Opinion
F073366
03-20-2017
THE PEOPLE, Plaintiff and Respondent, v. JEROME L. HUMPHREY, Defendant and Appellant.
Solomon Wollack, 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, Julie A. Hokans and Clara M. Levers, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15CM3863)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kings County. Robert S. Burns, Judge. Solomon Wollack, 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, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
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INTRODUCTION
Appellant Jerome L. Humphrey entered a negotiated plea of guilty to two counts of violating Penal Code section 269, subdivision (a)(1), rape of a child under the age of 14 years. At sentencing, the trial court imposed a term of 30 years to life and issued a 10-year restraining order pursuant to section 136.2, prohibiting any communication between Humphrey and the victim. Humphrey challenges the 10-year restraining order. We affirm.
References to code sections are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
Because Humphrey entered a negotiated plea, the facts are taken from the probation report. On July 24, 2015, Kings County Sheriff's deputies responded to a report of a juvenile runaway. When the deputies arrived at Humphrey's home, Humphrey and his wife, C.M., stated their 12-year-old daughter, A.H., left the home without permission. C.M. told the deputies that lately, A.H. had been acting out, arguing with her parents, and cutting herself.
The deputies located A.H. at a park. When asked why she left home, A.H. began crying and stated she left home because of her father. When asked to be more specific, A.H. said, "He tries going inside me." A.H. was transported to the sheriff's office and questioned further.
A.H. told deputies she ran away because she was trying to get away from what was happening at home. A.H. stated that about one year earlier, Humphrey started taking her to a room where he would remove her pants and underwear, then remove his own, after which he would "try to get in me." The last time Humphrey did this was about two days before she ran away.
When A.H. was asked to explain what she meant when she said Humphrey tried "to get in me," A.H. became very emotional. A.H. stated she lost her virginity to Humphrey "because he was the first person" with whom she had sex. When asked to define what she meant by sex, A.H. eventually told deputies it was when the "guy" put his "guy part" or "penis" into the "girl part" or "vagina." A.H. told deputies that her father would physically restrain or hold her; he penetrated her digitally and with his penis; and his penetration of her "really hurt" and at times, made her bleed.
A.H. told deputies she had been cutting herself and felt suicidal. A.H. was transported to Valley Children's Hospital for a physical exam and mental health evaluation. The physical exam showed tearing to the hymen and fossa, which was consistent with "penile/vaginal penetration and finger penetration" as described by A.H.
While A.H. was being examined at the hospital, deputies questioned Humphrey at the sheriff's office. Eventually, Humphrey admitted molesting his daughter on 10 or more different occasions. Humphrey believed he had started molesting A.H. in September or October of 2014; he had last raped A.H. around July 22, 2015. Humphrey blamed his drug use, in part, for what occurred. Humphrey was six feet two inches tall and weighed 300 pounds.
A complaint charging Humphrey with 29 felony offenses against A.H. was filed on July 27, 2015. On that same date, the trial court issued a criminal protective order prohibiting Humphrey from having any personal, electronic, telephonic, or written contact with A.H., or from being within 100 yards of A.H., or from contacting A.H. through a third party, except an attorney of record. The order was effective immediately and Humphrey was personally served with a copy of the order on July 27, 2015.
The restraining order provided that it expired on the date set forth in the order, if a date was specified; or if issued pursuant to section 136.2, subdivision (a), was valid until a prison commitment or the court no longer had jurisdiction. If issued pursuant to section 136.2, subdivision (i)(1), the order was valid for up to 10 years. No expiration date was specified in the restraining order. The restraining order did not indicate if it was issued pursuant to subdivision (a) or subdivision (i)(1) of section 136.2.
On December 2, 2015, Humphrey accepted a plea agreement, whereby he pled guilty to two counts of aggravated sexual assault—rape—of a child under 14 years of age, with a specified term of imprisonment of 15 years to life for each offense, for a total of 30 years to life. In exchange for his plea, the People agreed to dismiss the other counts.
The trial court then proceeded to query Humphrey on whether he understood the consequences of his plea. At one point, the trial court stated:
"THE COURT: Do you understand that -- actually, the Court will also be ordering a 10-year stay-away protective order in these matters; do you understand that?
"THE DEFENDANT: Yes."
The trial court proceeded to explain Humphrey's constitutional rights and accept a waiver of those rights. The trial court found a factual basis for the plea. The trial court then asked Humphrey if he understood "everything I've gone over with you concerning the consequences of your plea as well as your rights?" Humphrey replied, "Yes." The trial court asked if Humphrey had "[a]ny other questions" and Humphrey replied in the negative. The trial court proceeded to accept Humphrey's guilty plea to the two counts and found the plea and waiver of rights "are voluntarily, intelligently, and expressly made."
