Opinion
C096798
02-08-2024
THE PEOPLE, Plaintiff and Respondent, v. NEHEMIAH MAURICEBIRDSONG WATSON, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 20FE016547.
MESIWALA, J.
A jury found defendant guilty of nine counts of lewd and lascivious acts upon a child under age 14 (Pen. Code, § 288, subd. (a); all further section references are to this code). The trial court sentenced him to the upper term for one count and consecutive two-year terms for the remaining counts. Defendant contends remand for resentencing is required as to the upper term count because the trial court relied on (1) an aggravating factor the jury did not consider and (2) three aggravating factors unsupported by substantial evidence. He also contends the court erred in imposing a consecutive term on one of the other counts. To the extent we conclude any of these claims are forfeited, defendant contends he received ineffective assistance of counsel.
As to the aggravating factor the jury did not consider, we conclude defendant forfeited his challenge and has not shown ineffective assistance of counsel. As to defendant's other claims, we conclude they lack merit. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with four counts of lewd and lascivious acts upon Ar. Doe, a child under age 14 (§ 288, subd. (a); counts one, two, three, and four), and three counts of lewd and lascivious acts upon An. Doe, a child also under age 14 (counts five, six, seven). As to another child, defendant was charged with two counts of lewd and lascivious acts upon a child under age 14 (counts eight and nine), two counts of lewd and lascivious acts by force or threat upon a child under age 14 (§ 288, subd. (b)(1); counts 10 and 12), and two counts of unlawful sexual intercourse with a child under age 10 (§ 288.7, subd. (a); counts 11 and 13). The prosecution alleged the following aggravating factors as to all counts: (1) the crimes involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness (the callousness factor); (2) the victim was particularly vulnerable (the particularly vulnerable factor); (3) the manner in which the crimes were carried out indicates planning, sophistication, or professionalism (the planning factor); (4) defendant took advantage of a position of trust or confidence to commit the offenses (the trust factor); and (5) defendant engaged in violent conduct that indicates a serious danger to society (the violent conduct factor).
The prosecution later dismissed counts 10, 11, 12, and 13 for insufficient evidence, leaving nine counts; dismissed the violent conduct factor, leaving four aggravating factors; and modified the callousness factor to eliminate any reference to actual bodily harm or great violence.
Because defendant's appeal focuses on counts one, five, and six, we focus the remaining background on those counts. Count one charged defendant with placing his "fingers to clothed genitalia around [] horsey time" upon Ar. Doe. Count five alleged that defendant placed his fingers under An. Doe's clothes above her genitalia with the intent of arousing, appealing to, and gratifying defendant's and An.'s lust, passions, and sexual desires. Count six alleged defendant also placed his fingers up An. Doe's pant leg area near her butt with the same intent.
At trial, Ar. Doe testified that defendant, a friend of her dad, babysat her at her house when she was six to eight years old. Defendant often rubbed her vagina with his two fingers over her clothes. The first time this happened was when she was around five or six years old and much smaller in size than defendant. She and defendant played a horse game where defendant "would sit on the floor on all fours, and [she] would get on his back." Defendant told her that "for [her] to be able to play the game, he wanted to touch [her]." He picked her up with one hand under her legs and the other hand rubbing on her vagina over her clothes for about a minute. Ar. testified that the area he touched was throbbing and felt weird and that she did not feel she could get away from defendant because he was holding her tight. She (1) didn't tell anyone about this because she "didn't see anything wrong with it"; (2) didn't know what kind of touch this was at age five or six; and (3) now feels bad that this "happened in the first place."
An. testified that when she was 12, she lived with her mom, grandma, and three siblings in a two-bedroom apartment, where she and her siblings would sleep on two couches. Defendant was her mom's boyfriend and would come over after work. One time when he came over, she was "halfway laying" on a couch when he lifted her legs up to sit on the couch, rubbed her "lower, lower stomach" under the clothes, and then tried to "rub on [her] legs." She told him to stop and pushed his hand away but "[h]e kept going." She also tried to get up, but he pushed her back down or had her sit right back down. And she tried to take her legs off his lap, but he would put them right back.
The prosecutor asked her if defendant touched her anywhere else with her legs on his lap and An. responded, "Yeah." Her legs were up, knees bent, with her "feet planted in a certain area." Defendant handed her his phone to play a game and then put his hand up through the bottom of her pants and rubbed her leg almost to her butt.
