Opinion
F078459
06-16-2020
THE PEOPLE, Plaintiff and Respondent, v. BOBBY SMITH, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and Michael Dolida, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. BF167228A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. John D. Oglesby, Judge. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
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INTRODUCTION
Appellant/defendant Bobby Smith was convicted of five counts of committing lewd or lascivious acts on a child under the age of 14 years (Pen. Code, § 288, subd. (a)), for sexually molesting two girls on different occasions. The jury found true special allegations for each count that the offenses were committed against more than one victim, within the meaning of the "One Strike" law (§ 667.61, subds. (c), (e)(4)). He was sentenced to five consecutive one-strike terms of 25 years to life (§ 667.61, subd. (j)(2)), for an aggregate sentence of 125 years to life.
All further statutory citations are to the Penal Code unless otherwise indicated.
On appeal, defendant argues the court abused its discretion by imposing five consecutive one-strike terms. He also contends the court improperly ordered him to pay a restitution fine and other fees without determining his ability to pay those amounts, in violation of his due process rights pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157. We affirm.
FACTS
Jane Doe No. 1 (Count 1)
Jane Doe No. 1 was 15 years old at the time of defendant's trial in 2018. Defendant was a family friend and she had been around him all her life.
Jane Doe No. 1 testified about a night she spent at defendant's house in 2014. She slept by herself in a top bunk bed, and defendant's two children slept in the bottom bunk. She woke up when she felt a person's hand touch her body under her underwear, and the person's finger went into her vagina. For a few seconds, she was too scared to move, and then she jumped out of bed. As she ran out of the bedroom, she saw defendant and realized he was the person who touched her. She ran into the bathroom and locked the door. After a few moments, she heard footsteps approach the locked bathroom door. Defendant stood outside the locked door and apologized to her.
At the time of the incident, Jane Doe No. 1 did not tell anyone what happened because she was scared and ashamed.
In April 2015, her mother found soiled underwear that was hidden under a pile of clothes. Her mother asked whether someone had touched her. She told her mother what defendant had done to her about one year earlier.
Her mother immediately took her to the hospital and reported the incident. Jane Doe No. 1 was examined, and she gave a statement to the police. Jane Doe No. 2 (Counts 2-5)
Jane Doe No. 2, defendant's sister, was 17 years old when she testified against defendant in 2018. Jane Doe No. 2 lived with her mother in a different house than defendant.
Jane Doe No. 2 testified defendant placed his penis in her vagina on three different occasions and tried to do it on a fourth occasion. Each incident happened on separate days at defendant's house.
According to the probation report, Jane Doe No. 2 had cognitive disabilities. At the sentencing hearing, the court stated her "limited cognitive abilities" were apparent when she testified.
The first incident (count 4) occurred in the bedroom where defendant and his wife slept. Jane Doe No. 2 had left her shoes in that room and went in to get them. Defendant was there and tried to pull down her pants and perform a sexual act. She resisted and managed to get away.
The next incident occurred in the bathroom (count 3), when she was getting out of the shower. Defendant came in the bathroom, and he placed his penis in her vagina as she was drying off.
Another incident occurred in the playroom (count 5), while defendant's children were outside. Jane Doe No. 2 was sitting on a bean bag chair. When she got up, defendant pulled down her pants and performed the sexual act.
The final incident (count 2) occurred on or about August 13, 2014. Jane Doe No. 2 was sleeping in the bunk beds with her two younger cousins; one cousin was sleeping with her on the top bunk, and the other cousin was sleeping on the bottom bunk. Defendant woke her up by shaking her arm. She went into the bathroom, and then settled on the living room couch. While she was lying on the couch, defendant placed his penis in her vagina.
Jane Doe No. 2 also testified about an incident when she was lying on the couch and defendant started "feeling" her entire body. In closing argument, the prosecutor did not cite this incident as one of the charged offenses.
The next morning, Jane Doe No. 2 went back to her own house and told her mother what defendant did. Her mother called the police and reported defendant's conduct. Jane Doe No. 2 was examined at the hospital and told the nurse that defendant had penetrated her vagina with his penis and also performed an act of oral copulation on her. Based on DNA analysis of her vaginal swab, defendant could not be excluded as the donor of the sperm sample found on the swab. Defense evidence
The defense called Officer Casey Grogen, who testified that he met with Jane Doe No. 1 and her mother at the hospital on April 12, 2015. Jane Doe No. 1 said defendant had inappropriately touched her the previous summer. The defense also called Jane Doe No. 1's mother, who testified about finding the soiled clothing in her daughter's room.
