
General.
A. Background
Defendant was tried on the third amended
information. Counts 8, 9, 11, and 12
thereof charged him with committing lewd or lascivious acts against M.T.,
specified as follows:
·
Count 8 — touching vagina while masturbating at
Date home (first time).
·
Count 9 — touching vagina while masturbating at
Date home (last time).
·
Count 11 — touching vagina at Gibbons home.
·
Count 12 — mouth to vagina at Gibbons home.
At the
close of the People’s case, the prosecutor asked to amend certain counts to
conform to proof. Insofar as is
pertinent, she sought to amend the information to specify the following acts:
·
Count 8 — mouth to vagina at Date home.
·
Count 9 — penetrating vagina with fingers at
Date home.
·
Count 11 — touching vagina at Salisbury
home.
·
Count 12 — mouth to vagina at Salisbury
home.
Defendant
objected to the proposed amendments on the ground there was no evidence
supporting those charges at the preliminary
hearing. The prosecutor cited
page numbers from the preliminary
hearing transcript she believed provided the requisite evidence. The trial court permitted the
amendments. The jury’s guilty verdicts
specified the acts as so amended.
B. Analysis
“‘Due
process of law requires that an accused be advised of the charges against him
in order that he may have a reasonable opportunity to prepare and present his
defense and not be taken by surprise by evidence offered at his trial.’ [Citations.]â€
(People v. Valladoli (1996) 13
Cal.4th 590, 607.) “‘It is clear that in
modern criminal prosecutions initiated by informations, the transcript of the preliminary hearing, not the
accusatory pleading, affords defendant practical notice of the criminal acts
against which he must defend.’ (Italics
[omitted].) ‘[A]n information plays a
limited but important role: It tells a
defendant what kinds of offenses he
is charged with (usually by reference to a statute violated), and it states the
number of offenses (convictions) that
can result from the prosecution. But the
time, place and circumstances of charged offenses are left to the preliminary hearing transcript; it
is the touchstone of due process notice to a defendant.’ [Citation.]â€
(People v. Butte (2004) 117
Cal.App.4th 956, 959; see People v. Jones
(1990) 51 Cal.3d 294, 315-316, 317, 318; People v. Thomas (1987) 43 Cal.3d 818, 829.)
In accord
with these principles, section 1009 provides in pertinent part: “The court in which an action is pending may
order or permit an amendment of an … information, … for any defect or insufficiency,
at any stage of the proceedings .…
An indictment or accusation cannot be amended so as to change the
offense charged, nor an information so as
to charge an offense not shown by the evidence taken at the preliminary
examination.†(Italics added.)
Subject to
section 1009, an information may be amended, even at the close of trial, where
no prejudice is shown. (
345, 361-362; People v. Pitts (1990)
223 Cal.App.3d 606, 903-904 (Pitts);
165, overruled on another ground in People
v. Posey (2004) 32 Cal.4th 193, 205, fn. 5, 215.) “‘In light of the notice function played by
the preliminary hearing transcript,
… a defendant must be prepared to defend against all offenses of the kind
alleged in the information as are shown by evidence at the preliminary hearing to have occurred within
the timeframe pleaded in the information.’â€
(People v. Luna (1988) 204
Cal.App.3d 726, 748, disapproved on another ground in People v. Jones, supra, 51 Cal.3d at p. 322.)
A trial
court’s decision to permit an information to be amended will not be disturbed
unless an abuse of discretion is shown.
(People v. Jones (1985) 164
Cal.App.3d 1173, 1178-1179; see also People
v. Flowers (1971) 14 Cal.App.3d 1017, 1020.) The test of abuse of discretion is whether
the trial court exceeded the bounds of reason, all of the circumstances being
considered. (People v. Superior Court (Alvarado) (1989) 207 Cal.App.3d 464,
477.) “[E]ven where the prosecution complies
with the necessary procedures and no specific prejudice is shown, appellate
courts are compelled to reverse convictions where substantial evidence was
presented at trial that did not correspond to the charges established at the preliminary hearing. [Citations.]â€
(People v. Graff, supra, 170
Cal.App.4th at p. 362.)
