Opinion
C058063.
7-14-2009
THE PEOPLE, Plaintiff and Respondent, v. CHARLES GARY SULLIVAN, Defendant and Appellant.
Not to be Published
Defendant Charles Gary Sullivan picked up a hitchhiker and drove her to a secluded location with the promise of showing her a hidden vein of turquoise. After hiking along a creek bed and up a tree-lined embankment, defendant handcuffed the woman, zip-tied her wrists and ankles, ordered her to lie on the ground, and said: "[T]he only thing thats going to be involved is sex. Were just going to be out here for a few days having fun[.]" As she pleaded with defendant, he threatened to "pummel [her] or knock [her] out" if she continued to look at him, explaining that he did not want her to "memorize" his face. While defendant hiked back to his van to get something, the woman was able to cut the zip-ties on her ankles with a pocket knife she had and then escape to the main road, where she was rescued by two men driving by on an all-terrain vehicle (ATV).
Defendant was convicted by jury of false imprisonment by violence or menace (Pen. Code, § 236; further section references are to the Penal Code unless otherwise specified) and making a criminal threat (§ 422). The trial court sentenced him to an aggregate term of three years, eight months in state prison—the upper term of three years for the criminal threat, plus a consecutive term of eight months (one-third the middle term) for the false imprisonment—and imposed other orders.
On appeal, defendant contends (1) his sentence on the false imprisonment conviction must be stayed pursuant to section 654; (2) the trial court erred by denying his request to continue sentencing for the purpose of filing a new trial motion; and (3) he was deprived of the effective assistance of counsel when his attorney failed to bring to the courts attention that it was required to state its reasons for ordering defendant to register as a sex offender. As we will explain, the court abused its discretion by denying defendants requested continuance but his remaining contentions lack merit. We shall reverse the judgment and remand the matter for further proceedings to allow defendant to file a motion for new trial based on the purported newly discovered evidence to which his counsel referred at the sentencing hearing.
FACTS
The victim, A.E., testified that after attending her aunts funeral in Utah, she decided to hitchhike to her sisters home in Yuba City, California. A truck driver gave her a ride to the junction of Interstate 80 and Highway 20, outside of Truckee, where A.E. slept that night. The following morning, she stood along the westbound side of Highway 20 holding a piece of cardboard on which she had written "Yuba City."
Defendant, who was driving eastbound on Highway 20, made a U-turn to pick A.E. up. He stated he would take her as far as Nevada City. A.E. agreed and got into the front passenger seat. As he drove, defendant told her about a vein of turquoise near Bowman Lake, not far from where they were, and said he had been taking the turquoise and selling it for $75 a pound. A.E. agreed to let defendant take her to the turquoise vein.
Defendant drove toward the lake, parked his minivan near a bridge, and said they could walk to the turquoise vein from there. He took a fanny pack and they hiked along a riverbed until defendant led A.E. down a path surrounded by trees. When she stopped to tie her shoe, defendant came up from behind, grabbed her right shoulder, and pointed a handgun at her head.
Telling A.E. that, if she did what he said, she would not get hurt, defendant directed her to lie on her stomach. He then placed her arms behind her back and zip-tied her wrists together. After moving her to another spot on the ground, defendant straddled her back, fastened her wrists with handcuffs, removed her boots, and zip-tied her ankles together. As he did so, A.E. looked back at him and pleaded with him. Saying he did not want her to "memorize" his face, defendant threatened to "pummel [A.E.] or knock [her] out" if she continued to look at him. When A.E. asked what defendant was going to do to her, he replied: "[T]he only thing thats going to be involved is sex. Were just going to be out here for a few days having fun[.]"
Defendant soon told A.E. that he would be right back, and began hiking toward his minivan. After he left, A.E. managed to get out her pocket knife, frantically cut through the zip-ties securing her ankles, and searched through defendants fanny pack in an unsuccessful attempt to find the key to the handcuffs. Believing she did not have time to put on her boots, A.E. left them behind and ran away. She eventually found the main road and hid behind rocks until she was able to flag down two men driving by on an ATV.
The men testified that A.E. was "very frantic, very scared," was handcuffed, had zip-ties on her hands, and was shoeless. "[L]ooking left and right just — just looking everywhere," she said a man had a gun, he was "trying to kill [her]," and she "didnt know where he was." As she drove away with the men, A.E. pointed out defendants minivan. They took her to their cabin, where the men called 9-1-1 and used a hacksaw to removed the handcuffs. Defendant was arrested a short time later.
DISCUSSION
I
Defendant contends his sentence on the false imprisonment conviction must be stayed pursuant to section 654 because the "verbal threat was voiced while he was imprisoning" A.E., and both crimes were carried out pursuant to the same objective—to exercise control over her. We disagree.
