Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Madera County. Super. Ct. No. MCR019164, Edward P. Moffat, Judge.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Patrick Joseph Booth was convicted of various crimes arising from a brutal home invasion. On appeal, he contends (1) insufficient evidence supported the conviction for lewd and lascivious act upon a child, (2) insufficient evidence supported the conviction for carjacking, (3) his sentence violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and (4) the trial court erred by imposing fees in excess of the statutory maximums. We will reduce the fees and affirm in all other respects.
PROCEDURAL AND FACTUAL SUMMARY
On July 18, 2004, at about 3:00 a.m., the mother and father were asleep in bed. The mother heard a strange voice and awoke to see defendant hitting the father repeatedly with a baseball bat. Their 11-year-old boy heard screaming and ran into his parents’ room and was forced onto the bed with his mother. The mother admonished him not to look at defendant out of fear that he might hurt them too. While the mother and boy hid their faces under the covers and the father lay bleeding on the floor, defendant ransacked the room.
Defendant forced the family into the small hallway bathroom. He removed the boy and told him to help move boxes. Defendant told him to play the tape that was in the videotape player. The boy played the tape, but realized it contained pornography and turned it off. When defendant asked him why he had turned it off, the boy said he was “not allowed to watch that.” Defendant told the boy he could pick out some of his things to keep. They went to the boy’s room and he chose to keep his games and cards, although defendant ultimately took them.
The mother testified the tape did not belong to the household.
Defendant had repeatedly asked about a gun and when the boy again said there were no guns in the house, defendant said he would give him a “truth shot.” He said he would give it either to the boy or to his father, although his father might not survive it in his condition. The boy agreed to take the shot, but voiced his concern that it contained poison. To prove it was not poison, defendant injected himself first, then injected the boy. The substance was later determined to be methamphetamine.
Defendant asked the boy whether he had “ever had sex” and if his “thing ever got hard.” The boy replied, “[N]o.” Defendant told the boy, “[Y]ou’re about to so don’t fight it.” Defendant grabbed the boy’s pants and pulled one side down. The boy struggled and tried to run away, but defendant pulled him to the ground and hit him on the back of the head. Defendant wrapped his arm around the boy’s neck and strangled him. The boy screamed and said he could not breathe. The boy’s parents believed the boy was being murdered. Defendant released the boy. Defendant said he was not “like that and he just wanted to see what it was like.” As defendant returned the boy to the bathroom, defendant said, “[I]t was fun. Right? It was just a game. It was just a game.” The boy agreed it was “a fun game.” In the bathroom, the boy was ill and hallucinated from the methamphetamine.
Defendant locked the bathroom door from the outside. The family heard defendant and another man loading items into the family’s Ford Expedition, which was parked in the driveway. They could hear the vehicle repeatedly leaving and returning. The mother believed defendant took the vehicle’s keys from her purse. He had previously taken her bank card and some cash from her purse. The mother did not try to stop defendant from taking the vehicle because she was afraid. Defendant took numerous items, including the vehicle, from the home. About 24 hours after the ordeal began, the mother was able to break the lock and run for help.
On November 9, 2005, defendant was charged with 10 counts, as follows: attempted murder (Pen. Code, §§ 664, 187, subd. (a); count 1); assault with a deadly weapon (§ 245, subd. (a)(1); count 2); robbery (§ 211; count 3); first degree burglary (§ 459; count 4); lewd and lascivious act upon a child by use of force or violence (§ 288, subd. (b)(1); count 5); carjacking (§ 215, subd. (a); count 6); administering methamphetamine to a minor (Health & Saf. Code, § 11380, subd. (a); count 7); and three counts of false imprisonment (§ 236; counts 8-10). A jury found defendant guilty as charged and the court sentenced him to a prison term of life with the possibility of parole on count 1, 25 years to life on count 5 to be served consecutively to count 1, plus an aggregate determinate term of 22 years and 8 months on the remaining counts, including upper terms on counts 2, 3 and 4, and various enhancements. The court also imposed two $48,000 fines.
All statutory references are to the Penal Code unless otherwise noted.
DISCUSSION
I. Sufficiency of the Evidence -- Lewd and Lascivious Act
Defendant contends there was insufficient evidence to support the conviction for a lewd and lascivious act upon a child because the touching was merely an attempt toward accomplishing a lewd and lascivious act rather than the intended lewd and lascivious act itself, which was sexual intercourse.
“‘To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Bolden (2002) 29 Cal.4th 515, 553.) We must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) It is not our function to reweigh the evidence, reappraise the credibility of witnesses or resolve factual conflicts, as these are functions reserved for the trier of fact. We look for substantial evidence, and we may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.) “This standard applies whether direct or circumstantial evidence is involved.” (People v. Catlin (2001) 26 Cal.4th 81, 139.)
