P. v. Myers

Filed 12/9/09 P. v. Myers CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Defendant Anthony Wayne Myers seeks reversal of the judgment below, issued after remand from this court, sentencing him to a total prison term of 46 years four months to life for the commission of numerous sex offenses. We affirm the judgment, but order the trial court to modify the abstract of judgment to correct a clerical error.

BACKGROUND

We previously granted defendants request that we take judicial notice of our unpublished opinion and other records from case No. A111024, defendants prior appeal. We summarize the following facts and procedural history from that opinion.

Defendant was tried in Del Norte County Superior Court on 28 counts involving lewd acts with a child, rape, oral copulation, and penetration with a foreign object, allegations of three prior prison term commitments and a multiple-victim enhancement. The 2005 trial focused on defendants conduct toward his girlfriends daughter and two of her friends in 2003 and 2004.

Evidence of Defendants Sex Offenses

The daughter, Christina W., was 16 at the time of trial. She testified that defendant, who was her mothers boyfriend and lived with her family at times in 2003 and 2004, committed various sex offenses against her, including frequently touching or rubbing her breasts, butt, and vagina. One night in July 2004, she woke up to find defendant inside her against her will. She felt a pain in her vagina and hit defendant with her elbow in the stomach until he fell off the bed. He got up and left. At a later time, Christina woke up to find defendant touching her vagina and moaning. He said he wanted to finish what he had done in July, and Christina said she would think about it so that he would leave her room. Defendant returned 30 minutes later and said he was gonna rub his penis up against [her] vagina. He grabbed her by the arms, forced his penis inside her vagina, and told her to let it happen. He then actually went throughall the way.

B.H., a friend of Christinas who was 17 years old at the time of trial, testified that she spent the night at Christinas residence every couple of weeks in 2003 and 2004. One night, she woke up to find defendant touching her leg and massaging his genital area. On another night in the summer of 2004, he gave B.H. an alcoholic margarita drink. She fell asleep on the couch, then woke up to find defendant on top of her with his penis in her vagina. He told her that he had been waiting a long time, and not to worry because he had not come inside her. He also put his mouth on her vagina and said he liked it. On another occasion in the summer of 2004, B.H. woke up to find defendant touching her breasts and masturbating.

The Verdict and Initial Sentence

The jury found defendant guilty of 28 counts. Regarding Christina, he was found guilty of 20 counts of lewd acts with a child (Pen. Code, 288, subd. (c)(1)),[1] two counts of forcible rape ( 261, subd. (a)(2)), rape of an unconscious person ( 261, subd. (a)(4)), and sexual penetration by a foreign object with a person under 16 years of age ( 289, subd. (i)).

Regarding B.H., defendant was found guilty of forcible rape ( 261, subd. (a)(2)), rape of an unconscious person ( 261, subd. (a)(4)), oral copulation of a person under the age of 18 years ( 288, subd. (b)(1)), and unlawful sexual intercourse with a person under 18 years of age ( 265.1, subd. (c)). The jury found true the multiple victim allegation ( 667.61) and that defendant had three prior convictions ( 667.5, subd. (b)).

The trial court imposed a total prison term of 46 years four months to life, which included consecutive terms for counts 26 and 28, which involved his rape of Christina, and counts 31, 32, and 36, which involved his rape of B.H.

Defendants Appeal in Case No. A111024

Defendant appealed the judgment on numerous grounds in case No. A111024. We affirmed in part, reversed in part, and remanded the matter to the trial court for further sentencing proceedings. Specifically, we reversed defendants convictions for counts 1 and 12, which charged him with lewd acts towards Christina in April 2003, because of insufficient evidence. We reversed defendants convictions for counts 13, and 15 through 21, and found another basis for reversal of count 12, which charged defendant with vaginal touchings of Christina in certain months between April 2003 and June 2004, because the court did not give the jury a unanimity instruction, which was prejudicial in light of the uncertain evidence about when these touchings began. We vacated the courts imposition of consecutive sentences for counts 26 and 28, involving the rape of Christina, because these counts related to the same criminal incident and, therefore, they violated section 654. We vacated the courts imposition of consecutive sentences for counts 31, 32, and 36, involving his rape of B.H., for the same reason.

Trial Court Proceedings After Remand

The trial court subsequently resentenced defendant to a total state prison sentence of 46 years four months to life after hearing on December 4, 2008, the same length of sentence that the court had imposed prior to our remand, including a 15-years-to-life sentence for count 28, the rape of Christina, and a 15-years-to-life sentence for count 31, the rape of B.H., these sentences to run consecutively.

