*1 Dist., Eight. Div. Jan. 2009.] B192743. Second [No. PEOPLE, Plaintiff and
THE Respondent, CRABTREE, and Appellant. Defendant ARTHUR GEORGE *5 Counsel Goodwin, the Court of for Defendant
David H. under by Appeal, appointment and Appellant. Gillette, Jr., General, Brown, G. Dane R. Chief Assistant
Edmund Attorney General, General, Hamanaka, Kristofer Pamela C. Assistant Attorney Attorney General, Shin, for Plaintiff and H. Attorneys Jorstad William Deputy Respondent.
Opinion
COOPER, P. Arthur GeorgeCrabtree from the entered appeals judgment J. trial following that resulted in his jury felony conviction lewd attempted (Pen. Code, 664; act a child under (a), upon age 14 subd. §§ count 288.2, (“Hope”)).1 Felony sending (§§ harmful attempted matter to minor 664; (b), 8); subd. counts misdemeanor child attempted molesting 647.6, 664; (§§ (a), subd. counts 3 (“Becky”), (“Hailey”), (“Jenny”), 647.6, (§ misdemeanor (“Sammy”)); (a); child molesting subd. count 9 (N.N.)); and felony lewd act a child 14 or 15 at least upon age by perpetrator (§ years (c)(1); older subd. 10 (N.N.)). count was sen- Appellant tenced to prison years five months. eight contends his convictions for child in counts attempted molesting reversed,
3 (“Becky”) and 6
be
(“Jenny”) must
were
because
not
they
within the
prosecuted
statute of limitations. He
one-year
contends the trial
court abused its discretion in
his
for cocounsel
denying
request
status and
Const.,
(U.S.
violated his
right
Amend.)
a defense
present
14th
by
allowing
(H.H.’s
sister),
out-of-court
statements of
unspecified
C.C.
which were admissible under the state of mind
to the
rule.
hearsay
exception
He further contends the trial court committed
error
prejudicial
admitting
by
evidence of a
hearsay
bubble bath sales
and evidence of
bad acts
receipt
prior
him.
also contends the
committed
misconduct
prosecutor
prejudicial
of the
challenges
sufficiency
evidence to
support
convictions
(N.N.).
counts 1
and 10
(“Hope”)
attacks
sentence on count 1 on the
dual grounds that consecutive sentences and
of the
term
imposition
upper
violated Cunningham
By we invited to submit on briefs these parties supplemental (1) Did issues: the trial court commit unauthorized error sentencing by failing first sentence count impose 9 before appropriate pronouncing 654”?; 9 will be (2) Did the court stayed pursuant “[c]ount [section] *6 1465.8, (§ further any $20 err court by failing fees impose security so, (a)(1)?; (3) subd. If was the trial court fee required this as impose conviction, each one including for which under section punishment stayed v. Crittle 368, (People (2007) 654 154 370-371 Cal.App.4th Cal.Rptr.3d [64 (Crittle))?; (4) What is the total amount of the court fees the security 605] (5) trial court and Is the term 1 required on count impose?; upper based on the al justified aggravating circumstance of victims” “multiple victims” has been deleted as an enumerated circumstance though “multiple 1 All further section references are to the Penal Code unless otherwise indicated.
1299 Court, (See Cal. Rules of of Court? 4.421 of the California Rules from rule 398, Calhoun v. People (2007) Cal.Rptr.3d 40 Cal.4th 400 4.408(a); [53 rule Sandoval 41 (2007) Cal.4th 539, 220]; P.3d but see 150 their 588, 1146].) received responses. P.3d have We fn. Cal.Rptr.3d [62 law, reverse we of the record and Based on our review applicable court’s with trial (1) (2) respect on counts and sentence stay and then execution an sentence on count failure to impose appropriate sentence, $20 fee security court impose of that and the court’s failure to we other affirm the respects, convictions. In all eight on each of appellant’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND and to the People We the evidence in the most favorable light view from deduce reasonably fact the trier could every existence presume v. Ochoa (People (1993) 6 Cal.4th the evidence that the judgment. supports 103].) P.2d This evidence established: acted as tern judge” an who sometimes attorney “pro Appellant, officer, sexual on children for own once a of Glendale City preyed police sister-in-law, a lewd committed He molested his minor gratification. sexually in Internet chat targeted act on a female minors 15-year-old girl, sexually rooms. B.P.,
In his then sister-in- 12-year-old went camping Korea, of her family. law who had been from and other members adopted her, lay in who near fondled While B.P. was sleeping camper, appellant, area minutes and rubbed her genital her breasts under her shirt for several vaginal B.P. noticed her bleeding under her about five minutes. panties to a area next the incident sheriff’s Although reported deputy she day. had forced to act if day, nothing happened, school next she was if matter went to her she side with because mother said would court. a.m., H.H., old, was at bus stop or 4:30 then years about 4:00 Glendale, Pasadena buses needed to take her to waiting for one of two School, in Glendale police uniformed
High when appellant approached entered her identifica- she out so doing early vehicle. asked what into his vehicle appellant dropped tion information computer. Subsequently, to H.H. on each visit the same three to four times a week spoke stop later, at H.H.’s few months he arrived for about 30 minutes to hour. A rounds on had a and extra gun house and asked her for date. who Appellant, belt, a normal just close in a she felt “wasn’t hugged way H.H. police *7 he her before leaving. tried kiss hug,” (counts
In 10) N.N. encountered the uncle of a church appellant, friend, in first time an online chat room under N.N.’s screen name “Actress NMN.” on one occasion sent her a of himself. picture chat, During a N.N. told she was 15 appellant years old. When he asked N.N. masturbate, she complied. From 2002 until arrest in was the of six Internet appellant subject sexual child sting Three predator operations. were conducted the Federal by Bureau (FBI) Team, of Investigation Sexual Assault Felony Enforcement FBI state and local task force that crimes investigates against children. The FBI would special agent log on to the Internet to be a child pretending between 12 and ages 14 and wait chat in rooms to be approached by individuals to entice seeking or coerce minors into sexual relationships. Additional sting operations were conducted the Los Angeles Police the San Jose Police Department, and the Department, California Department of Justice. 26, 2002, Alon,
On March FBI Agent Timothy whose screen name was “BECKY13NLA,” went online posing 13-year-old “Becky” (count 3), who “MARKH661,” lived in Los Angeles. whose screen name was Appellant, contacted “Becky” stated he was a lawyer in his “30’s” and that he was Valencia, “13,” “from Mountain.” When by Magic “Becky” said she was he “Hi, responded, she perfect age.” response inquiry, “Becky” replied inwas the seventh He grade. also asked “how big” [“Becky”] “on top” and whether she had “French kissed” before. 28, 2002, date,
On March contacted “Becky” and asked her for a appellant meet the suggesting they following week. He wanted to know whether she had a one- or swimsuit and he said wanted to rub lotion on her. He two-piece added could to a and she they go spa bring should her bikini. definitely 1, 2002, his contact
During asked “Becky” April again appellant number, about her After grade school. his “800” giving “Becky” phone told her the number after she away throw called him. 11, 2002, again On contacted After she related April “Becky.” that she had written down his number her became diary, appellant concerned stated she should “be careful about that.” then suggested “Becky” school and meet him. He asked she skip if had seen pornographic movies.
