Opinion
D058658
02-21-2012
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH WENDLING, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCD226923)
APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed.
A jury convicted Joseph Wendling of three counts of committing a lewd act upon a child (Pen. Code,§ 288, subd. (a)) and found true the allegations that he committed substantial conduct with a child under 14 years old and committed it against more than one victim. (§§ 1203.066, subd. (a)(8); 1203.066, subd. (a)(7).) The court sentenced him to six years in state prison for count 1and two consecutive two-year terms for counts 2 and 3 for a total of 10 years in custody.
All further statutory references are to the Penal Code unless otherwise indicated.
Wendling appeals, contending that the trial court committed reversible error in (1) failing to give a unanimity instruction to the jury; and (2) failing to instruct the jury on battery as a lesser included offense of lewd conduct. He also alleges that the matter should be remanded for a new sentencing hearing after the court imposed the middle term, rather than the lower term, for all counts, and claims the court abused its discretion in doing so. We affirm.
FACTS
Wendling is a 77-year-old Brazilian native who immigrated to the United States in 2000 and to the San Diego area in 2005. He has permanent resident status. Prior to relocating to the United States, he lived and worked as an English teacher in South Korea for approximately 16 years, where he met and married his wife. He has a law degree from a Brazilian university and a Ph.D. in English from the Catholic University in America in Washington, D.C. In 2007, Wendling began working as an English and reading tutor with the Best Educational Services Team (BEST) program.
A. Counts 1 and 2 — A.N.
In the spring of 2008, Wendling began tutoring kindergartener A.N. twice per week in two-hour sessions. A.N. was seven years old at the time. All tutoring sessions were held in the living room of A.N.'s apartment. A.N.'s mother and grandmother were always home during the tutoring sessions. A.N. and Wendling were generally left alone in the living room during their tutoring sessions, as A.N.'s father wanted them to have privacy and space to concentrate. He would speak with Wendling for a few minutes and then leave them alone.
The original agreement was for Wendling to tutor A.N. at home for two hours per day twice a week for a total of 23 total hours. The following February, they began a second session with the same schedule, which they completed by April. For the next three weeks, Wendling continued to call A.N.'s family and offered to provide A.N. with additional tutoring sessions free of charge. Wendling became close with the family and even purchased gifts for A.N.
After every tutoring session, A.N. was generally directed by her parents to give Wendling a hug good-bye. On one occasion, A.N. refused to hug Wendling, and only relented after her mother and grandmother ordered her to do so. Later that night, A.N.'s mother was giving her a bath when A.N. began to cry and told her that Wendling had been reaching down her pants and touching her vagina. A.N.'s parents felt guilty and ashamed for what happened, and did not want their neighbors to know. As a result, the couple decided not to call the police. A.N.'s father called Wendling and said, "I can't believe you tried to touch my daughter!" He ordered Wendling to stay away from his home. Wendling denied the allegation, but agreed to stay away.
About six months later, A.N.'s father was at her school and heard the staff speak about the BEST program. Fearing that Wendling might still be tutoring and wanting to prevent other children from being victimized, A.N.'s father reported the molestation to the school.
A police officer interviewed A.N. at her school. A.N. told the police officer that her reading tutor used one hand to reach down the front of her pants to touch her private parts over her underwear. He would first place his hand on her lap and then slip it under her pants. She said that it happened on more than one occasion and lasted about five seconds each time.
During the investigation, police asked Wendling if there were any other children he tutored who might make similar allegations. Wendling admitted that he had also grown close to another student, D.G.
B. Count 3 — D.G.
Wendling tutored D.G. in fourth grade English beginning in the fall of 2007. D.G. was four years older than A.N., attended a different school, and did not know her.
As with A.N., Wendling tutored D.G. in her home. D.G.'s mother was always home and in another room. Wendling often made her feel uncomfortable. On one occasion, D.G.'s mother saw Wendling put his hand on D.G.'s neck. Her mother told her not to let Wendling touch her and instructed her to not sit on the couch with him but in a separate chair several feet away from him.