At the sentencing hearing, the trial court began by discussing whether or not two 15-years-to-life sentences, for counts 28 (rape of Christina) and 31 (rape of B.H.), could be imposed concurrently or consecutively pursuant to section 667.61, sometimes called the One Strike law. (People v. Anderson(2009) 47 Cal.4th 92, 99.) The prosecutor argued that separate consecutive terms were appropriate. Defense counsel disagreed, arguing, among other things, that setting consecutive terms bucks the one strike double life rule, would be cruel and unusual punishment pursuant to the Eighth Amendment of the federal Constitution, was not in keeping with the intent of Penal Code section 667.61, and would have a chilling effect on the appeal, given that defendant had previously faced only one life sentence. Defense counsel also asserted that there was no evidence of forcible rape, and argued that the standard for forcible rape held by this court in case No. A111024 was such that any rape would bring a defendant under section 667.61.

The trial court responded: I have . . . two responses, at least[,] to your comments. One, the excessive punishment issue, we have to keep in mind that when the Court of Appeal heard . . . this case, he at that point was sentenced to 46 years four months to life, although they told us to go back and do some resentencing, they affirmed him partly and they vacated the sentence on 654 grounds and so on. At no point did the Court of Appeal say that for the things he did, 46 years four months to life was excessive or unconstitutional, cruel and unusual punishment. . . .

And secondly, the chilling effect on appeal, I agree that it would not be appropriate to sentence a person to more time on this case than he got the first time around after hes appealed it, but Im not at all sure thateither, that its appropriate to sentence him to any less because what Imwhat Im considering doing if indeed its true that he could be sentenced to two 15-years-to-life sentences, would be that it would be possible . . . to get him the 46-year-four-month sentence . . . for . . . the same conduct . . . that he committed that the jury found him guilty of, it would be possible to get him a 46-year-four-months sentence if we can run the two 15-year-to-life sentences for counts 28 and 31. Now . . . that I think at least would be an option.

Now, . . . I would not go above 46 years four months. I dont think . . . that would be fair. That would penalize a person actually for appealing and I dont think you should do that. But . . . it strikes me that 46 years four months to life might well be appropriate in this case.

Defense counsel said he strongly disagreed with the courts view, and that it would be horrible to impose the exact same sentence in light of our decision to reverse or vacate some of the convictions and/or sentences. He stated that he was mortified by the courts desire to sentence him to the same thing for essentially a lesser conduct. After further discussion, the court concluded that People v. DeSimone (1998) 62 Cal.App.4th 693 interpreted section 667.61 as allowing separate and consecutively running 15-years-to-life terms if there are two qualifying offenses against two separate victims. The court imposed a term of 15 years to life for count 28 and the same term for count 31, to run consecutively, and imposed a total prison term on all counts totaling 46 years four months to life. The court stated after imposing consecutive terms in the determinate parts of the sentencing that [t]he counts are run consecutively because they were separate crimes committed at separate times and for separate criminal objectives to one another. In order to limit the sentence to 46 years four months to life, the court stayed the sentences on several counts. Defendant filed a timely notice of appeal.

DISCUSSION

I. Consecutive Sentences for Counts 28 and 31

Defendant argues that the judgment should be reversed and the matter remanded for resentencing because the trial court abused its discretion and failed to exercise fully informed discretion in imposing consecutive 15-years-to-life sentences for counts 28 and 31 pursuant to section 667.61. Defendant contends that the court relied on a circumstance which will be true of virtually every case involving acts of forcible rape against separate victims, which was that the offenses had occurred on separate occasions, and that such a circumstance should not be allowed to render consecutive 15-years-to-life terms the default sentence for defendants such as Myers. He makes a number of other arguments too. All of them lack merit.

Before reaching the merits, however, we address the Peoples argument that defendant waived his objection to the courts reliance on the aggravating factors of separate victims on separate occasions because he did not object to the trial courts use of them. We agree. Defendant unquestionably did not make such an objection. [S]uch objection should have been made at the sentencing hearing, and the failure to do so waives the issue on appeal. (People v. Steele (2000) 83 Cal.App.4th 212, 226 [defendant waived his appellate claims regarding aggravating factors not objected to below]; see also People v. Scott (1994) 9 Cal.4th 331, 353 [the waiver doctrine should apply to claims involving the trial courts failure to properly make or articulate its discretionary sentencing choices].)

Even considering defendants arguments on their merits, the court did not abuse its discretion in imposing consecutive 15-years-to-life sentences. Defendant acknowledges that we review the trial courts sentencing decision pursuant to an abuse of discretion standard. He also acknowledges that [i]n exercising its discretion whether to impose concurrent or consecutive terms, a trial court should consider the factors set forth in California Rules of Court, rule 4.425 (rule 4.425) (People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262), and that rule 4.425 includes criteria for considering whether or not to impose consecutive rather than concurrent sentences, such as that [t]he crimes and their objectives were predominantly independent of each other, [t]he crimes involved separate acts of violence of threats of violence; and [t]he crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. (Rule 4.425(a)(1)-(3).)

