P. v. Lockwood
Filed 6/5/13 P. v. Lockwood CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
>
THE PEOPLE, Plaintiff and Respondent, v. NOLAN JAMES LOCKWOOD, Defendant and Appellant. | E056367 (Super.Ct.No. FSB901086) OPINION |
APPEAL from the Superior
Court of
Bernardino County. William
Jefferson Powell IV, Judge. Affirmed.
Richard Schwartzberg, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, and Melissa Mandel and Warren Williams, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant Nolan James Lockwood induced his wife
and his approximately eight-year-old nephew to have sex with each other while
he watched. The nephew so testified; he
said it happened twice, and that defendant also induced them to orally copulate
each other. The wife also so testified,
though she said it happened only once.
Finally, defendant admitted it to the police. Defendant also admitted downloading child
pornography.
A jury found defendant guilty on two counts of
nonforcible lewd acts with a child under 14 (Pen. Code, § 288, subd. (a))
and one count of possession of child
pornography (Pen. Code, § 311.11, subd. (a)). Defendant was sentenced to five years in
prison, plus the usual fines and fees.
Defendant now contends:
1. The
trial court erred by failing to instruct that defendant’s wife was an
accomplice as a matter of law.
2. The
trial court erred by calculating the restitution fine and the parole revocation
restitution fine based on the minimum fine in effect at the time of sentencing,
rather than at the time of the crimes.
We find no reversible
error. Hence, we will affirm.
I
FACTUAL BACKGROUND
Defendant’s nephew E.C. was 22 at the time of
trial. When he was a child, he often
stayed overnight with defendant and defendant’s wife April Lockwood.
E. testified to a sexual incident that occurred
when he was between the ages of six and eight. At defendant’s direction, E. got on top of
April and tried to have sex with her. At
the time, he believed that he had penetrated her, but as an adult, he concluded
that he had not been “fully capable†of penetration. Also at defendant’s direction, E. then orally
copulated April. Meanwhile, defendant
lay in bed next to them and masturbated.
E. also testified to a second sexual incident
that was substantially identical, except that it was April who orally copulated
him.
In March 2009, in the course of a child
pornography investigation, the police interviewed E. His statement to them was consistent with his
testimony at trial, except that he did not say that April orally copulated him.
April was originally charged with the same three
counts as defendant, but on the eve of trial, she pleaded guilty to a single
count.
April testified that there was a single sexual incident
that occurred when E. was between the ages of 8 and 10. Defendant told her that E. wanted to have sex
with her. She was against it at first,
but she agreed after defendant said that nobody would find out. Defendant placed E. on top of her. E. then had sex with her. She did not remember whether he penetrated
her. She was crying. Defendant told E. what to do. Defendant watched and touched her breast; she
did not remember if he masturbated.
April had seen defendant watch child pornography
videos “several times.†She was
concerned because he watched more child pornography than adult pornography and
also because he watched child pornography during sex with her.
In March 2009, the police interviewed April
twice. The first time, she told them
that she awoke to find E. on top of her.
She also said that she did not remember defendant being in the
room. The second time, however, her
statement was essentially consistent with her testimony at trial.
When the police interviewed defendant, he initially
denied that anything inappropriate had occurred. Eventually, however, he admitted that “[E.]
kept bugging him to have sex with [April] so [he] took [E.] into the bedroom
and . . . April . . . engaged in sexual intercourse with [E.]†Defendant said that he was “off to the side
. . . fondling April’s breast and masturbating.â€
The police found child pornography on a desktop
computer and on a laptop computer; the files were associated with both
defendant and April’s user profiles.
Defendant admitted to the police that he downloaded child pornography to
his computer.
E. testified and also told police that he had
told his grandmother, at least in general terms, about the sexual
incidents. However, his grandmother (who
was also April’s mother) denied this.
II
FAILURE TO INSTRUCT THE
JURY THAT
DEFENDANT’S WIFE WAS AN
ACCOMPLICE AS A MATTER OF LAW
Defendant contends that the trial court erred by
failing to instruct that, with regard to the two lewd act counts, April was an
accomplice as a matter of law.
A. Additional Factual and
Procedural Background.
The trial court did instruct the jury with
CALCRIM No. 334, as follows:
“Before you may consider the statement or testimony
of April Lockwood as evidence against Nolan Lockwood regarding the crimes of
Lewd Act on a Child,[
name="_ftnref1" title="">[1]]
you must decide whether April Lockwood was an accomplice to that crime. A person is an accomplice if he or she is
subject to prosecution for the identical crime charged against the
defendant. Someone is subject to
prosecution if:
“1. She
personally committed the crime;
“AND
“2. She
intended to, and did in fact, aid, facilitate, promote, encourage, or instigate
the commission of the crime.
“The burden is on the defendant to prove that it
is more likely than not that April Lockwood was an accomplice.
“If you decide that a witness was not an
accomplice, then supporting evidence is not required and you should evaluate
his or her testimony as you would that of any other witness.
“If you decide that a witness was an accomplice,
then you may not convict the defendant of Lewd Act on a Minor alone.[
convict the defendant only if:
“1. The
accomplice’s testimony is supported by other evidence that you believe;
“2. That
supporting evidence is independent of the accomplice’s testimony;
“AND
“3. That
supporting evidence tends to connect the defendant to the commission of the
crime[s].
“Supporting evidence, however, may be
slight. It does not need to be enough,
by itself, to prove that the defendant is guilty of the charged crime[s], and
it does not need to support every fact about which the accomplice
testified. On the other hand, it is not
enough if the supporting evidence merely shows that a crime was committed or
the circumstances of its commission. The
supporting evidence must tend to connect the defendant to the commission of the
crime.
