Opinion
C081200
10-03-2018
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM NICHOLAS GARCIA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF130000746)
Defendant William Nicholas Garcia appeals following conviction on two counts of sodomy of a child age 10 years or younger and two counts of oral copulation with a child age 10 years or younger (Pen. Code, § 288.7, subds. (a) and (b); undesignated statutory section references are to this Code). Defendant contends (1) the trial court erred in refusing to instruct the jury on attempted sodomy as a lesser included offense of sodomy, and (2) the aggregate sentence of 80 years to life in prison for offenses he committed between the ages of 18 and 20 is a de facto sentence of life without possibility of parole (LWOP) in violation of federal and state constitutional proscriptions against cruel and/or unusual punishment.
In a supplemental brief, defendant requests a limited remand to allow him to develop a record of youth-related factors that may be pertinent to a future "youth offender parole hearing" during his 25th year of incarceration pursuant to section 3051.
We conclude there was no instructional error because attempted sodomy is not a lesser included offense of sodomy. The cruel/unusual punishment claims are moot insofar as they raise questions of law and forfeited insofar as they raise factual questions.
We will order limited remand for the trial court to determine whether the parties had adequate opportunity to develop a record regarding youth-related factors for an eventual section 3051 parole hearing. We also order the parties and the trial court to redact the victim's name from defendant's sentencing statement on pages 270-271 of the clerk's transcript, as ordered by the trial court on page 257 of the reporter's transcript.
We otherwise affirm the judgment.
FACTS AND PROCEEDINGS
The victim is defendant's niece. Defendant lived with his mother, the victim's grandmother. When the victim was five years old, and defendant was 18 years old, the victim and her siblings stayed at their grandmother's house one weekend per month. The victim, age nine at the time of trial, testified that defendant sexually abused her on each visit. At night, while everyone else slept, defendant would awaken the victim and take her to the living room or his bedroom, where he would undress himself and her. He put his "thingy" inside her mouth and told her to lick it. "White stuff" came out of the "thingy," and he sometimes made her lick it, after which she would spit it out in the bathroom. Defendant also stuck his "thingy" inside her "butt," hurting her "a little."
The victim made consistent statements in a multi-disciplinary interview (MDI), though she there said that when defendant "stuck his thingy inside of my butt," that "[i]t kind of hurted [sic] really bad." She said, "Ouch;" he did not say anything. It happened in the living room. He did the same thing another time in his bedroom. About 16 times, he made her touch his thingy until yellow and white stuff came out and made her lick it. The abuse started when she was four or five years old and took place in his bedroom or the living room.
After a visit to grandmother's house in November 2013, the victim (then seven years old) told her mother that defendant (then age 20) was mean and her butt hurt, and she did not want to visit that house anymore. The mother saw redness on the victim's buttocks, assumed it was a rash, and applied cream.
On December 15, 2013, the victim told her mother that defendant had touched her in places that were not supposed to be touched, and her bottom hurt. The mother contacted law enforcement.
Law enforcement recorded an interview with defendant, which was played for the jury. He initially denied the accusations, then indicated he had been molested when he was young, then admitted he did something to the victim but did not remember what. When asked why he did it, he said, "I just -- like something else took over, like when you get really angry and you just go 'Hulk.' It's kind of like that." He knew it was wrong but did not know why he kept doing it. Later in the interview, defendant said he believed he remembered sodomizing the victim, though he did not think he penetrated her anus. He thought his penis was just "against it but not in it." He also remembered ejaculating in her mouth a few times and having her touch his penis with her hands and "masturbate" him. He did not think he penetrated her vagina but admitted he did not remember much.
Defendant was charged with, and a jury convicted him of, two counts of sodomy of a child age 10 or younger (§ 288.7, subd. (a)), and two counts of oral copulation of a child age 10 or younger (§ 288.7, subd. (b)).
On January 11, 2016, the trial court sentenced defendant to an aggregate term of 80 years to life in prison -- 25 years to life for each of the two sodomy counts and 15 years to life for each of the two oral copulation counts.
DISCUSSION
I
Instructional Error
The trial court decided not to instruct the jury on attempted sodomy with a child as a lesser included offense of sodomy, but the court did instruct on simple battery (§ 242) as a lesser included offense. The jury found defendant guilty of sodomy. Defendant argues he was entitled to instruction on attempted sodomy because the jury could have found his penis did not penetrate the victim's anus and therefore find him guilty of attempt -- even though the victim testified he put it "inside" her butt and it "hurt[]." This argument is undermined by the jury's rejection of simple battery as a lesser included offense, but we nevertheless consider defendant's contention on the merits and reject it, because attempted sodomy is not a lesser included offense of sodomy.
