Opinion
F069168
01-09-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA DANIEL MOON, Defendant and Appellant.
Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Amanda D. Cary, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13CM2377)
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Robert S. Burns, Judge. Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Joshua Daniel Moon (defendant) stands convicted, following a jury trial, of committing the following offenses against M.: oral copulation with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b); count 1), aggravated sexual assault of a child under age 14 by a person more than seven years older than the victim (§ 269, subd. (a)(4); count 2), lewd and lascivious acts on a child under age 14 by use of force, violence, duress, menace, and/or threat of great bodily harm (§ 288, subd. (b)(1); counts 4 & 6), and child abuse under circumstances likely to produce great bodily harm or death, to wit, urinating in M.'s mouth (§ 273a, subd. (a); count 5). As to counts 4 and 6, the jury further found defendant committed the offense by the use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury (§ 1203.066, subd. (a)(1)), and that defendant had substantial sexual conduct with M. (id., subd. (a)(8)). The same jury convicted defendant of committing the following offenses against J.: child abuse (§ 273a, subd. (b); count 7) and assault with a deadly weapon, to wit, a plastic bag (§ 245, subd. (a)(1); count 8). As to counts 7 and 8, the jury further found the statute of limitations was extended pursuant to section 803, subdivision (d), because J. and defendant were absent from the state.
For purposes of protective nondisclosure, we refer to the victims and their mother by initials.
All statutory references are to the Penal Code.
Defendant was charged, in count 3 of the first amended information, with forcible oral copulation against M., in violation of section 288a, former subdivision (c)(2). Jurors returned no verdict on this count, as they were instructed it was charged in the alternative with count 2.
Defendant was sentenced to a total term of seven years plus 15 years to life in prison, and ordered to pay various fees, fines, and assessments. On appeal, we hold: (1) The evidence failed to establish the act that formed the basis for count 5 was committed under circumstances likely to produce great bodily harm or death; (2) Sufficient evidence of duress was presented to sustain the convictions on counts 2, 4, and 6; and (3) The trial court was not required to stay the sentence on count 6, but the substantial sexual conduct finding as to that count must be stricken. We modify the judgment accordingly and remand for resentencing of count 5 as a misdemeanor.
FACTS
I
PROSECUTION EVIDENCE
A. Background
M. was eight years old at the time of trial. Her brother, J., was 12. Their parents were defendant and K., who were married in 2001.
Defendant's date of birth is March 31, 1983.
Defendant was in the military for most of the marriage. From June 2004 through April 2011, the family lived on the Naval Air Base (the Base) in Lemoore. From December 2004 through October 2008, they lived in a house with a red roof on Simmons Court. Between October 2008 and April 2009, K. and the children lived in Nevada, as she and defendant were having marital problems. In April 2009, K. and the children returned to defendant. From then until April 2011, the family lived on the Base in a house with a gray roof on Banshee Court.
K. and defendant separated in May 2012, after which K. and the children moved to Nevada. In her complaint for divorce filed October 3, 2012, K. requested sole physical custody of the children, with defendant to have supervised visitation. Under the terms of the final decree, which was filed February 27, 2013, she and defendant received joint legal custody, while K. had primary physical custody. Defendant received supervised visitation. His visitation had to be set up at the house of one of his family members and to be arranged around K.'s work schedule and the children's schedules. Visitation took place once or twice a month.
On March 6, 2013, J. told K. that defendant had abused J. and M. K. did not immediately report the abuse to authorities, because she wanted to wait for M. — who had confided in J. only a few days earlier — to come to her. On April 6, 2013, J. apparently persuaded M. to talk to K. M. said defendant urinated in her mouth and then made her suck on his penis. M. said it happened once in Lemoore and once in Nevada.
K. asked why J. waited so long to tell her about the abuse. J. said he was afraid of defendant. When K. observed defendant had been out of the house for several months, J. explained that with K. and defendant fighting so much and leaving and going back, J. was unsure if K. would go back to defendant again, so he needed to wait to be sure.
The next day, April 7, 2013, K. went to the Lyon County Sheriff's Department and made a report. Detective White subsequently interviewed both children. B. Charged Acts Against M.
