Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara No. 1256120 Frank J. Ochoa, Jr., Judge
Susan S. Bauguess, under appointment by the Court of Appeal, for Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
YEGAN, Acting P.J.
Peter Aibor Jeschke appeals from the judgment entered following his conviction by a jury of misdemeanor possession of marijuana (Health & Saf. Code, § 11357, subd. (b)); furnishing marijuana to a minor 14 years of age or older (Id., § 11361, subd. (a)); sexual penetration of a person under the age of 18 years (Pen. Code, § 289, subd. (h)); three counts of oral copulation of a person under the age of 18 years (§ 288a, subd. (b)(1)); and two counts of unlawful sexual intercourse. (§ 261.5, subd. (c).) The trial court sentenced appellant to prison for seven years, eight months, but suspended execution of the sentence and placed him on probation for five years. One of the conditions of probation was that he serve 365 days in jail. Appellant was awarded credit for time served of 339 days. Another condition of probation was that he register as a sex offender during the five-year probationary period.
All statutory references are to the Penal Code unless otherwise stated.
Appellant contends that the trial court erroneously (1) instructed the jury, (2) denied his motions for a mistrial, (3) required him to register as a sex offender, (4) imposed the upper term for the offense of furnishing marijuana to a minor, and (5) imposed multiple punishment in violation of section 654. Finally, appellant argues that he was denied his constitutional right to the effective assistance of counsel. We affirm.
Facts
Appellant was the assistant coach of a high school girls' tennis team. Z.M, who was on the tennis team, met appellant when she was 15 years old. In addition to being Z.M.'s school coach, appellant gave Z.M. private tennis lessons paid for by her parents. Z.M. "considered [appellant] to be a role model."
In November 2007 when Z.M. was 16 years old, appellant removed her clothes, put his finger inside her vagina, and orally copulated her. Appellant, who was 34 years old, committed the sexual acts inside his car. Appellant warned Z.M. not to tell anyone.
About a week later, appellant furnished marijuana to Z.M., which she smoked. Later that same day, appellant removed Z.M.'s clothes, orally copulated her, and "made [Z.M.] rub his penis" with her hand until he ejaculated. Appellant warned Z.M. not to tell anyone.
The day before Thanksgiving in November 2007, appellant furnished marijuana to Z.M., which she smoked. Appellant and Z.M. then went into a Jacuzzi. Appellant orally copulated Z.M. and put his penis inside her vagina. Z.M. said to appellant, "Are you sure we should do this?" She asked whether he had a condom. Appellant replied, "It's all right, it's okay." Appellant warned Z.M. not to tell anyone. He said that if she told other people, "his life would be ruined and he'd lose his job."
The day after Thanksgiving, appellant furnished the drug Ecstasy to Z.M. After Z.M. ingested the drug, appellant had sexual intercourse with her. He did not use a condom.
During a search of appellant's bathroom, the police found a pornographic magazine entitled, "Barely Legal." The magazine contained photographs "of naked girls in sexual positions. The girls had bodies that caused them to appear to be very young, age range 14 to 16."
Jury Instruction
The information alleged that two of the sex offenses (sexual penetration and one count of oral copulation) had been committed in Santa Barbara County "[o]n or about November 11, 2007." The trial court instructed the jury: "The People are not required to prove that the crime took place exactly on [November 11, 2007] but only that it happened reasonably close to that day." Appellant contends that this instruction was improper because he presented an alibi defense that he had been in Seal Beach in Orange County on November 11, 2007.
The instruction " ' "is improper if the People's evidence fixes the commission of the offense at a particular time to the exclusion of any other time and the defendant has presented evidence of an alibi as to that particular time...." ' " (People v. Richardson (2008) 43 Cal.4th 959, 1027.) Here, the instruction was proper because the People's evidence did not fix November 11, 2007, as the date of the commission of the two sex offenses. Z.M.'s testimony was vague as to calendar dates. She testified that, on an unspecified date after October 20, 2007, she went to appellant's house. She returned to his house "probably a week later." Appellant drove Z.M. in his car to a nearby street, parked the car, and committed the sex offenses inside the car.
