Summary
In People v. Labrecque, No. C061655, 2010 WL 2765865 (Cal.Ct.App. July 14, 2010), for example the defendant was charged under both the federal Mann Act for transporting his minor daughters in interstate commerce with the intent that they engage in sex acts in California with a third party and under various California statues for sex acts he perpetrated against his daughters either on his own or as an accomplice to his co-conspirator.
Summary of this case from United States v. SchneiderOpinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F01831.
SCOTLAND, P. J.
The children of defendant Joseph LaBrecque were born into a dismal existence defined by social isolation and ritualized sexual abuse carried out by their father, a self-proclaimed “patriarch” of a religious cult. Defendant engaged in countless sexual acts with his young daughters to satisfy his own depraved urges and to prepare them for their “presentation, ” a series of three sexual acts the children were required to successfully perform on Allen Harrod, the “head patriarch” of the cult. Because the LaBrecque family lived in Texas, and the Harrod family lived in California, defendant sent his daughters across state lines to perform the sexual acts on Harrod.
Convicted in federal court of six counts of transportation of a minor in interstate commerce with intent to engage in criminal sexual activity, and one count of obtaining custody of a minor for the purpose of producing a visual depiction of the minor engaged in sexually explicit conduct, defendant was sentenced to 1, 080 months (90 years) in federal prison.
Thereafter, following a bench trial in state court, defendant was convicted of two counts of lewd and lascivious acts on a child under the age of 14 years (counts 1 & 3), two counts of aggravated sexual assault of a child by means of forcible oral copulation (counts 2 & 4), five counts of lewd and lascivious acts on a child of 14 or 15 years (counts 6, 8, 10, 12, 14), two counts of forcible rape (counts 5, 9), two counts of forcible oral copulation (counts 7, 11), and one count of forcible sodomy (count 13). Finding that defendant was convicted of committing the crimes alleged in counts 5, 7, 9, 11, and 13 against more than one victim within the meaning of Penal Code section 667.61, subdivision (e)(5), the trial court sentenced defendant to state prison for a term of 105 years to life (consecutive terms of 15 years to life for counts 2, 4, 5, 7, 9, 11 and 13; sentence on the remaining counts was imposed and stayed pursuant to Penal Code section 654).
Defendant’s sole contention on appeal is that his state court convictions must be reversed because he was previously punished for those offenses in federal court. We disagree and shall affirm the judgment.
BACKGROUND
Defendant lived in Texas with his wife and their six children (five daughters and one son). Defendant taught his children that he was the patriarch of their religion, that Harrod was the head patriarch, and that because they were closer to God than other men, he and Harrod could never be questioned or disobeyed. Defendant cultivated the simple obedience of his children through periodic beatings with a leather belt and the ever present threat that falling away from the religion would result in “blood atonement, ” which meant that the child would be killed as “an act of mercy” so that the child could no longer sin. Defendant repeatedly told the children that he “owned” them and that blood atonement “was just a phone call away.”
The children were homeschooled once they reached a certain age, ostensibly to prevent the “bad influence” of “corrupt secular people, ” and were not allowed to talk to or play with other children. In addition to their mainstream studies, defendant’s daughters were taught that they were his concubines and could rise in the hierarchy of the religion and eventually become his wives by performing various sexual acts on him. His children were required to participate in rituals, some of which were religious in nature. For instance, the children were required to “trek” five miles around the middle school track every day except the Sabbath in order to commemorate religious pioneers who migrated across the United States.
Other rituals were designed purely for sexual exploitation. One such ritual, the “day of rejoicing, ” occurred whenever Harrod participated in 50 sexual acts with members of his family in one month. Whenever Harrod called defendant and announced a day of rejoicing, defendant’s children would be required to spend the entire day naked performing various sexual acts on defendant. If any of the children demonstrated embarrassment, defendant would humiliate them and require them to remain naked for a longer period of time.
Another such ritual was called “presentation” and took place during the year following the first menstrual period of each female child. Within that year the child was required to come to Sacramento to successfully perform three sexual acts on Harrod. The sexual acts were referred to as “leaves.” The first leaf was oral copulation. The second leaf was vaginal intercourse. The final leaf was anal intercourse. The leaves had to be performed in order, and were not considered successful unless Harrod ejaculated. Successfully performing each of the three leaves meant that the child would be allowed to stay in Sacramento with Harrod.