On “Becky” told he wanted to and kiss April snuggle watching her while television and related he while might get “homy” movie. watching pornographic *8 on 2002. He again number April gave “Becky” phone on her and should “Becky” to sunscreen lotion
told her he would like put he was telling getting really He concluded her by have her bikini ready. to give and he would like had not met although they yet attached her he her “a kisser.” great a a He added will make hug and kiss. “Becky” big 30, 2002, discussed appellant he contacted on “Becky” April When 14, 2002, May sex with On “Becky.” detail how he wanted to oral engage butt,” oral sex again, if had a “cute discussed asked she “Becky” appellant He instructed she was big “up and once more asked how “Becky” top.” out. He number without her parents finding how to call his “800” “Becky” . . . “[bjecause of difference .” age told her he could into trouble get 22, 2002, and May “Becky” exchanged On appellant photographs. of in fact that of a Los sheriff’s Angeles County photograph “Becky” when she about 12 to 13 old. instructed years “Becky” deputy and can. He how to delete his file to the trash picture computer’s empty and how he discussed his desire to take a bubble bath in a with spa “Becky,” be okay kissing would her. He asked if would orally “Becky” copulate and “even French kissing.” had On
During “Becky.” June various online contacts with appellant June he if in a bikini” and whether she had good asked she looked “pretty Yahoo!, “web a “web cam.” He switch from AOL to which had she requested cam” asked After her video availability. sending penis, appellant if she would touch it. He asked about her hair. On “Becky” really pubic also 17, 2002, 18, “Becky” June related he was a On June told “lawyer.” appellant message. she had left a After appellant telephone listening message, which was left female that she had “the decoy, appellant responded sweetest voice.” On once more asked her size “Becky” “up June and about her and bikini tan lines. He asked about then top” inquired nipples wore he should to know what she bring condoms wanted types He also asked whether she had had her first whether she sleep. period yet became when her menstrual was about cycle begin. “homy” 2, 2002, his concern about August being caught On told “Becky” if he met her in He asked if she wanted to watch person. pornographic movie online and if she ever about a “threesome.” together thought possible last related contact with sexually “Becky” September
Appellant’s He desire to take asked for more of her related his 2002. pictures her and nude in sexual “Becky” in swimsuit pictures pictures poses. “Becky” if she had a bikini. He about getting asked also two-piece spoke to orally with and discussed in detail how he was going vibrator play her. their copulate During last contact on October *9 “Becky” talked about Hawaii. Alon,
The second FBI also sting operation involved whose screen name at time was and “JennySF13,” (count who posed 13-year-old 6) as “Jenny” 5, 2003, in living San Fernando On Valley. May “Jenny” was contacted online by who told her he liked and appellant “young girls” asked her age. “Jenny” said she was and in seventh grade. gave her his Appellant “800” number and discussed using and together French He also asked spa kissing. how big “Jenny” He told her he was top.” near Mountain. “up Magic On 23, 2003, June contacted appellant again and talked “Jenny” about going together the movies. He call encouraged her to him at his “800” number. 11, 2003, His last contact with on “Jenny” was November which time he related that seeing her in bikini would “make him nuts.” Mitchelle,
The final FBI involved sting agent Adrienne whose operation screen name was “Sammyl3CA,” as posing named 13-year-old girl 27, (count 7) 2003, in “Sammy” living Santa Monica. On August appellant contacted online for first “Sammy” time. chatted on They 13 separate occasions. she “Sammy” told was “kind of and appellant that she shy” “five-two with brown and hair blue and into the eyes” going eighth grade. said he lived by Mountain. Appellant Magic They conversed about the type liked, of food beach, romantic “Sammy” walks along in cuddling spa, and whether she was a French kisser. asked good “how big [she and she up whether top” preferred swimsuits.” “one-piece two-piece was] When asked about a girlfriend, stated he had a appellant platonic relationship with He someone. also related he owned a he business and was a in lawyer his thirties. 2003, 2,
In September contacted On “Sammy” twice. appellant September room, while in the “I Love Older Men” chat he asked what she grade her in and of the she age again She said she was in the guys preferred. eighth On grade. asked about September appellant again grade her and asked whether she had a she “webcam” and if were with the “okay age difference.” about spoke her after school and asked where he meeting should her pick up. once more what grade asked was in on November “Sammy”
2003. She said the eighth He also asked whether she liked one- or grade. swimsuits two-piece her He related his marital status and picture. stated his wife was “never here.” On asked January 30’s,” “Sammy” whether she was which was in the okay age, with “upper and was serious about meeting again him. He asked about age guys she and for a their during February chat 2004. preferred picture 3, 2004, an instant sexually during became explicit On March her “so “Sammy” top and related his desire message “suck[]” “lick[]” slamming and his “body weekend together bad” about spoke spending wanted him it.” He asked where she do against [they] up [hers] with He told her he also wanted speak if he “were to explode.” “explode” old and again years told she was “Sammy” on the her phone. the eighth grade. eighth was in the grade that she repeated
On June “Sammy” related she was not sex. experienced *10 27, 2004, Hotties” on August in a chat room known as “School Yard
While what they While “Sammy” again discussing was contacted appellant. met, she the “romantic She type.” do if he asked if they would don’t know. am 13.” He also asked if she was good “I I responded, only said she had to “Sammy” and whom she lived with home. When kisser God, leave, I I wish were you, Sammy. you love “Okay. appellant replied, O, X, O, wrote, ‘X, me He then face with Okay.” “Smiley here. E-mail also. ” X, O.’ 31, 2004, discussed with message, On instant August during appellant do when met. He asked if she could handle “Sammy” they what would they “Um, can me not like handle meaning you of his boyfriend age, adding, and suntan lotion on her you rubbing inside or He mentioned anything.” be rub it him He related his desire to “Sammy” asked if she would too. with and he no had sex “boyfriend girlfriend” longer “Sammy” explained he had her on him. caught cheating with wife because related he in a being “Sammy” dreamt about with Appellant together spa not and He if there were she would holding kissing. things while hands asked as He you.” want to do with such “sex or him lick boyfriend, having having said, “Hmmm, [W]ell, more than are you willing then sexually? nothing other, do, but if were I think after we know each some ready, got you fun.” asked if like me would be When licking/fingering you serious foreplay, hurt, “Hmmm, first it’s uncomfortable sex would he time having responded, stretched/broken, it’s incredible feel. There’s but hymen because your He whether she would like sex in the world.” then asked nothing “Sammy,” cum?” He you inside and make “honestly want me to slide cock my you added, out, or a condom. So cum on use your tummy, I can either “Okay. pull okay You with that?” about their he asked “Sammy” “prom- concern
Expressing relationship, her, He “I can tell not even best friend.” told your ise anyone[,] me, I can’t it won’t be no one find out from and promise will promise sex, uncomfortable first time if we full but go I can either lick you [the] you make cum. That will be way gentle.” him asked if she could “Sammy” meet and whether Friday she
was serious about real life.” “meeting “Sammy” said she had school Friday but suggested they meet the next week.
Los Police Angeles Detectives Robert Department Cervantes and Robert McCarty in an participated (count Internet investigation “Hailey” posing a5), 13-year-old girl, whose screen name was On “SK8RHaileyl990.” May 28, 2004, contacted appellant “Hailey” e-mail. related she through “Hailey” old, tall, 13 years five feet two inches and had hair blond pounds, 30’s,” blue he eyes. stated was a he lawyer in lived “upper in Santa Clarita near Magic Mountain. asked for a said “Hailey” picture, her, he wanted meet about kissing French spoke two-piece swimsuits. June
During had four online contacts On “Hailey.” 4, 2004, June asked to meet “Hailey” and if she “a good kisser.” On June talked about “French while kissing [he] *11 let wander around fingers slowly down there.” He also talked about [his] 14, 2004, a with taking bath her. June On said he to wanted check appellant her out tan line and talked about X-rated stuff “doing and actually watching and acts—doing together acts them TV.” maybe on She watching that she was not On responded June asked experienced. appellant to call him at “Hailey” a number later confirmed to be telephone registered chats, Santa Clarita address. In addition to and appellant their appellant lines, lotion, “Hailey” also e-mails tan and exchanged discussing rubbing a meeting after school. possible
The duties of San Police Jose Officer Adam Tover included engaging Internet chats seek out individuals interested children. His underage screen name was On “BrittanySanJose.” November while in a chat Small,” room known as Bikini Too “Daughters was contacted “Brittany” through instant appellant about to Hawaii and messaging. They spoke going the same bed sharing discussed and together. They “Brittany’s” appearance, his desire to sunscreen on her. appellant expressed put then one Appellant turned chat into of an sexual nature. He explicitly if “Brittany” asked and offered to teach her “how to experienced sexually make love.” He asked if he could “lick down there” “between you your and you have hair there?” He asked “how legs” any big down “[d]o [she was] had When asked for a who told up top.” picture, “Brittany,” already child, him she sent years was 13 old a foster him a of another picture officer who when was taken. picture a shirt and of himself wearing plaid
He sent three One pictures. “Brittany” if he should show instant After messaging. asking second picture through “Brittany” He asked he sent of his “something picture penis. her nasty,” her number so He his “800” gave herself naked if she had Webcam. show call him. He bill and asked her to would not that it show up telephone he had sent and asked whether about the continual concern pictures expressed had files. erased the “Brittany” of us [Fjrench kissing” told he was thinking “Brittany” “just had told her “I would whether she had her first He already period.