PROCEDURAL BACKGROUND
On April 7, 2017, an information was filed in the Superior Court of Kern County charging defendant with five counts of committing a lewd or lascivious act upon or with a child under the age of 14 years (§ 288, subd. (a)).
In count 1, he was charged with committing the offense against Jane Doe No. 1, on or about or in between May 1, 2012, and September 1, 2014.
In the additional counts, he was charged with committing the offenses against Jane Doe No. 2 as follows: count 2, on or about August 13, 2014; count 3, on or about August 11, 2014; count 4, on or about August 7, 2014; and count 5, on or about or in between July 24 and 28, 2014.
As to each count, it was alleged the offenses were committed against more than one victim within the meaning of the One Strike law (§ 667.61, subds. (c), (e)(4), (j)(2)).
On October 24, 2018, after a jury trial, defendant was convicted of all offenses and the jury found the special allegations true. The probation report
The probation report found four aggravating factors: Defendant's prior convictions were numerous; he took advantage of a position of trust with Jane Doe No. 2, and was a family friend entrusted with the care of Jane Doe No. 1; his prior performance on misdemeanor probation was unsatisfactory because he failed to comply with the terms and conditions, and continued to re-offend; and Jane Doe No. 2 was particularly vulnerable because she had cognitive disabilities. There were no mitigating circumstances.
The probation report further stated that defendant faced multiple indeterminate terms because of the one-strike special allegations and could be sentenced to fully consecutive terms if appropriate. The probation report recommended the court impose five fully consecutive terms of 25 years to life because (1) the crimes and their objectives were predominately independent of each other; (2) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior; and (3) the crimes involved separate acts of violence or threats of violence. While counts 2 through 5 were based on the same victim, Jane Doe No. 2, consecutive sentences were appropriate because "all acts occurred on separate dates and are separate and distinct acts of sexual conduct." Sentencing hearing
On November 27, 2018, the court held the sentencing hearing. Defense counsel objected to the probation report's recommendation for five consecutive terms of 25 years to life for an aggregate sentence of 125 years to life. The prosecutor replied consecutive terms were appropriate because the crimes were committed on separate dates against different victims.
The court agreed with the probation report's recommendations and found that even if defendant was eligible for probation, he was not suitable "primarily because of the position of trust that he took advantage of and that there are separate victims."
The court found consecutive sentences were appropriate because the crimes, as related to both the victims and the objectives, were predominately independent of each other, the crimes were committed at different times and separate places rather than being committed so closely in time and place as to indicate a single period of abhorrent behavior, and the crimes involved separate acts of violence or threats of violence to the victims based on the actual force used to commit the act above and beyond that required for the crime.
The court found the first two factors "clearly" justified consecutive sentences. "I believe the court does have some inherent discretion on these sentencing on Counts 2 through 5 since it did involve the same victim [Jane Doe No. 2] though at separate times. But the court must recognize a special vulnerabl[ity] of that particular victim with the position of trust the defendant occupied to her and her special vulnerability based on her limited cognitive abilities which were eviden[t] when she testified. So the court will sentence pursuant to the recommendation of the probation report."
The court imposed five fully consecutive one-strike terms of 25 years to life, for an aggregate sentence of 125 years to life. Defendant was ordered to register as a sex offender.
The court imposed a restitution fine of $300 (§ 1202.4, subd. (b)) and suspended the parole revocation fine of $300 (§ 1202.45); and ordered victim restitution in an amount to be determined (§ 1202.4, subd. (b)).
As to each count, the court imposed a base fine of $300 pursuant to section 290.3, plus an aggregate penalty assessment of $870 calculated as follows: a state penalty assessment of $300 (§ 1464, subd. (a); 100 percent of the base fine); a county penalty assessment of $210 (Gov. Code, § 76000, subd. (a); 70 percent of the base fine); a DNA fund penalty of $30 (Gov. Code, § 76104.6; 10 percent of base fine); a DNA penalty levy of $120 (Gov. Code, § 76104.7; 40 percent of base fine); a court construction penalty of $150 (Gov. Code, § 70372; 50 percent of the base fine); and a state surcharge of $60 (§ 1465.7, 20 percent of base fine.)
