Opinion
A152280
02-28-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ALEXANDER WRIGHT II, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 51617034)
A jury convicted defendant Michael Alexander Wright II of four counts of aggravated sexual assault of a child (counts 1-4, Penal Code, §§ 269, subd. (a)(1), (4), 261, subd. (a)(2), former § 288a, subd. (c)(2)); four counts of forcible lewd and lascivious acts upon a child (counts 5-8, § 288, subd. (b)(1)); one count of forcible rape (count 9, § 261, subd. (a)(2)); one count of forcible oral copulation of a minor over 14 (count 10, § 288a, subd. (c)(2)(C)); one count of sodomy of a person under 16 (count 11, § 286, subd. (b)(2)); and three counts of a lewd and lascivious acts upon a child (counts 12-14, § 288, subd. (c)(1)). Each conviction arose from defendant's sexual abuse of his daughter, Jane Doe.
All further statutory references are to the Penal Code unless otherwise stated.
The language of subdivision (c)(2) was the same in the former versions of section 288a effective from September 29, 2010 to September 8, 2013 (Stats. 2010, ch. 219, § 8) and September 9, 2013 to December 31, 2018 (Stats. 2013, ch. 282, § 8). Former section 288a was renumbered as section 287 and amended by Statutes 2018, chapter 423, section 49, effective January 1, 2019. All further references to the former section 288a shall be to "section 288a."
Defendant argues that his convictions must be reversed because he was denied his Sixth Amendment right to discharge his retained counsel and because the court erred in instructing the jury that it could find the element of "force, violence, duress, menace or fear of immediate and unlawful bodily injury"—required to convict defendant of many of the charged offenses—based on a preponderance of the evidence. He also argues that remand for resentencing is required because the court ordered him to serve consecutive sentences on counts 1 through 10 without sufficient evidence to show that he committed each of these offenses on ten "separate occasions" (§§ 269, subd. (c), 667.6, subd. (d)). This court requested supplemental briefing on whether sufficient evidence supports defendant's convictions under counts 3, 4, and 10.
Because the evidence was insufficient to prove the element of the victim's age as required in counts 3, 4, and 10, we reverse those convictions. We otherwise affirm.
I. BACKGROUND
Defendant and Doe's mother, L.C., had been together since 1999. They had two daughters, Doe, born on December 13, 2000, and L.S., born in 2008. From 2008 through 2015, L.C. worked out of the home during the week from 7:00 a.m. to 3:30 p.m.
Defendant drank alcohol frequently, and he was belligerent to the point of violence when intoxicated. He punched, slapped, choked, and scratched his wife and children, and defendant was violent to L.C. in front of the children on almost a weekly basis. He also frequently threatened to kill his wife and children and pointed a gun at them. L.C. testified that defendant threatened her by saying that if she refused to orally copulate him, he would have Doe do so, so L.C. complied.
Defendant began sexually abusing Doe when she was 10. Doe told police that the first time defendant touched her, he brought her into his room while her mother was at work and placed his penis in her vagina, causing her to bleed. Doe testified that she felt uncomfortable when defendant first had sex with her. When L.C. returned home, defendant told her that "something almost happened, but I didn't do anything."
The next time defendant had sex with Doe was about a year later when she was still in elementary school; after that, it started happening constantly. Sexual acts between defendant and Doe occurred in the morning or at night when L.C. was not around. Defendant had vaginal intercourse with Doe more than 15 times; this occurred a couple of days each month, and it happened for years. Defendant placed his penis in Doe's mouth more than five times; he placed his mouth on her vagina more than five times; and he placed his hands or mouth on her breasts more than five times.
Typically, defendant asked Doe before having sex. When she said no, he did not force her, but he was angry. Defendant placed a pillow in Doe's mouth to stifle her cries when he had sex with her. The second time that defendant had sex with Doe, he told her that he would kill the family if she reported him. Defendant told Doe at times that she could tell the police, but Doe testified that he said this when he was drunk, angry, and yelling. She did not report him because she was scared of him and afraid to tell the police. Doe testified that she knew defendant had a gun, which police found under defendant's bed, and Doe testified that defendant had pointed the gun at her and her mother before. Doe also testified that she told defendant at times that she liked it when he touched her, but this was not true; she said so only because she was scared.