asked [Fjrench while we kiss and like to area rubbing your start definitely pussy wetter, there,” added, make it I “[Mjaybe very make wet down you . . . .” He again like to there and inside put my tongue you would lick down to “suck He nipples.” her and related his desire “teaching” mentioned [her] once I am inside you your pussy also told “Brittany,” “Especially me, me, milk will you will be onto cum out clenching trying muscles ticket to to Hawaii and buy feel so offered to good.” “Brittany” plane fly desire to be foster related his to volunteer her parent. contacts made three additional online
During December in, December when asked what she “Brittany.” grade with On his concern the ninth discussed “Brittany” grade. again responded he had sent her. On December expressed about pictures asked, “[Sjo mind me you to teach “oral” and wouldn’t “Brittany” desire asked, “[Wjould you my age He also be licking, fingering you?” okay it with doing you?” *12 before, he had with a re- girl appellant
When asked whether had sex his He repeated he had had sex with then sister-in-law. 14-year-old sponded and could make out in way desire to be her foster dad that they his explained When together. appellant of the and take romantic nude baths front fireplace ninth She also told him grade. asked about her said again grade, “Brittany” a old. The then discussed fingering using she had turned 13 two just years cycle. dildo and menstrual “Brittany’s” told that about thinking December he was “Brittany”
On appellant raise suspicion to Jose meet her and about a wouldn’t “way San to flying would be suggested January here with me.” “Brittany” down get you better, to a new home. Appellant because she was transferred being group he loved her. “Brittany” told 14, 2005, contact, January
On their last told he had appellant “Brittany” had just eye surgery going rest.2 go MacKanin,
Jeffrey a California of Justice Department special agent super- who visor oversaw a and state federal task force child investigating exploita- crimes, (count tion online as posed underage girl 1) named “Hope” 7, 2004, whose screen name was “RunawayGirll4.” On December appellant contacted online. told him she “Hope” “Hope” 13-year-old runaway “four-ten, living Sacramento. she related When she was with pounds “Damn, eyes,” responded, you blue he sound He said he nice.” was “in his 30’s.” upper sent an e-mail of
Appellant picture himself in a checkered shirt and he asked of picture Agent (Paris) her. Tera Special MacKey handwrote card of a female greeting containing detective when she was an picture and sent the card early teenager the mail to from through appellant “Hope.” himself originally identified as “Mark” but then Appellant asked “Hope,” her to send the mailbox to a address in Santa Clarita picture addressed to “Arthur.” also sent of a with her “Hope” picture 13-year-old girl nipples showing through her clothes. number,
After appellant gave “Hope” MacKey, “800” posing contacted him at this number about five minutes later. A “Hope,” Google search that number led law Web site. practice had online two contacts with on December separate “Hope” first, During 2004. stated his real name was “Arthur” and he used while “Mark” online. related she explained chatting “Hope” with a man named “Jeff” would intimate” a staying they “get “couple a week.” times asked detailed their sexual about relation- questions He then told he was into kinds of looking various ship. “Hope” transportation for her meet with him and age concern about restrictions for expressed chat, who those were their underage using Greyhound During buses. second discussed to Hawaii “Hope” possibly going together. Appellant sent several in sex “Hope” individuals acts. pictures engaging
On December told about “Hope” relationship and talked his wife about in a motel her visit. He “Hope” staying during *13 oral sex and of his bikini for thong discussed of a He spoke purchase “Hope.” son, mentioned could time with and was not to they spend appellant’s “Hope” about the ticket money. cost because had told worry appellant repeatedly he loved her. “Hope” 9, 2004, Colombo, again acting November 24 and December On on Detective Michelle as
“Brittany,” pretext made Both calls were and appellant. calls to recorded transcribed. December, contacts made three more online the latter part appellant dream about having he of his
with On December told “Hope” “Hope.” sister-in-law, had whom he and sex with her related style” “doggy told December he from Korea. On molested was previously, adopted 3, 2005, money send and he would her should meet on “Hope” they January would do when to ticket. what buy discussing they a bus While Greyhound room, under a blanket and met and a he said would “cuddle” they got they he to On told that was engage going in sex. December appellant “Hope” They take a bath together. the bus ticket and stated would bubble buy they making a Hawaii and talked about discussed again possible trip together for to care while arrangements appellant someone son appellant’s traveling. 5, 2005,
On had chats with “Hope.” two online January appellant separate first, told would have to be careful not During appellant they “Hope” drinks about she liked. During her asked the alcoholic get pregnant chat, two In a call made second discussed sexual pretext telephone topics. meet agreed as that same by MacKey “Hope” day, “Hope” appellant on next day, 2005. The sent several January “Hope” pictures, appellant them, one of his Before he he sent made including “Hope” promise penis. delete the pictures. 14, 2005,
On he had contacted online related January appellant “Hope” 19, 2005, at a bus ticket Newhall for bought January from Sacramento to a.m., $20 6:30 and he include for food the ticket. He gave would a her He told her he was “Hope” number call arrival. telephone upon stated, return, the chat for office. he off in the “It’s leaving post Upon mail.” 17, 2005,
On sent e-mail with instructions January “Hope” where to him. off at the North station and meet get Hollywood Greyhound he he next sent an e-mail a of what day, giving “Hope” description would wearing. be 18, 2005,
On a January MacKanin received from package $20 bus ticket and a bill. arrested containing Greyhound next noticed Douglas FBI. FBI Cook day by Special Agent appellant’s Lexus at the bus on 7th in Los Angeles station Street parked Greyhound three female teenagers. observed he at least different approached search of vehicle that FBI During day, Special subsequent trunk, its including Michael Osborne recovered various items from Agent device, condoms, and bath a bottle of bubble massaging Viagra, laptop, A found with the bubble bath reflected the soap. soap receipt purchased at 1:41 Osborne also retrieved January p.m. two-piece *14 along swimsuit with a from the trunk. for purchase receipt The receipt $107.09 reflected the bikini was bought January at 2:29 p.m. defense, who testified in his own denied Appellant, molesting ever N.N., sister-in-law B.P. He testified that his initial online during contact he believed she was in her He that 30’s. before the explained preliminary he to hearing, went church to N.N. her feel apologize making to about simply uncomfortable and admitted court during chats later issued restrain- order ing him to from requiring stay away her.
As for the other online he were “girls,” testified knew they cops and that he in with them order engaged chats back law get enforcement, because he was forced leave his due to an unfair police job internal investigation. he learned about law explained basically, enforcement Internet his tenure as a tern. sting operations during judge pro
With knew regard (“RunawayGirll4”), testified he he “Hope” officer, awith and he talking police had no intention of initially showing Rather, at the up location. he meeting intentionally the location changed several “to times have them run circles.” decided He later to show for up because he she wanted meeting, be a real minor and he thought might clear his conscience. bikini, color, which
Appellant explained was in favorite “Hope’s” was a “consolation for the that he purple, minor and had obtained prize” condoms, Viagra, and vibrator found in weekend his trunk for a romantic wife, with his Susie. he sister testified that had a habit Appellant’s giving such a basket gifts, of bubble bath soaps. admitted he had H.H. several times. He also admit- approached
ted which going to H.H.’s home at time her mother H.H.’s explained boyfriend now took her to house going school. denied H.H.’s rebuttal, C.H., after her left and H.H. H.H.’s asking mother date. mother, testified she was for the working Angeles Department Los Police old, when H.H. was 15 and at some C.H. years appellant’s point reported her actions toward to the daughter department.
D.B. about 15 testified was her next-door when she was neighbor old and when over years usually, her were would parents gone, appellant pop the wall to her she and talk while was at the tanning swimming, pool Also, which made he her uncomfortable. she felt both when called uneasy and when he showed at the door and talked with her. up
J.H., sister, testified when she was in stepdaughter his car. seventh took her to the mall and allowed her to drive grade, appellant
1309 to fasten her seatbelt. over when he reached feel uncomfortable He made her this incident. before thigh hand on her him She did not recall putting
DISCUSSION 6 3 and Bars Counts Limitations One-year Statute of 1. with 2006, 16, filed charging appellant an information was January
On 3) and (count “Jenny” of molesting “Becky” child misdemeanor attempted molest to have attempted 6), alleged others. (count among March or between of eighteen years” who “under the age “[o]n “Becky,” 17, to molest to have attempted He was alleged and October 2002.” 2002 5,May or between years” was “under the age eighteen who “Jenny,” “[o]n for these his convictions contends 2003.” Appellant 2003 November within were not reversed because they prosecuted counts must be of limitations. statute one-year 647.6, (a)(1) Section subdivision is well taken. contention
Appellant’s under 18 years or molests child any who “Every annoys provides: person ($5,000), dollars a fine not five thousand exceeding shall be age by punished the fine or both by not one county jail exceeding year, by imprisonment rule, for an offense a general As “prosecution imprisonment.” [i.e., a in the state by prison misdemeanor] or imprisonment death punishable (§ commission of offense.” year shall be commenced within one after a misde for (a).) An exists for the exception “[p]rosecution subd. express committed with or or former Section 647a meanor violation of Section 647.6 [, within shall be commenced a minor under the of 14 age years upon which] (§ (b).) of the offense.” subd. three after commission years case, a three-year one-year the determination whether this elected how the prosecution of limitations is dependent upon statute applies in this case always The information the offense in the first instance. charge 3) (count (count “Jenny” “Becky” child molestation of alleged attempted the one-year 6); charged. Consequently, offense was never completed directly there is not case point, of limitations Although statute applies. have issues some related sentencing seems how this conclusion compelled McSherry in In re 324 (2007) 157 Cal.App.4th been resolved. For example, of limitations 518], statute three-year it was held that Cal.Rptr.3d [68 or molestation of annoyance “felony” to a for attempted applied prosecution 801, 647.6, (§§ conviction lewd act child under 18 age years prior however, the case (c)(2).) clear from the reading subd. It is lewd act convic had a prior because defendant statute three-year applied first instance. Based on tion, to a in the felony this misdemeanor raising (wob felony/misdemeanor if an offense is an alternative similar reasoning, limitations statute of bler) three-year as a initially charged felony, felonies without to the applies, regard ultimate reduction to a misdemeanor after the of the filing Court complaint. (People Superior (Ongley) (1987) 487]; Cal.App.3d (2002) v. Sillas Cal.Rptr. People [240 340]; Cal.App.4th see also Supp. Cal.Rptr.2d v. Soni [123 If, however, 864].) Cal.App.4th the initial is a charge but the defendant felony, misdemeanor, *16 is convicted of a included necessarily the limitation one-year for misdemeanors period v. applies. (People Mincey (1992) 822, 2 case, Cal.4th 408 388].) 827 P.2d In Cal.Rptr.2d this counts [6 reason, 3 and 6 were filed as misdemeanors. For originally this the convic tions on count 3 and count 6 must be reversed.
2. Denial Cocounsel Status Not Abuse Discretion of of contends the trial court abused its discretion in denying conference, for cocounsel request status. During pretrial appellant’s attorney that because requested is a licensed “appellant in the State of attorney California,” he should be cocounsel. Trial appointed counsel “In argued: case, of preparation this I received numerous boxes of an internal affairs that investigation was just overwhelming. He has done the [appellant] of that preparation part.” motion, the the trial denying court confirmed that “will be next to counsel the
sitting whole time and be able to discuss everything [his] with Correct?” At a subsequent hearing, [him]. renewed appellant’s attorney his motion for cocounsel status. He argued no would result if delay motion was granted, was better to cross-examine some prepared of the “1108’s” witnesses.
