NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 5-142150-2)
Defendant William Lawson was convicted of sexually molesting two of his daughter's friends: 26 counts of oral copulation with a child 10 or under and forcible lewd acts on Jane Doe 1 and three counts of lewd acts on Jane Doe 3. With "one-strike" allegations of kidnapping, kidnapping with substantial movement, and "multiple victims," Lawson was sentenced to prison for 405 years to life.
Lawson challenges the admission of expert testimony about the average rate of false child-sexual-abuse allegations. He disputes the introduction of generic evidence in support of 20 of the convictions involving Jane Doe 1. Lawson claims the court erred by instructing the jury that it could consider evidence relating to Jane Doe 1 to prove the intent element for the lewd act counts involving Jane Doe 3. He challenges the sufficiency of the evidence supporting the kidnapping and aggravated kidnapping allegations, the custody credits awarded and the restitution ordered.
The other claims—which the People concede—are (1) the one-strike findings on the ten counts of oral copulation with a child 10 or under must be stricken; (2) Lawson is entitled to an additional day of actual credit, for a total of 480 actual days; (3) the restitution ordered for Jane Doe 2 should be stricken (since he was not convicted of those charges); and (4) the restitution orders for Jane Does 1 and 3 should be stricken with direction to the trial court to conduct a hearing to determine the amount of restitution to be paid to Jane Does 1 and 3. We reverse as to those issues.
Because the parties—and therefore the court—did not address whether Penal Code section 654 would require staying the sentence as to any counts, we invited the parties to brief the issue. We remand to the trial court to determine whether the sentence on any count should be stayed pursuant to section 654. Except as noted above, the judgment is affirmed.
All statutory references are to Penal Code unless otherwise noted.
On June 30, 2015, the prosecutor filed a second amended information charging Lawson with the following 31 offenses: oral copulation of Jane Doe 1, a child 10 or younger (Pen. Code, § 288.7, subd. (b)) between February 1, 2007 and October 22, 2010 (counts 1, 3, 5, 7, 9, 11, 13, 15, 17 & 19); forcible lewd acts on Jane Doe 1, a child under 14 (§ 288, subd. (b)(1)), between February 1, 2007 and October 22, 2010 (counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20-26); lewd acts on Jane Doe 2, a child under 14 (§ 288, subd. (a)), between January 15, 2007 and December 31, 2010 (counts 27 & 28); and lewd acts on Jane Doe 3, a child under 14 (§ 288, subd. (a)), on July 30, 2010) (counts 29, 30 & 31).
As to all counts, the information included "one-strike" multiple victims allegations (§ 667.61, subd. (d)(1)). Counts 1 through 27 contained additional one-strike allegations of kidnapping (§ 667.61, subd. (e)(1)) and kidnapping with movement which substantially increased the risk of harm to the victim (§ 667.61, subd. (d)(2)).
The information also included a multiple victim probation ineligibility allegation (§ 1203.066, subd. (a)(7)) as to counts 1 through 31, and a substantial sexual conduct allegation (§ 1203.066, subd. (a)(8)) as to counts 1 through 26.
The jury deliberated for more than two days and found Lawson guilty on all the counts in which Jane Doe 1 and Jane Doe 3 were victims, but could not reach a verdict as to Jane Doe 2. It found all enhancements true, save for the one strike allegations of kidnapping and aggravated kidnapping on counts 19 and 20. The court granted the prosecution's motion to dismiss the counts related to Jane Doe 2.
On September 4, 2015, the trial court sentenced Lawson to a total prison term of 405 years to life. The court imposed consecutive 25-years-to-life terms on the 15 counts of forcible lewd acts with one-strike allegations. On the count 20 charge of a forcible lewd act, and the count 1 charge of oral copulation on a child 10 or younger, it imposed consecutive sentences of 15 years to life. Lawson received concurrent terms on all the remaining counts.
The trial court awarded Lawson 479 days of actual custody credits but denied him any pretrial conduct credits. It also awarded direct economic restitution to all three named victims, including $144.46 to Jane Doe 2. The court deferred ruling on the prosecutor's request for $1.2 million in noneconomic restitution to Jane Doe 1 and Jane Doe 3.
Lawson filed a timely notice of appeal on September 4, 2015.
A. Lawson and K.L.
Between 2007 and 2010, Lawson lived on Guise Way in Brentwood with his wife and their daughter, K.L. Lawson's wife was rarely around and, when she was, she and Lawson often fought. Lawson and his wife sometimes slept in separate rooms.
K.L. was born in April 1999. In elementary school, she was friends with Jane Doe 1, Jane Doe 2, and Jane Doe 3.
B. Jane Doe 3
Jane Doe 3 was born in May 1999. Beginning in second grade, she became friends with K.L. and sometimes spent the night at her house. On July 31, 2010, at 10:16 p.m., Officer Casey McNerthney responded to Jane Doe 3's home to investigate an allegation against Lawson.
1. The drinking game
During her last sleepover at K.L.'s house, Jane Doe 3 and K.L. played the "drinking game," in which each tried to drink a cup of Hawaiian Punch faster than the other person. Jane Doe 3's punch tasted like soap and she immediately spit it out. At trial, she claimed to have seen Lawson crushing up powder into a bowl and then pouring it into her cup. In her July 31, 2010 interview with McNerthney, Jane Doe 3 said Lawson took a glass out of the dishwasher, poured juice in it, and handed it to her; she did not mention the powder in the cup.
2. The scavenger hunt
After the drinking game, Jane Doe 3 played either hide-and-seek or a "scavenger hunt" game with K.L. and Lawson. During the game, Lawson "tried to" touch or pinch Jane Doe 3's buttocks in the bathroom. Jane Doe 3 pushed his hand away. In her interview with McNerthney, Jane Doe 3 said that Lawson's hand actually made contact with her buttocks. Jane Doe 3's parents were present at the interview, and it was her father who asked her to clarify if Lawson's hand made actual contact with her buttocks.
3. Later that night
After Jane Doe 3 went to sleep, she woke up feeling dizzy and disoriented. She walked to the adjacent room where Lawson was sleeping on the couch. In her interview, she said that she was sleepwalking. At trial, Jane Doe 3 denied that she had been sleepwalking. She acknowledged sleepwalking in the past, but testified that, when she does so, she has no memory of it.
Jane Doe 3 told Lawson she did not feel well and wanted to go home. Lawson told her to lie down on the couch. After she did so, he began massaging her back. Jane Doe 3 felt uncomfortable and said she wanted to return to bed. When Lawson continued rubbing her back, Jane Doe 3 said she was leaving and returned to the other room.
