IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Colusa)
June 27, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DENNIS LYNN HAMMOND, DEFENDANT AND APPELLANT.
(Super. Ct. No. CR49175)
The opinion of the court was delivered by: Duarte , J.
P. v. Hammond
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
We are asked to determine whether defendant Dennis Lynn Hammond's conviction of four counts of lewd acts upon a child (Pen. Code,*fn1 section 288, subd. (a)) was the result of prejudicial prosecutorial misconduct arising from questions asked on cross-examination and statements made during closing argument. We are also asked to decide whether the trial court relied on improper factors in imposing the middle term on the principal count and consecutive sentences on the subordinate counts.
As we will explain, because defendant did not object to the multiple arguably inappropriate comments made by the prosecutor during trial, he has forfeited his right to challenge these comments on appeal. Further, the trial court did not err with regard to sentencing. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and Eric B. worked together and the two became friends. Several times a year, Eric B. invited defendant to join Eric and his two sons, Z.B. (then approximately nine years old) and his younger brother S.B., on trips to places in California, including CC Camp in Ukiah, Pismo Beach in San Luis Obispo, and Letts Lake in Mendocino, to camp, fish and ride motorcycles. Eric B. drove his van and defendant drove his own truck. The boys slept with Eric in their van, and defendant slept in a tent next to his truck.
On a number of trips, Z.B. rode with defendant in defendant's truck and his brother rode with Eric in the van. Z.B. sat either in the front passenger seat or the back passenger seat. During the drive, defendant talked with Z.B. about things like sports, school, places they both wanted to go and girls. Sometimes, they talked about girls' breasts and "private parts."
During certain trips, as defendant drove and Z.B. sat in the front seat, defendant pulled a pornographic magazine out of a travel bag he kept in the backseat, gave it to Z.B. and asked him to look at it. While Z.B. looked at the magazine, defendant instructed Z.B. to pull down his pants and defendant touched Z.B.'s "penis and [Z.B.'s] butt." The same thing happened during other trips when Z.B. was sitting in the backseat of defendant's truck. Z.B. later testified that he sat in the backseat because defendant told him there might be "airplanes and helicopters flying above" and he "didn't want them to see what was happening."
Defendant told Z.B. not to tell anyone about these incidents or he and Z.B. would both get into trouble. On occasion, defendant gave Z.B. money, bought him gifts or took him to a store to buy something.*fn2
The first time defendant touched Z.B. was during a trip to CC Camp around October 2006 when Z.B. was nine or 10 years old.*fn3 During that trip, Z.B. rode in the front seat of defendant's truck. Approximately 10 miles before they reached camp, defendant told Z.B. to take his seatbelt off, gave him some pornographic magazines to look at and told him to pull his pants down. Z.B. complied and defendant touched Z.B.'s penis, leaving his hand there for about five seconds. Defendant told Z.B. not to tell anybody.
The second incident occurred on a trip to Pismo Beach sometime around June 2007, when Z.B. was again riding in the front seat of defendant's truck. After reaching the campground and setting up camp, the group went out for Mexican food for dinner. On the way to the restaurant, defendant told Z.B. to pull down his pants and then touched Z.B.'s penis and buttocks. Again, defendant told Z.B. not to tell anyone.
Several more incidents occurred on a trip to Letts Lake around November 2007. Z.B. rode part of the way there with his father and S.B., then switched and rode the rest of the way with defendant. He did the same on the trip home. On the way there, approximately one hour from the lake, defendant showed Z.B. pornographic magazines depicting naked men and women, and then put his hand on Z.B.'s penis and moved it up and down for approximately five seconds. Z.B. testified that defendant touched him "[a]bout three" times on the trip to Letts Lake, "[o]nce or twice" on the way up and "[o]nce or twice" on the way back.*fn4 On the trip home, defendant touched Z.B.'s penis and buttocks again for about five seconds.
Z.B. eventually told his father about the incidents when his father asked him and S.B. whether anyone had ever touched them in an inappropriate way.*fn5 Z.B. had been afraid to tell his father because he "didn't want to go to jail."
Defendant was arrested and charged, by amended information, with six counts of lewd and lascivious acts on a child under the age of 14 with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of himself or the child. (§ 288, subd. (a).)
At trial, defense witness Dr. Paul Wuehler, a clinical forensic psychologist, testified regarding his psychological evaluation of defendant. The evaluation consisted of an interview lasting approximately two hours and a series of psychological tests, some having to do with mental capacities or emotional abilities and some having to do with sexual tendencies. Based on his evaluation, Dr. Wuehler concluded that defendant did not have any problems with sexual deviance or sexual interest in children.
