Opinion
B229569
11-08-2011
THE PEOPLE, Plaintiff and Respondent, v. ROBERT DURAND, Defendant and Appellant.
Juliana Drous, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NA086082)
APPEAL from a judgment of the Superior Court of Los Angeles County, Joan Comparet-Cassani, Judge. Affirmed in part and remanded with instructions.
Juliana Drous, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
Robert Durand ("Durand") appeals his convictions and sentences for sexual intercourse and sodomy with a child 10 years of age and younger, lewd act upon a child, and misdemeanor molestation of a child in violation of Penal Code sections 288.7, 288, and 647.6. Durand contends that (a) his waiver of a jury trial was invalid because the prosecution induced the waiver with a promise of leniency; (b) the court lacked sufficient evidence to find that Durand had the intent of arousing his or the child's sexual desires as required under section 288; and (c) the court erred in sentencing him to 49 years to life because section 667.61 is an alternative sentencing scheme and not an enhancement. As we shall explain, the prosecution did not make a promise of leniency and therefore Durand's jury trial waiver was valid, and the evidence at trial was sufficient to sustain his conviction for lewd act upon a child. Nonetheless, Durand's proper sentence is 41 years to life, rather than 49 years to life. Accordingly, we affirm in part and reverse in part.
All subsequent statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Crimes
D.G. and her cousin, C.M., lived with Durand at his residence in Long Beach, along with Durand's daughter Christie and his grandchildren, including four-year-old K.D. D.G. was born in 1992. C.M. was born in 1993.
Before June 21, 2010, Durand's behavior toward D.G. and C.M. on several occasions had sexual overtones. After D.G. turned 18 in March 2010, on about five occasions she saw Durand outside looking into her window as she was changing clothes. On one occasion, Durand hugged D.G. and began rubbing his penis up and down her leg. Around the time of D.G.'s eighteenth birthday, Durand grabbed C.M., hugged her, and said, "I like you." Durand would also stare "up and down" at C.M.'s body. On at least five occasions between January 1, 2010, and June 21, 2010, Durand approached C.M. with his pants zipper undone and his penis partially showing.
In addition, before mid-June 2010, Durand would often babysit T.B., a neighbor's daughter who would come over several times a week to play with K.D. At the time, T.B. was approximately two years old. While babysitting T.B., Durand would massage T.B.'s shoulders, back, and stomach. On one occasion, Durand lifted T.B. up above his shoulders, placed his face in T.B.'s diaper in between her legs, and made noises.
On June 21, 2010, D.G. came home from school and saw Durand on the floor in front of the television with his pants down, masturbating. As D.G. moved closer to Durand, she then saw K.D. on the floor in front of Durand, wearing nothing but a shirt. D.G. saw Durand insert his penis into K.D.'s "butt cheeks" before she grabbed K.D. and pulled her away from Durand. Durand continued to masturbate until D.G. yelled at him. D.G. took K.D. to her bedroom and Durand followed them. D.G. yelled, "What the fuck are you doing here?" D.G. tried to shut the bedroom door, but Durand stopped the door from closing with his foot. Then, D.G. threatened to call the police if Durand touched her or K.D., to which Durand responded, "You don't have to call the police. You don't have to tell Christie." D.G. left the house with K.D. and went to a neighbor's house, where she waited for Christie to come home before calling the police.
At about 2:30 p.m., Long Beach Police Officer Robert Ryan responded to D.G.'s call. Officer Ryan asked Durand if he was "Robert" and Durand replied, "Yes, I am." Durand asked, "Are you here for me?" and then continued: "I know I screwed up. I've never done that before, you know, with a child." Officer Ryan then advised Durand of his Miranda rights, which Durand waived.
While Durand was in the police car outside his house, Officer Jose Gonzalez spoke with him about the incident with K.D. Durand told Gonzalez that he "got brave and wanted to mess around or screw around" with K.D., and that he removed her pull-shorts, masturbated to erection, and pushed his penis into her butt cheeks, thrusting several times. Durand further stated that he raised K.D.'s leg, started touching her vagina, and then inserted the head of his penis into her vagina, but did not ejaculate. Durand said, "I know what I did was wrong and I know she is just a child. I screwed up really bad."
After this, Officer Alex Lawrence transported Durand to the hospital, during which Durand repeated to Officer Lawrence the same details he gave to Officer Gonzalez. Durand added that he also placed his penis in K.D.'s mouth, and penetrated K.D.'s anus with his penis, and that he had had intercourse with K.D. four times. In addition, Durand described an incident a few days before when he was changing T.B.'s diaper, became aroused, and penetrated her anus with his penis.