Later that night, Jane Doe 3 awoke to find Lawson lying next to her and again rubbing her back, just above her buttocks. Jane Doe 3 asked him to leave. Lawson refused, explaining that he was trying to make her feel better. Jane Doe 3 asked him again, and Lawson left.
4. The next morning
When she woke up the following morning, Jane Doe 3 had a bad headache and could not stand up without losing her balance. She called her mom and Lawson's wife took her home. When Jane Doe 3 got home, she fell asleep and did not wake up until it was dark out. Jane Doe 3 told her mom what had happened. Her mom called the police, stating that she believed Jane Doe 3 had been drugged and improperly touched.
Jane Doe 3 went to the hospital, where she told the nurses that her friend's father had touched her buttocks and rubbed her back in the middle of the night against her will. A toxicology screen showed no evidence that Jane Doe 3 had been given either drugs or alcohol.
C. Jane Doe 1
Jane Doe 1 was born in October 1999. Near the beginning of fourth grade, she became close friends with K.L., who was in the same grade. Jane Doe 1 frequently went to K.L.'s house after school. Once or twice a month, for about a year, she spent the night at K.L.'s house. In 2009, around halfway through fourth grade, Lawson began sexually abusing Jane Doe 1. The abuse continued until some two to three months before July 2010, when Jane Doe 1's family moved away.
1. The incidents in the car
Because she lived very close to K.L., Jane Doe 1 would either walk home or take her scooter. If it was dark, Lawson drove her home in his Jeep. In her statement at the Children's Interview Center (CIC), Jane Doe 1 said that Lawson sometimes declared it too dark for her to walk, even though it was only 4:00 p.m. While driving her home, Lawson would stop near a field behind Jane Doe 1's house, where no one was around. Once stopped, he moved to the back seat, where she was sitting, pulled down her pants and underwear, and orally copulated her. Jane Doe 1 tried to keep her legs together, but Lawson pulled them apart. Sometimes he lifted her shirt and fondled or "suck[ed] on" her breasts.
Jane Doe 1 testified that there were "[p]robably, like, at least ten" oral copulation incidents inside the car. In her CIC interview, she said that it was "[p]robably, like, close to ten." She told Officer Ryan Kathain that it happened 10 to 15 times in the car. Jane Doe 1 did not specifically recall the first time it happened.
2. The incidents on the couch
When Jane Doe 1 stayed at K.L.'s house, the two girls slept on the floor in a downstairs den. Lawson stayed on a couch in the next room. There were no doors between the two rooms and, from where Jane Doe 1 slept, she could see the couch in Lawson's room, though she could not see Lawson.
On multiple occasions, Lawson woke Jane Doe 1 in the middle of the night and took her to the couch in the adjacent room. Lawson usually had to force Jane Doe 1 to get up, by dragging her to the other room or physically picking her up. Sometimes he covered her mouth.
Once in the adjacent room, Lawson pulled down Jane Doe 1's pants, lifted her shirt, and orally copulated her. When Jane Doe 1 tried to squirm away, Lawson held down her arms to prevent it. He also yanked her legs apart when Jane Doe 1 tried to keep them closed. Lawson told Jane Doe 1 to "stop fighting it," and he said that he knew she wanted it. He stated that she would get in trouble if she made noise.
Each incident on the couch lasted around 15 to 20 minutes. On some of these occasions, Lawson lifted up Jane Doe 1's shirt and fondled or licked her chest. When he was finished, Lawson put Jane Doe 1's pants back on and told her to return to bed. As with the incidents in the car, Jane Doe 1 had no specific memory of the first incident.
At one point, Jane Doe 1 tied her pants together tightly so that Lawson would have difficulty removing them, but Lawson just ripped them off.
One time, Lawson removed his penis from his shorts, put it close to Jane Doe 1's mouth, and told her to open it. Jane Doe 1 tightly closed her mouth, turned her head away, and said, "No." Lawson then grabbed her hand and put it around his erect penis.
Jane Doe 1 testified that there were "[l]ike at least 10, 15" incidents on the couch. In her CIC interview, she put the number at "probably close to ten." She told Kathain that Lawson molested her around 20 times in all—including some 7 or 8 on the couch. Jane Doe 1 additionally told Kathain that, at first, Lawson molested her "probably, like, every other time" that she spent the night. Toward the end, the incidents became more frequent. At trial, Jane Doe 1 testified that the incidents did not happen every time, but they happened most of the time.
3. The incident in the guest room
On one occasion, knowing that they would have to leave too early in the morning to take Jane Doe 1 and her sister to school, Jane Doe 1's parents arranged to have the two girls stay at Lawson's house. Around 11:00 or 11:30 p.m., when Jane Doe 1's sister became homesick, Lawson's wife and Jane Doe 1 walked her home. Afterward, Jane Doe 1 returned to K.L.'s house and slept alone in the upstairs guest room. In the middle of the night, Lawson came into the guest room and orally copulated her.
4. The driving incident
Jane Doe 2 also lived in the neighborhood and sometimes played with K.L. and Jane Doe 1. Lawson once took the three girls to a rural area and allowed them to take turns sitting on his lap and steering his Jeep while he controlled the foot pedals. Jane Doe 2 steered first.
When it was Jane Doe 1's turn, Lawson began rubbing her vagina over her clothes. Jane Doe 1 could feel that he had an erection. Jane Doe 1 squeezed her legs together, but Lawson pushed them apart. He urged her to let him do it because Jane Doe 2 had allowed it. Jane Doe 2 also testified that Lawson rubbed her inner thigh while she was sitting on his lap and steering.
5. The incident at the table
Once, when Jane Doe 1 and K.L. were playing a board game with Lawson and his wife, Lawson placed his foot in Jane Doe 1's crotch, over the outside of her clothing. After Jane Doe 1 moved his foot to the top of her leg, Lawson removed it. In her statement to Kathain, Jane Doe 1 said that Lawson grabbed her foot under the table, put it over his own privates, and then placed his foot on her privates over her clothing.
6. The final incident
The last incident happened in Lawson's car. Before Lawson could actually touch her, Jane Doe 1 began screaming and crying. Lawson told her that he knew she liked it and that it was "normal." After about 10 minutes, Lawson agreed to take Jane Doe 1 home. He added that if she ever wanted this activity to resume, "just tell me you want to pick some peaches."
Because the jury reached no verdict on the three counts involving Jane Doe 2, we identify but do not elaborate her allegations.
Jane Doe 2 was born in January 2000, and was a year behind Jane Doe 1 at school. When she was around seven years old, Jane Doe 2 lived on Guise Way and was close friends with K.L.
