P. v. Phillips

Filed 2/5/10 P. v. Phillips CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant Matthew David Phillips pleaded no contest to six felony counts arising from his videotaping and photographing of teenagers engaged in sexual activity.

The trial court sentenced defendant to consecutive terms in state prison on three of the counts and granted probation on the other three counts. The People appealed and filed a petition for writ of mandate, contending that the hybrid sentence of probation and imprisonment was unlawful. We agree, and will grant a writ of mandate commanding the trial court to vacate its sentence on all counts and resentence defendant in accordance with law.

I. BACKGROUND

Defendant was charged by amended information with committing a lewd act on a child under the age of 14 (John Doe 3) (Pen. Code, [1]  288, subd. (a); count 1), videotaping a child engaged in sexual activity (John Doe 1) ( 311.4, subd. (c); count 2), three counts of surreptitiously recording a confidential communication (sexual conduct) without the victims consent ( 632, subd. (a); counts 3, 6, & 8), exhibiting a videotape of a child engaged in sexual activity to a child ( 311.2, subd. (d); count 4), exhibiting a videotape of a child engaged in sexual activity to an adult ( 311.1, subd. (a); count 5), photographing a child (John Doe 2) engaged in sexual activity for commercial purposes ( 311.4, subd. (b); count 7), and dissuading a witness (John Doe 2) ( 136.1, subd. (b)(1); count 9).

On September 26, 2008, the information was further amended to add a charge of child endangerment by infliction of mental suffering ( 273a, subd. (a); count 10). Defendant pleaded no contest to counts 3, 4, 6, 7, 8 and 10, which carried a maximum exposure of 12 years in state prison, in exchange for dismissal of the remaining counts. The sentence was left open to the court.

The probation report recommended a 12-year prison term. Following a sentencing hearing, the trial court committed defendant to the Department of Corrections and Rehabilitation for diagnostic evaluation pursuant to section 1203.03.[2] That report recommended a prison sentence. A supplemental probation report again recommended a 12-year prison term.

On February 19, 2009, the trial court sentenced defendant to serve two years in state prison on count 3, a concurrent term of two years on count 8, and a consecutive term of eight months on count 6, for a total prison term of two years eight months. On counts 4, 7, and 10, the court suspended imposition of judgment and placed defendant on supervised probation for period of five years, to commence upon his release from prison.

The People filed a petition for writ of mandate ordering the trial court to vacate the grant of probation on counts 4, 7, and 10, and the sentence imposed on counts 3, 6, and 8, and to resentence defendant on all counts (case No. A124599). The People also appealed from the grant of probation, and from the courts failure to impose sentence on the count carrying the longest potential term of imprisonment (case No. A124795). We issued an order to show cause to the superior court and ordered the petition consolidated for all purposes with the appeal.

A. Factual Summary[3]

The sheriffs department began investigating defendant in February 2005, when information came to light that defendant had videotaped minors having sexual relations. At that time, defendant was a 30-year-old volunteer fire captain for the Bennett Valley Fire Department and was employed as a Rohnert Park police officer. He had previously served as an advisor to the Fire Explorers for several years where he had met the minor victims.

John Doe 1was a Fire Explorer for four years, from 2000 until his 18th birthday in January 2004. He became good friends with defendant and would visit defendants home two to three times per week to socialize, watch movies, shoot guns, and drink alcohol. When Doe 1 was 17 years old in 2003, defendant talked him into letting defendant videotape Doe 1 having sex with his girlfriend, Shauna, at the Bennett Valley firehouse. Shauna, who was 18 years old at the time, had no knowledge her sexual contact with Doe 1 was being videotaped and did not give her permission for doing so. Defendant later showed the videotape to Doe 1, John Doe 2, and to several adult male friends. Defendant made a second video of Doe 1 and Shauna having sex at defendants residence, again without Shaunas knowledge or permission. Defendant later showed this video to Doe 1. When the investigation of defendant began, defendant contacted Doe 1 and attempted to dissuade him from talking to investigators.

