Appeal from a judgment of the Superior Court of Orange County, Kazuhara Makino, Judge. (Super. Ct. No. 06CF3470)
The opinion of the court was delivered by: O'leary, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Terry Lee Shields appeals from a judgment after a jury convicted him of 10 counts of forcible lewd acts on a child under the age of 14, kidnapping to commit a sex offense, three counts of using a minor to produce child pornography, and possession and control of child pornography, and found true he had substantial sexual contact with the victims, and he kidnapped a victim and the movement substantially increased the risk of harm to the victim. Shields argues: (1) three counts of using a minor to produce child pornography was unauthorized and violated his federal and state equal protection rights; (2) the court erroneously failed to hold a hearing to determine whether his defense counsel should have been substituted; and (3) there were numerous sentencing errors. As we explain below, we agree there were sentencing errors. None of his other contentions have merit, and we affirm the judgment as modified.
Counts 8-11/J.H. & Counts 12-14/J.H.2
J.H., who was born December 17, 1990, and her younger sister, J.H.2, who was born October 31, 1995, and is autistic, rode the school bus to school in June 1999. Shields drove the school bus. The girls' mother befriended Shields and invited him to their home on holidays and family birthday parties. She also asked Shields to baby-sit her daughters. While baby-sitting the girls, Shields removed J.H.'s pants and underpants and touched her vagina with his hands on three separate occasions. Shields also showed J.H. a pornographic movie. Shields babysat J.H.2 on three separate occasions in
September 2002, May 2003, and September 2003, while her father, mother, and sister were out of town.
On June 9, 2004, seven-year-old A.L. was walking to school when Shields stopped his car, honked, and told her that he would take her to Disneyland. A.L. got into the car because she was afraid, and Shields made her get into the trunk, which was accessible from the backseat. He gave her something to drink, but she spilled it on the floor because she thought it was beer. Shields drove her to a house. Shields, who was nude, made A.L. take off her clothes, told her to stop crying, and forced her to pose for photographs. Shields kissed A.L.'s breasts and vagina, and rubbed his penis on her vagina. Shields held A.L. down and first put his penis inside her vagina and then put his penis in her mouth. Shields left A.L. at a McDonalds, and she walked to a carwash. Someone found her and called the police.*fn3
Two years later, Shields was at an internet cafe when an employee saw him looking at what appeared to be child pornography on a computer. The employee called the police. Officers found Shields sitting at a computer and they took him outside. Shields told them he had been at the internet cafe for about three hours looking at pornography when he saw pictures of children and downloaded them because he was curious. Officers found a computer disk in the disk drive of the computer Shields had been using. The computer disk contained seven images of young men and women having sex. Officers arrested Shields for possession of child pornography. After advising Shields of his Miranda*fn4 rights, Shields wrote he downloaded the images to turn them over to law enforcement and denied being sexually aroused by the images and denied being interested in children.
The next day, a detective interviewed Shields. After a detective advised him of his Miranda rights, Shields said the child pornography images "just pop[ped] up" and he downloaded them to give to the police. He denied being sexually aroused by the photographs.
Officers obtained a search warrant for Shields's car. Officers found a backpack containing topical anesthetic cream, condoms, lubricant, vibrators, dildos, a pacifier, and a Grim Reaper mask. Officers also found dolls, stuffed animals, video and camera equipment, binoculars, a copy of American Cheerleader magazine, women's underwear, lollipops, and a Little Mermaid bracelet.
Officers also obtained search warrants for Shields's storage units. Officers found Lidocaine, sodium chloride, obstetrical towels, DVDs, CDs, a bra, women's underpants, and pornographic magazines, including one titled "Child."