As we will discuss below, defendant's convictions for violating section 288, subdivision (a) triggered the court's imposition of the $300 base fine pursuant to section 290.3, and the base fine was subject to additional fees and penalty assessments for each count. (People v. Acosta (2018) 28 Cal.App.5th 701, 705 & fn. 7; People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1249.)
Also, for each count, the court imposed a criminal conviction assessment of $30 for a total of $150 (Gov. Code, § 70373); and a court security fee of $40 for a total of $200 (§ 1465.8).
On November 28, 2018, appellant timely filed his notice of appeal.
DISCUSSION
I. The Indeterminate Life Terms
Defendant argues the court abused its discretion when it sentenced him to five fully consecutive indeterminate terms of 25 years to life pursuant to section 667.61. He acknowledges that he could be sentenced to consecutive sentences for the separate acts committed against the two victims but argues that additional consecutive terms for the convictions based on Jane Doe No. 2 were improper.
A. Section 667.61
"The Legislature enacted section 667.61 to ensure serious sexual offenders receive long prison sentences regardless of their prior criminal records. [Citations.]" (People v. Andrade (2015) 238 Cal.App.4th 1274, 1305.) "Section 667.61 requires the trial court to impose a life sentence when the defendant is convicted of an enumerated sexual offense and the People plead and prove one or more of the specified aggravating circumstances. [Citations.]" (People v. DeSimone (1998) 62 Cal.App.4th 693, 696; People v. Valdez (2011) 193 Cal.App.4th 1515, 1521.)
The "One Strike" law creates an alternative, harsher sentencing scheme of either 15 or 25 years to life for certain enumerated sex offenses accompanied by additional specified factual findings. (§ 667.61; People v. Mancebo (2002) 27 Cal.4th 735, 738.) Lewd conduct and forcible lewd conduct on a child under the age of 14 in violation of section 288, subdivisions (a) and (b) are included in the list of qualifying One Strike crimes. (§ 667.61, subd. (c)(4), (8).) Subdivision (e)(4) contains a multiple victim aggravating circumstance: "The defendant has been convicted in the present case of committing an offense specified in subdivision (c) against more than one victim." (§ 667.61, subd. (e)(4).)
A defendant convicted of committing a lewd or lascivious act on a child under the age of 14 years, in violation of section 288, subdivision (a) "shall be punished by imprisonment in the state prison for 25 years to life" if he committed the substantive offense "against more than one victim." (§ 667.61, subds. (e)(4), (j)(2).)
There is no limitation of a single life term per victim, and multiple life terms may be imposed based on the multiple-victim circumstance. (People v. Morales (2018) 29 Cal.App.5th 471, 483.) Section 667.61 "contemplates a separate life term for each victim attacked on each separate occasion. [Citations.]" (People v. Wutzke (2002) 28 Cal.4th 923, 931.)
B. Consecutive Sentences
Under section 669, the trial court has broad discretion to sentence defendant concurrently or consecutively. (People v. Shaw (2004) 122 Cal.App.4th 453, 458.) California Rule of Court rule 4.425(a) states the following factors relating to the committed crimes may be considered when determining whether to impose consecutive rather than concurrent sentences: "(1) The crimes and their objectives were predominantly independent of each other; [¶] (2) The crimes involved separate acts of violence or threats of violence; or [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior."
Rule 4.425(b) additionally states, "Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except: [¶] (1) A fact used to impose the upper term; [¶] (2) A fact used to otherwise enhance the defendant's sentence in prison or county jail under section 1170(h); and [¶] (3) A fact that is an element of the crime may not be used to impose consecutive sentences." "Although a single factor may be relevant to more than one sentencing choice, such dual or overlapping use is prohibited to some extent. For example, the court generally cannot use a single fact both to aggravate the base term and to impose an enhancement, nor may it use a fact constituting an element of the offense either to aggravate or to enhance a sentence. [Citations.]" (People v. Scott (1994) 9 Cal.4th 331, 350, fn. omitted.)
