Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. NA079838, Joan Comparet-Cassani, Judge.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P.J.
Appellant Emmanuel Paul was convicted of 17 counts of sex crimes against a minor child with true findings on firearm allegations for two of the counts. He makes several arguments on appeal. First, he challenges the convictions for three of the six lewd conduct counts, arguing there was insufficient evidence to support them. We agree and reverse. Appellant also argues the court erred in allowing a woman whom he previously had sexually abused to testify as to the effects of the abuse on her life. This argument is forfeited by failure to make a timely and specific objection at trial. Appellant next argues that the sentences for the rape convictions on counts 13 through 16 must be stayed under Penal Code section 654, because they involve the same acts of abuse as in counts 3 through 6 for lewd conduct against a child under the age of 14. We agree in part, and shall direct that the sentences for counts 3 and 4 be stayed while affirming the sentences for counts 13 through 16. Finally, appellant argues the court erred in imposing two sentences for rape with a firearm in count 17, in violation of section 667.61. We find that the court’s minute order and abstract of judgment erroneously reflected two sentences when in fact the court only imposed one. We reverse and remand with instructions to modify the abstract of judgment accordingly.
All statutory references are to the Penal Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL SUMMARY
From 2002 to 2007, appellant allegedly committed over 40 acts of sexual abuse against the minor child. In November 2009, he was charged in an amended information as follows: lewd conduct against a child under the age of 14 (§ 288, subd. (a)) in counts 1 through 6; rape (§ 261, subd. (a)(2)), in counts 7 through 11 and 13 through 17; and assault with a firearm (§ 245, subd. (a)(2)), in count 12. It was further alleged that appellant personally used a handgun when committing counts 12 and 17 (§§ 12022.5, 12022.53, sub. (b)), and that his handgun use on count 17 exposed him to sentencing under section 667.61, subdivision (b).
The child testified at a preliminary hearing and at trial for the prosecution but proved to be a difficult and hostile witness at trial. She testified that in 2002, appellant slipped his hand under her shirt and between her legs while the two were standing in a hall next to a bedroom. When asked how many times appellant touched her in 2002, she responded, “I don’t know.” She further testified that appellant began having sexual intercourse with her in 2003 and did so approximately three times during that year. She then testified that appellant had sexual intercourse with her “probably twice” in 2004, “probably three times” in 2005, around twice in 2006, and three times in 2007. She specifically claimed that in either 2004 or 2005, appellant pointed a gun at her after having sexual intercourse and threatened to kill her if she disclosed the abuse.
The jury found appellant guilty as charged on all 17 counts and returned true findings on the firearm allegations. The trial court sentenced him to an aggregate term of 105 years to life in state prison. The court selected count 1 for the principal term, for which it imposed the upper term of eight years. It then imposed two-year terms for each of counts 2 through 6, under section 1170.1, and eight-year terms for counts 7 through 11 and 13 through 16, pursuant to section 667.6. The court stayed its sentence and enhancement for count 12 under section 654. As to count 17, the court imposed an indeterminate term of 15 years to life under section 667.61, subdivision (b), and stayed the gun enhancement. The court’s minute order and abstract of judgment indicate that in addition to the indeterminate sentence, the court also imposed a six-year determinate sentence for count 17, which was stayed under section 654. The reporter’s transcript of the sentencing hearing does not reflect the determinate sentence for count 17. This timely appeal followed.
DISCUSSION
I
With respect to the convictions for lewd conduct against a child under 14, appellant concedes that the evidence is sufficient to support convictions on counts 1, 3, and 4, but is insufficient to support the convictions for counts 2, 5, and 6.
Appellant was charged in count 1 with lewd conduct “on or between” January 1, 2002 and June 30, 2002, and in count 2 with lewd conduct “on or between” July 1, 2002 and December 31, 2002. At trial, the child testified that in 2002, appellant slipped his hand under her shirt and between her legs while the two were standing in the hall next to a bedroom. Appellant told her that this was their secret and threatened to kill her if she disclosed the abuse. When asked how many more times such touching occurred in 2002, she stated, “I don’t know.” This constituted the evidence for counts 1 and 2.