Wendling often brought D.G. gifts. Knowing her family had a coin collection, he gave D.G. a Chinese coin and told her to go place it in a bucket in the laundry room where her family kept the collection. Wendling followed her in there, lifted her up by her underarms, and then put her down. He then stood behind her and put his arms over her shoulders to reach down under her skirt and underwear to touch her vagina. D.G. told him to stop. Wendling did so and apologized to her, saying that he should not have touched her. Neither D.G. nor her mother reported the touching until D.G. was contacted by police in the investigation into Wendling's touching of A.N.
PROCEDURAL HISTORY
A. Jury Instructions
Wendling was charged with three counts of committing a lewd act upon a child: twice upon A.N., once upon D.G. (§ 288, subd. (a).) A.N., D.G., and their parents testified against Wendling, who took the stand on his own behalf.
The three counts were put before the jury as follows: count 1 was for the first time Wendling touched A.N.; count 2 was for the last time Wendling touched A.N.; and count 3 was for the first time Wendling touched D.G. The prosecutor explained to the jury that since specific dates were not available, a verdict of guilty for count 1 meant that Wendling touched A.N. once, and a verdict of guilty for count 2 meant that Wendling touched A.N. more than once.
When issuing its instructions, the court explained to the jury, "[T]he crime alleged occurred between a range of dates, during a period of time. The People are not required to prove that the crime took place exactly on a particular day; only that . . . the crimes happened, or [were] committed, occurred during that range of time, period of time[,] and reasonably close to the beginning or ending date as alleged." The court instructed, "[E]ach of the counts alleges a separate and distinct crime and must be considered as such by you. . . . So you have to consider them separately . . . ." The court did not instruct on any lesser included offenses, and neither side's counsel requested such an instruction.
B. Sentencing
The jury found Wendling guilty on all counts. Each count carried a range of three possible sentences: three years (low term), six years (middle term), and eight years (upper term).
1. Sentencing Memorandum and Probation Report
Wendling filed a sentencing memorandum that included over 30 letters of recommendation and pleas for leniency from former employers, friends, family members, and parents of former students. He also listed a number of factors in mitigation: his age, lack of a prior record, commitment to education, and record of community service.
The probation department submitted a report to the court in consideration of sentencing. The probation report stated Wendling scored a 1 on the Static-99, an actuarial measure of risk for sexual offense recidivism. A score of 1 placed Wendling in the low risk category for being charged or convicted of another sexual offense.
The probation department recommended the low term of three years for count 1 and one-third of the middle term (two years) for counts 2 and 3 to run consecutively, for a total of seven years in prison.
2. Sentencing Hearing
At the hearing, the court stated:
"I . . . appreciate that he has presented a very impressive array of support, a very impressive life experience, very contributing, positive example of his life. [¶] . . . [¶] He has had . . . advantages that are not enjoyed by the vast majority of people in our world. He's had a supportive, functional family, friends, colleagues, professional colleagues, professional opportunities. [¶] . . . [¶] . . . I have to take into account and give him credit and place weight on
that—all that's been presented by way of support of him. And that's why I think that it would be a real stretch to even consider imposing the upper term."
In spite of all of this, the court determined that other considerations outweighed Wendling's support letters and lack of prior record:
"I think the primary circumstance in aggravation is the violation of trust and the devastation that has been visited on the girls themselves and their families. . . . But that—he indicated himself, . . . there is a special bond between teacher, mentor, and student. There is a special bond. A trust. Responsibility. And he grossly violated that special bond, that trust in a very destructive, lasting way. And I think that has to be given very substantial weight by the Court. [¶] . . . [M]id term is no longer the presumptive term. It has to be a conscientious choice on my part. But I think the Court can reasonably and should reasonably place great weight on that factor, the violation, abuse, destruction of that bond and that trust that existed between [him] and these two complaining witnesses."