A failure to instruct on a lesser included offense supported by substantial evidence invites a verdict based on incomplete instructions and violates the defendant's state constitutional right to have the jury determine every material issue presented by the evidence. (People v. Birks (1998) 19 Cal.4th 108, 118.) Our review is de novo. (People v. Trujeque (2015) 61 Cal.4th 227, 271.)
"[T]wo tests [are applied] in determining whether an uncharged offense is necessarily included within a charged offense: the 'elements' test and the 'accusatory pleading' test. [Citation.] The elements test is satisfied if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, such that all legal elements of the lesser offense are also elements of the greater. [Citation.] In other words, ' "[i]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former." ' [Citations.] Under the accusatory pleading test, a lesser offense is included within the greater charged offense if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense." (People v. Bailey (2012) 54 Cal.4th 740, 748 (Bailey).)
Section 288.7, subdivision (a), provides: "Any person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 25 years to life." Section 286, subdivision (a), defines sodomy as "sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy." The elements of sodomy with a child under age 10 (§ 288.7, subd. (a)) are: (1) The defendant engaged in an act of sodomy with the victim; (2) when the defendant did so, the victim was 10 years of age or younger; and (3) at the time of the act, the defendant was at least 18 years old. (People v. Mendoza (2015) 240 Cal.App.4th 72, 79 (Mendoza); CALCRIM No. 1127.)
Sodomy is a general intent crime and therefore does not include an element that the defendant intended to commit sodomy. (Mendoza, supra, 240 Cal.App.4th at p. 83.)
In contrast, attempted sodomy would require a specific intent to commit sodomy. (Mendoza, supra, 240 Cal.App.4th at p. 83.) "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.) Crimes subject to such attempt statute require that a defendant act with a specific intent to commit the attempted crime in order to be found guilty for the attempt. (Bailey, supra, 54 Cal.4th at p. 749; Mendoza, at p. 83.)
Defendant acknowledges cases holding that there could be no attempt of a general intent crime. (E.g., Bailey, supra, 54 Cal.4th at pp. 747-753 [escape from prison without force or violence under § 4530, subd. (b)]; Mendoza, supra, 240 Cal.App.4th at pp. 83-84 [attempted sodomy is not lesser included offense of sodomy under § 288.7].)
Defendant contends Bailey and Mendoza were wrongly decided. However, Bailey as an opinion of the California Supreme Court is binding on us. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) And Mendoza was correctly decided.
Bailey held that attempted escape from prison was not a lesser included offense of escape from prison, because an escape was complete when the inmate left one portion of the prison without authorization, for example to assault someone in another part of the prison, while attempted escape required intent to leave the prison grounds completely. (Id. 54 Cal.4th at pp. 747-753.) Bailey discussed section 1159, which provides that the trier of fact "may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense." (Italics added.) The Supreme Court noted the disjunctive language appeared to support reducing a conviction to an uncharged attempt if supported by the evidence, but the Supreme Court made the qualification that under section 1159, " ' "[a] defendant may be convicted of an uncharged crime if, but only if, the uncharged crime is necessarily included in the charged crime." ' [Citations.] [¶] In support of the claim that attempt is a lesser included offense of any completed crime, the Attorney General relies on cases that have stated generally that ' " 'it is not conceivable that any crime can be committed in the absence of an attempt to commit it.' " ' [Citations.] . . . [¶] However, '[t]he law of "attempt" is complex and fraught with intricacies and doctrinal divergences.' [Citation.] 'As simple as it is to state the terminology for the law of attempt, it is not always clear in practice how to apply it.' [Citation.] Thus, '[w]e must not generalize in the law of attempt.' [Citation.] Although [some cases] have stated or applied the general principle that attempt is a lesser included offense of any completed crime, it is not applicable here, where the attempted offense includes a particularized intent that goes beyond what is required by the completed offense." (Bailey, at pp. 752-753.)
And, as indicated, Mendoza held that, because of the different mental states required, a defendant could be guilty of the completed offense of sodomy with child age 10 or younger, but not the attempt of that crime. (Id. 240 Cal.App.4th at pp. 81-84.)
