Opinion
B228421
09-08-2011
THE PEOPLE, Plaintiff and Respondent, v. MEYER BRUCE HYDLE, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal and the California Appellate Project, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Idan Ivri, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MA045528)
APPEAL from a judgment of the Superior Court of Los Angeles County, John Murphy, Judge. Affirmed in part, reversed in part and remanded with directions.
Vanessa Place, under appointment by the Court of Appeal and the California Appellate Project, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
After a jury found appellant Meyer Bruce Hydle guilty of 13 sex offenses involving his children, the trial court sentenced him to a total determinate term of 24 years and a total indeterminate term of 150 years to life. On appeal, appellant challenges only his sentence. We conclude the trial court erred in imposing the determinate term. Accordingly, we modify the judgment to reflect a total determinate term of 12 years, and affirm the judgment so modified.
RELEVANT PROCEDURAL HISTORY
On July 13, 2010, an information was filed, charging appellant with ten offenses under the Penal Code against two of his children, S.H. and J.H., and an additional three offenses against another of appellant's children, C.H., who suffers from disorders or disabilities that render him incapable of consent. The information alleged that between June 21, 1996, and June 20, 2003, appellant engaged in lewd acts upon S.H (§ 288, subd. (a), counts 1 through 5); that for periods between April 14, 1994 and April 14, 2002, appellant engaged in lewd acts upon J.H. (§ 288, subd. (a), counts 5 through 10); and that between December 1, 2006 and May 1, 2008, appellant engaged in sodomy, oral copulation, and sexual penetration by a foreign object with C.H., an incompetent person (§ 286, subd. (g), count 11; § 288a, subd. (g), count 12; § 289, subd. (b), count 13). Appellant pleaded not guilty to all counts.
All statutory citations are to the Penal Code.
On July 19, 2010, a jury found appellant guilty as charged; in addition, in connection with each of the offenses involving S.H. and J.H. (counts 1 through 10), the jury found true a special allegation under the One Strike law (§ 667.61), that appellant had committed the same offense "against more than one victim" (§ 667.61, former subd. (e)(5)). On the counts involving S.H. and J.H., the trial court imposed a total term of 150 years to life under the One Strike law; on the counts involving C.H. (counts 11 through 13), the court imposed a total term of 24 years.
FACTUAL BACKGROUND
A. Prosecution Evidence
J.H., who was born in 1988, testified that when she was approximately six years old, appellant masturbated in front of her and ejaculated in her mouth. Two or three times a month, until she was nine years old, he touched her inappropriately while masturbating. When J.H was 13 years old, appellant began to perform oral sex on her. After she turned 14, his misconduct halted when she insisted that he stop.
J.H. further testified that in 2006, she described the abuse to her boyfriend, Jose Beltran, and his parents, and stopped residing with appellant. In 2007, after she began living with her grandmother, Hilda Jepsen, she told Jepsen about appellant's misconduct. J.H. also discussed the abuse with appellant, who said that he "was sorry for it." Later, when J.H. tried to remove her brothers S.H. and C.H. from appellant's household, appellant denied abusing S.H. and C.H., but did not deny that he had subjected J.H. to abuse.
S.H., who was born in 1989, testified that appellant began molesting him when he was seven or eight years old. Initially, appellant directed S.H. to touch appellant's penis and ejaculate him while appellant touched S.H.'s penis. For two months, appellant engaged in this misconduct once or twice a week. Appellant then began to engage in oral sex and anal sexual intercourse with S.H. once or twice a week. The abuse ended when S.H. was 13 years old. In late 2008, S.H. described the misconduct to J.H, after she told S.H. that appellant had also abused her.
At the time of trial, C.H. was 18 years old, but functioned at the mental level of a 10-year old. C.H. testified that after J.H. left the family residence, appellant orally copulated C.H. and inserted his fingers and penis in C.H.'s anus. Appellant also directed C.H. to copulate him orally.
Several witnesses testified that from 2006 to 2008, J.H. and S.H. made statements describing appellant's abuse. Jose Beltran, J.H.'s boyfriend in 2007, testified that when he confronted appellant regarding his misconduct involving J.H., appellant said that he was sorry and asked, "Are you going to hold that over my head for . . . the rest of my life?"
In contrast to these witnesses, Jepsen denied that J.H. told her that appellant had abused her. The jury heard a recording of a phone conversation between Jepsen and an investigating officer in which she acknowledged that "years ago," J.H. told her that appellant did "some inappropriate sexual things with [J.H.]."
In addition to these witnesses, Andrea Trigueiro, the victims' mother, testified that she and appellant separated in 2003 or 2004. According to Trigueiro, she discovered appellant and J.H. naked together on a couch when J.H. was eight years old. Trigueiro related the incident to a friend, Dana Mackay, whom she believed to be a "mandatory reporter." When Trigueiro confronted appellant regarding the incident, he responded, "[Y]ou go ahead and say it because it's my word against yours."