In March of 2016, when Doe was 15, defendant had anal sex with her for the first time. The day before this, he had vaginal sex with her. Days later, Doe told her mother that defendant was having sex with her. L.C. and Doe went to the police, and Doe later went for a medical examination. Her sexual assault examination disclosed trauma and separation of the skin in several locations of the anus, injuries consistent with forceful penetration by some object through the anus.
Police arrested defendant. When questioned at the police station, defendant admitted that he had been having sex with Doe, but he claimed that she said yes and liked it. He believed that they began having sex when she was about 13 years old. He denied that they had sex when she was in elementary school, although he admitted that it almost happened once then. Defendant admitted that he threatened his wife with violence, but denied that he threatened Doe. He claimed that he did not threaten or force Doe to have sex because she liked it. He also said that Doe declined his suggestion that she could end the sexual encounters by telling the police. He admitted that his phone contained photos of Doe in nude and partially nude states.
A search of defendant's bedroom disclosed a loaded rifle beneath his bed, lubricant, condoms, and an instructional packet for a contraceptive, "Plan B." The parties stipulated that defendant's iPhone contained photos of Doe in nude and partially nude states. Doe testified that she had at times told defendant that she liked him taking naked pictures of her because she was scared, and at times she told him that she did not like this.
The jury convicted defendant of all 14 counts, and the court sentenced him to an indeterminate term of 60 years to life, plus a determinate term of 42 years, six months.
II. DISCUSSION
A. The Request to Discharge Retained Counsel
Defendant contends that the court abused its discretion by denying his motion to discharge his retained counsel. We conclude otherwise.
1. Additional Background
The People filed a felony complaint against defendant on March 30, 2016. Defendant was assigned a public defender, and his arraignment was continued to April 28, 2016. After arraignment, his preliminary hearing was set for August 2016. The preliminary hearing was continued at defendant's request because of his counsel's unavailability and later vacated at defendant's request so that he could retain private counsel. After defendant retained counsel, Mr. Pacheco, he waived his preliminary hearing, and the court arraigned him on the information on November 2, 2016. The court set a trial readiness conference for February 2017 and trial for March 2017. Defendant and Pacheco appeared at the February 2017 trial readiness conference, and, at defendant's request, the trial was continued to June 19, 2017 with a trial readiness conference set for June 6, 2017. Defendant waived time to June 19, 2017.
At the June 6, 2017 trial readiness conference, the following exchange occurred:
"THE COURT: All right. Bear with me just a moment. All right. Let's see. This is set for trial June 19th.
"MR. PACHECO: Good afternoon, your Honor. Chuck Pacheco. And I am prepared to go to trial on June the 19th. However, in speaking with my client, he's not happy with my services and he just advised me I'm fired.
"THE COURT: Oh, it doesn't work that way, sir. Ms. Bell, are you prepared to go to trial?
"MS. BELL: I am prepared to go to trial and I would object to any change in counsel that would cause a continuance at this point.
"THE COURT: All right. Since I don't see anybody here to substitute in for Mr. Pacheco, Mr. Wright, I'm simply [going to] confirm your case for trial on June 19th.
"THE DEFENDANT: May I address the court, your Honor?
"THE COURT: No, sir. June 19th at 8:30.
"THE DEFENDANT: Ineffective assistance.
"THE COURT: Sir, you hired him.
"MR. PACHECO: Thank you, your Honor.
"THE COURT: Thank you.
"MR. PACHECO: See you on the 19th."
The case trailed for a week and went out for trial on June 26, 2017.
