Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, No. 1279489, James F. Iwasko, Judge.
Sanger & Swysen, Catherine Y. Swysen, for Defendant and Appellant.
Edmund G. Brown Jr., Kamala Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Robert David Breton, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Fernando Cordero appeals a seven year prison sentence. He attempted to circumvent the two-year bail enhancement (Pen. Code, § 12022.1) by pleading guilty to felony sexual exploitation of a patient M.E.F. (count 11; Bus. & Prof. Code, § 729, subd. (a)). The guilty plea was entered after a jury convicted appellant of sexual battery of another patient (count 8; Pen. Code, § 243.4, subd. (e)(1)), two counts of dissuading a witness (counts 9 & 13; § 136.1, subd. (b)(1)) with bail enhancements (§ 12022.1, subd. (b)), and misdemeanor sexual exploitation of a patient by a psychotherapist (count 11 - victim M.E.P.; Bus. & Prof. Code. § 729, subd. (a)).
Unless otherwise stated, all statutory references are to the Penal Code.
Appellant, a psychologist, was alleged to have victimized seven mental health patients. As to victim M.E.F., the jury deadlocked on three counts: sexual penetration by foreign object (count 3; § 289, subd. (a)(1) & (g)), oral copulation by use of force and duress and under color of authority (count 4; § 288a, subd. (c)(2) & (k)), rape by use of force and duress and under color of authority (count 5; § 261, subd. (a)(2) & (7)).
On count 11 for sexual exploitation of multiple patients (patients S.L. and M.E.P.; Bus. & Prof. Code, § 729, subd. (a)), the jury deadlocked on whether patient S.L. was victimized by appellant.
To avoid retrial on the M.E.F. counts (counts 3-5), appellant entered a plea of guilty to count 11 (sexual exploitation of multiple patients by a psychotherapist) after it was amended to add M.E.F as a second victim, elevating the conviction to a felony. (Bus. & Prof. Code, § 729, subd. (a)(3).) Based on the negotiated plea, the guilty verdict, and the jury's true findings on the bail enhancement, the trial court sentenced appellant to the aggregate term of seven years state prison.
We affirm the judgment.
Facts and Procedural History
In September 2007, M.E.F. was arrested for shoplifting and told Santa Barbara County Jail authorities that her therapist, appellant, had sexually abused her for more than three years. Appellant, a psychologist, worked for Santa Barbara County Mental Health and had treated M.E.F. at a mental health office and the Santa Maria courthouse.
During therapy sessions, appellant threatened to put M.E.F. in jail or a mental hospital if she did not have sex with him. The first incident occurred in July 2004, when M.E.F. was granted probation and released on home electronic monitoring. Appellant took M.E.F. home, plugged in the electronic monitoring equipment, and said it was time for M.E.F. to reward him. Appellant told M.E.F. to take her clothes off. Then he sodomized her. Appellant continued sexual relations with M.E.F. for the next three years, allegedly by the use of threats and duress.
In 2007, appellant was assigned to the Justice Alliance Program and provided an office in the Santa Maria courthouse. Appellant had sex with M.E.F. in the office and a second office on South Broadway. At the Broadway office, appellant anally and vaginally penetrated M.E.F with a dildo and videotaped this occurrance.
A sheriff's detective tape recorded appellant and M.E.F. at a pretext meeting on November 9, 2007. Based thereon officers executed a search warrant and found a digital video of appellant having sex with M.E.F. and the dildo used by appellant. The dildo had mixed DNA on it that matched M.E.F.'s and appellant's DNA.
Counts 1-6.
On November 9, 2007, appellant was arrested for rape by threat of use of public authority (§ 261, subd. (a)(7)) and released on bail. A third amended information was filed charging appellant with sodomy, rape, sexual penetration by foreign object, and oral copulation of M.E.F. by use of use of force and duress and under color of authority. (Counts 1-6.)
Appellant victimized other patients, including S.D.G. who was treated for depression and suicidal tendencies. During a therapy session, appellant hugged and kissed S.D.G, and touched her breasts. The third amended information charged appellant with attempted sexual exploitation by a psychotherapist. (Count 7; Pen. Code, § 664/Bus. & Prof. Code, § 729, subd. (a).)
Counts 7-8; Victim R.S.