Jane Doe 2 testified about the first inappropriate touching, the "driving incident" with Jane Doe 1, which occurred while she was sitting on Lawson's lap while steering the car. A couple months later, in K.L.'s upstairs room, in the guise of doing a body inspection to ensure she was healthy, Lawson spread Jane Doe 2's legs, touched her inner thigh, touched her vagina over her clothes, directed her to take off her shirt and pants, and rubbed her chest. He removed his shorts, revealing red and black checkered boxer shorts, but declared the checkup finished when he heard K.L. and his wife arrive home from the store.
Jane Doe 2 testified about a third incident where Lawson tickled her inner and outer thigh while she was climbing a tree. Believing Lawson was going to take her somewhere, she screamed, jumped out of the tree and ran home.
E. Jane Doe 1 Goes to the Police
When Jane Doe 1 and K.L. later attended the same school for ninth grade, she recalled her interactions with Lawson and, in the middle of the night, told her mother who called the police. Jane Doe 1, her mother and Kathain met in the Brentwood Police Department at about 3:38 a.m. on March 27, 2014, where Kathain took a 20- to 30-minute unrecorded statement. Jane Doe 1 gave a recorded forensic interview at the Children's Interview Center on April 14, 2014.
F. Child Sexual Abuse Accommodation Syndrome
Dr. Anthony Urquiza, a psychologist and professor at University of California, Davis Medical School's Department of Pediatrics, testified for the People as an expert on child sexual abuse accommodation syndrome (CSAAS). Urquiza has handled at least 1,000 cases of child sexual abuse as either a therapist or a supervisor and now trains and supervises other therapists in his clinic. Urquiza has authored around 90 publications.
The People introduced expert testimony on CSAAS to address the following categories of misconceptions about how children respond to sexual abuse: secrecy; helplessness; entrapment and accommodation; delayed and unconvincing disclosure; and retraction. Because it is embarrassing and uncomfortable to talk about sexual abuse, many children keep it secret. In some cases, the abusive adult has also explicitly or implicitly threatened the child with harm if she discloses. The imbalance of power in the abusive relationship often leaves the child feeling trapped and unable to run away. As a result, many develop coping strategies, such as dissociation, in which the child disconnects herself from the reality of what is happening.
When children reveal sexual abuse, it is often years later and the revelation may come in piecemeal fashion, with the child adding details upon each retelling. Around 20 to 25 percent of child sexual abuse victims later retract some aspects of their allegations - often because of family pressure to do so.
Dr. Urquiza testified—over Lawson's objection—about studies, which found variously from 1 to 2 percent to 6 to 8 percent of child sexual abuse allegations are false. Of these false allegations, the majority originate from a parent in a custody dispute accusing the other parent.
G. Lawson's Testimony
Lawson denied touching any of the girls in a sexual manner, and denied putting anything into Jane Doe 3's Hawaiian Punch. He did take Jane Doe 1 and Jane Doe 2 on a drive in which he allowed them to take turns steering, but did not touch either girl's leg or vagina during the drive.
During one overnight, when Jane Doe 3 awakened upset, he rubbed her back to console her, but did not touch her again after she went back to sleep.
Between July and December of 2009, Lawson worked weeknights at the Toys "R" Us distribution center near Stockton, beginning at 3:00 or 4:00 p.m. Because he drove about an hour to work, he left before K.L. got home from school. He never gave Jane Doe 1 a ride home without anyone else present in the car. When K.L.'s friends spent the night, Lawson slept on the downstairs couch to supervise them; he denied moving Jane Doe 1 to the couch during the night and denied inappropriately touching her.
During cross-examination, the prosecution produced Toys "R" Us pay stubs which showed that Lawson sometimes started work at 5:00 p.m. Detective Todd Orlando, who lives in Stockton, testified that it usually takes about 30 minutes to get from the Toys "R" Us distribution center to the Brentwood Police Department.
A. Expert Testimony on Child Sexual Abuse Accommodation Syndrome
Lawson argues that the trial court abused its discretion by reversing an in limine order and allowing Urquiza to testify on redirect about false allegation rates. The trial court has discretion to admit or exclude evidence. (People v. Page (1991) 2 Cal.App.4th 161, 187.) The court must not exercise its discretion "in an arbitrary, capricious or patently absurd manner that result[s] in a manifest miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308, 316 (Jordan).)
During the in limine motion hearing the parties agreed that they would not question Urquiza about the rate of false sexual abuse allegations by children. The court accepted that stipulation subject to the caveat: "the only time that this kind of testimony would be elicited is if for some reason the defense through its questioning opens the door. And of course if that—if either side feels that that has happened then we'll have a side-bar about that issue." In response to direct examination about children " ' retracting' their allegations of abuse," Urquiza testified that "twenty to twenty-five percent of children retract."
On cross-examination Urquiza was questioned about a "review study" of 17 studies entitled "Disclosure of Child Sexual Abuse" and specifically about methods researchers use to determine if an accusation is credible. Thereafter the court conducted "an in-chambers conference with the prosecutor and the defense counsel to revisit defense counsel's in limine motion to exclude expert testimony about the frequency with which children make false allegations of sexual abuse." After hearing the parties' arguments "the Court indicated that the door had been opened to allow inquiry into that area [false allegations of sexual or physical abuse]."
On redirect Urquiza testified about "studies related to false allegations of sexual abuse" and that the range "of false allegations [is] probably about as low as 1 or 2 percent and as high as about 6 to 8 percent. So they happen, they just don't happen very often."
The People argue that the examination was appropriate under two theories: "specific contradiction and curative admissibility." "Specific contradiction is a method of impeachment; it allows the admission of evidence that contradicts testimony given by the opposing party. [Citations.] Curative admissibility is triggered 'when the opponent first breaches an evidentiary rule by introducing inadmissible evidence.' " The People observe that, notwithstanding the stipulated in limine ruling, defense counsel questioned Urquiza about the difference between "recanting an allegation of sexual abuse, rather than withdrawing a lie, e.g. a false accusation."
Lawson disputes the application of "specific contradiction," directing us to the direct testimony about retraction which justified cross-examination that retraction could be consistent with false allegation. Lawson denies violating any evidentiary ruling, distinguishing his questioning about retraction from the prohibited subject of false allegations. Nor, he argues, did questioning about the methodology to determine the validity of an allegation justify introducing the percentages of false abuse claims.
Lawson equates Urquiza's testimony about studies of percentage rates to impermissible vouching for a witness's credibility and the concomitant—Lawson's guilt. The record does not support his claim.