Dana and Mark McKay testified that Triguero first described the incident to them in 2004, several years after it occurred. Dana McKay then reported the incident to a social services agency.
B. Defense Evidence
Appellant denied that he engaged in sexual misconduct with J.H., S.H., and C.H. According to appellant, he had tried only to impose reasonable rules of conduct on his children, who resented his efforts. He viewed his relationships with his children as good. He testified that prior to his arrest, no one had accused him of sexual abuse.
In rebuttal, the prosecution submitted evidence that appellant, while in jail, referred to his children in phone conversations as "the pigs."
DISCUSSION
Appellant contends there was sentencing error. He argues that the trial court erred in imposing (1) consecutive terms on the counts involving S.H. and J.H. (counts 1 through 10), and (2) full consecutive terms on the counts involving C.H. (counts 11 through 13).
A. Governing Principles
Appellant was convicted of offenses under the One Strike law, which requires the imposition of indeterminate terms, as well as other offenses punishable by determinate terms. Generally, indeterminate term crimes and determinate term crimes are subject to different sentencing schemes. (People v. Neely (2009) 176 Cal.App.4th 787, 797.) "Such sentencing has been conceptualized as sentencing in separate boxes." (Id. at p. 798.) The trial court separately determines the sentences to be imposed for each category of crime, and then "combines the two to reach an aggregate total sentence. Nothing in the sentencing for the determinate term crimes is affected by the sentence for the indeterminate term crime[s]." (Ibid.)When the defendant is sentenced to determinate and indeterminate terms, the determinate term is served first. (People v. Garza (2003) 107 Cal.App.4th 1081, 1094.)
The violations of section 288, subdivision (a), against S.H. and J.H. (counts 1 to 10) are subject to indeterminate terms under the One Strike law, which "sets forth an alternative and harsher sentencing scheme for certain enumerated sex crimes perpetrated by force, including rape, foreign object penetration, sodomy, and oral copulation." (People v. Mancebo (2002) 27 Cal.4th 735, 741.) The version of the One Strike law pertinent here mandated the imposition of a 15-year-to-life sentence for certain violations of section 288, subdivision (a), in specified circumstances, including the following: "The defendant has been convicted in the present case or cases of committing [an eligible offense under section 288, subdivision (a)] against more than one victim." (§ 667.61, subd. (b), former subds. (c)(7), (e)(5).) The jury found that this requirement was satisfied in connection with all ten counts involving S.H. and J.H.
In contrast, the three offenses against C.H. (counts 11, 12, and 13) are subject to determinate terms. Each has the same range of low, middle, and high terms, that is, three, six, and eight years. (§ 286, subd. (g); § 288a, subd. (g); § 289, subd. (b).) Generally, section 1170.1 establishes the "sentencing protocol" for offenses with determinate terms (People v. Neely, supra, 176 Cal.App.4th at p. 797), unless the offenses fall under a special sentencing scheme (People v. Pelayo (1999) 69 Cal.App.4th 115, 123).
Sentencing pursuant to section 1170.1 involves a three-step procedure. (People v. Neely, supra, 176 Cal.App.4th at pp. 797-798.) "First, the trial court is required to select a base term -- either the statutory low, middle or upper term -- for each of the crimes. [Citation.] Second, if the court determines that a consecutive sentence is merited, it must designate the crime with the 'greatest' selected base term as the principal term and the other crimes as subordinate terms. [Citation.] Third, the court sentences the defendant to the full base term it selected for the principal term crime and one-third of the middle term for any crimes for which the sentence is ordered to run consecutively. [Citations.] A subordinate term is one-third of the middle term even if the trial court had initially selected the lower or upper term as the base term." (Ibid., italics deleted.)
Certain sex crimes are treated differently. (People v. Pelayo, supra, 69 Cal.App.4th at p. 123.) In 1979, the Legislature enacted section 667.6 to increase prison terms for a group of violent sex crimes. (Ibid.) Section 667.6 permits the imposition of "a full, separate, and consecutive term" for these offenses. (§ 667.6, subds. (c), (d), (e).)
B. Underlying Proceedings
The prosecution's sentencing memorandum urged the trial court to consider three aggravating factors in imposing sentence: (1) that appellant's offenses "involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness" (Cal. Rules of Court, rule 4.421(a)(1)); (2) that the victims were "particularly vulnerable" (Cal. Rules of Court, rule 4.421(a)(3)); and (3) that appellant had taken advantage of a position of trust to commit the offense (Cal. Rules of Court, rule 4.421(a)(11)). Regarding the offenses against S.H. and J.H. (counts 1 through 10), the memorandum requested that the court impose consecutive terms of 15 years to life. In addition, regarding the offenses against C.H. (counts 11 through 13), the memorandum asked the court to impose the high term of eight years on the offense under subdivision (g) of section 286 (count 11), and consecutive two-year terms on each of the two remaining counts.
