P. v. Kruse
Filed 12/6/13 P. v. Kruse CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
>
THE PEOPLE, Plaintiff and Respondent, v. RICHARD FREDERICK KRUSE, Defendant and Appellant. | A135642 (Mendocino County Super. Ct. No. SCUKCRCR 10-15372) |
A
jury convicted defendant Richard Kruse of committing a forcible lewd or
lascivious act upon a child under the age of 14 years. (Pen. Code, § 288,
subd. (b)(1).)
title="">[1] The trial court sentenced
him to a prison term of ten years. Defendant appeals upon contentions that (1)
evidence of uncharged lewd acts with another child was wrongly admitted; (2)
the trial court failed in its duty to instruct the jury on the lesser included
offense of a non-forcible lewd act; (3) there is insufficient evidence that
force was used; (4) the court erred in its admission and consideration of certain
information during sentencing; and (5) the court failed to provide defendant
with a hearing on his ability to pay before ordering him to pay $5,000 for
legal assistance he received from the public defender.
We
conclude that evidence of uncharged prior lewd acts was properly admitted but that
the trial court erred in failing to instruct the jury on the lesser included
offense of a non-forcible lewd act. We also
find insufficient evidence that
defendant used force, violence, duress, menace or fear in committing the act. There
was no error in the court’s consideration of certain information at sentencing
and we conclude that defendant forfeited his claim that legal costs were
imposed upon him without a determination of his ability to pay. We shall modify
the judgment to reduce the conviction from commission of a forcible lewd act to
commission of a non-forcible lewd act and remand for resentencing.
|
Statement of
Facts
In
2008, defendant was a married, 65-year-old man who babysat two girls for a few
hours after school and on occasional sleep-overs. Defendant began babysitting J.H.
she was six years old. In May 2008, the police investigated a child protective
services report of possible child sexual abuse of J.H., who was then seven years
old.
J.H.
had previously reported molestation in 2005 when she was five years old, before
having contact with defendant. At that time, J.H. identified her maternal
grandfather as a molester and described the molestation in detail to a social
worker. The incident was investigated but never prosecuted. In May 2008, the
same social worker interviewed J.H. about possible sexual abuse. J.H. told the
social worker that defendant touched her chest, buttocks, and vagina area.
The
police twice interviewed defendant in July 2008. Defendant said J.H. was
“definitely being molested†but not by him. Defendant described J.H. as “a very
sexual little girl†and described instances in which she exposed herself to him
and once placed his hand on her crotch, over her underwear. Defendant said J.H.
asked him to “French kiss†her and invited him to masturbate in front of her,
but he told her “absolutely not.†Defendant proceeded to admit “inappropriate
behavior†with J.H., but denied it was sexual. Defendant said he rubbed her arms,
legs, back, abdomen and chest “skin to skin†at her request. Defendant also
once rubbed her buttocks, over her underwear. Defendant understood one should
not touch “somebody else’s minor child†but insisted he touched J.H. because
she liked it and it comforted her. Defendant described the rubbing as “a loving
comfort thing†for J.H. Defendant said neither he nor J.H. were “aroused
sexually†by the activity.
In
November 2010, a complaint was filed charging defendant with committing a forcible
lewd or lascivious act upon a child (§ 288, subd. (b)(1)) between August
1, 2007 and May 30, 2008. Defendant was also charged with oral copulation or
sexual penetration of a child (§ 288.7, subd. (b)) during the same time
period.
J.H.
was 11 years old at the time of trial in March 2012. J.H. testified that
defendant babysat her after school when she was seven years old. J.H. said
defendant touched her legs, chest and vagina with his hand, sometimes over her
clothes and sometimes reaching under her clothes. J.H. testified that defendant
put his finger inside her vagina. She said another child, her friend S.N., was
sometimes present when defendant touched J.H.’s vagina and that defendant did
the same thing to S.N. J.H. testified that she asked defendant not to touch her
but he did anyway. J.H. said that when defendant was touching her vagina he
said, “If I told anybody, he would hurt me.†On cross-examination, J.H. said
she did not remember ever talking to the social worker about her grandfather
doing “the same thing†to her.