The jury found defendant guilty on all nine counts and found the four alleged aggravating factors true. In August 2022, the court sentenced defendant to 24 years in prison, comprised of the upper term of 8 years on count one and two-year consecutive terms for counts two through nine. As to the upper term on count one, the court concluded "there was a substantial basis for the jury to find the factors in aggravation that it did," and even if the jury had not found the victims were particularly vulnerable, the court would "still impose an aggravated term based on the sum total of aggravating factors the jury has identified and found true," including "engaging in conduct - violent conduct - indicating a danger to society - serious danger." As to the consecutive terms, the court found that the offenses "were committed at different times over a period of time. They were not one-off or an idiosyncratic or a bad-day kind of event .... This was a concerted, continuous conduct."
Defendant filed a timely notice of appeal. He challenges the upper term on count one and the consecutive terms on counts five and six.
DISCUSSION
I
Upper Term on Count One
Defendant contends the trial court prejudicially erred in selecting the upper term for count one in two ways: (1) the court improperly relied on the violent conduct factor that the jury did not consider, and (2) three of the four remaining aggravating factors on which the court relied lacked sufficient evidence. We disagree and address each contention separately below.
A. Violent Conduct Factor
As of January 1, 2022, trial courts may impose the upper term "only when there are circumstances in aggravation of the crime that justify" that term and "the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." (§ 1170, subd. (b)(2).) This limit on the trial court's discretion to impose the upper term took effect through the enactment of Senate Bill No. 567 of the 2021-2022 Regular Session (Senate Bill No. 567).
Here, the trial court imposed the upper term because "there was a substantial basis for the jury to find the factors in aggravation that it did." The trial court further stated that even if the jury had not found the victims were particularly vulnerable, the court would "still impose an aggravated term based on the sum total of aggravating factors that the jury has identified and found true," including "engaging in conduct - violent conduct - indicating a danger to society - serious danger."
Defendant takes issue with the court's reference to "violent conduct" because, as the People concede, the violent conduct allegation had been dismissed. But this issue has been forfeited. (See People v. Tilley (2023) 92 Cal.App.5th 772, 778 (Tilley).) Sentencing occurred in August 2022, over eight months after Senate Bill No. 567 became effective, and defendant's trial counsel did not object on this basis. There is no merit to defendant's contention that forfeiture is inapplicable because the trial court imposed an "unauthorized sentence." Being sentenced to the upper term is not an unauthorized sentence. (People v. Achane (2023) 92 Cal.App.5th 1037, 1043-1044; People v. Scott (1994) 9 Cal.4th 331, 354.)
Anticipating our forfeiture conclusion, defendant raises an ineffective assistance of counsel claim. To establish such ineffective assistance, defendant must show: (1) his counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. (Tilley, supra, 92 Cal.App.5th at p. 778.) To show prejudice, defendant must show a reasonable probability of a different result but for his counsel's errors. (Ibid.) As discussed below, the prejudice requirement alone defeats defendant's contention. (Strickland v. Washington (1984) 466 U.S. 668, 697 ["If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed"].)
A single aggravating circumstance is sufficient to impose an upper term sentence. (People v. Lopez (2022) 78 Cal.App.5th 459, 467.) Thus, a trial court is permitted to impose an upper term sentence based on any of the aggravating factors the jury finds true that justify exceeding the middle term. Here, the jury found four factors in aggravation, including, as the trial court emphasized in sentencing, the callousness factor and the particularly vulnerable factor. The court stated that the "circumstances in aggravation are substantial" and substantially outweigh the single mitigating factor. The court further noted that even if the vulnerability factor was not found true, it would "still impose an aggravated term based on the sum total of aggravating factors." Those factors include the planning factor and the trust factor, the latter of which defendant does not challenge on appeal. These statements indicate that selection of the upper term was not a close call and that the violent conduct factor was not determinative in making that call. (Cf. People v. Zabelle (2022) 80 Cal.App.5th 1098, 1115.)
We conclude it is not reasonably probable the court would have imposed a sentence lower than the upper term if the court had known reliance on the violent conduct factor was improper.
