California Court of Appeal Mar 19, 2013 No. E053371Unpublished
Filed 3/19/13 P. v. Linderman CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E053371
v. (Super.Ct.No. FVI701945)
MATTHEW LINDERMAN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Jules E. Fleuret,
Judge. Affirmed in part; reversed in part with directions.
Law Offices of Mark J. Werksman, Mark J. Werksman and Kelly C. Quinn for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting, and Tami
Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
1
I
INTRODUCTION
While carrying out his law enforcement duties as a San Bernardino County
Sheriff‟s deputy, defendant Matthew Linderman preyed on numerous vulnerable women
Section 68 requires proof that the defendant requested, took, or agreed to take a
bribe. (§ 68.) In the instant case, the trial court instructed the jury that: “To prove that
the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant
was an executive officer . . . ; [¶] 2. The defendant requested, took, or agreed to take a
bribe; [¶] 3. When the defendant requested, took or agreed to take the bribe, he
represented that the bribe would unlawfully influence his official act or decision. The
representation may have been express or implied; AND, [¶] 4. The defendant acted with
the corrupt intent that his public or official duty would be unlawfully influenced.”
(CALCRIM No. 2603.) The court further instructed that “Requesting or agreeing to take
a bribe does not require specific words or behavior, as long as the language used and the
circumstances clearly show that the person is seeking a bribe from someone else. The
People do not need to prove that the other person actually consented to give a bribe.”
With regard to the term, “bribe,” section 7 states: “The following words have in
this code the signification attached to them in this section, unless otherwise apparent from
the context: . . . [¶] 6. The word „bribe‟ signifies anything of value or advantage, present
or prospective, or any promise or undertaking to give any, asked, given, or accepted, with
24
a corrupt intent to influence, unlawfully, the person to whom it is given, in his or her
action, vote, or opinion, in any public or official capacity.” Section 68 does not define
the term, “bribe.”
The court instructed the jury that the term, “bribe,” “means something of present
or future value or advantage, or a promise to give such a thing, that is requested or taken
with the corrupt intent that the public or official action, vote, decision, or opinion of the
person who is requesting, taking, or agreeing to take the bribe, will be unlawfully
influenced.”
Collectively, sections 68 and 7 “thus define bribery as the giving or receipt of
something of value, with the intent that the recipient be influenced in his or her vote,
action, or opinion, in an official capacity (and in the case of the recipient with respect to
„any matter then pending or which may be brought before him . . .‟ (§ 68)).” (People v.
Gaio (2000) 81 Cal.App.4th 919, 928.)
Defendant argues there was insufficient evidence to support his convictions for
requesting or taking a bribe, because soliciting the victims to expose their bare breasts did
not constitute “a thing of value” or “advantage” within the meaning of sections 68,
subdivision (a), and 7. Defendant asserts that, considering section 68 as a whole, the
terms, “a thing of value” and “advantage,” were intended to have an ascertainable value.
We disagree.
In construing a statute, this court must ascertain the intent of the Legislature so as
to effectuate the purpose of the law. (People v. Coronado (1995) 12 Cal.4th 145, 151.)
In determining that intent, we first examine the words of the statute, applying “„their
25
usual, ordinary, and common sense meaning based upon the language . . . used and the
evident purpose for which the statute was adopted.‟” (People v. Granderson (1998) 67
Cal.App.4th 703, 707, quoting In re Rojas (1979) 23 Cal.3d 152, 155.) “. . . „If there is
no ambiguity in the language of the statute, “then the Legislature is presumed to have
meant what it said, and the plain meaning of the language governs.” [Citation.] “Where
the statute is clear, courts will not „interpret away clear language in favor of an ambiguity
that does not exist.‟ [Citation.]”‟ [Citation.]” (Coronado, at p. 151.) If the words of the
statute are ambiguous, a court may resort to “extrinsic sources, including the ostensible
objects to be achieved and the legislative history.” (Ibid.) Applying these rules of
statutory interpretation, a court “„must select the construction that comports most closely
with the apparent intent of the Legislature, with a view to promoting rather than defeating
the general purpose of the statute, and avoid an interpretation that would lead to absurd
consequences.‟ [Citation.]” (Ibid.)