Section 654, subdivision (a) states 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 prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although these distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one of the separate offenses arising from the single act or omission—the offense carrying the highest punishment." (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1345.)
"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. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal v. State of California (1960) 55 Cal.2d 11, 19; accord, People v. Britt (2004) 32 Cal.4th 944, 951-952.) However, "[w]here 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." (People v. Blake (1998) 68 Cal.App.4th 509, 512; People v. Mendoza, supra, 59 Cal.App.4th at p. 1345.)
"Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial courts determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143; People v. Hutchins, supra, 90 Cal.App.4th at pp. 1312-1313.)
In this case, substantial evidence supports the trial courts finding that defendant harbored separate independent objectives in committing each crime. This evidence is found in defendants own admissions, uttered to A.E. while he falsely imprisoned her and then threatened her with great bodily harm.
False imprisonment is "the unlawful violation of the personal liberty of another." (§ 236.) When achieved through "violence, menace, fraud, or deceit," it is punishable as a felony. (§ 237.) Defendant expressed his sexual objective in forcibly handcuffing A.E.s wrists and zip-tying her wrists and ankles. In his words: "[T]he only thing thats going to be involved is sex. Were just going to be out here for a few days having fun[.]"
The crime of making a criminal threat requires "(1) that the defendant `willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person, (2) that the defendant made the threat `with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out, (3) that the threat . . . was `on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, (4) that the threat actually caused the person threatened `to be in sustained fear for his or her own safety or for his or her immediate familys safety, and (5) that the threatened persons fear was `reasonabl[e] under the circumstances. [Citation.]" (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
A.E.s liberty already was restrained when she looked back at him and pled for her safety. Threatening to "pummel [her] or knock [her] out" if she continued to look at him, defendant explained the objective of his threat: "You know you cant keep looking at me. Do you know why you cant keep looking at me? If you keep looking at me, youre going to memorize my face. Youre going to have a picture of my face in your head. And I cant have that."
Thus, defendants stated objective for imprisoning A.E was to achieve sexual gratification, whereas his stated objective for threatening her was to avoid future arrest by preventing her from being able to identify him as her assailant. Because defendants objectives were independent of, and not merely incidental to, each other, the trial court properly imposed sentences for both crimes.
II
We agree, however, with defendants claim that the trial court erred in denying his request to continue the sentencing hearing to move for a new trial based on newly discovered evidence that would have a bearing on the credibility of A.E.s testimony. Although it appears very unlikely that defendant will be able to obtain as a witness the person who communicated the new "evidence," or that the evidence would be sufficiently credible to justify a new trial, defendant should have been allowed some time to investigate the newly acquired information to determine whether it would support a new trial motion.
A
Prior to the sentencing hearing, defendant filed a written motion for a continuance; then, at the beginning of the hearing, defense counsel asserted that new facts had come to light which would support a motion for new trial. Out of the presence of the prosecutor, counsel told the court: "On Wednesday I received a very strange phone call from the person purporting to be the truck driver who drove [the victim] from Utah to California. He claims that they engaged in kinky sex, including handcuffs which she supplied. And that at the end of the incident she demanded money and said shed call the cops if he didnt give her money. [¶] . . . [¶] . . . He said he figured out what was going on when he came back to California and he saw The Union article about [defendant] being released on bail. And he went back and read some of the comments in The Union newspaper about it, figured out who I was and contacted me."
At defense counsels request, the caller sent her an e-mail. Counsel explained that the e-mail address from which the message was sent "look[ed] strange" to her and she was having it investigated. As to the length of time needed to investigate the information provided by the caller, counsel stated: "I dont want to be put in a position where I am having to have to turn someone over whos just being a kook. I mean, . . . if this is a traceable . . . e-mail address to confirm what this person is telling me, that they should be able to do that in a week."
Denying defense counsels request to hear the matter ex parte, the court summoned the prosecutor. Defense counsel then restated the information received from the caller and explained she intended to file a motion for new trial if the caller turned out not to be a "crack pot." Counsel repeated that she was having the e-mail address investigated, and that her computer expert agreed "something is weird about the IP address, and hes tracing it back to see if we can figure out if its someone whos hiding a local IP address. Because my concern is absolutely that its a crack pot who reads The Union."
The prosecutor suggested they start by confirming whether the caller actually worked for the appropriate trucking company, which "should be easier to verify." Defense counsel agreed and stated "it will take no more than a week to [confirm] the IP address." The prosecutor then offered to run the callers name through the system to attempt to pull a rap sheet and determine whether "this person even exists." After some initial reluctance, defense counsel revealed the callers name to be Earle Smith. The prosecutor commented it would be futile to run such a common name through the system.
The court denied the motion for a continuance, finding the information that defense counsel received from the caller did not constitute good cause to delay sentencing. The court explained: "A truck driver named Earle Smith from either Utah or California. Im glad you brought it to our attention. And Im not being critical. Im being the opposite of critical. But its not sufficient grounds to continue."