Appellant was charged with four more counts of lewd acts upon a child under the age of 14. The time frame of counts 3 through 6 is as follows: count 3—January 2003 through June 2003; count 4—July 2003 through December 2003; count 5—January 2004 through June 2004; and count 6—July 2004 through December 2004. At trial, the child testified that appellant had sexual intercourse with her about three times in 2003. She testified it occurred on his boat and she gave graphic details about how appellant performed the acts. The child testified that the sexual intercourse continued into 2004. The prosecutor asked how many times this occurred in 2004, but she refused to answer. The prosecutor then asked whether she testified at the preliminary hearing that appellant had sexual intercourse with her “probably twice” in 2004. She answered: “I don’t know.” The court allowed the prosecutor to read her testimony from the preliminary hearing, which we summarized above.
Due process requires that to support a conviction of a crime every element of the crime be proven beyond a reasonable doubt and by substantial evidence. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319 (superseded on other grounds by 28 U.S.C. §2254, subd. (d)); see also People v. Johnson (1980) 26 Cal.3d 557, 576-577.) In reviewing the sufficiency of evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence, such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Substantial evidence is evidence that is reasonable, credible, and of solid value. (People v. Mendez (2010) 188 Cal.App.4th 47, 56.)
Section 288, subdivision (a) makes it a felony for any person “who willfully and lewdly commits any lewd or lascivious act... upon or with the body... of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desires of that person or the child....” Cases involving a resident child molester, one who either lives with his or her victim or has continuous access to the victim, often involve victims who testify to repeated acts of molestation over an extended period of time but who lack any meaningful point of reference and are unable to furnish many specific details, dates, or distinguishing characteristics as to individual acts of abuse. (See People v. Jones (1990) 51 Cal.3d 294, 299 (Jones).) Jones discussed the “difficult questions regarding the extent to which the defendant’s due process rights are implicated by the inability of his young accuser to give specific details regarding the time, place and circumstances of various alleged assaults.” (Ibid.)
In that case, defendant was charged with 27 violations of section 288 against four children under the age of 14. (Jones, supra, 51 Cal.3d at p. 300.) Two of the victims, Sammy and Bobby, were defendant’s adopted sons. Defendant adopted Sammy and Bobby in 1983 when they were 10 and 7 years old, respectively. (Id. at pp. 301-302.) Sammy, who was 13 years old at the time of trial, testified that defendant began orally copulating him about one month after he began living with defendant. The molestations occurred once or twice a month during the entire period Sammy lived with defendant, which was from August 1983 to June 1985. Sammy testified there may have been periods in which he was not molested for more than a month, and that no acts occurred during March and April 1984. (Id. at p. 302.) The molestations occurred in specific bedrooms of the house, in the shower or bathroom, and on camping trips. He gave specific details as to one incident on a camping trip and stated the molestation happened about four to six times on camping trips, and eight or 10 times in the shower or bathroom. He could not specify the exact dates or further details to identify particular incidents. (Ibid.) The jury found defendant guilty of six counts involving Sammy, each on different two-month periods between September 1983 and June 1985. (Id. at p. 303.) The Court of Appeal affirmed only two of the six counts: count 18 which represented September 1, 1983 to October 31, 1983, and count 28, which represented May 1, 1985 to June 30, 1985. The court found the other four convictions were not supported by sufficient evidence. (Ibid.)
The Supreme Court discussed the case law concerning sufficiency of evidence in child molestation cases that involve allegations of continuous sexual abuse over an extended period of time. Citing People v. Van Hoek (1988) 200 Cal.App.3d 811 (Van Hoek) in particular, the court noted that “[s]ome cases... have held that purely generic testimony outlining repeated and continuous molestations without distinguishing between time, place or circumstance, is insufficient to sustain a conviction, because the prosecutor cannot prove any specific act corresponding to the act alleged in the information, the defendant cannot defend against any such act, and the jury cannot unanimously agree beyond a reasonable doubt that any such act occurred.” (Jones, supra, 51 Cal.3d at p. 308.) The court rejected the Van Hoek line of cases, finding that a victim’s failure to specify the precise date, time, place, or circumstance of the acts does not render generic testimony insufficient, because “the particular details surrounding a child molestation charge are not elements of the offense and are unnecessary to sustain a conviction.” (Jones, at p. 315.)
