People v. Race
E066059
| Cal. Ct. App. | Dec 11, 2017Background
- Defendant Timothy Race was charged with two counts of lewd and lascivious acts on a child under 14: count 1 (his daughter) and count 2 (his niece). He pled no contest to attempted lewd and lascivious acts as a lesser included offense of count 2. Other counts were dismissed.
- Plea included a Harvey waiver and a stipulation that the complaint/police report provided the factual basis for the admitted counts.
- Police reports and preliminary hearing testimony described sexual abuse allegations by both the daughter (kissing with tongue, touching genitalia, forcing daughter to touch his genitals) and the niece (grabbing, touching under dress, pinning her on bed).
- At sentencing the court imposed the upper term of 4 years, awarded 213 days actual custody credit but no conduct credits, limited conduct credits to 15% under Penal Code § 2933.1, and issued 10-year criminal protective orders as to both the daughter and niece.
- Defendant appealed, arguing (1) the protective order as to his daughter was unauthorized because he was not convicted of an offense against her, (2) the 15% conduct-credit limitation was inappropriate for his conviction, and (3) clerical errors in minute orders misidentified which count he pled to.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court could issue a §136.2 10-year criminal protective order for the daughter though defendant was not convicted of an offense against her | Protective order authorized because §136's definition of “victim” is broad; court may consider evidence before it showing reason to believe a crime was committed against the person | Protective order improper because defendant was not convicted of an offense involving his daughter; Harvey/stipulation limits consideration of facts underlying dismissed counts | Court affirmed protective order: §136’s broad “victim” definition permits orders where competent evidence supports a finding the person was harmed or targeted in the household; court may consider competent evidence beyond convictions even despite Harvey waiver |
| Whether defendant’s custody credits should be limited to 15% under §2933.1 | People argued the offense was a violent felony and thus limited to 15% credits | Race argued attempted lewd acts on a child under 14 (as convicted) is not listed in §667.5(c) and thus not subject to 15% cap | Remanded: court erred. Attempted lewd and lascivious acts on a child under 14 is not listed in §667.5(c); defendant not limited to 15% conduct credits; custody credits must be recalculated |
| Whether minute orders should be corrected to reflect plea was to a lesser included of count 2 (niece) rather than count 1 (daughter) | People conceded clerical error in minute orders | Defendant sought correction to match oral plea and reporter’s transcript | Remanded for correction: oral pronouncement controls; clerk’s minutes must be amended and new abstract forwarded to CDCR |
| Whether issuance of protective order was functional equivalent to parental-rights termination requiring additional due process | People argued protective order is not termination of parental rights and there are statutory mechanisms to seek relief/rescission | Defendant argued the order effectively terminated parental rights without due process | Rejected: defendant had opportunity to object, could seek rescission after release, and interbranch mechanisms exist; order is not equivalent to terminating parental rights |
Key Cases Cited
- People v. Delarosarauda, 227 Cal.App.4th 205 (Cal. Ct. App.) (protective order requires evidence defendant harmed or attempted to harm non-convicted individuals to include them as “victims”)
- People v. Beckemeyer, 238 Cal.App.4th 461 (Cal. Ct. App.) (§136’s broad victim definition supports protective orders for persons who were victims though not named in convicted counts)
- People v. Therman, 236 Cal.App.4th 1276 (Cal. Ct. App.) (court may imply findings that support issuance of a protective order where record supports abuse within meaning of domestic violence statutes)
- People v. Trujillo, 60 Cal.4th 850 (Cal. 2015) (forfeiture principles; failure to object below can forfeit appellate review)
- People v. Harvey, 25 Cal.3d 754 (Cal. 1979) (Harvey waiver allows consideration of dismissed counts/facts for sentencing matters)