On cross-examination, Dr. Wuehler stated he was unaware, at the time of the evaluation, that the factual allegations included defendant's showing of pornographic magazines to Z.B.
Robert Sypriano, defendant's employer of three years and someone with whom he was acquainted for over 20 years, testified as to defendant's reputation for honesty and good moral character. Sypriano also testified that he had observed defendant at company gatherings where children were present and never saw defendant act inappropriately toward children or express any special interest in them.
Defendant testified at trial, denying ever touching Z.B. inappropriately. He admitted that he kept several adult magazines in the travel bag in his truck when he went camping, but denied ever giving Z.B. the magazines or asking/telling him to get the magazines out of the travel bag. Defendant testified that Z.B. found the magazines during one of the trips and defendant said, "I don't think your dad would appreciate your looking at those," but did not stop Z.B. from looking at them.
Defendant denied driving Z.B. to Pismo Beach, stating that because he had to work, he did not arrive at camp until two days after Z.B. arrived with his father.
At the conclusion of the evidentiary phase of trial, pursuant to the agreement of both counsel, the court granted the defendant's motion for acquittal as to count VI. Thereafter, the jury found defendant guilty of four counts of lewd and lascivious acts upon a child under the age of 14 (counts I through IV). Because the jury was unable to reach a verdict on count V, the court granted the prosecution's motion to dismiss that count.
The court denied probation and sentenced defendant to the middle term of six years, plus two years (one-third the middle term) for each of the three subordinate counts to run consecutive to the principal term, for an aggregate term of 12 years in state prison.
Defendant contends the prosecutor committed prejudicial misconduct in several ways during trial. First, he asserts it was misconduct for the prosecutor, during cross-examination, to ask defendant whether defendant had any children or had ever been married. He also asserts it was misconduct for the prosecutor, during argument, to argue without evidentiary support that (1) the defense expert suggested or implied defendant committed an offense; (2) the defense expert admitted a person could pass the Static 99 test if he actually believed he was not guilty; and (3) defendant gave presents or money to the victim, but never to the victim's brother.
Perhaps most troubling are the remaining claims of misconduct during rebuttal argument: that the prosecutor commented that defendant had conceded count I; that the prosecutor argued the jurors' guilty verdict was "preordained"; and that the prosecutor improperly appealed to the jurors' fears and emotions by ending his rebuttal with a question to the jury asking whether any of its members would trust defendant with their own children.
Our review of the record confirms that, during rebuttal argument, the prosecutor said: "Now, here's something interesting, and I'm really kind of curious to watch your eyes when I say this. [Defendant's counsel] never, ever asked a single question about CC Camp, never asked [Z.B.] about CC Camp once. I guess he concedes that count."
Defense counsel objected on the grounds that the statement improperly commented on defendant's silence (Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106]) and shifted the burden of proof to defendant to prove his innocence. After an unreported bench conference, defense counsel asked the court for a ruling "as to whether or not [the prosecutor] can continue on that vein." The prosecutor stated, "I'm not on that vein any more," [sic] to which defense counsel responded, "Okay, very good." The record does not reflect that any admonition to the jury was sought.
Shortly thereafter, the prosecutor said, "Now, your vote as jurors, it's an individual vote, you got to do it. I'm good with that. But your vote as jurors is the result of the Defendant's conduct. You go back there and you vote guilty, he preordained this verdict. He already did. By his own conduct, he preordained it." And at the argument's conclusion, the prosecutor said: "I leave you with this. Would any one of you trust your child or your grandchild with [defendant]?"
The People first argue that defendant's claims of misconduct are forfeited on appeal for failure to object or to request admonishment at trial. They then argue that the claims lack merit. As we agree with the People regarding the forfeiture of defendant's prosecutorial misconduct claims, we need not reach the merits of those claims.
"In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review." (People v. Friend (2009) 47 Cal.4th 1, 29, quoting People v. Alfaro (2007) 41 Cal.4th 1277, 1328; People v. Samayoa (1997) 15 Cal.4th 795, 841.) Here, with one exception, defendant did not object to any of the claimed instances of misconduct, and not once did he request that the jury be admonished.
"A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if '"an admonition would not have cured the harm caused by the misconduct."' [Citations.] Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if 'the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.' [Citations.]" (People v. Hill (1998) 17 Cal.4th 800, 820-821.)