While all of defendant’s children suffered monstrous abuse, defendant’s convictions involve three victims, two of his daughters, S.L. and K.L., and one of Harrod’s daughters, A.H. Thus, we will recite only facts relating to the incidents involving these children.
S.L.
When S.L. was about six or seven years old, defendant pulled her into a bedroom where he masturbated and touched her vagina. When defendant ejaculated, he forced S.L. to drink his semen because “it was a sin to spill seed.” When S.L. told defendant that she did not like this, he told her that “it was important to like it.” From this day forward, S.L. was required to assist in defendant’s masturbation and drink his semen “[a]lmost every day.” On one occasion, S.L. was required to participate in a ritual in which defendant engaged in sexual intercourse with her mother in front of S.L. and one of Harrod’s sons, J.H. After defendant ejaculated, S.L. was forced to “lick the excess [semen] off of [her mother’s vagina] and then had to kiss [J.H.]” to transfer the seed.
J.H. was sent to live with defendant’s family because he had a learning disability and Harrod wanted him to be homeschooled with defendant’s children. J.H. was often handcuffed while at defendant’s home, sometimes for a week at a time, and was routinely beaten for transgressions as minor as being unable to complete a math problem.
When S.L. had her first menstrual period, she was required to atone for the “lost egg” by having anal sex with defendant and was required to “com[e] up with a name for the lost egg” and write down the name on a piece of paper. This first menstrual period also marked the beginning of her time for “presentation” to Harrod. In order to prepare S.L. for the sexual acts she would be required to perform on Harrod, defendant’s sexual abuse became more frequent. Specifically, defendant forced her to orally copulate him more often, explaining that Harrod enjoyed oral sex and that she should “be better at it” and “more creative.”
S.L. was 14 years old when defendant placed her on a plane headed for Sacramento and told her that he was “counting on [her] not to fail.” Because S.L. had waited until the end of the year following her first period, she had only one month to successfully perform these sexual acts on Harrod. Harrod fondled S.L.’s breasts and vagina while she was in Sacramento, but she managed to avoid performing any of the required acts by spending her time playing with Harrod’s children. Harrod gave S.L. a one-year extension to complete her presentation and sent her back to defendant in Texas.
When S.L. returned to Texas, defendant was angry that she had failed him. The sexual “training” became more frequent and aggressive. For almost a year, defendant forced S.L. to gratify him sexually “every day, sometimes twice.” By the time that she returned to Sacramento to attempt the presentation the second time, S.L. was both afraid of giving her virginity to Harrod and relieved she would no longer be abused by her father. During this second visit to Sacramento, S.L. successfully completed her presentation. First, she orally copulated Harrod until he ejaculated. She then engaged in vaginal intercourse with Harrod until he ejaculated. And finally, she engaged in anal intercourse with Harrod until he ejaculated. Each time Harrod ejaculated, S.L. was required to taste the semen to demonstrate the “intent of not spilling the seed.”
Counts 9 through 14 involved S.L.’s presentation. Counts 9 and 10 involved the vaginal intercourse portion of the presentation. Count 9 charged defendant with forcible rape as Harrod’s accomplice and co-conspirator (Pen. Code, § 261, subd. (a)(2) [further section references are to the Penal Code unless otherwise specified]); and count 10 charged defendant with a lewd and lascivious act on a child of 14 or 15 years as Harrod’s accomplice and co-conspirator. (§ 288, subd. (c)(1).) Counts 11 and 12 involved the oral copulation part of the presentation. Count 11 charged forcible oral copulation as Harrod’s accomplice and co-conspirator (§ 288a, subd. (c)(2)); and count 12 charged defendant with a lewd and lascivious act on a child of 14 or 15 years as Harrod’s accomplice and co-conspirator. (§ 288, subd. (c)(1).) Counts 13 and 14 were the anal intercourse part of the presentation. Count 13 charged defendant with forcible sodomy as Harrod’s accomplice and co-conspirator (§ 286, subd. (c)(2)); and count 14 charged defendant with a lewd and lascivious act on a child of 14 or 15 years as Harrod’s accomplice and co-conspirator. (§ 288, subd. (c)(1).) Defendant was convicted of each of these crimes.
