P. v. Hazelton

Filed 3/22/07 P. v. Hazelton CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Ralph L. Putnam, Judge.

Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E. Lebel, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant, Arthur Henry Hazelton, Jr., of two counts each of aggravated sexual assault on a child under the age of 14 who is 10 or more years younger -- sodomy (counts 1 & 8/Pen. Code, 269, subd. (a)(3)),^[1]aggravated sexual assault of a child under the age of 14 who is 10 or more years younger -- oral copulation (counts 2 & 9/ 269, subd. (a)(4)), sodomy of a child under the age of 14 who is 10 or more years younger (counts 5 & 12/ 286, subd. (c)(1)), oral copulation of a child under the age of 14 who is 10 or more years younger (counts 6 & 13/ 288a, subd. (c)(1)), and four counts of lewd and lascivious conduct with a child under the age of 14 (counts 3, 4, 10 & 11/ 288, subd. (a)). In a separate proceeding, Hazelton admitted a serious felony enhancement ( 667, subd. (a)), a prior prison term enhancement ( 667.5, subd. (b)),

and allegations that he had a prior conviction within the meaning of the three strikes law ( 667, subds. (b)-(i)).

On April 28, 2006, the court sentenced Hazelton to an aggregate indeterminate term of 120 years to life, and an aggregate determinate term of 46 years.

On appeal, Hazelton contends: 1) his convictions in counts 5, 6, 12, and 13 must be reversed because the underlying offenses are lesser included offenses of the offenses he was convicted of in counts 1, 2, 8, and 9; and 2) his abstract of judgment contains certain errors. We will find merit to these contentions. In all other respects, we will affirm.

FACTS

In July 2005, Hazelton lived with his wife, Nancy, their daughter R., who was then nine years old, and their son, who was then 11 years old. On July 2, 2005, R. told her mother that Hazelton had been molesting her. At trial, the prosecution evidence established that Hazelton had been molesting R. on a regular basis since she was five years old. Many of the molestations involved Hazelton getting into R.s bed at night, taking her clothes off, and touching his penis to her bottom. Sometimes, this occurred in other parts of the house when Nancy was not home. Other times, Hazelton had R. orally copulate him. R. was eight years old the last time Hazelton molested her. On that occasion, Hazelton took R. into his room and rubbed his penis against R.s bottom until he ejaculated.

On October 10, 2005, Nancy visited Hazelton in jail. During the visit, Hazelton showed Nancy three pieces of paper where Hazelton had written what he wanted Nancy to do, including writing a letter saying she had lied about the molestation allegations. Nancy subsequently wrote a letter to Hazelton telling him that she lied about these allegations. However, she also wrote a second letter advising Hazelton that she would not lie for him and at trial she testified that she never told R. to make up the molestation allegations against Hazelton.

Nancys father, Jose, testified that one night he looked into R.s bedroom and saw Hazelton with his pants down lying on R.s back. Jose took R. to sleep with his wife. The following day he reported the incident to Nancy.

Hazelton testified that he never molested R. or asked his wife to write a letter claiming that she made R. accuse him of molesting her.

DISCUSSION

The Alleged Lesser Included Offenses

Hazelton contends that sodomy of a child under the age of 14 years who is 10 or more years younger in violation of section 286, subdivision (c)(1) (the offense he was convicted of in counts 5 and 12) is a lesser included offense of aggravated sexual assault of a child under the age of 14 who is 10 years younger sodomy, in violation of section 269, subdivision (a)(3) (the offense he was convicted of in counts 1 and 8). Thus, according to Hazelton, his convictions in counts 5 and 12 must be reversed because the offenses he was convicted of in those counts are lesser included offenses of the offenses he was convicted of in counts 1 and 8. Hazelton further contends that oral copulation of a child under the age of 14 who is 10 years younger in violation of section 288a, subdivision (c)(1) (the offense he was convicted of in counts 6 and 13) is a lesser included offense of aggravated assault on a child under the age of 14 who is 10 years younger oral copulation, in violation of section 269, subdivision (a)(4) (the offense he was convicted of in counts 2 and 9). Thus, according to Hazelton, his convictions in counts 6 and 13 must also be reversed because the offenses he was convicted of in those counts are lesser included offenses of the offenses he was convicted of in counts 2 and 9. Respondent contends that the offenses Hazelton was convicted of in counts 5, 6, 12, and 13 are not lesser included offenses of the offenses he was convicted in counts 1, 2, 8, and 9, because his convictions in each of the above counts are based on different acts. Alternatively, respondent contends that the offenses in counts 5, 6, 12 and 13 are not subject to the prohibition against multiple convictions because they are specifically included offenses of the offenses he was convicted of in the other counts at issue. We agree with Hazelton.