Urquiza's testimony on the topic of false allegations was limited to his review of studies and the literature. He did not conduct any studies, did not interview Jane Does 1, 2 or 3 and did not offer any opinion about their veracity. Nor did he dispute that some children fabricate abuse allegations.
Lawson relies on federal and state cases from other jurisdictions and argues that they "show, the courts of other states have 'overwhelmingly rejected' any distinction between expert testimony about the credibility of a particular child complainant and expert testimony 'on the credibility of sexually abused children as a class.' " Lawson acknowledges that the sole California case was one in which "the expert testified that children are 'less sophisticated liars,' and therefore 'more accurate reporters' than adults." (See People v. Gilbert (1992) 5 Cal.App.4th 1372, 1385-1396.) The Gilbert court found "no cognizable error." (Ibid.) Nothing in Urquiza's testimony approaches the opinion challenged in Gilbert. We find no error.
Whether or not the court admitted Urquiza's testimony in response to a door opened by the defense, the decision to allow it was not "arbitrary, capricious or patently absurd," there was no "miscarriage of justice." (Jordan, supra, 42 Cal.3d at p. 316.) The court exercised its discretion appropriately and did not commit error.
B. Generic Testimony
In child molestation cases, a victim's generic testimony about frequent molestations can constitute substantial evidence supporting convictions on multiple counts, despite the victim's inability to specify the exact time, place, or circumstance of the assaults. (People v. Jones (1990) 51 Cal.3d 294, 316 (Jones).) Admitting that evidence does not violate a defendant's due process rights. (Ibid.) "The victim, of course, must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., 'twice a month' or 'every time we went camping'). Finally, the victim must be able to describe the general time period in which these acts occurred (e.g., 'the summer before my fourth grade,' or 'during each Sunday morning after he came to live with us'), to assure the acts were committed within the applicable limitation period. Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim's testimony, but are not essential to sustain a conviction." (Ibid.)
"[G]eneric testimony violates neither a defendant's constitutional due process right to notice nor to present a defense." (People v. Smith (2005) 132 Cal.App.4th 1537, 1550.) Jury unanimity in such cases is attainable, although the jury may not be able to readily distinguish between the various acts, so long as the jury unanimously agrees "that they took place in the number and manner described" and "there is no possibility of jury disagreement regarding the defendant's commission of any of these acts." (Jones, supra, 51 Cal.3d at p. 321.) "In a case in which the evidence indicates the jurors might disagree as to the particular act defendant committed, the standard unanimity instruction should be given. [Citation.] But when there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim." (Jones at pp. 321-322.)
Consistent with Jones, the trial court instructed the jury with a modified version of CALCRIM No. 3501, which is titled "Unanimity: When Generic Testimony of Offense Presented." When the jury submitted a request during deliberations—"Can the court relate each count to a specific event in the evidence"—the court responded, "You must decide what the facts are" and directed the jury to refer to "instruction 3501."
We decline Lawson's invitation to depart from the settled law on generic testimony; we are bound to follow the Supreme Court's decision in Jones and may not entertain Lawson's lengthy argument that Jones was wrongly decided. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) ["Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court."].) We, therefore, turn to Lawson's contention that most of his convictions as to Jane Doe 1 are not supported by substantial evidence under Jones.
Lawson concedes that the evidence satisfies the Jones requirements as to 9 convictions—including all three in which Jane Doe 3 was the victim—but argues it was insufficient to support 20 of his 26 convictions as to Jane Doe 1. He acknowledges the sufficiency of Jane Doe 1's nongeneric testimony about four offenses: forcible lewd conduct in which Lawson touched her vagina while she was sitting on his lap, steering his car; forcible lewd conduct when Lawson put his foot in her crotch, under the table, while playing a board game; forcible lewd conduct when Lawson placed her hand on his penis after she refused to orally copulate him; and oral copulation when Lawson molested her once in the guest bedroom of his home. Lawson accepts that the evidence supported three convictions of forcible lewd acts and one conviction of oral copulation, though he does not associate these convictions with specific counts.
Lawson also concedes that Jane Doe 1's generic testimony of molestation was sufficient to sustain two of the remaining counts, "one conviction each for oral copulation and forcible lewd acts." As to those and the remaining 20 counts—12 counts of forcible lewd acts and eight counts of oral copulation on a child 10 or younger—Lawson acknowledges that her testimony established the nature of the acts and the general time period in which they occurred, satisfying two of the three Jones requirements. But Lawson contends the generic evidence failed Jones's requirement that the evidence " 'describe the number of acts committed with sufficient certainty' to support" the remaining 20 counts.
Lawson argues: "Because there was no way to determine the number of incidents which happened in the car or on the couch, there was no substantial evidence to support the 22 counts of conviction which arose from those acts. This court must reverse those convictions, save for one count each of forcible lewd acts and oral copulation on a child 10 or younger." Lawson explains: "Along with the four specifically-described counts, that makes two convictions for oral copulation on a child 10 or younger and four convictions for forcible lewd acts."
Lawson claims Jane Doe 1 was essentially "guessing as to the number of incidents." She prefaced her estimates with "words such as 'probably' and 'like,' " and he contends her "estimates varied considerably" over time, "with the largest estimates coming at trial." "Such varying estimates," Lawson continues, "were far too uncertain to support 26 counts on conviction." Unable to point to any California authority holding similar estimates insufficient, he contrasts them with more definite estimates or "some underlying methodology to ensure that the defendant actually committed at least the number of offenses for which he was convicted" approved in other cases. Acknowledging that Jane Doe 1 was "quite consistent in stating that she spent the night" at his house "around one to two times per month over a one-year period," Lawson maintains her estimates about "how many sleepovers resulted in molestation" were "vague" and that "she did not say how often [Lawson] drove her home when she did not spend the night."
We disagree with Lawson's assessment, but must first clarify the number of acts upon which the 20 counts were charged and, thus, the number of acts the evidence must support. Apparently, Lawson assumes that each of the counts he challenges relates to one distinct occurrence (i.e., that each of the 20 convictions equates with 20 separate occasions of molestation). Rather, the People charged Lawson with two crimes—one under section 288, subdivision (b)(1) and one under section 288.7, subdivision (b)—for ten occasions alleged as to Jane Doe 1. The first amended information charges the offenses in counts 1 through 20 in pairs: the odd-numbered counts (1, 3, 5, 7, 9, 11, 13, 15, 17, & 19) allege violations of section 288.7, subdivision (b) and the even-numbered counts (2, 4, 6, 8, 10, 12, 14, 16, 18, & 20) allege violations of section 288, subdivision (b)(1). This charging scheme conforms to the evidence. Jane Doe 1 testified that Lawson's acts of oral copulation, whether at his home or in his car, were accompanied by forcible lewd acts such as Lawson ripping off her pants, forcing her legs apart and licking or fondling her chest. Under section 954, a defendant may be charged with and convicted of multiple counts based on the same conduct. (§ 954; see People v. Tompkins (2010) 185 Cal.App.4th 1253, 1262 (Tompkins).) To support the 20 counts which Lawson disputes, the evidence need only prove 12 occasions: 12 forcible lewd acts, 8 of which are associated with oral copulation offenses under the charging scheme.