A
40-year-old woman testified that defendant molested her when she was a child. The
woman, Sara P., said defendant was a family friend who babysat her when she was
six years old. She said defendant touched her vagina with his hand, reaching
under her clothes. Sara testified that defendant also masturbated in front of
her. Sara said defendant once cut her hair and held it as a keepsake. Sara
testified she was afraid to tell anyone about the molestation until she was an
adult. In 1992 or 1993, when she was in her early twenties, she told her mother
and also confronted defendant. Sara said defendant denied molesting her and
told her things happened to her “at home†and that she was “a very sexual
child.†Sara did not report defendant’s sexual abuse to the police until 2010.
A
police officer testified that he searched defendant’s home in 2008, following
J.H.’s accusation of child molestation. The police found a lock of hair. The
police asked defendant about it. Defendant said the hair belonged to his
granddaughter Katie
title="">[3] and was kept for
“sentimental reasons.†Defendant said J.H. gave him a lock of her hair but “[i]t
got thrown away.†Defendant was interviewed by the police in 2010 and, this
time, said the hair found in his house belonged to J.H. and was given to him by
her. The police asked defendant about Sara and defendant said she was molested
but not by him. The officer testified that he also spoke with Sara’s mother and
confirmed that Sara, when a young adult, had told the mother about defendant’s
sexual abuse. Defendant’s videotaped interviews with the police in 2008,
summarized above, were played for the jury.
Defendant
did not testify. The defense presented the testimony of several witnesses,
including S.N., whom J.H. said witnessed her molestation and was herself a
victim. S.N. was 12 years old at the time of trial. She testified that
defendant babysat her and her friend J.H. when the girls were in the second
grade. S.N. said she understood the difference between “good touching and bad
touching.†S.N. defined a “bad touch†as touching in a “place where you would
be covered by underwear or a bathing suit.†S.N. said she never saw defendant “do
a bad touch†to J.H. About herself, S.N. testified defendant never touched her
“in a private place.â€
1.
Evidence of prior sexual offenses was properly admitted.
Sara’s
testimony that defendant molested her 34 years earlier, when she was six years old,
was admitted under Evidence Code section 1108, subdivision (a): “In a criminal
action in which the defendant is accused of a sexual offense, evidence of the
defendant’s commission of another sexual offense or offenses is not made
inadmissible by Section 1101 [prohibiting the use of prior acts to prove
criminal disposition], if the evidence is not inadmissible pursuant to Section
352 [as more prejudicial than probative].â€
A.
No due process violation
Defendant
asserts that “admission of character evidence to prove criminal disposition
under Evidence Code section 1108 violates Due Process.†Defendant raises the claim
to preserve it for federal review; he acknowledges that the California Supreme
Court has rejected the claim. In People
v. Falsetta (1999) 21 Cal.4th 903, 917, the Court held that a “trial
court’s discretion to exclude propensity evidence under [Evidence Code] section
352 saves [Evidence Code] section 1108 from defendant’s due process challenge.â€
That determination is binding upon us. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
B. No
ex post facto violation
Defendant
asserts that evidence of sexual offenses committed 20 years before Evidence
Code section 1108 was enacted in 1995 violates the constitutional prohibition
against ex post facto laws. (Stats. 1995, ch. 439, § 2.) The ex post facto
clause does not apply to the rule of evidence established by Evidence Code section
1108.
“No
State shall . . . pass any Bill of Attainder, ex post facto
Law, or Law impairing the Obligation of Contracts . . . â€
(U.S. Const., art. 1, § 10, cl. 1.) The proscription against ex post
facto laws has long been held to apply to four categories: “ ‘1st. Every law
that makes an action done before the passing of the law, and which was innocent
when done, criminal; and punishes such action. 2d. Every law that aggravates a
crime, or makes it greater than it was, when committed. 3d. Every law that
changes the punishment, and inflicts a greater punishment, than the law annexed
to the crime, when committed. 4th. Every law that alters the legal rules of
evidence, and receives less, or different, testimony, than the law required at
the time of the commission of the offence, in order to convict the offender.’ â€
(Carmell v. Texas (2000) 529 U.S.