Instead, the court held that the victim must describe the kind of act or acts committed with sufficient specificity to differentiate between various types of proscribed conduct under section 288. (Jones, supra, 51 Cal.3d at p. 316.) The victim also must testify to the number of acts committed with sufficient certainty to support each of the counts alleged in the information, and the general time period in which they occurred. (Ibid.) “Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim’s testimony, but are not essential to sustain a conviction.” (Ibid.) Applying this standard, the court held the appellate court had improperly reversed defendant’s conviction on four of the six counts pertaining to Sammy. It held: “Sammy’s testimony was substantial evidence of frequent (once or twice each month) molestations by defendant, at five separate locations, consisting exclusively of oral copulation. Moreover, Sammy’s testimony supported the finding that these molestations occurred during the periods specified in these four counts of the information, and well within the limitation period. Sammy’s inability to specify the exact time, place or circumstance of these assaults neither denied defendant due process nor rendered his testimony too insubstantial to support a conviction.” (Id. at p. 322.)
Here, respondent contends that there were over 40 alleged incidents of sexual abuse and, therefore, enough incidents to slot into each time period represented by each of the counts. Following Jones, we do not require the child to provide specific dates of the incidents. But the standard of that case stillrequires that the victim “describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information.” (Jones, supra, 51 Cal.3d at p. 316, italics omitted.) Here, she gave specific testimony concerning an incident of touching in 2002, which both parties on appeal treat as count 1. When asked how many more times such touching occurred in 2002, she stated, “I don’t know.” Thus, she did not testify as to whether a second act of touching occurred at any point in the year 2002, let alone testify with sufficient specificity that the act occurred within the July 2002 and December 2002 time frame represented by count 2. Respondent argues that in light of the minor’s evasive conduct on the stand, the jury could have reasonably inferred from her response that another incident of touching did occur in 2002, since she did not explicitly answer in the negative. If that inference is permissible, there still was no indication whatsoever that an incident of touching occurred “on or between” July 2002 through December 2002, and speculating as to when it may have occurred in 2002 does not constitute sufficient evidence to sustain a conviction.
Similarly, we find the convictions on counts 5 and 6 are not supported by substantial evidence. Under Jones, the minor’s testimony that sexual intercourse occurred “probably twice” in 2004 would be enough to sustain a conviction for two counts of lewd acts upon a child during that year. However, counts 5 and 6 represent two distinct six-month intervals within 2004; “on or between” January 2004 and June 2004 for count 5 and “on or between” July 2004 and December 2004 for count 6. The facts here are distinct from those in Jones where the victim testified that the abuse occurred once or twice a month for the entire two-year period he lived with defendant, except April and March of 1984, and each of the six counts at issue alleged abuse within a distinct two-month interval. Here, the minor gave no further testimony concerning the alleged abuse in 2004 and did not differentiate the two incidents in any fashion. With nothing more, determining that one of the incidents occurred in the first half of 2004 and the second incident occurred in the latter half is purely speculative. The prosecution could have opted to amend its information to the proof, but it did not do so with respect to counts 5 and 6.
The prosecution amended its information to conform to proof by adding count 17 for rape with the firearm enhancement. The original information attached firearm allegations as to counts 7, 8, 15, and 16 for rape. At trial, the minor testified that appellant pointed a gun at her sometime in 2004 or 2005. During a court proceeding outside the presence of the jury, the prosecutor stated that because the minor would not narrow down the gun incident to a specific time frame between 2004 or 2005 she wished to amend the information by striking the gun enhancement for counts 7, 8, 15, and 16 and adding count 17 of rape on or between January 2004 and December 2005. This was out of a concern that “a reviewing court would say [the jurors] really don’t have a basis [to find the fire arm allegation true as to counts 7, 8, 15, and 16] because we... have no evidence that narrows it down beyond that two-year period, 2004... through 2005.” The prosecution did not do the same for counts 5 and 6.
Thus, the minor did not describe with sufficient certainty the number of acts committed in the time frames represented by counts 2, 5, or 6. Two other prosecution witnesses testified to witnessing potential incidents of abuse, but gave no details as to the nature of the incident or whether they occurred in 2002 or 2004, let alone when during those years. We conclude the evidence was insufficient to support guilty findings for counts 2, 5, and 6, and reverse the convictions.