The trial court denied the renewed motion. The court noted that often in cases, criminal officer does not “do of the investigating any questioning and sits there with boxes of materials” but officer advises prosecutor, witnesses,” who is not “fully know all the as to “who prepared [does not] are, next, do,” the witnesses and who is and what we are to going including that need to be asked.” “questions Addressing appellant’s attorney, court stated: client is to be next to going sitting with this you “[Y]our cross-examination, information and be able to assist with you your your evidence, of if are to presentation your you and in going present any, refuting of the any evidence.” prosecutor’s trial,
“As as defendant is at long counsel he has no represented by absolute in his own right defense. v. Mattson participate personally (People 777, (1959) 937].) 51 Cal.2d P.2d While the Sixth 789 Amendment [336 counsel, both the guarantees and the right self-representation right defendant who elects counsel does not have a constitution representation by (1989) as cocounsel. v. Bloom 48 Cal.3d ally protected right appear (People v. Hamilton 698]; (1989) 48 P.2d Cal.Rptr. [259 730].) The court may P.2d Cal.Rptr. Cal.3d [259 in the discretion a defendant to actively participate exercise its and permit showing it substantial request of case. But grants presentation conduct be served and the justice ‘orderly expeditious the cause would (Mattson, supra, hindered. the court’s business’ would not be substantially Pena 797.)” (People Cal.App.4th p. A trial showing. defendant to make the 550].) requisite “The burden on the where the defendant further into matter court is not required inquire (Id. at p. 1302.) first offered the showing.’ has not ‘substantial [Citations.]” would serve the to show status ... a defendant fails cocounsel “Where there is no and would not result substantial justice disruption, interests discretion, the motion is properly for the exercise of the court’s basis (Ibid.) denied. [Citation.]” *17 trial court here its the that denying request
The did not abuse discretion in be no would Although significant delay as cocounsel. appellant appointed resulted, have failed to show his cocounsel status was necessary appellant status for some of or how such would attorney compensate inadequacy enhanced his counsel that had appellant have defense. Trial stated simply that “internal affairs involving investiga- of his defense prepared portion and was therefore “far more suited” than trial counsel to cross-examine tion” the witnesses of the because trial counsel would have to conduct 1108’s notes, trial had not read yet. examinations from which counsel did not not be Counsel claim that he would able to cross-examine these Also, was at the counsel table and effectively. going witnesses to sit appellant could assist trial counsel trial. during Right
3. Exclusion Statements Did Not Violate to Present Defense contends violated exclusion by defense was right present certain which were under state of statements admissible out-of-court trial, mind to the rule. We At hearsay disagree. appellant’s attorney exception chats the various e-mails. conceded in the online and sent appellant engaged defense, asserted was motivated by As his his conduct principal appellant law for his mistreatment against perceived during enforcement revenge affairs of him and that he did not in fact entertain the investigation internal Rather, were child molester state of mind. his online activities part requisite enforcement a “F—k their mind of his scheme back at law get playing which he officers who were on the Internet searching would game,” target child molesters and them on a chase.” merry “lead trial, investigation counsel what of the internal part asked During one and that him angry, “Essentially only part, made appellant responded: was When investigation.” asked that why [H.H.’s] made him he part angry, I replied; “Because reviewed a of an who transcript eyewitness was present.”3 After the court sustained the prosecutor’s to the hearsay objection content of offered, that transcript, to state goes of mind as to he why . . . “[I]t The court ruled that angry.” could that “he say disagreed whatever. He doesn’t have to what say said. That they calls for We hearsay.” First, agree. the statement of the eyewitness does not for the state of qualify rule, mind to the exception hearsay as statement has to do with nothing Second, the eyewitness’s state of mind. statement eyewitness’s has no relevance to the case. The offer of was that the statement proof of the made eyewitness him The angry. content of that precise statement was not relevant to the work of the in this case and jury the trial properly rejected by judge.4
4. Admission Bubble Bath Hearsay Not Receipt Prejudicial contends the trial court admitted inadmissible hear- prejudicial say, evidence of a namely, sales found in his vehicle.5 We conclude receipt trial, admission of this evidence was not prejudicial. During prosecutor reflected, evidence proffered of a sales receipt pertinent part, bubble bath soap bought January at 1:41 at Bath and p.m. Works, a Body store in the Fashion Center. Northridge Appellant objected that the receipt inadmissible because hearsay, no custodian of records was called to testify, of the prerequisite business records exception. trial court overruled the objection. This was error. “Except provided by *18 law, Code, 1200, (Evid. evidence is hearsay inadmissible.” (b).) subd. The § relevance, sales memorialized certain out-of-court receipt statements whose if and, thus, in the truth of the any, grounded matters asserted are they hearsay. 3 In response questioning, to further testified that in 1995 an interview was C.C., sister, eyewitness conducted of and H.H.’s taped. Appellant which was felt C.C. could “[njumerous clear him. He unsuccessfully testified that he had tried subpoena times” to her for trial. 4 exception hearsay “The state of mind to the rule is found in Evidence Code section 1250. 1252, ‘(a)
That section provides: Subject to Section evidence of a statement of the declarant’s mind, emotion, intent, existing then physical (including state of or sensation a statement of motive, plan, design, health) feeling, pain, bodily mental or by is not made inadmissible (1) mind, hearsay rule when: prove The evidence is offered to HQ declarant’s state of emotion, physical any or sensation at that time or at other time when it is itself an issue in the action; (2) prove or The evidence is explain offered to or acts or conduct of the declarant. HQ (b) This section does not memory make admissible evidence of a statement of or belief to HO ” 814, 822, (People v. Garcia prove (1986) the fact remembered or believed.’ Cal.App.3d 178 198].) fn. 6 Cal.Rptr. [224 Const., (U.S. Amend.) process forfeited his federal due objection 14th now urged (See, e.g., People appeal by making objection (1996) on v. Alvarez this at trial. 365]; (1992) v. Fauber Cal.Rptr.2d Cal.4th P.2d [58 2 Cal.4th 249].) 831 P.2d [9 “[ejvidence of a business record exception,
Under the known commonly condition, act, not made or event is a record of an made as writing act, condition, or rule when offered hearsay prove inadmissible business; of a in the course (a) regular event if: The was made writing [f] [f] event; condition, act, at or near the time of the (b) The was made writing [1] (c) custodian or other qualified witness testifies to its identity and the and method (d) The sources of information mode of its preparation; [f] (Evid. indicate its trustworthiness.” and time of were such as to preparation Code, 1271.) § recitals was
The trial court erred in
evidence of the sales
finding
receipt
to the
rule because
hearsay
admissible under the business record exception
in lieu of the custodian
Osborne was not a
witness”
Agent
“qualified
witness.
of the Bath and
Works business or some other
Body
qualified
records
falls,
makes no
whom the burden to establish
Respondent, upon
exception
rather,
is the
out his
the thrust of its position
attempt
spell
“qualifications”;
“common,
the sort com-
sales
receipts
“identity”
computer-generated
retail establish-
large
handed to customers at check-out
monly
points
ever
...
who has
knowledge
virtually anybody
ments
is such common
no
in a
.
.
.
.”
cites
store
purchased anything
‘qualified’
Respondent
“common
knowledge”
for this novel
applicable authority
presumption
decline to create one.6
store sales
we
receipts,
of the Bath and
Works sales
evidence
Although
Body
receipt
admission
error,
this error was not
A result more favorable
prejudicial.
(People
excluded.
would not have ensued if that evidence had been
probably
Watson
243].)
note that no
46 Cal.2d
P.2d
We also
$107.09
made to
earlier
about the
Agent
testimony
Osborne’s
objection
Source,
Water,
a store on
sales
from
But
the Swimwear
receipt
Everything
Boulevard,
for a
bikini at
Canyon
January
2:29
Topanga
two-piece
p.m.
with the bikini and
along
before his arrest. This
day
receipt
bubble bath were found
the search of his vehicle’s trunk
during
upon
arrest.
*19
6
707, 709,
676,
People
v. Maki
(Cf.
(1985)
Cal.Rptr.