The People's selection of the date of "[o]n or about November 11, 2007, " was based on Detective James Ella's interview of Z.M. During the interview, Z.M. expressed uncertainty as to the date of the commission of the sex offenses. Her exact words were, "I think that it was a Sunday night." Ella said, "That would have been November 11th." Z.M. replied, "Yeah." In his police report, Ella wrote, "[Z.M.] said that on Sunday night, which she believes was possibly November 11th, 2007, " appellant committed the sex offenses. (Italics added.)
Denial of Motions for Mistrial
Appellant argues that the trial court erroneously denied two motions for a mistrial. One motion was based on the admission of the testimony of Evan T. and Kristin T. They testified that appellant had contacted them and had tried to enlist their support in dissuading prosecution witnesses from testifying or from testifying truthfully. Evan T. refused to cooperate, but Kristin T. consented.
Appellant asked Kristin T. "[t]o send an anonymous" email message to prosecution witnesses. He wanted her "to threaten, scare, and intimidate them." Appellant and Kristin T. decided that Kristin T. would establish a Facebook account in the name of a fictitious person. At appellant's direction, she sent messages from that account to the Facebook accounts of three prosecution witnesses the day before they were scheduled to testify at the trial. Appellant told Kristin T. what to say in the messages. One of the messages stated in part: "Get ready to be ripped apart up there when you [testify], because you have been caught in many lies, and you know damn well that half the shit you are saying is a lie. Are you really that small that you need to ruin and destroy someone's life for your own good?"
Appellant contends that the trial court abused its discretion in denying his motion for a mistrial because the testimony of Evan T. and Kristin T. was unduly prejudicial and, therefore, should have been excluded. We disagree. "A threat made by a defendant against a prospective prosecution witness whom he expects to testify against him, with the apparent intention of intimidating the witness, is proper evidence; efforts of an accused to suppress testimony against himself indicate a consciousness of guilt. [Citation.]" (People v. Slocum (1975) 52 Cal.App.3d 867, 887; see also People v. Weiss (1958) 50 Cal.2d 535, 554, questioned on another ground in People v. Johnson (1980) 26 Cal.3d 557, 570-571 ["Efforts to suppress testimony against himself indicate a consciousness of guilt on the part of a defendant, and evidence thereof is admissible against him"].) The trial court acted within its discretion in determining that the probative value of appellant's efforts to intimidate prosecution witnesses was not "substantially outweighed by the probability" that the admission of this evidence would "create substantial danger of undue prejudice...." (Evid. Code, § 352.)
Appellant's other motion for a mistrial was based on the prosecutor's remarks during rebuttal argument that appellant had failed to call specific witnesses to testify on his behalf. The trial court concluded that the remarks were improper because the witnesses specified by the prosecutor were not "witnesses that one would logically expect the defense to have called." In denying the motion for a mistrial, the court noted, "I think a curative instruction will suffice." The court instructed the jury as follows: "During the prosecution's rebuttal argument there was a suggestion there could have been defense witnesses called, a forensics expert or witnesses who might have been able to testify about the character or historical facts regarding [Z.M.] or [appellant]. I am at this time directing you to disregard that and not consider or discuss that. You've been instructed that the prosecution has the burden of proof, the defense doesn't have to call any witnesses, and that's the rule that you should be governed by."
The prosecutor may properly comment "on the failure of the defense... to call logical witnesses" other than the defendant. (People v. Brady (2010) 50 Cal.4th 547, 566; see also People v. Chatman (2006) 38 Cal.4th 344, 407 ["Comment on the failure to call logical witnesses is legitimate"].) Such comments do not "erroneously imply that the defendant bears a burden of proof [citations]." (People v. Lewis (2004) 117 Cal.App.4th 246, 257.)
