IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
May 10, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DEONTE SANTOS, DEFENDANT AND APPELLANT.
(Super. Ct. No. 07F06742)
The opinion of the court was delivered by: Nicholson , J.
P. .v Santos
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Deonte Santos guilty on six counts of lewd conduct with a child under 14 (Pen. Code, § 288, subd. (a)),*fn1 and three counts of procuring a child to engage in a lewd act (§ 266j). Sentenced to 24 years in state prison, defendant appeals his conviction. Defendant contends his convictions for procuring a child to engage in lewd acts are barred by section 656. For the reasons discussed below, we affirm.
In October 2007, defendant was convicted in federal court of the use of an interstate facility to entice a minor to engage in sexual conduct or prostitution (18 U.S.C. § 2422(b)) and sex trafficking of children by force, fraud, or coercion (18 U.S.C. § 1591). For his crimes, defendant was sentenced to 12 years six months in federal prison.
Defendant was subsequently charged in Sacramento County Superior Court with six counts of committing a lewd and lascivious act on a minor under the age of 14 (§ 288, subd. (a)), and three counts of procuring a minor for the purpose of a lewd and lascivious act (§ 266j). Defendant pled not guilty.
Defendant then moved to dismiss the three counts of child procurement (§ 266j), arguing that the acts for which he was convicted in federal court under Title 18 United States Code section 1591, were the same for which he was now being tried in state court under section 266j. Thus, he argued, the prosecutor was barred under section 656 from charging him with the crime of child procurement. The trial court denied defendant's motion, finding the federal crime of child trafficking (18 U.S.C. § 1591) included "a commercial element" not found in the state crime of child procurement (§ 266j).
Defendant contends the trial court erred in denying his motion to dismiss. Specifically, defendant argues that although the acts constituting the state crime of child procurement are not sufficient to prove the federal crime of child trafficking, they are necessary to do so. Accordingly, he contends, prosecution of the state crimes was barred under section 656. Defendant is wrong.
"The double jeopardy clause of the Fifth Amendment to the United States Constitution does not preclude multiple convictions in different sovereign jurisdictions for the same criminal act. (Heath v. Alabama (1985) 474 U.S. 82, 93 [88 L.Ed.2d 387, 397].) However, a state can provide greater double jeopardy protection than is afforded by the federal Constitution. (People v. Comingore (1977) 20 Cal.3d 142, 145 . . . .) California has done so by statute.
"Section 656 states: 'Whenever on the trial of an accused person it appears that upon a criminal prosecution under the laws of the United States, or of another state or territory of the United States based upon the act or omission in respect to which he or she is on trial, he or she has been acquitted or convicted, it is a sufficient defense.'" (People v. Bellacosa (2007) 147 Cal.App.4th 868, 873.)
"Decisional authorities demonstrate that in considering whether a California prosecution is barred by a prior conviction or acquittal in another jurisdiction, courts look solely to the physical acts that are necessary for conviction in each jurisdiction. If proof of the same physical act or acts is required in each jurisdiction, then the California prosecution is barred. If, however, the offenses require proof of different physical acts, then the California prosecution is not barred even though some of the elements of the offenses may overlap." (People v. Bellacosa, supra, 147 Cal.App.4th p. 874.)
Thus, "if [a] federal conviction was premised upon a separate act not necessary to obtain [a] California conviction, then defendant [was] not serially convicted for the same wrongful conduct." (People v. Brown (1988) 204 Cal.App.3d 1444, 1450.)
Defendant concedes that, unlike the state crime of child procurement, to convict him of sex trafficking, the federal prosecutor was required to prove: (1) defendant's conduct affected interstate commerce; (2) a child was provided for a commercial sex act; and (3) defendant received something "of value" in exchange for the child's sex act.*fn2 Defendant nevertheless contends these additional elements are "of no moment," because they are either jurisdictional or do not constitute physical conduct. Defendant provides no legal authority for his assertion. In any event, defendant is wrong.
At least one of the additional elements required to convict defendant of the federal crime is a physical act: defendant had to provide the child for a "commercial sex act." (18 U.S.C. § 1591(a).) A commercial sex act is defined as "any sex act, on account of which anything of value is given to or received by any person." (18 U.S.C. § 1591(e)(3).) Receiving something of value is a physical act, one the prosecution is not required to prove to convict defendant of the state crime, child procurement. (Compare 18 U.S.C. § 1591 with Pen. Code, § 266j.) Accordingly, even assuming defendant's convictions for child procurement arose from the same sex acts as those which formed the basis for his federal convictions for sex trafficking, section 656 does not bar defendant's prosecution or conviction on the crime of child procurement.*fn3
At trial, defendant asked the court to review the victim's sealed mental health records in camera and determine whether there were documents contained in the confidential information that reflected on the victim witness's credibility and competence to testify at trial. The court reviewed the records, found only a few relevant, and turned those over to the defendant. On appeal, defendant asks this court to conduct a de novo review of those same records and determine if the trial court failed to turn over additional, relevant documents. The People do not object to defendant's request on appeal.
The victim's mental health records reviewed by the trial court were not provided along with the record on appeal. Accordingly, on its own motion, this court augmented the record to include those records. Having reviewed the sealed records, we conclude there is no evidence contained therein that would have changed the outcome of the trial. Indeed, the records are largely cumulative, relate primarily to the victim's juvenile dependency action, and have less bearing on her credibility and competence as a witness than did the evidence submitted at trial.
The judgment is affirmed.
BLEASE , Acting P.