On one occasion when the family lived in California in the house with the gray roof, M. was lying on her bed when defendant came into her room. He told her to get on the floor. He pulled down his pants and knelt over her, then he made her suck his penis. He told her it was just a dream, but she knew it was real. Defendant whispered to her not to tell anybody. M. said she had to go to the bathroom, but he would not let her. When she said she really needed to go, he told her to urinate in his mouth. She did, although she did not want to. Defendant then left the room, while M. got back in bed and went to sleep.
M. testified this was the only time it happened in California, and that defendant did not urinate in her mouth. She also testified, however, that she threw up the time defendant urinated in her mouth in the gray house in California. She remembered talking to members of law enforcement, but not what she told them.
Defendant told M. not to tell anybody about the things he did. He said that if she told anyone, he would do it again. He told her this in Nevada and in California, after he put his penis in her mouth. In California, he specifically said she should not tell her mother or brother.
White conducted a forensic interview with M. on April 16, 2013. M. disclosed that defendant had woken her during the night and told her to lie back. He urinated in her mouth and then had her "suck it." M. said this happened in California.
Kings County Sheriff's Detective Speer interviewed M. on June 11, 2013. M. described an incident in California in which she sucked defendant's penis and he urinated in her mouth. She described the urine's color, odor, and taste ("eww"), and said she spit it in the toilet. M. said she was four or five when this happened. Speer found no indication M. had been coached. C. Charged Acts Against J.
During the time the family lived on Simmons Street, J. and defendant were sitting on the couch in the living room, watching television, when defendant told J. to lie down. Defendant lay on J. with his stomach on J.'s face. J. managed to kick him off, but defendant put a plastic bag over J.'s head and lay on him again. J. was unable to breathe. J. started kicking, and defendant got up. J. removed the plastic bag and ran into the garage, where he waited until K. and M. came home. J. did not tell his mother, because he was afraid defendant would hurt him again. A couple days after the incident, defendant said if J. told anybody, defendant would hurt J.
There was a swimming pool on the Base. Defendant told J. to jump off the diving board. J. did not want to, as he was not a good swimmer. Defendant kept telling J. to dive off the diving board, and eventually J. crouched down, crying. When the lifeguard asked J. if he knew how to swim and J. said no, defendant got very angry and said they were going home. Once they got home, defendant started yelling at J. and punching him with his fists. Defendant gave J. a black eye and also pounded on his chest, causing painful bruises. Defendant said J. had embarrassed him in public. He told J. to tell people J. hit a pole or something. When J.'s friends and teachers asked, J. said he fell on a pole. D. Uncharged Acts
During the marriage, defendant watched adult pornography that sometimes showed males urinating in females' mouths or multiple females urinating on a single male. Defendant asked K. to watch these images. Sometimes, it led to sexual intercourse between defendant and K. Defendant also asked K. to view pornography depicting women sitting on men's faces. Again, this sometimes led to defendant and K. having sexual intercourse. Sometimes when they were in the shower, K. would accede to defendant's request that she urinate in his mouth. Defendant also liked to urinate on K., but she did not like him to urinate in her mouth and tried to avoid it as much as she could. The urination happened a few times a week. It caused conflicts in the marriage, because defendant would get very angry with K. when she would not do it. She did not like doing it, although it did sometimes lead to sexual intercourse. Around 2005, defendant began restricting K.'s breathing once or twice a month as part of sexual intercourse. First he put pillows over her face, then blankets. He then started using plastic grocery bags. When K. told him she was scared about not being able to breathe, defendant said he would never let anything happen to her.
One day, when the family lived on the Base and M. believed she was in kindergarten, she and defendant were home alone. M. was lying on her bed when defendant sat on her stomach, making it hard for her to breathe. M. felt scared, and her lower body hurt for a couple hours. Defendant told her not to tell anyone. Eventually, however, M. told one of her teachers. A lady came to the house and asked M. questions about what defendant did. M. did not tell what he had done, because, when the lady parked in front of the house, defendant told M. not to tell her.