John Doe 2 became a Fire Explorer in August 2001. Defendant befriended him when he was 16 years old, and he viewed defendant as a mentor/father figure. Doe 2 began viewing pornography at defendants residence when he was still 16 years old. Doe 2 reported masturbating alone and in groups of other males while watching pornography at defendants residence. The latter activity, which began at defendants instigation, occurred up to three times per month for several years. Doe 2 reported that defendant grabbed his exposed penis with his hands on more than one occasion, asked to smell Doe 2s genitals after Doe 2 had just had sex with a female, and had groped Doe 2s penis on one occasion when he was sleeping over. Just before Doe 2 turned 18, defendant took nude pictures of Doe 2, two involving Doe 2 masturbating, telling Doe 2 he was going to sell the pictures on the Internet and share the proceeds with him. Approximately a week later, defendant handed $80 to Doe 2, telling him his pictures had made money.

When Doe 2 was 18 years old, defendant talked him into allowing defendant to videotape Doe 2 having sex with his girlfriend, Rachel, a few days after her 18th birthday. The videotape was made through the bedroom window of defendants residence without Rachels knowledge or consent. Defendant later played the videotape for Doe 1, Doe 2, and another male. When the police investigation began, defendant told Doe 2 not to speak with anyone about the events that had occurred.

Defendant befriended John Doe 3 through the Fire Explorers program in the summer of 1994, when Doe 3 was 13 or 14 years old. Defendant was 19 or 20 years old at the time. Defendant talked Doe 3 into masturbating with him. Defendant and Doe 3 mutually masturbated to ejaculation on 15 to 20 occasions when Doe 3 was between 13 and 17 years of age. On one occasion defendant attempted to grab Doe 3s penis, and when Doe 3 was 17 years old, he discussed having Doe 3s girlfriend over so defendant could film them having sex.

Police executed a search warrant at defendants residence on February 18, 2005, and found an attic area, accessible through the master bedroom closet, containing a TV, attached VCR, and videotapes, including the video at the firehouse depicting Doe 1 and Shauna, the video at defendants residence depicting Doe 1 and Shauna, the video depicting Doe 2 and Rachel engaged in sexual activity, and a videotape showing Doe 1 and Doe 2 masturbating and showering nude. On defendants computer hard drive, police also found three video files depicting Doe 1 engaged in sexual activity with an unknown female filmed from outside the defendants bedroom window, 150 digital images of nude male teenagers created inside of defendants home, and a large number of other video and digital image files, some containing suspected child pornography.

II. DISCUSSION

A. Lawfulness of Hybrid Sentence

The People contend the trial courts hybrid sentence of imprisonment on counts 3, 6, and 8, combined with probation on counts 4, 7, and 10 in the same case, is unlawful. We agree.

The defendant in In re Nichols (1927) 82 Cal.App. 73 (Nichols) was convicted of conspiracy to commit extortion and conspiracy to falsely maintain a suit. (Id. at p. 74.) The trial court sentenced him to probation on one count and a state prison term on the other. (Ibid.) The Court of Appeal held the sentence was invalid: [T]he the defendant could not be under a sentence to the state prison and at the same time be either released on probation or remanded to the custody of the sheriff to be confined in the county jail. The two respective conditions of the judgment are so opposed one to the other that neither is capable of enforcement without doing extreme violence to, if not destroying, the other. The result is as though no judgment had been rendered. (Id. at p. 82.)

Defendant argues Nichols is inapposite in two respects. First, the Nichols court held preliminarily that the two conspiracy charges against the defendant constituted a single offense. (Nichols, supra, 82 Cal.App. at pp. 7582.) Defendant points to language in the case suggesting the courts rejection of a hybrid probation/prison term sentence was based in part on that finding.[4] Here, there is no dispute the court imposed the prison sentence and probationary term for different offenses. Second, defendant notes that unlike in Nichols the court in this case did not order that defendant serve his prison sentence and probationary term concurrently. He concedes such a concurrent sentence would be unlawful since it would be impossible for him to comply with the terms of his probation while serving time in prison. But no such conflict would exist in this case, according to defendant, because the court ordered defendant to report to the probation department two days after completing his state prison term.

