Opinion
F085895
05-02-2024
The PEOPLE, Plaintiff and Respondent, v. Herman PATTON, Defendant and Appellant.
Benjamin Adam Owens, El Cerrito, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Joseph Penney, Deputy Attorneys General, for Plaintiff and Respondent.
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M. Skiles, Judge. (Super. Ct. No. F17904528)
Benjamin Adam Owens, El Cerrito, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Joseph Penney, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SNAUFFER, J.
A jury found defendant Herman Patton guilty of one count of a lewd act upon a child, three counts of aggravated sexual assault upon a child, four counts of forcible oral copulation, one count of sexual penetration by force, four counts of forcible rape, and one count of continuous sexual abuse. The court sentenced Patton to an aggregate determinate term of 48 years, plus an aggregate indeterminate term of 45 years to life.
Patton contends: (1) the trial court erred in instructing the jury with CALCRIM No. 1190 and (2) he could not be dually convicted of both the specific-act sexual offenses and continuous sexual abuse. We conclude that the court properly instructed the jury with CALCRIM No. 1190. However, pursuant to Penal Code section 288.5, subdivision (c), Patton stands improperly convicted of continuous sexual abuse and other, overlapping discrete sexual-act counts. We therefore vacate the conviction for continuous sexual abuse. As modified, we affirm.
All statutory references are to the Penal Code.
PROCEDURAL BACKGROUND
On October 27, 2022, the Fresno County District Attorney’s Office filed an amended information alleging that Patton committed the following crimes: lewd act upon a child (§ 288, subd. (a); count 1); continuous sexual abuse (§ 288.5, subd. (a); count 2); aggravated sexual assault upon a child by oral copulation (§ 269, subd. (a)(4); counts 3–7); forcible oral copulation (§ 287, subd. (c)(2)(C); counts 8, 12-13, 17); sexual penetration by force (§ 289, subd. (a)(1)(C); count 9); and forcible rape (§ 261, subd. (a)(2); counts 10–11, 14–16.)
The jury found Patton guilty of one count of a lewd act upon a child (count 1), one count of continuous sexual abuse (count 2), three counts of aggravated sexual assault upon a child by oral copulation (counts 3–4, 7), four counts of forcible oral copulation (count 8, 12–13, 17), one count of sexual penetration by force (count 9), and four counts of forcible rape (counts 10–11, 15–16). The jury returned no verdict as to counts 5, 6, and 14. The record before us does not show that the jury found true, or Patton stipulated to, any aggravating circumstances alleged in the amended information.
On February 27, 2023, the court sentenced Patton to (1) consecutive determinate six-year terms for counts 1, 9, 10, 11, 15, and 16 and a 12-year term for count 2, totaling 48 years, and (2) consecutive indeterminate 15-year-to-life terms for counts 3, 4, and 7, totaling 45 years to life. The court struck, upon the parties’ stipula- tion, counts 8, 12, 13, and 17 because those charges were not enacted by statute at the time the offenses occurred.
Though the court’s oral pronouncements of judgment upon each count totaled 48 years, the court later misstated the aggregate term as 40 years. We conclude this was computational error. We find no conflict between the court’s oral pronouncement of judgment and the abstract of judgment.
On March 10, 2023, Patton filed a notice of appeal.
FACTUAL BACKGROUND
Patton married T.S.’s mother when T.S. was five or six years old, and Patton had other children with the mother. The family frequently moved. Relevant here, the family lived in Santa Clara (Santa Clara County) between March 4, 2003, and August 31, 2004, Fresno (Fresno County) between August 1, 2005, and August 31, 2006, Woodland Hills (Los Angeles County) between January 1, 2006, and August 5, 2007, and Chowchilla (Madera County) between January 1, 2008, and December 31, 2008. During these periods, Patton was a "stay-at-home dad."
Patton sexually abused T.S. during the above-described periods. In Santa Clara, when T.S. was 12 years old, Patton inappropriately touched T.S.’s vagina and forced T.S. to manually masturbate and orally copulate him to the point of ejaculation on multiple occasions. In Fresno, when T.S. was about 14 years old, Patton orally copulated and digitally penetrated T.S. on multiple occasions. In Woodland Hills, when T.S. was 15 years old, Patton forcibly raped and orally copulated T.S. on multiple occasions. In Chowchilla, when T.S. was 16 years old, Patton had sexual intercourse with T.S. "every day" and orally copulated her.
