California Court of Appeals, Third District, San Joaquin
APPEAL from a judgment of the Superior Court of San Joaquin County No. MF032652A, William D. Johnson, Judge.
[Copyrighted Material Omitted]
Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant molested his nieces over a period of several years. Convicted of discrete sexual offenses as well as one count of continuous sexual abuse (Pen. Code, § 288.5, subd. (a); unspecified code references later in the opinion are to the Penal Code) and sentenced to both determinate and indeterminate terms for his crimes, defendant appeals. He contends that (1) he was illegally convicted of a discrete sexual offense against one of the victims which occurred during the same time period as was alleged for the continuous sexual abuse; (2) he was denied effective assistance of counsel on the overlapping time periods issue; (3) the trial court abused its discretion by admitting sexually explicit text messages and photographs that defendant sent to one of the victims; and (4) the court improperly calculated presentence custody and conduct credits.
We conclude that (1) because he failed to demur to the information, defendant forfeited the issue of whether he was illegally convicted of a discrete sexual offense which occurred during the same time period as was alleged for the continuous sexual abuse; (2) he was not denied effective assistance of counsel because it is not reasonably probable defendant would
have obtained a better result if defense counsel had demurred to the information; (3) the trial court did not abuse its discretion by admitting the text messages and photographs; and (4) the record supports the trial court’s award of presentence custody credits but the court erred by failing to award presentence conduct credits. We therefore modify the judgment to award presentence conduct credits and affirmed the judgment as modified.
Because defendant does not challenge the sufficiency of the evidence, only a brief summary of the facts is necessary.
Defendant molested his nieces, C. (born in 1989) and B. (born in 1988), when the victims made regular visits to their grandparents in Manteca.
In 2002, when C. was approximately 13 years old, defendant molested her in the car on the way to Manteca for one of these visits. He forced her to touch his penis with her hand, and he rubbed her vagina with his hand. That night, at defendant’s house, C. felt defendant touching her vagina with his hand. He eventually got on top of her and put his penis in her vagina. In October 2009, defendant called C., who was living in Alabama, and apologized for all the things he did. After they hung up, defendant sent C. sexually explicit text messages and photographs.
When B. was about 11 years old, defendant rubbed his hand up her leg and then under her underwear. After that incident, defendant touched her by rubbing her leg and then touching her vagina during many of her visits to her grandparents’ or defendant’s house until she was 17 or 18 years old. Once when B. was in high school, defendant rubbed B.’s vagina with his foot and massaged his penis against her bare feet while they were at his house. When B. was 18 or 19 years old (sometime between 2006 and 2008), defendant called and apologized for touching her and said that he did it because he found her attractive. He also asked her if she wanted to be in a pornographic video with him.
Defendant was convicted by jury of the following crimes, with the associated sentence:
Count 1: lewd conduct (§ 288, subd. (a)) on B. – a consecutive indeterminate term of 15 years to life.
Count 2: continuous sexual abuse (§ 288.5, subd. (a)) on B. – a consecutive determinate upper term of 16 years.
Count 3: no conviction.
Count 4: lewd conduct (§ 288, subd. (a)) on C. – a consecutive indeterminate term of 15 years to life.
Count 5: lewd conduct (§ 288, subd. (a)) on C. – a consecutive determinate term of two years (one-third of the middle term).
Count 6: aggravated sexual assault on a child (§ 269) on C. – a base indeterminate term of 15 years to life.
Count 7: lewd conduct (§ 288, subd. (a)) on C. – a consecutive determinate term of two years (one-third of the middle term).
The jury also found true multiple-victim allegations on counts 1, 4, 5, and 7. (§ 667.61, former subd. (e)(5).)
The aggregate sentence was a determinate term of 20 years, followed by three consecutive ...