P. v. Pechcocom
Filed 2/24/12 P. v. Pechcocom CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
LUIS ALBERTO PECHCOCOM,
Defendant and Appellant.
B235631
(Los Angeles
County
Super. Ct.
No. VA109421)
APPEAL from
a judgment of the Superior Court
of
County, Michael L. Schurr, Judge. Affirmed in part, reversed in part, modified
in part and remanded with directions.
Siri
Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Lawrence M. Daniels and Michael
R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant,
Luis Alberto Pechcocom, appeals from a judgment after he pled no contest to the
continuous sexual abuse of children under the age of 14, A.P. (count 1) and
J.B. (count 9). (Pen. Code,
(a).) As part of the
against defendant were dismissed: 4
counts of lewd and lascivious acts against A.P. (§ 288, subd. (a)); two
counts of forcible rape of A.P. (§ 261, subd. (a)(2); and one count of and
lewd and lascivious acts with or on a child under the age of 14, E.P.
(§ 288, subd. (a).
Defendant
was sentenced to a total of 32 years consisting of 16 years for each count
pursuant to section 667.6, subdivision (d).
Defendant was given 1,010 days of custody credits consisting of 879 of
actual custody plus 131 days of conduct credits. Defendant was ordered to pay: a restitution fine of $10,000 (§ 1202.4,
subd. (b)(1)), a $10,000 parole revocation fine (§ 1202.45); an $80 court
security assessment fee (§ 1465.8, subd. (a)(1); a $60 criminal conviction
fee (Gov. Code, § 70373, subd. (a)(1)); and a $300 sexual habitual
offender fine (§ 290.3, subd. (a).)
II. FACTS
At the
11-year-old daughter, E.P., testified that she was in the second grade in
2006. Defendant was in her bedroom and
touched her “private parts.” Defendant
touched her in the chest and below her chest in the vaginal area. E.P. told an older sister, A.P., about the
incident.
J.B. is
defendant’s niece. She was 17 years old
when she testified at the preliminary hearing.
When she was about 10 or 11 years old, she visited defendant’s home. Sometimes J.B. would spend the night with her
cousins. Defendant would often touch her
private parts at night while she was in her cousins’ bedroom. At other times, he would touch her while they
were in the living room. Defendant
touched her chest and buttocks over her clothes. The touching occurred every time she visited
defendant’s house until she was about 13 or 14 years old. J.B. and A.P. are best friends. Eventually, they confided to each other that
defendant was touching both of them.
Defendants’
daughter, A.P., was 18 years old at the time of the preliminary hearing. Defendant began touching A.P. inappropriately
when she was five years old. At that
time, he touched her in the vaginal area over her clothes. This occurred mostly at night while A.P.’s
mother was working. Defendant would touch
her about three times a week. Defendant
continued to touch A.P. until she was 17 years old.
Between the
time A.P. was 9 and one-half to 12 years old, the touching started to go under
the clothes. Defendant would touch her
in the vaginal area every day. As A.P.
got older, the touching became worse.
Defendant would touch her once or twice a week. Defendant would try to put his finger inside
of her vagina. This happened about two
or three times. Defendant would try to
put his mouth on her vagina but she would move. When A.P. was 14 years old, defendant would
get on top of her. Defendant, who would
be naked, would hold A.P.’s hands over her head and sit on her feet. He would try to put his penis inside of
her. This happened about twice a week. Defendant would put his penis inside her
vagina about twice a week when she was in the tenth grade. When A.P. was in the eleventh grade,
defendant stopped trying to put his penis in her but he continued to touch
her. A.P. first revealed the incidents
to the authorities in February 2009.
A.P. and J.B. confided in one another about the incidents when they were
younger.
III. DISCUSSION
We
appointed counsel to represent defendant on appeal. After examination of the record, counsel
filed an “Opening Brief” in which no issues were raised. Instead, counsel requested this court to
appeal pursuant to People v. Wende
(1979) 25 Cal.3d 436, 441. On November
22, 2011, we advised defendant that he had 30 days within which to personally
submit any contentions or arguments he wishes us to consider. No response has been received.