We need not and do not consider whether the prosecutor's comments during rebuttal argument were improper. Assuming for purposes of discussion that the witnesses specified by the prosecutor were not logical defense witnesses, the trial court's curative instruction dispelled any potential prejudice. (People v. Avila (2006) 38 Cal.4th 491, 575 [incriminating testimony "did not prejudice defendant because the court admonished the jury not to consider it for any purpose against defendant, and we presume the jury followed the instruction"].)
Registration as Sex Offender
Appellant contends that "the trial court abused its discretion when imposing mandatory registration under... section 290.006." Pursuant to section 290.006, the court had discretion whether to require appellant to register for the rest of his life under the Sex Offender Registration Act (§§ 290 - 290.023). (People v. Hofsheier (2006) 37 Cal.4th 1185, 1206-1207; People v. Ranscht (2009) 173 Cal.App.4th 1369, 1371, 1375.)
Section 290.066 provides: "Any person ordered by any court to register pursuant to the Act for any offense not included specifically in subdivision (c) of Section 290, shall so register, if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. The court shall state on the record the reasons for its findings and the reasons for requiring registration."
Appellant argues that the trial court abused its discretion "since there was no finding appellant was likely to reoffend." Instead, the court expressly found "that based on the Probation Department's report and the psychological evaluation, it would appear as though [appellant] is a low risk to recidivate."
Appellant relies on Lewis v. Superior Court (2008) 169 Cal.App.4th 70. The Lewis court declared: "Since the purpose of sex offender registration is to keep track of persons likely to reoffend, one of the 'reasons for requiring registration' under section 290.006 must be that the defendant is likely to commit similar offenses - offenses like those listed in section 290 - in the future. [Citation.]" (Id., at p. 78.)
Lewis is inapplicable because the trial court did not require appellant to register under section 290.006. If it had required registration under that section, it would have ordered appellant to register for the rest of his life. (People v. King (2007)151 Cal.App.4th 1304, 1308 ["By its terms, section 290 imposes a registration requirement on the individual 'for the rest of his or her life....' (§ 290, subd. (a)(1)(A) [now § 290, subd. (b)].) Here, the trial court specifically limited the registration requirement to the five-year period during which appellant was on probation for the [sex] offense[s]." (Ibid.) The trial court declared, "[A]s opposed to registration pursuant to Penal Code section 290, I'm going to require that [appellant] register with a local law enforcement agency as a sex offender during the period of probation." The court's written order states, "[Appellant's] sex offender registration is specifically not imposed pursuant to the provisions of P.C. § 290, et. seq." Because the registration requirement was imposed as a condition of appellant's probation (§ 1203.1) rather than pursuant to the Sex Offender Registration Act, the trial court was not required to find that appellant "is likely to commit similar offenses - offenses like those listed in section 290 - in the future." (Lewis v. Superior Court, supra, 169 Cal.App.4th at p. 78.)
Imposition of Upper Term for Furnishing Marijuana to a Minor
Appellant contends that "the court's failure to articulate any reasons for imposing the aggravated five-year term on count 5, administering/furnishing marijuana to a minor, requires a remand for reconsideration of that count." Appellant has forfeited this point because he failed to raise it below. (People v. Scott (1994) 9 Cal.4th 331, 353.) In any event, the trial court did articulate reasons for imposing the upper term. The court stated: "It's clear that [appellant] abused a position of power [and] took advantage of a vulnerable victim...." These reasons warranted imposition of the upper term.
Section 654"Section 654 precludes multiple punishments for a single act or indivisible course of conduct. [Citation.]" (People v. Hester (2000) 22 Cal.4th 290, 294.) " 'Whether a course of criminal conduct is divisible... depends on the intent and objective of the actor.' " (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) "[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored 'multiple criminal objectives, ' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335.)
