Opinion
F072790
01-18-2018
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY CHAVEZ, Defendant and Appellant.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E. LeBel, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF289718)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T. Montejano, Judge. Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
INTRODUCTION
After his two nieces told their parents he had been touching them inappropriately over the course of several years, defendant Timothy Chavez was arrested and charged with multiple offenses. Following a trial by jury on 18 counts, defendant was convicted of the following offenses against victim S.A.: 12 counts of committing a lewd or lascivious act against a child under the age of 14 years (Pen. Code, § 288, subd. (a)) (counts 1-12); one count of contact or communication with a minor (Pen. Code, § 288.3, subd. (a)) (count 13); and one misdemeanor count of indecent exposure (Pen. Code, § 314, subd. (1)) (count 18). On counts 2 through 7, the jury found true that defendant had substantial sexual contact with a child under the age of 14 years, rendering him ineligible for probation (Pen. Code, § 1203.066, subd. (a)(8)). The jury was unable to reach a verdict on counts 14 through 17, committing a lewd or lascivious act against a child under the age of 14 years involving victim L.M.
Defendant was sentenced to the upper term of eight years on count 1. On counts 2 through 12, defendant received 11 consecutive terms of two years (one-third of the middle term) and, on count 13, he received one year (one-third of the middle term), for a total aggregate term of 31 years in state prison.
Defendant received no time for count 18.
The trial court ruled evidence that defendant committed prior uncharged sexual offenses against victim T.C. in 1992 was admissible under Evidence Code sections 1101 and 1108., On appeal, defendant argues the court erred in admitting this evidence, in violation of his rights under state and federal law, and the error was prejudicial. Defendant also argues that although the court did not impose any time for his conviction on count 18, the sentence should have been stayed under Penal Code section 654, and that this matter should be remanded for the court to declare a mistrial on counts 14 through 17.
All further statutory references are to the Evidence Code unless otherwise specified.
Although not relevant to the issues raised in this appeal, the Legislature recently amended section 1108 to include specified human trafficking offenses within the statutory definition of "'[s]exual offense.'" (Sen. Bill No. 230, approved by Governor, Oct. 14, 2017 (2017-2018 Reg. Sess.) ch. 805, § 1.)
The People concede the sentencing error on count 18 and agree the matter should be remanded for the trial court to declare a mistrial on counts 14 through 17, but they dispute the court erred in admitting evidence of the prior uncharged sexual offenses involving T.C.
We agree with the parties regarding the need to stay the sentence on count 18 and remand this matter so the trial court can declare a mistrial on counts 14 through 17. However, we reject defendant's evidentiary challenge and find evidence of the crimes committed against T.C. was properly admitted under section 1108. Judgment is therefore affirmed.
FACTUAL SUMMARY
At the end of September 2013, cousins S.A. and L.M., then ages 12 and 10 years old, respectively, told their parents that defendant, who was their uncle by marriage, had been touching them inappropriately. S.A.'s father summoned defendant's wife over and, after speaking with the victims' parents about the allegations, she spoke with the victims. Thereafter, the allegations were reported to the police, and the victims underwent Child Abuse Response Team (CART) interviews and sexual assault examinations at Valley Children's Hospital.
Defendant's wife is the sister of S.A.'s father and L.M.'s mother.
During the approximately four-year period in question, defendant and his wife lived in several residences. S.A. and L.M. had a close relationship with their uncle and aunt and, at one point during 2009, the victims and their parents lived with defendant and his wife. After S.A. and L.M. and their families ceased living with defendant and his wife in mid-2009, S.A. and L.M. continued to spend the night at defendant's residence a few times a month and enjoyed doing so.
S.A., who was 14 years old at the time of trial, testified that the first time defendant did anything inappropriate was in 2009 when she was seven or eight years old. He was lying on his bed in his bedroom playing video games and she was next to him watching. While her aunt was showering in the attached bathroom, defendant exposed his penis to her. S.A. left the room. In trial testimony, she said he did not say anything to her, but in her CART interview she said he told her to get on top of him.
Approximately two years passed before defendant did anything else inappropriate. S.A. testified that he then started touching her and L.M. and telling them not to tell anyone. She testified he touched her chest more than once, he would ask her to touch his penis with her mouth and push her head toward it and, while both were clothed, he put his penis on her more than five times and moved back and forth. She also testified he would touch her "private part," he would ask her to touch him while his hand was in his pants, he put his mouth on her chest more than once, and he placed her hand on his penis approximately three times. When she was 12 years old, she awoke twice to him penetrating her vagina with his fingers. The last time defendant touched S.A., she was 12 years old and he tried to make her put her mouth on his penis.