"The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt." (Jones, supra, 51 Cal.3d at p. 314.) "On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if a verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." (Ibid.)
The evidence here was more than sufficient to satisfy the Jones requirements as to 12 convictions of forcible lewd acts and the accompanying 8 oral copulation convictions. Jane Doe 1 testified that in the year of her monthly or semimonthly stays at the Lawsons' home—except for the few times nothing happened—Lawson molested her nearly every night. When she tried to stop Lawson from licking her vagina by tying her pants tight and pressing her legs together, he would rip off her pants and pry her legs open. Lawson molested her at his home "at least" 10 or 15 times. This evidence alone provides the 12 occurrences to support the 20 convictions with 8 occurrences supporting two convictions each—one under section 288, subdivision (b)(1) and one under section 288.7, subdivision (b). The additional four molestations support the remaining section 288, subdivision (b)(1) convictions.
Jane Doe 1 also described a similar number of molestations in Lawson's car. She frequently visited Lawson's house after school and on the weekends: "just, like, whenever my parents were okay with me going over there, if I didn't have too much homework." She made these visits "during the entire time" between when she met Lawson's daughter at the beginning of fourth grade until approximately three months before Jane Doe 1 and her family moved away in summer 2010. Lawson drove her home from these visits "a lot of times," and "most times" molested her on the way home. She estimated that Lawson molested her in his car on "at least ten" occasions. As at his house and in the car he both orally copulated her vagina and overcame her resistance by pulling off her pants and forcing her legs apart. The evidence of molestation in the car on its own is sufficient to support the 20 convictions he challenges. Taken together, the acts in Lawson's house and car greatly exceed Jones's requirements for the 20 challenged convictions.
Our conclusion is supported by the jurisprudence of generic testimony in child sexual abuse cases. In Tompkins, the victim's statements that the defendant committed digital penetration "once, maybe twice" and "two to three times" were, in addition to the defendant's admission to one incident of digital penetration, sufficient to support the defendant's two convictions. (Tompkins, supra, 185 Cal.App.4th at p. 1261.) In Matute, the court concluded the defendant's 15 convictions for forcible rape were supported by the victim's testimony that, although lacking specific details of the time and circumstances of each count, "she was raped at least once a week for over a year." (People v. Matute (2002) 103 Cal.App.4th 1437.) In Jones itself, our Supreme Court held that the challenged six molestation convictions were supported by the victim's testimony that he had been molested once or twice per month for a period of 23 months. (Jones, supra, 51 Cal.3d at p. 302.)
To the extent Lawson finds discrepancies in Jane Doe 1's statements, "the inconsistency went only to the weight and credibility of the evidence and, on appeal, we do not disturb the jury's resolution of that inconsistency." (Tompkins, supra, 185 Cal.App.4th at p. 1261.) Accordingly, viewing the evidence, as we must, in the light most favorable to the People, we affirm each of Lawson's convictions as to Jane Doe 1. Contrary to Lawson's argument that the prosecutor "exploited lax evidentiary rules" by charging him with "the same number of total offenses as [Jane] Doe 1's highest estimate," the record shows abundant evidence of more offenses than were charged, indicating sensible charging under Jones. The jury's verdicts are supported by the evidence.
C. Use of Other Charged Offenses to Prove Intent
Lawson argues that the court's instruction regarding the use of evidence of charged offenses as to Jane Doe 1 to prove elements of charged offenses as to Jane Doe 3 reduced the prosecution's burden as to those offenses: counts 29, 30 and 31. Lawson does not dispute that Evidence Code section 1108 as interpreted by our Supreme Court allows the jury to consider this evidence but contends that the trial court erred by not including a specific reference to the beyond a reasonable doubt standard. Lawson objects to the following instruction—a modified version of CALCRIM No. 1191—which the court read to the jury at the People's request and over his objection:
"The People presented evidence that the defendant committed the crimes of sexual acts with a child 10 years or younger, forcible lewd acts upon a child, and lewd act upon a child. These crimes are defined for you in these instructions.
"If you decide that the defendant committed the charged offense, you may, but are not required to conclude from the evidence that the defendant was disposed or inclined to have the requisite specific intent for other charged crimes; and based on that decision, you'll [sic] also conclude that the defendant was likely to and did have the specific intent for other charged offense [sic].
"If you conclude that the defendant committed a charged offense, that conclusion is only one fact to consider, along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the other charged offenses. The People must still prove each element of every charge beyond a reasonable doubt. Do not consider this evidence for any other purpose, except for the limited purpose of determining the specific intent of the defendant and certain charged offenses."
The instruction as given was modeled on the instruction approved in People v. Wilson (2008) 166 Cal.App.4th 1034, where the defendant was charged with various sex crimes against girls, including section 288, subdivision (a).
A printed version of the instruction appears twice in the clerk's transcript—on backtoback pages—with minor differences between the two versions. The printed versions of the instruction do not include the word "you'll." The version titled "CALCRIM No. 1191," which appears to be the version sent into the jury deliberation room, reads:
"The People presented evidence that the defendant committed the crimes of sexual acts with a child 10 years or younger, forcible lewd acts upon a child, and lewd act upon a child. These crimes are defined for you in these instructions.
"If you decide that the defendant committed a charged offenses [sic], you may, but are not required to conclude from the evidence that the defendant was disposed or inclined to have the requisite specific intent for other charged crimesm [sic] and based on that decision, also conclude that the defendant was likely to and did have the specific intent for other charged offenses.
"If you conclude that the defendant committed a charged offense, 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 other charged offenses. The People must still prove each element of every charge [sic] beyond a reasonable doubt. Do not consider this evidence for any other purpose except for the limited purpose of determining the specific intent of the defendant in certain charged offenses."
We find this case to be indistinguishable from the Supreme Court's decision in People v. Villatoro (2012) 54 Cal.4th 1152, (Villatoro). There, "the instruction clearly told the jury that all offenses must be proven beyond a reasonable doubt, even those used to draw an inference of propensity. Thus, there was no risk the jury would apply an impermissibly low standard of proof. [Citation.] Moreover, the court instructed the jury with CALCRIM No. 220, which defines the reasonable doubt standard and reiterates that the defendant is presumed innocent; it also explains that only proof beyond a reasonable doubt will overcome that presumption. The modified version of CALCRIM No. 1191 did not impermissibly lower the standard of proof or otherwise interfere with defendant's presumption of innocence." (Id. at pp. 1167-1168.)