B. Sufficient Evidence of Three Aggravating Factors
Defendant claims there was insufficient evidence to support the jury's true findings on the particularly vulnerable factor, the callousness factor, and the planning factor. Our review of this claim is limited. We review the evidence "in the light most favorable to the judgment below to determine whether it discloses substantial evidence- that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the [aggravating circumstance] beyond a reasonable doubt.'" (People v. Boyce (2014) 59 Cal.4th 672, 691.) We also presume the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Medina (2009) 46 Cal.4th 913, 919.) In making this determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Manibusan (2013) 58 Cal.4th 40, 87.) Applying this standard of review, we conclude defendant's claims lack merit.
1. Particularly Vulnerable Factor
For purposes of the particularly vulnerable factor,"' "particularly . . . means in a special or unusual degree, to an extent greater than in other cases" '" and"' "[v]ulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant's criminal act." '" (People v. DeHoyos (2013) 57 Cal.4th 79, 154.) Defendant contends the jury relied solely, and improperly, on Ar.'s youth and his caregiver role to find Ar. particularly vulnerable. As to youth, he contends reliance on Ar.'s age was improper because age is an element of the offense. And as to defendant's caregiver role, he contends reliance on this fact was improper because it was also used to support the trust factor. As explained below, we disagree.
Defendant relies on the prosecutor's closing argument emphasizing Ar. was "exceptionally young" and "the fact that defendant was a caregiver for" her. But closing arguments are not evidence, and the jury heard evidence supporting Ar.'s particular vulnerability. (People v. Perez (1992) 2 Cal.4th 1117, 1126) For instance, Ar. testified she was much smaller than defendant; defendant picked up her with his arms under her legs and started touching her; and she felt she could not get away from defendant because he was holding her tight. Furthermore, while minority alone is insufficient to show particular vulnerability where minority is an element of the offense, exceptional youth is distinguishable from simply being under a certain age. (Cal. Rules of Court, Rule 4.420 (h); People v. Garcia (1985) 166 Cal.App.3d 1056, 1069-1070 [extreme youth within given age range].) Ar. testified that she was between six and eight years old when the incident occurred and that she did now know what kind of touch this was then but now, at age 13, feels bad that it happened.
Based on the "total milieu in which the commission of the crime occurred," a reasonable jury could conclude that Ar. was particularly vulnerable given her extreme youth and significantly smaller size. (People v. Price (1984) 151 Cal.App.3d 803, 814 [total milieu]; People v. Garcia, supra, 166 Cal.App.3d at pp. 1069-1070 [extreme youth within given age range]; People v. Hawk (1979) 91 Cal.App.3d 938, 941 [relative disparity in size].)
2. Callousness Factor
Defendant contends that the jury improperly relied solely on his conduct and Ar.'s age to find the callousness factor true. He claims reliance on age was improper because age is an element of the offense. And he claims reliance on his conduct was improper because there was no evidence that his conduct was" 'distinctively worse'" than an "ordinary" violation of section 288, subdivision (a). We disagree.
While defendant is correct that an aggravating circumstance must "make[] the offense 'distinctively worse than the ordinary'" (People v. Black (2007) 41 Cal.4th 799, 817), "[c]ourts applying that standard have not imagined an abstract, 'ordinary case' to determine whether a finding of an aggravating circumstances is warranted by the facts of the case. Rather, they have considered whether the manner of the crime's commission was distinctively worse 'when compared to other ways in which such a crime could be committed.'" (Chavez Zepeda v. Superior Court (2023) 97 Cal.App.5th 65, 89.) As relevant here, "any touching of an underage child is 'lewd or lascivious' within the meaning of section 288 where it is committed for the purpose of sexual arousal." (People v. Martinez (1995) 11 Cal.4th 434, 445.) Thus, touching in violation of the statute "can involve 'any part' of the victim's body." (Id. at p. 444.)
This means a jury could reasonably conclude that defendant's rubbing of Ar.'s genitalia made the crime distinctively worse in terms of cruelty and callousness. Ar. testified that defendant's rubbing caused the rubbed area on her body to throb. This testimony allows for the reasonable conclusion that the way defendant committed the crime indicated viciousness or callousness distinctively worse than ordinary violations of section 288. (See People v. Esquibel (2008) 166 Cal.App.4th 539, 558 [callous means" 'insensitive; indifferent; unsympathetic' [citation], as in 'a callous indifference to the suffering of others' [citation.]"]; People v. Aguilar (1997) 58 Cal.App.4th 1196, 1201 [cruel means" '[d]isposed to give pain to others; willing or pleased to hurt or afflict; savage, inhuman, merciless' "].)