S.A. had a blunt force trauma injury to her hymen consistent with a history of digital penetration. As discussed, post, L.M. did not report any instances of penetration and her normal examination results were consistent with that reported history.
S.A. also testified she witnessed defendant touch L.M., ask L.M. to touch his penis, and get on top of L.M. and move back and forth. S.A. said she and L.M. discussed telling, but were afraid defendant would lie. She stated that on one occasion, defendant grabbed her and L.M.'s wrists, tried to get them to put their mouths on his penis, and pushed their heads toward it. They walked away in response and stayed in a locked bedroom until their aunt came home.
L.M., who was 12 years old at the time of trial, had more difficulty remembering events. She testified that the incidents always occurred at night and S.A. was there, too. She said she felt defendant's hands on her body more than five times when she was asleep or half asleep. She would wake up and see him leaving the room. She testified he never said anything and he did not show her his body, but, during her CART interview, she said she saw defendant's "private part" one time. She also testified that she was clothed, but she could not remember if he touched her over or under her clothing. She said S.A. was in the room and they exchanged looks, but she testified she never saw defendant do anything to S.A. She said she and S.A. did not talk about the incidents until after they told their parents. Although she testified defendant was never on top of her, defendant's wife testified that at her request after she was informed of the allegations, L.M. demonstrated on a pillow how defendant would get on her and move back and forth. During her CART interview, L.M. also stated defendant was on top of her moving around.
Regarding the prior uncharged sexual offenses, T.C., who was 33 years old at the time of trial, testified that defendant was her mother's boyfriend for years and is the father of her sisters. In 1992, when she was 10 years old, defendant entered her bedroom at night while she was asleep and touched her butt and vaginal area through her clothing with his hands. The touching, which occurred multiple times over the course of months, would wake her up and she would see defendant in his underwear. He told her not to tell anyone and offered her money not to tell.
T.C. eventually told her mother, who confronted defendant. He initially denied touching T.C., but then admitted it when T.C. accurately described the underwear he was wearing. After being charged with three counts of committing a lewd or lascivious act against a child under the age of 14 years (Pen. Code, § 288, subd. (a)), defendant pled guilty to one felony count of sexual battery (Pen. Code, § 243.4) and one misdemeanor count of annoying or molesting a child (Pen. Code, § 647.6).
Defendant's wife, mother-in-law, a brother-in-law, a sister-in-law and a friend testified on his behalf. Their testimony related to his good character, the absence of any indication of inappropriate behavior toward S.A. and L.M., and the victims' initiation of overnight visits with defendant and his wife during the relevant time period. Regarding defendant's prior conviction, defendant's wife testified they told her family about the conviction, but not the details regarding the number of times he touched T.C. She also testified that although she knew defendant pled guilty, he said he had been advised it would be best to accept the plea deal, serve his time and return home. Defendant's brother-in-law, sister-in-law and friend acknowledged they knew of defendant's prior conviction, but testified they did not know the details or that he had admitted to touching T.C. inappropriately.
In rebuttal, the prosecutor called witness Robert Espinoza, a retired detective who investigated the case involving T.C. Espinoza testified regarding the admissions defendant made in 1992, which included his confirmation of T.C.'s account and his acknowledgement that he continued to touch T.C. even though he knew it was wrong and had planned to stop.
DISCUSSION
I. Prior Uncharged Sexual Offense Evidence
A. Background
We begin with the general proposition that evidence must be relevant to be admissible and all relevant evidence is admissible unless otherwise excluded. (§§ 350, 351; People v. McCurdy (2014) 59 Cal.4th 1063, 1095 (McCurdy); see People v. Loy (2011) 52 Cal.4th 46, 62 (Loy).) Under section 352, which provides for such an exception, "[a] trial court may exclude otherwise relevant evidence if its probative value is substantially outweighed by the probability that its admission will be unduly prejudicial. [Citation.] 'Prejudice,' as used in Evidence Code section 352, is not synonymous with damaging. [Citation.] Rather, it refers to evidence that uniquely tends to evoke an emotional bias against the defendant as an individual, and has little to do with the legal issues raised in the trial." (McCurdy, supra, at p. 1095.)