Like Villatoro, Lawson was charged with multiple sexual assaults—albeit against children—and Jane Doe 1's testimony was admissible as to the Jane Doe 3 counts pursuant to Evidence Code section 1108. Lawson argues that the danger of juror confusion was great because the critical disputed element as to section 288, subdivision (a) (counts 29 through 31) was whether he "committed the act with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desires of himself. . . ." (CALCRIM No. 1110.) Lawson explains that an otherwise innocent act is rendered felonious if the jury finds the specific intent and that evidence of the oral copulation alleged as to Jane Doe 1 "cast these otherwise innocuous touchings in a whole different light—making the inference of sexual intent a natural one, even with scant other evidence to support that inference.
Also like Villatoro, in its modified version of CALCRIM No. 1191, the trial court here instructed: "If you conclude that the defendant committed a charged offense, 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 other charged offenses. The People must still prove each element of everycharge [sic] beyond a reasonable doubt." Instructing with CALCRIM No. 220 the court emphasized the presumption of innocence and the meaning of proof beyond a reasonable doubt.
Because appellant's opening brief and respondent's brief were filed before the decision in People v. Cruz (2016) 2 Cal.App.5th 1178 (Cruz) [erroneous jury instruction on the use of charged conduct to prove propensity as to another charged offense]), we gave the parties an opportunity—which they both accepted—to address any recent authority applicable to issues raised by the appeal. We agree with the People's application of Cruz, that "at no point was the jury in this case instructed that it could consider the other charged offenses for purposes of propensity if it found those charges proved by a preponderance standard. Here the jury heard only one standard. It was directed that if 'you decide the defendant committed a charged offense' you are permitted to draw a propensity inference. (Emphasis added.) The standard by which to decide whether a defendant committed a charged crime was clearly defined both later in the instruction and in CALCRIM No. 103, [given as an introductory instruction and in CALCRIM No. 220] as one of beyond a reasonable doubt. In other words, the instruction here did not suffer the problems identified in Cruz that the jury was explicitly instructed on a lower standard of proof or given two explicit standards of proof." Recognizing that the court's instruction "did not include the explicit directive contained in Villatoro, that the People must prove the charged offense beyond a reasonable doubt before the jury may consider one charge as proof of another charge," The People observe "here, there was no 'erroneous' preponderance standard in the instruction that needed to be countered or clarified by an explicit directive to find charged offense beyond a reasonable doubt before using them for propensity purposes."
We agree and find no error in the instructions.
D. Kidnapping Charges
The jury found allegations related to the manner in which the charged offenses were committed ("one-strike" law in § 667.61, subds. (d) & (e)) to be true. Specifically, the jury found that while committing forcible lewd acts upon Jane Doe 1, Lawson kidnapped her, and the movement substantially increased the risk of harm to her over and above that level of risk necessarily inherent in the underlying offense (§ 667.61, subd. (d)(2)). The jury also found that in the commission of the underlying forcible lewd touching, Lawson kidnapped Jane Doe 1 (§§ 288, subd. (b)(1), 667.61, subd. (e)(1)). The jury found both these allegations to be true as to nine of the charges of sexual acts (oral copulation) with a child under 10 years of age. (§ 288.7, subd. (b).) Lawson challenges the sufficiency of the evidence supporting simple and aggravated kidnapping enhancements as to the 15 counts of forcible lewd acts upon Jane Doe 1 (counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 21, 22, 23, 24, 25, & 26) and 9 counts of oral copulation with a child (counts 1, 3, 5, 7, 9, 11, 13, 15, & 17).
We "review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Lindberg (2008) 45 Cal.4th 1, 27.) We do not reweigh the evidence or evaluate witness credibility. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We do not reverse a judgment unless no substantial evidence under any hypothesis supports the verdict and apply the same standard to evaluating evidentiary sufficiency for sentencing enhancements. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Anderson (2009) 47 Cal.4th 92, 102.)
Kidnapping requires the People to prove (1) the victim was moved a substantial distance; (2) the movement was accomplished by use of physical force or fear; and (3) the movement was nonconsensual. (People v. Jones (2003) 108 Cal.App.4th 455, 462; People v. Martinez (1999) 20 Cal.4th 225, 237 (Martinez).)
To prove the aggravated kidnapping allegation, there must be nonconsensual movement of the victim that is not merely incidental to the commission of the underlying crime, and the movement must substantially increase the risk of harm over and above that necessarily present in the underlying crime itself. (Martinez, supra, 20 Cal.4th at pp. 232-233.) The requirements of substantial movement and substantial increase in risk are separate, but interrelated, and are determined by consideration of the totality of the circumstances in a qualitative rather than quantitative evaluation. (People v. Dominguez (2006) 39 Cal.4th 1141, 1152 (Dominguez).)
In considering whether the movement is merely incidental to the underlying crime, the jury must consider the scope and nature of the movement and the environment in which the movement occurred. The actual distance is significant, but there is no minimum number of feet a victim must be moved. (People v. Rayford (1994) 9 Cal.4th 1, 12 (Rayford); see, e.g., People v. James (2007) 148 Cal.App.4th 446, 456 [moving victim at gunpoint from outside into a building sufficient]; People v. Corcoran (2006) 143 Cal.App.4th 272, 279 [moving victims 10 feet at gunpoint within a building sufficient]; People v. Jones (1999) 75 Cal.App.4th 616, 629 [moving victim 40 feet across a parking lot to her car sufficient]; Dominguez, supra, 39 Cal.4th at p. 1152 [no minimum distance is required to satisfy the asportation requirement so long as the movement is substantial].)
The second requirement to prove aggravated kidnapping is that the forced movement must substantially increase the risk of harm above and beyond that inherent in the underlying offense. (Dominguez, supra, 39 Cal.4th at p. 1152.) Courts have identified factors to determine increased risk of harm: whether the movement decreased the likelihood of detection, increased the danger created by any efforts by the victim to escape, or provided the defendant an enhanced opportunity to commit additional crimes. (Ibid.; see Martinez, supra, 20 Cal.4th 225, 237; see also Rayford, supra, 9 Cal.4th at p. 13.)
Our discussion of the generic testimony and our conclusion as to the sufficiency of the evidence as to those counts provides the starting point for our analysis of the jury's allegation findings. Here, too, we find the jury's verdicts as to these 24 counts is supported by substantial evidence.