We
requested the parties to brief issue of penalties and surcharge arising from
the $300 sex offense fine imposed pursuant to section 290.3, subdivision (a). Defendant argues the ex post facto
clauses of the federal and state Constitutions require the base fine to be $200
under versions of Penal Code section 290.3, subdivision (a) which were in existence
prior to September 20, 2006. (Stats.
2006, ch. 69, § 27, eff. July 12, 2006; Stats. 1995, ch. 91, § 121;
1353, 1372; People v. Valenzuela (2009)
172 Cal.App.4th 1246, 1248.) We
agree. Count 1, alleged the sexual abuse
of one child took place from on or between January 1, 2001, and June 5,
2003. Count 9 alleged continuous sexual
abuse of a second child from on or between May 3, 2003, and May 2, 2006. Thus, only a $200, not a $300 section 290.3,
subdivision (a) sex offender fine should be imposed.
In addition, defendant argues ex
post facto principles prohibit imposition of penalties which took effect after
he committed the offenses. (See
2006, ch. 841, § 1, eff. Jan. 1, 2007); 76104.6 (Initiative Measure, Prop.
69, § IV.1, approved Nov. 2, 2004, eff. Nov. 3, 2004); and 76104.7 (Stats.
2006, ch. 69, §18, eff. July 12, 2006.) Defendant is correct
that the penalties under Government Code sections 76000.5 and 76104.7 cannot be
imposed on defendant under ex post facto laws.
(People v. Voit,
Cal.App.4th at p. 1248.)
we agree with the Attorney General that defendant is subject to the
deoxyribonucleic acid penalty under Government Code section 76104.6. This is because Government Code section
76104.6 was effective November 3, 2004.
And, defendant pled guilty to continuous sexual abuse of two children in
the time period from January 1, 2001, through May 2, 2006.
The $200 sex offense fine is subject
to the following penalties and assessments:
a
subd. (a)(1)); a $40 state surcharge (§ 1465.7, subd. (a)); a $20 deoxyribonucleic
acid penalty (Gov.
Code, § 76104.6, subd. (a)(1); and
a $60 state court construction penalty (Gov.Code, § 70372, subd. (a)(1).) (People v. Castellanos (2009) 175
Cal.App.4th 1524, 1528–1530; People v. McCoy (2007) 156 Cal.App.4th
1246, 1254.) The total fine is
$660. However, the $200
provision. Therefore, the fine must be
reversed for the trial court to determine whether the defendant has the ability
to pay a fine totaling $660. (See
People v. McCoy, supra, 156 Cal.App.4th at pp. 1254-1257; People v. Taylor (2004) 118 Cal.App.4th 454, 456-457.) After the ability to pay determination is
made, the trial court is free to reimpose the fine.
We also requested the parties to
address the issue of whether defendant is entitled to two additional days of
presentence credit. Defendant received
1,010 days of presentence credit consisting of 879 days of actual custody
credit and 131 days of conduct credit. The probation report states
defendant was arrested on February 13, 2009.
Defendant was sentenced on July 12, 2011. Because defendant is entitled to credit for
the date of his arrest, there are a total of 880 days between his arrest date
and the sentence date. (
523, 526-527.) Pursuant to Penal Code
section 2933.1, subdivision (b), conduct credit is awarded at the rate of 15
percent, which is 132 days. The total amount
of custody credit is 1,012 days. The
judgment must be modified to reflect 880 days of presentence custody plus 132
days of conduct credit for a total of 1,012 days.
IV. DISPOSITION
The judgment is reversed insofar as
it imposed a $300 Penal Code section 290.3, subdivision (a) sex offense
fine. Upon remittitur issuance, the
trial court is to consider whether defendant has the ability to pay a $200 sex
offense fine plus the applicable penalties and surcharge. The judgment is modified to reflect credit
for 880 days of presentence credit rather than 879 days, plus 132 days of
conduct credit for a total presentence credit of 1,012 days. After the trial court’s decision as to the
$200 sex offense fine, the superior court clerk is to prepare a correct amended
abstract of judgment and deliver a copy to the
respects.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER,
P. J.
We concur:
MOSK, J.
KRIEGLER, J.
unless otherwise indicated.