Relevant here, "[t]he general public policy on character or propensity evidence is that it is not admissible to prove conduct on a given occasion." (People v. Cottone (2013) 57 Cal.4th 269, 285; accord, People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) "The purpose of this evidentiary rule 'is to assure that a defendant is tried upon the crime charged and is not tried upon an antisocial history.'" (People v. Nicolas (2017) 8 Cal.App.5th 1165, 1176.) Thus, under section 1101, subdivision (a), "[c]haracter evidence, sometimes described as evidence of propensity or disposition to engage in a specific conduct, is generally inadmissible to prove a person's conduct on a specified occasion." (McCurdy, supra, 59 Cal.4th at p. 1095.) An exception exists under the statute, however, and "[e]vidence that a person committed a crime, civil wrong, or other act may be admitted ... not to prove a person's predisposition to commit such an act, but rather to prove some other material fact, such as that person's intent or motive. [Citation.] In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense is not barred by Evidence Code section 1101, provided such evidence is not excludable under section 352." (Ibid.; accord, Falsetta, supra, at p. 911.)
Section 1101 provides:
"(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.
"(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.
"(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness."
In contrast to section 1101, section 1108 represents an exception to the general rule against propensity evidence (People v. Cottone, supra, 57 Cal.4th at p. 285) and, in criminal cases involving sexual offenses, the statute permits evidence of uncharged sexual offenses "to demonstrate the defendant's disposition to commit such crimes" (McCurdy, supra, 59 Cal.4th at p. 1095; accord, People v. Merriman (2014) 60 Cal.4th 1, 40 (Merriman)). Enacted in 1995, the statute reflects the Legislature's recognition that sex offense cases involve unique attributes and "policy considerations favoring the exclusion of evidence of uncharged sexual offenses are outweighed in criminal sexual offense cases by the policy considerations favoring the admission of such evidence. The Legislature has determined the need for this evidence is 'critical' given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial." (People v. Fitch (1997) 55 Cal.App.4th 172, 181-182, fn. omitted; accord, Cottone, supra, 57 Cal.4th at pp. 285-286; Loy, supra, 52 Cal.4th at p. 63; Falsetta, supra, 21 Cal.4th at pp. 911, 918.) As with section 1101, however, evidence otherwise admissible under section 1108 is still subject to exclusion under section 352. (Merriman, supra, at pp. 40-41.)
Section 1108, subdivision (a), provides in relevant part: "(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352."
The California Supreme Court has long held that section 1108 does not violate due process, recognizing that section 352 protects a defendant's right to a fundamentally fair trial and due process requires no more. (Merriman, supra, 60 Cal.4th at pp. 46-47; Loy, supra, 52 Cal.4th at pp. 60-61; Falsetta, supra, 21 Cal.4th at p. 922.)
B. Standard of Review
On appeal, we presume the trial court's evidentiary ruling was correct and defendant bears the burden of demonstrating error. (People v. Giordano (2007) 42 Cal.4th 644, 666.) Trial courts have broad discretion in determining the admissibility of evidence and we review challenges to the admission of evidence for abuse of discretion. (People v. Jackson (2016) 1 Cal.5th 269, 320-321; accord, People v. Cordova (2015) 62 Cal.4th 104, 132 (Cordova); People v. Johnson (2010) 185 Cal.App.4th 520, 531 (Johnson).) Under this standard, the court's ruling "'"will not be disturbed, and reversal is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." [Citation.]'" (People v. Lewis (2009) 46 Cal.4th 1255, 1286; accord, People v. Jackson, supra, at p. 321.)
C. Analysis
Defendant initially focuses on section 1101 and argues the trial court erred in admitting evidence of his prior uncharged sexual offenses against T.C. under that statute, which governs the admission of character evidence. Defendant then argues separately that the trial court also erred under section 1108 when it failed to exclude the evidence pursuant to section 352. As discussed next, we conclude the trial court did not abuse its discretion in determining that the evidence was admissible under section 1108 and not subject to exclusion under section 352. Because the type of evidence at issue here falls within section 1108's broader exception to the prohibition against character evidence, we need not and do not determine whether the evidence was also admissible under section 1101, which provides narrower grounds for admission. (Merriman, supra, 60 Cal.4th at p. 40; accord, People v. Callahan (1999) 74 Cal.App.4th 356, 372; see People v. Robertson (2012) 208 Cal.App.4th 965, 990-991 (Robertson).)
