Opinion
A100774.
10-6-2003
THE PEOPLE, Plaintiff and Respondent, v. FRANK FREDRICK JOHNSON, Defendant and Appellant.
On appeal from a judgment of conviction and a prison sentence of eight years for two counts of lewd and lascivious touching (Pen. Code, § 288, subd. (a)), defendant Frank Fredrick Johnson contends the court abused its discretion in denying probation and in imposing consecutive sentences. We affirm.
Background
The following evidence was presented at the preliminary hearing on February 14, 2002.
Katrina was 12 years old when she first met defendant, who lived up the street from her family. In August 1996, when Katrina was 13 and defendant was 32, she and defendant kissed, and he began touching her in a sexual manner on her chest, stomach, head, and vagina. Defendant did this once or twice a week until Katrina turned 14 in January 1997. She considered their relationship to be "boyfriend-girlfriend." The relationship and the behavior continued, and soon after her birthday they had sexual intercourse. They continued to have intercourse at least three times a month while she was 14. Later in the spring that year defendant moved into her family home, and then they engaged in sexual activity at least four or five times a week, on the living room couch after everyone was asleep. They also began having mutual oral sex at that time.
When Katrina was 15½ or 16, she and defendant began having arguments, but he continued to live in her family home until Katrina was almost 18. More than a year after their relationship deteriorated, in February or March of 2001, Katrinas parents learned about the relationship from her brother. Katrina testified that her relationship with defendant was consensual and that she did not feel bad about it.
Katrinas cousin, T., born June 20, 1986, testified that defendant first molested her in June 2000, when she was spending the night at Katrinas house. In the early morning hours of June 10 or 11, Katrina was sleeping on the living room floor and T. and defendant were on the couch. Defendant felt T.s breasts and all over her body, including her buttocks, but not her vagina, with his hands. He did not kiss her or speak to her, and she did not touch him.
Sometime after T.s birthday she slept at Katrinas again. T., her brother, defendant, and Katrina were sleeping in a tent outside when defendant felt T.s breasts, pulled down her pants, and put his penis in her vaginal area from behind. He did not penetrate her. She said, "[N]o, dont," and he replied, "[D]ont worry about it. Its okay. Just dont worry."
A third incident occurred in the living room in the early morning of Fathers Day, June 18, 2000. Defendant touched T.s breasts and vagina with his hands, her breasts and vagina with his tongue, and her vagina with his penis. After this incident, T. was afraid to tell anyone what happened. But after about three months, she told a friend and then, on November 14, 2000, she told her parents, who called the police.
Detective Brett Sackett arranged for T. to make some pretext calls, that is, calls to defendant in which she attempted to elicit incriminating statements. There were three taped phone calls made from T.s house. During the first two, defendant did not want to speak to T.; he said he could not talk because family members were around. When T. described what had happened, defendant did not deny it. During one call, she expressed her fear of catching a sexually transmitted disease from him, and he replied he did not think that was likely because it had been "like ten, 20, almost [years since he had one]."
Based upon this evidence defendant was charged by information with three counts of violation of section 288, subdivision (a) and one count of violation of section 288, subdivision (c)(1) as to T., and six counts as to Katrina (§§ 288.5, 288, subd. (a), 288 subd. (c)(1) [two counts], 261.5, subd. (c) [two counts].)
On August 23, 2002, defendant entered into plea negotiations. He pled no contest to counts 1 and 2 as to T. (two counts of a lewd act on a child under 14, in violation of § 288, subd. (a)), with a maximum prison term of 10 years. All other counts and enhancements were dismissed.
Prior to sentencing, defendant filed an application for probation and a statement in mitigation. He attached an assessment, which David Schneider, Ph.D., had prepared pursuant to court order. Dr. Schneider found defendant functioned at a low average range, evidencing a "concrete and simplistic thinking style." Defendant denied having sexual contact with T. and was vague and evasive about contact with Katrina. But he understood that he admitted what had happened by his plea, which he entered to avoid a longer sentence. Defendant did not perceive that he needed sex offender treatment.
Dr. Schneider concluded that defendant could benefit from sex offender treatment and that the factors favoring probation outweighed the factors against it.
Defendant also presented an assessment by Thomas Cushing, Ph.D., who found defendant had borderline intelligence with an expressive language disability. Dr. Cushing cautioned that "[a]nyone interviewing him should not confuse his sometimes inappropriate responses with other individuals who are actually exhibiting passive-aggressive responses or responding as someone in a state of psychological denial."
On November 7, 2002, the court considered the request for probation. Defense counsel read a letter from defendant acknowledging his "terrible and foolish mistake . . . . carrying on the way I did." In his letter, defendant stated that even though he thought the fondling, attempted penetration, and oral copulation were consensual, it was wrong. The court heard argument from counsel and statements from witnesses in support of defendant as well as against, from Katrina, T., and T.s mother.