The plain language of sections 68 and 7, collectively, is unambiguous. In
construing these statutes collectively we look to the plain meaning of the words, “bribe”
and “thing of value.” As commonly understood, a bribe is “1. money or favor given or
promised in order to influence the judgment or conduct of a person in a position of trust”
or “2. something that serves to induce or influence.” (Merriam-Webster‟s Collegiate
Dict. (10th ed. 1999) p. 142.) This definition is consistent with the legal definition of
bribe as set forth in section 7, subdivision (6), which states: “[t]he word „bribe‟ signifies
anything of value or advantage, present or prospective, or any promise or undertaking to
give any, asked, given, or accepted, with a corrupt intent to influence, unlawfully, the
26
person to whom it is given, in his or her action, vote, or opinion, in any public or official
capacity.” (§ 7, subd. (6).) The common meaning of the term, “value,” as defined in the
dictionary, is: “a fair return or equivalent in goods, services, or money for something
exchanged.” (Merriam-Webster‟s Collegiate Dict. (10th ed. 1999) p. 1305.)
Here, the victims exchanged sexual favors for prosecutorial leniency. The sexual
favors constituted a “bribe” and were a “thing of value” to defendant. Although the
victims‟ sexual favors had no ascertainable monetary value, they were a favor or service
of value to defendant, requested by him, in exchange for something else, leniency. The
sexual favors were something he desired because they provided him with sexual
gratification.
We conclude section 68 is sufficiently clear and therefore its plain meaning should
be followed, without reading unspecified restrictions into it, such as limiting the term,
“bribe,” to only that which has a quantifiable value. Evidence that defendant exhorted
the victims to exchange sexual favors in return for defendant providing leniency was thus
sufficient to support defendant‟s convictions for soliciting a bribe.
VIII
SUFFICIENCY OF EVIDENCE OF ORAL COPULATION
Defendant contends there was insufficient evidence to support his conviction in
count 8 for oral copulation under color of authority (§ 288a, subd. (k)). Specifically, he
argues there was insufficient evidence that the victim, Jill, did not consent to committing
oral copulation.
27
Under section 288a, subdivision (k), the crime of oral copulation under color of
authority is committed when a person “commits an act of oral copulation, where the act is
accomplished against the victim‟s will by threatening to use the authority of a public
official to incarcerate, arrest, or deport the victim or another, and the victim has a
reasonable belief that the perpetrator is a public official, . . .” The trial court instructed
the jury that, in order to find defendant guilty of committing oral copulation under color
of authority, the People must prove: “1. The defendant committed an act of oral
copulation with someone else; [¶] 2. The other person did not consent to the act; AND [¶]
3. The defendant accomplished the act by force, violence, duress, menace or fear of
immediate and unlawful bodily injury; or, [¶] threatening to use the authority of a public
office to incarcerate, arrest or deport someone . . . . The other person must have [reason
to believe] that the defendant was a public official even if he was not. [¶] . . . [¶] In order
to consent, a person must act freely and voluntarily and know the nature of the act.”
In count 8, defendant was charged with oral copulation against Jill‟s will by
threatening to arrest, incarcerate and deport her. There was evidence presented at trial
that, after Jill was caught shoplifting, defendant drove Jill to a dark isolated location and
told her she would probably go to prison for three years because she had prior theft
offenses. After Jill complied with defendant‟s request to take pictures of her exposed
breasts, defendant drove Jill to a secluded area in the desert and asked her what he would
get in exchange for “cite-releasing” her. Defendant unzipped his pants and pulled his
penis out. Jill testified she orally copulated defendant because she did not want to go to
jail.
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Jill‟s testimony established that she did not consent to orally copulating defendant,
and therefore there was sufficient to support defendant‟s conviction on count 8.
IX
PROSECUTORIAL ERROR
Defendant argues that the prosecutor committed numerous instances of prejudicial
prosecutorial error. Because defendant did not object in the trial court to the misconduct
raised on appeal, defendant forfeited his prosecutorial misconduct objections. (People v.
Stanley (2006) 39 Cal.4th 913, 952; People v. Samayoa (1997) 15 Cal.4th 795, 841.) In
any event, defendant‟s claims are not meritorious.