None of the exceptions to the general rule apply to these facts. Therefore, all claims to which no objections were raised are forfeited. When the prosecutor argued that defendant had conceded count I, defense counsel did object. However, no admonition was sought. Thus the claim arising from this portion of the argument is also forfeited.
B. Ineffective Assistance of Counsel
We are troubled by several of the allegations of prosecutorial misconduct in this case. We do not reach the merits due to defendant's forfeiture of the claims. We are not able to ascertain from this record why defendant's counsel failed to object to the prosecutor's arguably inflammatory rhetoric and why no curative instructions were sought. "Where the record does not illuminate the basis for the challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a petition for habeas corpus." (People v. Pope (1979) 23 Cal.3d 412, 426.)
Imposition Of Consecutive Sentences
Defendant contends the trial court relied on improper factors in imposing the middle term and in imposing consecutive sentences. The People argue defendant forfeited his claims by failing to object in the trial court, and in any event the claims are meritless. The People are correct.
The lack of a timely and meaningful objection by defendant to his criminal sentence results in forfeiture of his claim on appeal. (People v. Scott (1994) 9 Cal.4th 331, 351; People v. Partida (2005) 37 Cal.4th 428, 434; People v. Brach (2002) 95 Cal.App.4th 571, 577 ["Claims of error relating to sentences 'which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner' are waived on appeal if not first raised in the trial court"].)
Even assuming the claims were preserved for appeal, they lack merit. We proceed to briefly explain why, given defendant's broad claim of trial counsel's ineffectiveness.
B. Sentencing Factors
"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." (Pen. Code, § 1170, subd. (b).)
"The court shall state the reasons for its sentence choice on the record at the time of sentencing." (Pen. Code, § 1170, subd. (c).) When the court denies probation, it is "not also required to justify the middle term, for the reasons for denying probation are the reasons for selecting a state prison sentence and need not be stated twice." (People v. Jones (1990) 224 Cal.App.3d 1309, 1316; see also People v. Pennington (1989) 213 Cal.App.3d 173, 176.)
We review the trial court's determination of the appropriate term for abuse of discretion. (People v. Lamb (1988) 206 Cal.App.3d 397, 401; People v. Ramos (1980) 106 Cal.App.3d 591, 605, disapproved on other grounds in People v. Scott, supra, 9 Cal.4th at p. 353, fn. 16.) The trial court's sentencing choice will be upheld unless defendant shows the sentence was arbitrary or irrational. (People v. Hubbell (1980) 108 Cal.App.3d 253, 260.)
Here, the trial court stated adequate reasons for denying probation as follows: "The Court declines to grant probation to the Defendant, after reviewing the Defendant's personal history and the circumstances of the events. [¶] The victim herein was particularly vulnerable, given his young age at the time of the offenses. [¶] The Defendant occupied a position of trust, both with respect to the victim and his family." (See Cal. Rules of Court, rules 4.414(a)(3) and (9).)
The trial court also explained its decision to impose the middle term of six years, as follows: "The Court chooses that term based on the significant period of time over which these offenses occurred and what the Court views as planning and sophistication that went into the perpetration of these offenses."
Defendant takes issue with several of the factors, some used to justify denial of probation and others to justify imposition of the middle term sentence. We are not persuaded.
First, defendant claims the court's reliance on "the significant period of time over which [the] offenses occurred" was improper, as that factor is not a recognized circumstance in aggravation under California Rules of Court, rule 4.421. This point is of no consequence, as rule 4.420(b) provides that, in selecting a term of imprisonment, the court may consider, among other things, "any other factor reasonably related to the sentencing decision." The period of time over which the offenses occurred is reasonably related, as defendant's molestation of the victim first began in October 2006 and continued on into November 2007. Given that, notwithstanding defendant's arguments to the contrary, the fact that each individual incident of touching was brief is of no consequence. Defendant has not shown that consideration of this factor was irrational or arbitrary (People v. Cazares (1987) 190 Cal.App.3d 833, 837), or that it exceeded the bounds of reason, all of the circumstances being considered. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)
Second, defendant claims the evidence does not support the court's use of "the planning and sophistication that went into the perpetration of these offenses" to impose the middle term. The record suggests otherwise. Z.B. testified that the first incident occurred while Z.B. was alone with defendant in defendant's truck, approximately 10 miles prior to reaching the destination. Defendant told Z.B. to take his seatbelt off, gave Z.B. a pornographic magazine to look at and then told Z.B. to pull his pants down. Defendant touched Z.B.'s penis for approximately five seconds and then told Z.B. not to tell anybody. All of this was preceded by conversation with Z.B. which included things like girls, breasts and "private parts." Those facts are sufficient to show planning and sophistication. Defendant has not shown that use of that factor was arbitrary or irrational. (People v. Cazares, supra, 190 Cal.App.3d at p. 837.)
