P. v. Williams



















Filed 4/10/13 P. v. Williams CA4/2















NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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>



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

THE PEOPLE, Plaintiff and Respondent, v. RODNEY JAMES WILLIAMS, Defendant and Appellant.

E054152 (Super.Ct.No. RIF128198) O P I N I O N

APPEAL from the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County. John D. Molloy,
Judge. Affirmed with directions.

David McNeil Morse, 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 Peter Quon, Jr. and Christopher P. Beesley, Deputy
Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant Rodney James Williams
violated Penal Code section 288, subdivision (a),href="#_ftn1" name="_ftnref1" title="">^[1] by committing lewd and lascivious acts against
two children he babysat: six-year-old
Jane Doe 1 and five-year-old Jane Doe 2.
Subsequently, he babysat Jane Doe 1, Jane Doe 2, and a third child,
10-year-old Jane Doe 3. When the
children were in the living room, he played a pornographic movie on the
television while Jane Doe 2 danced partly naked. Jane Doe 3 put a pillow in front of her
face because she did not want to watch.
Defendant pulled the pillow away from her. Shortly afterward, Jane Doe 1’s mother pulled
into the driveway. Defendant stopped the
videotape and told the children not to say anything.

In addition to being convicted of
violating section 288, subdivision (a) against Jane Doe 1 and Jane Doe 2 and of
exhibiting harmful matter to minors with the intent to seduce (§ 288.2,
subd. (a)), he was convicted of attempted lewd and lascivious conduct against
Jane Doe 3. He was sentenced to an
indeterminate term of 15 years to life plus a consecutive five-year determinate
term.

Defendant does not challenge his
convictions for the crimes he committed against Jane Doe 1 and Jane Doe 2. His primary href="http://www.mcmillanlaw.com/">contention on appeal is that the
evidence is insufficient to support the conviction for attempted lewd and lascivious
acts with Jane Doe 3. He also asserts
that the court failed to exercise its discretion when it ordered that the
determinate term run consecutive to the indeterminate term. The People dispute defendant’s contention
regarding the attempt conviction, but agree that the court failed to exercise
its sentencing discretion and that a new sentencing hearing is required.

We will affirm the conviction for
attempted lewd and lascivious conduct and direct the court to hold a new
sentencing hearing so that it may exercise its sentencing discretion.

II. FACTUAL
SUMMARY

In the spring of 2005, Georgina M.
and her daughter Jane Doe 2 were living at the home of Mary H. and her
children, including Jane Doe 1. Jane Doe
1 was six years old and Jane Doe 2 was five years old. Defendant is Jane Doe 1’s 20-year-old
cousin. He was also living at Mary H.’s
residence and would babysit Jane Doe 1 and Jane Doe 2 while their mothers were
at work.

The evidence at trial regarding
defendant’s sexual contact with Jane Doe 1 and Jane Doe 2 consisted primarily
of videotape recordings of Riverside Child Assessment Team (RCAT) interviews
that were made when the children were six and five years old, respectively, and
the children’s testimony at trial more than five years later. The children’s descriptions of events during
the RCAT interviews are somewhat disjointed and chronologically vague, and
their trial testimony was at times inconsistent with their RCAT
statements. Nevertheless, viewing the
evidence, as we must, in a light favorable to the judgment (see >People v. Johnson (1980) 26 Cal.3d 557,
578), there is substantial evidence of multiple instances of lewd and
lascivious acts by defendant upon Jane Doe 1 and Jane Doe 2, including the
following: (1) defendant touched Jane Doe 1’s vagina with
his finger when she was naked; (2) defendant licked the children’s vaginas;;
(3) defendant put lotion on Jane Doe 2’s naked body and on the buttocks of both
children; (4) the children put lotion on defendant’s penis at his request; (5)
defendant touched the children’s buttocks and vaginas with his penis; and (6)
at defendant’s direction, the children sat naked on a large teddy bear as he
watched and rubbed his finger on Jane Doe 2’s buttocks.

On March 28, 2005, Jane Doe 3 went to Mary H.’s residence
after school. Jane Doe 1 and Jane Doe 2
were there. (Some time prior to this,
Jane Doe 1 and Jane Doe 2 told Jane Doe 3 that defendant had “touched” them.) Defendant played a pornographic DVD on the
television in the living room with the children present. He asked Jane Doe 2 to take her clothes
off. This “scared and shocked” Jane Doe
3. Jane Doe 2 pulled her pants and
underwear down, and danced while the movie played. Jane Doe 3 put a pillow in front of her
face. Without saying anything, defendant
took the pillow away from Jane Doe 3 and sat on top of it. Defendant remained dressed and never touched
Jane Doe 3 or the other children on this occasion.