B
"Continuances shall be granted only upon a showing of good cause" (§ 1050, subd. (e)), and a trial courts denial of a motion for continuance is reviewed for abuse of discretion. (People v. Mungia (2008) 44 Cal.4th 1101, 1118.) A trial court abuses its discretion only when its ruling "`"falls `outside the bounds of reason." [Citations.]" (People v. Benavides (2005) 35 Cal.4th 69, 88.) The burden of establishing an abuse of discretion rests squarely on the defendant. (People v. Beeler (1995) 9 Cal.4th 953, 1003.)
"Abuse of discretion has at least two components: a factual component . . . and a legal component." (Concord Communities v. City of Concord (2001) 91 Cal.App.4th 1407, 1417.) Thus, it must be exercised in conformity with the applicable principles of law governing the subject at issue (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297) and "`in a manner to subserve and not to impede or defeat the ends of substantial justice." (Concord Communities v. City of Concord, supra, 91 Cal.App.4th at p. 1417; People v. Jacobs (2007) 156 Cal.App.4th 728, 737-738.)
It is a fundamental principle of law that a defendant who has been convicted, but not yet sentenced, in a criminal case may obtain a new trial if he produces newly discovered evidence "material" to the case, "which he could not, with reasonable diligence, have discovered and produced at the trial" (§ 1181, subd. 8) and which is "likely" to "make a different outcome probable." (People v. Beeler, supra, 9 Cal.4th at p. 1005.) The governing statute provides that "if time is required by the defendant to procure," as required by statute, "the affidavits of the witnesses by whom such evidence is expected to be given," then the trial court "may postpone the hearing of the motion for such length of time as, under all circumstances of the case, may seem reasonable." (§ 1181, subd. 8.)
Here, defendant sought a continuance to investigate purported evidence that defense counsel received by telephone and e-mail just prior to the sentencing hearing. The purpose of the investigation would be to locate the "witness," determine whether the "evidence" appears to be credible, and, if so, to obtain the required affidavit for a new trial motion.
A guiding principle of law governing continuance motions is "whether a continuance would be useful." (People v. Beeler, supra, 9 Cal.4th at p. 1003.) "[T]o demonstrate the usefulness of a continuance[,] a party must show both the materiality of the evidence necessitating the continuance and that such evidence could be obtained within a reasonable time." (Ibid.) Defense counsel did so in this case.
According to defense counsel, a man claiming to be the truck driver who drove A.E. from Utah to California called counsel and informed her that the truck driver and A.E. "engaged in kinky sex, including handcuffs which she supplied," and "that at the end of the incident she demanded money and said shed call the cops if he didnt give her money."
If this newly-discovered "evidence" is legitimate, it would be material to the defense theory of the case. Defendant testified that when he was returning home from an "exploratory trip" near Bowman Lake, where he had been searching for "little known fishing spots," he picked up A.E. on the side of the highway. They spent some time talking about camping around the area and decided to drive up Bowman Lake Road to check out some camping spots. According to defendant, A.E. touched him several times during the drive, but he did not interpret this to be sexual in nature. She also mentioned something about "truckers being generous," but defendant did not pay any attention to the comment. When they reached a location suitable for camping, they got out of the vehicle and hiked along the creek bed. Defendant claimed that A.E. stopped when she reached a patch of trees, sat down on the ground, took off her boots, and asked defendant: "Do you play around?" At this point, he "became a willing participant without much thought or hesitation." Defendant testified that he knelt down beside A.E. and she handed him a pair of handcuffs, rolled over, and put her arms behind her back. Defendant attached the handcuffs. A.E. then asked defendant to bind her with zip-ties he had in his fanny pack; he complied. When A.E. asked defendant to get her a blanket, he went to his minivan to get one but changed his mind about the sexual interlude on the way back. When he returned, A.E. was gone. Defense counsel also elicited on cross-examination of A.E. that she had a profile on myspace.com, a social networking website, on which she described herself as having a "masochistic passion," and that she had a profile on modelmayhem.com, a networking website for models and photographers, through which she had solicited jobs as a nude model and indicated an interest in "erotic fetish modeling."
Under the circumstances, purported evidence that A.E. had earlier "engaged in kinky sex [with the truck driver], including handcuffs which she supplied," was material to the case because it would bolster defendants otherwise unlikely claim that A.E. asked to be handcuffed and zip-tied and consented to a sexual encounter. Because the purported evidence was material to this proceeding, and time was needed to locate the declarant, if possible, and to determine the credibility of the evidence, defendant unquestionably established that "a continuance would be useful." (People v. Beeler, supra, 9 Cal.4th at p. 1003.)