Durand wrote letters of apology to both T.B. and K.D. B. Charges and Trial
Durand was initially charged with four counts: sexual intercourse and sodomy with a child 10 years of age and younger (Count 1) (§ 288.7, subd. (a)); a lewd act upon a child (Count 2) (§ 288, subd. (a)); and misdemeanor molestation of a child (Counts 3 and 4) (§ 647.6, subd. (a)(1)).
Durand pleaded not guilty to all four counts. At the hearing on October 21, 2010, the prosecutor began taking Durand's waiver of jury trial by stating, "I explained to your counsel I'll be asking for a lesser related offense of 288(a) under the Count 1 charge. With that understanding I'm going to ask you whether or not you want, you would like to have the court sit as a judge of the facts." The prosecutor then took Durand's waiver, to which Durand's counsel also consented.
On October 25, 2010, the prosecutor filed a First Amended Information, with an additional charge of lewd act upon a child (§ 288, subd. (a)) listed as Count 5. At the beginning of Durand's trial, the court acknowledged the prosecution's amended information. The prosecutor then asked Durand's counsel, "Counsel, do you acknowledge receipt of the First Amended Information, waive reading and advisement of rights and enter a plea of not guilty on your client's behalf?" Durand's counsel responded, "Yes. I was aware you intended to file this earlier."
The court found Durand guilty on four counts, dismissing one count of misdemeanor molestation. Durand was sentenced to 25 years to life on count 1 (§ 288.7, subd. (a)); 8 years for count two (§ 288, subd. (a)); and 1 year on count 3 (§ 646.6, subd. (a)(1)). The court stayed his sentenced on count 5 (§ 288, subd. (a)) because it arose from the same incident as count 1. With respect to count 2, the court applied section 667.61 as an enhancement, adding 15 years to life to Durand's 8 year sentence. In total, Durand's sentence amounted to 49 years to life in prison.
Durand filed this appeal.
DISCUSSION
I. Waiver of Jury Trial
Durand contends that the prosecutor's statement about amending the information to add a count five to his charged offenses was a promise of leniency that induced Durand's waiver of jury trial. We disagree.
A criminal defendant has a constitutional right to a jury trial. (U.S. Const, art. III, § 2 ["Trial of all Crimes, except in Cases of Impeachment, shall be by Jury . . ."]; amend. VI ["In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . ."].) This federal right to jury trial has been incorporated against the States under the due process clause of the Fourteenth Amendment. (U.S. Const., amend XIV, § 1; Duncan v. Louisiana (1968) 391 U.S. 145, 149.) The California Constitution also preserves a criminal defendant's right to a jury trial. (Cal. Const., art. I, § 16; see also § 689 ["[n]o person can be convicted of a public offense unless by verdict of a jury"]; § 1042 ["[i]ssues of fact shall be tried in the manner provided in Article I, Section 16 of the Constitution of this state"].)
Although a criminal defendant in California has an "inviolate" constitutional right to a jury trial, he may waive this right. (Cal. Const., art. I, § 16.) To waive the right to a jury trial, a criminal defendant and his counsel must do so expressly in open court with the consent of both parties. (People v. Ernst (1994) 8 Cal.4th 441, 445.) A defendant must express this waiver in words, and the court will not imply a waiver from a defendant's conduct. (People v. Holmes (1960) 54 Cal.2d 442, 443-44.) If the defendant's waiver is not express, his conviction must be reversed. (People v. Ernst, supra, 8 Cal.4th at p. 449.) Moreover, even if both counsel stipulate to waive a jury trial, a defendant himself must verbally consent to the waiver. (People v. Walker (1959) 170 Cal.App.2d 159, 166.) The defendant must voluntarily, knowingly, and intelligently waive his right. (Colorado v. Spring (1987) 479 U.S. 564, 573.) Finally, a court may not obtain a waiver of jury trial either by penalizing a criminal defendant for exercising his constitutional right, or by promising leniency for refraining from exercising a right. (People v. Collins (2001) 26 Cal.4th 297, 305-306.)
Here, at the October 21, 2010, pretrial hearing, the prosecutor made the following statement to Durand and his counsel: "I explained to your counsel I'll be asking for a lesser related offense of 288(a) under the Count 1 charge. With that understanding, I'm going to ask you whether or not you want, you would like to have the court sit as a judge of the facts." Afterwards, the prosecutor explained Durand's right to a jury trial, and Durand and his counsel waived the jury trial.