Shelly Ramirez, a federal agent with Naval Criminal Investigative Service who was an expert in the field of forensic interviewing of children, accompanied Manuela Wyatt, a representative of Kings County Child Protective Services, to the family's home on February 3, 2010. M. had reported to a teacher that defendant covered her mouth, after which her wrist, hand, legs, and mouth hurt. When asked about it, M. attempted to avoid the question by saying she pinched her mouth and it hurt, and a child in her classroom hurt her feelings. M. who was four at the time, said she never told the teacher defendant got on top of her or hurt her legs. She did say, however, that when she had to go "potty," her legs shook and hurt. At some point during the interview, M. said defendant mentioned that people who do bad things go to jail. During the interview, M. was concerned about where her parents were (they had been asked to step outside) and if they were going to be okay.
Because M. made no disclosure of abuse, Ramirez did not follow up. Based on M.'s behavior, however, Ramirez believed M. was not disclosing what really happened. K. took M. to a doctor for a physical examination, but ultimately, nothing came of the allegation that caused the home visit.
Once, when the family lived in Nevada and M. was six years old, defendant sat on the couch while M. was on her knees on the floor. Defendant pulled down his pants and scooted close to her. She asked if she could play on the computer, but he said she had to suck his penis first. She did not want to, but he put his hands on the back of her head and pushed her head to his "private spot" and made her orally copulate him. After defendant put his penis in M.'s mouth, he urinated in her mouth. M. spit the urine out in the bathroom sink.
On another occasion in Nevada, defendant told M. to take off her pants and lie on defendant's bed. Defendant then took off his pants and lay on M. His stomach, penis, and legs were touching her body, with his penis touching her "no-no square" on the outside. Defendant was moving his body and it felt "weird and scary." The tip of his penis went inside her "no-no square," but nothing came out of his penis. Defendant's face looked "frustrated and tired."
M. indicated different body parts on a diagram and gave her names for them. She described her "no-no square" as the wrong body part to be touching. We assume this referred to her vaginal area.
II
DEFENSE EVIDENCE
When Wyatt went to defendant's home in February 2010 in response to abuse allegations, her purpose was to assess the situation and determine whether the allegations were true or unfounded. Wyatt was unable to determine if M. had been sexually abused.
Prior to the visit, Wyatt did not notify the family she was coming. She did not recall if she parked in front of the residence. K. answered the door in response to Wyatt's knock. Defendant approached behind her. He had a blanket around him. The door was closed, as he said he needed to change. Defendant and K. went back inside the residence, while Wyatt and other agents remained outside. After about five minutes, defendant and K. returned to the door. Wyatt did not see defendant speak to M., although she was unable to see through the windows.
DISCUSSION
I
SUFFICIENCY OF THE EVIDENCE
Defendant contends substantial evidence does not support his conviction on count 5, felony child abuse (§ 273a, subd. (a)), because the prosecution failed to prove the act of urinating in M.'s mouth had a high probability of causing great bodily injury or death. Defendant further contends substantial evidence does not support the jury's findings he committed oral copulation (count 2) and lewd and lascivious acts (counts 4 & 6) by means of force, violence, duress, menace, or fear of immediate bodily injury.
The applicable legal principles are settled. The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is "reasonable, credible, and of solid value." (People v. Johnson, supra, at p. 578.) An appellate court must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357; accord, People v. Bolin (1998) 18 Cal.4th 297, 331.) This standard of review is applicable regardless of whether the prosecution relies primarily on direct or on circumstantial evidence. (People v. Lenart (2004) 32 Cal.4th 1107, 1125.) A. Count 5
Defendant was convicted in count 5 of violating section 273a, subdivision (a), which makes it a felony to, "under circumstances or conditions likely to produce great bodily harm or death, willfully cause[] or permit[] any child to suffer, or inflict[] thereon unjustifiable physical pain or mental suffering . . . ." Subdivision (b) of section 273 a criminalizes, as a misdemeanor, such conduct "under circumstances or conditions other than those likely to produce great bodily harm or death . . . ." (See People v. Jaramillo (1979) 98 Cal.App.3d 830, 835.)
Defendant does not dispute that by urinating in M.'s mouth, he abused M. within the meaning of section 273a. The question is whether the evidence showed the circumstances or conditions of the abuse were likely to produce great bodily harm or death, as the jury found. We reluctantly conclude the evidence was sufficient to show misdemeanor abuse under section 273a, subdivision (b), but not felony abuse under subdivision (a) of the statute.