A. Relying on Facts Outside the Record
Defendant asserts the prosecutor erred in making the following statement during
closing argument: “It is very likely that you‟re going to go back in the jury room and
wonder why there aren‟t more charges about some of these victims. Well, in some cases
there may be a technical reason, in other cases it may be – maybe there should be another
charge. But that‟s not the question before you. The question before you is, is the
defendant guilty of the charges with which he is facing.” Defendant contends this
argument was improper because the prosecutor referred to there being “technical
reasons” why charges might not have been brought and this concerned facts outside the
record. Defendant asserts it was improper to tell the jury the prosecution could or should
have been able to file additional charges but, for some unknown reason, did not do so.
29
Such remarks were not improper. They constituted fair comment on the evidence
presented at trial and were benign. “Prosecutors have wide latitude to discuss and draw
inferences from the evidence at trial.” (People v. Dennis (1998) 17 Cal.4th 468, 522.)
The prosecutor‟s comments were founded on the state of the evidence and the potential
for the jury to question why certain charges were not filed. The prosecutor merely noted
the obvious and appropriately admonished the jury that it should not be concerned with
this. Furthermore, even if the remarks were improper, such error was harmless.
B. Misstating the Evidence
Defendant argues the prosecutor committed prosecutorial misconduct when,
during closing argument, the prosecutor mischaracterized Dana‟s trial testimony by
stating: “Almost a year later she had contact with him again when she got arrested at the
Mervyn‟s, again for shoplifting. Remember there was some testimony that she became
very scared when she saw it was him. She said that she actually wet her pants.”
Defendant asserts this was a misstatement of Dana‟s testimony because she actually
testified that she wet her pants earlier, when she was apprehended by loss prevention
officers.
The People acknowledge this was a misstatement, since Dana testified she wet her
pants when she was apprehended by store security, before defendant arrived. But this
was a minor inaccuracy, as to one particular fact, which in all probability had little, if
any, impact on the outcome of the trial. Furthermore, there is no indication that the
misstatement was intentional. Because it did not amount to “„“use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury,”‟” it does not
30
constitute prejudicial prosecutorial misconduct. (People v. Espinoza (1992) 3 Cal.4th
806, 820.)
C. Disparaging Defense Counsel and Defendant
Defendant contends the prosecutor improperly disparaged defense counsel by
telling the jury that defense counsel had misled them on the facts and law. Defendant
argued during closing argument that there was no evidence defendant asked Jill to orally
copulate him. During rebuttal, the prosecutor gave the jury a hypothetical, in which a
high school freshman was asked to recall an event. The prosecutor stated: “Now, if you
were a defense attorney looking to tear apart that high school freshman, who‟s now a
high school senior, would you focus on some things they don‟t remember? Sure. What
can you do to try and disprove that person‟s experience? You can mislead about the
facts.” The prosecutor added that “you can emphasize the things that should be there. . . .
[¶] You can mislead about the law. Well, for example, when counsel was talking to you
about the instruction for oral copulation with relation to [Jill], he stood up here and told
you that if he didn‟t ask for it [oral copulation], . . . , or words to that effect, that it‟s not a
crime.”
These statements were proper because they were in response to defense counsel‟s
argument the prosecution had not proved defendant asked Jill to orally copulate him.
Under the law, an express request was not necessary for a conviction. The prosecutor
appropriately noted various ways the defense could discredit witnesses and refute the
charges, and cautioned the jury to wary of defense‟s arguments on the law and facts.
“[T]he prosecutor has wide latitude in describing the deficiencies in opposing counsel‟s
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tactics and factual account.” (People v. Bemore (2000) 22 Cal.4th 809, 846.) Here, the
prosecutor did not commit misconduct by urging the jury not to be misled by defense
counsel‟s incorrect suggestion that an oral copulation conviction required evidence that
defendant specifically asked Jill to orally copulate defendant, when such evidence was
not required.
Defendant also argues the prosecutor improperly argued defense counsel misled
the jury as to facts regarding photographs Jill took of herself and sent to defendant a
month after the oral copulation incident. Defendant argued Jill willingly sent the
photographs to defendant‟s cell phone. The photographs show her posing and smiling,
and defendant was not present when they were taken. The prosecutor argued Jill was
coerced into taking the photographs. During rebuttal, the prosecutor argued that the
photographs did not come off defendant‟s cell phone and suggested defense counsel had
misled the jury as to the facts. The prosecutor‟s argument constituted fair comment as to
reasonable inferences based on the evidence.
