Opinion
G062869
09-26-2024
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND FRANCO, Defendant and Appellant.
Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 20WF0631 Robert A. Knox, Judge.
Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
GOODING, J.
* * *
Defendant and appellant Raymond Franco was convicted of committing multiple sex crimes against his biological daughter and, later, against the daughter of his live-in girlfriend. Franco does not challenge his convictions; he only appeals from his sentence. We conclude the trial court did not err in imposing the upper term sentence on two counts, and imposing consecutive rather than concurrent sentences on three other counts, based on the court's weighing of aggravating and mitigating factors pursuant to the California Rules of Court and the Penal Code. We therefore affirm.
All further references to rules are to the California Rules of Court unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
The victim in counts 1 through 4 (victim A) was Franco's biological daughter. Franco is 22 years older than victim A. Franco began sexually abusing victim A when she was four years old. Franco initially told victim A they were going to play a new game. Franco then forced victim A to orally copulate him by grabbing her hair and forcing her mouth onto him until he ejaculated in her mouth. Franco threatened to hit her, her mother, or her siblings if she told anyone what had happened.
Franco continued abusing victim A in this manner five or six times a week. After victim A turned six years old, Franco began raping her while making her wear women's lingerie. The abuse occurred when victim A's mother was at work; her siblings were asleep in their bedrooms or, if the abuse occurred during the day, Franco would lock them out of the house.
Franco would tell the siblings victim A had to clean the house or wash the dishes. They would be locked outside for three or four hours and could not enter the house for any reason. They had to use their outdoor sandbox to relieve themselves.
Franco also allowed other men to sexually molest victim A. Franco videorecorded himself raping victim A and would sometimes make her watch the videos. Franco also made her watch videos he had recorded of himself having sex with victim A's mother and with another woman.
Victim A realized what was happening to her was wrong when she was about 13 years old. It made her feel ashamed and disgusted. Franco asked victim A to ask a friend if she would have sex with him. Victim A ended her friendship with the girl to prevent Franco from molesting her, too. Victim A was worried because she thought Franco might also molest her sisters. Victim A missed a lot of school and failed classes. She would fall asleep in class because Franco kept her up at night, and he would keep her home from school to molest her. A counselor called her in to talk about her school performance. Victim A did not tell anyone what was happening because she was afraid of Franco and because she did not think anyone would believe her. She had observed Franco have "angry outbursts" and heard him make threats to harm her, her siblings, or her mother. He hit her "a lot," and on one occasion he picked her up and threw her against a wall.
The molestation continued until about two weeks before victim A's 18th birthday. About two months later, victim A's parents split up, and victim A moved out of state with her mother. Victim A still did not tell anyone about the molestation because she wanted to try to forget about it.
At some point, victim A learned that one of the men Franco had allowed to touch her had also touched her younger sister. This made victim A angry at herself: "I remember just thinking I hated myself so much because I didn't say anything. And I remember thinking, like, I should have told someone. I knew I should have told someone. Because hearing my sister tell me everything that she went through made me so mad, and I just hated myself." About two years after moving away, victim A told her mother what had happened.
Franco is 32 years older than the victim in counts 5 through 8 (victim B). Franco started dating victim B's mother when victim B was in preschool. At first, victim B thought Franco was nice. Franco moved in with their family when victim B was in the third grade. He then began yelling at victim B and her siblings; on one occasion he threw a dollhouse at victim B and hit her.
Franco would touch victim B's breasts and genital area when her mother was in the shower or downstairs in the kitchen. The touching occurred on more than one occasion, although victim B could not remember specifically when it started or how many times it happened. One time Franco gave her money and thanked her for not telling her mother. Victim B was afraid to ask Franco to stop touching her or to tell anyone what was happening. She sometimes pretended to be asleep and wrapped herself tightly in a blanket, but Franco molested her anyway.
The molestation continued until Franco and victim B's mother broke up when victim B was in the fifth grade and Franco moved out of their house. After that, she felt safe enough to tell her mother about the abuse. Neither victim A nor victim B knew the other had been molested until after they came forward to relate their own abuse.
Franco was charged in an amended information with two counts of forcible oral copulation against victim A (Pen. Code, former § 288a, subd. (c)(2) [counts 1 &2]), two counts of aggravated sexual assault against victim A (id., § 269, subd. (a)(1) [counts 3 &4]), and four counts of committing lewd acts on victim B (id., § 288, subd. (a) [counts 5-8]). As to counts 1, 2, 5, 6, 7, and 8, the information alleged Franco committed the offenses against more than one victim, under Penal Code section 667.61, subdivisions (b), (e)(4), and (e)(5).