In view of the totality of the circumstances, we reject Durand's claim that the prosecutor's statement was a promise of leniency. Rather the prosecutor was simply explaining to Durand and his counsel that he wanted to add a fifth charge against Durand. The prosecutor stated that he wanted to ask for an additional lesser related offense of section 288, subdivision (a) under the count one charge (violation of § 288.7), not in exchange for the count one charge. Second, if Durand or his counsel had in fact understood the prosecutor's statement as a promise, then either should have objected when, at the beginning of trial, the prosecutor asked to amend the information to add a count five in addition to count one. Finally, if Durand and his counsel had believed the prosecutor had promised to dismiss count one, they had an opportunity to object at Durand's sentencing, but failed to do so. At Durand's sentencing, the court stated that counts "1 and 5 are in the alternative." The prosecutor further asked for count 5 to be "stayed due to the imposition of the time in count 1." Neither the court nor the prosecutor considered count 5 as a substitute for count 1, but as two separate counts. Durand's counsel did not challenge either the prosecutor's or the court's view that count 1 and count 5 were separate counts.
In short, in view of the foregoing circumstances, it appears that the prosecutor did not promise to charge a lesser offense (i.e., § 288, subd. (a)) in exchange for Durand's waiver of his right to a jury trial. Consequently, Durand has not demonstrated reversible error.
II. Sufficiency of Evidence
On appeal, Durand argues that sufficient evidence did not support his conviction under section 288, subdivision (a) for lewd act upon a child, T.B. In particular, Durand claims that the evidence fails to support a finding of sexual intent accompanying his physical contact with T.B. Upon reviewing the record, we find that there is sufficient circumstantial evidence of Durand's sexual intent to support his section 288, subdivision (a) conviction.
A criminal conviction not supported by sufficient evidence violates both state and federal due process and is thus invalid. (U.S. Const., amend. XIV, § 1; Cal. Const., art. I, § 15; People v. Rowland (1992) 4 Cal.4th 238, 269.) In reviewing the sufficiency of evidence, we must determine whether a reasonable trier of fact could have found a defendant guilty beyond a reasonable doubt on each element of a crime. (Ibid.)Moreover, we view the evidence in the light most favorable to the prosecution (People v. Johnson (1980) 26 Cal.3d 557, 578), and we must presume the existence of every fact that the trier of fact could reasonably deduce from the evidence. (People v. Upsher (2007) 155 Cal.App.4th 1311, 1322.) The sufficient evidence standard is the same whether the evidence is direct or circumstantial. (People v. Whisenhunt (2008) 44 Cal.4th 174, 200.) Even if we find that circumstantial evidence might also reasonably justify a contrary finding, reversal of the judgment is not warranted. (People v. Park (2003) 112 Cal.App.4th 61, 68.)
Furthermore, substantial evidence 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 (1980) 26 Cal.3d 557, 578.) A reversal is warranted only if "upon no hypothesis whatever is there sufficient evidence to support the conviction." (People v. Bolin (1998) 18 Cal.4th 297, 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
With these principles in mind, we review the evidence of Durand's sexual intent presented in the record on appeal.
The sole element of section 288, subdivision (a) that Durand challenges is the element of intent, but his challenge is without merit. Section 288, subdivision (a) prohibits "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." "A lewd or lascivious act can occur through the victim's clothing and can involve 'any part' of the victim's body." (People v. Martinez (1995) 11 Cal.4th 434, 444.) A trier of fact looks to "all the circumstances, including the charged act, to determine whether it was performed with the required specific intent." (Ibid.)Other relevant factors can include the defendant's extrajudicial statements, other acts of lewd conduct admitted or charged in the case, and the relationship of the parties. (Ibid.)
The trial court convicted Durand for an incident in which he rubbed his face in T.B.'s diaper, in her groin area. At trial, C.M. testified that she saw Durand holding T.B. "on his shoulders," with "her legs over his shoulders." His face was "in the front of her Pamper [diaper]," "in between [T.B.'s] legs and vagina area," and Durand was moving his face as if he were "smothering [it] in a pillow."
