Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 50714154
RIVERA, J.
Darrel Watson appeals from a judgment upon a jury verdict finding him guilty of misdemeanor false imprisonment (Pen. Code, § 236), child molestation with a prior conviction (§ 647.6, subd. (c)(2)), attempted exhibition of lewd material to a minor (§§ 663, 288.2, subd. (a)), and furnishing marijuana to a minor (Health & Saf. Code, § 11361, subd. (a)). In a bifurcated proceeding, the trial court found that defendant suffered eight strike convictions (§§ 667, subd. (a), 1170.12) and that he served two prior prison terms (§ 667.5, subd. (b)). Defendant contends: (1) there is insufficient evidence to support the false imprisonment conviction, (2) the court’s sentence of 27 years to life constitutes cruel and unusual punishment, and (3) the court erred in denying him presentence conduct credits. We modify the judgment to add presentence conduct credits but otherwise affirm.
Unless otherwise indicated, all further statutory references are to the Penal Code.
I. FACTS
On the evening of July 8, 2007, Brandon, age 13, and his father went to Q-Zar, a laser tag and game arcade in Concord. After they played a game of laser tag, his father said he would wait outside in his truck while Brandon played a couple of video games. When Brandon left Q-Zar about 10 minutes later, his father’s truck was not in the parking lot. He waited five to ten minutes and then decided to walk to his mother’s house which was “right down the street.”
As Brandon was walking on the left side of the street against traffic near Concord Boulevard and was in the crosswalk, a car pulled up next to him and defendant, the driver, called out, “Paco” or “Oh, is that Paco.” Brandon stopped, and defendant said, “My bad. I got the wrong person, but do you smoke weed.” Brandon said that he did, so defendant offered, “Well, do you want to smoke a bowl” and Brandon said, “Yeah, I guess.”
As Brandon got into the car, he saw defendant reach for his sock from which he pulled out some marijuana. Defendant handed Brandon a pipe and a lighter and Brandon proceeded to “pack a bowl.” Brandon lit the pipe and smoked it before passing it to defendant. They smoked the pipe for about three to four minutes. Brandon started to feel the effects of the marijuana and felt tired and sleepy. He had not felt that way during the prior two times he had smoked marijuana.
While they were smoking, defendant started talking about girls and how he had seen up a girl’s skirt. He also told Brandon that if he ever needed to get away from his parents, he could get comfortable at his house. At some point, defendant asked Brandon how old he was, and Brandon said that he was 14. Brandon told defendant that he needed to get home soon. Defendant, however, continued to drive away from the direction of Brandon’s mother’s home.
They smoked another bowl of marijuana. Defendant then said that he needed to grab something from his house. He also said that he wanted to stop by his house because he had the “munchies.” When they had almost arrived at defendant’s house, defendant told Brandon that he could get comfortable at his house, he could smoke weed, or “jack off.” When they arrived at the house, defendant told Brandon to stay in the car a minute. Defendant entered the house through the front door and then came out from a sliding glass door on the left side of the house. Defendant told Brandon to come in and to be quiet because his family was in the next room.
Defendant’s house was two to three miles from the intersection where he picked up Brandon and from Brandon’s mother’s home.
Brandon remembered a couple of the street names near defendant’s house because he started to feel weird and uncomfortable with defendant after their conversation in the car. In the house, defendant directed Brandon to sit down in a chair facing the television set in his bedroom. Defendant sat in a computer chair behind Brandon. Defendant grabbed the remote and turned on the television. A selection of pornographic movies appeared on the screen; defendant asked Brandon which one he wanted to watch. Brandon shrugged so defendant picked one involving Asians having sexual intercourse. Defendant told Brandon to get comfortable and that he did not need to be shy. Defendant got up and took two hand towels from a filing cabinet and threw one to Brandon. Defendant sat back in his chair and Brandon saw him pull up the leg of his basketball shorts, take out his penis and start to masturbate. Defendant said, “I want to come on you.” Brandon wanted to leave but he was scared and did not know what defendant would do.
Defendant masturbated for about five minutes, made a noise like “haugh” and Brandon turned around and saw him grab the towel over his penis. Brandon asked defendant if he could go outside and smoke another bowl of marijuana. Defendant said, ” yeah, all right” and “I’ll be finished.” He also told Brandon to “stay outside.” Defendant came outside, put his hand on Brandon’s shoulder and smoked the marijuana with Brandon. After they smoked, Brandon asked if defendant would take him home. Defendant seemed angry but agreed to take Brandon home. Brandon did not tell defendant exactly where he lived because he did not want to see him again. Defendant dropped Brandon off about a block from his mother’s house. He told Brandon not to tell anyone about what had happened. Brandon was scared when he got home and was not going to tell anyone about what had occurred but the following day he told his mother.
Officer Michael Warnock interviewed Brandon on July 10, 2007. Brandon gave a physical description of defendant to Warnock and told him that defendant referred to himself as “D.” Brandon told Warnock that when they arrived at defendant’s house, defendant put some pornography on the television and asked Brandon, “Are you shy to masturbate or to jack off. You can take it out of your pants. It’s okay. I want to see it.” Brandon reported that defendant masturbated and ejaculated into a green hand towel.
The police searched defendant’s home and found a green hand towel containing semen matching defendant’s DNA. They also found a pornographic disk in the DVD player, entitled “One Night in Bangkok.” In defendant’s car, the police found a small bag of marijuana and a marijuana pipe.
Brandon identified defendant in a photographic lineup. He told Officer Christine Magley that he was scared when he was in defendant’s home, and that he did not leave because he was afraid defendant would hurt him.