Cal.3d
717
probation revocation reliability regarding exception hearsay may rule be admitted if . . . sufficient indicia of material,” signature invoice namely, printed “identification of defendant’s proffered by billing payment of type upon parties and the fact that it is an invoice of relied emblem, money” [apparently typical with a Hertz the invoice was one “[i]mprinted a] business, of issue by transacting place utilized Hertz in and it contained internal evidence of its Dorsey defendant”]; (1974) People v. signature by 43 to which had been affixed an identifiable officer, records, 953, testifying as custodian of Cal.App.3d Cal.Rptr. 960-961 [118 362] [bank regular albeit maintained the bank in the course of business authenticated records as those statements].) omitting testify regarding and preparation mode of bank 5. Prior Bad Acts Evidence Admissible on Motive and Intent contends the trial court committed reversible error
Appellant by admitting, 1108, acts, under Evidence Code section evidence of bad his which prior were both irrelevant and No error or abuse of discretion occurred. prejudicial. trial,
Prior informed the court he to evidence objected from H.H. and L.S.7 In the trial court ruled overruling appellant’s objection, “the value effect” of evidence probative outweighed prejudicial allowing bad acts. some of the matters Although acknowledging appellant’s prior remote, seemed to be the court when viewed all explained together, they revealed “an continued and the conduct conduct after that ongoing subsequent of the with females . . . .” stalking having underage relationship
The cross-examined the internal affairs prosecutor appellant regarding She mentioned that L.S. stated “French investigation. 17-year-old her, kissed” and the asked When asked if prosecutor appellant, you?” “[D]id L.S., he had had a in the dating relationship appellant responded affirmative but added he at the old time and incident years occurred 20 He also answered that he told the internal affairs year ago. L.S. was 18 old at that time. investigators years raised for the first time on to the objections testimony appeal D.B., Frank, J.H., Police Officer cadet neighbor’s daughter Jay police D.B., Frank,
Isabel Rivas. has forfeited claims of error as to any Rivas, and J.H. to make a on the objection grounds urged by failing timely 489, (See, (1992) for the first time on v. Thomas Cal.4th e.g., People appeal. 101]; (1991) Cal.3d 828 P.2d v.Morris Cal.Rptr.2d People 519-520 [7 949].) 187-188 807 P.2d Cal.Rptr. [279 merits, on the claims of error as to this evidence as to Additionally, are evidence was both highly these witnesses unsuccessful. challenged intent, issue, which and the trial motive were probative evidence more court’s determination that admission of such probative not an of discretion. than abuse prejudicial v. Falsetta 21 Cal.4th 182], held of evidence regarding P.2d our Court admission Supreme Code to commit a sexual offense under Evidence
a defendant’s propensity to due right section 1108 does not violate the defendant’s constitutional “In enacted section Legislature of law. The court explained; process B.P. in this challenging concedes he is not the evidence as to H.H. or appeal, appellant On *20 context.
1315 in sex evidence or propensity the admissibility disposition 1108 expand that (a) pertinent part of that section provides Subdivision offense cases. offense, of a sexual is accused the defendant criminal action in which ‘In a or offenses offense of another sexual commission evidence of defendant’s 1101, is not inadmissible if the evidence Section by is not made inadmissible weighing evidence on court to exclude to Section 352 pursuant [permitting ” Falsetta, 911.) (People v. p. impact].’ value and prejudicial probative 1101, section in section the restriction on character evidence removing “By evidence of cases to consider in sex offense . . . now the jury 1108 ‘permit[s] to the relevant [citation], only any subject purpose’ offenses prior section by required value weighing process effect versus probative prejudicial 500, 505 Britt (2002) Cal.Rptr.2d 104 Cal.App.4th (People [128 352.” v. 290], in original.) first brackets section under Evidence Code to evidence is raised
“When an objection 352, value against the trial the evidence’s weigh probative court required confusion, time Unless and undue consumption. dangers prejudice, value, must be the objection these dangers ‘substantially outweigh’ probative for abuse of discre overruled. On is reviewed ruling appeal, [Citation.] 585, Cudjo (1993) v. 6 Cal.4th (People Cal.Rptr.2d tion. [25 [Citation.]” 390, 635].) P.2d determining
The trial court did not abuse its discretion probative from its admission. of this evidence outweighed any prejudice value potential time or of confusion of no of undue “There was danger consumption emotional bias not of a sort likely issues. The evidence was provoke the basis of the issues upon or to cause against party jury prejudge 1055, 1070-1071 v. (See (1996) 13 Cal.4th People Minifie extraneous factors. 133, Code section the context of Evidence P.2d Cal.Rptr.2d [in [56 1337] emotional that would evoke an evidence is evidence unduly prejudicial Zapien (1993) one Cal.4th against bias party]; [17 used in Evidence Code section 846 P.2d Cal.Rptr.2d [‘prejudice’ 704] factors].)” of extraneous 352 refers to the harm of on the basis prejudging P.2d v. Jenkins (People 22 Cal.4th 1044].)
6. No Prosecutorial Misconduct Shown when misconduct contends the committed prosecutor prejudicial evidence, vouched not based on the she
“she were arguments presented while he and she was rude and abusive for her own credibility, forfeited some of . . . .” We conclude appellant was on the stand [witness] and, merits, has on the no misconduct prosecutor misconduct claims been shown.
a. Governing Legal Principles
“ ‘A who prosecutor uses or deceptive methods reprehensible misconduct, persuade jury commits and such actions reversal require “ under the Constitution when infect the trial with they such ‘unfair federal ” ness as to make the conviction resulting a denial of due process.’ [Cita law, Under state who uses prosecutor tions.] deceptive reprehensible methods commits misconduct even when those actions do not result in a unfair fundamentally trial.’ ‘A defendant not may complain [Citations.] [][] fashion, misconduct appeal prosecutorial unless in a timely on the same ground, defendant objected to the action and also that the requested be jury admonished to disregard perceived impropriety.’ [Citation.]” v. Lopez (2008) Cal.4th 965-966 175 P.3d 4].)8
b. Prosecutor Made No Comments on Facts Not in Evidence contends the committed misconduct prosecutor facts by arguing not in evidence by making (1) remarks about improper relation- appellant’s office; with the (2) district ship attorney’s from the Glendale separation date; (3) Police Department; (4) bubble bath purchase sexual harassment suit against (5) of Glendale and City appellant; dating L.S.; relationship not as an appellant testifying On expert. merits, the misconduct argument well taken. While a prosecutor evidence, commits misconduct when he or she facts argues not in the record does not claim the support appellant’s facts outside the prosecutor argued evidence presented. with the District
Relationship Attorney’s Office. In addressing about sex crime knowledge investigations, appellant testified, identified certain documents as manuals.” He then “[p]olice training Office, “When I was in the D.A.’s . [gave] me . . .” At this they juncture, but finished his sentence what prosecutor objected, by identifying him were “D.A. manuals.” The that given training objected prosecutor “was never in D.A.’s Office. He was a liaison officer stationed in the Glendale Office.” The court sustained the objection. object alleged “A defendant whose counsel did not at trial can prosecutorial misconduct argue on that appeal right counsel’s inaction violated the defendant’s constitutional to the record, however, appellate rarely effective assistance of counsel. The that the shows failure object incompetence; generally, appropriately was the result of counsel’s such claims are more
litigated evidentiary hearing corpus, on habeas which allows for an where the reasons for (People Lopez, supra, explored. defense counsel’s actions or omissions can be [Citation.]” 966.) attorney at p. respect. Cal.4th here does not claim his was ineffective in this “tries to say to the argued jury
The prosecutor subsequently a liaison officer stationed he was reality, of the D.A.’s office. he was part *22 outside the remarks were not The D.A.’s Office.” prosecutor’s the Glendale own earlier from comments drawn appellant’s and constituted fair record court Department’s that he as testimony “assigned Police] was [Glendale Glendale D.A.’s Office office in the officer where had liaison a[n] [he] of cases there.” filed thousands five years [and] Police Department. Glendale Separation from made in three contexts: “fired” were being The remarks regarding appellant he was First, with whom alerted him that persons in what describing officers, in testified the used language were appellant online chatting police such and he was familiar with to certain lingo the chats was similar police The stated objected “I it to trainees.” my prosecutor because train lingo, Second, while examining appellant “was fired and had no trainees.” to gain expertise, the individuals he had trying profiling about spoken asked, or after were fired from was this before you the prosecutor “[A]nd subse- The third instance transpired Glendale Police Department?” [the] at the and testified anger when was his explaining police quently cleared him. The prosecutor there existed a document whose effect he thought him. He was clearing I object will responded, “Again, speculation The trial “was never fired.” attorney fired.” Appellant’s responded appellant court sustained the objection. at Sergeant Lardy testified on cross-examination that a
After appellant children, the involving him information about investigation some point gave “Q. And was this before without following objection: colloquy transpired A. I was never after were fired from Glendale Police you Department? [the] fired, to leave? A. I was or after were an Q. given option ma’am. Before you the middle of a civil service Q. ma’am. You were in never an given option, offer, took the said you you reluctantly where were hearing you given fired, it and be Q. through A. correct. It was either that or go offer. That is No, notice; ‘removal,’ ma’am.” final correct? A. as marked on your of a Glendale Police Department also testified he was subject leave” disability “essentially and was offered medical internal investigation entitled to The was and he “reluctantly” accepted. prosecutor the department, from infer although involuntary departure from the above testimony disability,” under the of a “medical guise department Nonetheless, direct evidence that appellant in the absence of was fired. reality and, this comment was gratuitous “fired” from the department, was in fact However, this thus, made. we conclude statement not have been should harmless and therefore not prejudicial.
Bubble Bath Purchase Date. cross-examination, During showed sister the prosecutor appellant’s bottle of bubble bath found in car his arrest. After upon she denied when it was knowing bought, stated it was prosecutor bought 1:41 p.m. 2005. The defense that the January objected prosecutor rather, The court did not rule on the testifying. it objection; if simply inquired there was a question her comment pending. prosecutor was a responded asked, to a She then preface “So that the question. knowing bottle was bought 19th, a of hours before January couple brother called your you pick up ; P.M., . . . correct? [son]—your 1:41 nephew hours before couple *23 called Correct?” [appellant] you; sister “I so if Appellant’s guess responded, that is what the says.” contends the receipt prosecutor’s comments about the date the when bubble bath was referred to facts not in purchased date, evidence. He also contends after his denied sister the the knowing the prosecutor comment “for no repeated because his apparent purpose,” had sister else to on nothing say that subject.