Standing alone, the facts of the diaper incident that C.M. witnessed would not necessarily serve as sufficient evidence of sexual intent. However, we find that the totality of the circumstances provides more than sufficient evidence of Durand's sexual intent with respect to T.B. In People v. Cantrell, the California Supreme Court found that the defendant's extrajudicial admissions about his acts toward the victim were sufficient to show defendant had the sexual intent required by section 288, subdivision (a). (People v. Cantrell (1973) 8 Cal.3d 672, 681, disapproved on another ground in People v. Flannel (1979) 25 Cal.3d 668.) In that case, the court inferred sexual intent from Cantrell's statements that "he was 'queering with the kid,' fondling the boy's penis with his hands, and that he strangled him when he started to yell." (Ibid.)
Here, Officer Lawrence testified that Durand revealed to Lawrence another incident with T.B., which had taken place a few days before. Durand told Lawrence that as he was changing T.B.'s diaper, Durand "became sexually aroused" and "penetrated her vagina with his penis." Durand then corrected himself and said he penetrated T.B.'s anus. Officer Lawrence further testified that Durand "wrote letters of apology to both T.B. and K.D." for his actions, letters introduced into evidence at trial. Also played (but not transcribed) at trial was a tape of Durand explaining "what he had written in those letters." Like the defendant's admissions in Cantrell, Durand's statements about his arousal during a separate diaper-changing incident with T.B. serve as sufficient circumstantial evidence that he had the requisite sexual intent during the diaper incident with T.B.
Moreover, Durand's admission of sexual arousal during the uncharged diaper-changing incident with T.B. serves as evidence of similar intent during the diaper incident that C.M. witnessed. "Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense." (People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2; see also Evid. Code, §§ 1101, 1108.) When the prosecution introduces evidence of an uncharged offense, the "uncharged misconduct must be sufficiently similar" to allow a trier of fact to infer that the defendant "probably" had the same intent in each instance. (People v. Ewoldt, supra, 7 Cal.4th at p. 402.)
Here, both diaper incidents are sufficiently similar to allow a trier of fact to infer that Durand probably had the same intent in each instance. In both incidents, Durand was babysitting T.B. In the uncharged incident, Durand admitted that while changing T.B.'s diaper, he became sexually aroused and penetrated T.B.'s anus with his penis. Similarly, in the charged incident, Durand again focused his attention on T.B.'s diaper by placing his face in her groin area. Because both incidents occurred in similar contexts, a trier of fact could infer that Durand likely had a similar sexual intent in both instances.
Finally, Durand invokes the corpus delicti rule for the first time on appeal, stating that without corroborating evidence, his extrajudicial admissions cannot sustain his conviction for lewd act upon a minor. We are not convinced.
In a criminal proceeding, the prosecution must prove the corpus delicti—the fact of injury, loss, or harm, and that a criminal agent caused such fact—without relying exclusively on a defendant's admission. (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169.) This requirement "ensures that a defendant will not be convicted of a crime that never happened." (People v. Tompkins (2010) 185 Cal.App.4th 1253, 1259.) "[A]ppellate courts have entertained direct claims that a conviction cannot stand because the trial record lacks independent evidence of the corpus delicti." (People v. Alvarez, supra, 27 Cal.4th at p. 1170.) Moreover, the prosecution may prove corpus delicti with circumstantial evidence without having to prove beyond a reasonable doubt. (People v. Tompkins, supra, 185 Cal.App.4th at p. 1259.) Such burden of proof is minimal, requiring only a prima facie showing that allows a reasonable trier of fact to infer that a crime happened. (People v. Jones (1998) 17 Cal.4th 279, 301.) Once the prosecution establishes the corpus delicti, the trier of fact may consider a defendant's admissions at "full value to strengthen the case on all issues." (People v. Alvarez, supra, 27 Cal.4th at p. 1171.)
In People v. Alvarez, defendant claimed that the corpus delicti rule barred his extrajudicial admissions of sexual intent toward his minor victim. (Id. at p. 1168.) However, the Alvarez court held that sufficient circumstantial evidence supported defendant's conviction: Defendant had entered the victim's house at night and went directly to the victim's bedroom. (Id. at p. 1181.)
Similarly, Durand's extrajudicial statements are not the exclusive proof of corpus delicti as to his charged offense against T.B. Here, as in Alvarez, sufficient circumstantial evidence shows that even apart from his admission of a prior incident with T.B., Durand had the requisite sexual intent when placing his face in T.B.'s diaper. Durand's pattern of sexual behavior toward the other girls living in his household suggests a reasonable probability that Durand possessed the requisite sexual intent during the incident that C.M. witnessed. (See People v. Ewoldt, supra, 7 Cal.4th at p. 402 [holding that a trier of fact could find that a defendant "probably" had similar intent if uncharged conduct was similar].) Based on this circumstantial evidence, the prosecution established corpus delicti as to the lewd conduct with T.B. Thus, the trial court was justified in using Durand's admissions as additional evidence to convict him.