2. Analysis
A criminal defendant has a Sixth Amendment right to discharge his retained attorney at any time with or without cause. (People v. Ortiz (1990) 51 Cal.3d 975 (Ortiz); People v. Keshishian (2008) 162 Cal.App.4th 425, 428.) An improper denial of this right compels automatic reversal. (Ortiz, at p. 988.) A trial court has discretion, however, to deny the request if it would significantly prejudice the defendant or if it is untimely, i.e., if it would result in " 'disruption of the orderly processes of justice.' " (Id. at p. 982.) When deciding whether to grant such a request, the court must balance the defendant's interest in new counsel against the disruption that would result from the substitution. (People v. Turner (1992) 7 Cal.App.4th 913, 919.) The defendant bears the burden of showing that the court abused its discretion in denying a request to discharge counsel (People v. Jeffers (1987) 188 Cal.App.3d 840, 850), and the trial court's exercise of discretion will not be disturbed unless "the court exceeds the bounds of reason." (People v. Stewart (1985) 171 Cal.App.3d 59, 65.)
Defendant cites People v. Lara (2001) 86 Cal.App.4th 139 (Lara), in support of his argument that the trial court improperly denied his request to discharge his retained counsel. In Lara, when trial convened, defense counsel informed the court about a possible conflict between himself and his client. (Id. at p. 146.) The court held a Marsden hearing, and the prosecutor did not object on timeliness grounds. (Lara, at pp. 146-147, 163.) The defendant stated that his counsel never spoke with him about the trial before that day and they disagreed about witness strategies. (Id. at pp. 146-147.) The court found the conflict did not constitute a fracture of the attorney-client relationship under Marsden, trial proceeded, and a jury found defendant guilty. (Id. at p. 148.) The appellate court reversed the judgment because the trial court erroneously handled the defendant's request to discharge retained counsel as a Marsden motion. (Lara, at pp. 165-166.) It held that Ortiz established the proper method to evaluate a defendant's request to discharge retained counsel. (Id. at p. 155.)
People v. Marsden (1970) 2 Cal.3d 118.
Defendant argues that, as in Lara, the trial court did not reach the Ortiz factors. We disagree. While the court did not engage in an extended discussion of defendant's request to fire Pacheco, the court denied defendant's request after the prosecutor objected to a continuance that would delay the case and after observing that defendant did not have substitute counsel. Indeed, in his opening brief, defendant concedes that the court "was apparently concerned with timeliness." On this record, we may reasonably infer that the court focused on the timeliness and consequences of defendant's request under Ortiz.
Next, the court did not abuse its discretion under Ortiz. Nothing in the record suggests that defendant made a good faith, diligent effort to discharge his retained counsel or to obtain new counsel in advance of either the June 6, 2017 trial readiness conference or the trial date thirteen days later. Defendant first appeared with Pacheco on September 28, 2016. Defendant made three court appearances with Pacheco thereafter, including one in February 2017 where the court continued the trial date at defendant's request. Yet, defendant never raised a desire to discharge Pacheco before June 2017. Pacheco's statements to the court show that defendant did not even inform Pacheco of his dissatisfaction and discharge until the day of the trial readiness conference. Further, when defendant spoke over the court's denial of his request to address the court, he said only "ineffective assistance," which did nothing to dispel the inference of purposeful delay. This record thus supports a conclusion that defendant's request was untimely and made to delay.
We do not expressly rely on the trial court's June 19, 2017 finding that defendant engaged in gamesmanship in connection with his subsequent motion to represent himself under Faretta v. California (1975) 422 U.S. 806. The Attorney General suggests that because the court found that the Faretta motion was untimely and disruptive, the court's June 6, 2017 ruling was correct. This argument is unpersuasive, as it disregards the requirement that we review the denial of a request to discharge retained counsel by looking to the circumstances of each case and the reasons presented to the trial court at the time the request was denied. (See People v. Courts (1985) 37 Cal.3d 784, 790 (Courts) [the right to counsel of one's choosing " 'must be carefully weighed against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration, with a view toward an accommodation reasonable under the facts of the particular case' "].) We note, however, that the subsequent denial of the Faretta motion provides additional context that confirms our view that the court was properly attuned to the possibility of a delay tactic when it addressed defendant's June 6 request to discharge his attorney.
