Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 62075345
HULL , J.Defendant Gabriel Wayne Price was convicted after a jury trial of 16 offenses he committed in connection with his sexual activities with S.H. Sentenced to 32 years in state prison, defendant appeals. Defendant contends the trial court erred in denying his motion to suppress photographic images retrieved from his cell phone. (Pen. Code, § 1538.5; undesignated statutory references that follow are to the Penal Code.) He also contends his sentence on one of the counts should have been stayed pursuant to section 654. Finally, he contends, and the People concede, that the abstract of judgment contains an error. We order the abstract corrected and affirm the judgment.
Facts and Proceedings
Defendant was charged with 15 sex offenses arising from his sexual liaison with S.H. His primary defense was mistake of age.
On November 20, 2007, 14-year-old S.H. met with some friends to “hang out” in Lincoln. Defendant, whom S.H. had met once before, was there. While they were hanging out, S.H. and one of the other females, Roseanne B., had a discussion about S.H.’s age because S.H. had asked Roseanne for a cigarette. Roseanne had refused because S.H. was under age. Defendant was sitting across from Roseanne and S.H. during the discussion and appeared able to hear the exchange. At one point, defendant asked S.H. her age and she told him she was 14 years old. S.H. asked defendant’s age and either Roseanne or defendant told her he was 21. Defendant was actually 34 years old. Thereafter, Roseanne saw S.H. and defendant kissing. As Roseanne was leaving, she told defendant, “Dude, she’s only 14. Don’t do it because you could get in trouble.” After Roseanne left, several other people saw defendant and S.H. kissing.
Later that evening, S.H., defendant, and one of the friends took a bus back to Rocklin. The friend got off the bus and defendant and S.H. continued on to an apartment complex where defendant’s brother and another friend both lived. Defendant told S.H. to tell everyone they met she was 18 years old because if they knew she was under 18, he would get into a lot of trouble.
When they arrived at the apartment complex, they sat in a car in the parking lot. While they were talking, defendant started blowing in S.H.’s ear. She told him something to the effect of “that turns me on.” They began to kiss, then took their clothes off and had sexual intercourse. They put their clothes back on and stayed in the car. After awhile they again had sexual intercourse.
Defendant’s brother came outside and told them they could come inside the apartment. Defendant and S.H. went inside and watched a movie. While inside the apartment, S.H. also allowed defendant to take pictures of her exposed breasts with his cell phone. After a couple of hours, everyone went to bed, and S.H. and defendant folded out the couch to go to sleep. S.H. had told the individuals in the apartment that she was 18 years old. Before going to sleep, defendant and S.H. had sexual intercourse a third time.
The next morning, defendant and S.H. showered, defendant ate breakfast, and they then took a bus to Auburn so defendant could check in with his parole officer. S.H. waited for defendant at a nearby Taco Bell while defendant went in the parole officer’s office. Defendant and S.H. then took the bus back to Rocklin. Later that day, S.H. received a call on her cell phone from her mother, who said she needed to come home. S.H.’s cell phone battery died so she used defendant’s cell phone to call her mother back. Defendant then received a threatening call from S.H.’s mother’s friend. At this point, defendant and his brother agreed S.H. needed to go home, so defendant’s brother drove her home.
When S.H. was subsequently interviewed by police, she did not tell them about the photographs defendant took of her breasts. In fact, she did not want to tell the police anything because defendant had not forced her to have sex. Police took possession of S.H.’s underwear for DNA testing and had defendant’s brother make a pretext call to defendant.
Defendant was on active parole through Global Positioning System (GPS) ankle monitoring at the time police tried to arrest him. As the officers attempted to arrest defendant, he ran away, evaded the police and then took off the ankle monitor. He was arrested the next day after again attempting to escape. After his arrest, law enforcement officers requested and obtained two search warrants to search his cell phone.
Discussion
I
Motion to Suppress
Defendant contends the trial court erroneously denied his motion to suppress pictures of S.H. exposing her breasts that law enforcement officers found on his cell phone. We disagree.
On February 15, 2008, Detective Alford requested and obtained a search warrant (warrant No. 1) to search defendant’s cell phone. The warrant described the property to be searched as “One cellular telephone listed as item #15 on the Placer County property list for [defendant].” The warrant was issued upon Alford’s affidavit that, based on his investigation, he believed defendant’s cell phone had been used by defendant to call S.H.’s “grandmother and/or other individuals” before he was arrested, that cell phones store information “which would include” the telephone numbers of recently made and received calls, and that he “believe[d] there [was] probable cause to believe that information electronically stored in [defendant’s cell phone] would be relevant to this investigation.” Accordingly, he requested that “access to the cellular phone and the information electronically stored within the cell phone be granted, via the search warrant process, so that it may be evaluated.”