Although we review the whole record, “[t]he uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable.” (People v. Scott (1978) 21 Cal.3d 284, 296; People v. Panah (2005) 35 Cal.4th 395, 489.) Furthermore, “‘“‘[c]ircumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’” [Citations.]’ [Citations.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jury’s findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (Ibid.; People v. Panah, supra, 35 Cal.4th at p. 488.)
“[S]ection 288 prohibits all forms of sexually motivated contact with an underage child. Indeed, the ‘gist’ of the offense has always been the defendant’s intent to sexually exploit a child, not the nature of the offending act. [Citation.]” (People v. Martinez (1995) 11 Cal.4th 434, 444 (Martinez).) Thus, “section 288 is violated by ‘any touching’ of an underage child committed with the intent to sexually arouse either the defendant or the child.” (Id. at p. 442.) “‘[T]he purpose of the perpetrator in touching the child is the controlling factor and each case is to be examined in the light of the intent with which the act was done.... If [the] intent of the act, although it may have the outward appearance of innocence, is to arouse ... the lust, the passion or the sexual desire of the perpetrator [or the child,] it stands condemned by the statute....’ [Citation.]” (Id. at p. 444.)
Although a touching is required and sexual gratification must be presently intended at the time of the touching, the form, manner or nature of the touching is not limited. (Martinez, supra, 11 Cal.4th at p. 444.) Thus, “[c]onviction under the statute has never depended upon contact with the bare skin or ‘private parts’ of the defendant or the victim. [Citations.] Stated differently, a lewd or lascivious act can occur through the victim’s clothing and can involve ‘any part’ of the victim’s body. [Citations.]” (Ibid.)
In this case, there can be no question of intent. Defendant made the boy watch a pornographic video, asked him sexual questions, injected him with methamphetamine and informed him he was about to have sex. These events immediately preceded the touching and established that defendant was sexually motivated when he grabbed the boy’s pants and pulled them down on one side as the boy struggled. The fact that defendant did not achieve his desired result did not negate his intent or render innocent the touching that he did accomplish. (See, e.g., People v. Austin (1980) 111 Cal.App.3d 110, 112 [act of pushing child into secluded spot not insufficient as a matter of law to constitute lewd and lascivious conduct].) Under these circumstances, there is no doubt that defendant’s intent when he touched the boy was to sexually arouse himself or the boy.
There is no merit to defendant’s argument that his touching of the boy was only an attempt to commit a lewd or lascivious act -- sexual intercourse -- rather than a touching for the purpose of sexual arousal. First, we see no logic to the argument that defendant’s ultimate goal of penetration was sexually motivated but his acts toward that goal were not. As we have said, the circumstances established defendant’s intent. Furthermore, even if defendant intended to commit the crime of sexual penetration and failed to do so, he nevertheless committed another crime when he touched the boy with the intent to sexually arouse. Defendant was not charged with attempted sexual penetration; he was charged with a lewd or lascivious touching. And he committed a touching, not an attempted touching. Partially pulling down the boy’s pants was itself a lewd or lascivious touching. Thus, there was substantial evidence of a touching committed with an intent to sexually arouse. Sufficient evidence therefore supported the conviction.
Attempted touchings include invitations and inducements to immediately engage in lewd conduct, such as offering victims money and drugs for sex (People v. Ansaldo (1998) 60 Cal.App.4th 1190, 1192-1193) and offering victims money for sex and inviting them for a drive (People v. Herman (2002) 97 Cal.App.4th 1369, 1386-1387). Showing the boy pornography and telling him he was about to have sex might also qualify as an attempted touching.
II. Sufficiency of the Evidence -- Carjacking
Defendant asserts there was insufficient evidence to support the carjacking conviction because there was no evidence that the vehicle or the keys to the vehicle were taken by force from the victim’s immediate presence. He argues that although the record may support a finding that the keys were gone, it does not establish that he took them from a family member or from the house in the presence of a family member. He suggests the keys could have been in the car or in the front door. Because no force was used to take the keys, he contends the taking of the vehicle was merely vehicle theft, and he asks that we modify the judgment accordingly.
“‘Carjacking’ is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.” (§ 215, subd. (a).)
In order to prove the crime of carjacking, each of the following elements must be proved: (1) the defendant took a motor vehicle that was not his own; (2) the vehicle was taken from the immediate presence of a person who possessed the vehicle or was its passenger; (3) the vehicle was taken against that person’s will; (4) the defendant used force or fear to take the vehicle or to prevent that person from resisting; and (5) when the defendant used force or fear to take the vehicle, he intended to deprive the other person of possession of the vehicle either temporarily or permanently. (CALCRIM No. 1650.)