Next, defendant takes issue with the factors cited to support denial of probation, claiming the evidence did not support a finding that defendant was in a position of trust, or that Z.B. was particularly vulnerable. Again, the record demonstrates otherwise.
California Rules of Court, rule 4.421(a)(3) includes the fact that the "victim was particularly vulnerable" as a circumstance in aggravation. Z.B. was a young boy, alone in the truck with defendant, as defendant drove to and from various destinations. The trial court did not abuse its discretion in considering that factor to deny probation and impose the middle term.
Defendant claims that Z.B.'s age is an element of the crime and thus cannot be considered when determining whether the victim was particularly vulnerable for purposes of aggravating the sentence. He cites three cases to support his claim: People v. Quinones (1988) 202 Cal.App.3d 1154, 1159 (Quinones) (overruled on other grounds in People v. Soto (2011) 51 Cal.4th 229, 244) [trial court relied on the victim's age as a factor in aggravation in imposing the upper term for a section 288 charge], People v. Garcia (1983) 147 Cal.App.3d 1103, 1106 (Garcia) [trial court used disputed factor to impose the middle term], and People v. Ginese (1981) 121 Cal.App.3d 468, 477 (Ginese) [trial court used victim's minority to support imposition of aggravated term].
Because the trial court here imposed the middle term, Quinones and Ginese are inapposite. Garcia is instructive because, like here, the trial court imposed the middle term, and the court of appeal held that the proscription against the use of a fact which is an element of the crime to impose the upper term therefore did not apply. (Garcia, supra, 147 Cal.App.3d at p. 1106.) Consideration of age as it related to vulnerability when imposing the middle term was appropriate.
Defendant's claim that he did not occupy a position of trust is also misplaced. California Rules of Court, rule 4.421(a)(11) lists, as a factor in aggravation, the fact that "the defendant took advantage of a position of trust or confidence to commit the offense." Defendant urges that the language of that statute, and particularly the word "position," requires that the perpetrator be the victim's "parent, teacher, chaplain, or physician." We know of no authority that holds as such, nor do the cases cited by defendant. The record makes plain that defendant, approximately 51 years of age at the time of the first incident, was a friend of Eric B.'s and, over time, became a close friend of Eric and his children such that he was often entrusted with the care, safety and well-being of either Z.B. or his younger brother, S.B., on various trips and outings away from home. Again, defendant has not shown that consideration of that factor was irrational or arbitrary. C. Consecutive Sentences "It is well established that a trial court has discretion to determine whether several sentences are to run concurrently or consecutively." (People v. Giminez (1975) 14 Cal.3d 68, 71.) To assist the trial court in the exercise of that discretion, rule 4.425 of the California Rules of Court sets out "[c]riteria affecting the decision to impose consecutive rather than concurrent sentences," which includes that the "crimes and their objectives were predominantly independent of each other," and that the "crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior." (Cal. Rules of Court, rules 4.425(a)(1) and (3).)
Here, the trial court properly exercised its sentencing discretion. The court imposed two-year terms (one-third the middle term) for each of three subordinate crimes "to run consecutively with the primary charge." In doing so, the court stated as follows: "The Court finds that they are deserving of treatment of consecutive sentence[s] in that they are separated by a significant period of time and are independent offenses to the principal term." The first of those crimes occurred on or about June 1, 2007, and the second and third occurred on or about November 1, 2007.
Defendant claims that because Z.B. was "entirely confused about the Count III and IV incidents," the evidence suggested only that defendant touched him on the way to the lake, and "being touched on the way back wasn't even mentioned" until cross-examination. Thus, the consecutive sentences as to those two counts were not based on "solid testimony." But the record is clear that, while Z.B. may have been confused as to the total number of times he was molested by defendant on the trip to Letts Lake, he was clear that defendant did so at least once on the trip to the lake, and once again on the trip home. The trial court did not abuse its discretion in imposing consecutive terms.
The judgment is affirmed.
We concur: BLEASE , Acting P. J. ROBIE , J.