The record refutes this misconduct claim. The which purchase receipt, included the date and time of had been into evidence already purchase, placed Further, the of through testimony Agent Osborne. the although prosecutor the date and time on the repeated her comment was of the receipt, part above, to her next As discussed admission preface question. of bubble error, error, bath and the receipt comments this prosecutor’s emphasized however, albeit not to the of The cannot be prejudice appellant. prosecutor, faulted for asking based on evidence that was later found to be questions inadmissible an by court. appellate with L.S.
Relationship uniform, while in had once L.S. for Appellant, police driving stopped without He contends night headlights. prosecutor improperly placed before the about with L.S. when jury hearsay dating relationship kissed, kissed, she asked tells us French did appellant: you you?” We “[L.S.] out to this on the of not point appellant objected ground hearsay, question misconduct. prosecutorial
Appellant’s Knowledge Profiling. of case, the defense During regard- appellant’s attorney questioned appellant his and how he knew he was online with ing knowledge profiling chatting officers as children. Before he could underage posing respond, prosecutor informed the court that was not as an witness. The testifying appellant expert court then clarified was in fact his own testifying regarding opinion on training his with: “Based began my
of profiling. Appellant response stated, officer, “I my a law enforcement . . . .” prosecutor as experience He an to is not an as a is not commentary. expert cop. expert object[] I object He is as to what he believes .... as anything. testifying [to] then The trial court sustained commentary.” objection. that he had to his personal understanding profiling allowed as testify in Narcotic Officers’ been trained California previously profiling Association. claim, did not commit misconduct
Contrary to appellant’s prosecutor been had not was not by stating testifying expert. Appellant witness, nor was a foundation laid regarding as an designated expert Code, (See, as an Evid. e.g., qualifications testify expert profiling. § (a).) sustaining subd. The trial court therefore did not err in the prosecutor’s event, able to because he was objection. any prejudiced, his law enforcement present jury background profiling.
c. Failure to Object remarks, Of the six assigned appellant objected instances improper instance, namely, the remarks of the as misconduct one only prosecutor *24 the while when referred the time was in D.A.’s office” I “[w]hen ac- testifying about his of sex crime knowledge investigations. Appellant not to “each and remark made knowledges object [challenged] he did every the” where she referred to not in evidence. He contends by prosecutor facts time, have he was excused from each because such would objecting objection did been futile of the court’s of the he overruling trial light objections and make because no where the necessary also objection “prosecutor’s of remarks which the the constitute jury passions prejudices inflame[d] . the of curable . .” We are not sort misconduct is not admonition . by persuaded. the no and admonition in why makes as
Appellant showing objection merits, chal- have been On the the remaining four instances would futile. remarks the either did amount or did not rise to lenged misconduct level of the the therefore jury. of inflaming passions prejudices Appellant no as to the instances where he made has forfeited his misconduct claims four misconduct claim the comment He also forfeited his objection. regarding her, he about L.S. French kissed because failed to obtain saying appellant ruling his objection. Showing Vouching Credibility No Own
d. Improper of of for her own contends prosecutor improperly “vouching . . . she stated three times that she was credibility when representative the State of contends, California in front of the jury.” “The clear of this implication comment is that aas of the state she representative has a above that credibility of a defense attorney.” record,
After a review of the we conclude there was no improper vouching Rather, by prosecutor. reference prosecutor’s to herself as a represen- tative of the State of California was made in the context solely of rehabilitat- witness, ing context, which is Viewed in proper. occurred: following N.N., during cross-examination of that the attorney implied prosecutor to N.N. that suggested her molestation transpired her 16th prior birthday. examination,
On redirect the prosecutor asked N.N. what she said when the asked prosecutor her at the when preliminary hearing she in the chat engaged N.N. appellant. that she responded said “I was 15.” N.N. confirmed that this “came out of mouth first.” When the prosecutor began [her] her next “[N.N.], I, question: have as a of the representative of the State of People California,” appellant’s attorney “to the objected commentary.” prosecu- tor denied it was a commentary stated she was “a of the representative of the State People of California.” After the court overruled the objection, me, prosecutor asked: “Have you ever heard from as a representative California,.. of the State of . tell you what to when are say you court?” N.N. “No. You responded: told me to tell the truth.” This is not an example vouching was not examination the district improper attorney.
e. Prosecutor Not Abusive or Manifestly Rude misconduct, contends the committed prosecutor be- prejudicial cause she was both rude and abusive towards him while he was testifying *25 to what he intended to ifdo in fact was a “Hope” and how 13-year-old girl knew appellant was a officer. He “RunawayGirlM” asserts from police “apart the demeanor of the it is clear that the line of prosecutor, itself questioning was abusive.” Based on an examination of the record we find no abuse or manifest rudeness. cross-examination,
During the asked: “If had prosecutor been [“Hope”] old, did year have travel you arrangements how were you—what you “Yes, to do with her?” going I was aware Appellant responded: from my prior . . . .” The trial court sustained the experience prosecutor’s “nonresponsive” answer, When asked objection. for or no” “yes said When appellant yes. her,” asked were again to do with you going appellant responded: “[w]hat “Greyhound is a corporate sponsor 1-800 At that the Runaway.” point, made another prosecutor “[n]onresponsive” objection. Appellant’s attorney “The answered, counsel, She if quit yelling.” replied, told “He just you her: then for.” is a sponsor Appellant was not what Greyhound corporate question to a free ride back her Greyhound “I was to turn over going testified: that she needs.” counseling where she the belongs get 14,” the “RunawayGirl or cross-examining “Hope,” regarding officer. certain was a Appellant asked if he was “Hope” police prosecutor asked, went The “Before you what in time?” responded: “At point prosecutor time, “At what in point her. Yes no?” go replied: meet or the to answer ma’am?” asked the court to admonish appellant The prosecutor the then asked the court to admonish attorney prosecu- question. Appellant’s Instead, the to “answer the tor “to court directed yelling.” quit her, meet were it was a [sic] you police Before went to certain you question. officer?” the shows that trial the court admonish record counsel requested the allegedly “yelled” to stop yelling. Although prosecutor
prosecutor instances, both it is from the record whether this means in unclear screaming the her or that she was at appellant. raised voice prosecutor simply Based There was no confirmation from court that occurred. “yelling” us, court on the cold record we cannot infer the trial deemed before admoni- warranting tone of but not reprehensible, voice prosecutor’s tion or We therefore conclude the was not abusive sanction. prosecutor rude towards manifestly appellant.
7. Counts 1 and 10 Evidence by Ample Convictions Supported contends the evidence his convictions is insufficient support counts and 10. We find evidence ample.
a. Standard Review “A court a claim insufficient faced ... reviewing evidence] [of ‘whether, most after the evidence favorable viewing light determines found rational trier of fact could have the essential prosecution, any We examine of the crime reasonable doubt.’ beyond elements [Citations.] reasonable, the record to determine ‘whether it shows evidence of fact could find credible and of solid value from which a rational trier Further, ‘the beyond appel- defendant reasonable doubt.’ guilty [Citation.] *26 of fact the late of the the existence every court presumes support judgment from evidence.’ This standard reasonably trier could deduce the [Citation.] it is evidence ‘Although whether direct or circumstantial is involved. applies the to a defendant if it finds the circumstantial evidence jury’s duty acquit suggests guilt of two reasonable one of which interpretations, susceptible 1322 innocence,
the other it the the not court that be jury, must appellate “ of the convinced defendant’s a guilt reasonable doubt. ‘If beyond [Citation.] the circumstances trier reasonably the of fact’s the of justify findings, opinion reviewing court that circumstances also recon might be reasonably ” ’ ciled awith does not a contrary finding warrant reversal the judgment.’ 81, 31, (People (2001) v. Catlin Cal.4th 26 [Citation.]” Cal.Rptr.2d [109 357], 26 P.3d fourth brackets in original.)
b. Count (“Hope”)
An to commit a lewd a intent attempt upon act child both an requires arouse, to, lust, to or “the appeal or sexual gratify passions, desires [the or the (§§ (a), 664) child” subd. “and ... direct if possibly defendant] words, ineffectual toward that other he violate step goal—in to attempted (1995) section v. (People 288.” Memro Cal.4th Cal.Rptr.2d [47 “ 1305].) 905 P.2d mere such ‘Although preparation planning commit crime mere intention to is insufficient to constitute an attempt, certain, acts which indicate a intent commit unambiguous that specific crime, and, themselves, are an immediate in the execution of step present the criminal will be sufficient. design Jones (People v. [Citations.]’ [Citation.]” (1999) 485].) No clear marker Cal.App.4th Cal.Rptr.2d [89 that merely divides acts are from act. initiating those the criminal preparatory Nonetheless, “the more intent commit the offense is . . . clearly shown ‘the more that in the likely stages of the commission of the crime steps early ” will (Hatch overt act of an satisfy requirement’ Superior attempt. 453], Court 187-188 citations Cal.App.4th omitted.) contends his conviction on count 1 of lewd
Appellant act attempted upon vacated, evidence, best, child be must because the showed he took only a lewd act on and that mere steps prepare committing “Hope” to commit a crime is insufficient to preparation he to commit prove attempted the crime of lewd act a child. “the contends facts clearly upon show had where not reached had ended and stage preparation [he] begun, crime so as to make the The record refutes attempt complete.” contention that his actions were appellant’s simply preparatory. does not contest the fact he drove to the bus station where he to his devious does
expected “Hope” pursuant plan. appear condoms, that, arrest, bikini, the fact and bubble challenge Viagra, upon items, trunk. bath were discovered in his are presence these which consistent with online chats with charged appellant’s sexually “Hope,” had meeting the fact he the bikini before his bought anticipated shortly act show intent out his intended lewd strongly carry “Hope,” more was upon Nothing necessary. “Hope.”