The
Attorney General concedes defendant’s conviction on count 8, as amended at the
close of the prosecution’s case, cannot stand.
Count 13 of the original and first amended informations alleged that,
between June 15, 1997, and June 14, 2003, defendant violated section 288,
subdivision (a), by orally copulating M.T.’s vagina at the Date home. In response to defendant’s motion to dismiss
various counts, including count 13, pursuant to section 995, the prosecutor
filed a second amended information that reworded count 13 to allege that,
during the same time frame and at the same location, defendant violated section
288, subdivision (a) by putting his mouth to M.T.’s vagina. The court found insufficient evidence at the preliminary hearing to support
count 13, and so dismissed it.
name="_ftnref8" title="">[8]
The third
amended information differed from the second amended information in that the
counts dismissed pursuant to section 995 were deleted and the remaining counts
renumbered. As amended at the close of
the prosecution’s case, however, count 8 alleged that, between June 15,
1997, and June 14, 2003, defendant violated section 288, subdivision (a) by
putting his mouth to M.T.’s vagina at the Date home — in short, the charge that
previously made up count 13 of the second amended information and that was
dismissed pursuant to section 995 because it was not shown by evidence at the preliminary hearing. The People not having sought review of the
ruling on the section 995 motion, either by way of appeal or by writ (see
§ 1238, subd. (a)(1); People v.
Alice (2007) 41 Cal.4th 668, 680; People
v. Superior Court (Bolden) (1989) 209 Cal.App.3d 1109, 1112), the trial
court should not have permitted them to amend the information to once again
allege the same conduct at the same location and in the same time frame. It follows that defendant’s conviction on
count 8 must be reversed and, since sentence on that count was designated the
principal term among the counts subject to determinate terms, the determinate
portion of defendant’s sentence must be vacated and the matter remanded for
resentencing. (See People v. Winters (1990) 221 Cal.App.3d 997, 1008.)
We turn now
to the other challenged counts. The preliminary hearing consisted of
Detective Gezzer’s testimony concerning his interviews with C.C. and M.T. According to the detective, M.T. related that
she lived at the Date home between the ages of eight and 12, at the Gibbons
home between the ages of 12 and 13, and at the Salisbury home between the ages
of 13 and 17.
With
respect to count 9, the issue was whether there was evidence at the preliminary hearing that defendant
penetrated M.T.’s vagina with his fingers at the Date home. At trial, the prosecutor pointed to Gezzer’s
testimony that M.T. described “at 12 years old†being the first time defendant
penetrated her vagina with his finger.
Defense counsel reiterated his argument, originally made as to count 8,
that such testimony was not proof the conduct actually happened at the Date
home, given that M.T. lived at both the Date and Gibbons homes when she was
12. The court found the preliminary hearing evidence showed M.T.
said she was 12 when a type of sexual assault began; hence, it was “within the
evidence that she was at the … Date location.â€
Defendant
now says the
the location of the act of digital penetration.
We conclude the evidence was sufficient, for purposes of section 1009’s
requirements and defendant’s due process right to notice, to establish such
conduct occurred at the Date home. That
it could also have occurred at the Gibbons home does not mean the amendment to
conform to proof should not have been allowed.
Given the state of the testimony at the preliminary hearing, defendant could not reasonably have been taken
by surprise by evidence he digitally penetrated M.T.’s vagina at the Date
home. (Pitts, supra, 223 Cal.App.3d at p. 906; see
p. 317.)
With
respect to count 11, the issue was whether there was evidence at the preliminary hearing that defendant
touched M.T.’s vagina at the Salisbury home.
At trial, the prosecutor pointed to testimony M.T. lived on Salisbury
between the ages of 13 and 17, as well as evidence the prosecutor interpreted
as relating to the touching of M.T.’s vagina at that location. With respect to count 12, the issue was
whether there was evidence at the preliminary
hearing that defendant put his mouth to M.T.’s vagina at the Salisbury
home. The prosecutor again pointed to
the testimony concerning when M.T. lived on Salisbury, and to testimony
defendant began performing oral sex on her when she was 12 years old.