Defendant also satisfied the requirement that "such evidence could be obtained within a reasonable time." (People v. Beeler, supra, 9 Cal.4th at p. 1003.) Defense counsel informed the trial court that the potential witness had provided his name and e-mail address, and that "it will take no more than a week to [confirm] the IP address" and determine whether the caller was credible or just a "crack pot" who read about the case in the newspaper. Unlike a request for a continuance during trial, where witnesses and the jury would be inconvenienced by the delay in the proceedings, a one-week continuance of the sentencing hearing would not have posed a burden on the court or parties.
It appears that, despite the materiality of the purported newly discovered evidence and the reasonableness of the time requested, the trial court denied the continuance simply because the court believed that, on its face, the new information was not credible and, therefore, did not constitute good cause to continue the sentencing hearing to allow defendant to explore a new trial motion that the court believed was destined to fail.
Although the purported new evidence seems suspicious to us as well, we conclude that it was premature for the court to judge its credibility without giving defense counsel the opportunity to investigate the information and to present the declarant to the court, if possible. Simply stated, the court abused its discretion in denying the motion to continue the sentencing hearing for one week to explore whether there is a basis to seek a new trial. (Cf. People v. Jacobs, supra, 156 Cal.App.4th at pp. 740-741.)
III
Defendants final claim is that his trial attorney rendered ineffective assistance of counsel by not bringing to the trial courts attention that it was required to state its reasons for ordering defendant to register as a sex offender. (§ 290.006.)
In deciding whether to require sex offender registration, the trial court must engage in a two-step process: "(1) it must find whether the offense was committed as a result of sexual compulsion or for purposes of sexual gratification, and state the reasons for these findings; and (2) it must state the reasons for requiring lifetime registration as a sex offender. By requiring a separate statement of reasons for requiring registration even if the trial court finds the offense was committed as a result of sexual compulsion or for purposes of sexual gratification, the statute gives the trial court discretion to weigh the reasons for and against registration in each particular case." (People v. Hofsheier (2006) 37 Cal.4th 1185, 1197.)
Here, in ordering defendant to register as a sex offender, the trial court found that defendant "committed these crimes for sexual gratification," but the court did not separately state its reasons for ordering registration. However, because defendants trial attorney did not object to the omission, it is forfeited. (People v. Bautista (1998) 63 Cal.App.4th 865, 868; see also People v. Scott (1994) 9 Cal.4th 331, 351-353 ["Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. Routine defects in the courts statement of reasons are easily prevented and corrected if called to the courts attention"].)
Nevertheless, defendant argues the order must be vacated and the issue remanded for further proceedings in the trial court because his trial attorneys failure to raise the issue deprived defendant of the effective assistance of counsel.
To prevail on a claim of ineffective assistance of counsel, defendant must establish that counsels representation fell below prevailing professional norms and that, in the absence of counsels failing, it is reasonably probable defendant would have obtained a more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 698]; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) When the record sheds no light on why trial counsel did not raise an objection, we must affirm unless there could be no satisfactory explanation. (People v. Stewart (2004) 33 Cal.4th 425, 459; People v. Wilson (1992) 3 Cal.4th 926, 936.)
Here, trial counsel may have declined to raise the objection believing it would be futile because of the trial courts comments during sentencing. (See People v. Constancio (1974) 42 Cal.App.3d 533, 546 ["It is not incumbent upon trial counsel to . . . undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel"].)
In denying probation and sentencing defendant to prison, the court found that defendants version of the incident was "absurd[]," that his crimes were "malignant," "despicable" and committed for his sexual gratification, and that he posed the danger of "reoffending." These statements indicated that the trial court believed the sex offender registration requirement was necessary for public safety to keep track of defendant, who is likely to commit similar crimes when released from custody. (See Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 78.)
Under the circumstances, defense counsels failure to make what would appear to be a futile objection, because the court simply would have reasserted its findings as a basis to impose the registration requirement, did not fall below prevailing professional norms. For the same reason, it is not reasonably probable defendant would have obtained a more favorable result if his counsel had raised the objection. Consequently, the claim of ineffective assistance of counsel fails. (Strickland v. Washington, supra, 466 U.S. at p. 694 ; People v. Ledesma, supra, 43 Cal.3d at pp. 215-218.)
DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court for further proceedings to allow defendant to file, in a timely manner, a motion for new trial based on the purported newly discovered evidence to which his counsel referred at the sentencing hearing. If defendants counsel declines to file the new trial motion, or if it is filed but denied by the trial court, the court shall reinstate the judgment.
We concur:
BLEASE, J.
ROBIE, J. --------------- Notes: Section 290.006 provides: "Any person ordered by any court to register pursuant to the Act for any offense not included specifically in subdivision (c) of Section 290, shall so register, if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. The court shall state on the record the reasons for its findings and the reasons for requiring registration."