Other cases are to the same effect. "If the attempt requires a heightened mental state, as is the case with attempts of many general intent crimes, the attempt requires proof of an additional element and is therefore not a lesser included offense." (People v. Braslaw (2015) 233 Cal.App.4th 1239, 1247-1252 (Braslaw ) [applied Bailey reasoning to conclude that attempted rape of intoxicated person is not lesser included offense of rape of intoxicated person].) "[W]hen the completed offense is a general intent crime, an attempt to commit that offense does not meet the definition of a lesser included offense under the elements test because the attempted offense includes a specific intent element not included in the complete offense." (People v. Ngo (2014) 225 Cal.App.4th 126, 156 (Ngo).)
Defendant invokes the definition of attempt in the A.L.I. Model Penal Code section 5.01, which he views as explaining that the difference between general and specific intent crimes rests upon what the facts show the defendant's intent to be, i.e., whether he intended to commit the subject crime, not whether he intended the exact results required for the subject crime. However, "the evidence that the Model Penal Code finds to be legally sufficient to support an attempt conviction does not conform to California law because under the Model Penal Code standard 'acts normally considered only preparatory could be sufficient to establish liability.' " (People v. Luna (2009) 170 Cal.App.4th 535, 541, fn. 1, citing People v. Dillon (1983) 34 Cal.3d 441, 453-454, fn. 1.)
Defendant compares sodomy of a child under age 10 with sex offenses where attempt is a lesser included offense, e.g., lewd and lascivious acts on a child under section 288, subdivision (a), and sexual penetration of a child under section 288.7, subdivision (b). However, the comparison is inapt because the latter completed crimes are specific intent crimes (§ 288 ["intent of arousing, appealing to, or gratifying" lust or sexual desires]; § 288.7, subd. (b) [incorporates § 289's definition of sexual penetration for "purpose of sexual arousal, gratification, or abuse"]), as stated in Ngo, supra, 225 Cal.App.4th at page 157; see also, People v. Whitman (1995) 38 Cal.App.4th 1282, 1290.
Defendant cites People v. Kelly (1992) 1 Cal.4th 495, 528, for the proposition that the specific intent crime of attempted rape is a lesser included offense of the general intent crime of rape. Kelly did not involve sexual penetration of a child under section 288.7. And Kelly predated and was marginalized by Bailey, did not apply Bailey's elements test, and did not engage in any analysis to establish that attempted rape is a lesser included offense of forcible rape. (Braslaw, supra, 233 Cal.App.4th at p. 1252.) And more recent California Supreme Court cases have recognized that rape and attempted rape require different kinds of intent. (Ibid.) Kelly's general principle is not applicable "where the attempted offense includes a particularized intent that goes beyond what is required by the completed offense." (Braslaw, supra, 233 Cal.App.4th at p. 1252, citing Bailey, supra, 54 Cal.4th at p. 753.) Bailey is controlling.
Thus, attempted sodomy of a child is not a lesser included offense of sodomy of a child under the elements test.
Nor is attempted sodomy a lesser included offense under the accusatory pleading test. Because the pleading tracked the statutory language, i.e., that defendant "did willfully and unlawfully engage in" sodomy, and did not allege that defendant had the specific intent to commit sodomy with the victim or engaged in any direct but ineffectual act toward its commission, attempted sodomy is not a lesser included offense of sodomy under the accusatory pleading test. (Braslaw, supra, 233 Cal.App.4th at p. 1247 [where accusatory pleading tracks the statutory language rather than reciting factual details of the offense, only the statutory elements test is relevant is determining whether an uncharged crime is a lesser included offense of the charged crime].)
We conclude the trial court properly refused to instruct on attempted sodomy as a lesser included offense, because it is not a lesser included offense. We need not address the parties' arguments as to whether instructional error was prejudicial or whether substantial evidence would have supported an instruction on attempted sodomy.
II
Cruel And/Or Unusual Punishment
Defendant contends his sentence of 80 years to life in prison is a de facto sentence of life without possibility of parole (LWOP) that violates federal and state constitutional proscriptions against cruel and/or unusual punishment. (U.S. Const., 8th Amend. ["cruel and unusual punishments [shall not be] inflicted"]; Cal. Const., art. I, § 17 ["Cruel or unusual punishment may not be inflicted"].) These contentions fail.
Because defendant was no longer a juvenile under age 18 when he committed his crimes, he was not subjected to a sentence that violated constitutional principles prohibiting a minor from being sentenced to the functional equivalent of LWOP without considering how minors are different from adults and how those differences counsel against irrevocably sentencing a minor to a lifetime in prison. (E.g., Miller v. Alabama (2012) 567 U.S. 460 ; People v. Caballero (2012) 55 Cal.4th 262, 268; People v. Woods (2018) 19 Cal.App.5th 1080, 1088 (Woods); People v. Perez (2016) 3 Cal.App.5th 612, 616-618 [20-year-old offender's sentence of 86-years-to-life did not constitute cruel and unusual punishment].)