When T.S. was 22, she reported the abuse to her brother, her mother, and the police. T.S. engaged in a pretext call to Patton. During the call, Patton agreed with T.S. that he took her virginity at 15 and showed her pornography when she was 12. When asked if he understood that his conduct was wrong, he replied, "Yes," and explained that he was under the influence of drugs. He reported remembering that he had T.S. take off her underwear when she was 11 and do leg raises. "I admit all of it," he stated, saying that he belonged in jail.
DISCUSSION
See footnote *, ante.
II. Multiple convictions in violation of section 288.5, subdivision (c)
A. Additional Background
The prosecution charged, and the jury convicted, Patton, in relevant part, of one count of continuous sexual abuse (§ 288.5, subd. (a); count 2) and four other counts of distinct acts of sexual abuse (counts 1, 3, 4 and 7) occurring within the same period from March 4, 2003, through August 31, 2004. The court sentenced Patton to 12 years on count 2, a 6-year determinate term on count 1, and three consecutive 15-year-to-life terms on counts 3, 4, and 7.
B. Forfeiture
Patton argues these convictions violate section 288.5, subdivision (c), which prohibits dual convictions for continuous sexual abuse and additional sex offenses involving the same victim during the same period. The People concede the case was prosecuted in violation of section 288.5, subdivision (c), but argue Patton forfeited thii issue because he failed to demur to the charges below. We disagree that Patton forfeited this issue and vacate the conviction on count 2.
Section 288.5, subdivision (c) provides in relevant part that when the defendant is charged with continuous sexual abuse of a child, "[n]o other act of substantial sexual conduct [including sexual intercourse or lewd acts] 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."
[1] The People rely on People v. Goldman, in which the court held a violation of section 288.5, subdivision (c) is a pleading defect that must be challenged by demurrer to preserve the issue for appeal. (People v. Goldman (2014) 225 Cal.App.4th 950, 956–957, 170 Cal.Rptr.3d 700 (Goldman).) We disagree with Goldman that section 288.5, subdivision (c), is merely a "charging prohibition." (Id., at p. 956, 170 Cal. Rptr.3d 700.) The Supreme Court explained in People v. Johnson (2002) 28 Cal.4th 240, 245–248, 121 Cal.Rptr.2d 197, 47 P.3d 1064 (Johnson) that section 288.5, subdivision (c), by prohibiting multiple charges, also prohibits multiple convictions for continuous sexual abuse of a child and for the discrete sexual offenses underlying the continuous sexual abuse conviction. (See also People v. Rojas (2015) 237 Cal.App.4th 1298, 1308–1309, 188 Cal. Rptr.3d 811 (Rojas) [interpreting Johnson to preclude multiple convictions]; People v. Bautista (2005) 129 Cal.App.4th 1431, 1436, 29 Cal.Rptr.3d 272 (Bautista) [same]; People v. Torres (2002) 102 Cal.App.4th 1053, 1055, 126 Cal.Rptr.2d 92 (Torres) [same].)
Our research revealed no case that follows Goldman on this point.
[2] Consequently, any sentence violating section 288.5, subdivision (c)—imposing punishments for a violation of section 288.5 overlapping with discrete sexual offenses— is unlawful. (Johnson, supra, 28 Cal.4th at p. 248, 121 Cal.Rptr.2d 197, 47 P.3d 1064.) "[I]f an accusatory pleading is improper (i.e., a count alleging violation of section 288.5 is joined, and not—as subdivision (c) requires—charged alternatively, with one or more counts alleging specific sexual offenses), then the multiple convictions predicated thereon cannot stand, and either the continuous abuse conviction or the convictions on the specific offenses must be vacated." (Id., at p. 245, 121 Gal.Rptr.2d 197, 47 P.3d 1064.)
We are bound by Johnson's interpretation of section 288.5. (Auto Equity, supra., 57 Cal.2d at p. 455, 20 Cal.Rptr. 321, 369 P.2d 937.) Logically, if section 288.5 prohibits multiple convictions predicated on an operative pleading in violation of section 288.5, subdivision (c), then a defendant cannot forfeit a challenge to those convictions by failing to demur to the underlying pleading. For this reason, Goldman's circumnavigation of Johnson, because it "did not … broach the question of whether a defendant must demur to preserve the issue for appeal" is unpersuasive. (Goldman, supra, 225 Cal.App.4th at p. 956, 170 Cal. Rptr.3d 700.)