" 'Great bodily harm refers to significant or substantial injury and does not refer to trivial or insignificant injury.' [Citation.]" (People v. Cortes (1999) 71 Cal.App.4th 62, 80.) For felony punishment under subdivision (a) of section 273a, "there is no requirement that the actual result be great bodily injury." (People v. Jaramillo, supra, 98 Cal.App.3d at p. 835.) Rather, the circumstances or conditions surrounding the abuse must make such harm likely.
The definition of "likely," for purposes of section 273a, subdivision (a), has been the subject of some disagreement among courts. (Compare People v. Valdez (2002) 27 Cal.4th 778, 784 [§ 273a, subd. (a) is intended to protect child from abusive situation in which probability of serious injury is great]; People v. Sargent (1999) 19 Cal.4th 1206, 1223 [trier of fact determines whether act was done under conditions " 'in which the probability of serious injury is great' "]; People v. Chaffin (2009) 173 Cal.App.4th 1348, 1352 [same] with People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 917, 922 [statement in Sargent, quoted ante, was "said in passing"; phrase "likely to engage in acts of sexual violence," as used in Sexually Violent Predators Act, means person presents substantial danger, i.e., serious and well-founded risk, of reoffending]; People v. Wilson (2006) 138 Cal.App.4th 1197, 1204 ["likely" in context of § 273a "means a substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death"].)
Under either definition, the evidence here falls short. We have no doubt the act of urinating in a child's mouth could, depending upon the circumstances, constitute felonious abuse under subdivision (a) of section 273 a. The question, however, is not whether the act could constitute such abuse in the abstract, but whether a reasonable trier of fact could conclude the requisite showing was made in the present case. The only evidence presented at trial was that M. was lying back when the act occurred, and she may have vomited afterward. There was no evidence how much urine defendant deposited into her mouth or with how much force, nor was there any suggestion M. was in any danger of having her breathing interrupted, even momentarily. (See People v. Covino (1980) 100 Cal.App.3d 660, 667-668.) Under the circumstances, it would be speculative to conclude defendant's act — despicable though it was — was done under circumstances in which the possibility of serious injury was great, or that it presented a serious and well-founded risk of great bodily harm or death. " 'But speculation is not evidence, less still substantial evidence.' [Citations.]" (People v. Waidla (2000) 22 Cal.4th 690, 735.)
Misdemeanor child abuse — abuse committed "under circumstances or conditions other than those likely to produce great bodily harm or death" (§ 273a, subd. (b)) — is a lesser included offense of felony child abuse under section 273a, subdivision (a) (People v. Sheffield (1985) 168 Cal.App.3d 158, 166, overruled on another ground in People v. Flood (1998) 18 Cal.4th 470, 484, 490, fn. 12). Accordingly, rather than reverse the conviction on count 5 outright, we modify defendant's conviction on that count to misdemeanor child abuse in violation of section 273a, subdivision (b), and remand for resentencing on that count. (§ 1260; see People v. Enriquez (1967) 65 Cal.2d 746, 749; People v. Rivera (2003) 114 Cal.App.4th 872, 879.) B. Counts 2 , 4, and 6
Defendant was convicted, in count 2, of aggravated sexual assault of a child based on oral copulation of M. In counts 4 and 6, defendant was convicted of committing a lewd and lascivious act on M., with the act forming the basis of count 6 specified in the first amended information as urinating in M.'s mouth. Each offense was found to have been committed by the use of force, violence, duress, menace, or fear of immediate bodily injury. Defendant now contends the evidence was insufficient to show he committed the acts by such means. We agree with the Attorney General that there was substantial evidence of duress.
Accordingly, we need not address the other alternatives. (See People v. Guiton (1993) 4 Cal.4th 1116, 1129.)