The child’s mother testified to a suspicious incident. She returned home one day and found the child standing against the wall and heard appellant adjusting his belt in the background. Appellant said he caught the minor stealing money from his wallet so he punished her, and mother believed him. She did not say when this happened. The minor’s younger sister testified that in approximately 2007, she told her teacher about her sister being abused. She further stated that around the same time she found a letter written by the victim to mother. Finally, she testified that appellant used to come into their bedroom at night and take her sister out of the room. She stated that it happened about four times, once before she found the letter and three times afterwards. She gave no other indication as to when the incidents occurred.
II
Appellant claims the court abused its discretion under Evidence Code section 352 by allowing a woman who was previously raped by appellant to testify as to the impact of that crime on her life. Respondent contends that appellant forfeited the argument by not making a timely objection at trial. We agree with respondent.
In general, questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be argued on appeal. (People v. Alvarez (1996) 14 Cal.4th 155, 186; see also Evid. Code, § 353.) Here, at the start of trial, the prosecutor proposed to introduce the testimony of three of appellant’s stepdaughters, who would testify that appellant had sexually abused them in the past. Defense counsel objected that such evidence would be highly prejudicial and should be excluded under Evidence Code section 352. The trial court overruled the objection, finding the evidence of past sexual misconduct was highly probative of appellant’s propensity to act, and characterizing the evidence as “incriminat[ing]” but not “prejudicial.” Under this ruling, the prosecutor called appellant’s stepdaughter from a previous marriage, Vivian I., to testify that she was raped by appellant three times when she was eight years old. She then testified that as a result she was placed in foster care, was teased at school, underwent psychiatric therapy, began drinking at the age of 12, became an alcoholic, and suffered vaginal infections that caused kidney failure which required dialysis. Defense counsel did not object. The prosecutor then asked Vivian I. how long she traveled to testify, to which she responded: “Thousands of miles. Hours.” Defense counsel did not object. The prosecutor then asked what Vivian I. did with her children so that she could come testify. Defense counsel objected on relevancy grounds, but the court overruled the objection holding that the difficulty Vivian I. endured to testify went to her credibility. Vivian I. answered that she brought her children with her so they would not be afraid to speak to someone if they are ever sexually abused.
Appellant argues that defense counsel’s Evidence Code section 352 objection at the start of trial preserved the argument on appeal. However, defense counsel objected to allowing three witnesses to testify that appellant sexually abused them. Counsel did not further object, and an objection probably would have been futile in light of the court’s earlier ruling. But appellant argues the court abused its discretion under Evidence Code section 352 by allowing Vivian I. to testify at length as to the consequences those incidents had on her life. This portion of Vivian I.’s testimony is distinct from her testimony that the rapes occurred, and therefore, required an objection. Defense counsel made no such objection and the argument is forfeited on appeal. (Evid. Code, § 353; see also People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1434 [“‘[T]he rule is that a defendant may not complain on appeal that evidence was inadmissible on a certain ground if he did not make a timely and specific objection on that ground in the trial court.”’].)
III
Appellant next argues that the rape convictions on counts 13 through 16 must be stayed under section 654, because they involve the same acts of abuse as in counts 3 through 6. We agree in part, and shall order that the sentences for counts 3 and 4 be stayed while the sentences for counts 13 through 16 remain.
Section 654, subdivision (a) states, in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Section 654 applies to a single act or indivisible transaction. (People v. Wynn (2010) 184 Cal.App.4th 1210, 1214-1215.) Whether a transaction is indivisible depends on the defendant’s intent and objective. (Ibid.) If the multiple offenses were merely incidental to, or were the means of accomplishing, a single objective, the defendant may be found to have harbored a single intent and may only be punished once. (People v. Harrison (1989) 48 Cal.3d 321, 335; see also People v. Boyd (1990) 222 Cal.App.3d 541, 575-576 [robbery sentence stayed under section 654 where robbery was the underlying offense for first degree felony murder conviction].)