[3] Goldman ignores the well-established rule that forfeiture does not apply to a legally erroneous sentence. (§ 1259 [reviewing court "may, without exception having been taken in the trial court, review any question of law involved in any ruling, order, [or] instruction"]; In re Sheena K. (2007) 40 Cal.4th 875, 887, 55 Cal.Rptr.3d 716, 153 P.3d 282 (Sheena K.) [an unautholized sentence that cannot lawfully be imposed may be reviewed " ‘regardless of whether an objection or argument was raised in the trial and/or reviewing court’ "]; People v. Williams (1999) 21 Cal.4th 335, 339–340, 341, 87 Cal.Rptr.2d 412, 981 P.2d 42 (Williams) [defendant can raise bar of statute of limitations at any time even without an objection to the charging document because statute confers a substantive right]; People v. Scott (1994) 9 Cal.4th 331, 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040 [lack of objection in lower court to unauthorized sentence that cannot be imposed under any circumstances does not bar review].) Because Johnson held that a dual conviction in violation of section 288.5, subdivision (c) is legally erroneous, Goldman incorrectly holds that a defendant may forfeit the issue by failing to demur.
In addition, the Goldman court erroneously cited People v. Alvarez (2002) 100 Cal.App.4th 1170, 1176–1177, 122 Cal. Rptr.2d 859 (Alvarez) for the proposition that "[b]ecause [section 288.5 contains] a legal bar to prosecution, a defendant must demur to preserve for appeal an objection to the improper charging." (Goldman, supra, 225 Cal.App.4th at p. 956, 170 Cal. Rptr.3d 700.) But Alvarez did not involve a challenge to the propriety of overlapping convictions for continuous sexual abuse (§ 288.5, subd. (a)) and discrete sexual offenses, in violation of section 288.5, subdivision (c). (Alvarez, supra, at pp. 1174–1177, 122 Cal.Rptr.2d 859.) Rather, the Alvarez court held that the defendant’s failure to demur prohibited the defendant from objecting to the prosecution proceeding to trial on both offenses and later seeking a post-conviction election, rather than electing to proceed on one or the other prior to trial. (Ibid.) Alvarez did not hold, as Goldman does, that a defendant forfeits any challenge to convictions and sentences in violation of section 288.5, subdivision (c), by failing to demur to the accusatory pleading, only that a defendant forfeits review of any charging errors by failing to demur to the accusatory pleading.
Goldman's holding that a defendant forfeits overlapping convictions in violation of section 288.5, subdivision (c), by failing to demur to the accusatory pleading contradicts the substantive, not procedural, right provided by section 288.5, subdivision (c) and explained by our Supreme Court in Johnson: a defendant may not be subject to impermissible multiple convictions in violation of section 288.5, subdivision (c). (Accord, Williams, supra, 21 Cal.4th at pp. 339–340, 87 Cal.Rptr.2d 412, 981 P.2d 42 [defendant can raise bar of statute of limitations at any time even without an objection to the accusatory pleading because statute confers a substantive, not procedural, right]; Sheena K., supra, 40 Cal.4th at pp. 881–882, fns. 2, 3, 55 Cal.Rptr.3d 716, 153 P.3d 282.) We therefore disagree with Goldman and hold that Patton did not forfeit this issue by failing to demur.
Given we find that Patton did not forfeit this issue by failing to demur below, we need not address his alternative argument that his trial counsel was ineffective for failing to demur to the accusatory pleading.
C. Remedy
Patton argues that Johnson requires us to vacate the specific sexual offense counts, not the continuous sexual abuse count. He alternatively argues that section 654, subdivision (a) gives the trial court discretion to decide which punishments to stay where two or more convictions arise from the same conduct. He urges us to remand the case to the trial court to decide whether to strike the count for continuous sexual abuse or the other counts for specific sexual offenses. We disagree.
Section 654, subdivision (a) provides, in relevant part, that "[a]n act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision."
First, the Johnson court did not address which of his multiple convictions should be vacated, either the continuous sexual abuse conviction or the discrete convictions for sexual abuse but did affirm the Court of Appeal’s reversal of the latter convictions because "either the continuous abuse conviction or the convictions on the specific offenses must be vacated." (Johnson, supra, 28 Cal.4th at p. 245, 121 Cal.Rptr.2d 197, 47 P.3d 1064.) Therefore, Johnson does not require us to retain only the continuous sexual abuse conviction.