"[T]he legal definition of duress is objective in nature and not dependent on the response exhibited by a particular victim." (People v. Soto (2011) 51 Cal.4th 229, 246.) For purposes of the offenses at issue here, " '[d]uress' . . . means 'a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.' [Citations.] 'The total circumstances, including the age of the victim, and [her] relationship to defendant are factors to be considered in appraising the existence of duress.' [Citation.] Other relevant factors including threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family. [Citations.] [¶] The fact the victim testifies the defendant did not use force or threats does not require a finding of no duress; the victim's testimony must be considered in light of her age and her relationship to the defendant." (People v. Cochran (2002) 103 Cal.App.4th 8, 13-14, disapproved on another ground in People v. Soto, supra, at p. 248, fn. 12); accord, People v. Pitmon (1985) 170 Cal.App.3d 38, 50-51, disapproved on another ground in People v. Soto, supra, at p. 248, fn. 12; see People v. Leal (2004) 33 Cal.4th 999, 1004-1005 [foregoing definition of duress applies to, inter alia, aggravated sexual assault of child (§ 269), forcible oral copulation (§ 288a, subd. (c)), and forcible lewd and lascivious acts (§ 288, subd. (b)(1))].)
"Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes. [Citations.] 'Where the defendant is a family member and the victim is young, . . . the position of dominance and authority of the defendant and his continuous exploitation of the victim' is relevant to the existence of duress. [Citation.]" (People v. Senior (1992) 3 Cal.App.4th 765, 775.) Direct threats of violence, hardship, or retribution are not necessarily required; implied threats may also create duress. (People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1579.) Conduct such as pushing the victim's head down on the defendant's penis may constitute force (see People v. Neel (1993) 19 Cal.App.4th 1784, 1790), but physical control can create duress without necessarily also constituting force (People v. Senior, supra, at p. 775; accord, People v. Schulz (1992) 2 Cal.App.4th 999, 1005).
This is not to suggest the parent-child relationship itself is sufficient, in and of itself, to establish force or duress as a matter of law. "Nonetheless, as a factual matter, when the victim is as young as this victim and is molested by her father in the family home, in all but the rarest cases duress will be present." (People v. Cochran, supra, 103 Cal.App.4th at p. 16, fn. 6 [nine-year-old victim].)
In the present case, M. was four or five years old when the acts took place. Defendant was her father. Jurors were able to compare their respective sizes during trial, when M. was eight, and reasonably could have concluded the size difference would have been greater at the time of the molestations. With respect to the charged acts, there was evidence defendant made M. get on her back, either on her bed or the floor, and then assumed a physically dominating position over her. There was also evidence he refused to allow her to use the bathroom despite her need to do so, and instead made her urinate in his mouth. He also told her not to tell anyone about what he did or he would do it again.
In our view, the totality of the foregoing evidence constitutes sufficient substantial evidence to uphold the jury's findings of duress as to counts 2, 4, and 6. (See, e.g., People v. Veale (2008) 160 Cal.App.4th 40, 46-47; People v. Senior, supra, 3 Cal.App.4th at p. 775; People v. Pitmon, supra, 170 Cal.App.3d at p. 51.) We recognize some courts have distinguished between threats of hardship or retaliation directed at later disclosure of the sex acts and those directed at the failure to perform the sex acts themselves. (E.g., People v. Hecker (1990) 219 Cal.App.3d 1238, 1251, fn. 7.) However, "[w]e doubt that young victims of sexual molestation readily perceive this subtle distinction. A simple warning to a child not to report a molestation reasonably implies the child should not otherwise protest or resist the sexual imposition." (People v. Senior, supra, at p. 775.) This is particularly true where, as here, the warning includes a not-so-subtle threat.
There was also evidence defendant sat on M.'s stomach and restricted her breathing, lay on top of her while his penis possibly slightly penetrated her vagina, and pushed her head to his penis. Although these acts were not charged, jurors were told they could consider uncharged oral copulation and lewd and lascivious acts with a minor as evidence defendant was disposed to commit sexual offenses, and so was likely to have committed the charged offenses. Although we find sufficient evidence of duress without reference to the uncharged misconduct, it strengthens our conclusion.
In People v. Espinoza (2002) 95 Cal.App.4th 1287 (Espinoza), the Court of Appeal found an absence of duress where, although the defendant was the victim's father and larger than her, she was afraid of him, and she had a limited intellectual level, there was no direct or implied threat of force, violence, danger, hardship, or retribution. (Id. at p. 1321.) In part, the court stated: "While it was clear that [the victim] was afraid of defendant, no evidence was introduced to show that this fear was based on anything defendant had done other than to continue to molest her. It would be circular reasoning to find that her fear of molestation established that the molestation was accomplished by duress based on an implied threat of molestation." (Ibid.)