513, 522 (Carmell), quoting
italics omitted.)
Defendant
maintains that Evidence Code section 1108 fits within this last category. We
disagree. The United States Supreme Court has explained that not “every rule
that has an effect on whether a defendant can be convicted implicates the
evidence . . . do not violate the Clause.†(Carmell,
supra, 529 U.S. at p. 533, fn. 23.) Only laws that “lower the
burden of proof and laws that reduce the quantum of evidence necessary to meet
that burden†implicate ex post facto concerns. (Id. at p. 541.) Laws that “relate to modes of procedure only†without
altering the degree or amount of proof necessary to convict may be applied
retrospectively. (Id. at
p. 544.)
The
Supreme Court has upheld retrospective application of a rule permitting
testimony by convicted felons (Hopt v.
Utah (1884) 110 U.S. 574) and a rule permitting the introduction of expert
handwriting testimony (Thompson v.
Missouri (1898) 171 U.S. 380). As the Court recently explained, changes to
rules on witness competency and evidence admissibility are outside the scope of
the ex post facto clause provided the rules leave untouched the amount or
degree of proof essential to conviction. (Carmell,
supra, 529 U.S. at pp. 1638-1640.) In Carmell, the court held that a law permitting conviction for child
sexual abuse upon the victim’s testimony alone, without corroboration as
previously required, changed the quantum of evidence necessary to sustain a
conviction and, thus, its retrospective application violated the ex post facto
prohibition. (Id. at pp. 516,
530.)
Evidence
Code section 1108 does not violate the proscription against the ex post facto application
of laws because it does not authorize a conviction on less evidence than
required when defendant’s conduct occurred. The statute enlarges the class of
admissible evidence; it does not alter the degree or amount of proof necessary
to convict. The Ninth Circuit Court of Appeals has affirmed the
constitutionality of Evidence Code section 1108 against a challenge under the
ex post facto clause. (Schroeder v.
Tilton (9th Cir. 2007) 493 F.3d 1083, 1086-1088 (Schroeder).) The court held that a California trial court that
admitted evidence of prior sex offenses in a child molestation case, and the
appellate court that affirmed the judgment of conviction, “did not err in
concluding that [Evidence Code section] 1108 is an ‘ordinary’ rule of evidence
that does not violate the Ex Post Facto Clause.†(Id. at p. 1088.)
California
cases are in accord. People v. Flores (2009)
176 Cal.App.4th 1171, 1176-1181, held that a comparable provision, Evidence
Code section 1109 permitting evidence of prior domestic violence, does not violate
the ex post facto clause and, in doing
so, approved the reasoning of Schroeder.
Our Supreme Court, while not directly addressing the issue, has suggested that
the admission of sexual offenses occurring before Evidence Code section 1108’s
effective date would not constitute an ex post facto violation. (
603, fn. 6.) We conclude that the admission of evidence of sexual offenses
committed before Evidence Code section 1108 was enacted does not violate the
post facto laws.
C. No
abuse of discretion
Defendant
contends the trial court abused its discretion in admitting Sara’s testimony of
uncharged sexual offenses. As noted above, Evidence Code section 352 “gives the
trial court discretion to exclude evidence if its probative value is
substantially outweighed by the probability that its admission will necessitate
undue time consumption or create substantial danger of undue prejudice,
confusing the issues, or misleading the jury. In exercising this discretion as
to a sexual offense, ‘trial judges must consider such factors as its nature,
relevance, and possible remoteness, the degree of certainty of its commission
and the likelihood of confusing, misleading, or distracting the jurors from
their main inquiry, its similarity to the charged offense, its likely
prejudicial impact on the jurors, the burden on the defendant in defending
against the uncharged offense, and the availability of less prejudicial
alternatives to its outright admission, such as admitting some but not all of
the defendant’s other sex offenses, or excluding irrelevant though inflammatory
details surrounding the offense.’ [Citation.] The court’s ruling under section
1108 is subject to review for abuse of discretion.†(People v. Loy (2011) 52 Cal.4th 46, 61.)