The court determined that the middle term was most appropriate under the circumstances given the factors in both aggravation and mitigation. Wendling was sentenced to six years for count 1 and one third of the middle term (two years) for counts 2 and 3 each, to be served consecutively, for a total of 10 years.
"The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses." (§ 1170.1, subd. (a).)
DISCUSSION
Wendling alleges that the court committed reversible error by failing to give the jury a unanimity instruction and by failing to instruct on battery as a lesser included offense of lewd conduct. Wendling also alleges that the case should be remanded for a new sentencing hearing because the court improperly weighed all factors in mitigation. We disagree.
I
A UNANIMITY INSTRUCTION WAS NOT REQUIRED
Wendling contends that the prosecutor presented evidence of multiple instances of molestation to support each count and, by doing so, a unanimity instruction was required. Wendling also contends that the court was under a sua sponte duty to give the instruction. We disagree.
We review claims of instructional error de novo. (People v. Manriquez (2005) 37 Cal.4th 547, 581.)
When a defendant is charged with a single criminal act, but the evidence reveals more than one instance of the charged crime, either the prosecutor must select the particular act upon which he relies to prove the charge or the jury must be instructed that it must unanimously agree beyond a reasonable doubt that the defendant committed the same specific criminal act. (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) If the prosecutor does not make a selection, the court has a sua sponte duty to give a jury instruction that the jury must unanimously agree upon the act or acts constituting the crime. (Ibid.) Typically, this is given as CALCRIM No. 3500, which Wendling asserts should have been given sua sponte.
CALCRIM No. 3500 states in part: "The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed."
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A unanimity instruction is appropriate when conviction on a single count could be based on two or more discrete criminal events, but not where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event. (Russo, supra, 25 Cal.4th at p. 1135.) Unanimity as to exactly how the crime was committed is not required. (Ibid.) "In deciding whether to give the instruction, the court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime." (Ibid.) "In the first situation, but not the second, it should give the unanimity instruction." (Ibid.)
Here, the second situation is clearly implicated. The jury was presented with three different verdict forms with the discrete crimes clearly spelled out for them on each one. Count 1 was for "committing the crime of Lewd Act Upon [A.N.], on or about and between April 1, 2008[,] and May 30, 2009, in violation of . . . section 288[, subdivision] (a), as charged in Count One of the Second Amended Information. (To wit: touched vagina, first time[.])" (Italics added). Count 2 was for "committing the crime of Lewd Act Upon [A.N.], on or about and between April 1, 2008[,] and May 30, 2009, in violation of . . . section 288[, subdivision] (a), as charged in Count Two of the Second Amended Information. (To wit: touched vagina, last time[.])" (Italics added). Count 3 was for "committing the crime of Lewd Act Upon [D.G.], Child, on or about and between
January 1, 2008[,] and May 30, 2008[,] in violation of . . . section 288[, subdivision] (a), as charged in Count Three of the Second Amended Information. (To wit: touched vagina, first time[.])" Each verdict form clearly stated which discrete crime was being charged.
The prosecutor was not required to show exactly how or when each crime was committed. (Russo, supra, 25 Cal.4th at p. 1135.) It would be unacceptable if some jurors believed Wendling guilty of one crime and other jurors believed him guilty of another. (Ibid.) But the prosecutor was very clear in explaining the discrete crimes and verdict forms to the jury with regard to A.N. and selecting which instances were charged in the complaint: "We are only proving that A.N. was touched more than once. Not three times, not five times, not ten times. More than once. [¶] We can only charge what can be proven. And that's why you see two counts, first time, last time. Or once, more than once." The prosecutor satisfied his duty by selecting which instances, out of multiple ones, were being charged. (Russo, supra, 25 Cal.4th at p. 1132.)