In our view, the principle stated in Nichols that a simultaneous sentence of imprisonment and probation is contradictory and unlawfuldoes not hinge on the distinctness of the charges for which the two terms are imposed. This was made clear in People v. Cramer (1983) 149 Cal.App.3d 1135 (Cramer), which involved inconsistent sentences imposed for different offenses charged in separate cases. Cramer also directly addresses defendants claim that any conflict can be avoided by ordering probation to begin after defendant completes his state prison term.

The defendant in Cramer entered into a plea agreement under which he was to receive probation conditioned on serving a possible 15 months in the county jail. (Cramer, supra, 149 Cal.App.3d at p. 1136.) Before sentencing took place, the defendant received a three-year state prison sentence as a result of a probation violation in another case. (Id. at p. 1137.) The trial court ordered that upon defendants release from state prison in the latter case, he was to be returned to the county jail to serve the 15 months imposed as a condition of probation as part of his plea agreement. (Ibid.) The Court of Appeal held this order was impermissible: Since defendant was under a state prison sentence, the court could not order him released on probation or remanded to the sheriff to serve the 15 months in the county jail prior to commencement of the state prison sentence. [Citation.] [] . . . [] The question which thus arises is whether a court can suspend proceedings and place a defendant on probation for a term of years and then stay the running of the probationary term until a completion of a state prison sentence imposed on another charge. [] . . . [] We are . . . unaware of any statutory or case law which permits a court to use its authority to stay execution of a judgment for the purpose of providing that a probationary sentence be served consecutively to a state prison sentence. [] Such a procedure would appear to run counter to the underlying spirit and purpose of probation and the determinate sentence law. Probation is presumed to be a rehabilitative device which normally would be attempted prior to sentencing a defendant to state prison. [] . . . [] In summary, we conclude that a court may not order a probationary sentence to run consecutively to a state prison sentence by the device of staying the execution of the former until completion of the latter. (Id. at pp. 11371139, italics added.)

The Cramer court pointed out that it would be incongruous for an ex-prisoner to be placed simultaneously under parole and probationary supervision upon his release from prison. (Cramer, supra, 149 Cal.App.3d at p. 1138.) The court found additional statutory support for its holding in section 1203.2a, which provides that a defendant who is on probation and who receives a state prison sentence in another proceeding can require that his probation be revoked and sentence imposed: The clear purpose of that statute is to prevent a defendant from being simultaneously subject to the jurisdiction of the Department of Corrections and a local probation department. (Id. at p. 1139.)

Thus, Cramer specifically rejected the disposition ordered herea term of imprisonment to be followed by a term of probation. We find its reasoning persuasive. In addition, the trial courts order in this case clashes with relevant sentencing statutes. Sections 669 and 1170.1 refer to a consecutive term exclusively as a term of imprisonment and do not contemplate a term of probation consecutive to a term of imprisonment. Section 1203, on the other hand, defines probation as the suspension of imposition or execution of a sentence. (See  1203, subd. (a).) This further supports Cramers holding that the Legislature did not intend to authorize hybrid sentencing orders.

We conclude the trial courts sentencing order was unlawful in ordering probation on some counts and imposing a state prison sentence on others. The entire sentence must be vacated by the trial court on remand, and a lawful sentence imposed.

B. Selection of Principal Term

According to the People, the trial courts sentence was unlawful on the additional ground that the court was required by sections 1170.1 and 654 to punish defendant for the offense that carries the longest potential term of imprisonment. In this case, that would have been count 7, photographing a child engaged in sexual activity for commercial purposes, which provides for a sentencing triad of three, six, or eight years. ( 311.4, subd. (b).) We address that issue because it will be relevant to defendants resentencing on remand.

The trial court avoided imposing sentence on count 7 by suspending imposition of sentence and granting probation on that count while designating the middle term of two years on count 3 (surreptitiously recording a confidential communication without consent) as the principal term. This particular option will be foreclosed on remand, and the issue is whether the court will therefore be required to use count 7 as the principal term of any lawful state prison sentence it may impose. We conclude that the trial courts choice of a principal term on remand will not be so constrained.

