Opinion
A146975
10-30-2017
THE PEOPLE, Plaintiff and Respondent, v. FRANCIS TAYLOR, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 1503747)
Appellant Francis Taylor appeals from a judgment sentencing him to prison after a jury convicted him of committing multiple sexual offenses against his niece when she was between eight and eleven years old. He contends: (1) one of his convictions of forcible lewd conduct with a child under Penal Code section 288, subdivision (b)(1), must be reversed because the evidence was insufficient to show he committed the act by means of force, duress, menace or fear; (2) the trial court should have given a sua sponte instruction on nonforcible lewd conduct under section 288, subdivision (a), as a lesser included offense of the same count; (3) the case must be remanded for resentencing because the court erroneously believed full strength consecutive sentences were mandatory under section 667.6, subdivision (d), and certain counts should have been stayed pursuant to section 654; (4) the trial court erred in failing to award custody credits at the time of sentencing; and (5) various clerical errors in the abstract of judgment must be corrected. We agree the court should have given an instruction on nonforcible lewd conduct as to one count. We also agree the case must be remanded for resentencing, an award of credits and the correction of certain clerical errors.
Further statutory references are to the Penal Code.
I. BACKGROUND
Jane Doe, who was 19 years old at the time of the trial in this case, grew up in El Sobrante and had a large extended family. Appellant was in a long-term relationship with Jane's aunt, and was the father of one of the aunt's two sons (Jane's cousins). Appellant and Jane's aunt lived with Jane's family for a period of time, but eventually moved to a nearby apartment where appellant frequently babysat Jane and the other children in the family.
In 2005, when Jane was eight or nine years old and in the third grade, appellant took her into his bedroom at the apartment after telling her cousins to go play outside. He told Jane she would have to follow the "rules," which included locking the door, closing the blinds, taking her clothes off, listening to him, and keeping what they did a secret. After Jane had taken her clothes off, she lay face down on the bed with a pillow underneath her and appellant began touching her with his hands. Jane tried to squirm away but appellant told her it was okay because he was her uncle. He placed his finger inside Jane's vagina and then penetrated her with his penis. Jane told him it hurt and asked him to stop but appellant persisted, keeping her pinned down and pulling her hair a few times. After he had finished, appellant told Jane to put on her clothes and repeat the rules: "[c]lose, lock the door, close the blinds, clothes off, listen to him, don't tell anyone."
Appellant and Jane's aunt moved with their family to a red house. When Jane was nine or ten years old, she was over at the red house playing with her cousins and appellant was watching the children. Appellant began playing a "game" with the children, in which he would blindfold them in turn, place something in their mouths (a piece of chicken, a bar of soap) and have them guess what it was. When it was Jane's turn he took her into a different room, blindfolded her, put his penis in her mouth, and told her to move her tongue around and not bite down. Jane did not know how to react and afterward, when she asked what the object was, he told her it was the end of a toothbrush. Jane knew he was lying because the object had not felt like a toothbrush at all. Appellant played a similar game with her in a hotel room when the families were on vacation together.
Jane visited the red house on another occasion when she was nine to eleven years old, in the fourth or fifth grade. Appellant sent her cousins outside to play and took Jane into a bedroom to watch a movie. He shut the door and began touching and kissing her, asking her repeatedly who was her favorite uncle. Appellant took off Jane's clothes, pinned her down on her back on the bed, and placed his finger in her vagina before penetrating her with his penis. When appellant had finished, Jane put on her clothes and ran outside to her cousins.
Jane felt guilty and ashamed about the sexual assaults, but she was worried about what would happen to her cousins if appellant were taken away. Although she knew appellant's actions were wrong, it was not until she took a sex education course in sixth grade that she understood the magnitude of what he had done to her. She did not come forward, but that summer during a sleepover at the red house, she refused to go with appellant when he woke her in the night and asked her to come with him. She told appellant she would tell her parents and he responded that he had not done anything, and she would be in trouble too. Jane's aunt broke up with appellant in 2012, when Jane was a sophomore in high school.
Jane first disclosed the sexual assaults to a high school boyfriend, after she started crying and "just freaked out" when they started "making out." She did not give any details but told him her uncle had raped her and taken her virginity. In 2014, when Jane was 17 years old, she got drunk at a party and told her mother what appellant had done to her during an argument over the phone. Jane and her mother went to the police the next day.