The
pertinent portion of the preliminary
hearing evidence is as follows:
“Q. [by the prosecutor] Okay.
Did she describe anything else happening when she was about nine years
old?
“A. [by Detective Gezzer] Yeah.
She said at nine years old, he began touching her with his hands in her
vaginal area.
“Q. And was -- was she also waking up during the
assaults or --
“A. Each and every one of these assaults until
she was late in her teens occurred while she was sleeping, so all of ‘em were
happening as she was waking up.
“Q. Okay.
Did he -- did she mention him ever touching her breasts at that point?
“A. She did.
She said that she would often wake up with him touching her breasts and
her vaginal area .…
“Q. Did she say if he would do anything else
while he was touching her vagina?
“A. She did.
She said he often masturbated while he was touching her.
“Q. And how often did she describe these assaults
taking place?
“A. Again, a few times per week for the longevity
for the time that she lived there.
“Q. Did she describe at any age any additional
acts occurring?
“A. She did.
She said that continued on till she was about 12 years old, and at 12
years old was -- she described that being the first time that he actually
digitally penetrated her with his finger in her vaginal area.
“Q. And were there any other acts that also began
occurring when she was 12 years old?
“A. He would do the same thing, fondle her
breasts, kiss her breasts, kiss her neck.
“Q. And how often did these acts occur?
“A. She described it again often, few times per
week, but she did say there was a span of every once in a while several weeks
would go by that nothing would happen and then the assaults would start again.
“Q. Okay.
And did you ever ask her about oral sex?
“A. Yeah, she said when she was 12 years old, he
also began performing oral sex on her.
“Q. Did she describe anything else happening or
changing in this routine as she got older?
“A. She said that up until she was 14 years old,
all the assaults were occurring while she was sleeping, and she would wake up
to these assaults. [¶] At 14 years old, there was a change in
behavior. She said she -- this was the
first time that he had attempted to assault her while she was already
awake.â€
We believe
the preliminary hearing
evidence may reasonably be read as showing defendant started out by fondling
M.T.’s breasts, then he gradually added acts to his repertoire. Just because he began committing another kind
of act, however, did not mean he stopped performing the acts he was already
committing. Accordingly, we conclude the
trial court did not abuse its discretion, or violate defendant’s due process
rights, by permitting the prosecution to amend counts 11 and 12 to conform to
proof.
which seven defendants were charged with multiple sex offenses against multiple
children. Three separate preliminary hearings were held at which the
same child was the only witness called by the prosecution to testify concerning
the charged offenses. Three separate
informations were filed, two of which were amended shortly before trial. At the close of the People’s evidence, the
prosecution was permitted to make amendments to conform to proof and to state
elections. (Id. at pp. 893-901.)
On appeal,
the defendants claimed certain of the counts upon which they were convicted
were not shown by evidence taken at the preliminary hearing. We
agreed, explaining:
“… It
is true that an information need not
notify a defendant of all the particulars of the crime charged. That
role is left to the preliminary hearing transcript. Where … the particulars are
defendant is not on notice in such a
way that he has the opportunity to prepare a meaningful defense.…
“A
hypothetical is in order. Suppose the
evidence at a preliminary hearing
revealed the commission of four distinct violations of section 288, say two
oral copulations and two lewd touchings, involving victim X and occurring over
a four-month period in defendant’s bedroom.
X, being a child, could not pinpoint the times of the offenses except to
say that one set occurred near Christmas and the other following a school
athletic event. Suppose further that the
information charged in statutory language only two violations occurring within
the four-month time frame. Further
assume that the evidence at trial revealed the same acts occurring within the
same time frame inside defendant’s home.