The case before us is distinguishable, as there was evidence of a direct threat defendant would molest M. again if she disclosed what he had done. To the extent Espinoza might be read as suggesting such evidence would be insufficient, particularly in view of the other circumstances present here, we respectfully disagree.
II
SENTENCING
We summarize only the sentence imposed with respect to the counts involving M., as defendant does not challenge the sentence on the counts involving J.
As previously described, defendant was charged in count 1 of the first amended information with engaging in oral copulation or sexual penetration with a child 10 years of age or younger, in violation of section 288.7, subdivision (b). In her summation, the prosecutor pointed to M.'s testimony defendant put his penis in her mouth. The jury's guilty verdict specified the offense was based on an act of oral copulation.
Defendant was charged in count 4 of the first amended information with committing a lewd and lascivious act on M. by use of force, violence, duress, menace, or threat of great bodily harm. He was charged in count 6 of the first amended information with committing a lewd and lascivious act on M. — specifically, urinating in M.'s mouth — by use of force, violence, duress, menace, or threat of great bodily harm. At the outset of her summation, the prosecutor explained to the jury that count 1 involved oral copulation with a child of a certain age; count 2 involved forcible oral copulation on a child under 14 years old; count 3 charged forcible oral copulation; count 4 charged forcible oral copulation; count 5 was child abuse based on defendant urinating in M.'s mouth; and count 6 charged a forcible lewd or lascivious act, again the urination in M.'s mouth. The prosecutor subsequently told jurors that counts 4 and 6 were based on the act of oral copulation in which defendant used force by pushing M.'s head onto his penis while M. was on her knees. Realizing that incident occurred in Nevada, the prosecutor later told jurors counts 4 and 6 instead were based on the incident in California in which M. was in her bedroom and defendant was on top of her.
During deliberations, jurors asked whether, if they found defendant guilty of count 2, "the greater," they had to put not guilty for count 3. The court responded that CALCRIM No. 3517 explained what to do when there was a charged greater crime and an uncharged lesser included offense, while CALCRIM No. 3519 explained what to do when, as in the case of counts 2 and 3, the greater and lesser offenses both were charged. The court directed the jurors to review those instructions and continue their deliberations.
When jurors returned to court, having stated they had reached a verdict, the following took place:
"THE COURT: Please hand the verdict forms to the Bailiff. Did the jurors reach a verdict as to Count 6?
"THE FOREPERSON: To my knowledge the way that we read it was Count 4 was the greater, and then Count 6 was the lesser, is that right?
"THE COURT: Count 4 and Count 6 are the exact same charges, they are just alleged as different.
"THE FOREPERSON: Then, no, sir, we have not.
"THE COURT: It does not appear to me that the verdict forms are in order. It appears to me you have to have a verdict as to Count 6[. W]hat you're saying is true about Count 3 and Count 2, those verdicts appear to me to be in order, but I am going to send you back with all the verdict forms, and there needs to be a resolution as to Count 6 as well."
The record does not reflect how long jurors deliberated before returning with their final verdicts, although the clerk's minutes show not quite two hours elapsed between when jurors resumed their deliberations after having their question about counts 2 and 3 answered, and the return of their final verdicts. The guilty verdicts specified jurors convicted defendant of counts 4 and 6 "as charged in . . . the Information," without specifying a particular act. As to each, jurors further found defendant had substantial sexual conduct with M. within the meaning of section 1203.066, subdivision (a)(8).
Although the verdict forms referenced the information rather than the first amended information, the first amended information made no changes to counts 4 and 6.
At the outset of sentencing, the court stated it had reviewed its notes from the trial testimony, along with the probation officer's report. It observed: "The defendant was convicted after jury trial on a violation of Penal Code Section 288.7[, subdivision] (b) for an act of oral copulation on the minor [M. and] under Penal Code Section 269[, subdivision] (a)(4) for an aggravated sexual assault involving oral copulation on [M.] Count 4 was a violation of Penal Code Section 288[, subdivision] (b)(1) for lewd and lascivious acts on [M.] Count 5 is Penal Code Section 273[a, subdivision] (a) for child abuse to [M.], that appeared to me to involve urinating in her mouth. Penal Code Section 288[, subdivision] (b)(1), Count 6, on [M.] for urinating in her mouth. . . . The incident stemmed from one incident involving [M.] in Lemoore, California. It looks like the defendant urinated in the minor's mouth, and then after she spatted [sic] out had her orally copulate him."