Jane made a series of recorded pretext calls to appellant in which she asked him to help her make sense of what had happened. Appellant told Jane several times that she was "not crazy" and suggested that if she dropped the charges they could have a relationship when she turned 18.
The district attorney filed an information charging appellant with two counts of aggravated sexual assault (rape) of a child under 14 (§ 269, subd. (a)(1), counts 1 & 3), four counts of committing a forcible lewd act on a child under 14 (§ 288, subd. (b)(1), counts 2, 4, 6 & 7), one count of aggravated sexual assault (penetration with a foreign object) of a child under the age of 14 (§ 269, subd. (a)(5), count 5) and attempted commission of a lewd act on a child under 14 (§§ 664/288, subd. (a), count 8). The case proceeded to a trial by jury at which appellant testified and denied having ever had sexual contact with Jane. The defense also called female relatives who testified they had never experienced or observed any inappropriate sexual behavior by appellant.
Section 269 provides in relevant part: "(a) Any person who commits any of the following acts upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child: [¶] (1) Rape, in violation of paragraph (2) or (6) of subdivision (a) of Section 261. [¶] . . . . [¶] . . . . [¶] . . . .[¶] (5) Sexual penetration, in violation of subdivision (a) of Section 289. [¶] (b) Any person who violates this section is guilty of a felony and shall be punished by imprisonment in the state prison for 15 years to life. [¶] (c) The court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or the same victim on separate occasions as defined in subdivision (d) of Section 667.6."
The jury convicted appellant of all counts, and the court sentenced appellant to prison for 27 years plus 30 years to life.
II. DISCUSSION
A. Substantial Evidence Supports the § 288(b)(1) Conviction in Count 7
Appellant argues the evidence was insufficient to support his conviction for forcible lewd conduct under count 7, which was based on the incident in which he blindfolded Jane and placed his penis in her mouth. He does not dispute that his conduct was a lewd act that would support a conviction under section 288, subdivision (a), but argues the crime was not forcible in nature, so as to support a conviction under section 288, subdivision (b)(1). We disagree.
Our review of any claim of insufficiency of the evidence is limited. (People v. Lewis (2001) 25 Cal.4th 610, 643.) Our task is "to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) In conducting this review, we must assume the trier of fact resolved all conflicting inferences in favor of the prosecution. (Jackson v. Virginia (1979) 443 U.S. 307, 326.)
As the jury in this case was properly instructed, section 288, subdivision (b)(1), penalizes the commission of a lewd act on a child under 14 "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. . . ." As used in this provision, "force" means physical force " 'substantially different from or substantially greater than necessary to accomplish the lewd act itself.' " (People v. Soto (2011) 51 Cal.4th 229, 242 (Soto).) We assume for the sake of argument that appellant used no physical force beyond that necessary to accomplish the act of oral copulation that was the basis for count 7. There was, however, substantial evidence to support a finding that the act was accomplished by the use of duress.
"Duress" as used in section 288, subdivision (b)(1), 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." ' " (Soto, supra, 51 Cal.4th at p. 246; see People v. Pitmon (1985) 170 Cal.App.3d 38, 50.) "[T]he legal definition of duress is objective in nature and not dependent on the response exhibited by a particular victim." (Soto, at p. 246.)
Duress involves psychological coercion and "can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes. . . . '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." (People v. Senior (1992) 3 Cal.App.4th 765, 775.) In People v. Cochran (2002) 103 Cal.App.4th 8, 13, the court found sufficient evidence of duress under circumstances comparable to this case: "[A]s a factual matter, when the victim is as young as this victim [nine years old] and is molested by her father in the family home, in all but the rarest cases duress will be present." (Id., at p. 16, fn. 6; see People v. Veale (2008) 160 Cal.App.4th 40, 46 [stepfather molested seven-year-old; sufficient evidence of duress though he did not threaten her].)
Cochran and other authorities were overruled in Soto, supra, 51 Cal.4th at page 248, footnote 12, to the extent they suggested the consent of the victim was a defense to a charge of lewd acts accomplished by the use of force, violence, duress, menace or fear.