Appellate courts have taken an expansive view of the “immediate presence” element of carjacking. (People v. Medina (1995) 39 Cal.App.4th 643, 650.) Thus, a vehicle is in the immediate presence of a person when the vehicle is so within his or her reach, inspection, observation or control, that he or she could, if not overcome by violence or prevented by fear, retain his or her possession of it. (Id. at p. 648; People v. Hayes (1990) 52 Cal.3d 577, 627 [robbery]; CALCRIM No. 1650.) “[P]roperty may be found to be in the victim’s immediate presence ‘even though it is located in another room of the house, or in another building on [the] premises.’ [Citations.]” (People v. Hayes, supra, at p. 627.)
As courts have repeatedly observed, the carjacking statute is modeled on the robbery statute. (In re Travis W. (2003) 107 Cal.App.4th 368, 374-377, and cases cited therein.) While carjacking and robbery are distinct crimes, they are closely related and cases regarding robbery are instructive regarding carjacking because the elements and statutory language of the two offenses are similar. (People v. Lopez (2003) 31 Cal.4th 1051, 1059-1061.)
In this case, there was substantial evidence that defendant took the keys and the vehicle by force or fear from the immediate presence of the mother and the father. Defendant entered the residence while everyone was asleep, brutally beat the father, forced the family into a bathroom, injected the boy with drugs, touched the boy with sexual intent, beat the boy and ransacked the family’s home. The mother was afraid to look at defendant, and she admonished the boy not to do so, because she feared defendant would have reason to harm or kill them. The vehicle was outside in the driveway, close enough that the family could hear it being loaded, driven away, and brought back to the house. Although the mother and father were not in the vehicle or even in view of it while it was being taken, they were in an area in which they easily could have exercised physical control over both the keys and the vehicle had they not been brutally beaten, locked in the bathroom, or too frightened to do so. (People v. Harris (1994) 9 Cal.4th 407, 422 [immediate presence requirement satisfied where victim was forcibly detained and otherwise could have taken effective physical steps to retain control of his property and to prevent defendant and his companions from stealing it]; People v. Ramos (1982) 30 Cal.3d 553, revd. on other grounds sub nom. California v. Ramos (1983) 463 U.S. 992 [victims were put in a walk-in refrigerator while money was taken from a cash register]; People v. Gordon (1982) 136 Cal.App.3d 519 [victims were tied up in one room while property was taken from another room]; see also People v. Hoard (2002) 103 Cal.App.4th 599 [defendant took car keys from victim at gunpoint inside jewelry store then took car from parking lot; if victim had not been forced to relinquish her keys, she could have kept possession and control of the keys and the car].) But for the force of defendant’s acts and the fear generated by them, the mother or father could have retained possession of the keys and the vehicle.
CALCRIM No. 1650 defines fear as fear of injury to the person himself or herself, injury to the person’s family or property, or immediate injury to someone else present during the incident or to that person’s property.
It was unimportant that the mother or father did not know specifically how and when the keys were taken. (See, e.g., People v. Harris, supra, 9 Cal.4th at pp. 422-424.) The mother believed the keys had been in her purse and defendant had already taken other items from her purse. Thus, it was inferable that he took the keys from her purse, or at least from inside the house. Defendant’s alternate suggestions that the keys happened to be in the front door or in the vehicle find no support in the record.
In his supplemental brief, defendant contends the recent case of People v. Coleman (2007) 146 Cal.App.4th 1363 (Coleman) calls into question the courts’ broad interpretation of immediate presence. In that case, the defendant entered a glass shop, pointed a gun at the office manager and demanded the keys to a truck parked outside. The truck belonged to the owner of the business; the keys were kept, along with other employees’ car keys, in a closet to which the office manager had access. She retrieved the keys to the truck from the closet and handed them to the defendant, who then took the truck. (Id. at p. 1366.)
The Coleman court refused to rely on robbery cases in construing the “possession” element of carjacking. (Coleman, supra, 146 Cal.App.4th at pp. 1371-1372.) It concluded: “We acknowledge that a carjacking may occur where neither the possessor nor the passenger is inside or adjacent to the vehicle. [Citation.] But we cannot conclude that a carjacking has been committed here, where [the office manager] was not within any physical proximity to the [truck], the keys she relinquished were not her own, and there was no evidence that she had ever been or would be a driver of or passenger in the [truck]. These circumstances are simply too far removed from the type of conduct that section 215 was designed to address.” (Id. at p. 1373.)
Coleman dealt with the possession element, which is not at issue here. In the present case, there was no question that the mother and father were in actual possession of the vehicle; it was right outside in the driveway of their home and the keys and the vehicle belonged to them. Coleman does not speak to the immediate presence issue in this case -- except by expressly “acknowledg[ing] that a carjacking may occur where neither the possessor nor the passenger is inside or adjacent to the vehicle.” (Coleman, supra, 146 Cal.App.4th at p. 1373.)