Defendant also argues the prosecutor committed prosecutorial misconduct by
making inflammatory remarks about defendant. Defendant objects to the prosecutor‟s
statement characterizing defendant as a predator and analogizing him to a pack of lions
preying on weak, old, young, and infirm gazelles that cannot defend themselves and
easily flee. The prosecutor argued defendant preyed on the victims because he knew they
were weak, emotional, had criminal histories, and would not make credible witnesses.
Defendant argues the prosecutor‟s argument that defendant preyed on the victims
because he knew the jury would not believe the victims, was improper because it was
32
unsupported by the evidence. We disagree. The record supported such a finding. Most
of the victims had been caught committing crimes, such as shoplifting, having
outstanding warrants, or drug offenses, or needed assistance with a domestic violence
incident or contentious child custody matter. One victim was a teenager and several
disclosed to defendant that they were strippers. The evidence supports the prosecutor‟s
argument that defendant preyed on his victims, knowing that the victims had criminal
records, would likely not make credible witnesses, and were very vulnerable to being
manipulated by bribes of prosecution leniency.
We conclude the prosecution‟s statements during rebuttal were well within the
realm of acceptable argument. Even if the prosecution‟s statements were improper, we
cannot say they constituted prejudicial error. It is not reasonably probable that the
outcome would have been any different, had the prosecutor‟s statements not been made.
(People v. Watson (1956) 46 Cal.2d 818, 836.)
D. Misstating the Law
Defendant complains of four instances of the prosecution misstating the law and
burden of proof. Misstatement of the law during closing argument is misconduct.
(People v. Huggins (2006) 38 Cal.4th 175, 253, fn. 21.) “„[I]t is improper for the
prosecutor to misstate the law generally [citation], and particularly to attempt to absolve
the prosecution from its prima facie obligation to overcome reasonable doubt on all
elements. [Citation.]‟ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 829-830, 832.)
Defendant argues that, during closing argument, the prosecutor improperly
referred to the elements of count 6 (solicitation to engage in lewd conduct; § 647, subd.
33
(a)) as very technical. The prosecutor argued: “There is a Count 6, the instruction is
1162, that pertains to the charge specific to [Sheila], and that is soliciting another to
engage in lewd conduct. Of all the crimes the defendant is charged with, this one has the
most elements. It has a lot of requirements to it. [¶] You recall when defense counsel
was talking to you at the very beginning of the case about being concerned about the
defendant getting off on a technicality. Well, this one‟s pretty technical.”
Defendant argues this discussion of the elements of count 6 undermined the
deliberative process. We disagree. The prosecutor‟s statement could reasonably be
construed as conveying the caveat that the count 6 offense had numerous elements. As a
consequence, evaluating the evidence and defendant‟s liability would be a very technical
process for the jury with consideration of the sufficiency of evidence as to each element.
Any failure to satisfy each element would result in the charges being dismissed. There
was no misstatement of the law in this regard or trivializing of the prosecution‟s burden
of proof.
Defendant next argues that the prosecutor improperly argued several times during
closing argument that evidence of a lie establishes guilt. Defendant objected to the
prosecutor arguing that it was the jury‟s job to discern the truth and this should be
reflected in the verdict. If the jury found defendant “to be a liar, ask yourself why he‟s
lying. And the only reason is because he is guilty.”
Defendant asserts that this statement misstates the law because it incorrectly
suggests that if one side is lying about something, the other side‟s version is necessarily
true. We do not find merit in this objection. The instant case turned on who was telling
34
the truth, defendant or the victims. The prosecutor appropriately reminded the jury that
the jury‟s determination of whether defendant was guilty turned on who was telling the
truth. The prosecutor‟s statement in question appropriately emphasized the jury‟s
responsibility to discern who was telling the truth, and to consider that, if the jury found
defendant was lying, he was likely doing so because he was guilty. There was no
misstatement of the law or trivializing of the burden of proof.
Defendant contends the prosecutor improperly argued during closing argument
that the victims did not have a motive to lie, whereas he did have a motive to lie, because
he was facing criminal charges for victimizing 11 women. Defendant argues this
argument was improper because the prosecutor urged the jury to find defendant‟s
testimony not credible solely because of his status as a criminal defendant. But this is not
what the prosecutor was arguing. The prosecutor was arguing that defendant had a
motive to lie because he was being charged with a crime and therefore had a motive to lie
in order to avoid being convicted. There was no impropriety in the prosecutor arguing
this.