At the sentencing hearing, the trial court found that the crimes involved a "high degree of cruelty," and that the victims were "particularly vulnerable." After denying probation, the court imposed a term of 15 years to life under the One Strike law on each of the ten counts involving S.H. and J.H. Furthermore, on each of the three counts involving C.H., the court imposed the high term of eight years. The court ordered the terms to be served consecutively, resulting in a total sentence comprising a determinate term of 24 years and an indeterminate term of 150 years to life.
In ruling, the court remarked: "If I am mistaken about the issue of a determinate term imposed consecutive to an indeterminate term, I reserve the right to correct that. It just may be that it's one-third of the midterm." At the close of the hearing, the court asked the prosecutor to investigate the issue.
C. One Strike Sentencing
Pointing to subdivision (i) of section 667.61 (subdivision (i)), appellant contends the trial court improperly ordered that the indeterminate terms on counts 1 through 10 be served consecutively. We disagree.
The One Strike law was first amended to include subdivision (i) in 2006. (Stats. 2006, ch. 337, § 33, No. 8 West's Cal. Legis. Service, p. 2167.) In pertinent part, the current version of subdivision (i) states that for a specified group of offenses, "the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions." Appellant argues that the trial court lacked the authority to impose the consecutive terms because subdivision (i) does not encompass offenses under section 288, subdivision (a).
Appellant offers no explanation why subdivision (i) applies retroactively to the offenses, which occurred on or before June 20, 2003. However, it is unnecessary for us to address this question. As explained below, appellant's contention fails because it is relies on an incorrect interpretation of subdivision (i).
In People v. Valdez (2011) 193 Cal.App.4th 1515 (Valdez)),the appellate court rejected the same contention on essentially similar facts. There, the defendant was convicted on seven counts of violating section 288, subdivision (a), involving three victims. (Valdez, supra, 193 Cal.App.4th at p. 1518.) In sentencing the defendant under the One Strike law, the trial court imposed consecutive 15-year-to-life terms on the offenses. (Valdez, supra, at p. 1521.) On appeal, the defendant asserted that subdivision (i) bars consecutive sentencing when the underlying offenses are violations of section 288, subdivision (a). The appellate court disagreed, stating: "[N]othing in subdivision (i) purports to proscribe the imposition of consecutive one strike sentences for those whose predicate offense was under section 288, subdivision (a). To the contrary, it merely provides a limitation on the mandatory imposition of such terms, which by implication leaves the decision to impose consecutive or concurrent terms to the sentencing court's discretion under section 669." (Valdez, supra, at p. 1524.)
We find Valdez persuasive on this issue. Section 669 provides that "[w]hen [the defendant] is convicted of two or more crimes," the trial court is to "direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively." Prior to the inclusion of subdivision (i) in the One Strike law, at least one appellate court concluded that nothing in the One Strike law (as then effective) curbed the trial court's discretion under section 669 to impose concurrent or consecutive 15-year-to-life terms pursuant to section 667.61, subdivision (b). (People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262.) Because subdivision (i) of section 667.61 does not suggest that consecutive sentencing is prohibited in the circumstances before us, it does not limit the trial court's discretion to impose consecutive terms.
Appellant does not contend that the trial court erroneously believed it was compelled to impose consecutive terms under subdivision (i). However, any such contention would fail on the record before us, which contains no suggestion the trial court held this belief. (People v. Gutierrez (2009) 174 Cal.App.4th 515, 527.)
Pointing to People v. Goodliffe (2009) 177 Cal.App.4th 723, appellant maintains that subdivision (i) of the One Strike law bars consecutive terms for multiple offenses of section 288, subdivision (a). He is mistaken. In Goodliffe, the appellate court addressed amendments to section 667.6 mandated by the proposition known as "Jessica's Law" (Prop. 83, approved Nov. 7, 2006, eff. Nov. 8, 2006). (Goodliffe, supra, 177 Cal.App.4th at pp. 726-728 & fn. 6.) Prior to Jessica's Law, subdivision (c) of section 667.6 permitted the trial court to impose full consecutive terms for enumerated offenses "whether or not the crimes were committed during a single transaction." (Goodliffe, supra, at p. 728, italics omitted.) Jessica's Law amended this provision to permit full consecutive terms for the enumerated offenses "if the crimes involved the same victim on the same occasion." (Goodliffe, at p. 727, italics omitted.) The appellate court held that the amended provision no longer authorized full consecutive terms for crimes not committed in a single transaction, as Jessica's Law had expressly repealed the statutory language allowing such sentencing and replaced it with more restrictive language. (Goodliffe, at pp. 727-732.)