“Absent
unusual circumstances, an amendment at trial to charge the remaining two
violations would not violate due process, because the defendant was on notice
from the preliminary hearing
as to what charges he might potentially have to be prepared to defend against
at trial. In such a situation, the
defendant would not be prejudiced by a variance in time or place, so long as
the evidence showed the offenses were committed within the original four-month
period and somewhere in the house.[
notice as to all possible charges; under normal circumstances, his opportunity
to prepare an effective defense would not be affected merely because the
evidence at trial showed the offenses occurred at a different time (within the
time frame alleged in the original information) or a different room of the
house. Even in alibi cases, neither the
time [citation] nor the place at which an offense is committed [citations] is
material, and an immaterial variance will be disregarded [citation].
“If the
defendant is misled in making his defense, however, the variance
Suppose, in the foregoing hypothetical, the evidence at trial showed two
acts of sodomy and two of sexual intercourse and the information was amended accordingly. In such a situation, the preliminary hearing transcript would
of the specific acts against which he might have to defend. Moreover, in such a situation the opportunity
to prepare a meaningful defense would obviously be adversely affected, since
the change in alleged acts would affect medical testimony, cross-examination of
the alleged victim(s), etc. If the
amendments were not specified until the close of the People’s case and the
defendant were given no continuance to meet them, the problem would be even
greater.
“To say
that due process would not be violated in the second situation because the
defendant knew to defend against four violations of section 288 within a
certain time frame is to ignore the reality of the situation.… [¶] … [¶]
“This
is not to say that all particulars of an offense are material. Under the circumstances of the instant case,
it does not appear due process was violated where the evidence at the preliminary hearing showed a specific
act occurring on one occasion (for instance, the ‘last time’), whereas the
evidence at trial placed the act on another occasion (for example, the ‘time
after the track meet time’). Nor is it
material that evidence at the preliminary
hearings placed all molestations in Rick and Tutti’s room, whereas some
were shown at trial to have occurred in Carol and Lisa’s room. Although defendants attempted to show that
Rick and Tutti’s room was too small to house an orgy of the size testified to
by the children, it would not have been difficult for them to obtain the
dimensions of the girls’ room in order to attempt to show it was equally as
unlikely a location. In fact, there was
some testimony as to the size of the girls’ room.
“In
some counts as charged in the [final versions of the] information[] …, however,
the specific act and/or actors changed from previous amendments, and/or the
specific act involving specific actors was not shown by evidence adduced at a
particular preliminary hearing. [The Attorney General] essentially argues
defendants were on notice to defend against any and all lewd acts involving any
child shown by preliminary hearing
evidence to have been present during the molestations. To hold such variances are immaterial,
however, would be to hold that due process is satisfied as long as the preliminary hearing evidence shows
five violations of a statute and the evidence at trial shows the same number of
violations of the same statute, regardless of the particulars. Such a holding would basically do away with
use of the preliminary hearing
transcript as a means for giving fair notice. This is not the law; a preliminary hearing transcript affording
notice of the time, place and circumstances of charged offenses ‘“is the
touchstone of due process notice to a defendant.â€â€™ [Citation.]â€
(Pitts, supra, 223 Cal.App.3d
at pp. 905-908, fns. omitted.)
In the
present case, the evidence adduced at the preliminary hearing placed defendant on notice that, while specific
acts may first have been committed at a particular location, those acts
continued at least until M.T. was 14 years old.
Thus, the situation is much closer to the first hypothetical set out in
suggest defendant was misled in preparing and presenting his defense, or that
the location at which any particular act occurred was material under the
circumstances. (See People v. Peyton (2009) 176 Cal.App.4th 642, 659-660.) Accordingly, defendant’s claim fails.
II
Convictions (Counts 1 & 3)
Defendant
contends his conviction on either count 1 or count 3 must be reversed, as the
conduct at issue in count 1 was part of the commission of count 3. Because the jury was not required to so
interpret the evidence, we conclude both convictions may stand.