Although the trial court did not expressly find that Pacheco's discharge would result in an unreasonable " 'disruption of the orderly processes of justice' " in the circumstances (Ortiz, supra, 51 Cal.3d at pp. 983-984), such a finding can be inferred. When defendant sought to fire Pacheco right before trial, the case had been pending for over 14 months, the court had granted defendant three continuances, and defendant did not have substitute counsel. (See Courts, supra, 37 Cal.3d at p. 791, fn. 3 [suggesting the court has greater latitude to deny a request for a continuance to substitute private counsel when the prospect of retaining counsel is still quite speculative].) Prior to denying defendant's request, the court confirmed that Pacheco and the prosecution were prepared to go to trial, and, unlike in Lara, supra, 86 Cal.App.4th at p. 163, the prosecutor objected to a further continuance. This record does not support defendant's assertion that the court denied his request based on a mere " 'myopic insistence upon expeditiousness in the face of a justifiable request for delay.' " (Id. at p. 153.) We are troubled by the court's abrupt denial of defendant's request to address the court. It would have been better practice for the court to permit defendant to describe his concerns regarding his attorney and for the court thereafter to explain its reasoning for denying defendant's request to fire Pacheco. But we interpret the court's comments as appropriate concern with an untimely request and an unreasonable disruption in the orderly process of justice. We further note that defendant's concurrently-filed habeas petition offers no additional facts regarding his reasons for wishing to discharge his trial attorney, which confirms that the trial court's haste did not result in the exclusion of information that would have justified granting defendant's request and undermines his argument that the court abused its discretion in declining to hear further from him.
Defendant argues that it was unreasonable to believe that any delay would result from discharging Pacheco because the trial court could have appointed a public defender or even Pacheco himself. The parties dispute whether defendant was indigent in June 2017, but, assuming he was, when addressing a request to appoint counsel for an indigent defendant, the trial court first looks to the public defender. (Ortiz, supra, 51 Cal.3d at p. 989.) Given the public defender's initial representation of defendant, there was no basis to believe the public defender would refuse appointment. However, the public defender substituted out of this case before the preliminary hearing, before discovery, and months before trial. This was a case with numerous fact and expert witnesses, and defendant faced life in prison. Under these circumstances, even if the public defender had taken over defendant's representation, granting the request to discharge Pacheco would inevitably have resulted in further delay.
Nor do we accept defendant's argument that the fact that the case trailed for five days proves that the trial court's concerns regarding disruption of the orderly process of justice were invalid. Defendant does not cite any authority in support of his argument, and he does not explain how five days of trailing, unanticipated or not, vitiates concerns regarding the much greater delay threatened by Pacheco's discharge shortly before trial in this 14-count serious felony case. The court's denial of defendant's request to fire his retained counsel does not constitute reversible error. B. Instructional Error
Defendant faults the jury instruction regarding his past acts of domestic abuse, claiming that it allowed the jury to find the element of "force, violence, duress, menace, or fear of immediate and unlawful bodily injury" (the force element) required for many of the counts charged against him by a preponderance of the evidence. The Attorney General argues that evidence of defendant's past domestic abuse was properly introduced under Evidence Code section 1101, subdivision (b), and the court accurately instructed that these past acts could be proven by a preponderance of the evidence while the force element still had to be established beyond a reasonable doubt. We agree with the Attorney General.
The court admitted evidence of defendant's prior physical and verbal abuse of his family under Evidence Code section 1101, subdivision (b), which provides: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act." The categories set forth in Evidence Code section 1101, subdivision (b) are examples of facts that may be proved by other acts evidence, but the list is not exclusive. (People v. Catlin (2001) 26 Cal.4th 81, 146 [evidence that the defendant previously murdered his wife by poisoning her with paraquat was relevant to the issue of the cause of death in the charged crimes to show the victims died of paraquat poison].) Here, evidence of defendant's prior domestic abuse was admitted to establish a material fact, namely that defendant committed sexual acts against Doe "by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another."