Effective January 1, 2019, former section 288a of the Penal Code was amended and renumbered as section 287. (Stats. 2018, ch. 423, § 49.) Franco was charged under former section 288a because the crimes were committed before that change.
After deliberating for less than one and one-half hours, a jury convicted Franco on all counts and found the multiple victim allegations true as to counts 5 through 8.
Franco waived his right to a jury trial on the mitigating and aggravating sentencing factors. At the sentencing hearing, both the district attorney and defense counsel submitted on the testimony presented at trial.
The trial court imposed a sentence of 75 years to life plus 16 years, calculated as follows: On count 3, the court imposed a term of 15 years to life. On each of counts 4, 5, 6, and 7, the court imposed a term of 15 years to life, to run consecutive to count 3. On count 8, the court imposed a term of 15 years to life, to run concurrent to count 3. On counts 1 and 2, the court imposed the upper term of eight years on each count, to run consecutive to count 3.
Franco filed a timely notice of appeal.
DISCUSSION
I.
STANDARD OF REVIEW
"After a sufficient factual basis to support the circumstances in aggravation or mitigation is found, the court enjoys broad discretion in its sentencing determination. The trial court's sentencing decision is 'review[ed] for abuse of discretion.' [Citation.] That 'discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an "individualized consideration of the offense, the offender, and the public interest."' [Citation.] The court abuses 'its discretion . . . if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.'" (People v. Hilburn (2023) 93 Cal.App.5th 189, 205-206.)
II.
THE TRIAL COURT DID NOT ERR BY IMPOSING THE UPPER TERM SENTENCE ON COUNTS 1 AND 2
When a statute specifies three possible terms for sentencing, the sentence imposed shall not exceed the middle term unless the circumstances in aggravation justify the imposition of the upper term. (Pen. Code, § 1170, subd. (b)(1), (2).) If the defendant experienced a childhood trauma, including sexual abuse, that contributed to committing the crime or crimes, the trial court shall impose the lower term unless it finds the aggravating circumstances outweigh the mitigating circumstances. (Id., subd. (b)(6)(A).) Aggravating and mitigating circumstances are set forth in rules 4.421 and 4.423, respectively; those lists of factors are not exclusive. (See People v. Brown (2000) 83 Cal.App.4th 1037, 1044; People v. Whitten (1994) 22 Cal.App.4th 1761, 1765-1766.)
In Franco's probation and sentencing report, he disclosed having been sexually abused by a great-uncle for a few years beginning when he was seven or eight years old. The probation report does not provide any details about this disclosure; nor does it specifically state the abuse contributed to his abuse of victims A and B. The trial court nevertheless considered it as a mitigating factor when determining Franco's sentence. The court explained its analysis: "Under California Rules of Court 4.423, the Court has considered factors in mitigation, including the fact that the defendant has no prior record, and the fact that the defendant may have experienced childhood sexual abuse, and that the commission of these crimes may have been connected to the defendant's prior childhood victimization or trauma. Because the crimes in Count 1 and 2 involve a high degree of cruelty, viciousness, and callousness, the victim was particularly vulnerable due to her age and her relationship to the defendant, and the defendant used his position of trust to commit these crimes, and in carrying out these crimes, he demonstrated planning and sophistication, the Court, after considering factors in aggravation and factors in mitigation, intends to impose the upper term of eight years for Count 1 and the upper term of eight years for Count 2, to be served consecutively pursuant to [Penal Code section] 667(d)(1) and California Rules of Court 4.426(a)(2)."
The trial court clearly followed the mandate of Penal Code section 1170, subdivision (b)(6)(A). The court accepted Franco's contention that childhood sexual abuse contributed to the commission of the crimes in this case, but concluded the aggravating factors outweighed the mitigating factors. The court did not err.