The court found that because of his long history of denial (except to the extent his recent letter acknowledged fault) defendant was not amenable to sex offender treatment. The court denied probation and sentenced defendant to a term of eight years imprisonment: the midterm of six years on count 1 and a consecutive term of two years on count 2 because of a "second period of criminality." This timely appeal followed.
Discussion
Denial of Probation
Defendant contends the court abused its discretion in denying probation and sentencing him to prison. He argues, relying on factors enunciated in People v. Bolton (1979) 23 Cal.3d 208, that because his improper sexual activity had ceased, the protection of the public is not served by imprisoning him; that he could be more effectively rehabilitated in the community rather than in prison; and that his release on probation would not deprecate the seriousness of the crime, the court having given too much weight to the feelings of the victims in this regard. We do not agree, first because, as the Attorney General correctly suggests, the Bolton factors do not compel defendants conclusion, and second because the court properly considered other relevant factors in deciding on a prison sentence.
The fact that appellant did not continue his sexual activity with T. did not necessarily indicate he would not engage in such illegal activity in the future; it simply indicates he stopped, perhaps temporarily, for some unknown reason. Regarding rehabilitation, appellant consistently denied sexual contact with T. and told Dr. Schneider there was "no way" he needed sex offender treatment. This denial reasonably led the court to believe defendant was not amenable to such treatment. Regarding the statements by the victims, the record does not support defendants theory that the court gave them undue weight. The court thanked all those who came to testify at sentencing both for and against defendant, noting that it was difficult for the victims. No excessive emphasis appears to have been given to their testimony.
Furthermore, the trial court is presumed to have considered the criteria relevant to the probation choice contained in the sentencing rules. (Cal. Rules of Court, rules 4.409, 4.414.) Thus the court properly took into account the vulnerability of the victim, the infliction of emotional injury on the victim, and defendants having taken advantage of a position of trust. (Cal. Rules of Court, rules 4.414(a)(3), (4) & (9).)
While the court noted the factor in defendants favor that he had no prior record (Cal. Rules of Court, rule 4.414(b)(1)), the court also considered that defendant was not remorseful (Cal. Rules of Court, rule 4.414(b)(7)). Finally, the weight of the dismissed counts lent support to the trial courts denial of probation. (People v. Bustamante (1992) 7 Cal.App.4th 722, 725-726, accord, People v. Lamb (1999) 76 Cal.App.4th 664, 672-674.)
The court did not abuse its discretion in denying probation.
Consecutive Sentences
Defendant contends his sexual activities with T. constituted a single period of aberrant behavior and therefore the trial erred in imposing consecutive, rather than concurrent sentences.
Defendant argues that because his acts constituted an indivisible course of conduct with one intent and objective, the consecutive sentences violate Penal Code section 654 and the cases construing it. Our Supreme Court has refused to extend the single intent and objective test of section 654 to multiple separate sex crimes such as occurred here. (People v. Perez (1979) 23 Cal.3d 545, 552-553, accord, People v. Hicks (1993) 6 Cal.4th 784, 788.) In other words, section 654 does not preclude separate punishment for multiple sex offenses, even if the acts are closely connected in time and are a part of the same venture, as long as the acts giving rise to the sexual conduct are separate and distinct and not incidental to or the means by which any other sexual offense is accomplished. (People v. Perez, supra.) In this case, none of the lewd and lascivious acts involving T. was committed as a means of committing or facilitating the commission of any other lewd act. The courts sentence did not violate section 654.
Neither did the courts imposition of consecutive sentences offend California Rules of Court, rule 4.425, since the court acted within its discretion in finding, based upon the record, that defendants crimes were committed at different times rather than being committed so closely in time as to indicate a single period of aberrant behavior. (Cal. Rules of Court, rule 4.425(a)(3).) Also, the court was aware of aggravating factors that further supported consecutive sentences under California Rules of Court, rule 4.425(b).
The judgment is affirmed.
We concur: Stein, Acting P.J. and Swager, J. --------------- Notes: All statutory references are to the Penal Code, unless otherwise indicated. 2. The Attorney General asserts that defendant waived this assignment of error by not objecting at the moment the court pronounced sentence. Defendant filed an application for a grant of probation and an extensive statement in mitigation. Counsel argued vehemently for probation and produced several witnesses who spoke in defendants favor. On this record, we decline to find a waiver. (See People v. Scott (1994) 9 Cal.4th 331, 350-351.) 3. Since defendant did not bargain for a term of exactly 10 years, but agreed to a term of no more than 10 years, he did not waive this issue. (Cf. People v. Hester (2000) 22 Cal.4th 290, 295; Cal. Rules of Court, rule 4.412(b).) 4. The court considered defendants lack of criminal record as a significant mitigating factor in imposing the middle rather than the upper term.