1323 because there was no attempt, position We find appellant’s unpersuasive stage.” at were still in the Specifically, “the the bus station preparation events rather in the but depot” to have sex with Hope he “was obviously going hotel,” no had to a prearrangements “would have had to have taken her ... or else “to son up a hotel room for someone pick been made for words, the would have the law require Santa Clarita.” In other with “Hope” to watch until he entered hotel room idly actually police The law is otherwise. molesting his clear-cut child intent. carry out ‘“ toward commis- moving criminal acts directly “Applying culpability it makes it safeguard society crime ... is obvious because sion of an the actor has done the intervening wait until unnecessary police before conduct be to be It allows such criminal sought prevented. substantive evil it intention is or when becomes clear what actor’s stopped intercepted actually plan that the is perpetrator putting when acts done show (2002) 97 v. Herman (People into action.” [Citation.]” [Citations.]’ 199], v. Dillon quoting Cal.App.4th 697].) (1983) 34 668 P.2d Cal.Rptr. Cal.3d 453 [194 (N.N.) c. Count 10 count of a lewd act a child challenges his conviction on upon did not establish N.N. was years ground
who was old on the evidence trial, At N.N. under at time the molestation. We age disagree. she bom was and half’ years testified on December “17 J.H., church, was old at the time of trial. N.N.’s friend from She N.N. and 16 old at daughter years sister’s was older than stepdaughter. the time of N.N.’s online chats with appellant. had had with N.N. out chat she May sexually printed explicit saved, she which was marked as only People’s This chat
appellant. online, when with she exhibit 79. N.N. remembered that she chatted she was to show N.N. exhibit years announcing going old. After “to if asked N.N. look that and tell me that prosecutor packet accurate reflection of at least one of the chats that had you [appellant] old, “Yes, it is.” She then when were 15 on-line?” N.N. years responded: you occurred, were old.” confirmed “these chats when again, years [she] [sic] asked, chats, 15,” were N.N. When “in those did tell you [appellant] you in the 10th these grade during “Yes.” She testified she was replied, chat in exhibit 79 described chats. N.N. further testified the transcribed *28 masturbate, that she appellant’s request which she did. She testified the chat in occurred 2004.9 September cross-examination,
On N.N. testified her chats with began in and she “turned 16 in September December.” She believed “about half of the chats in December. The in happened” chat exhibit 79 was last the she had with appellant.
The record thus reveals N.N.’s testimony when the exhibit regarding chat occurred how old she was at that time was conflicting. jury, fact, conflict, trier of was entitled to resolve this which the did in jury 15, old, N.N. was not finding at the time. years 8. No Violation Shown Cunningham contends the trial court committed reversible error sentencing consecutive
imposing sentences and the term on count 1 in violation upper of Cunningham. No Cunningham violation occurred. The trial court sentenced months, to for the prison total term of five years eight consisting 1; the months, term four-year on count upper four or one-third the 12-month term, 2, 4, 8; months, middle on of counts one-third each and eight 24-month middle term on count 10. The court also sentenced him to six 3, 5, 6, in months county “[cjount counts and 7 and announced jail 9 will be 654 . stayed pursuant . . .” [section]
a. Cunningham Inapplicable Consecutive Sentencing
In (2007) 569, v. Black 41 Cal.4th People 799 [62 (Black II), P.3d our Court held Supreme Cunningham 1130] inappli (Id. cable to 806.) consecutive in California. sentencing The court p. terms, “In whether to explained: deciding consecutive the trial court impose factors, consider may aggravating and but there is no mitigating requirement that, terms, in order to justify of consecutive the court find that imposition 669; Court, an (See circumstance exists. aggravating Cal. Rules of rule § term, 4.425(a), (b).) Factual are not findings required. imposing upper N.N. Respondent stated testified the exhibit chat in “September occurred 2005” she years clearly because did turn 16 old not until “December offense when years occurred the victim was 15 old." reply, appellant points In his out “[N.N.] 21, 1988,” arithmetic, bom “[c]ontrary respondent’s on December and thus this would have in caused her to turn 16 December she September would have been 16 on 2005.” That is correct of no him. Respondent’s September comfort references to 2005 and December 2005 no are simply typographical doubt errors. N.N. testified the chat transpired “September" year years and the indicated 2005. She was old in argument, prosecutor December 2004. In pointed September final out “it was in 2004 that occurred, that chat was 15.” [and N.N.] (b)), (§ and reasons’ subd. the record ‘facts court must set forth on to be circumstances deemed facts that court ‘ultimate
including cite Court, only it need 4.420(e).) But (Cal. rule Rules aggravation.’ and the reasons (c)), (§ choices subd. sentencing for other ‘reasons’ refer only ‘primary sentence need a consecutive imposing given (Cal. such a sentence. the decision to impose factor or factors’ that support v. Tran Court, (c); see 4.406(a), (b); subd. Rules of rule § *29 759, 905].) 47 Cal.App.4th 774 Cal.Rptr.2d [54 into the not call Cunningham question “The court’s decision in does high The consecutive sentences. we reached regarding conclusion previously be in this manner sentences should served determination whether two more made the after the has jury made the by judge is a ‘sentencing decision[] maximum the to the statutory defendant findings factual necessary subject to a right the defendant’s and does not sentence on each offense’ ‘implicate[] an offense.’ of elements of that are the functional equivalent trial facts jury [1238,] ([People Black [(2005)] 35 Cal.4th 1264 [29 v.] II, 822-823.) (Black 41 Cal.4th 534].)” supra, 113 P.3d pp. Sales, II, (Auto Equity in Black
In
to the above
as we must
adhering
holding
Inc.
Court
v.
369 P.2d
Superior
57 Cal.2d
455
Cal.Rptr.
untenable,
937],
the
that
contrary
we
as
reject,
position
violated Cunningham.
in
of consecutive sentences
this matter
imposition
Term Not Violative
b.
Upper
Cunningham
of
Cunningham by
the
contends the trial court violated
imposing
found true
the
four-year
by
term on count 1 based on facts not
upper
jury.
a
of
lewd act on
child
charged,
convicted
jury
appellant,
attempted
(counts
(count 1
harmful matter
8
sending
(“Hope”)); attempted
[no
victims];
(counts 3
[“Hailey”],
child molesting
[“Becky”],
attempted
[N.N.]);
act
(count
and lewd
[“Sammy”]);
child
[“Jenny”],
molesting
for
total
(count
[N.N.]).
to prison
child
sentenced
upon
the court
found no
five
In
years eight
denying probation,
of
months.
circumstances.
circumstances and discussed various
mitigating
aggravating
1. How
court
the
term on count
four-year
The trial
imposed
upper
ever,
the trial court was justified
because
Cunningham
transpired
no
violation
the
in
term.
selecting
upper
in
on the
circumstance
relying
multiple-victim
victims,”
stated:
People pointed
With
court
regard
“multiple
“[A]s
out,
but all
your family,
are a
of victims in this case. Not only
there
number
I
these crimes.
you
that were victimized by
during
the victims
[][]...
[f]
case,
of which were undercover
have in this
most
know the victims
we
officers. But one was not an undercover
officer.”10 We conclude
although
victims
multiple
no longer expressly
enumerated
as a circumstance
Court,11
in the
aggravation
California Rules
of
existence
multiple
victims continues
to be
valid aggravating circumstance
that would support
4.408(a)
of the
term. Rule
imposition
upper
provides: “Enumeration
these rules
some criteria
the making of discretionary
sentencing
decisions does prohibit
of additional criteria
application
reasonably
related to the decision
made.
being
Any such additional
criteria
be
must
stated on
(Italics added.)
the record
sentencing judge.”
Calhoun,
v.
People
supra,
Cal.4th at
Court
page
Supreme
our
resolved
issue
“whether an
affirmatively
term sentence
be
may
upper
based
victims’
imposed
upon
aggravating factor if
victim
‘multiple
only one
Sandoval,
supra,
(But
was named in each
see
count.”
family, by you during but all the victims that were these crimes. victimized of really I many go “And don’t think we know how are there. could as victims out It back far as 1991. case, know we “I the victims that have in this most of were But which undercover officers. (Italics added.) one not an undercover officer.” 11 January All further rule references are to Court. California Rules of Effective victims,” “multiple aggravating had which been listed as an in former rule circumstance 421(a)(4), Advisory explained was deleted. The Committee comment it “was deleted to avoid confusion; possible frequently cases which that reversed circumstance was relied were only single in a particular because there was victim count.”
