Opinion
G053113
12-19-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERT HORN, Defendant and Appellant.
Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Meagan J. Beale and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 07NF3916) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed in part, reversed in part, and modified. Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Meagan J. Beale and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Robert Horn is a developmentally disabled adult who was convicted of sexually molesting a friend's son on a regular basis over a period of about three years. On appeal, he contends 1) he was unlawfully convicted of both continuous sexual abuse and a lewd act encompassed within that abuse; 2) his indeterminate life sentence is cruel and unusual; and 3) the abstract of judgment must be modified to accurately reflect the trial court's sentencing decision. Appellant's first and third contentions have merit. We will therefore reverse one of his convictions for lewd conduct with a child and amend the abstract of judgment. In all other respects, we affirm.
FACTS
Appellant was born in 1976. He came into the world with hearing and vision deficits that hindered his educational development, and throughout his life he has struggled with emotional and social problems. His current I.Q. is around 75, which puts him in the "borderline range," but it was measured at 63 when he was 20 years old, which is lower than 98 percent of the population. And while appellant was able to make it to the tenth grade in school, his academic level is akin to a third grader.
Despite these limitations, appellant earned a bartending certificate and worked at Disneyland from 2000 to 2003. During that time, appellant lived by himself at the City Lights apartments in Fullerton. His mother lived in the same building and helped him with his daily activities, such as cooking and cleaning. David P., who has cerebral palsy, also lived in the building. Appellant became good friends with David and his young son, DJ. They referred to appellant as "Uncle Bobby" and trusted him like a family member.
Appellant worked on a cruise ship before that, but a back injury put an end to his career on the high seas.
DJ spent most of his time with his mother, who was separated from David. However, sometimes DJ would visit David after school, and every other weekend he lived with his dad. One day, when DJ was in the first grade, he and appellant were playing video games at appellant's apartment when appellant asked him if he knew about sex. When DJ said no, appellant made two characters in the video game they were playing have sex. Then he asked DJ if he wanted him to show him how to do "real sex." DJ didn't know what to think. Before he knew it, appellant had locked the door, closed the blinds and begun to suck his penis. He then had DJ "hump" him while appellant manually stimulated himself.
The next day the same thing happened. While DJ was playing video games at appellant's apartment, appellant orally copulated him and then had the boy anally penetrate him while he masturbated. This became appellant's modus operandi, as he victimized DJ in this manner about two or three times a week until DJ finished third grade. On some of these occasions, appellant also kissed DJ on the mouth, and once he tried to have anal sex with DJ. However, he was unable to do so because his penis was too large. He told DJ not to tell anyone about the abuse so he (appellant) would not get in trouble.
In the fall of 2005, when DJ started fourth grade, David moved to an apartment in Anaheim. DJ did not see appellant very often during that time, but after David broke up with his girlfriend a few months later, appellant began hanging around David's apartment more frequently, and the abuse resumed. In fact, throughout DJ's fifth-grade year and into the summer of 2007, appellant sexually abused him about once or twice a week. The abuse occurred at David's apartment when DJ and appellant were there alone, and as before, it typically took the form of oral copulation, anal sex and masturbation, with some kissing mixed in from time to time. Appellant also showed DJ pornography on occasion, suggesting that they engage in the same type of conduct that was depicted in the videos.
The abuse occurred so often and for so long that DJ thought it was normal. However, when he started sixth grade in the fall of 2007, he began to understand it was wrong and told appellant to stop it. When appellant persisted, DJ told David, and David called the police. In covert phone calls with DJ's parents, appellant minimized the abuse and claimed it was DJ's idea. He said the only reason he went along with it is because DJ wanted him to. Appellant told the same thing to police investigators, insisting the sexual activity was initiated by DJ. Nevertheless, he admitted he enjoyed it and ejaculated at times. He also admitted knowing it was wrong to engage in sexual activity with DJ.