We
agree with defendant that the prior offense was remote in time; it occurred
about 34 years before trial. But “[n]o specific time limits have been
established for determining when an uncharged offense is so remote as to be
inadmissible.†(People v. Branch (2001)
91 Cal.App.4th 274, 284.) As this court has observed, “[r]emoteness of prior
offenses relates to ‘the question of predisposition to commit the charged
sexual offenses.’ [Citation.] In theory, a substantial gap between the prior
offenses and the charged offenses means that it is less likely that the
defendant had the propensity to commit the charged offenses. However, . . . significant
similarities between the prior and the charged offenses may ‘balance[] out the
remoteness.’ [Citation.] Put differently, if the prior offenses are very
similar in nature to the charged offenses, the prior offenses have greater
probative value in proving propensity to commit the charged offenses.†(
sexual offense committed 30 years before the current offense was held admissible
where the two offenses were substantially similar. (Id. at pp. 284-285; accord People
v. Pierce (2002) 104 Cal.App.4th 893, 900 [prior 23-year-old rape
conviction properly admitted where substantially similar to charged offense].)
There
is a striking similarity between the prior and current offenses. In each
instance, it was alleged that defendant abused his position of trust as a
babysitter to young girls by reaching his hand under the girls’ clothes and
rubbing their vaginas. There was also evidence that, in each instance,
defendant possessed a lock of hair as a keepsake. The substantial similarities
between the prior and current offenses balance out the remoteness of the prior
offense.
Defendant
maintains there is a low degree of certainty that the prior offense was
committed, noting that Sara did not report molestation to the police until
2010, after J.H. had accused him. Defendant’s suggestion that Sara’s allegation
was a recent fabrication is refuted by evidence that Sara told her mother about
the molestation and confronted defendant on the matter many years earlier,
before J.H. was born. Defendant asserts we have only Sara’s testimony to prove
this prior disclosure but that is incorrect. Detective Porter testified that he
spoke with Sara’s mother and the mother confirmed that Sara told her about
defendant’s sexual abuse and defendant admitted to the police that Sara
confronted him with charges of molestation. The trial court did not abuse its
discretion in admitting Sara’s testimony.
2. The trial court erred in failing to
instruct the jury on the lesser included offense of a non-forcible lewd act.
Defendant
contends the trial court failed in its duty to instruct the jury on the lesser
included offense of a non-forcible lewd act. We agree.
“
‘ “It is settled that in criminal cases, even in the absence of a request, the
trial court must instruct on the general principles of law relevant to the
issues raised by the evidence.†’ †(People
v. Breverman (1998) 19 Cal.4th 142, 154.) That obligation includes “ ‘giving instructions on lesser included
offenses when the evidence raises a question as to whether all of the elements
of the charged offense were present’ †and there is substantial evidence to
support the lesser included offense. (Ibid.)
“[T]he rule protects both the defendant and the prosecution against a verdict
contrary to the evidence, regardless of the parties’ own perceptions of their
strongest lines of attack or defense. The rule’s purpose is not simply to
guarantee some plausible third choice between conviction of the charged offense
or acquittal, but to assure, in the interest of justice, the most accurate
possible verdict encompassed by the charge and supported by the evidence.†(
“Under
California law, a lesser offense is necessarily included in a greater offense
if either the statutory elements of the greater offense, or the facts actually
alleged in the accusatory pleading, include all the elements of the lesser
offense, such that the greater cannot be committed without also committing the
lesser.†(People v. Birks (1998) 19
Cal.4th 108, 117.) A forcible lewd act is statutorily defined as a lewd act
committed with force. Section 288, subdivision (b)(1) punishes “[a]ny person
who commits [a lewd act] described in subdivision (a) by use of force,
violence, duress, menace, or fear of immediate and unlawful bodily injury on
the victim or another person.†A non-forcible lewd act under section 288,
subdivision (a) is a lesser included offense of a forcible lewd act under
section 288, subdivision (b)(1). (People
v. Ward (1986) 188 Cal.App.3d 459, 472.)