As to the offenses committed in the car, the elements for both kidnapping (§§ 288, subd. (b)(1), 667.61, subd. (e)(1)) and the section 667.61, subdivision (d)(2) enhancements are self-evident. Jane Doe 1 described Lawson's pattern of driving her to a field, touching, and on some occasions kissing her chest and licking her vagina. Distinct from the underlying offenses, transporting her in the car posed the increased risks which justify the aggravated kidnapping allegations. The forced movement decreased the likelihood of detection; substantially increased the danger created by any efforts by Jane Doe 1 to escape; and provided Lawson an enhanced opportunity to commit additional crimes. (Dominguez, supra, 39 Cal.4th at p. 1152.)
It was not necessary for Lawson to move Jane Doe 1 either to forcefully and lewdly touch her or to orally copulate her in his home. The offenses could have been committed in the bed where she lay next to his sleeping daughter. A sexual offense, being an "attack on the person . . . does not necessarily require movement to complete the crime" at all. (People v. Diaz (2000) 78 Cal.App.4th 243, 248.) His moving her was not "merely incidental" to the underlying crimes. Forcibly taking Jane Doe 1 to a more secluded area in the adjoining room enabled him to gain greater control over her, to avoid detection, and to commit additional sexual crimes against her, all of which supply the evidence to support the finding that the movement of Jane Doe 1 substantially increased her risk of harm.
We reject Lawson's claim that the movement was insufficient "to constitute even simple, let alone aggravated, kidnapping." The distance from her bed to the couch in the adjoining room, out of his daughter's presence, satisfies this element. (People v. Shadden (2001) 93 Cal.App.4th 164 (Shadden).) Shadden moved his victim only nine feet—from the front counter of the video store to the back room with the door closed and out of public view—thereby increasing the risk of harm. (Id. at pp. 169-170.) The court noted the "critical factor" was whether the defendant "secluded or confined" the victim. (Id. at p. 170; see Rayford, supra, 9 Cal.4th at pp. 6, 23 [moving victim behind "a small tree," 34 feet from the street, and bushes at the end of the wall "limited detection" of the victim]; People v. Aguilar (2004) 120 Cal.App.4th 1044, 1049 [forcibly moving the victim from a lighted porch area to a dark area 133 feet down a sidewalk at night increased the risk to the victim].) Moving Jane Doe 1 to the couch "made it less likely for others to discover the crime and decreased the odds of detection." (Shadden, at p. 170.) The jury could reasonably conclude that Lawson's movement of Jane Doe did in effect, "seclude" and "confine" her. As Jane Doe 1 testified, she attempted to stop Lawson from sexually assaulting her by trying to get close to K.L., so that K.L. would feel her body being moved and wake up. Lawson responded by forcefully removing Jane Doe 1 from where she was sleeping and muffling her protests by putting his hand over her mouth. Clearly, even Jane Doe 1 recognized, in her efforts to resist, the added danger of being isolated and taken away from the company of K.L. It would not have been unreasonable for the jury to reach the same conclusion.
We agree with the People that the kidnap-for-robbery cases—where the court found the movement of the victim within the house was incidental to the robbery—are inapposite. (People v. Daniels (1969) 71 Cal.2d 1119, 1140.) Moving Jane Doe 1 away from his daughter was not necessary for Lawson to sexually assault her, but it decreased the likelihood of detection; decreased her ability to escape and enhanced his opportunities to commit additional crimes. (See Rayford, supra, 9 Cal.4th at p. 13; Shadden, supra, 93 Cal.App.4th at p. 170.) A rational jury could certainly find that Lawson's actions constituted substantial movement which substantially increased the risk of harm to Jane Doe 1.
E. Sentencing Issues
1. One-strike Findings on Counts 1 , 3 , 5 , 7 , 9 , 11 , 13 , 15 , 17 and 19
Lawson contends and the People agree that the "one-strike" findings on 10 counts of oral copulation with a child 10 years old or younger (§ 288.7, subd. (b)) must be stricken as the offense is not specifically enumerated in section 667.61, subdivision (c). We agree and strike the section 667.61, subdivision (c) enhancement on counts 1, 3, 5, 7, 9, 11, 13, 15, 17 and 19.
2. Pretrial Custody Credits
The court awarded Lawson 479 days of actual presentence custody credit which he contends, and People agree, should have been 480 days. He also contends that he should have received 72 days of conduct credits. The latter issue has been resolved by the Court of Appeal: Where a defendant is convicted of a section 667.5, subdivision (c) offense and the jury finds an allegation pursuant to section 667. 5, subdivisions (d) or (e) to be true, "there are no conduct credits allowed against the minimum term." (People v. Adams (2018) 28 Cal.App.5th 170, 182 (Adams).)
The Adams court examined section 667.5's legislative history to reach its holding. "We asked the parties to brief the question whether the 2006 amendment to section 667.61, subdivision (j), eliminated defendants' eligibility for conduct credit. (Stats. 2006, ch. 337, § 33, pp. 2639, 2641.) We hold as a matter of statutory interpretation that it did. The parties agree. [¶] . . . [¶] Section 667.61 was amended in 2006—prior to the present crimes—to eliminate the existing section 667.61, subdivision (j) and any reference to presentence conduct credits. (Stats. 2006, ch. 337, § 33, pp. 2639, 2641.) It is uncertain on its face whether the amendment was intended to eliminate presentence conduct credit for defendants sentenced under section 667.61, or to authorize full conduct credit under section 4019. We turn, therefore, to the legislative history. Committee reports evidence the Legislature's intent to eliminate conduct credit for defendants sentenced under section 667.61, the so-called 'One-Strike Law.' The Senate Committee on Public Safety's analysis of Senate Bill No. 1128 (2005-2006 Reg. Sess.) unambiguously states: 'Elimination of Sentencing Credits for One-Strike Inmates [¶] Existing law provides that a defendant sentenced to a term of imprisonment of either 15 years to life or 25 years to life under the provisions of the 'one-strike' sentencing scheme shall not have his or her sentence reduced by more than 15% by good-time/work-time credits. (Penal Code 667.61, subd. (j).) [¶] This bill eliminates conduct/work credits for inmates sentenced under the one-strike law.' (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 1128 (2005-2006 Reg. Sess.) as amended Mar. 7, 2006, p. N, underscoring omitted; accord, id. at p. W ['This bill eliminates sentencing credits that under existing law can reduce a defendant's minimum term by up to 15%' (underscoring omitted)]; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1128 (2005-2006 Reg. Sess.) as amended May 26, 2006, pp. 8-9 [Sen. Bill No. 1128 eliminates eligibility 'for credit to reduce the minimum term imposed']; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1128 (2005-2006 Reg. Sess.) as amended May 30, 2006, p. 9 [same].) In Couzens and Bigelow, Sex Crimes: California Law and Procedure (The Rutter Group 2015) paragraph 13:15, page 13-78, the authors conclude: 'Section . . . 667.61 (One Strike law) . . . [was] amended in 2006 to eliminate the provision that allowed such crimes to accrue 15% conduct credits, whether before or after sentencing[.] Now there are no conduct credits allowed against the minimum term.' We hold, therefore, that defendants given indeterminate terms under section 667.61 are not entitled to any presentence conduct credit." (Adams, supra, 28 Cal.App.5th at pp. 181-182.)