The Supreme Court has held that other act evidence admitted under Evidence Code section 1101, subdivision (b) to show a material fact other than the defendant's criminal disposition must be proven by a preponderance of the evidence. (See People v. Medina (1995) 11 Cal.4th 694, 763; People v. Virgil (2011) 51 Cal.4th 1210, 1259.) Because the prosecution sought to introduce evidence of defendant's prior acts of domestic abuse to establish an element in the case, the proper standard of proof for the existence of these prior acts was a preponderance of the evidence. (Medina, at p. 763 ["facts tending to prove the defendant's other crimes for purposes of establishing his criminal knowledge or intent are deemed mere 'evidentiary facts' that need not be proved beyond a reasonable doubt as long as the jury is convinced, beyond a reasonable doubt, of the truth of the 'ultimate fact' of the defendant's knowledge or intent"]; People v. Foster (2010) 50 Cal.4th 1301, 1347-1348 & fn. 21.)
People v. Nicolas (2017) 8 Cal.App.5th 1165 (Nicolas), relied on by defendant, is inapposite. In Nicolas, the defendant was on her phone and texting while driving on the freeway, and she crashed into the rear of the victim's car at approximately 80 miles per hour, killing the victim. She was convicted of vehicular manslaughter with gross negligence. (Id. at p. 1169.) The trial court instructed jurors they could use the uncharged behavior of cell phone use prior to the accident to show intent and knowledge and to determine if the defendant's actions were the result of mistake or accident if the jurors found that the prosecution proved the uncharged acts by a preponderance of the evidence. (Id. at pp. 1177-1178.) The appellate court found clear error as there were no uncharged acts admitted into evidence. (Id. at p. 1178.) "The instruction told the jury that the evidence concerning defendant's phone use immediately prior to the collision could be proven under a preponderance of the evidence standard. This had the effect of lowering the prosecution's burden of proof because this was the same evidence that the prosecution was using to prove gross negligence. Even though the jury was also told (through other jury instructions and argument) that it needed to find gross negligence (and ultimately defendant's guilt) under a reasonable doubt standard, the two competing standards of proof were addressing the same evidence. The court's instructional error not only presented the jury 'with a nearly impossible task,' but as a reviewing court, we have absolutely no way of knowing which of the two competing standards of proof the jury may have applied to the same evidence." (Id. at pp. 1181-1182, italics omitted.)
In the present case, the uncharged acts were not, as defendant asserts, part of the same course of conduct as the charged acts. Instead, the uncharged act evidence consisted of past domestic verbal and physical abuse. Nicolas is thus distinguishable.
Further, the jury here was properly instructed on the applicable burdens of proof and that the People had to prove the elements of each charged offense beyond a reasonable doubt. The court instructed the jury under CALCRIM No. 220 that defendant is presumed innocent unless proven guilty beyond a reasonable doubt. The court also instructed the jury under CALCRIM No. 375 that, although it had to find the existence of prior acts by a preponderance of the evidence, if it "conclude[d] that the defendant committed the uncharged acts, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charges listed in counts 1 through 10. The People must still prove each charge beyond a reasonable doubt." (Italics added.) Considering the jury instructions as a whole—as we must (see Estelle v. McGuire (1991) 502 U.S. 62, 72; People v. Reliford (2003) 29 Cal.4th 1007, 1013), and as the jury was instructed (see CALCRIM No. 200)—the jury was properly instructed regarding the standard of proof. We "presume . . . that jurors can grasp their duty—as stated in the instructions—to apply the preponderance-of-the-evidence standard to the preliminary fact identified in the instruction and to apply the reasonable-doubt standard for all other determinations." (Reliford, at p. 1016.) C. The Sufficiency of the Evidence for Counts 3 , 4 , and 10
Defendant contends that his convictions under counts 3 and 4 (aggravated sexual assault of a child under 14 by a perpetrator seven years older or more through forcible oral copulation) and count 10 (forcible oral copulation of a minor over 14) should be vacated because insufficient evidence supports the required element of the age of the victim. The Attorney General counters that sufficient evidence supports the age of the victim element for each count, but, if it does not, the judgment should be modified to reflect convictions for the lesser included offense of forcible oral copulation (§ 288a, subd. (c)(2)(A)). Sufficient evidence does not establish the victim's age for counts 3, 4, or 10, nor does the record support modifying the judgment to reflect convictions under section 288a, subdivision (c)(2)(A).
The parties dispute only the sufficiency of the evidence with respect to the age of the victim for these counts.