“Any testimony of an accomplice that tends to
incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard
it. You should give that testimony the
weight you think it deserves after examining it with care and caution and in
the light of all the other evidence.â€
B. Analysis.
Defendant contends that the trial court should
have instructed the jury with CALCRIM No. 335.
This instruction is substantially identical to CALCRIM No. 334,
except that it would have told the jury that April was an accomplice as a
matter of law, and it would not have given the jury the option of deciding that
she was not an accomplice.
The People concede that the trial court erred by
giving CALCRIM No. 334 rather than CALCRIM No. 335. Rather than analyze the issue independently,
we accept the People’s concession.
The asserted error, however, was harmless under
any standard. If, as defendant argues,
the evidence that April was an accomplice was uncontradicted, then no
reasonable juror could have found that she was not an accomplice. Accordingly, under CALCRIM No. 334, which the
trial court did give, the jurors would have known to view her testimony with
distrust.
The error was also harmless for a separate and
alternative reason. Even a total failure
to give any accomplice instructions whatsoever can be deemed harmless “‘“. . .
if there is sufficient corroborating evidence in the record.†[Citation.]
“Corroborating evidence may be slight, may be entirely circumstantial,
and need not be sufficient to establish every element of the charged
offense.†[Citation.] The evidence is “sufficient if it tends to
connect the defendant with the crime in such a way as to satisfy the jury that
the accomplice is telling the truth.â€
[Citation.]’ [Citation.]†(People
v. McKinzie (2012) 54 Cal.4th 1302, 1353.)
Here, April testified to a single incident in
which E. had sex with her. E. himself
corroborated this. Although he testified
to two incidents, not just one, that certainly corroborated April’s claim that
it happened at least once. Moreover,
defendant corroborated April’s testimony himself, in his statement to the
police. This was more than sufficient.
III
THE AMOUNT OF THE RESTITUTION
FINE
AND PAROLE REVOCATION
RESTITUTION FINE
Defendant contends that, in calculating the
restitution fine and parole revocation restitution fine, the trial court
erroneously relied on the law in effect at the time of sentencing, rather than
at the time of the crimes.
A. Additional Factual and
Procedural Background.
The probation report recommended a restitution
fine and a parole revocation restitution fine in the amount of $3,360; it did
not explain how this amount was calculated.
At sentencing, the trial court sentenced
defendant to five years in prison, calculated as three years (the low term)
plus two years (one-third the midterm).
(Pen. Code, § 288, subd. (a); see also Stats. 1995, ch. 890,
§ 1, p. 6777.)
The court also stated: “[T]he fines, I think it would be appropriate
$1,920 each . . . .
[¶] And for counsel’s edification
I calculated it at $240 a year.
Actually, that was based on the midterm.
Hold on.†It then corrected
itself, saying, “$1,200. Sorry.â€
Defense counsel did not object.
B. Analysis.
Under the law in effect between 1996 and 1998,
when the sexual offenses were committed, the minimum amount of a restitution
fine and a parole revocation restitution fine was $200; the maximum amount was
$10,000. (Pen. Code, former § 1202.4,
subd. (b)(1); Stats. 1995, ch. 313, § 5, p. 1756; Stats. 1996,
ch. 629, § 3, p. 3466; Stats. 1997, ch. 527, § 4,
p. 3215; Pen. Code, § 1202.45.)
The same minimum and maximum were in effect in 2009, when the possession
of pornography offense was committed.
(Pen. Code, former § 1202.4, subd. (b)(1); Stats. 2008,
ch. 468, § 1, p. 2736.)
However, under the law as it stood in 2012, at
the time of sentencing, the minimum amount was $240, although the maximum was
still $10,000. (Pen. Code,
§ 1202.4, subd. (b)(1); see also Stats. 2011, ch. 358, § 1, p. 3759.)
At all relevant times, the trial court was
allowed — but not required — to calculate the total fine as the minimum fine
“multiplied by the number of years of imprisonment the defendant is ordered to
serve, multiplied by the number of felony counts of which the defendant is
convicted.†(Pen. Code, § 1202.4,
subd. (b)(2); see also Stats. 2011, ch. 358, § 1, p. 3759; Pen. Code,
former § 1202.4, subd. (b); Stats. 1995, ch. 313, § 5, p. 1756.)
Here, it appears that the trial court was unaware
that the applicable minimum fine was $200.
From its remarks, it plainly was multiplying $240, which it mistakenly
believed to be the minimum, times the five-year sentence. This was an abuse of discretion. “[T]he trial court abuses its discretion when
it bases its decision ‘on impermissible factors [citation] or on an incorrect
legal standard [citations].’
[Citation.]†(
836, 858.)
Defense counsel forfeited the error, however, by
failing to object. (People v. Scott (1994) 9 Cal.4th 331, 353.) The total amount of each fine was below the
statutory maximum; accordingly, we cannot reach the error on the theory that
the trial court imposed an unauthorized sentence. (Cf. id.
at p. 354.) Defendant argues that
the error amounted to an ex post facto violation, but this does not prevent
forfeiture. (People v. White (1997) 55 Cal.App.4th 914, 917 [defendant forfeited
ex post facto challenge to amount of direct victim restitution].)
We conclude that the error has not been
preserved.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting
P. J.
We
concur:
KING
J.
MILLER
J.
does not contend that the failure to instruct on accomplice testimony with
respect to the child pornography count was error.
stated: “If you decide that a witness
was an accomplice, then you may not convict the defendant of Lewd Act on a Minor
based on his or her testimony alone.†The italicized words, however, were omitted
from the written instruction. We do not
know whether they were omitted from the oral instruction, because the parties
stipulated that the oral instructions not be transcribed.
Defendant does not contend that the
omission of these words from the written instruction was error.