In view of the foregoing, we conclude that sufficient evidence supported Durand's conviction.
III. Sentencing
Durand further contends on appeal that his 49 years-to-life sentence was error because the trial court erroneously applied the sentencing scheme in section 667.61 as an enhancement and not as an alternative, harsher punishment. Instead of 49 years to life, Durand asserts that his sentence should be no more than 33 years-to-life. Durand also argues that section 667.61 does not apply to his case.
Respondent concedes that the trial court miscalculated Durand's sentence under the alternative sentencing scheme of section 667.61, but argues that the trial court correctly applied section 667.61 to Durand's case. We agree with respondent that section 667.61 applies and the court miscalculated the sentence; Durand's correct sentence should be 41 years to life.
As a threshold matter, we note that Durand properly raises his claim of sentencing error for the first time on appeal. Generally, a failure to make a timely and meaningful objection in the trial court waives a claim of sentencing error. (People v. Scott (1994) 9 Cal.4th 331, 351.) However, we recognize a narrow exception for unauthorized sentences or sentences in excess of jurisdiction. Unauthorized sentences are sentences that cannot lawfully be imposed under any circumstances in a given case. (Id. at p. 354.) We intervene in such instances because these errors are clear and correctable independent of any factual issues present at sentencing. (Ibid.; see also In re Sheena K. (2007) 40 Cal.4th 875, 887; People v. Welch (1993) 5 Cal.4th 228, 235-236.)
The statute at issue, section 667.61, "sets forth an alternative and harsher sentencing scheme for certain enumerated sex crimes." (People v. Mancebo (2002) 27 Cal.4th 735, 741.) Under section 667.61, subdivision (b), "any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 15 years to life." Section 667.61, subdivision (c)(8) specifically enumerates "[l]ewd or lascivious act, in violation of subdivision (a) of Section 288" as one of the applicable crimes. Section 667.61, subdivision (e) further instructs that if a defendant is convicted of a subdivision (c) crime against more than one victim, such conviction warrants a sentence of 15 years to life. Thus, if a defendant is convicted of a section 288, subdivision (a) violation against more than one victim, the plain language of section 667.61, subdivision (b) mandates a sentence of 15 years to life, instead of the 3, 6, or 8 year sentences specified in section 288, subdivision (a). (See § 667.61, subd. (f) [providing that courts should apply sentences under section 667.61 unless other code provisions provide a greater penalty].)
First, Durand's contention that section 667.61 fails to apply in his case lacks merit. As noted above, section 667.61 specifically enumerates violations of section 288, subdivision (a) (lewd or lascivious act with a minor) as an applicable crime.
Second, under the plain language of section 667.61, we find that the trial court clearly miscalculated when it sentenced Durand to 49 years to life. Durand was convicted of one count of sexual intercourse and sodomy with a child 10 years of age and younger (§ 288.7, subd. (a)), two counts of lewd act upon a child with two different victims (§ 288, subd. (a)), and one count of misdemeanor molestation of a child (§ 647.6, subd. (a)(1)). Based on these convictions, the trial court correctly sentenced Durand to 25 years to life for his section 288.7, subdivision (a) violation, and one year for his section 647.6, subdivision (a)(1) violation. However, the trial court erred when it sentenced Durand to 8 years for his section 288, subdivision (a) violation and added as an enhancement 15 years to life under section 667.61, subdivision (b). Instead, section 667.61, subdivision (b) mandates 15 years to life instead of the maximum 8 year sentence under section 288(a), since the maximum penalty under section 288, subdivision (a) is less than the section 667.61 penalty. (See § 667.61, subd. (f).) Therefore, the trial court should have sentenced Durand to a total of 41 years to life, rather than 49 years to life.
DISPOSITION
The October 26, 2010, minute order and the November 2, 2010, abstract of judgment in this matter should be corrected to reflect appellant's sentence of 41 years to life. The superior court is ordered to prepare and file with the Department of Corrections and Rehabilitation an amended abstract of judgment to reflect this change. In all other respects, the judgment is affirmed.
WOODS , J.
We concur:
PERLUSS, P. J. ZELON, J.