At trial, the defense witnesses focused their testimony on appellant's various disabilities. His sister stated appellant is very gullible and has always had a hard time handling the responsibilities of everyday life. And psychologist Dr. Veronica Thomas, who interviewed appellant multiple times, testified to his various intellectual limitations. She said people at appellant's level of cognitive functioning tend to be trusting and highly manipulable because they do not have good independent judgment. While they can carry out basic tasks when supervised, they have poor adaptive skills because they cannot think abstractly or inferentially. She described appellant as a child-like person whose cognitive, psychological and emotional deficits have complicated his ability to function independently in society.
In the end, the jury convicted appellant of eight counts of sexual misconduct as charged. In count 1, the jury found he committed continuous sexual abuse from September 1, 2004 to August 31, 2005, when DJ was in the third grade. (Pen. Code, § 288.5, subd. (a).) As to counts 2 and 3, the jury found appellant committed sodomy and oral copulation on a child under the age of 10. (§ 288.7, subds. (a), (b).) On counts 4 thru 7, the jury convicted appellant of committing four lewd acts against DJ during 2007, when he was in the fifth and sixth grade. (§ 288, subd. (a).) And in count 8, the jury found appellant committed a lewd act by kissing DJ between September 1, 2004 and October 19, 2007, a three-year span that overlapped with the time period alleged in count 1. The jury also found appellant engaged in substantial sexual conduct with a child under 14, rendering him ineligible for probation. (§ 1203.006, subd. (a)(8).)
All further statutory references are to the Penal Code.
During sentencing, the prosecution asked the trial court to impose the maximum term of 66 years to life in prison, representing the mandatory term of 40 years to life on counts 2 and 3, plus a determinate term of 26 years on the remaining counts. Defense counsel argued subjecting appellant to an indeterminate life term would be cruel and unusual, due to his developmental disabilities. In support of this argument, defense counsel supplied the court with an updated report from Dr. Thomas in which she stated appellant "operates in the stage of concrete operations, between the ages of 6 and 11." According to Dr. Thomas, people in that range "have an impaired ability to relate cause and effect and may not perceive and observe appropriate social boundaries." In addition, they often "lack the capacity to see things [and] understand experiences[] from the perspective of others[.]" It was Dr. Thomas' opinion that appellant's developmental disabilities "figure[d] significantly in his victimization of [DJ] and should not be interpreted as psychopathic." Thus, she did not think appellant presented a serious danger to society. Noting he scored in the low to moderate risk category on a recidivism test, Thomas believed the likelihood of appellant reoffending would be even lower if he were afforded supervision in the community.
For his part, appellant wrote a letter to the court in which he said he was "truly sorry for what took place" and is "taking responsibility" for his actions. Yet, he also blamed his behavior on the lack of proper medication. Expressing his hopes for the future, appellant said that when he gets out of custody, he wants to buy a ranch in Texas and "ride into the sunset."
The trial court was less sanguine about appellant's prospects. After hearing a statement from DJ's mother about the extensive "mental, social and anger" problems DJ has suffered as a result of the abuse he incurred, the court sentenced appellant to the statutorily-mandated sentence of 40 years to life on counts 2 (25-to-life) and count 3 (15- to-life). As for the remaining counts, the court imposed a total determinate sentence of six years, representing the low term on count 1 and counts 4 thru 8. The determinate sentence was ordered to run concurrently with the indeterminate sentence, and the court stayed execution of sentence on counts 5, 7 and 8 pursuant to section 654. Although the trial court rejected appellant's cruel and unusual argument, it said it opted for the low term on the determinate counts because he has "an insignificant record of criminal conduct and was suffering from a mental disability that reduced his culpability for his crimes."
DISCUSSION
Continuous Sexual Abuse
Appellant contends his conviction on count 8 for the lewd act of kissing DJ must be reversed because it overlaps with his conviction on count 1, which alleged continuous sexual abuse of DJ. The Attorney General admits the dates alleged in counts 1 and 8 overlap by one year. However, she maintains there is no cause for reversal because appellant did not demur to the charges, and the record shows he kissed DJ outside the time period alleged in the continuous sexual abuse count. We find the Attorney General's arguments unavailing.