A third patient, R.S. reported that appellant hugged and kissed her during therapy sessions, fondled and photographed her breasts, exposed his erect penis, and asked her to go to a hotel and have "all kinds of sex." Appellant said he could do anything and get away with it because judges respected him. Appellant reminded R.S. that she could lose her children if she did not see him. At one therapy session, appellant stuck his hand down R.S.'s pants and digitally penetrated R.S. At another therapy session, appellant shoved R.S. face down on a desk and raped her in the courthouse office. The third amended information charged appellant with sexual battery by restraint (count 8; § 243.4, subd. (a)) and forcible rape (count 10; § 261, subd. (a)(2)).
Counts 11-12; Sexual Exploitation of Patients S.L., M.E.P., A.R.
Appellant treated S.L.'s schizophrenic brother at the mental health clinic and told S.L. that she needed therapy. Appellant threatened to put the brother in a mental hospital where he would be tied down and not fed. S.L. was "pressured" to have sex with appellant, orally copulated him, and submitted to vaginal and anal intercourse in his car and family van. Appellant was charged with sexual exploitation by a psychotherapist of multiple victims (S.L. and M.E.P.), a felony. (Count 11; bus. & Prof. Code, § 729, subd. (a).) The third amended information alleged that appellant attempted to sexually exploit another patient, A.R. (Count 12; § 664/Bus & Prof. Code, § 729, subd. (a)).
Counts 9 & 13: Dissuading A Witness While On Bail; Victims R.S. & M.E.P.
After appellant was released on bail, appellant begged R.S. not to testify against him. R.S. asked if the accusations were true. Appellant replied, "Yeah. And there's more girls." Appellant wanted to flee to Mexico. "It is true, everything I did. Everything they're saying, it is true." The third amended information charged appellant with dissuading a witness (R.S.) and an out-on-bail enhancement. (Count 9; §§ 136.1, subd. (b)(1); 12022.1, subd. (b).) Count 13 of the third amended information charged appellant with attempting to dissuade another patient, M.E.P., from testifying while appellant was on bail. (§§ 136.1, subd. (b)(1); 12022.1, subd. (b).)
Defense
Appellant defended on the theory that the sex was consensual. Appellant testified that "some of the allegations are true as far as having sex with patients" and that some of the victims "hit on" him to have sex. Appellant claimed that S.L. (count 11; sexual exploitation of a patient) was not a patient.
Hung Verdict and Negotiated Plea
The jury convicted appellant of misdemeanor sexual battery – a lesser offense (count 8 – victim R.S.; § 243.4), two counts of dissuading a witness (counts 9 & 13; § 136.1, subd. (b)) while on bail (§ 12022.1, subd. (b)), and misdemeanor sexual exploitation by a psychotherapist (count 11- victim M.E.P.; Bus. & Prof. Code. § 729, subd. (a)).
Unless otherwise stated, all statutory references are to the Penal Code.
Appellant was acquitted on count 1 (sodomy of M.E.F. at home while on electronic monitoring), count 2 (rape of M.E.F. at county mental health facility), count 6 (rape of M.E.F. at courthouse office), count 8 (sexual battery of R.S.), count 10 (forcible rape of R.S. at courthouse office), and count 12 (attempted sexual exploitation of A.R.).
The jury deadlocked on count 3 (sexual penetration of M.E.F. by foreign object by use of force and under color of authority), count 4 (oral copulation of M.E.F. by use of force and duress and under color of authority), and count 5 (rape of M.E.F. by use of force and duress and under color of authority), and deadlocked on whether appellant sexually exploited a second patient, S.L., on count 11 (Bus. & Prof. Code, § 729, subd. (a); sexual exploitation of multiple victims by a psychotherapist).
To avoid retrial on those counts, appellant entered into a negotiated plea to add M.E.F as a second victim on count 11 (sexual exploitation of two victims by a psychotherapist), and entered a plea of guilty to count 11, as amended, to elevate the conviction from a misdemeanor to a felony.
Based on the negotiated plea, guilty verdicts, and jury's true finding on the bail enhancement, appellant was sentenced to a three year upper term on count 11 (sexual exploitation of multiple victims by a psychotherapist), plus two years for dissuading a witness (counts 9 & 13) and two years on the bail enhancement.
