Opinion
B299434
04-16-2020
THE PEOPLE, Plaintiff and Respondent, v. WAYNE DAVON JONES, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo, Deputy Attorney General, and Nancy Lii Ladner, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. VA144056) APPEAL from a judgment of the Superior Court of Los Angeles County, Michael A. Cowell, Judge. Reversed in part and remanded with directions. Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo, Deputy Attorney General, and Nancy Lii Ladner, Deputy Attorney General, for Plaintiff and Respondent.
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The trial court sentenced Wayne Davon Jones (defendant) to prison for 75 years to life. Defendant challenges only his sentence. Because the sentence and abstract of judgment contain errors, we affirm his convictions but reverse and remand for resentencing.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
On May 11, 2016, defendant turned 18 years old.
Between May 11, 2016 and January 2017, defendant regularly babysat his six-year-old cousin, M.P., at his mother's apartment. During those babysitting sessions when defendant and M.P. were alone, defendant would sodomize M.P. by placing his penis in her anus; he did so "at least ten times."
In January 2017, he was babysitting M.P. and M.P.'s nine-year-old stepsister, Ma.P. He walked into the bedroom the girls shared and closed the door. Defendant then took the girls' tablet, began streaming a pornographic video, and asked M.P. to watch with him. He then propositioned the girls to play "truth or dirty dare," and said M.P. had previously played that game with him. Defendant proceeded to dare Ma.P. to remove her clothing and spin around for him. When she refused, he asked M.P. to do so. Defendant then removed M.P.'s pajama bottoms and laid her tummy-down on the bed. Defendant then ordered Ma.P. to retrieve a bottle of lotion. Defendant squirted the lotion on M.P.'s buttocks, rubbed it onto her cheeks, and then inserted his erect penis into her anus. M.P. cried and begged him to stop. He ignored her pleas. When he was done, he threatened both girls not to tell anyone or else he would "flush [their] feet down the toilet."
The girls told their father about the January incident in February 2017. M.P.'s father took M.P. in for a forensic examination, but it was inconclusive.
Defendant was arrested and questioned by police. He initially denied doing anything sexual with M.P. or Ma.P. However, after the police engaged in a ruse by telling him that his DNA was found in M.P.'s anus, defendant progressively changed his account and added details (such as playing "dare" and then watching porn) previously reported by the girls but not shared with defendant. His final statement was that he tripped M.P. and she "accidental[ly]" landed on his erect penis.
II. Procedural Background
In the operative, second amended information, the People charged defendant with (1) attempting a lewd act upon a child for defendant's conduct involving Ma.P. in January 2017 (Pen. Code, §§ 288, subd. (a), 664), (2) committing sexual intercourse or sodomy with a child 10 years old or younger for defendant's conduct involving M.P. in January 2017 (§ 288.7, subd. (a)), and (3) four counts of committing sexual intercourse or sodomy with a child 10 years old or younger for four of the 10 incidents involving M.P. between May 11, 2016 and January 2017 (§ 288.7, subd. (a)).
All further statutory references are to the Penal Code unless otherwise indicated.
The dates in the text reflect those in the operative information as clarified and narrowed by the People's argument at trial. (See People v. Kelly (2016) 245 Cal.App.4th 1119, 1131 [looking to how prosecutor argued the case].)
The matter proceeded to trial. In closing arguments, the prosecutor explained that the first two counts dealt with defendant's conduct toward Ma.P. and M.P., respectively, during the January 2017 incident, and that the remaining four sodomy counts pertained to four out of the 10 "prior incidences [of sodomy] that occurred" while defendant babysat M.P. prior to January 2017.
The jury found defendant guilty of all counts.
At sentencing, the court imposed a sentence of 75 years to life in prison. More specifically, the court imposed a sentence of 25 years to life for the January 2017 sodomy count involving M.P. The court imposed a concurrent three-year sentence for the January 2017 attempted lewd act against Ma.P. The court then imposed two consecutive, 25-year-to-life sentences for two of the remaining four sodomy counts involving M.P. The court finally imposed but stayed, under section 654, two 25-year-to life sentences for the other two sodomy counts involving M.P. The court did not explain why it was running two of the sodomy sentences consecutively or why it stayed the other two sodomy sentences.
Defendant filed this timely appeal.
DISCUSSION
I. Has Section 654 Been Misapplied?
Section 654 prohibits a court from "punish[ing] "[a]n act or omission"—or a "course of criminal conduct"—"under more than one provision." (§ 654, subd. (a); People v. Capistrano (2014) 59 Cal.4th 830, 885 (Capistrano), overruled on other grounds in People v. Hardy (2018) 5 Cal.5th 56, 103-104.) Generally, "'"[w]hether 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. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one."'" (Capistrano, at p. 885, quoting People v. Rodriguez (2009) 47 Cal.4th 501, 507; People v. Beamon (1973) 8 Cal.3d 625, 639-640.) The rule is different for sex crimes. Because "[a] defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act," our Supreme Court has "decline[d] to extend the single intent and objective test" to sex crimes. (People v. Perez (1979) 23 Cal.3d 545, 553 (Perez); People v. Harrison (1989) 48 Cal.3d 321, 325 (Harrison) ["section 654 does not bar multiple punishment simply because numerous sex offenses are rapidly committed against a victim with the 'sole' aim of achieving sexual gratification"].) In the context of sex crimes, section 654 does not authorize a stay of punishment if "'[none] of the sex offenses was committed as a means of committing any other, none facilitated commission of any other, and none was incidental' to any other." (Harrison, at p. 336, quoting Perez, at pp. 553-554; People v. Catelli (1991) 227 Cal.App.3d 1434, 1447.) Although we review a trial court's section 654 ruling (whether express or implicit) for substantial evidence, our review is de novo when the facts to be applied are undisputed. (People v. Corpening (2016) 2 Cal.5th 307, 311-312.)