As explained above, count 1 was alleged to have occurred between September 1, 2004 and August 31, 2005, and count 8 was alleged to have occurred between September 1, 2004 and October 19, 2007.
On count 1, appellant was convicted of engaging in continuous sexual abuse in violation of section 288.5. That provision was enacted to allow the prosecution of child molesters in cases where the victim, because of his or her age, is unable to remember the exact date or place of the charged acts. (People v. Johnson (2002) 28 Cal.4th 240, 242 (Johnson).) It applies when a person commits three or more lewd and lascivious acts on a child over a period of not less than three months. (§ 288.5, subd. (a).)
However, section 288.5 also "imposes certain limits on the prosecution's power to charge both continuous sexual abuse and specific sexual offenses in the same proceeding." (Johnson, supra, 28 Cal.4th at p. 243.) As relevant here, section 288.5, subdivision (c) provides that when the defendant is charged with continuous sexual abuse on a child, "[n]o other . . . lewd and lascivious acts [including the act of kissing] . . . involving the same victim may be charged in the same proceeding . . . unless the other charged offense occurred outside the time period [alleged with respect to the continuous sexual abuse charge] or the offense is charged in the alternative."
By its terms, this restriction applies here because, notwithstanding the continuous sexual abuse charge in count 1, another lewd act (i.e., kissing) involving the same victim was alleged to have occurred in count 8, and that act did not occur wholly outside the time period alleged in count 1, nor was it charged in the alternative. Respondent is correct that the time period alleged in count 8 extended beyond the period alleged in count 1 by a period of about two years. However, the prosecutor made no attempt to narrow the scope of count 8 to that acceptable two-year period. Therefore, it is entirely possible appellant was convicted twice for committing the same act, against the same victim, during the same time period, in violation of section 288.5, subdivision (c). In Johnson, our Supreme Court made clear multiple convictions are not permissible under these circumstances. (Johnson, supra, 28 Cal.4th at pp. 243, 248 [reversing all of the defendant's lewd act convictions because they were alleged to have occurred against the same victim and during at least part of the same period alleged in a separate count for continuous sexual abuse].)
Granted, appellant never demurred to the charges, and as respondent notes, People v. Goldman (2014) 225 Cal.App.4th 950, 956-957, held a violation of section 288.5, subdivision (c) is a mere pleading defect that must be challenged by demurrer to preserve the issue for appeal. (See §§ 1004, 1012.) But according to Johnson, the prosecution "may not obtain multiple convictions" when the terms of that provision are violated. (Johnson, supra, 28 Cal.4th at p. 248, italics added; see also People v. Bautista (2005) 129 Cal.App.4th 1431, 1436 [interpreting Johnson as precluding multiple convictions under those circumstances]; People v. Torres (2002) 102 Cal.App.4th 1053, 1055 [same]; People v. Alvarez (2002) 100 Cal.App.4th 1170, 1176 [same].) Since appellant is challenging his underlying convictions as being violative of section 288.5(c), the forfeiture rule does not apply in this case.
While appellant could have demurred to the information on this basis, his failure to do so "does not justify a multiple-conviction that is improper as a matter of law." (People v. Shabtay (2006) 138 Cal.App.4th 1184, 1192 [defendant could challenge unauthorized theft conviction on appeal despite failing to demur in trial court].) "Where, as here, we conclude as a matter of law that multiple convictions are not authorized, the issue may be raised on appeal even in the absence of an objection in the trial court. [Citation]." (Ibid.) Therefore, we reverse appellant's conviction on count 8.
This reversal is unlikely to have any practical effect on appellant's sentence because the trial court ordered appellant's sentence on count 8 to run concurrently and stayed its execution under section 654. --------
Cruel and Unusual Punishment
Appellant also contends his sentence is cruel and unusual under the state and federal Constitutions. We disagree.
