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People v. Williams

California Court of Appeals, Second District, Fifth Division
Aug 6, 2007
No. B193914 (Cal. Ct. App. Aug. 6, 2007)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. VINCENT ELLISON WILLIAMS, Defendant and Appellant. B193914 California Court of Appeal, Second District, Fifth Division August 6, 2007

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Los Angeles County. Philip S. Gutierrez, Judge, Los Angeles County Super. Ct. No. KA074256.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

KRIEGLER, J.

A jury convicted defendant and appellant Vincent Ellison Williams of 12 counts of the following sex offenses: forcible child molestation (Pen. Code, § 288, subd. (b)(1)), forcible sodomy (§ 286, subd. (c)), rape (§ 261, subd. (a)(2)), and child molestation (§ 288, subd. (a)). The jury returned findings that there were multiple victims as to each count within the meaning of section 667.61, subdivision (b). The trial court imposed 12 consecutive terms of 15 years to life, totaling a sentence of 180 years to life. The trial court also ordered defendant pay a $200 restitution fine (§ 1202.4, subd. (b)(1)), another $200 parole revocation fine (§ 1202.45), a $20 court security fee (§ 1465.8), and a $200 sex offense fine (§ 290.3, subd. (a)).

All further statutory references are to the Penal Code unless otherwise indicated.

It also found the multiple victim allegations under section 1203.066, subdivision (a)(7), as to counts 4-6, 8-10, and 12.

The trial court suspended this fine at the time and promised to revoke it upon defendant’s successful completion of parole.

In defendant’s timely appeal, he contends the trial court imposed consecutive terms under the mistaken belief that such terms were mandatory. The Attorney General disputes that contention and separately asserts the trial court failed to adequately fine defendant and requests he be charged an additional $220 in security fees, $200 state penalty assessment, $140 county penalty assessment, $40 state surcharge, and $100 court facilities construction surcharge. We affirm the consecutive sentencing in counts 1 through 12 and order the abstract of the judgment corrected to reflect the additional fees in accordance with the Attorney General’s position.

STATEMENT OF FACTS

Because there is no issue as to the sufficiency of evidence, we state the facts briefly in the light most favorable to the judgment. (People v. Maury (2003) 30 Cal.4th 342, 396.) Defendant committed three acts of forcible child molestation, three acts of forcible sodomy, and rape as to one of his daughter’s, B., between 1994 and 2005. Between 2002 and 2006, he committed two acts of forcible child molestation and two acts of forcible sodomy upon T., another daughter. Defendant committed a lewd act upon his son, Br., between 2004 and 2005.

DISCUSSION

I. Consecutive Sentences

Defendant contends the trial court imposed consecutive sentences under the misapprehension that the one strike law (§ 667.61) mandated full, consecutive sentencing. Defendant is correct to the extent he argues that at the time he committed the underlying offenses, the one strike law did not explicitly mandate either consecutive or concurrent sentencing, leaving that decision to the trial court’s discretion. (People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262.) The Rodriguez court explained that section 669 sets forth the general rule that sentencing courts have discretion to impose consecutive or concurrent sentences; however, it noted the presumption in favor of discretion applies “absent an express statutory provision to the contrary.” (Ibid.)

However, neither Rodriguez nor section 669 supports defendant’s appellate contention because the trial court did not rely on the one strike law when it imposed consecutive terms upon defendant. Rather, the trial court correctly applied section 667.6, subdivision (d), which is an express statutory provision requiring consecutive terms. Section 667.6, subdivision (d) “mandates consecutive sentencing on its face and as judicially interpreted.” (People v. Jackson (1998) 66 Cal.App.4th 182, 191, citing People v. Jones (1998) 46 Cal.3d 585, 598; People v. Chan (2005) 128 Cal.App.4th 408, 424.)

Section 667.6, subdivision (d) provides: “A full, separate, and consecutive term shall be imposed for each violation of . . . paragraph (2) . . . of subdivision (a) of Section 261, . . . subdivision (b) of Section 288, . . . or of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury . . . if the crimes involve separate victims or involve the same victim on separate occasions.” Defendant does not dispute the underlying convictions involved either separate victims or the same victim on separate occasions. “Since defendant’s offenses occurred on separate occasions, the trial court was required to impose consecutive indeterminate terms.” (People v. Chan, supra, 128 Cal.App.4th at p. 424.)

Although defendant is correct in noting that section 667.61, subdivision (b) and section 667.6, subdivision (d), have different standards for what constitutes a “single occasion” (see People v. Jones, supra, 25 Cal.4th at p.107), he does not argue there was insufficient evidence to support the application of section 667.6, subdivision (d), on that ground.