However, if it is shown that the defendant harbored multiple criminal objectives that were independent of each other, he or she may be punished for each statutory violation “‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’” (People v. Harrison, supra, 48 Cal.3d at p. 335.) The multiple objectives may be formed simultaneously or consecutively. (People v. Nichols (1994) 29 Cal.App.4th 1651, 1656-1657.) Accordingly, the fact that one crime is completed before the other is commenced does not itself make the criminal acts divisible. (People v. Ratcliffe (1981) 124 Cal.App.3d 808, 817.) The defendant’s intent is a factual question determined by the trial court. (People v. Coleman (1989) 48 Cal.3d 112, 162.) Thus, multiple punishments are permitted if there is substantial evidence to support a finding that the defendant formed separate intents or objectives for each offense. (Ibid.)
Here, the time period for the lewd conduct in counts 3, 4, 5, and 6 is identical to the period for the rapes in counts 13, 14, 15, and 16. The prosecutor presented no evidence of separate crimes of lewd conduct and rape. Nor did the prosecutor present evidence that the appellant harbored two distinct criminal intents, one to lewdly touch a child and one to rape, while committing those acts. Respondent again argues that the minor child alleged over 40 incidents of sexual abuse, and therefore, there must have been separate acts of lewd conduct and rape within the same time period. But unless it was proven that an act of lewd conduct and a separate act of rape occurred within each of the four six-month periods alleged, punishment for both acts cannot stand under section 654. Respondent has not cited to such proof, and we find none. Section 654 states that the defendant “shall be punished under the provision that provides for the longest potential term of imprisonment....” Because we overturned the convictions for counts 5 and 6, as stated above, we reverse and remand with instructions to stay the sentences for counts 3 and 4.
IV
Finally, appellant argues the court erred in imposing one punishment for count 17 for rape, and another for violating the “One Strike” law, section 667.61, subdivision (f).
Section 667.61, subdivision (f) provides: “If only the minimum number of circumstances specified in subdivision (d) or (e) that are required for the punishment provided in subdivision (a), (b)... to apply have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision (a), (b)... whichever is greater, rather than being used to impose the punishment authorized under any other provision of law, unless another provision of law provides for a greater penalty or the punishment under another provision of law can be imposed in addition to the punishment provided by this section. However, if any additional circumstance or circumstances specified in subdivision (d) or (e) have been pled and proved, the minimum number of circumstances shall be used as the basis for imposing the term provided in subdivision (a)... and any other additional circumstance or circumstances shall be used to impose any punishment or enhancement authorized under any other provision of law.”
Count 17 alleged that appellant forcibly raped the minor child, in violation of section 261, subdivision (a)(2), on or between January 1, 2004 and December 31, 2005. The information sought sentencing under section 667.61, based on appellant’s use of a firearm in committing the offense. The trial court’s minute order and abstract of judgment state that the court imposed two sentences for count 17. The documents suggest that the court sentenced appellant to six years plus a 10-year gun enhancement, both stayed under section 654, and also sentenced him to an indeterminate term of 15 years to life under section 667.61, subdivision (b).
Respondent concedes that multiple sentences are improper under section 667.61 and argues that the abstract of judgment and minute order are simply incorrect and do not accurately reflect the trial court’s decision. Nothing in the reporter’s transcript indicates the court imposed a 16-year determinate sentence for count 17. The court, after specifically prescribing determinate sentences for counts 1 through 16, excluding count 12, stated: “The term on 17 is stayed pursuant to [section] 654 because it reflects the same because... that occurred during the commission of the crime in count 12....” Respondent contends the trial court simply misspoke as it never explicitly imposed a determinate sentence for count 17. Respondent also concedes that the abstract of judgment incorrectly prescribes the imposition of a total of 14 years for the weapon enhancements attached to counts 12 and 17, when the court in fact stayed those terms according to both the reporter’s transcript and the minute order. We agree and order the abstract of judgment be modified to impose a single 15 years to life sentence for count 17 under section 667.61 and to stay the firearm enhancements for counts 12 and 17. (See People v. Zackery (2007) 147 Cal.App.4th 380, 385 [“Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of the judgment, the oral pronouncement controls.”].)
DISPOSITION
The convictions on counts 2, 5, and 6 are reversed; the convictions as to all other counts are affirmed. The case is remanded with instructions to stay the sentences on counts 3 and 4, to modify the abstract of judgment to reflect a single 15 years to life sentence for count 17, and to stay the firearm enhancements for counts 12 and 17. The clerk of the superior court is directed to send a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: MANELLA, J., SUZUKAWA, J.