After the DVD played for about five
minutes, Mary H. pulled into the driveway.
Defendant jumped up, stopped the DVD, and told the children not to say
anything. Jane Doe 3 was scared because
she did not know what would happen if she said something.

Jane Doe 1 told Jane Doe 2’s mother
about defendant’s sexual contact with her and Jane Doe 2. Georgina M. then asked
Jane Doe 2, who confirmed what Jane Doe 1 said.
The police were then contacted.

During their RCAT interviews, Jane
Doe 1 and Jane Doe 2 referred to watching a pornographic movie with
defendant. It is unclear how many times
the children watched the movie. At one
point, Jane Doe 1 told the interviewer that Jane Doe 2 wanted to “lick
[defendant’s] long thingy.” When the
interviewer asked how Jane Doe 2 knew “about that stuff,” Jane Doe 1 responded,
“‘Cause from [defendant]. ‘Cause the
movies they took away . . . .’”
This suggests that they watched the movie on at least one occasion
before the March 28, 2005, incident. In
addition, Jane Doe 2 referred to “the first time [when] he just made me watch
the movie,” implying they watched the movie more than once.

At trial, defendant testified that
he did not show the children a pornographic movie and did not molest them. He may have put lotion on the girls, but not
in a sexual way. The defense produced
three character witnesses who had known defendant for at least 15 years. Other than hearing of the allegations in this
case, they had never seen or heard of defendant acting inappropriately around
children.

III. ANALYSIS

A. Sufficiency
of the Evidence to Support the Conviction for Attempt to Commit Lewd and
Lascivious Acts Against Jane Doe 3

Defendant contends the evidence is
insufficient to support his conviction on count 3 for attempting to commit a
lewd and lascivious act upon Jane Doe 3 in violation of section 288,
subdivision (a). We disagree.

In addressing a challenge to the
sufficiency of the evidence supporting a conviction, we “must review the whole
record in the light most favorable to the judgment below to determine whether
it discloses substantial evidence—that is, evidence which is reasonable,
credible, and of solid value—such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.” (People
v. Johnson, supra, 26 Cal.3d at p. 578.)
“[A]lthough reasonable inferences must be drawn in support of the
judgment, [a reviewing court] may not ‘go beyond inference and into the realm
of speculation in order to find support for a judgment. A [conviction] which is merely the product of
conjecture and surmise may not be affirmed.’
[Citations.]” (>People v. Memro (1985) 38 Cal.3d 658,
695 (Memro).)

Section 288, subdivision (a)
provides: “[A]ny person who willfully
and lewdly commits any lewd or lascivious act . . . upon or with the
body, or any part or member thereof, of a child who is under the age of 14
years, with the intent of arousing, appealing to, or gratifying the lust,
passions, or sexual desires of that person or the child
. . . .” The statute
requires “a touching of ‘any part’ of the victim’s body.” (People
v. Martinez (1995) 11 Cal.4th 434, 442.)


“An attempt to commit a crime
consists of two elements: a specific
intent to commit the crime, and a direct but ineffectual act done toward its
commission.” (§ 21a.) “‘“Although mere preparation such as planning
or mere intention to commit a crime is insufficient to constitute an attempt,
acts which indicate a certain, unambiguous intent to commit that specific
crime, and, in themselves, are an immediate step in the present execution of
the criminal design will be sufficient.
[Citations.]” [Citation.]’ [Citation.]
No clear marker divides acts that are merely preparatory from those
initiating the criminal act.
Nonetheless, ‘the more clearly the intent to commit the offense is shown
. . . “the more likely that steps in the early stages of the
commission of the crime will satisfy the overt act requirement”’ of an
attempt. [Citation.]” (People
v. Crabtree (2009) 169 Cal.App.4th 1293, 1322.)

Memro
is instructive. In that case, the state
Supreme Court upheld a murder conviction on a felony-murder theory where the
underlying felony was the attempt to commit a lewd and lascivious act in
violation of section 288, subdivision (a).
(Memro, supra, 38 Cal.3d at
pp. 695-700.) The defendant in >Memro asked the seven-year-old male
victim if he wanted to go get a Coke. (>Id. at pp. 690-691.) As he drove the boy to his apartment, the
defendant “‘had it in the back of his mind he was going to try to take some
pictures of [the boy] in the nude because that is how he got his sexual satisfaction,
photographying [sic] young boys in
the nude.’” (Id. at p. 691.) On the walls
and shelves of the defendant’s apartment were hundreds of photographs of
clothed and partially clad young boys. (>Id. at p. 667.) There were also pornographic books or
magazines in plain view. (>Ibid.)
The defendant took the boy into his bedroom, turned on strobe lights,
and sat down on the bed. (>Id. at p. 699.) The boy stood next to the bed watching the
strobe lights for five or ten minutes. (>Ibid.)
When he suddenly announced he had to leave, the defendant became angry
and strangled him with a clothesline. (>Ibid.)