All of defendant’s convictions with the exception of count 12 were for enumerated offenses triggering the application of section 667.6, subdivision (d). As such, consecutive terms were mandated in counts 1-11, and the trial court had no sentencing discretion on that point. However, count 12 was for the commission of a lewd act upon a child under the age of 14 in violation of section 288, subdivision (a), which is not one of the enumerated triggering offenses under section 667.6, subdivision (d)—absent a finding that the offense was committed by force. Therefore, the mandate of consecutive sentencing did not directly apply to count 12.

Because the parties did not discuss the issue of whether the conviction on count 12 was governed by section 667.6, subdivision (d), we ordered supplemental briefing on that point.

Nevertheless, as the Attorney General points out, the trial court lacked discretion to impose a concurrent term for count 12. Under section 667.61, subdivision (b) as it existed at the relevant time, a 15-year-to-life sentence was mandated for a section 288, subdivision (a) conviction with a multiple victim finding. (§ 667.61, subd. (c)(7) [2005 version].) Although count 12 was not a qualifying offense under section 667.6, subdivision (d) at the time defendant committed the offense—and notwithstanding the fact that section 667.61 did not mandate consecutive sentencing at that time—the former statute had the indirect effect of mandating a consecutive sentence under these particular circumstances. Under section 667.6, subdivision (d), any term imposed under that section “shall be served consecutively to any other term of imprisonment and shall commence from the time the person otherwise would have been released from imprisonment.” Therefore, because there was only one non-section 667.6, subdivision (d) term at issue, it had to be computed separately and independently. (See People v. Pelayo (1999) 69 Cal.App.4th 115, 125 [“a person subject to section 667.6, subdivision (d) must be sentenced in a manner that does not dilute the impact of full, consecutive terms of imprisonment”].) This result is not only required by the plain terms of section 667.6, subdivision (d), but it is consistent with the longstanding “box theory” for making separate sentencing calculations under People v. Ottombrino (1982) 127 Cal.App.3d 574, 586, 588, footnote 4, disapproved on another point in People v. Belmontes (1983) 34 Cal.3d 335, 345. (See People v. Price (1984) 151 Cal.App.3d 803, 816; 3 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) § 383, at p. 512.)

II. Fees, Penalty Assessments, and Surcharges

The trial court failed to charge defendant the entirety of the fees required by law. Section 1465.8 provides for a $20 security fee per conviction. This section has been interpreted literally and the $20 fee is multiplied by the number of the defendant’s convictions. (See, e.g., People v. Schoeb (2005) 132 Cal.App.4th 861, 865-867 [defendant was convicted in a single proceeding of nine separate crimes and was charged nine $20 security fees totaling $180].) Defendant should have been assessed with a $20 security fee on all 12 counts, rather than one fee for the entire case. We therefore direct imposition of an additional $220 in security fees pursuant to section 1465.8.

The trial court was also required to impose two separate penalty assessments. The state penalty assessment pursuant to section 1464, subdivision (a) requires the trial court to “lev[y] a state penalty, in an amount equal to ten dollars ($10) for every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses.” The trial court imposed a $200 sex offender fine, requiring a $200 state penalty assessment. Government Code section 76000 mirrors section 1464 and requires a county penalty assessment of $7 for every $10, resulting in an undercharge of $140. (Gov. Code, § 76000, subd. (a).)

The trial court also neglected to impose a mandatory 20 percent state surcharge (§ 1465.7, subd. (a)) and a 50 percent court facilities construction charge (Gov. Code, § 70372, subd. (a)). Therefore, the trial court should have included a $40 state surcharge and a $100 construction charge.

DISPOSITION

The abstract of judgment is ordered modified to reflect a cumulative $240 court security fee, $200 state penalty assessment, $140 county penalty assessment, $40 state surcharge, and $100 court facilities construction surcharge. The trial court shall assume responsibility for delivery of an amended abstract of judgment to the Department of Corrections and Rehabilitation in a timely fashion. In all other respects, the judgment is affirmed.

We concur: ARMSTRONG, Acting P. J. MOSK, J.


Summaries of

People v. Williams

California Court of Appeals, Second District, Fifth Division
Aug 6, 2007
No. B193914 (Cal. Ct. App. Aug. 6, 2007)
Case details for

People v. Williams

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. VINCENT ELLISON WILLIAMS…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Aug 6, 2007

Citations

No. B193914 (Cal. Ct. App. Aug. 6, 2007)