Both the California and United States Constitutions prohibit the imposition of cruel or unusual punishment. (U.S. Const., 8th Amend.; Cal. Const., art. 1, § 17.) But successful challenges based on that prohibition are extremely rare. (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196 ["exquisite rarity"].) Absent gross disproportionality in the defendant's sentence, no Eighth Amendment violation will be found. (Ewing v. California (2003) 538 U.S. 11; Lockyer v. Andrade (2003) 538 U.S. 63.) Similarly, a sentence will not be found unconstitutional under our state Constitution unless it is so disproportionate to the defendant's crime and circumstances that it shocks the conscience or offends traditional notions of human dignity. (People v. Dillon (1983) 34 Cal.3d 441; In re Lynch (1972) 8 Cal.3d 410, 424.) "Under both standards, the court examines the nature of the offense and the defendant, the punishment for more serious offenses within the jurisdiction, and the punishment for similar offenses in other jurisdictions." (People v. Mendez (2010) 188 Cal.App.4th 47, 64.)
As for the nature of appellant's offenses, there is no question he committed very serious crimes against a young victim over a substantial period of time. Indeed, appellant makes no attempt to minimize the gravity of his offenses or the harm they did to DJ. (See generally Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234, 244 [noting "sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people."] Instead, appellant focuses on his own personal characteristics and the law respecting developmentally disabled and juvenile defendants. In appellant's view, the fact he is "mentally, a child [makes] a 40-to-life sentence . . . grossly disproportionate to his personal culpability."
The United States Supreme Court has recognized that "[b]ecause juveniles have diminished culpability and greater prospects for reform," as compared to adult offenders, "'they are less deserving of the most severe punishments.' [Citation.]" (Miller v. Alabama (2012) 567 U.S. 460, 471.) And in Atkins v. Virginia (2002) 536 U.S. 304 (Atkins), the high court ruled it is cruel and unusual to execute mentally retarded persons because "they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct." (Id. at p. 306.) However, the court also recognized, "Those mentally retarded persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes." (Ibid.)
One of the reasons Atkins proscribed the death penalty for developmentally disabled individuals is that they tend to be impulsive and follow the lead of others. (Atkins, supra, 536 U.S.at p. 318.) However, appellant acted on his own in initiating sexual activity with DJ. Utilizing a ploy commonly used by sexual predators, he took advantage of his position as a trusted friend and lured DJ into illicit activity in the course of playing video games with him. And while he knew what he was doing was wrong, that did not stop him from putting himself in the position to victimize DJ over and over again. Having his own apartment, appellant could have stayed away from DJ, or at least taken steps to avoid being alone with him. But instead, he routinely went to DJ's apartment and employed measures (e.g., locked the door, drew the blinds, and told DJ not to reveal his conduct) to ensure his behavior would go undetected. This is a sign of sophistication and planning, as opposed to impulsiveness or mere opportunism. So, despite his cognitive limitations, we cannot quarrel with the trial court's determination appellant is deserving of serious punishment for his egregious behavior.
As for the remaining two factors applicable to appellant's Eighth Amendment claim - intrastate and interstate proportionality - appellant offers no analysis whatsoever. It is true, as appellant notes, that one factor alone may be sufficient to prove a particular punishment is cruel and unusual. (In re Nunez (2009) 173 Cal.App.4th 709, 725.) However, appellant has failed to demonstrate that his personal characteristics are such as to render his sentence disproportionate based on that factor alone. We thus reject his Eighth Amendment claim. His sentence may be severe, but it is not cruel or unusual under the state or federal Constitutions.
Abstract of Judgment
Lastly, the parties agree that while the trial court sentenced appellant to the low term of six years on count 1, the abstract of judgment shows the middle term of eight years on that count. As the trial court's oral pronouncement of judgment controls over the abstract, we will modify the judgment to accurately reflect the court's sentencing decision. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
Appellant's conviction for lewd conduct in count 8 is reversed, and his sentence on that count is stricken. The judgment is also modified to reflect the trial court's decision to sentence appellant to the low term of six years on count 1. The clerk of the trial court shall prepare an amended abstract of judgment reflecting these changes and send a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment, including appellant's indeterminate prison sentence of 40 years to life, is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.