Alford had to charge the battery before he could execute the search warrant. When he began the search of the phone, he immediately noticed that the phone had a camera and, therefore, Alford believed the phone was capable of taking and storing pictures. Based on the investigation and his training, Alford believed the phone likely contained images of S.H. and defendant, or other images of child pornography, that would be relevant to the case.
When Alford turned the phone on, he saw that the “wallpaper” was a picture of defendant. This affirmed his belief that defendant used the phone to take and store pictures. Alford processed the phone to examine it for outgoing and incoming calls, and then accessed the “media gallery.” He believed the search warrant authorized him to search for all electronic data, including the photographic images contained therein. As soon as Alford opened the media gallery, he saw several images of S.H. with her breasts exposed.
After seeing the images on defendant’s phone, Alford talked to S.H. about the photos. She admitted that she had posed for the pictures and that defendant had taken them. Based on the new information, the district attorney filed an additional charge (count 14) against defendant for child molestation. (§ 647.6.) Defendant then filed a motion to suppress the evidence of the images obtained from the cell phone, arguing they were the fruit of an illegal search.
On April 30, 2008, after defendant filed his motion to suppress evidence, Alford sought and obtained a second search warrant (warrant No. 2) to search defendant’s cell phone. The statement of probable cause specifically omitted any reference to Alford’s observation of the images he saw on defendant’s cell phone, and omitted any reference to his subsequent conversation with S.H. about the images. It was based solely on facts that were known to Alford prior to his access of the “media gallery” on defendant’s phone during the previous search. His affidavit stated he believed defendant was likely to possess sexual images on his cell phone and that there was probable cause to search the phone for images of minors engaged in sexually explicit conduct.
The court issued warrant No. 2. It described the property to be searched as “One gray Kyocera cellular telephone listed in Rocklin Police report 07-326-4 as item #26 [¶] For the following, to wit: 1. Any images, which depict a minor posed or candid with or without clothes which depicts the minor in a sexually provocative manner designed to sexually stimulate the viewer, including visual media that depict a person under the age of 18 years of age, personally engaging in or simulating sexual conduct, as defined in subdivision (d) of section 311.4 of the California Penal Code. [¶] 2. Electronic data tending to establish the identity of person/persons in control of the phone.” Pursuant to warrant No. 2, Alford searched defendant’s cell phone for photos and again saw the images of S.H. with her breasts exposed.
The trial court concluded that, although Alford believed warrant No. 1 authorized him to search the “media gallery” on the phone, warrant No. 1 did not encompass a search for photographs on the phone. The trial court stated that warrant No. 1 “permitted him to search for things dealing with the telephone’s ability to communicate with other people the traditional telephonic things, but not anything beyond that.” The trial court concluded, however, that warrant No. 2 was issued based on a statement of probable cause that “only mentioned things that the officer knew prior to his discovery of the photographs on the cell phone,” and that there was probable cause to issue warrant No. 2. Accordingly, the trial court denied defendant’s motion to suppress.
Defendant contends the scope of the initial search warrant for his cell phone did not cover retrieval of the photographic images of S.H. exposing her breasts that law enforcement found on the phone. Thus, he argues, his motion to suppress should have been granted.
In reviewing a trial court’s ruling on a motion to suppress, we defer to the trial court’s findings of fact, both express and implied, if supported by substantial evidence. We then independently apply the pertinent legal principles to those facts to determine, as a matter of law, whether there has been an unreasonable search or seizure. (People v. Miranda (1993) 17 Cal.App.4th 917, 922.)
The federal and state Constitutions require that a search warrant “particularly” describe the place to be searched. (U.S. Const., 4th Amend.; Cal. Const., art. I, § 13; cf. Pen. Code, §§ 1525, 1529.) “‘The description in a search warrant must be sufficiently definite that the officer conducting the search “can with reasonable effort ascertain and identify the place intended.” [Citation.] Nothing should be left to the discretion of the officer. [Citation.]’ [Citation.] Officers are not entitled to search beyond the place described in the warrant. [Citation.]” (People v. Minder (1996) 46 Cal.App.4th 1784, 1788.) However, this requirement “‘must be tested and interpreted by magistrates and courts in a common-sense and realistic fashion.... Technical requirements of elaborate specificity... have no proper place in this area.’” (People v. Smith (1994) 21 Cal.App.4th 942, 948-949.) “‘Whether the description in the warrant of the property to be seized is sufficiently definite is a question of law on which an appellate court makes an independent judgment.’ [Citation.]” (Minder, supra, 46 Cal.App.4th at p. 1788.)