At the time of the blindfold incident, appellant was a man in his twenties while Jane was a nine-or ten-year-old child whom he had previously raped. Appellant was not married to Jane's aunt, but the two were in a long-term relationship and Jane viewed him as an uncle. Appellant frequently babysat Jane and had authority over her. The lewd act was committed after appellant removed Jane from the company of her cousins, took her into a different room, and blindfolded her. While these circumstances do not compel a determination that the lewd act in count 7 was committed by means of duress, they support such a determination.
B. Sua Sponte Instruction on § 288(a) as Lesser Included Offense of Count 7
Appellant argues that assuming the evidence was sufficient to support a conviction of forcible lewd conduct under count 7, the court should have instructed the jury on nonforcible lewd conduct as a lesser included offense. We agree.
A trial court has a sua sponte duty to instruct on a lesser included offense when " ' "the evidence raises a question as to whether all of the elements of the charged offense were present and there is evidence that would justify a conviction of such a lesser offense." ' " (People v. Hughes (2002) 27 Cal.4th 287, 365; see People v. Parson (2008) 44 Cal.4th 332, 349; People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) This rule "avoids forcing the jury into an 'unwarranted all-or-nothing choice' " that could lead to an improper conviction. (Hughes, at p. 365.) The crime of nonforcible lewd conduct under section 288, subdivision (a), is a lesser included offense of forcible lewd conduct under section 288, subdivision (b)(1). (People v. Chan (2005) 128 Cal.App.4th 408, 421.) Accordingly, the trial court was required to give a sua sponte instruction on nonforcible lewd conduct if there was substantial evidence from which the jury could conclude appellant did not use "force, violence, duress, menace or fear of immediate and unlawful bodily injury" on the victim.
The Attorney General acknowledges the issue has not been forfeited by defense counsel's failure to request instructions on lesser included offenses.
Jane testified that while playing a game in which appellant placed a blindfold on the children and had them guess what he was putting in their mouths, he took her into a different room, blindfolded her and placed his penis in her mouth. In recounting the event, she did not mention any acts of physical force or verbal threats. She did not testify she was in actual fear. A reasonable trier fact could have concluded appellant did not employ force, violence, duress, menace or fear of bodily harm, and substantial evidence supported an instruction on nonforcible lewd conduct.
The erroneous failure to instruct on a lesser included offense supported by the evidence is reviewed under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836, which asks whether it is reasonably probable the defendant would have obtained a more favorable result in the absence of the error. (Breverman, supra, 19 Cal.4th at p. 176.) A reasonable probability exists in this case. The element that differentiates forcible lewd conduct from nonforcible lewd conduct is the use of force, violence, duress, menace or fear of bodily harm to commit the act. Though appellant most definitely employed force and/or violence in committing most of the other crimes of which he was convicted, there was scant if any evidence that he did so in connection with the blindfold incident underlying count 7. Jane did not describe any threats made during or prior to that incident, and the evidence of duress consisted entirely of Jane's young age and appellant's authority over her by virtue of their familial relationship. It is reasonably probable that a jury instructed on nonforcible lewd conduct in connection with count 7 would have convicted him of that lesser offense.
Appellant's conviction for forcible lewd conduct under count 7 must therefore be reversed. Because the reversible error goes only to the issue of whether the greater offense of forcible lewd conduct may stand, and because the evidence amply supports the lesser included offense of nonforcible lewd conduct, we will give the prosecutor the option of retrying the greater offense or accepting a reduction to a lesser offense. (People v. Brown (2016) 245 Cal.App.4th 140, 155-156.)
C. Sentencing Issues
Counts 1 and 2 and counts 3 through 6 arose from the two separate incidents in which appellant raped Jane Doe. Appellant argues that pursuant to section 654, the court should have sentenced him on only one count per incident because the offenses committed during each incident were part of the same indivisible course of conduct. In response to our request for supplemental briefing regarding certain other aspects of the sentence, appellant alternatively argues that the court erred by imposing what it believed to be mandatory full strength consecutive sentences on certain counts under section 667.6, subdivision (d), without making the requisite finding that the crimes had been committed on separate occasions. We conclude section 654 does not apply to any of the counts of which appellant was convicted, but agree the case must be remanded so the court can determine whether certain full strength consecutive terms were mandatory.