K.L.
K.L. is roughly a year younger than S.L. When K.L. was seven years old, defendant taught her to “receive his seed.” He brought both S.L. and K.L. into a bedroom, where he masturbated and forced them to drink his semen. When K.L. objected, defendant said that she would “learn to appreciate it” and that it was a “blessing to receive the seed of a patriarch.” Following this initiation, K.L. was required to periodically stroke defendant’s penis during masturbation, to allow him to touch her vagina, and to drink the resulting ejaculate. When K.L. was 12 years old, defendant forced S.L. to show her how to masturbate while defendant watched.
When she was 15 years old, K.L. went to Sacramento to complete her presentation. Upon K.L.’s arrival, Harrod explained that her first test would be vaginal intercourse, the second test would be oral copulation, and the third would be anal intercourse. To prepare K.L. for the first portion of her presentation, Harrod instructed her older sister, T.L., to “break [her] virginity” with a dildo while he watched; he then engaged in sexual intercourse with T.L. while K.L. watched.
K.L. had vaginal intercourse with Harrod approximately 20 times before he was able to ejaculate. She then had to drink Harrod’s semen from the condom as a “blessing.” K.L. later orally copulated Harrod twice, but he was unable to ejaculate. Harrod was arrested before K.L. was forced to engage in anal intercourse with him.
Counts 5 through 8 involved K.L.’s presentation. Counts 5 and 6 involved the vaginal intercourse portion of the presentation. Count 5 charged defendant with forcible rape as Harrod’s accomplice and co-conspirator (§ 261, subd. (a)(2)); and count 6 charged him with a lewd and lascivious act on a child of 14 or 15 years as Harrod’s accomplice and co-conspirator. (§ 288, subd. (c)(1).) Counts 7 and 8 were the oral copulation part of the presentation. Count 7 charged defendant with forcible oral copulation as Harrod’s accomplice and co-conspirator (§ 288a, subd. (c)(2)); and count 8 charged defendant with a lewd and lascivious act on a child of 14 or 15 years as Harrod’s accomplice and co-conspirator. (§ 288, subd. (c)(1).) Defendant was convicted of each of these crimes.
A.H.
A.H. is Harrod’s daughter. Harrod taught A.H., who is about the same age as K.L., that Harrod was a direct descendent of God, and that defendant was immediately below Harrod in the hierarchy of the religion. Harrod also taught A.H. that disobeying him was a “major sin, ” which had to be repented through the performance of sexual favors. A.H. was first forced to orally copulate Harrod when she was five years old. Her mother brought her to Harrod and announced, “It’s time, ” demonstrated the sexual act for her daughter, and forced A.H. to emulate what she had done. Thereafter, A.H. was then required to orally copulate Harrod “[t]oo many [times] to count.” She was also required to practice oral copulation on a dildo that her mother provided for her. If A.H. did not please her father, Harrod would beat her mother for “not training [her] properly.” A.H. was also required to drink her father’s semen. A.H. completed her presentation with Harrod when she was 12 years old.
Defendant visited the Harrod home when A.H. was nine years old. While defendant was there, A.H. was forced to orally copulate him on two separate occasions. The first time, A.H. was outside playing with her brothers when her mother called her inside the house and pointed to her mouth, which meant that she would be required to engage in oral copulation. Usually, this hand gesture meant that she would be required to orally copulate her father; this time, A.H.’s mother clarified that she would have to orally copulate defendant. When A.H. asked why she had to do this, her mother told her that she was a higher rank in the religion, that A.H. had a duty to obey, and it would be best “just to get it over with.” A.H. complied. Just as she had done “[h]undreds” of times for her father, she undressed, entered defendant’s room, found him to be masturbating in anticipation of her arrival, knelt down between his legs, orally copulated him until he ejaculated, and then drank the semen.