1327 conclusion, that some of the relies on the fact For a contrary or been “harmed could not have were not “real and therefore victims people” a difference. We this to be distinction without some find injured way.” harm or absence of actual is not lessened Appellant’s culpability victims, act to these which attempted He was convicted of lewd injury. be harmed or injured. the victim does not as an element require not, not, into do delve further we need and therefore Additionally, (See, authority. e.g., citation to urges which he without applicable point, P.2d People Stanley (1995) Cal.4th Cal.Rptr.2d [42 with citation brief should contain legal argument ‘[E]very 481] [“ on a particular point, on the made. If none is furnished authorities points waived, consideration. treat it as it without may [Citations.]’ court pass [Citations.]”].) Stay Remand Execution Sentence Imposition
9. count the trial court did sentence on 9. At sentencing, pronounce Rather, will be stayed pursuant the court announced simply “[c]ount committed . . . .” As the the trial court acknowledge, parties [section] on count unauthorized error first to sentence sentencing by failing pronounce be and then execution of that sentence. The therefore must stay judgment reversed and the matter remanded with directions for the trial court to correct v. Scott this generally (See error. 9 Cal.4th sentencing fn. well ... the court 885 P.2d settled 1040] [“It acts in an ‘unauthorized’ sentence ‘excess of its jurisdiction’ imposes when it fails to execution of a sentence under section erroneously stays stay *31 654, 873, v. Miller 654.”]; People (1977) 18 Cal.3d 886 Cal.Rptr. [135 convictions, sentencing 558 P.2d a defendant suffers multiple 552] [“When 654, for an some of which is of section acceptable precluded operation of is to for each count and execution stay sentence defendant procedure sentence certain the convictions to which section 654 is applicable.”]; on of 255, accord, 585, (1998) 18 Cal.4th People v. 591-592 Deloza Cal.Rptr.2d [76 945].) P.2d 957 Imposition Security
10. Remand Court Fee of any $20 fee The trial failed to court mandated security court impose 17, 1465.8, (a)(1), August under section subd. which became on operative (2007) P.3d 2003. In v. 171 Cal.Rptr.3d Cal.4th 749 [68 Alford 32], this Court held the fee to crimes committed to prior our Supreme applied bar of retroactivity date and that such did not violate either the application ex facto laws. section or the federal and state proscriptions against post “ 752.) Alford, at Such fee is mandated as to (People ‘every convic p. ” (Crittle, tion,’ supra, if the sentence on a conviction was stayed. even 370-371.) Cal.App.4th pp.
As the parties the acknowledge, trial court erred in failing impose $20 $20 court fee. A security court fee security was mandated for of each convictions, appellant’s on although (§ 654), sentence count 9 was stayed 3, 4, and his crimes in counts (committed and possibly between “[o]n May 2003”) 2003 and November were committed to its prior opera tional date. the abstract of Respondent proposes should be judgment modified to reflect the $20 court security fee for the (an each of 10 convictions is, $200). course, of “It of aggregate important courts correct and errors omissions in abstracts of An abstract of judgment. is not the judgment conviction; of judgment it does not control if different from the trial court’s oral judgment add to or may modify the it judgment purports (People v. Mitchell digest or summarize. (2001) 26 Cal.4th [Citation.]” 1040].) 26 P.3d it is the Accordingly, judgment that must be modified to reflect imposition aof court security fee the aggregate $160. amount of abstract shall be amended judgment to reflect judgment so modified.
DISPOSITION sentence is Appellant’s (1) reversed with respect convictions 9; counts (2) trial court’s failure to impose appropriate sentence on sentence; count 9 and then execution of that stay court’s failure to $20 court fee on each impose security eight convictions, $160. aggregate amount The matter is remanded with directions conduct further consistent with the proceedings views expressed in this In all other opinion. respects, judgment affirmed. The superior court is directed to an amended prepare abstract of to reflect the judgment as corrected. judgment J., J.,
Rubin, Flier, concurred. RUBIN, J., first, I writethis concurrence for two reasons: Concurring. I explain why in the reversal of join majority’s convictions under *32 and counts 3 6 for misdemeanor molestation of a minor under 14 attempted old; second, and years to call to the attention what Legislature’s may have been an when it modified the oversight statute of limitations for certain crimes, an the to oversight Legislature may wish correct. Code,
The statute of is year. (Pen. usual limitations for misdemeanors one 802, (a).)1 letting subd. contends the trial court erred in the jury § (count 3) convict him of the misdemeanor molestation of attempted “Becky” 1 statutory All future references are to the Penal Code.
1329 charges against did not file those (count 6) because the “Jenny” People and acknowl- commission of the offenses. year him within one of his 802, limitations for (b) the statute of subdivision extends section edges 14 old to three years. a minor under years misdemeanor child molestation of contends, however, the does not to apply that extension three-year to commit those crimes. attempt is I he correct. reluctantly agree First, contention. me to Several legal principles compel accept successfully from a crime is a offense separate the to commit attempt 1281, Reed v. (People (2005) 129 same crime. Cal.App.4th completing commission statute [sentencing mentioning 1283 Cal.Rptr.3d [29 215] an is “attempt did because an offense not commission attempted apply v. Le People crime”]; from the offense and ‘separate’ completed ‘distinct’ 1, are crimes (1984) [“attempted 10 Cal.Rptr. Cal.App.3d 839] [200 .”].) to be . the difference acknowledging considered distinct. separate one, an a the law allows between crime and completed attempted have For for punishment difference to real consequences. example, for a crime is less severe than ordinarily punishment completed attempted held, 667.6) (§ 664.) (§ crime. As one court statute sentencing applied crime to the in concert did not completed sodomy attempted apply the statute did not mention commit sodomy because attempt 523, v. Reber People (See (1986) Cal.Rptr. offense. Cal.App.3d [223 v. People Hammon 139], (1997) 15 Cal.4th on another disapproved point v. Thomas People 1117, 1, 986]; (1990) also 938 P.2d see Cal.Rptr.2d [65 865].) The different treatment Cal.App.3d Cal.Rptr. 1490 [267 crimes in at least one decision involving attempted persists completed Abayhan v. People decision, court in statute of limitations. In that the appellate 607], statute of (1984) 161 there is no noted Cal.App.3d Cal.Rptr. [207 murder, three-year limitations but statute of limitations applies willful, deliberate, murder attempted premeditated. if attempt (Id. 329; (a), 189.) see also subd. p. §§ me to
Well-established rules of construction statutory require accept appell (b) concerning ant’s of the silence in section subdivision interpretation First, courts are to add misdemeanor child molestation. loath attempted (Wells Court Fargo Superior Bank (1991) from statute. language missing v. Buena 1025]; 53 Cal.3d 811 P.2d Cal.Rptr. 1097 [282 Mines, Vista Inc. 21].) 48 Cal.App.4th statutory of courts to add when unwillingness language especially strong it had wished to available to if language readily Legislature express For meaning. example, penal an intention different from statute’s plain (or “commit or commit” similar commonly statutes use the phrase attempt (See, words) if the statute covers both the crimes. attempted completed *33 of, offenses]; to or e.g., attempt perpetrate” predicate [“perpetration § enhancement applies § to “commission of a or [firearm at- felony Granted, tempted felony”].) authority to a supports adding language statute in rare circumstance that its absence is an accident and its inclusion clearly e.g., People v. Buena Vista to (See, is needed to give the statute. purpose Mines, Inc., supra, p. [language legislative intent expressed “ offense abe even felony statute did not though state ‘state “felony” Here, however, ”].) prison’ section (b) subdivision sense makes within comers, its four and its legislative does not history mention attempted molestation being legislators’ minds. Without legislative history revealing the Legislature intended a statute of for three-year limitations both attempted molestation, I cannot completed that the say certainty Legislature failed to accidentally include attempted molestation in section subdivi- (b)—and sion I not thus the statute to it may interpret does. say the rule of Finally, lenity supports Under that appellant’s interpretation. rale, a court generally must interpret criminal statute in the ambiguous defendant’s favor.2 That rale has been to a shorter statute of applied adopt favored a limitations criminal defendant one by instead of a longer by urged Court (Gasaway Superior prosecution. Cal.App.3d 27].) Cal.Rptr. I believe are Although we a compelled statute of apply one-year molestation, limitations misdemeanor child attempted there are sound reasons statute of limitations that treats both attempted completed misdemeanor molestation the same. The legislative discusses two history limitations, First, reasons for a principal three-year statute of children often adult, teacher, delay molestation to a as a reporting responsible such parent, shame, embarrassment, or doctor. The delay arises from or other frequently hide, that make feelings children rather than their To victimization. report, ensure harmful emotions the in a not molester child do work to spawns the molester’s advantage, chose to children more time Legislature give the crime report statute of limitations. The same enacting longer reticence to child is likely molestation report attempted exist—perhaps so, more because the conduct less to the child. may threatening appear The second reason the legislative history discusses for statute of longer limitations involves connection between misdemeanor molestation more serious sexual offenses. Under a of a three- phenomenon proponent statute of year limitations described child welfare authorities “grooming,” conversation, have observed that sexual invitations of the photographs, sort here could a child to sexual appellant pursued accustom behavior. By ambiguous lenity applies statutory language permits The rule of when two reasonable arguably (b) interpretations. Although ambiguous, extent section subdivision is, lenity People argue applies. that it then the rule of *34 touching, conduct short of banter and other a child with sexual
sexualizing contact direct sexual be more can the child to receptive molester prepare that the molester’s statute of limitations recognizes the road. A longer down time to longer warranting be a long journey sexualization of the child could likely molestation is equally child Attempted allow criminal prosecution. be this grooming. part statute of three-year for enacting two reasons Legislature’s
I believe force to with equal misdemeanor child molestation apply limitations for However, acts with and until the Legislature unless molestation. attempted courts, that we I conclusion majority’s to the with the agree clearer direction 6 for under counts convictions must reverse dismiss appellant’s molestation. attempted was denied April for review the Court Supreme petition
Appellant’s 2009, S169774.