A trial court's mistake of law as to the applicability of section 667.6, subdivision (d), results in an unauthorized sentence and is not forfeited on appeal by the defendant's failure to object. (See People v. Garza (2003) 107 Cal.App.4th 1081, 1091 (Garza).) The Attorney General does not contend otherwise.
1. Sentence Imposed
Appellant was convicted of eight different sexual offenses committed on four separate dates and was sentenced as follows:
| First incident in 2005: | |
|---|---|
| Count 1 (agg. sexual abuse (rape)/§ 269(a)(1)): | 15 years to life consecutive |
| Count 2 (forcible lewd act/§ 288(b)(1)): | 8 years consecutive |
| (Full strength upper term) | |
| Movie Incident at Red House: | |
| Count 3 (agg. sexual abuse (rape)/§ 269(a)(1)): | 15 years to life consecutive |
| Count 4 (forcible lewd conduct/§ 288(b)(1)): | 8 years consecutive |
| (Full strength upper term) | |
| Count 5 (agg. sexual abuse (penetration)/ § 269(a)(5)): | |
| Count 6 (forcible lewd conduct/§ 288(b)(1)): | 2 years consecutive |
| (One-third middle term) | |
| "Blindfold Game" at Red House: | |
| Count 7 (forcible lewd conduct/§ 288(b)(1)): | 8 years consecutive |
| (Full strength upper term) | |
| Final Incident: | |
| Count 8 (attempted lewd conduct/§ 288(a)/664): | 1 year consecutive |
| (One third-middle term) |
The prosecution argued in its sentencing memorandum that a stay under section 654 was appropriate as to count 5. On appeal, the Attorney General disagrees that a stay was required by law, but concedes that any error in this regard was invited by the prosecution and accordingly does not seek a modification of the sentence on count 5. We accept the concession and consider the sentence on count 5 no further.
When a crime carries a determinate sentence, section 1170.1, subdivision (a), generally limits the length of a consecutive, subordinate sentence for such an offense to one-third of the middle term. (People v. Pelayo (1999) 69 Cal.App.4th 115, 123 (Pelayo).) Section 667.6 provides an exception to this rule for designated violent sex crimes, and requires or permits a full, separate, and consecutive sentence in such cases. (Ibid.) Section 667.6, subdivision (c), provides that a full strength consecutive sentence is discretionary "if the crimes involve the same victim on the same occasion." Section 667.6, subdivision (d), mandates such a sentence "if the crimes involve separate victims or involve the same victim on separate occasions."
"In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions." (§ 667.6, subd. (d).) A trial court's finding regarding separate occasions will be upheld on appeal if supported by substantial evidence. (Garza, supra, 107 Cal.App.4th at p. 1092.)
Sexual assault on a child under section 269 and forcible lewd conduct under section 288, subdivision (b)(1), are both violent sexual offenses to which the provisions of section 667.6, subdivision (d), apply. (§§ 269, subd. (c), 667.6, subd. (e)(5).) The trial court indicated that section 667.6, subdivision (d), "does require full, separate, and consecutive sentences for each rape and for each forcible lewd act." This was not, strictly speaking, an accurate statement of the law. As noted, section 667.6, subdivision (d), applies only to violent sex crimes committed on separate occasions. And in a case such as this one, which involves more than one violent sexual offense per incident, "[i]n order to sentence separately on each count under [section 667.6,] subdivision (d), each count would have had to occur on a separate occasion as defined in subdivision (d)." (People v. Irwin (1996) 43 Cal.App.4th 1063, 1070, italics added; see People v. Thompson (1982) 138 Cal.App.3d 123, 126.)
In so stating, it apparently accepted the argument in the prosecution's sentencing brief that "forcible rape crimes and forcible lewd act touching crimes are mandatorily run as full, separate and consecutive terms when they either involve separate victim[s] or separate incidents involving the same victim. As noted above, there are four distinct incidents which [appellant] was convicted for; three of those separate incidents involved either forcible rape, forcible lewd acts, or both. Therefore, where each instance involves either forcible rape or forcible lewd touching, the sentences imposed for each must run fully, separate and consecutive to one another."