On the topic of the physical pain Ar. experienced, the People urge us to find support for the cruelty factor in Ar.'s Special Assault Forensic Evaluation (SAFE) interview. While the recording of this interview was played to the jury, it is not part of the record on appeal, and the transcript of the recording was not admitted into evidence. Thus, we do not consider the SAFE interview on appeal. (See Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 102 ["Factual matters that are not part of the appellate record will not be considered on appeal"].)
Because we reject defendant's claim on the merits, we do not reach the People's forfeiture argument or defendant's alternative ineffective assistance of counsel claim.
3. Planning Factor
Lastly, defendant contends there was insufficient evidence to support the planning factor because "a section 288, subdivision (a) offense accomplished by means of coaxing is not 'distinctively worse' than other non-force or violence lewd and lascivious acts." We disagree. Coaxing is not an element of a section 288, subdivision (a) offense. And planning can be shown by behavior that demonstrates conduct for a particular purpose. (See, e.g., People v. Forster (1994) 29 Cal.App.4th 1746, 1758-1759.) Here, the evidence shows that defendant placed himself in a position where he could touch Ar. when other adults were not around - a fact distinguishable from the fact that defendant was friends with Ar.'s dad which supports the trust factor - and used the horse game to create the opportunity to engage in that touch. This evidence was sufficient for a reasonable jury to find the planning factor true.
And because we reject defendant's claim on the merits, we do not reach the People's forfeiture argument or defendant's alternative ineffective assistance of counsel claim.
II
Consecutive Terms for Counts Five and Six
The trial court imposed consecutive terms for all counts, finding that defendant's crimes "were committed at different times over a period of time. They were not one-off or an idiosyncratic or a bad-day kind of event .... This was a concerted, continuous conduct." Defendant argues the court erred in making this finding with respect to counts five and six. We disagree.
A trial court has broad discretion to impose prison terms on multiple offenses concurrently or consecutively. (People v. Clancey (2013) 56 Cal.4th 562, 579; see § 669.) "[I]n the absence of a clear showing that its sentencing decision was arbitrary or irrational, a trial court should be presumed to have acted to achieve legitimate sentencing objectives and, accordingly, its discretionary determination to impose consecutive sentences ought not be set aside on review." (People v. Giminez (1975) 14 Cal.3d 68, 72.) "The trial court is required to determine whether a sentence shall be consecutive or concurrent but is not required to presume in favor of concurrent sentencing. [Citations.] If it has faithfully applied the sentencing rules, the[ ]only other question is whether, all circumstances considered, the trial court's decision exceeds the bounds of reason." (People v. Reeder (1984) 152 Cal.App.3d 900, 923.)
Sentencing rules specify several criteria to guide the trial court's discretion on consecutive or concurrent terms. As relevant to this case, those criteria include: (1) whether the crimes and their objectives were predominantly independent of each other; (2) whether the crimes involved separate acts of violence or threats of violence; and (3) whether 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. (Cal. Rules of Court, rule 4.425(a).)
Here, the evidence regarding counts five and six can be reasonably interpreted to reflect two independent acts occurring at different times although temporally close together. Count five occurred when defendant rubbed the lower part of An.'s stomach while she was laying on a couch. And count six occurred when defendant as a separate act put his hand up the bottom of her pants and touched An.'s legs near her butt while laying on that same couch during the same encounter.
Defendant's reliance on An.'s memory of this encounter is unpersuasive. According to defendant, the prosecutor's questioning of An. "made clear that [An.] remembered a single incident on the couch, not two incidents separated by time or place." But as our analysis of the issue above shows, we disagree that defendant's view is the only possible way to view her testimony. And since the trial court's view of the evidence was reasonable, its decision to impose consecutive terms based on that view of the evidence was within its discretion. We thus similarly reject defendant's claim that counsel was ineffective in failing to object to the consecutive sentence on count six.
DISPOSITION
The judgment is affirmed.
We concur: HULL, Acting P. J., WISEMAN, J. [*]
[*] Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.