The
Attorney General asserts defendant “essentially objected to the trial court
giving the lesser offense instruction†and, in so doing, invited the error and
may not complain of it on appeal. (People
v. Eilers (1991) 231 Cal.App.3d 288, 295-296.) The record does not bear out
the assertion. Initially, counsel requested instruction on a non-forcible lewd
act but, after consulting CALCRIM form jury instructions, came to the mistaken
belief that a non-forcible lewd act was not a lesser included offense to a
forcible lewd act. CALCRIM No. 1111 lists the elements of a forcible lewd act.
Its use notes list only three lesser included offenses: attempted lewd act by
force, simple assault, and simple battery. (CALCRIM No. 1111 (2011 rev.).) Defense
counsel told the court she read the form jury instruction use notes and
concluded that “unfortunately, with these kind of charges they are all or
nothing with the exception of the 240 [assault] and 242 [battery], which are
lessers of Count 1†for a forcible lewd act. Counsel said she was “not in a
legal position to ask†for instruction on any lesser included offenses apart
from assault and battery. Counsel did not invite error; she made a mistake, and
an understandable one given the omission of a non-forcible lewd act from the
list of lesser included offenses in the CALCRIM use notes. Defense counsel did
indicate that she would have liked the court to give the instruction on the
lesser offense but did not believe the law entitled defendant to the
instruction. Defense counsel was in
error and the court was equally at fault in accepting counsel’s incorrect
understanding.
The
Attorney General next claims there was no duty to instruct on a non-forcible
lewd act because the offense was not supported by the evidence. “[T]he sua
sponte duty to instruct on a lesser included offense arises if there is
substantial evidence the defendant is guilty of the lesser offense, but not the
charged offense. [Citation.] This standard requires instructions on a lesser
included offense whenever ‘ “a jury composed of reasonable [persons] could . . .
conclude[]†’ that the lesser, but not the greater, offense was committed. [Citations.]
In deciding whether evidence is ‘substantial’ in this context, a court
determines only its bare legal sufficiency, not its weight.†(
at p. 177, italics omitted.)
There
is substantial evidence from which the jury could have concluded that defendant
was guilty of the lesser offense alone. J.H. testified that, on different
occasions, defendant touched her legs, chest and vagina. J.H. said that when
defendant was touching her vagina he said, “If I told anybody, he would hurt
me.†When interviewed, J.H. indicated only that defendant told her the conduct
“was a secret.†The social worker did not remember J.H. ever saying that
defendant “threatened to harm her physically.†Defendant admitted touching J.H.’s
legs and chest, while denying sexual purpose, and insisted he never
intentionally touched J.H.’s vagina.
This
evidence permitted the jury to conclude that a non-forcible, rather than a forcible,
lewd act occurred. The jury could find the uncontested touching of J.H’s chest,
unaccompanied by any threat, was a lewd act; find defendant touched J.H.’s
vagina but did so without any threat of harm; or find there was a threat but it
related to disclosure and was not used
to accomplish the lewd act itself. In fact, as we discuss next, J.H.’s
testimony about defendant threatening to hurt her if she told anyone about the
molestation was insufficient to support a finding of a forcible lewd act. The
evidence, at most, supported conviction for a non-forcible lewd act.
The
trial court erred in failing to instruct the jury on this lesser included
offense, and the error was prejudicial. There is a reasonable probability that,
had the jury been properly instructed, defendant would have been convicted of
committing a non-forcible lewd act. (People
v. Watson (1956) 46 Cal.2d 818, 836.) We shall not, however, order a new
trial with proper instructions because we also conclude, in the following
discussion, that there is insufficient evidence to support the forcible lewd act
conviction. Accordingly, we shall modify the judgment to reduce the conviction
from a forcible lewd act to a non-forcible lewd act.