Finally, officers obtained a search warrant for a room Shields was renting. Officers found a computer containing over 2,000 pornographic images of children around the age of six or seven years old. They also found a lock box containing 26 videotapes, 34 DVDs, 42 computer disks, a photographic album, photographs of children in various states of undress, and women's underpants. The photographic album contained photographs of young women estimated to be between the ages of 17 and 22, with each picture the women wearing less clothing. One of the women pictured in the album also appeared on one of the videotapes. The videotape showed Shields photographing the woman and having sex with her. One of the videotapes depicted a girl approximately 13 years old wearing a nightgown that she lifted up to expose her vagina. There were also several photographs of the girl. The girl in the videotape and photographs was identified as J.H. Another videotape showed two females, one of whom was nude, lying on separate beds in a motel room. The videotape showed Shields hold a vibrator to the nude female's vagina while she spread her legs. Seventeen of the computer disks contained images of child pornography. The disks included 70 images of children engaged in sexual activity. Twelve of the pornographic images were of a young girl named J.R. Fourteen of the pornographic images were of J.H. and J.H.2. Three of the computer disks included seven videos depicting child pornography. One of the CDs was labeled "AL. 7 yo." This CD included photographs showing A.L. sitting on a toilet nude, spreading her legs, holding a vibrator, and touching her vagina with her hands.
At some point in October, Shields called his landlord and told her he had a "shameful secret" and he had been arrested because of "a sin of his" for which he wanted to die. There was additional child pornography in the residence.
An information charged Shields with the following: A.L.-three counts of forcible lewd acts on a child under the age of 14 (Pen. Code, § 288, subd. (b)(1))*fn5
(counts 1-3), kidnapping to commit a sex offense (§ 209, subd. (b)(1)) (count 4), and three counts of using a minor to produce child pornography (§ 311.4, subd. (c))
(count 5-penetration of vagina, count 6-masturbation, and count 7-posing nude);
J.H.-four counts of committing lewd acts on a child under the age of 14 (§ 288,
subd. (a)) (counts 8-11); J.H.2-three counts of committing lewd acts on a child under the age of 14 (§ 288, subd. (a)) (counts 12-14); and possession and control of child pornography (§ 311.11, subd. (a)) (count 15). With respect to counts 1 to 3 and 8 to 14, the information alleged Shields committed lewd acts on multiple children and he had substantial sexual conduct with a child (§§ 1203.066, subds. (a)(7) & (a)(8), 667.61, subds. (b), (e)(1)). As to counts 1 to 3, the information alleged he kidnapped the victim and the movement of the victim substantially increased the risk of harm to the victim (§§ 667.61, subds. (a), (b), (d)(2), & (e)(5)).
Pursuant to Evidence Code section 1108, the prosecutor offered the testimony of J.R., who was 21 years old at the time of trial. J.R. testified that when she was 12 years old, Shields was the bus driver at her school and a friend of her foster mother. She stated Shields gave her gifts. J.R. said that before she moved to another nearby foster home, Shields gave her his telephone number. She testified Shields showed up at her new foster home one day, picked her up, picked up another woman (who J.R. later learned was a prostitute), and went to a motel. J.R. stated she and the woman took a bath together and the woman shaved J.R.'s vaginal area and used a vibrator on her; Shields took photographs. J.R. explained Shields gave her blue thong underpants and a blue nightgown, which he told her to put on. J.R. said she and the woman moved to the bed and the woman orally copulated her while Shields took photographs. J.R. testified that on another occasion, Shields took her to an airport parking lot in a van where they touched each other's genitals and orally copulated each other; Shields videotaped this encounter.
The prosecutor offered the testimony of Dr. Jody Ward, a clinical and forensic psychologist, who testified concerning child sexual abuse accommodation syndrome, including secrecy intercourse, helplessness, entrapment and accommodation, delayed unconvincing disclosure, and retraction or recantation.
Shields rested on the state of the evidence.
The jury convicted Shields of all counts and found all allegations true. At the sentencing hearing, defense counsel stated she was ready to proceed with sentencing. After the victim impact statements and the prosecutor's argument, defense counsel stated she did not wish to make any argument. In response to the trial court's questions concerning the propriety of indeterminate sentences on some of the counts, the prosecutor requested a short recess to retrieve relevant case authority. When back on the record, defense counsel asked to briefly speak with Shields. The court agreed and defense counsel spoke with Shields. Defense counsel stated, "I am sorry, your honor, I just need a few minutes." The court again agreed. Defense counsel stated they ...