A. Background
At the
close of the People’s case, defendant moved to dismiss (§ 1118.1) count 1,
which, as amended to conform to proof, charged defendant with violating section
288, subdivision (a) by pulling down C.C.’s underwear. Defendant argued the pulling down underwear
charged in count 1 was a necessary step to the touching penis to vagina charged
in count 3 as a separate violation of section 288, subdivision (a); hence, the
same crime was being charged different ways.
The prosecutor took the position the acts were separate: “[Defendant] did not necessarily need to pull
it down in order to touch his penis to her vagina. He could have done it over her clothes. He could have done it over the
underwear. He could have pulled the
underwear to the side…. [T]here was
evidence that [C.C.] said she woke up and her underwear were [
In her
summation, the prosecutor reminded jurors C.C. testified she woke up and
defendant was on top of her; she had extreme pain in her vaginal area; her
pants and underwear were pulled down; defendant’s pants were unzipped and his
penis area was over C.C.’s vaginal area; and C.C. recalled defendant sucking on
her breasts. The prosecutor further
reminded jurors that in the pretext telephone calls, defendant tried to say he
rubbed on C.C.’s underwear, but he also admitted her underwear was pulled
down. The prosecutor said nothing about
one act being the means to another.
At
sentencing, however, a dispute arose over whether the counts involving C.C.
could be sentenced concurrently or consecutively, or whether one or more had to
be stayed pursuant to section 654. This
exchange took place:
“THE
COURT: [Prosecutor], do you agree with
probation’s recommendation that Count 2 and Count 3 have to be concurrent by
statute, by, I assume, Penal Code Section 654?
“[PROSECUTOR]: … I believe that in terms of Count 3, it was
an act that stemmed -- resulting from the pulling down underwear. [¶]
Count 2 I would say is a separate act. It was -- occurred at the same time, but I
still believe the court has discretion to run that consecutively. That was sucking on breasts. That was a separate act. It did not occur directly because he pulled
down the underwear. [¶] … [¶]
“THE
COURT: I see. I see, one uninterrupted course of
conduct. Actually, I think probation --
probation is correct, I cannot run those consecutive. They must be concurrent, all right.â€
B. Analysis
“An
accusatory pleading may charge … different statements of the same offense …
under separate counts …. The
prosecution is not required to elect between the different offenses or counts
…, but the defendant may be convicted of any number of the offenses
charged ….†(§ 954.) Nevertheless, it is impermissible to fragment
a single criminal act into multiple offenses.
Where such proliferation occurs, the conviction for the duplicate crime
must fall. (People v. Bevan (1989) 208 Cal.App.3d 393, 399, disapproved on
another ground in People v. Scott
(1994) 9 Cal.4th 331, 347-348 (Scott).)
Section 288
applies to any sexually motivated
touching of a child under the specified age.
(People v. Martinez (1995) 11
Cal.4th 434, 444, 451 (Martinez).) Thus, “a lewd or lascivious act can occur
through the victim’s clothing and can involve ‘any part’ of the victim’s
body. [Citations.]†(Id.
at p. 444.) Moreover, unless one
offense is necessarily included in another, multiple convictions can be based
on a single criminal act. Thus, for
instance, a defendant may be convicted of (although not punished for) both rape
or sodomy and lewd and lascivious conduct on a child under 14, where there is
no evidence of lewd conduct independent of the evidence supporting the rape and
sodomy convictions. (
959, 1018.)
Here, we
deal not with one count charging lewd or lascivious conduct and one count
charging a “defined†crime such as rape, sodomy, or oral copulation, but two
counts charging lewd or lascivious conduct.
Even so, the California Supreme Court has made clear that “[e]ach
individual act that meets the requirements of section 288 can result in a ‘new
and separate’ statutory violation.
[Citation.]†(
after Harrison have “tend[ed] to
focus on evidence showing that the defendant independently sought sexual
gratification each time he committed an unlawful act. [Citations.]â€
(Scott, supra, at pp. 347-348, fn. 9.)