In People v. Valdez, supra,193 Cal.App.4th 1515, the defendant was convicted of committing seven lewd act counts against three victims, and a section 667.61 multiple-victims allegation was found true. (Valdez, at p. 1518.) The trial court imposed four life terms, which included two life terms for offenses against a single victim on multiple occasions. (Id. at pp. 1518-1520.) On appeal, the defendant claimed that section 667.61's multiple-victims circumstance could not support the imposition of multiple life terms for offenses against a single victim. (Valdez, at p. 1518.) Valdez rejected defendant's argument because it "contradicts the statute's legislative intent as determined by the usual and ordinary meaning of the words of the enactment. [Citations]" (Id. at p. 1522.)
C. Analysis
Defendant was charged and convicted of five counts of violating section 288, subdivision (a), commission of a lewd or lascivious act on a child under the age of 14 years: count 1 was based on Jane Doe No. 1 and counts 2 through 5 were based on Jane Doe No. 2. A violation of section 288, subdivision (a) results in a prison term of three, six or eight years. (§ 288, subd. (a).) In this case, however, the prosecution pleaded and proved a special allegation under the one-strike law as to each count, that in the commission of each offense, the defendant committed the enumerated offense "against more than one victim." (§ 667.61, subd. (e)(4).) As a result of the jury's verdicts and findings on the special allegations, the court had the discretion to impose five fully consecutive indeterminate terms of 25 years to life for each count. (§ 667.61, subd. (j)(2).)
Defendant argues an aggregate term of 125 years to life is "draconian." We note that sentences imposed pursuant to section 667.61 have not been found in violation of either the federal or state prohibitions against cruel and/or unusual punishment. (See, e.g., People v. Estrada (1997) 57 Cal.App.4th 1270, 1280-1282; People v. Reyes (2016) 246 Cal.App.4th 62, 87-90; People v. Alvarado (2001) 87 Cal.App.4th 178, 200-201; People v. Lewis (2013) 222 Cal.App.4th 108, 117-123.)
Defendant concedes he was properly sentenced to consecutive sentences for count 1 based on Jane Doe No. 1, and one of the four counts based on Jane Doe No. 2, for an aggregate term of 50 years to life. Defendant acknowledges that each offense committed against Jane Doe No. 2 occurred at separate times, agrees with the court's statements that she had special vulnerabilities, and that a lengthy prison sentence was appropriate. However, defendant argues the court abused its discretion when it imposed consecutive terms for the other three counts based on Jane Doe No. 2, argues a term of 50 years to life would have been sufficient, and cites to Jane Doe No. 2's uncertainty about when and where each incident occurred to question the court's decision to impose sentences on the other three counts.
The court was aware it had discretion and did not abuse that discretion. Defendant sexually molested vulnerable victims by taking advantage of his position of trust when the children were placed in his care by their families. He molested the victims when they were isolated, and the other members of his family were either not present or asleep. His criminal acts did not occur during a single period of aberrant behavior. Instead, he sexually molested each victim on different days, at different times, and at different places in his house. As to Jane Doe No. 2, each count was based on a separate act, performed in a different manner, and his conduct lasted over a period of months. The court's decision to impose five fully consecutive indeterminate terms was appropriate under the fact and circumstances of this case.
II. The Restitution Fine and the Fees and Penalty Assessments
Defendant relies on Dueñas and argues the court improperly imposed the restitution fine, and all the fees and penalties, in violation of his due process rights without determining whether he had the ability to pay these amounts. Defendant asserts the order imposing the fees must be vacated and reversed.
We decline to vacate or reverse the court's orders for the restitution fine and fees. As we recently explained in People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles), we believe Dueñas was wrongly decided and an Eighth Amendment analysis is more appropriate to determine whether restitution fines, fees, and assessments in a particular case are grossly disproportionate and thus excessive. (Aviles, at pp. 1068-1072.) Under that standard, the fine and fees imposed in this case are not grossly disproportionate to defendant's level of culpability, and thus not excessive under the Eighth Amendment. (Aviles, at p. 1072.)