Bail Enhancement
Appellant claims the bail enhancement was erroneously imposed because he was not convicted of the primary offense for which he was released on bail. Section 12022.1, subdivision (b) provides: "Any person arrested for a secondary offense which was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years in state prison which shall be served consecutive to any other term imposed by the court."
The determination of whether a felony conviction qualifies as a primary offense conviction is purely a legal one. (People v. Smith (2006) 142 Cal.App.4th 923, 935. fn. 4.) " 'Primary offense' means a felony offense for which a person has been released from custody on bail... prior to the judgment becoming final...." (§ 12022.1, subd. (a)(1).) "Secondary offense" refers to the felony offense committed while on bail, i.e., dissuading a witness. (§ 12022.1, subd. (a)(1)(2).) A bail enhancement cannot be imposed unless the defendant is convicted on both the primary and secondary offenses. (§ 12022.1, subd. (d); (In re Jovan B. (1993) 6 Cal.4th 801, 814; People v. McClanahan (1992) 3 Cal.4th 860, 869.)
Where the defendant is convicted on the secondary offense and bail enhancement before trial of the primary offense, the trial court must stay the bail enhancement unless and until defendant is convicted and sentenced on the primary offense. (§ 12022.1, subd. (d); People v. McClanahan, supra, 3 Cal.4th at pp. 869-870.) The primary offense conviction is a triggering event that establishes defendant's recidivism while on bail. (People v. Smith, supra, 142 Cal.App.4th at p. 935.)
Here the jury deadlocked on three primary offense counts and convicted on the secondary offense and bail enhancement The primary offense counts were dismissed after appellant entered a change of plea on count 11 for felony sexual exploitation of M.E.F. as a second victim. There was no requirement that appellant, as part of the change of plea, stipulate that he was released on bail and committed the secondary offense while on bail. The jury had already made a true finding on the enhancement allegation. (Compare People v. Adams (1993) 6 Cal.4th 570, 580.)
Appellant contends that the bail enhancement may not be imposed unless he is convicted on the same felony on which he was arrested and booked, i.e., rape of M.E.F. by threat of use of public authority. (§ 261, subd. (a)(7)). But that would thwart the legislative purpose of punishing recidivist conduct by criminal defendants on felony bail. (See e.g., People v. Walker (2002) 29 Cal.4th 577, 587-588 [broadly construing section 12022.1].) "Primary offense" means "a felony offense" for which a person has been released from custody on bail. (§ 12022.1, subd. (a)(1), emphasis added.) Had the Legislature intended to limit the enhancement to the felony charge on which appellant was arrested, it would have used the phrase "the felony offense."
After an individual is arrested for a felony offense and released on bail, the prosecutor determines what charges to file and what punishment to seek. (Gov. Code, § 26500; Dix v. Superior Court (1991) 53 Cal.3d 442, 451.) Assuming a defendant is arrested for transportation of cocaine (primary offense), is released on bail, commits a new felony while on bail (secondary offense), and enters a plea to possession of cocaine, the conviction qualifies as a primary offense. Under appellant's construction of the law, a bail enhancement may not be imposed unless the primary offense conviction is precisely identical to the offense on which he was arrested and released on bail. But section 12022.1, subdivision (e) provides that the enhancement may be imposed if defendant "is convicted of a felony for the primary offense, " rather than "the felony" listed on the booking sheet. (Emphasis added.)
In In re Ramey (1999) 70 Cal.App.4th 508, defendant was convicted of a secondary offense and a bail enhancement, and returned to Colorado for trial on the primary offense (robbery). Defendant entered a change of plea in Colorado, reducing the felony to a misdemeanor. We held that the primary offense, like a Cheshire Cat, "disappear[ed] from sight, leaving nothing behind but a mischievous grin." (Id. at p. 512.)
Appellant's attempt to perform a similar disappearing act fails on a number of grounds. The term "primary offense" encompasses convictions to lesser related offenses arising from the same predicate facts for the felony arrest. This is so because section 12022.1 targets "on-bail recidivism" (People v. Walker, supra, 29 Cal.4th at p. 584; People v. Griffin (2005) 128 Cal.App.4th 1112, 1117)) and goes to the nature of the offender, not the nature of the offense. (People v. McClanahan, supra, 3 Cal.4th at pp. 870-871.) The primary offense conviction can be by negotiated plea which is an accepted and integral part of our criminal justice system. (People v. Panizzon (1996) 13 Cal.4th 68, 79-80.)