Appellant argues that, pursuant to section 654, the trial court erroneously punished him for the offenses of oral copulation in count 3 and unlawful sexual intercourse in count 8. As to the oral copulation offense in count 3, appellant contends that it "arose from an indivisible course of conduct arising from a single objective as to count 2 (both counts occurring on November 11, 2007)." On count 2 appellant was convicted of sexual penetration. As to the unlawful sexual intercourse offense in count 8, appellant contends that it "arose from an indivisible course of conduct arising from a single objective as to count 7 (both counts occurring on November 21, 2007)." On count 7 appellant was convicted of oral copulation. Appellant maintains that "[t]he two counts occurring on each date constituted an indivisible course of conduct[] related to a single objective, e.g. a sexual relationship with the victim."
Appellant's argument is devoid of merit. Even if a defendant has but one objective - sexual gratification - section 654 will not preclude multiple punishment for sex crimes committed against a single victim on a single occasion where "[n]one of the sex offenses was committed as a means of committing any other, none facilitated commission of any other, and none was incidental to the commission of any other." (People v. Perez (1979) 23 Cal.3d 545, 553-554.) "If the rule were otherwise, 'the clever molester could violate his victim in numerous ways, safe in the knowledge that he could not be convicted and punished for every act.' [Citation.] Particularly with regard to underage victims, it is inconceivable the Legislature would have intended this result. [Citation.]" (People v. Alvarez (2009) 178 Cal.App.4th 999, 1006.)
" '[T]he judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error. [Citation.]' [Citation.]" (People v. Foss (2007) 155 Cal.App.4th 113, 126.) Appellant has failed to show that the oral copulation offense in count 3 and the sexual penetration offense in count 2 were incidental to each other. Nor has he shown that one of these offenses facilitated the commission of the other or was the means by which the other was accomplished. Appellant has failed to make a similar showing as to the unlawful sexual intercourse offense in count 8 and the oral copulation offense in count 7. Accordingly, appellant has not demonstrated that section 654 precludes multiple punishment for these offenses. (People v. Perez, supra, 23 Cal.3d at pp. 553-554.)
Alleged Denial of Right to Effective Assistance of Counsel
The sex offenses were "wobblers, " i.e., punishable as either a felony or a misdemeanor. (People v. Nguyen (2009) 46 Cal.4th 1007, 1013, fn. 3.) Appellant maintains that defense counsel was ineffective because she did not ask the trial court to reduce these offenses to misdemeanors. "When a defendant is convicted... of a wobbler offense, and is granted probation without the imposition of a sentence, his or her offense is 'deemed a felony' unless subsequently 'reduced to a misdemeanor by the sentencing court' pursuant to section 17, subdivision (b). [Citations.]" (People v. Feyrer (2010) 48 Cal.4th 426, 438-439.)
The standard for evaluating appellant's claim of ineffective counsel is enunciated in Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674]. "First, [appellant] must show that counsel's performance was deficient.... Second, [appellant] must show that the deficient performance prejudiced the defense." (Id., 466 U.S. at p. 687.)
"Judicial scrutiny of counsel's performance must be highly deferential.... [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, [appellant] must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' [Citation.]" (Strickland v. Washington, supra, 466 U.S. at p. 689.)
Appellant has failed to show that counsel was deficient in not asking the trial court to reduce the wobblers to misdemeanors. It was reasonable for counsel to believe that such a request would be futile and that she should concentrate her efforts on securing probation for her client. Based on the probation report, a grant of probation appeared unlikely. The report listed seven criteria warranting the denial of probation and stated that "a grant of probation... would be completely inappropriate." After probation was granted, counsel could not have requested that the wobblers be reduced to misdemeanors because the court had imposed and then suspended the execution of felony prison terms on all of the wobblers. A sentencing court may declare a wobbler to be a misdemeanor only when it "grants probation to a defendant without imposition of sentence." (§ 17, subd. (b)(4), italics added.)
Disposition
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J.