No matter which standard of review we apply, the trial court erred in staying two of the sodomy counts under section 654. We reach this conclusion for two reasons. To begin, no evidence—let alone substantial evidence—supported a finding that any of "at least ten" acts of sodomy "was committed as a means of committing any other" sex crime, "facilitated commission of any other" sex crime, or was "incidental" to any other sex crime. (Harrison, supra, 48 Cal.3d at 336.) And contrary to what defendant suggests, this is true whether the ten acts of sodomy occurred on the same day or on different days over the seven-month period. Thus, the relevant test for the application of section 654 was not met. Further, even if the test had been met, there is no evidence—let alone substantial evidence—that would support treating two of the four sodomy counts differently than the other two for purposes of section 654 because the evidence regarding all four claims is identical (namely, M.P.'s testimony that defendant sodomized her "at least ten times" while babysitting her at his mother's house).
Defendant claims that the trial court erred because, in his view, it should have stayed three of the four sodomy counts (rather than two of them). However, for the reasons detailed above, this result would suffer from the same defects as the sentence actually imposed by the trial court. Defendant cites a number of cases in support of his argument, but all of them deal with sufficiency of the evidence rather than the applicability of section 654. (E.g., People v. Jones (1990) 51 Cal.3d 294, 316-321; People v. Garcia (2016) 247 Cal.App.4th 1013, 1020-1021; People v. Matute (2002) 103 Cal.App.4th 1437, 1447; People v. Jones (2001) 25 Cal.4th 98, 106-107.) They are accordingly irrelevant.
For these reasons, none of the sodomy counts may be stayed pursuant to section 654.
II. Did the Court Err in Running the Sodomy Counts Consecutively?
Where, as here, a sex offense is not enumerated in section 667.6, subdivision (e), a trial court has "broad discretion" whether to impose the sentence for each such offense consecutively or concurrently to the sentences for other offenses. (People v. Clancey (2013) 56 Cal.4th 562, 579; § 669, subd. (a).) California Rules of Court, rule 4.425 sets out the factors to guide the court's discretion, and those factors include "[a]ny circumstances in aggravation or mitigation." (Cal. Rules of Court, rule 4.425(b).) As pertinent here, aggravating factors include that "[t]he victim was particularly vulnerable" and that "[t]he defendant took advantage of a position of trust or confidence to commit the offense" (id., rule 4.421(a)(3), (a)(11)), and mitigating factors include that "[t]he defendant has no prior record" (id., rule 4.423(b)(1)). A consecutive sentence may be justified by a single aggravating factor. (People v. Osband (1996) 13 Cal.4th 622, 728-729.) In light of the court's discretion in this situation, our review is for an abuse of discretion. (People v. Woodworth (2016) 245 Cal.App.4th 1473, 1479.) However, a court abuses its discretion if its ruling is unsupported by substantial evidence or is inconsistent with the law. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 31; Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.)
As imposed, the trial court did not err in running the two sodomy counts involving M.P. consecutively to the January 2017 sodomy count involving M.P. At sentencing, defendant conceded two aggravating factors—namely, that M.P. was "particularly vulnerable" and that defendant occupied "a position of trust." That is enough to sustain the trial court's ruling. What is more, the trial court properly ran those indeterminate sentences for their full terms. (People v. Neely (2009) 176 Cal.App.4th 787, 797-798 [so noting].)
Defendant argues that the sentence must still be reversed because the trial court did not articulate reasons for running those sentences consecutively. While a court must explain why it is running a determinate sentence consecutively (People v. Tillotson (2007) 157 Cal.App.4th 517, 545), no such requirement exists for indeterminate sentences (People v. Arviso (1988) 201 Cal.App.3d 1055, 1058).
Anticipating a remand on section 654 grounds, the People suggest that the trial court is required as a matter of law to run all four sodomy counts involving M.P. consecutive to the other counts and to one another. We reject this suggestion. Although, on this record and for the reasons noted above, there is no substantial evidence to support treating the four sodomy counts differently from one another, the trial court nevertheless retains the discretion whether to run them all consecutively or concurrently or to consider additional evidence on remand.
III. Does the Abstract of Judgment Have Clerical Errors?
Although the following errors may be mooted out after remand for resentencing, we nevertheless flag three clerical errors with the abstract of judgment.
First, the abstract of judgment lists the five counts of sodomy as counts 7, 8, 9, 10 and 11 and incorrectly describes the associated criminal offenses as "attempted lewd acts upon a child." This is incorrect. In the operative information, those counts are counts 2, 3, 4, 5, and 6. Further, the criminal offense for those counts is "sexual intercourse/sodomy with a child 10 years old or younger."
Second, the abstract of judgment (and the court's minute order) states that the attempted lewd conduct count involving Ma.P. was to run consecutively to the other counts. This is incorrect. At the sentencing hearing, the court orally stated that this count was to run "concurrently." The oral pronouncement controls. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.)
Third, the abstract of judgment reflects the imposition of the mandatory court assessments for only four of the six counts of conviction. This was error. Defendant was convicted of six counts and the imposition of assessments is mandatory even as to counts stayed under section 654. (People v. Sencion (2012) 211 Cal.App.4th 480, 483-484.) Thus, the judgment must be modified to impose a $40 court security fee (§ 1465.8, subd. (a)(1)) for each count, totaling $240, and a $30 criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)) for each count, totaling $180.
DISPOSITION
Defendant's sentence is vacated, and the case is remanded to the trial court for resentencing consistent with this opinion. In issuing a new abstract of judgment, the court is directed to account for the clerical errors in the current abstract.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, Acting P.J.
ASHMANN-GERST /s/_________, J.
CHAVEZ