3. There is insufficient evidence to support
the finding that a lewd act was committed by the use of force, violence, duress,
menace, or fear of immediate bodily injury
The
record here lacks substantial evidence of a forcible
lewd act within the meaning of the statute. Section 288, subdivision (a) “makes
criminal any lewd and lascivious act with a child under the age of 14 on the
assumption and recognition that such a child is incapable of consenting to the
act. Subdivision (b) prescribes a separate violation where such act is
committed using force or duress.†(People
v. Hecker (1990) 219 Cal.App.3d 1238, 1249.) While recognizing that “all
sex crimes with children are inherently coercive[,]†the Legislature has
determined “that defendants who compound their commission of such acts by the
use of violence or threats of violence should be singled out for more
particularized deterrence.†(Id. at
p. 1251.)
Section
288, subdivision (b)(1) sets heightened penalties for a lewd act committed “by
use of force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the victim or another person.†“[C]onviction of forcible lewd
acts on a minor requires evidence of ‘physical force substantially different
from or substantially greater than that necessary to accomplish the lewd act
itself.’ †(People v. Griffin (2004)
33 Cal.4th 1015, 1026.) The record shows no such use of force.
The
Attorney General argues there is sufficient evidence that defendant used fear
of bodily injury and duress to accomplish lewd acts, and rests the argument on the
following portion of J.H.’s trial testimony: “Q. Did you ever ask [defendant] not
to touch you? [¶] A. Yes. [¶] Q. Do you remember how many times you
asked him not to touch you? [¶] A. A lot. [¶] Q. Did [defendant] ever
say anything when he was touching your vagina? [¶] A. Yes.
[¶] Q. What did he say? [¶] A. If I told anybody, he would hurt me.
[¶] Q. Did you believe he would hurt you? [¶] A. Yes.
[¶] Q. Did you tell somebody? [¶] A. No. [¶] Q. Eventually did
you tell somebody? [¶] A. Yes. [¶] Q. Who did you tell? [¶] A.
My parents. [¶] Q. Why did you tell your parents? [¶] A. Because I
was scared.â€
The
testimony fails to establish that defendant used fear of immediate bodily
injury or duress to accomplish the lewd act. The threatened harm was contingent,
not immediate, and used to obtain the victim’s silence after the lewd act was committed rather than to facilitate the act.
Duress is defined as “the use of a direct or implied threat of force, violence,
danger, hardship, or retribution sufficient to cause a reasonable person to do [or
submit to] something that he or she would not otherwise do [or submit to].†(
246, fn. 9, italics omitted.) Duress “is measured by a purely objective
standard.†(Id. at p. 246.) The
question is whether “the defendant used threats or intimidation to commit a
lewd act†regardless of “how the victim subjectively perceived or responded to
this behavior.†(Ibid.)
The
duress must be sufficient to cause a reasonable person to perform or acquiesce
in the lewd act itself. (People v. Leal (2004)
33 Cal.4th 999, 1004.) “Duress cannot be established unless there is evidence
that ‘the victim[’s] participation was impelled, at least partly, by an implied
threat.’ †(People v. Espinoza (2002)
95 Cal.App.4th 1287, 1321.) A threat to impel silence following the act is
distinct from a threat to impel submission to the act. A “threat of hardship
directed at ‘later disclosure of the sex acts and not [the failure to perform]
the sex acts themselves’ †does not, standing alone, establish duress under
section 288, subdivision (b)(1). (People
v. Hecker, supra, 219 Cal.App.3d at p. 1251, fn. 7.) A threat to “kick [the
child’s] ass†if she told anyone about the molestation was found to be a threat
directed to “later disclosure of the
sex acts and not the sex acts themselves.†(People
v. Bergschneider (1989) 211 Cal.App.3d 144, 154, fn. 8, disapproved on
other grounds in People v. Griffin,
supra, 33 Cal.4th at p. 1028.)