1. Analysis
In considering a challenge to the sufficiency of the evidence supporting a criminal conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—evidence that is reasonable, credible, and of solid value—from which any reasonable jury or trier of fact could have found that the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-578.) In determining whether substantial evidence supports the conviction, we presume the existence of every fact the trier of fact could reasonably deduce from the evidence in support of the judgment. (People v. Edwards (2013) 57 Cal.4th 658, 715.) We apply the same standard of review when the prosecution relies on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) "Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence." (In re Michael D. (2002) 100 Cal.App.4th 115, 126.)
But to be substantial, evidence must reasonably inspire confidence and be of solid value; it cannot be based on speculation or "a mere possibility." (People v. Ramon (2009) 175 Cal.App.4th 843, 851.) " 'In any given case, one "may speculate about any number of scenarios that may have occurred. . . . A reasonable inference, however, may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence." ' " (People v. Perez (1992) 2 Cal.4th 1117, 1133.) Substantial evidence must be capable of supporting a finding, beyond a reasonable doubt, of every fact required for the conviction. (Ibid.)
As the Attorney General concedes, there is no direct evidence of Doe's age when defendant committed the act of forcible oral copulation charged in counts 3, 4, and 10. Defendant first raped Doe when she was 10, sometime between December 13, 2010 and December 12, 2011. Approximately a year after this first rape, he began having vaginal intercourse with Doe a couple of times each month, and he was arrested for this sexual abuse in March 2016. Sometime after the first rape and before his arrest, defendant placed his penis in Doe's mouth "more than five" times and his mouth on her vagina "more than five" times. This evidence is sufficient to establish that the acts of forcible oral copulation happened, but they could have all occurred before Doe was 14, after she was 14, or in various combinations before and after she turned 14.
Nonetheless, the Attorney General argues that sufficient circumstantial evidence establishes that Doe was under 14 when defendant committed counts 3 and 4 and over 14 when he committed count 10. But the only evidence the Attorney General points to is L.C.'s testimony that, "probably four to five years" after defendant first told her that something had "almost" happened with Doe, defendant threatened that if L.C. did not perform oral sex on him, he would make Doe do it, so L.C. complied. L.C.'s testimony does not support a reasonable inference that proves beyond a reasonable doubt that defendant committed forcible oral copulation with Doe twice before December 13, 2014 or once thereafter. (See People v. Perez, supra, 2 Cal.4th at p. 1133 [reasonable inferences from circumstantial evidence cannot be based on suspicion, imagination, speculation, supposition, surmise, conjecture, or guess work].) Insufficient evidence supports defendant's convictions for counts 3, 4, and 10. (See People v. Mejia (2007) 155 Cal.App.4th 86, 97 [reversing a conviction under section 288, subdivision (c)(1) which required the victim be 14 or 15 years old where evidence established that the defendant abused the victim during the month she turned 14 but not whether this occurred before and/or after her birthday].)
L.C. first testified that defendant made these threats "probably four to five years" after the first time when he told her "something almost happened" when Doe was 10. When asked what year that would put the threats in, L.C. said, " 2014, 2015."
With respect to the alleged forcible oral copulation in count 10 "on or about March 23, 2016," the law is clear that, when an offense was committed "on or about" a named date, the exact date need not be proved unless the time "is a material ingredient in the offense." (§ 955.) While it was not material that the forcible oral copulation occurred precisely on March 23, 2016, it was a material element that the offense occurred after December 13, 2014. (§ 288a, subd. (c)(2)(C) [requiring that the victim be over the age of 14 at the time of the crime].)
2. Modification of the Judgment to Reflect Convictions for Lesser Included Offenses
In appropriately disposing of a matter, an appellate court "may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed." (§ 1260; see also § 1181, subd. (6) .) Courts have "long recognized that under Penal Code sections 1181, subdivision (6), and 1260, an appellate court that finds that insufficient evidence supports the conviction for a greater offense may, in lieu of granting a new trial, modify the judgment of conviction to reflect a conviction for a lesser included offense." (People v. Navarro (2007) 40 Cal.4th 668, 671 (Navarro).) The rule allowing modification to reflect a lesser included offense is "logical, and [it] comport[s] with a person's right to a jury trial, only if the lesser offense is truly included in the greater, i.e., if the jury verdict of guilt of the greater offense also necessarily finds guilt of all the elements of the lesser offense." (People v. Ortega (1998) 19 Cal.4th 686, 711-712 (dis. opinion of Chin, J.).) A lesser offense is necessarily included in the charged offense if it meets the elements test or the accusatory pleading test. (People v. Lopez (1998) 19 Cal.4th 282, 288.)