Appellant negotiated a favorable plea to avoid retrial on three primary offense counts (the M.E.F. counts). Counts 3-5 were dismissed after appellant entered a plea to felony sexual exploitation of a patient on count 11, as amended to name M.E.F. as a second victim. (Bus. & Prof. Code, § 739, subd. (a)(3).)
Unlike Ramey, the change of plea did not reduce the primary offense to a misdemeanor. Appellant admitted that sexual exploitation of a patient was a lesser-related offense, admitted having sex with M.E.F., and admitted that consensual sex was not a defense to count 11. (Bus. & Prof. Code, § 729, (b)(5) ["in no instance shall consent of the patient or client be a defense"]; see 2 Witkin & Epstein, Cal. Criminal Law (3rd ed. 2000) Sex Offenses & Crimes Against Decency, § 57, p. 369.)
Defense counsel told the jury that appellant had already admitted having sex with M.E.F. and "what Dr. Cordero did was wrong. It was taboo. It was despicable. It was criminal." "You should find him a criminal. But he's not guilty of rape, forcible or by duress."
When the change of plea was entered, appellant admitted there was a factual basis for the plea based on "Facts from [my] jury trial. I had sexual relations with M.E.F. when she was my patient." Appellant's trial attorney certified that appellant understood the elements of the charged crimes and enhancements and all possible defenses, as well as "the direct and indirect consequences of this plea."
The purpose of section 12022.1 is to punish recidivist conduct by a criminal defendant who commits a new felony offense while on felony bail. (People v. McClanahan, supra, 3 Cal.4th at p. 868.) It addresses a "public concern over offenders who are arrested then allowed back on the street a short time later only to commit more crimes. [Citations.]" (People v. Lewis (1986) 185 Cal.App.3d 923, 927.) Appellant is clearly such a recidivist and makes no showing that the negotiated plea caused the two-year bail enhancement to disappear. (In re Ramey, supra, 70 Cal.App.4th 512.)
In People v. Walker (2002) 29 Cal.4th 577, the court explained how a primary offense can disappear: "[A] charge on a primary offense can fail in any number of ways to result in a felony conviction and defeat section 12022.1's application. For example: (1) the prosecutor might move to dismiss the felony charge for insufficient evidence or after suppression of the evidence [citations]; (2) the court might dismiss the charge or set aside the indictment or information [citation] or enter a judgment of acquittal before submission of the case to the jury [citation]; (3) the prosecutor might move to dismiss the charge in the interests of justice or reduce it to a misdemeanor as part of a plea bargain; (4) the court might reduce the charge to a misdemeanor [citation]; (5) the jury might acquit the defendant; or (6) the conviction might be reversed or dismissed on a state or federal writ of habeas corpus." (Id., at p. 587.)
Upper Term Sentence
Citing Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856], appellant argues that the three-year upper term sentence on Count 11 was based on facts not found by the jury or admitted by appellant, thereby violating his Sixth Amendment to jury trial. Appellant, however, was sentenced after the 2007 amendment of section 1170, subdivision (b) which provides that a sentencing court may consider the full range of sentences. Additional fact finding was not required to impose an upper term. (People v. Sandoval (2007) 41 Cal.4th 825, 846-847.) "[A] trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions. [Citations.]" (Id., at p. 848.)
The trial court cited as aggravating factors the extreme vulnerability of the victims, appellant's egregious violation of trust and confidence, the callousness of the crime, and the planning, sophistication and professionalism in which the crimes were carried out.
Appellant acknowledges that we are bound by Sandoval (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) but states he is raising the Cunningham issue "for purposes of later review." Appellant is trying to have his cake and eat it too. (See e.g., People v. Borland (1996) 50 Cal.App.4th 124, 128.) A defendant may be estopped from complaining about a sentence, even if it is unauthorized, if the defendant agreed to it as part of plea agreement. (People v. Hester (2000) 22 Cal.4th 290, 295.)
Appellant negotiated a plea providing for a 12-year sentence lid and was sentenced to seven years state prison. "[D]efendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process. [Citations.]" (People v. Hester, supra, 22 Cal.4th at p. 295.)
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.