[4, 5] Second, section 654 is inapplicable. Section 654 protects against multiple punishment, not multiple conviction. (People v. McFarland (1962) 58 Cal.2d 748, 762, 26 Cal.Rptr. 473, 376 P.2d 449.) Section 654’s purpose is to ‘"insure that a defendant’s punishment will be commensurate with his culpability.' " (People v. Latimer (1993) 5 Cal.4th 1203, 1211, 23 Cal. Rptr.2d 144, 858 P.2d 611.) Consistent with this purpose, the Supreme Court held that, in the case of repeated sexual offenses over even a very short amount of time, "it is defendant’s intent to commit a number of separate base criminal acts upon his victim, and not the precise code section under which he is thereafter convicted, which renders section 654 inapplicable." (People v. Harrison (1989) 48 Cal.3d 321, 337–338, 256 Cal.Rptr. 401, 768 P.2d 1078; People v. Perez (1979) 23 Cal.3d 545, 550-553, 153 Cal.Rptr. 40, 591 P.2d 63 [holding § 654 did not preclude punishment for four sex crimes committed during a continuous 45-to-60 minute attack].) We are therefore unpersuaded, and Patton offers no argument, that section 654 governs the conviction for continuous sexual abuse and the convictions for separate sexual offenses, though temporally identical.
[6] We agree with Torres and Alvarez that, based on section 288.5’s purpose, "to conclude that the failure to plead these offenses in the alternative compelled the court to convict only on the section 288.5 offense would be ‘anomalous’ because ‘section 288.5, adopted to prevent child molesters from evading conviction, could be used by those molesters to circumvent … convictions with more severe penalties and prior strike consequences than available … under section 288.5.’ " (Torres, supra, 102 Cal.App.4th at p. 1060, 126 Cal.Rptr.2d 92; Alvarez, supra, 100 Cal.App.4th at p. 1176, 122 Cal.Rptr.2d 859.)
[7] Consequently, courts have held that where a conviction must be vacated for violating section 288.5, subdivision (c), the defendant shall be left "standing convicted of the alternative offenses that are most commensurate with [his] culpability." (Torres, supra, 102 Cal.App.4th at p. 1059, 126 Cal.Rptr.2d 92; Bautista, supra, 129 Cal.App.4th at pp. 1437–1438, 29 Cal. Rptr.3d 272.) Generally, this means "upholding whichever conviction[s] resulted in the greater aggregate penalty and vacating the less serious count[s]." (Rojas, supra, 237 Cal.App.4th at p. 1309, 188 Cal. Rptr.3d 811; Torres, supra, 102 Cal. App.4th at p. 1058, 126 Cal.Rptr.2d 92.)
For count 2, a violation of section 288.5, the court sentenced Patton to 12 years. For counts 1, 3, 4, and 7, the court sentenced Patton to a determinate 6-year middle term and three consecutive indeterminate 15-year-to-life terms, respectively. The latter punishments are "most commensurate with [defendant’s] culpability." (Torres, supra, 102 Cal.App.4th at p. 1059, 126 Cal.Rptr.2d 92.) Thus, we vacate the conviction on count 2.
[8] When a count is vacated, the typical remedy is to remand for resentencing so that the trial court may restructure its sentencing choices to compensate for the lost count. (People v. Francis (2017) 16 Cal.App.5th 876, 887, 224 Cal.Rptr.3d 657.) However, where "the trial court imposed the maximum possible sentence" and "there are no sentencing choices to restructure, it is appropriate for us to modify the sentence on appeal." (Ibid.) [9] Here, the trial court imposed the maximum possible sentence. Counts 3, 4, and 7 permit only one sentence. (§ 269, subds. (a)(4), (b).) We note that the record does not indicate that the jury ever found true, or that Patton stipulated to, the facts underlying any alleged aggravating factors. Given the court already imposed the middle term—the maximum term when no aggravating circumstance is proved—for count 2 and all other counts, the court could not impose a greater sentence. (§ 1170, subd. (b)(2); Advisory Com. Com., Cal. Rules of Court, rule 4.421 ["Courts may not impose a sentence greater than the middle term except when aggravating factors justifying the imposition of the upper term have been stipulated to by the defendant or found true beyond a reasonable doubt at trial by the jury or the judge in a court trial"].) Thus, we vacate the conviction on count 2 only and order the trial court to prepare an amended abstract of judgment.
DISPOSITION
The judgment is modified to vacate Patton’s conviction on count 2. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment striking the sentence for count 2 and to forward a certified copy of the amended abstract of judgment to all relevant authorities.
WE CONCUR:
PEÑA, Acting P. J.
MEEHAN, J.