"When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed." (§ 1181, subd. (6).)
The elements test is satisfied when all of the legal ingredients of the corpus delicti of the lesser offense are included in the elements of the greater offense. (People v. Lopez, supra, 19 Cal.4th at p. 288.) Under the accusatory pleading test, "Where a defendant is charged with one or more offenses and from the language of the pleading the commission of one charged offense necessarily includes the commission of another, the latter is a 'necessarily included offense.' " (People v. Nicholson (1979) 98 Cal.App.3d 617, 623.)
However, when the alleged lesser included offense contains an element separate from the greater offense that the jury was not instructed on, the offense cannot be considered a lesser included offense that allows modification of the judgment. The requirement that the lesser offense be included in the greater offense "preserves the jury's role as the finder of fact." (People v. Robinson (2016) 63 Cal.4th 200, 207 [misdemeanor sexual battery cannot be deemed a lesser included offense of sexual battery by misrepresentation of professional purpose because the former required a finding of an additional element of lack of consent]; see also People v. Bailey (2012) 54 Cal.4th 740, 749 [attempted escape from prison is not a lesser included offense of escape from prison because the former contains an additional specific intent element].) "The reviewing court corrects the verdict ' "not by finding or changing any fact, but by applying the established law to the existing facts as found by the jury." ' " (Robinson, at p. 207) "It is not enough to say the jury could have made a finding required to support a conviction, if the record does not show that it did make the finding." (Id. at p. 212.)
The parties concede, seemingly under the elements test, that section 288a, subdivision (C)(2)(A) is a lesser included offense of aggravated sexual assault of a child by forcible oral copulation in violation of section 288a, subdivision (c)(2) (§ 269, subd. (a)(4)) and to forcible oral copulation of a minor over 14 (§ 288a, subd. (c)(2)(C)). We have no cause to decide whether that is generally true because, here, the greater offenses on which the trial court instructed the jury did not include an element required under section 288a, subdivision (C)(2)(A). Based on the theory that a child cannot consent to forcible rape or forcible oral copulation, the jury instructions for counts 3, 4, and 10 did not instruct that the criminal acts must be accomplished "against the victim's will." Section 288a, subdivision (C)(2)(A) contains no victim age element and requires that the act of forcible oral copulation be accomplished "against the victim's will." (§ 288a, subd. (c)(2)(A).) Because the jury was not asked to find this element, in this case, section 288a, subdivision (c)(2)(A) is not a lesser included offense that allows this court to modify the judgment.
Effective prior to and at the time defendant was charged and tried, section 269, subdivision (a)(4) stated that a person who committed one of the acts specified in that section on a child under 14 years of age and seven or more years younger than the perpetrator was guilty of aggravated sexual assault of a child. The prohibited acts included "[o]ral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 288a." (§ 269, subd. (a)(4).) Section 288a, subdivision (c)(2)(A) provided, "Any person who commits an act of oral copulation when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years." Section 288a, subdivision (c)(2)(C) provided, "Any person who commits an act of oral copulation upon a minor who is 14 years of age or older, when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 6, 8, or 10 years."