Here, unlike Goodliffe, the inclusion of subdivision (i) in the One Strike law did not materially alter the statutory language previously interpreted to permit consecutive sentencing. Instead, as explained above, subdivision (i) merely mandates consecutive sentencing in specified circumstances. For this reason, the amendment of the One Strike law to include subdivision (i) did not curtail the trial court's discretion to impose consecutive terms in contexts outside the specified circumstances. In sum, the trial court did not err in imposing consecutive indeterminate terms.
D. Determinate Term Sentencing
Regarding the offenses against C.H. (counts 11, 12 and 13), appellant maintains that the trial court erred in sentencing him to "full consecutive terms." His sole contention is that although section 667.6 permits the imposition of full consecutive terms on certain sex offenses, the offenses against C.H. fall outside section 667.6. As explained below, to the extent the court imposed the full high term on each count, we conclude that appellant's sentence is improper. Respondent acknowledges this error.
We agree that section 667.6 is inapplicable to appellant's offenses against C.H. (§ 286, subd. (g); 288a, subd. (g); § 289, subd. (b)). Subdivisions (c) and (d) of section 667.6 permit the imposition of "a full, separate, and consecutive term" for specified sex crimes. However, subdivision (e) of section 667.6, which enumerates these crimes, does not include the offenses against C.H.
Subdivision (e) of section 667.6 states: "This section shall apply to the following offenses: [¶] (1) Rape, in violation of paragraph (2), (3), (6), or (7) of subdivision (a) of Section 261. [¶] (2) Spousal rape, in violation of paragraph (1), (4), or (5) of subdivision (a) of Section 262. [¶] (3) Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1. [¶] (4) Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d) or (k), of Section 286. [¶] (5) Lewd or lascivious act, in violation of subdivision (b) of Section 288. [¶] (6) Continuous sexual abuse of a child, in violation of Section 288.5. [¶] (7) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d) or (k), of Section 288a. [¶] (8) Sexual penetration, in violation of subdivision (a) or (g) of Section 289. [¶] (9) As a present offense under subdivision (c) or (d), assault with intent to commit a specified sexual offense, in violation of Section 220. [¶] (10) As a prior conviction under subdivision (a) or (b), an offense committed in another jurisdiction that includes all of the elements of an offense specified in this subdivision."
Because the counts involving C.H. fall outside section 667.6, they are subject to sentencing under section 1170.1. (People v. Pelayo, supra, 69 Cal.App.4th at p. 123.) However, it is unnecessary to remand the matter to the trial court for resentencing because the error can be corrected on appeal. As noted above (see pt. B., ante), when the trial court selected the high term for the offenses and ordered consecutive terms, it recognized that it might be required to impose only "one-third of the midterm" on two of the counts. In view of the trial court's determinations, the only issue that must be resolved in order to impose a sentence under section 1170.1 is the selection of the principal term. As the three counts have the same range of high, middle, and low terms (respectively, 8, 6, and 3 years), appellant's total determinate sentence for the counts involving C.H. is 12 years, regardless of the count identified as the principal term. Because the trial court indicated its willingness to heed the prosecutor's recommendations on this matter, we select as the principal term the offense identified in the prosecution's sentencing memorandum, namely, the violation of subdivision (g) of section 286 (count 11). Accordingly, in addition to the eight-year term of imprisonment imposed on count 11, a two-year term of imprisonment must be imposed on each of counts 12 and 13.
Appellate courts may properly intervene to prevent a so-called "'unauthorized sentence'" when the error is "'clear and correctable'" (People v. Scott (1994) 9 Cal.4th 331, 353-354, quoting People v. Welch (1993) 5 Cal.4th 228, 235).
Appellant does not dispute that the two aggravating factors identified by the trial court provide an adequate basis for its selection of the high term and consecutive sentencing. (See People v. Osband (1996) 13 Cal.4th 622, 728-729.) As he raises no challenge to these discretionary choices, he has forfeited any contention of error regarding them. (See People v. Scott, supra, 9 Cal.4th at pp. 354-355.)
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DISPOSITION
The judgment is reversed with respect to the sentences imposed on counts 12 and 13, which are modified to 2-year terms on each count. The judgment is otherwise affirmed in all respects. The trial court is directed to prepare an amended abstract of judgment that fully reflects the sentences imposed on counts 12 and 13 (see pt. D., ante), and to forward a copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J. We concur: WILLHITE, Acting P. J. SUZUKAWA, J.