"A court deciding whether evidence of one or more sexual offenses meeting the definitional requirements of ... section 1108 should nonetheless be excluded pursuant to ... section 352 undertakes a careful and specialized inquiry to determine whether the danger of undue prejudice from the propensity evidence substantially outweighs its probative value. Specifically, the court weighs factors such as the 'nature, relevance, and possible remoteness [of the evidence], the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses....'" (Merriman, supra, 60 Cal.4th at p. 41, quoting Falsetta, supra, 21 Cal.4th at p. 917; accord, Loy, supra, 52 Cal.4th at p. 61.) As previously stated, prejudice is not synonymous with damaging (McCurdy, supra, 59 Cal.4th at p. 1095), and "'[p]ainting a person faithfully is not, of itself, unfair'" (Johnson, supra, 185 Cal.App.4th at p. 534).
In this case, defendant concedes that he was convicted of the prior uncharged offenses and that the prior uncharged offenses are not more inflammatory than the charged offenses. He argues, however, that the trial court abused its discretion in admitting evidence of the prior uncharged offenses against T.C. because the incidents were remote in time and evidence of the uncharged offenses was stronger than the charged offenses.
The prior offenses against T.C. occurred in 1992, while the charged conduct occurred some 14 to 21 years later. We agree this gap is not insignificant, but, while relevant, remoteness alone does not compel exclusion of evidence. (Cordova, supra, 62 Cal.4th at p. 133; Loy, supra, 52 Cal.4th at p. 62.) "In assessing remote priors, the cases have examined the details of the past misconduct, comparing them to the details of the currently charged offense, to determine whether the similarities in the two incidents 'balance out the remoteness' of the prior offense." (Johnson, supra, 185 Cal.App.4th at pp. 535-536.) Here, as we shall discuss, the charged and uncharged offenses share notable similarities, and those similarities balance out the gap in time between the offenses. (Robertson, supra, 208 Cal.App.4th at p. 992.) Moreover, courts, including this one, have declined to exclude evidence in cases involving prior offenses even more remote than those here. (Cordova, supra, at p. 133 [18 years]; Robertson, supra, at pp. 992-993 [more than 30 years]; People v. Hernandez (2011) 200 Cal.App.4th 953, 968 [up to 40 years]; Johnson, supra, at pp. 531, 535-536 [18 years]; People v. Branch (2001) 91 Cal.App.4th 274, 284-285 [30 years]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [20 years].)
As with remoteness, degree of similarity between charged and uncharged offenses is relevant but not dispositive. (Cordova, supra, 62 Cal.4th at p. 133; Merriman, supra, 60 Cal.4th at pp. 41-42; Robertson, supra, 208 Cal.App.4th at p. 992.) This is because "'"[t]he charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under ... section 1101[;] otherwise ... section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in section 1108."'" (Cordova, supra, at p. 133, quoting Loy, supra, 52 Cal.4th at p. 63.)
While we recognize that defendant advanced this specific argument in the context of section 1101, which requires a greater degree of similarity between offenses than does section 1108, we disagree with his assertion that the charged and uncharged offenses are dissimilar. In our view, the charged and uncharged offenses share obvious similarities that are not subject to dismissal merely by characterizing them as "generic in nature ... [and] little more than what necessarily occurs in any case involving charges of child molestation."
Here, the charged and uncharged offenses involved the victimization of preteen girls with whom defendant enjoyed a familial connection. Defendant's point that he was not related to T.C. misses the mark. Defendant was S.A. and L.M.'s beloved uncle by marriage, and they spent many nights in his home, which is the avenue through which he had access to them and took advantage of them. Defendant was the long-term boyfriend of T.C.'s mother and the father of her sisters. He lived with T.C. and her mother, providing him with the same access to and advantage over T.C. as with S.A. and L.M. As well, although the charged offenses did not occur exclusively at night, many of the incidents occurred at night and were initiated by defendant while the victims were sleeping, just as with T.C. In addition, defendant engaged in touching T.C. through her clothes as she slept, conduct which he repeated years later with S.A. and L.M. While it is enough under section 1108 that defendant committed sex offenses, the charged and uncharged offenses in this case were nevertheless substantially similar. (Cordova, supra, 62 Cal.4th at pp. 133-134.)
Defendant also complains that the evidence of the uncharged offenses was stronger than the evidence of the charged offenses because over defendant's objection, the detective who investigated T.C.'s allegations testified regarding defendant's confession. This argument overlooks the fact that the officer was a rebuttal witness who testified after defendant called witnesses who testified both to his good character and for the purpose of impeaching the victims. Prior to trial, the court tentatively ruled it would not admit defendant's 1992 statement to the detective, but its final ruling was dependent on the evidence adduced at trial. Following presentation of the defense case, the court permitted the prosecution to call the investigating officer as a rebuttal witness. Under these circumstances, we find defendant's argument unpersuasive.