Franco also argues the trial court erred by considering certain aggravating factors in deciding to impose the upper term sentence. Franco contends these factors-the high degree of cruelty, viciousness, and callousness, the particular vulnerability of the victim, and Franco's planning and sophistication-"will almost undoubtedly be found in a large majority of violations of Penal Code [former] section 288a." The evidence at trial established Franco sexually abused victim A, his biological daughter, by forcing her to orally copulate him from the ages of four to seventeen; this abuse occurred five or six times a week. Franco told victim A they were going to play a new game. Franco grabbed her by the hair, forced her head up and down, and ejaculated into her mouth. Franco's abuse occurred when victim A's mother was working, and while his other children were asleep or locked out of the house. Franco threatened to hit victim A, her mother, or her siblings if she told anyone about the abuse.
After victim A turned six, Franco began raping her. Franco also permitted other men to molest and abuse victim A. Franco videorecorded himself raping victim A, and made her watch the videos. Franco also showed her videos of himself having sex with victim A's mother and with another woman.
Even if it were true that some of the aggravating factors set forth in rule 4.421 are applicable in most cases of child sex molestation, the facts here show Franco's behavior was more egregious than in many other cases, and far outweighed any mitigating circumstances.
III.
THE TRIAL COURT DID NOT ERR BY IMPOSING CONSECUTIVE RATHER THAN CONCURRENT SENTENCES ON COUNTS 5, 6, AND 7
The trial court ordered Franco's sentences for his convictions on counts 5, 6, and 7 to run consecutive to his sentence on count 3. Under Penal Code section 669, a trial court generally has discretion to impose sentences consecutively or concurrently. (People v. Leon (2016) 243 Cal.App.4th 1003, 1025.) Rule 4.425 sets forth the factors the court may consider when deciding whether to impose consecutive rather than concurrent sentences.
The trial court also ordered that the sentences on counts 1, 2, and 4 would run consecutive to the sentence on count 3. Pursuant to Penal Code section 667.6, subdivisions (d)(1) and (e)(7), Franco's convictions on counts 1 and 2 for violating Penal Code former section 288a, subdivision (c)(2) were required to run consecutively because they were committed against the same victim on different occasions. Similarly, the sentence on count 4 was required to run consecutive to the sentence on count 3 because those two convictions for violation of Penal Code section 269, subdivision (a)(1) were committed against the same victim on separate occasions. (Pen. Code, § 269, subd. (c).)
The trial court explained its decision to impose consecutive sentences for counts 5, 6, and 7 on the record. The court found true all factors in rule 4.425(a): "First, the crimes and their objectives were predominately independent of each other; second, the crimes involved . . . separate acts or threats of violence; third, the crimes were committed at different times or separate places, rather than being so closely [sic] in time and place as to indicate a single period of aberrant behavior." The court specifically noted it had not considered any facts it was prohibited from considering under rule 4.425(b).
The trial court also considered other aggravating factors identified in rule 4.421: "[T]he crimes involved great bodily harm, the threat of great bodily harm, and other acts disclosing a high degree of cruelty, viciousness, or callousness. The victim in Counts 5 through 8 was particularly young and vulnerable. The manner in which the crimes were carried out does indicate planning and sophistication, and the defendant took advantage of a position of trust or confidence to commit the offenses."
The court noted that rule 4.425(b) did not preclude it from considering these factors.
The trial court also considered the mitigating facts that Franco had no prior criminal record (rule 4.423(b)(1)), and that he might have experienced "childhood sexual abuse" and the offenses in the present case may have been connected to that victimization and trauma (rule 4.423(b)(3), (4)).
Finally, the trial court considered the general objectives of sentencing-protecting society, punishing the defendant, deterring others from engaging in criminal conduct, preventing the defendant from committing new crimes, securing restitution for the victim, and achieving uniformity in sentencing. (Rule 4.410(a)(1), (2), (4), (5), (6) &(7).)
The trial court thoroughly considered all relevant factors in reaching its decision to order the sentences on counts 5, 6, and 7 to run consecutively rather than concurrently.
Franco nevertheless argues the trial court erred by failing to consider his childhood trauma as a result of himself being a victim of childhood sexual abuse. This argument is unsupported by the record. The court did take this claim into consideration and balanced it against the many, overwhelming aggravating factors to decide consecutive sentences were appropriate.
Franco also argues the trial court erred by considering elements of the crimes in deciding to impose consecutive sentences, which is prohibited by rule 4.425(b)(3). First, Franco argues that considering the particular vulnerability of Victim B is another way of considering the victim's age, which is an element of the crime. (See Pen. Code, § 288, subd. (a); People v. Quinones (1988) 202 Cal.App.3d 1154, 1159 [resentencing required when upper term imposed based on single aggravating factor-victim's age- because victim's age was element of the crime]; People v. Flores (1981) 115 Cal.App.3d 924, 927 [trial court erred by relying on particular vulnerability as aggravating factor when the only vulnerability was the victim's age, which was an element of the crime].) Given the facts of this case, however, the trial court did not err.