Both before
and after Harrison was decided, cases
held that section 654 precluded punishment for more than one sex offense if the
first was merely part of or incidental to the second, or the means by which the
second was accomplished. (E.g.,
People v. Bright (1991) 227
Cal.App.3d 105, 110; People v. Blevins
(1984) 158 Cal.App.3d 64, 71-72.) Some
courts have extended this analysis to the question whether multiple convictions
are permissible. (E.g.,
450, 456; People v. Bright,
pp. 109-110.)
name="_ftnref12" title="">[12]
We need not
decide whether, under cases such as Harrison,
Scott, and Martinez, multiple convictions are now permitted even if one
offense was incidental to another or the means by which another was
accomplished (see Martinez,
fn. 14; People v. Tompkins (2010) 185
Cal.App.4th 1253, 1262), since we conclude defendant was properly convicted of
both count 1 and count 3 in any event.
Although the prosecutor argued at sentencing that the conduct forming
the basis for count 3 resulted from the conduct that formed the basis for
count 1, the issue being addressed was whether section 654 applied, not whether
multiple convictions were proper.
name="_ftnref13" title="">[13] “While jurisprudential considerations of
double conviction and double punishment are similar, the former is concerned
more with identity of offenses as distinguished from identity of transactions
from which they arise.†(
959, 969.)
The question
before us, by contrast, is whether there was evidence from which the jury could
have concluded defendant’s pulling down C.C.’s underwear was
to her vagina. We believe there was,
especially when the fact C.C. awoke to find the assault already in progress is
considered in conjunction with what defendant told C.C.’s mother during the
pretext telephone calls and the other evidence adduced at trial. Although defendant’s pulling down C.C.’s
underwear may ultimately have led to his touching her vagina with his penis,
jurors reasonably could have found defendant sought sexual gratification by the
act of pulling down the underwear itself, perhaps so he could see C.C.’s
genitals, and that his conduct subsequently progressed to the distinct act of
touching his penis to her vagina. (See
999, 1006-1007.) Given the state of the
evidence before the jury, we are not bound by the prosecutor’s analysis at
sentencing any more than the jury would have been bound by it had she presented
it during her summation at trial. (See
1126; People v. Hiscox (2006) 136
Cal.App.4th 253, 260-261.)
III
Order
As part of
the sentence in both cases, the trial court prohibited defendant from having
visitation with any child victims under the age of 18, pursuant to section
1202.05. The court further ordered that
defendant have no further contact with the victims in this case, whether in
person, in writing, by telephone, or by Internet.
Defendant
concedes the court could properly prohibit visitation with any victim under the
age of 18, but he says the court lacked authority to issue the broader
no-contact order. The Attorney General
agrees, as do we.
name="_ftnref14" title="">[14]
Subdivision
(a) of section 1202.05 provides, in pertinent part: “Whenever a person is sentenced to the state
prison … for violating Section … 288, … and the victim of … [the] offense[] is
a child under the age of 18 years, the court shall prohibit all visitation
between the defendant and the child victim.â€
Where, as here, the defendant is sentenced to prison, the trial court is
without authority to prohibit visitation with an adult victim or to issue a no-contact
order. (People v. Scott (2012) 203 Cal.App.4th 1303, 1307, 1324-1326; see
also People v. Robertson (2012) 208
Cal.App.4th 965, 996.)
DISPOSITION
In Tulare
County Superior Court case No. VCF187242, the no-contact order is
stricken. In all other respects, the
judgment is affirmed.
In Tulare
County Superior Court case No. VCF238446, the conviction on count 8 is
reversed and the no-contact order is stricken.
The determinate portion of the sentence is vacated and the matter is
remanded to the trial court with directions to resentence defendant
accordingly. In all other respects,
including the indeterminate portion of the sentence, the judgment is affirmed.
_____________________
DETJEN,
J.
WE CONCUR:
_____________________
CORNELL, Acting P.J.
_____________________
GOMES, J.
name="_ftn1" title="">[1] All
statutory references are to the Penal Code unless otherwise stated.
name="_ftn2" title="">[2] Although
defendant appealed in both cases, none of his claims arise from case
No. VCF187242. As a result, we do
not discuss that case further except in our disposition.