We reverse defendant's convictions on counts 3, 4, and 10. The trial court sentenced defendant to two terms of 15 years to life for aggravated sexual assault of a child in counts 1 and 2, to a midterm of six years for each of the convictions in counts 4 to 9, and to eight months, one-third the midterm, for each of the convictions in counts 11 through 14. A remand for a full resentencing consistent with this opinion as to all counts is appropriate in light of changed circumstances. (Navarro, supra, 40 Cal.4th at p. 681.) D. Sentencing
The trial court sentenced defendant as follows:
"So the tentative sentence of the Court is that probation is denied under Penal Code section 1203.066(a)(1). In Count 1, 2, 3 and 4, each of them carry a 15-to-life sentence, which is an indeterminate term of 60-to-life for the first four counts. [¶] Count 5, 6, 7, 8 and 9, the Court will impose the full consecutive mid-term sentence of six years each, which would be 30 years. [¶] For Count 10, the aggravated term is 10 years. [¶] For Count 11, 12, 13 and 14, the Court will give consecutive counts one-third the mid-term, eight months, times four counts, equals 32 months, or two years and six months. [¶] This mean[s] that the defendant's sentence would be an indeterminate term of 60-to-life, plus a determinate term of 42 years, 6 months." The court gave reasons for imposing the aggravated term on count 10, but it did not give a statement of reasons for imposing consecutive indeterminate and determinate sentences.
Defendant contends that the trial court erred in sentencing him on counts 1 through 10 pursuant to sections 269, subdivision (c) and 667.6, subdivision (d), which require separate consecutive sentences for certain sexual offenses committed against different victims or against the same victim on "separate occasions." He argues that the court had no evidentiary basis for determining the offenses at issue occurred on separate occasions. Our decision that defendant's convictions under counts 3, 4, and 10 are not supported by sufficient evidence moots his sentencing argument with respect to these counts. And, although we have determined that a remand for full resentencing is appropriate, we address defendant's challenge with respect to counts 1, 2, and 5 through 9 as the evidence shows that the trial court will be bound by the mandatory sentencing provisions of sections 667.6, subdivision (d) and 269, subdivision (c) on remand with respect to these counts.
A court is required to impose consecutive sentences where sexual offenses committed under sections 269, 261, subdivision (a)(2), and 288a, subdivision (c)(2) involve "the same victim on separate occasions." (§ 667.6, subds. (d)-(e); 269, subd. (c).) "In determining whether crimes against a single victim were committed on separate occasions . . . 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); see also § 269, subd. (c).) The question of whether a defendant committed crimes on separate occasions is for the trial court to resolve in the first instance, and "an appellate court is 'not at liberty to overturn the result unless no reasonable trier of fact could decide that there was a reasonable opportunity for reflection.' " (People v. Pena (1992) 7 Cal.App.4th 1294, 1314-1315.)
Regarding the indeterminate consecutive sentences on counts 1 and 2, the jury convicted defendant of aggravated sexual assault of a child by forcible rape between August 1, 2008 and December 12, 2014 (§§ 269, subd. (a)(1), 261, subd. (a)(2)). The evidence showed that defendant first raped Doe when she was 10, and, about a year after this rape, he began raping her regularly a couple of times each month until his arrest in March 2016. This evidence is sufficient to prove that defendant had a reasonable opportunity to reflect upon his actions and nevertheless resumed sexually assaultive behavior and to support the imposition of mandatory indeterminate consecutive sentences on counts 1 and 2.
Regarding the determinate consecutive sentences on counts 5 through 9, for counts 5 through 8, the jury convicted defendant under section 288, subdivision (b)(1) for willfully, unlawfully, and lewdly committing lewd and lascivious acts upon and with the body and certain parts of Doe with the intent of arousing, appealing to, and gratifying the lust, passions and sexual desires of defendant by use of force, violence, duress, menace and threat of great bodily harm when Doe was under the age of 14. Lewd and lascivious acts under section 288, subdivision (b)(1) include rape. (§ 288, subds. (a), (b)(1).) For count 9, the jury convicted defendant of forcible rape of Doe on or around March 23, 2016. The evidence establishing that defendant raped Doe a couple of times a month starting when she was 11 and continuing to March 2016 amply supports a finding that counts 5 through 9 occurred on "separate occasions" under section 667.6, subdivision (d).
III. DISPOSITION
Defendant's convictions on counts 3, 4, and 10 are reversed. We vacate defendant's sentence and remand to the trial court for resentencing consistent with this opinion. In all other respects, we affirm the judgment.
/s/_________
BROWN, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
TUCHER, J.