"Defendant is correct that aggravating a sentence due to 'particular vulnerability,' where vulnerability is based solely on age, is improper when age is an element of the offense. [Citations.] However, 'particular vulnerability' is determined in light of the 'total milieu in which the commission of the crime occurred ....' [Citation.] Defendant acknowledges that a victim's extremely young age together with other circumstances like the time and location of the offense can establish 'particular vulnerability' as an aggravating factor." (People v. Dancer (1996) 45 Cal.App.4th 1677, 1693-1694; see People v. Quintanilla (2009) 170 Cal.App.4th 406, 413 [court imposed a consecutive sentence; court's reference to the victim's youth related to the factors of the victim's vulnerability and the defendant's abuse of trust and was not a reliance on an element of the crime]; People v. Ginese (1981) 121 Cal.App.3d 468, 477 [extreme youth within the age range for the crime may make the victim particularly vulnerable].)
Here, victim B was not particularly vulnerable based solely on her age. Her vulnerability stemmed from Franco's role as her mother's boyfriend and as an authority figure living in her home; Franco's molestation of her occurred in her own bed; Franco had yelled at her and thrown a doll house at her, causing her to be afraid he would hurt her if she told anyone about the molestation; Franco gave victim B money in exchange for not telling her mom about the molestation; and she was not only under age 14, but she was only around 8 or 9 years old, and was 32 years younger than Franco when the molestation began.
Franco also argues the trial court erred by imposing consecutive sentences based on the aggravating factor of using a position of trust and confidence to molest victim B because "Appellant submits that relying on a position of trust as an aggravating factor in a child molestation scenario is overbroad. First, as child molestation cases necessarily involve a child and an adult, the adult will almost certainly be the party that is given more trust and confidence in the situation. Additionally, to the extent appellant was known to [victim B] and was her mother's boyfriend, courts have noted that studies have reported 'that in most cases the child molester is not in fact a stranger to his victim.'"
Franco's argument is not well taken. The California Supreme Court has held the statute allowing a jury to consider "'the circumstances of the crime'" as an aggravating factor in determining whether to impose the death penalty is neither vague nor overbroad. (People v. Montes (2014) 58 Cal.4th 809, 899.) Similarly, the rules of court allowing the trial court to consider the circumstances of the crime as an aggravating factor in sentencing are neither vague nor overbroad.
IV.
FRANCO WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING
Franco argues he was denied effective assistance of counsel because his trial counsel failed to highlight his own sexual abuse as a child at sentencing. To prevail on a claim of ineffective assistance of counsel, Franco must prove both that his attorney's representation was deficient (i.e., it fell below an objective standard of reasonableness under prevailing professional standards), and that the deficient representation subjected him to prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Cain (1995) 10 Cal.4th 1, 28.) "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." (Strickland v. Washington, supra, at p. 697; see In re Fields (1990) 51 Cal.3d 1063, 1079.) Prejudice means a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington, supra, 466 U.S. at p. 694.) A reasonable probability means a "probability sufficient to undermine confidence in the outcome." (Ibid.)
A trial court's error in weighing the appropriate factors at sentencing is reviewed under the standard of People v. Watson (1956) 46 Cal.2d 818, 836, i.e., whether it is reasonably probable the court would have imposed a lesser sentence in the absence of the error. (People v. Butler (2023) 89 Cal.App.5th 953, 960, review granted May 31, 2023, S279633; see In re F.M. (2023) 14 Cal.5th 701, 715.) The aggravating factors supporting the imposition of the upper term on counts 1 and 2, and the imposition of consecutive sentences on counts 5, 6, and 7 were established at trial and were overwhelming. Even though Franco's trial counsel did not raise Franco's sexual abuse as a child at the sentencing hearing, the trial court assumed that mitigating factor was true and considered it when sentencing Franco. The mitigating factors, including Franco's alleged childhood abuse, paled in comparison to the aggravating factors. There is no reasonable probability the trial court would have made a different decision regarding sentencing had Franco's trial counsel argued Franco's childhood abuse.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MOORE, ACTING P. J. MOTOIKE, J.