While it is beyond dispute that the aggravated sexual assault and forcible lewd acts underlying counts 1 and 2 were committed on an occasion separate from the sexual assaults and forcible lewd acts underlying counts 3 through 6, it is not beyond dispute that each count committed during these two distinct incidents were committed on occasions separate from each other. This is reflected in the trial court's imposition of a two-year consecutive sentence (one-third the middle term under section 1170.1) on the forcible lewd conduct conviction in count 6. The court's imposition of a sentence under section 1170.1 instead of section 667.6, subdivision (d), suggests the court found the lewd act underlying count 6 had been committed on the same occasion as the aggravated sexual assault underlying count 3 and the forcible lewd act underlying count 4, notwithstanding its more general comment that section 667.6, subdivision (d), required a full, separate and consecutive sentence for each rape and lewd act.
The Attorney General argues the trial court implicitly concluded the crimes underlying counts 1 and 2 were committed on the same occasion, as were the crimes underlying counts 3 and 4 (even if count 6 was not), and urges us to defer to this factual determination on appeal. (Garza, supra, 107 Cal.App.4th at p. 1092.) But the court's express comments about the applicability of section 667.6, subdivision (d), and the sentence it imposed on count 6 notwithstanding its comments, is confusing and persuades us that the better course is to remand the case for reconsideration of the sentence in light of the principles discussed above. This is particularly true because the case must be remanded for another reason relating to the calculation of consecutive sentences.
The trial court imposed one-third-the-middle term sentences on counts 6 and 8 under section 1170.1, subdivision (a), rather than treating one of them as a principal term under that same subdivision. Effectively, this rendered one of the full-strength terms on the determinate counts the principal term under section 1170.1. This aspect of the sentence was unauthorized, because a full strength sentence imposed under section 667.6, subdivision (d), "must always be done separately and the total of the section 667.6, subdivision (d) sentences added to any sentence computed independently under section 1170.1." (Pelayo, supra, 69 Cal.App.4th at p. 125.) "[W]hen a defendant is convicted of both violent sex offenses and crimes to which section 1170.1 applies, the sentences for the violent sex offenses must be calculated separately and then added to the terms for the other offenses as calculated under section 1170.1." (Id. at p. 124.)
We note that on remand, the court may still impose discretionary full strength sentences under section 667.6, subdivision (c), accompanied by an adequate statement of reasons, in the event it determines the mandatory provisions of section 667.6, subdivision (d), do not apply to certain counts. (Thompson, supra, 138 Cal.App.3d at p. 127.) And, because it appears the aggregate sentence imposed in this case was authorized, even though certain components were not, the court should not impose a total greater sentence on remand. (People v. Torres (2008) 163 Cal.App.4th 1420, 1432-1433.) Subject to these caveats, we express no opinion regarding the appropriate formulation of the sentence on remand.
3. Section 654
While the case must be remanded for resentencing to allow the court to make the requisite determinations under section 667.6, we disagree with appellant's argument that any portion of the sentence must be stayed on remand pursuant to section 654.
Section 654, subdivision (a), provides: "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." Although section 654 literally applies only when multiple statutory violations arise from the same "act or omission," its protection has been extended to cases in which several offenses are committed during a course of conduct deemed to be indivisible in time. (People v. Hicks (1993) 6 Cal.4th 784, 789 (Hicks); People v. Latimer (1993) 5 Cal.4th 1203, 1207-1209.) The question of whether section 654 applies is ordinarily a factual one for the trial court at the time of sentencing and is reviewed for substantial evidence, a standard that requires us to view the evidence in the light most favorable to the judgment. (People v. Lopez (2011) 198 Cal.App.4th 698, 717.)
Multiple sexual offenses committed on the same occasion are generally "divisible" from one another and may be punished separately consistent with section 654. (People v. Scott (1994) 9 Cal.4th 331, 344, fn. 6; People v. Harrison (1989) 48 Cal.3d 321, 334-338; People v. Perez (1979) 23 Cal.3d 545, 553-554; People v. Alvarez (2009) 178 Cal.App.4th 999, 1006-1007.) "Even 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. . . . [¶] . . . [S]ection 654 does not apply to sexual misconduct that is 'preparatory' in the general sense that it is designed to sexually arouse the perpetrator or the victim." (Alvarez, at p. 1006.) Moreover, when a crime is a violent sexual offense to which section 667.6 applies, that provision creates an exception to section 654's general proscription against multiple punishment for offenses committed during an indivisible course of conduct. (Hicks, supra, 6 Cal.4th at p. 796.)