II. DISCUSSION
A. False Imprisonment
Defendant contends that there is insufficient evidence to support his conviction for false imprisonment. He argues that he did nothing to restrain Brandon’s liberty.
In determining whether the evidence is sufficient to support the verdict, we must review “ ‘the whole record in the light most favorable to the judgment’ and decide ‘whether it discloses substantial evidence... such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Hatch (2000) 22 Cal.4th 260, 272, quoting People v. Johnson (1980) 26 Cal.3d 557, 578.)
“ ‘False imprisonment is the unlawful violation of the personal liberty of another.’ (§ 236.) ‘Personal liberty’ is violated when the victim is compelled to remain where he does not wish to remain, or to go where he does not wish to go.’ [Citation.]” (People v. Von Villas (1992) 10 Cal.App.4th 201, 255.)
Here, the evidence showed that defendant lured Brandon, a 13-year-old boy, into his car by offering him marijuana. As Brandon began smoking he told defendant he needed to go home “pretty soon.” Defendant, however, continued to drive toward his own home and told Brandon he had to “swing by his house a bit” or that he wanted to stop by his house because he had the “munchies.” In this way, Brandon was induced to remain in the car through deception; as he testified, had he known defendant was taking him to his bedroom to watch pornography while defendant masturbated he would not have entered the car. Once in defendant’s bedroom, after defendant started “doing things, ” Brandon wanted to leave right away but he did not know what defendant would do if he tried to leave, and feared defendant would hurt him. Given all of these facts it was entirely reasonable for the jury to conclude that through deception and fear, defendant succeeded in keeping Brandon both in his car and in his bedroom against his will. (Parnell v. Superior Court (1981) 119 Cal.App.3d 392, 410-411 [consent of the victim is no defense when it is induced by coercion or deception].)
At the time of the crime, defendant was 43 years old; he was described by Brandon as “pretty big, ” standing over six feet tall.
B. Cruel and Unusual Punishment
The court sentenced defendant to a term of 27 years to life. Defendant argues that since he is now 45 years old, the sentence constitutes cruel and unusual punishment because it is possible he may not complete his sentence in his lifetime.
He relies on Justice Mosk’s concurring opinion in People v. Deloza (1998) 18 Cal.4th 585, 600-601, where Justice Mosk stated, “A sentence of 111 years in prison is impossible for a human being to serve, and therefore violates both the cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution and the cruel or unusual punishment clause of article I, section 17 of the California Constitution.”
In People v. Byrd (2001) 89 Cal.App.4th 1373, 1383 (Byrd), the court noted that because no other justice on the Supreme Court joined in Justice Mosk’s concurring opinion, it has no precedential value. The Byrd court also disagreed with Justice Mosk’s analysis, concluding, “In our view, it is immaterial that defendant cannot serve his sentence during his lifetime. In practical effect, he is in no different position than a defendant who has received a sentence of life without possibility of parole: he will be in prison all his life. However, imposition of a sentence of life without possibility of parole in an appropriate case does not constitute cruel or unusual punishment under either our state Constitution (People v. Young (1992) 11 Cal.App.4th 1299, 1308-1311), or the federal Constitution. (Harmelin v. Michigan (1991) 501 U.S. 957 [sentence of life without possibility of parole not cruel and unusual punishment for possession of 672 grams of cocaine].) [¶] Moreover, in our view, a sentence such as the one imposed in this case serves valid penological purposes: it unmistakably reflects society’s condemnation of defendant’s conduct and it provides a strong psychological deterrent to those who would consider engaging in that sort of conduct in the future.” (Ibid.)
We agree with the reasoning in Byrd, and therefore reject defendant’s claim of cruel and unusual punishment. The sentence is not disproportionate to defendant’s crimes (see Ewing v. California (2003) 538 U.S. 11, 20-21; In re Lynch (1972) 8 Cal.3d 410, 424), and it is appropriate to give considerable weight to the fact that defendant is a recidivist offender, who has apparently not learned from his prior incarcerations (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510-1511).
C. Presentence Conduct Credits
Defendant contends that the court erred in not granting him presentence conduct credits under section 4019. The Attorney General concedes the error.
The trial court denied defendant any conduct credits, stating that such credits under section 1170.12, subdivision (a)(5) were limited to one-fifth of defendant’s total term, and could “not begin to accrue until [defendant] is physically delivered to the custody of the [CDC].” Section 1170.12, subdivision (a)(5), however, does not apply to presentence conduct credits for those defendants sentenced under the three strikes law. (People v. Thomas (1999) 21 Cal.4th 1122, 1125; People v. Hill (1995) 37 Cal.App.4th 220, 225.) Rather, it refers to postsentence conduct credits. (Thomas, supra, 21 Cal.4th at p. 1125.) Accordingly, defendant is entitled to 244 days of presentence conduct credits under section 4019 (419 ÷ 4 = 122 x 2 = 244). (See People v. Fabela (1993) 12 Cal.App.4th 1661, 1664.)
Further, we note that the abstract of judgment incorrectly shows that the court imposed two section 667.5, subdivision (c) enhancements rather than the section 667.5, subdivision (b) enhancements that were imposed. We will order that the abstract of judgment be modified to correct the error.
III. DISPOSITION
The abstract of judgment is modified to award defendant 244 days of presentence conduct credit and to reflect imposition of two section 667.5, subdivision (b) enhancements rather than two section 667.5, subdivision (c) enhancements. The trial court is directed to prepare an amended abstract of judgment and to forward a copy to California’s Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
We concur: RUVOLO, P.J., REARDON, J.