"Only actual time credits without conduct credits will be awarded in the following situations: [¶] . . . [¶] 12. Crimes sentenced under section 667 .61, the One Strike law, where the minimum parole eligibility is either 15 or 25 years." (Couzens et al., Sentencing California Crimes (The Rutter Group 2018) ¶ 15:12, pp. 15-43-15-45.)
Lawson's pretrial custody credits are modified to include one additional day of actual credit. Under Adams, he is not eligible for conduct credits.
3. Section 654 and Double Punishment
Because the parties and the trial court did not consider whether section 654 applies to any of Lawson's convictions as to Jane Doe 1 (counts 1 through 20), in a November 20, 2018 letter, we invited the parties to address the application of section 654 to Lawson's sentence. "Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal." (People v. Perez (1979) 23 Cal.3d 545, 549-550, fn. 3.) "This exception is not required by the language of section 654, but rather by case law holding that a court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654." (People v. Hester (2000) 22 Cal.4th 290, 295, citing People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.)
In a November 28, 2018, letter Lawson replied, "If the court decides to affirm all counts of conviction, then appellant agrees that it is appropriate to stay the sentences on the oral copulation counts." The People did not reply.
Section 654 proscribes multiple punishment for the same act. (People v. Correa (2012) 54 Cal.4th 331, 337.) An "act" can include a " ' "course of conduct." ' " (People v. Correa, supra, 54 Cal.4th at p. 335.) "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor." (Neal v. State of California (1960) 55 Cal.2d 11, 19, disapproved on other ground in People v. Correa, at p. 336.) "If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (People v. Perez, supra, 23 Cal.3d at p. 551.)
"However, the rule is different in sex crime cases. 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. (People v. Perez, supra, 23 Cal.3d at p. 553; e.g., [citation]; People v. Greer (1947) 30 Cal.2d 589, 604 [removal of victim's underclothing was merely incidental to subsequent rape and did not warrant separate punishment]; [citation].) [¶] But, section 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. [Citation.] That makes section 654 of limited utility to defendants who commit multiple sex crimes against a single victim on a single occasion. As our Supreme Court has stated, '[M]ultiple sex acts committed on a single occasion can result in multiple statutory violations. Such offenses are generally 'divisible' from one another under section 654, and separate punishment is usually allowed. [Citations.]' (People v. Scott (1994) 9 Cal.4th 331, 344, fn. 6.) If the rule were otherwise, 'the clever molester could violate his victim in numerous lewd ways, safe in the knowledge that he could not be convicted and punished for every act.' (Id. at p. 347.) Particularly with regard to underage victims, it is inconceivable the Legislature would have intended this result." (People v. Alvarez (2009) 178 Cal.App.4th 999, 1006.)
In part B of the Discussion, we assumed a charging scheme, authorized by section 954, by which counts 1 through 20 were charged in pairs (the odd counts alleging violations of § 288, subd. (b)(1) (forcible lewd acts) and the even counts alleging violations of § 288.7, subd. (b)(1) (oral copulation)), with each molestation incident against Jane Doe 1 giving rise to one count under each statute. On that basis, we found sufficient evidence to support Lawson's 20 convictions as to Jane Doe 1. While "[s]ection 954, . . . permits multiple conviction[s], . . . section 654, . . . prohibits multiple punishment for the same " 'act or omission.' " (People v. Ortega (1998) 19 Cal.4th 686, 704.) Thus, the question remains whether there is evidence that Lawson's forcible lewd acts as to Jane Doe 1 were "preparatory" in that they were intended to arouse or "were either incidental to or the means by which" the acts of oral copulation against her were accomplished—in which case section 654 would require the court to stay the sentence.
" 'The defendant's intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced.' " (People v. Coleman (1989) 48 Cal.3d 112, 162.)
Here, the application of section 654 was not raised by counsel and—as a result—the trial court made no explicit factual findings on its application to counts 1 through 20. We cannot divine implied findings from the record. While the evidence was sufficient to affirm the oral copulation convictions (counts 1, 3, 5, 7, 9, 11, 13, 15, 17, & 19), it does not allow a reviewing court to determine whether Lawson's forcible lewd acts were either incidental to or the means by which his acts of oral copulation were accomplished. Because the trial court heard the evidence, we remand this matter for a determination and, if necessary, resentencing.
The parties agree that the judgment be modified to vacate the order that Lawson pay $144.46 to Jane Doe 2 because there was no conviction on counts 27 and 28.
The parties agree that the restitution order erroneously states that Lawson owes $1 million to Jane Doe 1 and $200,000 to Jane Doe 3 as restitution and that the matter should be remanded to correct the record. Lawson asks only that that the current restitution order be vacated. The People ask that we direct the trial court to conduct the restitution hearing. We remand the matter and defer to the trial court and the People as to whether and, if so, when to schedule a restitution hearing.
The case is remanded to the trial court to modify the judgment as follows: (1) the one-strike findings on the 10 counts of oral copulation with a child 10 or under (counts 1, 3, 5, 7, 9, 11, 13, 15, 17, & 19) are stricken and the terms of the sentence attributable to the section 667.61 enhancements are reversed; (2) Lawson's pretrial custody credits shall be modified to include one additional day of actual credit for a total of 480 actual days; (3) the restitution orders for Jane Does 1, 2 and 3 are stricken; (4) as to Jane Does 1 and 3, the case is remanded with direction to the trial court to decide whether, and—if so—when, to conduct a restitution hearing; and (5) the trial court is directed to determine whether or not section 654 applies to any of Lawson's convictions as to Jane Doe 1, counts 1 through 20 and—if so—to resentence accordingly. In all other respects the judgment is affirmed.
Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Presiding Justice of the Court of Appeal, First Appellate District, Division Four, sitting by assignment pursuant to article VI, section 6 of the California Constitution. --------