Humphrey was sentenced on January 4, 2016. The sentence imposed conformed to the plea agreement.
The victim, A.H., testified at sentencing. A.H. stated that "what happened ... our family was tore apart." She and her siblings were placed in foster care, but "we really have been better than what we have before." A.H. stated she has been feeling better about herself and doing better in school. A.H. stated her father "just needs some time to himself to think about what he has done and how he has tore us apart and how he has hurt us. But I do forgive him."
At sentencing, the trial court reiterated that it was issuing a 10-year protective order, which would expire on January 4, 2026. The order prohibited Humphrey from having any personal, electronic, telephonic, or written contact with A.H. and required that he not come within 100 yards of A.H. The trial court added a caveat that Humphrey could have "peaceful contact" for purposes of visitation if any family or juvenile court issued any subsequent order allowing for visitation. Humphrey was served with a written copy of the protective order at sentencing. Neither Humphrey nor his attorney raised any objection to the 10-year protective order.
Humphrey filed a notice of appeal on March 4, 2016. A certificate of probable cause was issued on March 11, 2016.
DISCUSSION
Humphrey challenges the protective order, contending he did not forfeit any challenge to the order and if forfeited, defense counsel was ineffective. Humphrey also contends the evidence does not support the issuance of the order.
Forfeiture of Issue
It is undisputed that Humphrey raised no objection to the section 136.2, subdivision (i)(1) protective order at the time of sentencing. Humphrey contends, however, the issue is not forfeited. The People contend the issue is forfeited for failure to object to a discretionary sentencing choice. We agree the issue is forfeited.
Section 136.2, subdivision (i)(1) provides that in all cases in which a defendant has been convicted of a crime that requires registration pursuant to section 290, the trial court, at sentencing, shall consider issuing a postjudgment restraining order prohibiting contact with the victim. (People v. Therman (2015) 236 Cal.App.4th 1276, 1279.) Humphrey pled to two counts of violating section 269, subdivision (a)(1), and section 269 is an offense for which section 290 registration is required. (§ 290, subd. (c).)
While the trial court is required to consider issuing a section 136.2 protective order, the code section does not mandate the issuance of a protective order. The trial court exercises its discretion whether to issue the order. A defendant, or his or her counsel, must object at the time of sentencing to a sentencing choice and, if there is no objection, any error is deemed waived and cannot be challenged for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353, 356 (Scott).) The California Supreme Court held:
"We conclude that the waiver doctrine should apply to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons." (Scott, supra, 9 Cal.4th at p. 353.)
Here, Humphrey knew before he entered his plea that a 10-year no-contact order would be issued. Humphrey entered his guilty plea after being informed that a 10-year no-contact order would be issued at sentencing. The trial court, at sentencing, stated the terms of the no-contact order on the record and had Humphrey personally served with a written copy of the order at the sentencing hearing. Humphrey had ample notice and opportunity to object to the section 136.2 order, both prior to and at the sentencing hearing, but did not do so. Consequently, he has forfeited this issue for purposes of appeal. (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1371.)
The two cases cited by Humphrey for the proposition that the issue is not forfeited, People v. Ponce (2009) 173 Cal.App.4th 378 and People v. Robertson (2012) 208 Cal.App.4th 965, do not support his contention. In both Ponce and Robertson the issue was whether the trial court exceeded its jurisdiction in issuing a restraining order, thus raising a question of an unauthorized sentence. In Ponce, the term of the protective order exceeded the length of time legally permitted under the statute. (People v. Ponce, supra, 173 Cal.App.4th at p. 383.) In Robertson, the no contact order was not authorized by any statute. (People v. Robertson, supra, 208 Cal.App.4th at pp. 995-996.)
In Humphrey's case, the issue is not whether the trial court had jurisdiction to issue a no-contact order; statutory authority on this point is clear. (§ 136.2, subd. (i)(1).) The issue as presented by Humphrey is the trial court's exercise of its discretion in issuing the no-contact order and he has forfeited this issue for purposes of appeal. (People v. Aguirre (1997) 56 Cal.App.4th 1135, 1139.)
Because the issue is forfeited, we need not address Humphrey's contention that the evidence does not support the issuance of a section 136.2, subdivision (i)(1) restraining order.
Ineffective Assistance of Counsel Claim
Humphrey claims defense counsel was ineffective for failing to object to the section 136.2, subdivision (i)(1) protective order. He does not attempt to explain counsel's omission. When the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, the claim must be rejected on appeal. (People v. Johnson (2016) 62 Cal.4th 600, 653.) "The merits of such claims are more appropriately resolved, not on the basis of the appellate record, but rather by way of a petition for writ of habeas corpus." (Ibid.)
DISPOSITION
The judgment and section 136.2, subdivision (i)(1) restraining order are affirmed.