Adhering to People v. Harris, supra, 9 Cal.4th 407 and the other cases cited above, we conclude there was sufficient evidence the vehicle was taken by force or fear from the mother and father’s immediate presence.
III. Sentencing
Defendant contends his consecutive and the upper-term sentences violated Blakely, supra, 542 U.S. 296 and its progeny. We address his argument in light of the recent United States Supreme Court decision in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham).
In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), a five-justice majority of the United States Supreme Court held, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.)
Blakely held that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.]” (Blakely, supra, 542 U.S. at p. 303, italics omitted.) Blakely describes three types of facts that a sentencing judge can properly use to impose an aggravated sentence: (a) “‘the fact of a prior conviction’” (id. at p. 301); (b) “facts reflected in the jury verdict” (id. at p. 303, italics omitted); and (c) facts “admitted by the defendant” (ibid., italics omitted).
Cunningham held that aggravating factors, other than a prior conviction, used to impose an upper term for a criminal offense must be submitted to a jury and proved beyond a reasonable doubt, according to the requirements of Apprendi and Blakely. (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. 856].) As a result, California’s Determinate Sentencing Law violates a defendant’s Sixth and Fourteenth Amendment right to a jury trial to the extent that it permits a trial court to impose an upper term based on facts found by the court rather than by a jury beyond a reasonable doubt. (Id. at p. __.)
In this case, the trial court considered the following factors in aggravation: (1) defendant had numerous prior convictions; (2) defendant had served prior prison terms; (3) defendant’s prior performance on probation and parole were unsatisfactory; (4) counts 3, 4, 6, 7, 8, 9 and 10 involved great violence, the threat of great bodily harm, and a high degree of cruelty, viciousness and callousness; defendant was armed and used a weapon; the victims were particularly vulnerable and they feared they would be killed if they attempted to escape; (5) all counts were carried out with planning; (6) in count 4, defendant induced a minor to assist in a burglary; (7) in count 5, defendant used pornographic material to induce, persuade or encourage a minor to engage in a lewd or lascivious act; (8) in count 7, the minor was 11 years of age or under; and (9) in counts 3, 4 and 8, the offenses were committed in the presence of the victims’ minor child and the victim was bound during the offenses. The court therefore considered aggravating factors that were both acceptable and apparently unacceptable under Cunningham.
Consistent with Cunningham, the court imposed upper terms based upon the fact of defendant’s many prior convictions, among other circumstances in aggravation. The probation officer’s report shows that defendant had been convicted of about 18 prior offenses in various states between 1987 and 2003. His offenses included weapons offenses, thefts, burglaries and stolen property offenses. Under well-established California law, only a single aggravating factor is required to impose the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728-729.) Here, the trial court properly considered defendant’s multiple prior convictions. Assuming the court’s consideration of the other factors was error under Cunningham, the error was harmless under either Chapman v. California (1967) 386 U.S. 18 at page 24 (harmless beyond a reasonable doubt) or People v. Watson (1956) 46 Cal.2d 818 at page 836 (reasonable probability error did not affect outcome) because the trial court undoubtedly would have imposed the upper term based on the existence of defendant’s numerous prior convictions alone.
As for defendant’s consecutive sentences, the California Supreme Court has held that “a jury trial is not required on the aggravating factors that justify imposition of consecutive sentences.” (People v. Black (2005) 35 Cal.4th 1238, 1262, overruled on other grounds in Cunningham, supra, 549 U.S. __; see also People v. Black, supra, at pp. 1262-1265 [judge’s imposition of consecutive sentences does not impermissibly increase penalty for a crime beyond prescribed statutory maximum]; accord State v. Kahapea (Hawaii 2006) 141 P.3d 440, 451-453 [collecting cases].) That holding was not overturned by Cunningham, which did not address the distinct issue of imposition of consecutive sentencing for separate crimes, and it remains binding on this court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455).
IV. Restitution and Parole Revocation Fines
Defendant contends, and the People concede, the trial court erred by imposing fees in excess of the statutory maximums. The court ordered defendant to pay a restitution fine of $48,000 and a matching parole revocation fine of $48,000 pursuant to sections 1202.4 and 1202.45. Section 1202.4, however, limits the restitution fine to a maximum of $10,000 and section 1202.45 requires that the parole revocation fine be of a matching amount. We will modify the judgment to reflect those amounts.
DISPOSITION
The judgment is modified such that the restitution fine and the parole revocation fine are reduced to $10,000 each. In all other respects, the judgment is affirmed.
WE CONCUR: Gomes, Acting P.J., Hill, J.