The court announced a tentative sentence of 15 years to life on count 1; 15 years to life on count 2, stayed pursuant to section 654; the middle term of six years on count 4, stayed pursuant to section 654; the middle term of six years on count 6, to be served consecutively to count 1, because it appeared to the court to be based on the urination in the mouth, as opposed to the oral copulation that was the basis for count 4; and the middle term of four years on count 5, stayed pursuant to section 654. As to counts 1 and 6 — the only counts involving M. on which the court did not propose to stay the sentence — the court explained its reasoning for consecutive sentencing: "Counts 1 and 6 . . . involve sexual assaults in which the defendant between the sexual assaults had a reasonable opportunity to reflect upon his actions, and never the last [sic] resume his sexually abusive conduct and behavior. Specifically the way I understood the testimony, it appeared that he peed in his daughter's mouth. She then went and spatted [sic] out. And after submit [sic] spitting it out came back, and had to orally copulate him before being allowed to go back to bed. It appears to me that time period between the two acts because of the nature of the two acts are substantially different from each other, but there was a significant opportunity for him to reflect upon the conduct, and yet he chose to resume it anyway."
Defense counsel stated he agreed "with the legalities of the sentencing on which ones are [section] 654." He requested, however, that the determinate sentence be run concurrently to the indeterminate term. The prosecutor, in turn, asked the court to impose the upper term on count 6, based on the vile nature of the act. The court adopted its tentative sentence.
Defendant now contends the court was required to stay the sentence on count 6 pursuant to section 654, because counts 4 and 6 were based on the same act as count 1. The Attorney General says sentence on count 6 was properly imposed, but the true finding on the "substantial sexual conduct" allegation with respect to count 6 is not supported by substantial evidence and must be reversed. B. Analysis
The fact defense counsel apparently agreed with — or at least did not object to — the trial court's section 654 analysis does not prevent defendant from raising the issue on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354 & fn. 17.)
Section 654, subdivision (a) provides in pertinent part: "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, but in no case shall the act or omission be punished under more than one provision." The purpose of this statute is to ensure that punishment will be commensurate with culpability. (People v. Trotter (1992) 7 Cal.App.4th 363, 367.) It "prohibits punishment for two crimes arising from a single, indivisible course of conduct. [Citation.]" (People v. Islas (2012) 210 Cal.App.4th 116, 129, citing People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
"Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor" (Neal v. State of California (1960) 55 Cal.2d 11, 19, disapproved on another ground in People v. Correa (2012) 54 Cal.4th 331, 334), not the temporal proximity of his or her offenses (People v. Capistrano (2014) 59 Cal.4th 830, 886). "Where a defendant entertains multiple criminal objectives independent of and not merely incidental to each other, he may be punished for more than one crime even though the violations share common acts or are parts of an otherwise indivisible course of conduct. [Citation.]" (People v. Blake (1998) 68 Cal.App.4th 509, 512.) In sex crime cases, "[e]ven where the defendant has but one objective — sexual gratification — section 654 will not apply unless the crimes were either incidental to or the means by which another crime was accomplished. [Citations.]" (People v. Alvarez (2009) 178 Cal.App.4th 999, 1006; see People v. Senior, supra, 3 Cal.App.4th at p. 780.) Moreover, " 'multiple crimes are not one transaction where the defendant had a chance to reflect between offenses and each offense created a new risk of harm.' [Citation.] Under section 654, a course of conduct divisible in time, though directed to one objective, may give rise to multiple convictions and multiple punishment 'where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.' [Citation.]" (People v. Lopez (2011) 198 Cal.App.4th 698, 717-718; accord, People v. Felix (2001) 92 Cal.App.4th 905, 915.)
Whether a defendant harbored a separate intent and objective for or, by parity of reasoning, had the opportunity to reflect between, each offense is a factual determination for the trial court, and its conclusion will be sustained on appeal if supported by any substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730; see People v. Cleveland (2001) 87 Cal.App.4th 263, 265-266.) On review of this issue, we consider the evidence in the light most favorable to the judgment. (People v. Williamson (1979) 90 Cal.App.3d 164, 172.)