The court also explained to the jury, "[T]he crime alleged occurred between a range of dates, during a period of time. The People are not required to prove that the crime took place exactly on a particular day; only that . . . the crimes happened, or [were] committed, occurred during that range of time, period of time, and reasonably close to the beginning or ending date as alleged." A unanimity instruction was not required under these circumstances, and the court was under no sua sponte duty to provide it.
II
WHILE THE COURT SHOULD HAVE INSTRUCTED ON BATTERY
AS A LESSER INCLUDED OFFENSE, THE ERROR WAS HARMLESS
Wendling also asserts that the court was required to instruct the jury to consider battery as a lesser included offense of lewd conduct. He argues that the failure to do so resulted in reversible error. We will assume, for the sake of argument, that the court was required to instruct the jury to consider battery as a lesser included offense. (People v. Thomas (2007) 146 Cal.App.4th 1278, 1293 (Thomas) ["[B]attery is a lesser included offense of lewd acts."].) However, its failure to do so was harmless, and we will not overturn his conviction.
The failure to instruct sua sponte on lesser included offenses in a noncapital case is not subject to reversal unless an examination of the entire record establishes a reasonable possibility that the error affected the outcome. (Thomas, supra, 146 Cal.App.4th at p. 1293.) Therefore, we will not reverse unless the record before us establishes a reasonable possibility that Wendling would not have been convicted but for the failure to instruct on battery as a lesser included offense.
The case against Wendling was composed entirely of testimony from his two victims, A.N. and D.G., and their parents. Both girls clearly stated that, when alone, he touched them under their clothing. D.G. testified that Wendling admitted to her that he should not have done it. The touching was clearly sexual and for purposes of sexual gratification. We find it highly unlikely that, even with an instruction on battery as a lesser included offense, Wendling would have been acquitted. Enough evidence was presented to find Wendling guilty of committing lewd acts. The error was neither harmful nor prejudicial, and will not overturn his conviction.
III
THE COURT PROPERLY EXERCISED ITS DISCRETION
IN SENTENCING WENDLING TO THE MIDDLE TERM
Wendling claims that the court abused its discretion when it imposed the middle term and consecutive sentencing. He claims that the court should have given more weight to the factors in mitigation and imposed the lower term instead. We disagree.
We review the court's decision under the deferential "abuse of discretion" standard. (People v. Carmony (2004) 33 Cal.4th 367, 374.) Under this standard, we do not reweigh sentencing factors or substitute our evaluation for that of the sentencing court. (Ibid.) The trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, consistent with the letter and spirit of the law, and based upon an "individualized consideration of the offense, the offender, and the public interest." (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.)
We feel compelled to correct an erroneous statement of the law made by Wendling in his opening brief. His brief cites section 1170, subdivision (b) and states that, "When a statute specifies three possible terms, the court shall impose the middle term, unless circumstances in aggravation or mitigation justify the imposition of the upper or lower term." This is an incorrect statement of the law. Section 1170, subdivision (b) actually states, "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court . . . . The court shall select the term which, in the court's discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected . . . ." (See also People v. Sandoval (2007) 41 Cal.4th 825, 845-847 (Sandoval).)
Therefore, the court was not under any obligation to impose the middle sentence, but rather to impose the sentence that, in its discretion, would best serve the interests of justice. (See Sandoval, supra, 41 Cal.4th at pp. 845-847.)
Here, the court stated its sentencing decision on the record. The court stated that it had considered all the letters in support of Wendling, and commended him for his history of community service and commitment to teaching. However, the court found that this history made Wendling's crime all the more troubling because it took advantage of a position of trust and the bond between student and teacher. Courts may consider abuse of a position of trust when determining a sentence. (Cal. Rules of Court, rule 4.421(a)(11).) The sentence was within the court's discretion, and we will not disturb it.
DISPOSITION
The judgment is affirmed.
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HUFFMAN, Acting P. J.
WE CONCUR:
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O'ROURKE, J.
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AARON, J.