In concluding there was substantial
evidence to support a finding of an attempt to commit lewd or lascivious
conduct, the Memro court
explained: “[T]he simple act of
accompanying [the boy] up to [the defendant’s] apartment probably fell within
the ‘zone of preparation.’ However, [the
defendant] went beyond preparation. He
ushered the boy into the bedroom to watch the strobe lights and stayed close
by. These were steps which furthered his
aim of readying [the boy] for a nude photography session which was, in all
likelihood, intended to culminate in lewd conduct. These acts, therefore, constituted the
‘actual commencement of his plan’ and were sufficient to support an
attempt. [Citation.] But for [the boy’s] abrupt decision to leave
the apartment, it is likely that these steps would have resulted in a completed
violation of section 288.” (>Memro, supra, 38 Cal.3d at p. 699.)

Defendant focuses his argument on defendant’s
action of removing the pillow from Jane Doe 3’s face, and contends that this is
evidence that he intended only to have Jane Doe 3 watch the movie. This focus, however, is too narrow. As in Memro,
we consider the evidence of defendant’s prior history and his “entire course of
conduct.” (Memro, supra, 38 Cal.3d at p. 699.)


Defendant had engaged in numerous
acts of sexual contact with Jane Doe 1 and Jane Doe 2. The RCAT interviews with the younger children
indicate that they had seen the pornographic movie on at least one occasion
before it was shown to Jane Doe 3 and that viewing the movie may have
contributed to fostering an environment where sexual contact could take
place. The viewing of the movie by Jane
Doe 2, for example, appears to have prompted the child to say she wanted to
lick defendant’s “long thingy.” The
connection between the viewing of the movie and sexual behavior is further
indicated by defendant’s direction to Jane Doe 2 to take off her clothes and
Jane Doe 2’s willingness to dance half-naked while the movie played. In this context, defendant’s acts of putting
on the movie in Jane Doe 3’s presence, having Jane Doe 2 take off her clothes,
and pulling the pillow away from Jane Doe 3’s face, could reasonably be viewed
as steps in the execution of a plan to engage in sexual contact with Jane Doe
3. The jury could thus reasonably
conclude that defendant’s actions would have resulted in a violation of section
288 if he had not been interrupted by the arrival of Jane Doe 1’s mother. We therefore reject defendant’s argument.

B. Court’s
Failure to Exercise >Sentencing Discretion

At the sentencing hearing, the court
pronounced an indeterminate sentence of 15 years for the convictions on the
three counts of violating section 288, subdivision (a). It further pronounced a total determinate
sentence of five years for the convictions of attempted lewd and lascivious
conduct and on the three counts of exhibiting harmful matter to a minor. The following colloquy then took place.

“THE COURT: . . . Do I have discretion in terms
of consecutive versus concurrent on the determinatives (sic) versus
indeterminatives (sic)? [¶] . . . [¶]

“[DEFENSE COUNSEL]: It’s my experience indeterminate has to be
served first.

“THE COURT: I agree.
Determinate sentence will run consecutively to the indeterminate
sentence, total aggregate sentence of 20 years to life.”

Defendant and the People assert that
the court had discretion to decide whether the determinate and indeterminate
terms should run consecutively or concurrently, and that the court’s failure to
understand that it had such discretion requires a new sentencing hearing. We agree.

When a defendant is convicted of
multiple offenses, the court “shall direct whether the terms of imprisonment or
any of them to which he or she is sentenced shall run concurrently or
consecutively.” (§ 669.) In that situation, “a trial court has
discretion to determine whether several sentences are to run concurrently or
consecutively.” (People v. Bradford (1976) 17 Cal.3d 8, 20.) When the record shows that the court
proceeded with sentencing on the erroneous assumption it lacked discretion, the
court should hold a new sentencing hearing “so that the trial court may have the
opportunity to exercise its sentencing discretion.” (People
v. Brown (2007) 147 Cal.App.4th 1213, 1228.)

Here, the court’s question to
counsel indicates the court did not know whether it had discretion to impose
concurrent determinate and indeterminate sentences. Defense counsel’s response—that the
indeterminate sentence must be served first—implies that the sentences must run
consecutively. The court agreed with
this and ordered the sentences to run consecutively. Applying the rules set forth above, the court
must hold a new sentencing hearing to exercise its discretion in deciding
whether to order defendant’s determinate and indeterminate terms to run
concurrently or consecutively.

IV. DISPOSITION

Defendant’s convictions are
affirmed. Following remand, the trial
court shall hold a new sentencing hearing to determine, in its discretion,
whether defendant’s indeterminate and determinate terms shall run concurrently
or consecutively.

NOT TO BE PUBLISHED IN OFFICIAL
REPORTS



KING

Acting P. J.





We concur:



MILLER

J.



CODRINGTON

J.