Finally, defendant argues that the prosecutor improperly argued that the
prosecution was not required to prove separately each element of each count. Defendant
objects to the prosecutor‟s argument to the jury that it should not consider the victims‟
testimony in isolation. Rather, the jury should compare and consider as a whole the
testimony of each victim. Defendant argues that the prosecutor‟s discussion of synergy
was an incorrect statement of the law because it advocated finding defendant guilty of
each crime without finding proof of each element of each crime.
35
We do not consider the prosecutor‟s argument improper or a misstatement of the
law. The prosecutor did not tell the jury that the prosecution was not required to prove
separately each element of each count. The prosecution merely suggested the jury
compare the victims‟ testimony and consider it as a whole when making the required
findings. There was nothing improper about such argument.
E. Asking Defendant if Witnesses Were Lying
Defendant contends the prosecutor committed misconduct when on numerous
occasions he asked defendant on cross-examination whether defendant was saying the
victims were wrong or lying during their testimony. Such questions are commonly
referred to as asking “were they lying” questions. In People v. Zambrano (2004) 124
Cal.App.4th 228 [Fourth Dist, Div. Two], this court held, citing People v. Melton (1988)
44 Cal.3d 713, 744, that “were they lying” questions are improper because they serve no
purpose other than to elicit the irrelevant lay opinion of one witness about the veracity of
another witness. (Zambrano, at pp. 240-241.) We further held that a prosecutor who
repeatedly asks such questions commits misconduct because the only purpose of the
questioning is to berate the defendant in front of the jury and inflame the passions of the
jury by forcing the defendant to call other witnesses liars. (Zambrano, at p. 242.) “Were
they lying” questions are impermissible when argumentative or designed to elicit
testimony that is irrelevant or speculative. A court may permit such questions, however,
if the witness to whom they are addressed has personal knowledge that allows him to
provide competent testimony that may legitimately assist the trier of fact in resolving
credibility questions. (People v. Chatman (2006) 38 Cal.4th 344, 384.)
36
Defendant objects for the first time on appeal to over 14 instances of the
prosecution asking defendant if the victims‟ testimony regarding defendant‟s conduct and
statements to the victims was false. Defendant argues these questions were improper
because the victims and defendant did not know each other personally, other than from
defendant apprehending the victims. Defendant therefore did not know why they would
lie. But defendant had personal knowledge that allowed him to provide competent
testimony as to the veracity of the victims‟ testimony. Defendant was present and
directly involved in the matters which were the subject of the prosecutor‟s inquiries
regarding whether the victims had accurately testified to the facts. It therefore was not
improper for the prosecutor to ask defendant if the victims‟ versions of the charged
offense were correct. (People v. Chatman, supra, 38 Cal.4th at p. 384.)
“[I]n its discretion, a court may permit such questions if the witness to whom they
are addressed has personal knowledge that allows him to provide competent testimony
that may legitimately assist the trier of fact in resolving credibility questions.” (People v.
Chatman, supra, 38 Cal.4th at p. 384.) Here, defendant had personal knowledge that
allowed him to testify as to whether or not the victims‟ versions of what occurred were
correct. There was no prosecutorial misconduct in asking defendant on numerous
occasions whether the victims‟ testimony regarding the charged offenses was correct.
X
SENTENCING
Defendant argues the trial court made several sentencing errors. The trial court
denied probation and sentenced defendant to 20 years in state prison.
37
A. Imposing the Upper Term for the Base Offense
Defendant contends the trial court improperly imposed the upper term of eight
years for the base offense of oral copulation under color of authority (§ 288a, subd. (k);
count 8). We disagree.
Under section 1170, “[w]hen a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the choice of the appropriate term shall rest within
the sound discretion of the court.” (§ 1170, subd. (b).) “The court shall select the term
which, in the court‟s discretion, best serves the interests of justice.” (Ibid.) A fact
charged as an enhancement or that is an element of the crime may not be used to impose
the upper term. (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(c), (d).) “When a trial
court has given both proper and improper reasons for a sentence choice, a reviewing
court will set aside the sentence only if it is reasonably probable that the trial court would
have chosen a lesser sentence had it known that some of its reasons were improper.”
(People v. Price (1991) 1 Cal.4th 324, 492.) The court‟s decision is subject to review for
abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.)