Section 1170.1, subdivision (a) explains how a trial court applies consecutive sentencing when the defendant has been convicted of multiple offenses carrying determinate sentences: [S]ubject to Section 654, when any person is convicted of two or more felonies . . . and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements . . . . The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses. (Italics added.)

The trial courts discretion over the choice of a principal term under section 1170.1 was construed in People v. Miller (2006) 145 Cal.App.4th 206 (Miller). The trial court in Miller sentenced the defendant to a longer aggregate term than would have otherwise been necessary based on its belief that section 1170.1 compelled it to choose a principal term based on the offense carrying the highest triad of mitigated, middle, and aggravated terms. (Miller, at p. 214.) The Court of Appeal reversed the sentence, finding the trial court failed to exercise the full extent of its discretion under section 1170.1. (Miller, at p. 218.) The Miller court held section 1170.1 did not in fact require the trial court to use the offense carrying the greatest punishment to establish the principal term. The court focused on the phrase, The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, pointing out that the qualifying phrase imposed by the court did not limit the trial courts discretion over the choice of a principal term: In our view, Penal Code section 1170.1, subdivision (a), plainly and unambiguously provides that the trial court must designate as the principal term the longest term actually imposed by the court, which is not necessarily the longest term available under the applicable sentencing triads. (Miller, at pp. 215216.) The court contrasted the phrasing of section 1170.1 with that of section 654, which does express a legislative intent to require trial courts to choose the longest possible term of imprisonment when sentencing for an act or omission punishable under different provisions of law:  An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment . . . .  (Miller, at p. 216, italics added.)

As construed in Miller, as long as the conviction offenses arise from different acts for purposes of section 654, section 1170.1 gives the trial court discretion to choose as the principal term the mitigated, middle, or aggravated term for any of the conviction offenses, with the proviso that the principal term must be the greatest term of imprisonment imposed, i.e., the principal term must exceed one-third of the middle term for each of the other offenses for which the defendant is sentenced to consecutive terms. We find Miller persuasive. Contrary to the Peoples suggestion, we find nothing in People v. Felix (2000) 22 Cal.4th 651 or elsewhere that contradicts its reading of section 1170.1.[5]

Accordingly, on remand, the trial court is not bound to sentence defendant using count 7 to determine the principal term of imprisonment. It may not, however, impose a term of imprisonment on some counts and suspend imposition of sentence and grant probation on others. We express no opinion beyond that on what sentence should be imposed on remand.

III. DISPOSITION

Let a peremptory writ of mandate issue commanding the respondent court to vacate the grant of probation on counts 4, 7, and 10, and the sentence imposed on counts 3, 6, and 8, and to resentence defendant on all counts in accordance with law and the views expressed in this opinion.

_________________________

Margulies, J.

We concur:

_________________________

Marchiano, P.J.

_________________________

Dondero, J.

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

[2] Section 1203.03, subdivision (a) provides: In any case in which a defendant is convicted of an offense punishable by imprisonment in the state prison, the court, if it concludes that a just disposition of the case requires such diagnosis and treatment services as can be provided at a diagnostic facility of the Department of Corrections, may order that defendant be placed temporarily in such facility for a period not to exceed 90 days, with the further provision in such order that the Director of the Department of Corrections report to the court his diagnosis and recommendations concerning the defendant within the 90-day period.

[3] The following summary of the offenses is drawn from the probation report.

[4] The Nichols court stated: [I]t is manifest that on a conviction on what we have held was a single charge of conspiracy, the trial court had no authority to grant probation to the defendant and at the same time to sentence her to a term of imprisonment in the state prison. The court might have done either the one thing or the other, but clearly not both of them. (Nichols, supra, 82 Cal.App. at p. 81, italics added.)

[5] The People also cite People v. Chagolla (1983) 144 Cal.App.3d 422, which observes in a footnote that the trial court has no discretion in selecting the principal term except when choosing among terms of equal length. (Id. at p. 433, fn. 1.) However, since the interpretation of section 1170.1 was not an issue before the court in Chagolla and was not necessary to its decision, Chagolla does not constitute conflicting authority on this point.