Two days later, A.H. was watching television when her mother again called her, pointed to her mouth, and said she would have to orally copulate defendant again before he returned to Texas. A.H. again complied. As A.H. explained, she complied because she was afraid of being hurt by her father, and did not complain because “[t]here would be no point.”
Counts 1 through 4 involved these two acts of oral copulation. Counts 1 and 3 charged defendant with a lewd and lascivious act on a minor under the age of 14 years (§ 288, subd. (b)(1)); and counts 2 and 4 charged defendant with aggravated sexual assault of a child by means of forcible oral copulation. (§ 269, subd. (a)(4).) Defendant was convicted of each of these crimes.
DISCUSSION
Defendant contends his convictions must be reversed because he was previously punished for those offenses in federal court. We address the issue even though, in the trial court, he did not plead the defense of former jeopardy. We do so because, if such a plea “had merit and trial counsel’s failure to raise the plea resulted in the withdrawal of a crucial defense, then defendant would have been denied the effective assistance of counsel to which he was entitled.” (People v. Marshall (1996) 13 Cal.4th 799, 824, fn. 1.)
As we will explain, defendant’s claim of former jeopardy is devoid of merit.
“The double jeopardy clause of the Fifth Amendment to the United States Constitution does not preclude multiple convictions in different sovereign jurisdictions for the same criminal act.” (People v. Bellacosa (2007) 147 Cal.App.4th 868, 873, citing Heath v. Alabama (1985) 474 U.S. 82, 93 [88 L.Ed.2d 387, 397].) However, by statute, California provides greater double jeopardy protection than that available under the federal Constitution.
Section 656 states: “Whenever on the trial of an accused person it appears that upon a criminal prosecution under the laws of the United States, or of another state or territory of the United States based upon the act or omission in respect to which he or she is on trial, he or she has been acquitted or convicted, it is a sufficient defense.”
Section 793 provides: “When an act charged as a public offense is within the jurisdiction of the United States, or of another state or territory of the United States, as well as of this state, a conviction or acquittal thereof in that other jurisdiction is a bar to the prosecution or indictment in this state.”
Section 794 says: “When an offense is within the jurisdiction of two or more courts, a conviction or acquittal thereof in one court is a bar to a prosecution or indictment therefor in another.”
There is no legal significance in the different wording of the three statutes. (See People v. Comingore (1977) 20 Cal.3d 142, 148; People v. Bellacosa, supra, 147 Cal.App.4th at p. 874.) The analysis under each is as follows: “If proof of the same physical act or acts is required in each jurisdiction, then the California prosecution is barred. If, however, the offenses require proof of different physical acts, then the California prosecution is not barred even though some of the elements of the offenses may overlap.” (People v. Bellacosa, supra, 147 Cal.App.4th at p. 874; People v. Belcher (1974) 11 Cal.3d 91, 99 [“defendant may not be convicted after a prior acquittal or conviction in another jurisdiction if all the acts constituting the offense in this state were necessary to prove the offense in the prior prosecution, ” but “a conviction in this state is not barred where the offense committed is not the same act but involves an element not present in the prior prosecution”].)
For example, “a defendant convicted of robbery in federal court cannot be later convicted of the identical robbery in state court, ” but “can later be convicted of burglary in state court, because ‘[t]he burglary act... that is, the entering of the building with the intent to commit a theft, is not the same act complained of in the federal court, namely, that he pointed a gun at the teller and by force and fear compelled her to deliver over to him certain monies.’ [Citations.]” (People v. Brown (1988) 204 Cal.App.3d 1444, 1448.)
