Trial Court: Santa Clara County Superior Court No.: CC827086 Trial Judge: The Honorable Griffin M. J. Bonini
The opinion of the court was delivered by: Lucero, J.*fn19
CERTIFIED FOR PUBLICATION
(Santa Clara County Super. Ct. No. CC827086)
After a preliminary examination, an information charged defendant Edward Owen Voit with six counts of lewd and lascivious conduct (Pen. Code, § 288, subd. (a))*fn1 involving three boys.*fn2 Due to an allegation of multiple victims, defendant faced a potential sentence of 90 years to life under the "One Strike" statute (§ 667.61).*fn3 Facing these charges, defendant, then age 51, agreed to plead no contest to six different charges and to be sentenced to a determinate term of 36 years in prison with the One Strike allegation dropped. Accordingly, defendant entered six separate no contest pleas to six counts of lewd and lascivious conduct involving the use of force, violence, duress, menace, and fear of immediate and unlawful bodily injury (§ 288, subd. (b)(1)) and he admitted that each count involved substantial sexual conduct. (§ 1203.066, subd. (a)(8).) Defense counsel concurred in the pleas and stipulated that the preliminary hearing transcript contained a factual basis for the pleas.
Almost four months later, defendant submitted a letter asking to replace his attorney and to withdraw his no contest pleas. After conducting a People v. Marsden (1970) 2 Cal.3d 118 (Marsden) hearing in the prosecutor's absence, the trial court denied defendant's motion. After denying the motion, the court imposed the agreed sentence of 36 years, and also various fines and fees, including a $500 fine pursuant to section 290.3 and a $1,325 total penalty assessment.
After obtaining a certificate of probable cause, defendant appeals. Without directly attacking the rulings denying substitute counsel and withdrawal of his plea, defendant asserts that "[t]he judgment must be reversed because there was not a factual basis for the pleas. There was no evidence of the use of force, violence, duress, menace, or fear of immediately bodily injury to sustain the convictions for violating section 288, subdivision (b)(1)" as to victims R. and V. Defendant acknowledges that there was evidence of force used against A.
We have requested and obtained supplemental briefing on the question whether a criminal defendant can create an appellate issue by disputing what he previously conceded, that there is a factual basis for his pleas, without also seeking to set aside his concession as mistaken. We will explain that defendant is estopped from making this argument.
The Attorney General concedes defendant's other points, that the fine at the time of defendant's crimes was $300 and that the penalty assessment must be reduced proportionally and further to eliminate ex post facto components. For the reasons stated below, we will reduce the fine to $300 and the penalties to $675 and affirm the judgment as so modified.
Defendant was born in October 1958. In 2008 he was six feet tall and weighed 195 pounds. In 2008, R., A., and V. made statements to San Jose police officers, and, on June 29, 2009, they testified at a preliminary examination as follows.
According to R., who was born in 1991, he had a three- to four-year sexual relationship with defendant that began when R. was six years old. R.'s mother met defendant in Alcoholics Anonymous. Defendant ended up moving into their apartment for a month or two, and then he moved into an apartment in a neighboring complex.
R. got into a routine of visiting defendant's apartment after school about four days a week where they watched television, ate, and played games on the computer. Defendant took him shopping and bought him what he wanted, a skateboard, a bicycle, and shoes. Defendant helped him build a skateboard ramp. Defendant had a lot of tools that R. played with.
Living in the same apartment complex as R. were two brothers, V., born in 1988, and A., born in 1990. R. befriended them and introduced them to defendant. They often visited defendant along with R. A. and V. recalled defendant taking them swimming and occasionally to the movies. Defendant bought them toys, including water guns, Legos, and remote control race cars.
Defendant showed R. nude cartoon pictures showing sexual positions on his computer. Sometimes all three boys looked at these pornographic pictures together. V. remembered looking at "adult" websites on defendant's computer. A. remembered that defendant showed them porn websites where naked people were having sex.
Defendant had magazines of naked people in his bedroom. The only picture R. remembered showed a naked family, including young children.
Defendant's touching of R. was not forceful in any way. He initiated physical contact very gradually, touching him to see how R. would react. R. did not physically resist him or say no. R. just sat there and let defendant do what he wanted.
Eventually, after about a month of visits, it became part of their routine for defendant to take R. into defendant's bedroom, pull R.'s pants and underwear down or off, sit him on the bed, grab his penis and masturbate him, kneel in front of him, and orally copulate him. Sometimes defendant's pants were unzipped and he touched his own erect penis.*fn4 After R. ejaculated in defendant's mouth, defendant stopped and they went back to watching TV or whatever else they were doing. Sometimes defendant just masturbated R. Once defendant had R. put his mouth on defendant's penis when defendant was masturbating. R. stopped when he tasted something.
On one occasion, defendant had R., A., and V. in his bedroom together. R. recalled that defendant removed all their pants and orally copulated each boy. R. was eight years old at the time. R. recalled that this happened six times. R. recalled that on two occasions defendant watched as the three boys orally copulated each other.*fn5
A. also recalled defendant orally copulating A., R., and V. together in defendant's bedroom. A. felt weird and did not know if it was right or wrong. Defendant did not threaten him. Defendant was bigger and strong and "[h]e might have" used his size or strength to get A. to do what he wanted. He "[m]aybe" held his waist. "I think he was holding my leg" with one hand. A. and R. grabbed defendant's erect penis when he told them to. Defendant's pants were down. Afterwards, defendant told A. that it was okay.
As V. remembered, all the boys were lying on the bed under the sheets, so he could not be sure what defendant was doing to the other boys, but he orally copulated V. V. was panicked and did not know what to think or how to react. He did not physically resist. Defendant did not threaten him or say anything about keeping it a secret. V. remembered it only happening once.
A. recalled that, about two weeks after this incident, defendant orally copulated him and R. in defendant's living room. That was A.'s last sexual encounter with defendant. A. continued to visit defendant, although not as frequently.
According to R., brothers A. and V. moved away when he was nine years old (which would have been in 2000). According to A., his family lived in those apartments when he was six to eight years old (which would have been 1996 through 1998). The father of A. and V. told the police that they moved from San Jose in 1998. V. could not recall whether he met defendant when he was 9, 10, 11, 12, or 13 (spanning the years 1997 through 2001).
The sexual encounters with R. continued until R. turned 10 in 2001, when defendant started spending more time with a younger boy.
Defendant did not threaten R. about cooperating or say he would withhold gifts, such as a skateboard. Defendant did not say anything about keeping it secret. R. was not afraid of defendant, but he was afraid of his mother finding out. He was afraid of her reaction and felt that he had done something wrong, because he kept going back when he could have stopped. R. told a police officer that he ...