When imposing the upper term of eight years on count 8, the trial court noted that
the trial court had “previously stated the reasons for adopting the aggravated term.” The
trial court had previously discussed aggravated factors when denying probation. When
denying probation, the court stated that it “considered the circumstances in aggravation,
which the court believes apply to all of the offenses. The victims in this case were
particularly vulnerable, and the defendant took advantage of a position of trust or
confidence to complete the offenses.” The trial court also found that “defendant did
38
induce others to commit crimes” and “did inflict emotional injury on the victims.” The
only mitigating factor the trial court found was that defendant had no prior record.
Defendant argues that the trial court failed to state any actual facts upon which it
was relying in finding that the victim was particularly vulnerable. But the trial court had
discretion to select among the lower, middle, and upper terms “without stating ultimate
facts deemed to be aggravating or mitigating under the circumstances and without
weighing aggravating and mitigating circumstances.” (People v. Jones (2009) 178
Cal.App.4th 853, 866.)
Defendant concludes that most likely the court based its finding on the facts that,
when defendant committed the oral copulation crime, the victim was under arrest, the
victim was under defendant‟s control, defendant was taking advantage of his position of
authority, and he was inducing the victim to commit the crime (bribery). Defendant
argues that these facts were already inherent in the commission of the crime and therefore
could not support an upper term. Although the trial court could not impose the upper
term based on a fact that was an element of the crime under California Rules of Court,
rule 4.420(c), the trial court was not prohibited from imposing the upper term based on
facts inherent in the crime. Also, factors the trial court relied upon in imposing the upper
term, were not elements of the crime of oral copulation under color of authority (§ 288a,
subd. (k)). We therefore conclude the trial court did not abuse its discretion in imposing
the upper term on count 8.
39
B. Sentencing Barred by Section 654
Defendant contends the trial court was barred under section 654 from imposing
sentences on counts 2 (sexual battery by restraint), 3 (soliciting a bribe), 7 (soliciting a
bribe), and 8 (oral copulation under color of authority).
Section 654 proscribes multiple punishments for a course of conduct that violates
more than one statute but constitutes an indivisible transaction. (People v. Beamon
(1973) 8 Cal.3d 625, 637.) Whether a course of conduct is indivisible under section 654
depends on the intent and objective of the actor. (Neal v. State of California (1960) 55
Cal.2d 11, 19.) “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.” (Ibid.) Therefore,
to permit multiple punishments, the evidence must support a finding that the defendant
formed a separate intent and objective for each offense for which he was sentenced.
(Ibid.) A defendant‟s intent and objective are factual questions for the trial court (People
v. Adams (1982) 137 Cal.App.3d 346, 355), which may properly infer a defendant‟s
intent from the circumstances surrounding his act. The standard of review for
defendant‟s appeal is substantial evidence. (People v. Blake (1998) 68 Cal.App.4th 509,
512.)
In the instant case, the probation report concludes sentencing on counts 3, 6, 7, and
18 should be stayed under section 654 because the crimes occurred during the
commission of counts 2, 5, 8, and 17. The trial court stayed sentencing only on counts 6
and 18 (solicitation to engage in lewd conduct). But contrary to the probation report
40
recommendation, the trial court did not stay sentencing on counts 3 and 7. The court
found that the counts 2, 3, 7, and 8 constituted “separate completed offenses.”
Defend argues that counts 2 (sexual battery by restraint) and 3 (soliciting a bribe),
as to Christina, were part of a single objective. While at the police substation, defendant
asked Christina what she was going to do for him, pulled out a camera, put it on the desk,
asked her again what she was going to do for him, and told Christina to take off her shirt.
When Christina complied, defendant took pictures of her breasts and put his mouth on
her breasts. As to counts 7 (soliciting a bribe) and 8 (oral copulation under color of
authority), defendant was convicted of asking Jill for sexual favors in return for leniency
and receipt of sexual favors, that of oral copulation.
Defendant asserts that the act of asking Christina and Jill what he would receive
and the sexual touching of the victims‟ breasts had the same objective of defendant
receiving sexual favors. Therefore the acts were an indivisible transaction, requiring
application of section 654. We conclude otherwise. There was evidence that the
soliciting a bribe offense (count 3) as to Christina occurred in defendant‟s patrol car,
when defendant told her he would not take her to jail if she did him a personal favor.