Another example is in People v. Friedman (2003) 111 Cal.App.4th 824. The defendants there were involved in a multi-state narcotics operation involving shipment of large quantities of marijuana from California to Florida for sale in Florida and New York. As part of this criminal enterprise, two victims were kidnapped in California and murdered. (Id. at pp. 826-829.) The defendants were charged in federal court with a number of crimes, including violation of the “Travel Act, ” which prohibits travel in interstate or foreign commerce or the use of the mails or the facilities of interstate or foreign commerce with the intent to commit a crime of violence to further an unlawful activity if the defendant thereafter performs or attempts to perform such an act. (18 U.S.C. § 1952.) Convicted of the federal Travel Act violation, defendants were later charged in California with kidnapping for ransom and murder. (Id. at p. 830.) The federal convictions did not bar the California kidnapping and murder charges. (Id. at p. 837.) “The ‘acts’ spoken of in the state statutes for kidnapping and murder are not ‘the same acts’ complained of in the federal court. The acts in the federal case required proof that defendants traveled in interstate commerce to commit a crime of violence. The federal prosecution did not require proof defendants committed kidnapping or murder.” (Ibid.) Similarly, “[t]he murder and kidnapping for purposes of ransom charges in the present case do not require interstate travel.” (Ibid.) Thus, “the charges should not be[] dismissed pursuant to sections 656 and 793.” (Ibid.)
Here, defendant was convicted in federal court of six counts of violating 18 U.S.C. § 2423(a), the “Mann Act, ” by transporting his minor daughters in interstate commerce from Texas to California with the intent that the children engage in criminal sexual activity with Harrod. Thereafter, defendant was convicted in state court of ten sex crimes perpetrated against his children in California as Harrod’s accomplice and co-conspirator, as well as four sex crimes he personally perpetrated on Harrod’s daughter while defendant visited the Harrod home. While the elements of the various sex crimes differ, there can be no doubt that it was the act of engaging in sexual activity with children that led to defendant’s state court convictions. In contrast, the Mann Act does not require illegal sexual activity with children at all; it requires only the crossing of state lines with the requisite intent that the child engage in unlawful sexual activity.
Simply put, the defense of former jeopardy does not apply because the acts covered by the state statutes criminalizing the sexual conduct charged against defendant (forcible rape, forcible oral copulation, forcible sodomy, aggravated sexual assault of a child, lewd and lascivious acts on a child under the age of 14 years, and lewd and lascivious acts on a child of 14 or 15 years) are not the same acts complained of in the federal court case. Defendant’s federal convictions did not require sexual conduct with minors, and his state convictions did not require travel in interstate commerce.
Defendant concedes “the offenses for which [he] was prosecuted in federal court do not require... actual sexual conduct with a minor”; nevertheless, he argues that the defense of former jeopardy should apply because his punishment in federal court was increased under the discretionary sentencing guidelines because of the sexual offenses defendant committed.
The contention fails for two reasons.
First, its premise is wrong. As the United States Supreme Court reiterated in United States v. Watts (1997) 519 U.S. 148 [136 L.Ed.2d 554], “sentencing enhancements do not punish a defendant for crimes of which he was not convicted, but rather increase his sentence because of the manner in which he committed the crime of conviction.” (Id. at p. 154 [136 L.Ed.2d at p. 563], citing Witte v. United States (1995) 515 U.S. 389, 402-403 [132 L.Ed.2d 351, 365-366].) Thus, even if, in applying federal sentencing guidelines, the federal court used defendant’s sex crimes to increase the term imposed for transportation of his children in interstate commerce for purposes of unlawful sexual conduct, defendant was not punished for the sex crimes. Rather, his punishment for violation of the Mann Act was increased because of the manner in which he committed that crime.
In any event, the question under California’s former jeopardy statutes is not whether defendant’s federal prison sentence was increased because of crimes he committed in California, but whether “the offense charged in [federal court] requires proof of physical acts different from the physical acts that constitute the offense charged in California.” (People v. Bellacosa, supra, 147 Cal.App.4th at p. 877.) As we have explained, violation of the Mann Act requires proof of physical acts that are different from the physical acts required for conviction of the sex crimes charged against defendant in a California court.
Accordingly, even had defendant pled former jeopardy in the trial court, the charges against him could not have been dismissed pursuant to sections 656, 793 or 794.
In sum, the fact that defendant’s trial attorney did not raise an unmeritorious defense was not ineffective assistance of counsel. (People v. Constancio (1974) 42 Cal.App.3d 533, 546 [“It is not incumbent upon trial counsel to advance meritless arguments or to undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel”].)
DISPOSITION
The judgment is affirmed.
We concur: SIMS, J., NICHOLSON, J.