Substantial evidence clearly supports the trial court's determination that sentence on count 6 need not be stayed pursuant to section 654. Defendant argues, however, that the record "strongly indicates" the jury based its verdicts on counts 4 and 6 on the same act of oral copulation.
The first amended information made clear that count 6 was based on defendant's act of urinating in M.'s mouth. Whether section 654 applies, however, does not depend on the allegations of the charging instrument, but on what was proven at trial. (People v. Assad (2010) 189 Cal.App.4th 187, 200.) "[I]n the absence of some circumstance 'foreclosing' its sentencing discretion . . . , a trial court may base its decision under section 654 on any of the facts that are in evidence at trial, without regard to the verdicts." (People v. McCoy (2012) 208 Cal.App.4th 1333, 1340.)
We find no circumstance foreclosing the trial court's sentencing discretion. In People v. Bradley (2003) 111 Cal.App.4th 765, the prosecution tendered a single theory of guilt under which the defendant entertained a single objective. Because the jury's verdict necessarily was predicated upon that theory, the appellate court concluded the trial court could not "countermand the jury and make the contrary finding" the defendant in fact harbored multiple objectives. (Id. at p. 770.)
In the present case, the record is not clear what the jury found to be the basis for count 6. The prosecutor did not tender a single theory with respect to counts 4 and 6. She first stated count 4 was based on oral copulation, while count 6 was based on defendant's urination in M.'s mouth. Later, she argued both were based on oral copulation. Realizing she had erroneously urged the jury to convict based on an incident in Nevada, she last told jurors the counts were based on the incident in California in which M. was in her bedroom and defendant was on top of her. This incident reasonably could be viewed as comprising both M.'s oral copulation of defendant and his urinating in her mouth, particularly since the verdicts make it clear jurors found both of those acts proven beyond a reasonable doubt.
Jurors obviously thought, initially, that count 4 was the greater and count 6 the lesser offense. Although the trial court's response — that they were the "exact same charges, . . . just alleged as different" did not clearly indicate the counts were based on separate acts, neither did it state they were based on the same act, just the same charge — section 288, subdivision (b)(1).
It is true jurors found substantial sexual conduct, within the meaning of section 1203.066, subdivision (a)(8), as to both counts. " 'Substantial sexual conduct' means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender." (Id., subd. (b).) This is an indication jurors based both convictions on oral copulation. In our view, however, it is insufficient to foreclose the trial court's sentencing discretion, particularly in light of the fact, as we noted ante, that jurors clearly credited the evidence both acts — oral copulation and urination in M.'s mouth — took place. (Cf. People v. Bradley, supra, 111 Cal.App.4th at p. 770 [jurors made no finding, and there was "complete absence" of evidence in record to support finding had it been made, that defendant entertained multiple objectives].)
The written instructions given to the jury for use in deliberations tracked this definition. The court's oral instruction inexplicably omitted "oral copulation." The written instructions provided to the jury control. (People v. Edwards (2013) 57 Cal.4th 658, 746.)
Under the circumstances, we conclude the trial court did not err by imposing a consecutive sentence on count 6. We agree with the Attorney General, however, that the true finding on the section 1203.066, subdivision (a)(8) allegation must be stricken as to that count for insufficient evidence: Urinating in another's mouth does not, of itself, fall within the definition of "substantial sexual conduct" contained in section 1203.066, subdivision (b).
Section 1203.066, subdivision (a)(8) rendered defendant ineligible for probation on count 6. Because the trial court stated it would deny probation in any event, our striking of the true finding does not require resentencing based on a misunderstanding by the court of its discretionary sentencing power. (See People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1247-1248.)
DISPOSITION
Defendant's conviction on count 5 is modified to find him guilty of misdemeanor child abuse in violation of Penal Code section 273a, subdivision (b). His conviction on count 6 is modified to strike the true finding on the Penal Code section 1203.066, subdivision (a)(8) allegation. As so modified, the judgment is affirmed. The matter is remanded to the trial court for resentencing on count 5.
/s/_________
DETJEN, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
POOCHIGIAN, J.