Nor do we find persuasive defendant's contention that the probative value of the uncharged offenses was undermined by the fact the defense did not dispute intent. Evidence of uncharged sex offenses is admissible under section 1108 unless precluded by section 352, as previously explained, and the presumption is in favor of admitting the evidence. (Merriman, supra, 60 Cal.4th at pp. 41-42; Loy, supra, 52 Cal.4th at p. 62.) In this case, the evidence of the uncharged offenses involving T.C. was substantially probative of defendant's propensity to molest preteen girls and, although the prior uncharged offense occurred years before, the similarities between the crimes balances out any remoteness. Moreover, this case does not involve other factors that have been recognized as increasing the potential for prejudice: defendant was convicted of the prior offenses in this case, the evidence was not confusing or unduly time consuming, T.C.'s and the investigating officer's testimony was brief, and the details of the prior offenses were less inflammatory than the details of the charged offenses. (E.g., Merriman, supra, at p. 42; Loy, supra, at pp. 61-62; see Robertson, supra, 208 Cal.App.4th at pp. 993-994.)
The California Supreme Court has recognized that the fact of conviction on prior uncharged offenses "strongly supports their admission." (Loy, supra, 52 Cal.4th at p. 61.) In Loy, it explained the defendant's "commission of those crimes had already been established and was thus certain, and [the] defendant bore no new burden of defending against the charge. The jury would not be tempted to convict him of the charged crime to punish him for the earlier crimes. [Citation.] Additionally, the convictions meant there was little danger of confusing the issues or requiring an inefficient mini-trial to determine [the] defendant's guilt of the previous crimes." (Ibid.)
In sum, we find no error under section 1108 in the admission of the evidence of the uncharged offenses committed against T.C. and we reject defendant's claim to the contrary. In light of our conclusion, we do not reach whether the alleged error was prejudicial.
II. Application of Section 654 to Count 18
The trial court did not sentence defendant to any time for his misdemeanor conviction on count 18. The parties agree, however, that the court erred in failing to stay the sentence under Penal Code section 654, subdivision (a), which provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
"[T]he purpose of section 654 is to ensure that a defendant's punishment will be commensurate with his culpability." (People v. Correa (2012) 54 Cal.4th 331, 341.) Relevant here, the statute "prohibits multiple punishment for a single physical act that violates different provisions of law." (People v. Jones (2012) 54 Cal.4th 350, 358; accord, People v. Mesa (2012) 54 Cal.4th 191, 195, 199.) "[T]he accepted 'procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable.'" (People v. Jones, supra, at p. 353; People v. Mesa, supra, at p. 195.)
The prosecutor informed the jury during closing argument that the conduct underlying count 13, contact or communication with a minor, was the 2009 incident during which defendant exposed his penis to S.A. while he was playing video games and she was lying next to him. The prosecutor then informed the jury that count 18, indecent exposure, could be based either on that same 2009 incident underlying count 13 or on the incident during which defendant exposed himself to both S.A. and L.M.
To the extent the jury convicted defendant of count 18 based on the 2009 incident, he may not be punished for that single act under both count 13 and count 18. (People v. Jones, supra, 54 Cal.4th at p. 358; People v. Mesa, supra, 54 Cal. 4th at p. 199.) The parties agree, and our review confirms, that the factual basis for the jury's determination on count 18 cannot be determined from the record. Accordingly, defendant's sentence on count 18 must be stayed.
III. Mistrial as to Counts 14 Through 17
Finally, the jury was unable to reach a verdict on counts 14 through 17, which related to victim L.M., and defense counsel requested the court declare a mistrial. (See Pen. Code, § 1140; People v. Lucas (2014) 60 Cal.4th 153, 327-328, disapproved in part on other grounds by People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.) The trial court stated it would do so after receiving the verdict forms, but, thereafter, the matter was apparently overlooked. The parties agree the case should be remanded for the trial court to declare a mistrial as to counts 14 through 17, and we concur.
DISPOSITION
Defendant's sentence on count 18 is stayed under Penal Code section 654, and this matter is remanded for the trial court to declare a mistrial on counts 14 through 17. The judgment is otherwise affirmed.