Christina agreed to do a favor for defendant. On the other hand, count 2, sexual battery
by restraint, occurred after commission of the bribery offense, when defendant drove
Christina to a mall, took her inside the substation, asked her to take her shirt off, took
pictures of her breasts, and put his mouth on Christina‟s breasts. The bribery offense
occurred at a different location than the battery offense and was completed before
defendant took Christina to the mall substation and put his mouth on her breasts.
41
We also conclude count 7 (soliciting a bribe) involved a separate objective and
course of action than count 8 (oral copulation under color of authority). Count 7 is based
on evidence that defendant drove Jill around in defendant‟s patrol car for about an hour
and told her she might go to prison because she had prior theft offenses. Defendant then
asked Jill to take pictures of her breasts. Jill complied because she thought it would help
her avoid custody. Count 8 was committed afterwards, when defendant drove Jill to
another location and defendant, through suggestive behavior, urged Jill to orally copulate
him. She did so out of fear of going to prison.
Because the bribery counts (counts 3 and 7) occurred at different times and
locations than the crimes in counts 2 and 8, we conclude the trial court did not err in
sentencing defendant separately for counts 2, 3, 7, and 8.
C. Consecutive Sentencing
Defendant contends the trial court abused its discretion in imposing all of the
felony sentences consecutively, rather than concurrently. In doing so, the trial court
explained: “As far as whether the sentences should be concurrent or consecutive, all of
the crimes were predominantly independent of each other and crimes – although they did
not involve separate acts of violence or threats of violence, there were some suggestions
of retaliation and possible violence. I disagree with that conclusion by the probation
department. [¶] The crimes were committed at different times and different places and
were not committed so close in time that it would be considered to be situational or just a
single period of aberrant behavior. It was a continuing course of conduct over a
significant amount of time involving a number of victims. There were numerous victims
42
in the case. [¶] Considering the circumstances in aggravation and circumstances in
mitigation, court finds that the circumstances in aggravation outweigh any mitigating
factors that may exist. [¶] Court also finds that consecutive sentencing is appropriate for
the reasons stated.”
Defendant argues, as he did regarding section 654, that counts 2 and 3, and counts
7 and 8 were not crimes of separate objectives or committed at separate times and places.
Therefore sentencing should have been imposed concurrently, rather than consecutively.
We disagree.
A trial court‟s imposition of consecutive terms is reviewed for an abuse of
discretion. California Rules of Court, rule 4.425(a) lists factors for a trial court to
consider when deciding to “impose consecutive rather than concurrent sentences.” The
factors are: “(1) The crimes and their objectives were predominantly independent of each
other; [¶] (2) The crimes involved separate acts of violence or threats of violence; or [¶]
(3) The crimes were committed at different times or separate places, rather than being
committed so closely in time and place as to indicate a single period of aberrant
behavior.”
When the trial court imposed consecutive sentences, it relied on the factors listed
in California Rules of Court, rule 4.425(a). The trial court explained the offenses were
independent of each other. They were committed at different times and different places.
The crimes were not committed so close in time that it would be considered to be
situational or just a single period of aberrant behavior. The court concluded defendant‟s
crimes constituted a continuing course of conduct over a significant amount of time
43
involving numerous victims. We conclude the trial court did not abuse its discretion in
imposing consecutive sentences.
XI
DISPOSITION
The judgment is affirmed, except as to count 18, which is barred by the statute of
limitations. Defendant‟s conviction and sentence on count 18 is reversed. The judgment
is affirmed in all other respects. The judgment accordingly is modified by reversing
defendant‟s count 18 conviction and dismissing that charge. The trial court is directed to
prepare an amended abstract of judgment that reflects the modified judgment and to
forward a certified copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
McKINSTER Acting P. J.
MILLER J.
44
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's convictions for sexual battery, soliciting a bribe, and other offenses, but reversed the conviction for count 18 on the ground that it was barred by the statute of limitations.
Issues
Whether the trial court erred in denying the motion to quash and traverse the search warrant.
Whether there was sufficient evidence to support the convictions for counts 6, 8, 18, and the bribery counts.
Whether the conviction for count 18 was barred by the statute of limitations.
Disposition. Affirmed in part; reversed in part.
Quotations verified verbatim against the opinion
“We reject defendants‟ contentions and we therefore affirm the judgment, except for defendant‟s conviction as to count 18, which is reversed on the ground it is barred by the statute of limitations.”
“We agree defendant has not met his burden of establishing that the supporting affidavit contained deliberate falsehoods and omissions or constituted a reckless disregard for the truth.”