Duress
is judged under the totality of the circumstances and threatened retribution may
properly be considered when evaluating whether a defendant used duress to
commit molestation. (People v. Cochran (2002)
103 Cal.App.4th 8, 14-15.) A defendant who threatens a child with violence if
she reports molestation may obtain the child’s submission to further
molestation by an implied threat of violence if she resists. The circumstances
here, however, fail to support an inference that defendant’s threat to “hurtâ€
J.H. if she “told anybody†was used to obtain J.H.’s submission to future molestation. J.H’s testimony fails to specify
any details about the threat, including when the threat was made. The record,
viewed in its entirety, shows that defendant obtained J.H.’s submission by posing
as a caring babysitter rather than by force, fear or duress. The record fails
to support a finding of a forcible lewd act under section 288, subdivision
(b)(1).
“[A]n
appellate court that finds that insufficient evidence supports the conviction
for a greater offense may, in lieu of granting a new trial, modify the judgment
of conviction to reflect a conviction for a lesser included offense.†(
748.) We shall modify the judgment to reflect a conviction for the lesser
included offense of a non-forcible lewd act under section 288, subdivision (a)
and remand for resentencing.
4.
Sentencing issues
Defendant
claims the trial court erred in its admission and consideration of certain
information during sentencing. We address these claims to provide guidance to
the trial court at resentencing.
Preliminarily,
we note an error unremarked by the parties. The court sentenced defendant under
the law operative at the time of sentencing rather than the law in effect at
the time the crime was committed. The constitutional proscription of ex post
facto laws “protect against the later adoption of a statute that inflicts
greater punishment than the law in effect at the time of the commission of the
crime.†(People v. Riskin (2006) 143
Cal.App.4th 234, 244.) The jury found that defendant committed a forcible lewd
act under section 288, subdivision (b)(1) sometime between August 1, 2007 and
May 30, 2008. At that time, a violation was punishable by three, six, or eight
years in prison. (Stats. 2004, ch. 823, § 7.) In 2010, the Legislature lengthened
the sentence range to five, eight or ten years. (Stats. 2010, ch. 219,
§ 7.) This change in the law went unnoticed in the trial court. The
probation officer reported that the applicable sentencing range was five, eight
or ten years and the trial judge sentenced defendant to ten years as “the
maximum term of confinement I can impose for the conviction in this case.†In
fact, the maximum term of confinement was eight years. The error is of no
impact here because we are modifying the judgment to reduce the conviction from
a forcible to a non-forcible lewd act. At the time of defendant’s conduct, both
offenses were punishable by the same range of three, six, or eight years in
prison, although the use of force carried additional penal consequences. (Stats.
2004, ch. 823, § 7; see People v.
Soto, supra, 51 Cal.4th at p. 237 & fn. 4 [comparing present and
prior punishment under section 288].) At resentencing, the court shall use the
sentencing scheme in effect at the time of the crime.
Defendant
claims the court erred when it accepted a probation officer’s report that
included Sara’s statement of prior, uncharged molestation by defendant and
permitted Sara to speak at the sentencing hearing. There was no error. “Well-established
decisional law in California allows the sentencing court to consider
responsible out-of-court or unsworn statements concerning the circumstances of
the crime and/or the characteristics of the defendant relevant to sentencing.â€
(People v. Mockel (1990) 226
Cal.App.3d 581, 587.) Moreover, the court focused its attention upon Sara’s
sworn trial testimony and struck portions of Sara’s statement going beyond the
scope of her testimony.
Nor
do we accept defendant’s argument that the court wrongly considered defendant’s
lack of remorse when choosing the aggravated term. It is true, as defendant
observes, that lack of remorse may not be used as a factor to aggravate a
prison sentence where “the defendant has denied guilt and the evidence of guilt
is conflicting.†(People v. Holguin (1989)
213 Cal.App.3d 1308, 1319.) To do so would be to penalize a defendant for
professing his innocence. We do not understand the court to have penalized
defendant for maintaining his innocence. The court focused on defendant’s
admission of inappropriate conduct with J.H., while denying sexual intent, and
found that defendant lacked “empathy,†“understanding†and insight into the
consequences of his admitted behavior. The court was entitled to consider these
matters and may do so again at resentencing.