Moreover, defendant's complaint of de facto LWOP is rendered moot by section 3051, which affords defendant a "youth offender parole hearing" during his 25th year of incarceration. (People v. Franklin (2016) 63 Cal.4th 261, 277 (Franklin); Woods, supra, 19 Cal.App.5th at pp. 1086-1087.) Section 3051 provides: "A person who was convicted of a controlling offense that was committed when the person was 25 years of age or younger and for which the sentence is a life term of 25 years to life shall be eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing . . . ." (§ 3051, subd. (b)(3).)
This subdivision applies to defendant, despite his claim that his sentence is a de facto LWOP, because section 3051 speaks to the sentence for "a controlling offense," which is defined as "the offense or enhancement for which any sentencing court imposed the longest term of imprisonment." (§ 3051, subds. (a)(2)(B), (h).) Here, defendant's longest term of imprisonment is 25 years to life for sodomy. He is thus eligible for a youth offender parole hearing during his 25th year of incarceration pursuant to section 3051, subdivision (b)(3). Although section 3051, subdivision (h), denies a youth offender parole hearing to an offender over age 18 who is sentenced to LWOP, the subdivision refers to LWOP for a "controlling offense," i.e., the single offense with the longest term of imprisonment, and therefore there is no need to determine whether an aggregate sentence is the functional equivalent of LWOP.
All that remains is defendant's fact-specific argument that his sentence is harsh based on the nature of the offenses and the offender, such as defendant's history of mental health issues that he wants to talk about on appeal. (People v. Dillon, supra, 34 Cal.3d 441; In re Lynch (1972) 8 Cal.3d 410.) Defendant has forfeited this claim by failing to raise it in the trial court. Thus, where a claim of cruel or unusual punishment presents a fact-specific inquiry about the nature of the offense or the offender, it must be raised in the trial court or it is forfeited on appeal. (People v. Speight (2014) 227 Cal.App.4th 1229, 1247; People v. Vallejo (2013) 214 Cal.App.4th 1033, 1045; People v. Norman (2003) 109 Cal.App.4th 221, 229; People v. Kelley (1997) 52 Cal.App.4th 568, 583.)
Defendant urges us to address the contention anyway in the interest of judicial economy to prevent a claim of ineffective assistance of counsel. However, we need not consider the matter because defendant does not develop an analysis of ineffective assistance of counsel on this point. (People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 [defendant forfeited claim of ineffective assistance of counsel by raising it for the first time in the reply brief].)
Defendant fails to show grounds for reversal based on cruel and/or unusual punishment.
III
Limited Remand Under Section 3051
In a supplemental brief, defendant requests a limited remand to allow him to develop a record of youth-related factors that may be pertinent to a future "youth offender parole hearing" under section 3051 during his 25th year of incarceration. (Franklin, supra, 63 Cal.4th at p. 284.) The Attorney General does not oppose a limited remand but notes the remand authorized by Franklin is limited to allowing the trial court to determine whether defendant was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing under section 4801, subdivision (c), which directs the parole board to give "great weight to the diminished culpability of [youth], and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law." (Id. at p. 285.)
We have held that remand is not necessarily required where a defendant was sentenced after enactment of legislation entitling him to a future youth offender parole hearing. (Woods, supra, 19 Cal.App.5th at p. 1088.)
Here, defendant (who committed his offenses between the ages of 18 and 20) was sentenced in January 2016, just after section 3051 was amended to raise the offender's age from 18 to 23 (Stats. 2015, ch. 471, § 1; Stats. 2013, ch. 312, § 4), and before the Supreme Court filed its May 2016 opinion in Franklin, supra, 63 Cal.4th at page 284, authorizing limited remand.
Limited remand is appropriate in the case for the trial court to determine whether the parties had adequate opportunity to develop a record of youth-related factors that may be relevant at an eventual section 3051 parole hearing. If the court determines the parties did not have adequate opportunity, the court may allow them to make their record.
DISPOSITION
We order limited remand to the trial court pursuant to Franklin, supra, 63 Cal.4th 261. We order the parties and the trial court to redact the victim's name from defendant's sentencing statement to the court on pages 270-271 of the clerk's transcript, as ordered by the trial court on page 257 of the reporter's transcript. We otherwise affirm the judgment.
HULL, J. We concur: RAYE, P. J. DUARTE, J.