In this case, we disagree with the trial court and conclude that warrant No. 1 did sufficiently and particularly describe the place to be searched to include the “media gallery” on the phone. Although the basis for Alford’s belief that defendant’s cell phone contained information relevant to the investigation was his knowledge that defendant had used his cell phone to make and receive calls, neither his request for access to nor the ultimate scope of the warrant was limited to call records. Alford requested that “access to the cellular phone and the information electronically stored within the phone be granted.” The warrant issued by the court described the property to be searched as “[o]ne cellular telephone.” The “media gallery” was part of the electronically stored information contained in the cell phone. Accordingly, Alford’s search of the “media gallery” and the photographic images contained therein were included within the scope of warrant No. 1. The photos found on defendant’s cell phone were admissible.
II
Section 654 Stay
Defendant contends his sentence on count 3 for child molestation must be stayed under section 654 because there was no substantial evidence that the act of giving S.H. hickeys was separate from the sexual intercourse. We disagree.
Section 654, subdivision (a) reads 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.” Although this section speaks in terms of an “act or omission,” it has been interpreted to include situations in which several offenses are committed during a single course of conduct. (People v. Beamon (1973) 8 Cal.3d 625, 639.) The key inquiry is whether the objective and intent attending more than one offense committed during a continuous course of conduct was the same. (People v. Brown (1991) 234 Cal.App.3d 918, 933.)
The question whether a defendant entertained multiple criminal objectives is one of fact for the trial court. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136.) “A trial court’s implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.” (People v. Blake (1998) 68 Cal.App.4th 509, 512.)
Where several sex offenses are committed in the same incident, it is not enough to say the defendant harbored a single objective--sexual gratification. Such an objective “is much too broad and amorphous to determine the applicability of section 654.” (People v. Perez (1979) 23 Cal.3d 545, 552.) In People v. Bright (1991) 227 Cal.App.3d 105, the court upheld multiple punishment of lewd acts and other sexual offenses committed during a single incident, where none of the separate acts was “necessary for or incidental to” the others. (Id. at p. 110.)
Here, giving S.H. hickeys was not necessary for or incident to sexual intercourse. S.H. testified that defendant gave her the hickeys by biting and sucking on her neck prior to the first of three times they had intercourse. Although she did not object to him doing so, she said it hurt a little bit. There was no evidence it was necessary to S.H. for defendant to do this prior to intercourse, or that she even wanted him to do it. The trial court could reasonably conclude that defendant harbored a separate intent in giving S.H. hickeys, whether it be for his own sexual gratification prior to intercourse or to “mark” or “brand” S.H. as his conquest. Section 654 “does not apply where... the undefined act is ‘preparatory’ only in the general sense that it may be intended to sexually arouse either the perpetrator or the victim.” (People v. Madera (1991) 231 Cal.App.3d 845, 855.)
Therefore, substantial evidence supports the trial court’s implied determination that defendant entertained multiple objectives. We find no error.
The trial court’s purported error under section 654 is the only captioned issue in defendant’s appellate brief regarding defendant’s convictions relating to the hickeys. However, in the last paragraph of his argument in his opening brief, defendant intimates that there is some other alternative basis for his contention of error, the nature of which is not clear. In his reply brief, he clarifies this contention (again, as the last paragraph under his section 654 argument heading), that his convictions relating to the hickeys are invalid because he was convicted under a general statute rather than the statute that specifically criminalizes certain conduct. (See People v. Rackley (1995) 33 Cal.App.4th 1659, 1665.) Because this issue was not briefed under a separate heading as required by California Rules of Court, rule 8.204, and because a clear, cogent argument on this point is not advanced, we treat it as forfeited. (See People v. Bonin (1989) 47 Cal.3d 808, 857, fn. 6.) As this court has previously noted: “The purpose of requiring headings and coherent arguments in appellate briefs is ‘to lighten the labors of the appellate [courts] by requiring the litigants to present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised, as they read, of the exact question under consideration, instead of being compelled to extricate it from the mass.’” (Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1831, fn. 4.)
III
Clerical Error on Abstract
The trial court sentenced defendant on count 7, for violation of section 288, subdivision (c)(1), to “a consecutive sentence of 16 months, being one-third of the [doubled] midterm,” to be stayed pursuant to section 654. As the parties note, the abstract of judgment erroneously reflects a stayed two-year term on count 7. The abstract must be corrected to conform to the judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [“Courts may correct clerical errors at any time, and appellate courts... that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts”].)
Disposition
The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting that the consecutive, stayed term on count 7 for violation of Penal Code section 288, subdivision (c)(1), is 16 months, and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P. J., CANTIL-SAKAUYE, J.