Defendant’s
contention that the court erred in concluding that aggravating factors
outweighed mitigating factors need not be addressed at this juncture. The
matter is being remanded for resentencing on the lesser offense of committing a
non-forcible lewd act. At that time, defendant will have an opportunity to present
his claim that an aggravated term is inappropriate under the established facts.
5.
Attorney fees
As
a final matter, defendant asserts the trial court failed to provide a hearing on
his ability to pay $5,000 for legal assistance he received from the public
defender. “In any case in which a defendant is provided legal assistance,
either through the public defender or private counsel appointed by the court,
upon conclusion of the criminal proceedings in the trial court, . . . the court
may, after notice and a hearing, make a determination of the present ability of
the defendant to pay all or a portion of the cost thereof.†(§ 987.8,
subd. (b).) The hearing may be held at the pronouncement of judgment or within
six months of the pronouncement. (Ibid.)
At
the outset of the case, the public defender questioned defendant’s indigency. The
court appointed the public defender to provide representation but warned
defendant he could be compelled to pay for legal services if, at the conclusion
of the case, it was found he had the ability to pay. At sentencing, the court
informed defendant: “you have the right to a hearing; however, at this time, I
am imposing attorney’s fees in the amount of $5,000.†Defendant did not request
the referenced hearing or otherwise object to the order.
The
court should have held a hearing on defendant’s ability to pay before ordering
defendant to pay for legal services. However, defendant’s failure to object in
the trial court forfeits his challenge on appeal. A right “may be forfeited in
criminal as well as civil cases by the failure to make timely assertion of the
right before a tribunal having jurisdiction to determine it. [Citation.]
Ordinarily, a criminal defendant who does not challenge an assertedly erroneous
ruling of the trial court in that court has forfeited his or her right to raise
the claim on appeal. [Citation.] The purpose of this rule is to encourage
parties to bring errors to the attention of the trial court, so that they may
be corrected. [Citation.] Additionally, [i]t is both unfair and inefficient to
permit a claim of error on appeal that, if timely brought to the attention of
the trial court, could have been easily corrected or avoided.†(
589, 593, internal quotation marks omitted.) Under this reasoning, it has been
held that a defendant may not contest a trial court’s failure to determine his
ability to pay a jail booking fee absent objection in the trial court. (
reasoning applies to the assessment of legal fees at issue here.
Were
we to conclude the claim was not forfeited, defendant’s remedy would be remand
for a hearing on his ability to pay. Defendant is mistaken in his assertion
that section 987.8 imposes an absolute limit of six months from the pronouncement
of judgment to conduct such a hearing. The time limit “was not intended to
limit the authority of an appellate court to remand a case to the trial court
for the correction of its error in failing to give a defendant the notice and
hearing required by the statute.†(People
v. Flores (2003) 30 Cal.4th 1059, 1068.) We see no basis to relieve
defendant of his forfeiture and remand the case for an assessment of
defendant’s ability to pay. His complaint rests upon the court’s procedural
error in failing to hold a hearing rather than a substantive claim that he is
unable to pay the assessment. The Attorney General points to evidence in the
record that defendant does have the ability to pay and defendant’s briefing
does not dispute that evidence.
The
judgment is modified to reduce the conviction on count one from a forcible lewd
act under section 288, subdivision (b)(1) to a non-forcible lewd act under
section 288, subdivision (a). As modified, the judgment is affirmed. The case
is remanded for resentencing.
_________________________
Pollak,
J.
We concur:
_________________________
McGuiness, P.J.
_________________________
Jenkins, J.
All further section references are to the Penal Code except as noted.
use initials or first names to protect victim privacy.