The California Supreme Court is currently considering whether trial courts must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments; and if so, which party bears the applicable burden of proof. (See People v. Kopp (2019) 38 Cal.App.5th 47, 94-98, review granted Nov. 13, 2019, S257844.) --------
The People argue that even if Dueñas applied, defendant forfeited any challenge to his alleged inability to pay the fines and fees because he failed to object at the sentencing hearing. Section 1202.4, subdivisions (c) and (d) only permit a party to raise an ability to pay objection when the court imposes a restitution fine above the statutory minimum. In this case, the court imposed the minimum restitution fine of $300 and defendant lacked the statutory authority to object under the governing law at the time of his sentencing hearing. (Cf. People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154 (Frandsen).) In addition, the statutes that authorize the imposition of the court operations and facilities fees and assessments do not permit a defendant to make any kind of ability to pay objection. (§ 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1).)
Based on defendant's multiple violations of section 288, subdivision (a), however, the court also imposed a separate $300 fine for each count pursuant to section 290.3, subdivision (a), which states: "Every person who is convicted of any offense specified in subdivision (c) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for commission of the underlying offense, be punished by a fine of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine." (Italics added.)
Defendant did not object at the sentencing hearing to the imposition of the $300 base fine under section 290.3, even though the statute states that the court shall impose the fine unless it determines he does not have the ability to pay. (See, e.g., People v. Acosta, supra, 28 Cal.App.5th at pp. 705-706; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033, fn. 12.) Such an objection "would not have been futile under governing law at the time of his sentencing hearing. [Citations.]" (Frandsen, supra, 33 Cal.App.5th at p. 1154; Aviles, supra, 39 Cal.App.5th at pp. 1073-1074.)
Moreover, if defendant raised an ability to pay objection to the section 290.3 base fine, as he was entitled to, he could have raised a similar challenge to the court's imposition of the additional fees and penalty assessments calculated from the base fine, along with the restitution fine, the court operations and facilities fees, and the additional fees and penalty assessments calculated from the base fine. (See, e.g., Frandsen, supra, 33 Cal.App.5th at p. 1154; Aviles, supra, 39 Cal.App.5th at p. 1074.)
In any event, even if we agreed with Dueñas, and found defendant preserved an ability to pay objection, we would still reject defendant's constitutional claims and find any error arising from the court's failure to make an ability to pay finding was harmless beyond a reasonable doubt since defendant has the ability to pay the fines and fees imposed in this case. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Jones (2019) 36 Cal.App.5th 1028, 1030-1031; Aviles, supra, 39 Cal.App.5th at pp. 1075-1077.)
" ' "Ability to pay does not necessarily require existing employment or cash on hand." [Citation.] "[I]n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant's present ability but may consider a defendant's ability to pay in the future." [Citation.] This include[s] the defendant's ability to obtain prison wages and to earn money after his release from custody. [Citation.]' [Citations.]" (Aviles, supra, 39 Cal.App.5th at p. 1076.)
We can infer from the instant record that defendant has the ability to pay the aggregate amount of fines and fees from probable future wages, including prison wages. (Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Ellis (2019) 31 Cal.App.5th 1090, 1094; People v. Douglas (1995) 39 Cal.App.4th 1385, 1397.) There is nothing in the record to show that defendant would be unable to satisfy the fine and fees imposed by the court while serving his prison term, even if he fails to obtain a prison job. While it may take defendant some time to pay the amounts imposed in this case, that circumstance does not support his inability to make payments on these amounts from either prison wages or monetary gifts from family and friends during his lengthy prison sentence. (See, e.g., People v. Lewis (2009) 46 Cal.4th 1255, 1321; People v. DeFrance (2008) 167 Cal.App.4th 486, 505.)
In People v. Potts (2019) 6 Cal.5th 1012, the trial court ordered a defendant convicted of capital murder to pay the statutory maximum restitution fine of $10,000, partially based on the probation officer's erroneous statement that a condemned inmate would be assigned a job in prison. Potts clarified that a defendant sentenced to death would not be permitted to work but found the court's error was harmless beyond a reasonable doubt and the court's restitution order was otherwise lawful. (Id. at pp. 1055-1056.) The defendant's alleged inability to pay because he lacked a prison job would be "blunted by the fact that he would retain at least some of the money sent to him" by family and friends. (Id. at p. 1056.) Potts held the trial court was "permitted to conclude that the monetary burden the restitution fine imposed on defendant was outweighed by other considerations," such as the seriousness and gravity of the offense, and the circumstances of its commission. (Id. at pp. 1056-1057.)
DISPOSITION
The judgment is affirmed.