Turning to the specific counts at issue, appellant argues that section 654 precludes the imposition of sentence for both forcible lewd conduct under count 2 and aggravated sexual assault (rape) under count 1, both of which arose from the first occasion on which Jane was raped. We disagree. The lewd conduct charge in count 2 was based on the acts committed by appellant before he penetrated Jane with his penis: having her disrobe, touching her body, and placing his fingers inside her vagina while she tried to get away. Substantial evidence supports the trial court's implicit determination that the initial lewd touching underlying count 2 and the rape underlying count 1 were distinct sexual acts and that neither one was merely incidental to the other. (See Harrison, supra, 48 Cal.3d at pp. 335-338 [defendant properly sentenced to consecutive terms for three separate acts of digital penetration committed during same assault].)
Appellant complains that the information and verdict forms did not clarify that the forcible lewd conduct underlying count 2 was based on the touching that occurred prior to the rape, meaning the conviction under count 2 might have been based on the rape itself, for which appellant was already being punished under count 1. We disagree, because the prosecutor clearly elected during closing argument to treat the forcible touching that preceded the rape as the forcible lewd act alleged in count 2: "[H]e brought her into the room, gave her the rules—the four rules: Shut the door, shut the blinds, take your clothes off, keep it a secret. He brought her into the room, made her follow the rules, and then he began to touch her. And he wouldn't let her get [ ] away. He forced her to do these things." (See People v. Mendoza (1997) 59 Cal.App.4th 1333, 1345-1346 [prosecutor's election during closing argument governed § 654 analysis].) There would have been no rational basis for the jury to have found that appellant committed the rape but did not commit the forcible lewd touchings that preceded it or to have otherwise conflated the two.
Turning to the second cluster of sexual offenses at issue, appellant argues section 654 precluded the imposition of sentence for the forcible lewd conduct convictions in counts 4 and 6 because they were the "same acts as the aggravated sexual assault-rape charged in [count 3], and the lewd-act penetration charged in count [5], or at the very least, touchings that were 'incidental to the commission of another sex offense.' " We are not persuaded. In closing argument, the prosecutor identified the acts underlying the four counts as the rape itself, "the touching of [Jane's] breasts, inserting his fingers into her vagina, and kissing her." The lewd acts in counts 4 and 6 were thus distinct acts from the rape and digital penetration underlying counts 3 and 5, and sentences on those counts are not barred by section 654.
D. Credits
Appellant argues the trial court failed to award him credit for the time spent in pretrial custody between his arrest on February 20, 2014, and his sentencing on November 13, 2015, a total of 632 days. (See § 2900.5, subd. (b).) Respondent agrees. Neither party mentions whether appellant is entitled to pretrial conduct credits under section 2933.1 or any other provision. On remand, the trial court shall award appellant the custody credits and any pretrial conduct credits to which he may be entitled.
E. Errors in Abstract of Judgment
The parties agree the abstract of judgment contains clerical errors that should be corrected to reflect: (1) appellant was convicted in count 8 of an attempted lewd act under sections 288, subdivision (a), and 664, rather than a forcible lewd act under section 288, subdivision (b)(1); (2) the accurate dates of the offenses in counts 3 through 8, which the abstract erroneously states were all committed in 2005; (3) a total indeterminate term of 30 years to life rather than 15 years to life; and (4) the amounts imposed for the court operations fee ($320) and the criminal conviction fee ($240), which are transposed in the abstract of judgment. The court shall make the necessary corrections when it prepares the new abstract of judgment following further proceedings and resentencing.
DISPOSITION
Appellant's conviction in count 7 of forcible lewd conduct under section 288, subdivision (b)(1), is reversed. If, after the filing of the remittitur in the trial court, the People do not bring appellant to retrial on count 7 within the time limit set forth in section 1382, subdivision (a)(2), the trial court shall proceed as if the remittitur constituted a modification of the judgment to reflect a conviction of the lesser included offense of nonforcible lewd conduct under section 288, subdivision (a). The sentence is vacated and following the disposition on count 7, the court shall resentence appellant accordingly, consistent with the views expressed in Sections C. and D. of the Discussion, and shall correct the errors in the abstract of judgment noted in Section E. of the Discussion. A copy of the new abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.