Nonetheless, defendant contends that the provision in section 669 which states that a second term is to run concurrently with the first when a trial court does not specify whether it is to run consecutively or concurrently implies a preference for concurrent sentences.[2] We do not see this implication, nor is it found in the cases defendant cites (People v. Rodriguez, supra, 130 Cal.App.4th at p. 1262; In re Stoliker (1957) 49 Cal.2d 75, 77; People v. Hernandez (1966) 242 Cal.App.2d 351, 362). The provision defendant refers to has no relevance when a court does specify that a second term shall run consecutively or concurrently.

Defendant next argues that the courts stated reason for imposing consecutive sentences[t]he counts are run consecutively because they were separate crimes committed at separate times and for separate criminal objectives to one anothercannot sustain the sentences imposed. The court properly referred to separate crimes (rule 4.425 (a)(1), (3)), a reference plainly supported by the evidence regarding defendants separate, forcible rapes of Christina and B.H. Nonetheless, defendant writes that he questions whether the trial court truly placed reliance on this matter. There are always separate crimes where the issue is concurrent versus consecutive sentences. This makes little sense. Defendant is obviously incorrect that there are always separate crimes, and defendants questioning is of no consequence.

Defendant also argues that the courts references to separate criminal objectives and the separate times the crimes were committed are in essence the same circumstance, which is that the offenses charged as counts 28 and 31 were against separate victims. This also makes little sense, since rule 4.425(a)(1) refers to objectives [that] were predominantly independent of each other and rule 4.425(a)(3) refers to different times. The courts references track these statutory factors. Defendants attempt to conflate them to mean separate victims only is plainly contradicted by the courts reliance on these separate statutory factors.

Defendant also makes what amounts to two flawed policy arguments. First, he contends that [i]t is virtually inevitable that forcible rapes against separate victims will have occurred on separate occasions, based on his own counsels inability to recall any other circumstance. Counsels recollection obviously is not sufficient authority for his premise; separate victims obviously can be forcibly raped on the same occasion. Nonetheless, defendant argues from his flawed premise that our allowing the courts consecutive sentencing to stand would create a default consecutive sentence whenever separate victims are involved. This is incorrect. Second, defendant argues that trial courts should be seeking circumstances which arise in special or unusual cases. This presumes that this case was not special or unusual, a presumption which defendant does not establish and with which we do not necessarily agree.
Finally, defendant argues that the trial court gave scant consideration of a lesser sentence, treated the 46 years four months sentence improperly as a floor, and improperly reasoned backwards to justify a particular length sentence that was arbitrarily determined (People v. Swanson (1983) 140 Cal.App.3d 571, 574 [court not permitted to reason backwards to justify an arbitrarily determined sentence]). Defendants contentions are not supported by the record. The court made clear that it did not want to impose a sentence higher than the sentence it had set prior to the previous appeal, which defendant acknowledges was proper. However, we do not see where the court considered the term to be a floor, or that it reasoned backwards to impose a sentence that was arbitrarily determined. The court asserted its view that a 46-year-four-month sentence, including the consecutive sentences for counts 28 and 31, was appropriate and sought not to exceed that term, going as far as to stay certain sentences in order to limit the sentence. Its remarks indicate that, rather than reach this view arbitrarily, it did so based on its proper consideration of the evidence and relevant factors. Defendant does not establish that the court abused its discretion in doing so.[3]

II. Modification of the Abstract of Judgment

Defendant and the People agree that the Abstract of Judgment contains two clerical errors, in that it cites section 261, subdivision (a)(4), when referring to defendants forcible rape convictions for counts 28 and 31, rather than the correct statutory reference, section 261, subdivision (a)(2), which is the basis for the guilty jury verdicts on these counts.[4] We agree with the parties that this was a clerical error. We have the power to order the trial court to correct clerical errors in court records. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Therefore, we order the trial court to modify the abstract of judgment so as to state that section 261, subdivision (a)(2), is the basis for defendants forcible rape convictions for counts 28 and 31.

DISPOSITION

We affirm the judgment, except that we hereby order the trial court to modify the abstract of judgment consistent with this opinion.

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Lambden, J.

We concur:

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Kline, P.J.

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Haerle, J.

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[1] All statutory references herein are to the Penal Code unless otherwise stated.

[2] The relevant portions of section 669 states: When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively. . . . [] . . . Upon the failure of the court to determine how the terms of imprisonment on the second or subsequent judgment shall run, the term of imprisonment on the second or subsequent judgment shall run concurrently.

[3] In light of our conclusion, we do not address the Peoples harmless error analysis.

[4] In his appellate brief, defendant refers to count 25 of the amended information and jury verdict, which is a plain error in light of his citation to the record and his further discussion, which refers to count 28.