Section 954 provides:

An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court; provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. An acquittal of one or more counts shall not be deemed an acquittal of any other count.

In People v. Reed (2006) 38 Cal.4th 1224 (Reed), the California Supreme Court held that, In deciding whether multiple conviction is proper, a court should consider only the statutory elements. Or, as formulated in [People v. Scheidt (1991) 231 Cal.App.3d 162, 165-166], only a statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding. An offense that may be a lesser included offense because of the specific nature of the accusatory pleading is not subject to the same bar. [Citation.] (Reed, supra, 38 Cal.4th at p. 1229.)

Section 286, subdivision (c)(1) provides:

Any person who participates in an act of sodomy with another person who is under 14 years of age and more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years.

Section 288a, subdivision (c)(1) provides:

Any person who participates in an act of oral copulation with another person who is under 14 years of age and more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years.

When Hazelton committed the underlying offenses, section 269 provided:^[2]

(a) Any person who commits any of the following acts upon a child who is under 14 years of age and 10 or more years younger than the person is guilty of aggravated sexual assault of a child:

(1) A violation of paragraph (2) of subdivision (a) of Section 261.

(2) A violation of Section 264.1.

(3) Sodomy, in violation of Section 286, when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.

(4) Oral copulation, in violation of Section 288a, when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.

(5) A violation of subdivision (a) of Section 289.

(b) Any person who violates this section is guilty of a felony and shall be punished by imprisonment in the state prison for 15 years to life. (Italics added.)

It is clear from the foregoing statutes that the offenses described by former section 269, subdivision (a)(3) contained all the elements of the offense described in section 286, subdivision (c)(1) and the additional element(s) that the sodomy must be accompanied by one of the circumstances contained in section 269, subdivision (a)(3), i.e., force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. (Italics added.)

Similarly, section 269, subdivision (a)(3) contains the same elements as a violation of section 288a, subdivision (c)(1) and the additional element(s) that the oral copulation must be accompanied by one of the circumstances contained in section 269, subdivision (c)(4).

Further, there is no merit to respondents contention that Hazeltons convictions in counts 5, 6, 12, and 13, are based on different acts than his convictions in counts 1, 2, 8, and 9. At Hazeltons sentencing hearing, pursuant to section 654,^[3]the court stayed the terms it imposed on counts 5, 6, 12, and 13 because counts 5 and 12 were reasonably related to counts 1 and 8 and counts 6 and 13 were reasonably related to counts 2 and 9. Moreover, during closing argument the prosecutor did not argue that counts 5 and 12 were based on different conduct than counts 1 and 8 or that counts 6 and 13 were based on different conduct than counts 2 and 9. Instead, he conceded that some of the charges are actually [based on] the same conduct[.]

We also reject respondents contention that the offenses Hazelton was convicted of in counts 5, 6, 12, and 13, are specifically included offenses of the offenses he was convicted of in counts 1, 2, 8, and 9, to which the rule against multiple convictions does not apply. (See People v. Pearson (1986) 42 Cal.3d 351, 356-358.) According to respondent, the sodomy offenses Hazelton was convicted of in counts 5 and 12 are specifically included offenses of the sodomy offenses he was convicted of in counts 1 and 8, because sodomy is only one of several alternative ways by which to commit a violation of section 269. Similarly, respondent contends that the oral copulation offenses he was convicted of in counts 6 and 13 are specifically included offenses of the offenses he was convicted of in counts 2 and 9, because oral copulation is only one of several alternative ways by which to commit the offenses described in section 269. Respondent is wrong. Although section 269 provides various ways that it can be violated, when Hazelton committed the underlying offenses, neither subdivision (a)(3) nor subdivision (a)(4) of this section provided for alternative ways that each subdivision could be violated. Accordingly, we conclude that the offenses Hazelton was convicted of in counts 5, 6, 12, and 13, are lesser included offenses of the offenses he was convicted of in counts 1, 2, 8, and 9, respectively.

Hazeltons Abstract of Judgment

At sentencing, the court imposed the middle term of six years on counts 3, 4, 10, and 11. Hazelton contends that the clerks minute order for his sentencing hearing and his abstract of judgment erroneously indicate that the court imposed the lower term on these counts.^[4] Respondent concedes and we agree. Accordingly, we will direct the trial court to correct these errors.

DISPOSITION

Hazeltons convictions in counts 5, 6, 12, and 13 are reversed. The trial court is directed to issue an amended abstract of judgment that is consistent with this opinion and which indicates that the court imposed the middle term on counts 3, 4, 10, and 11, and to forward a certified copy to the Department of Corrections and Rehabilitation. The trial court is also directed to correct the clerks minute order for Hazeltons sentencing hearing to indicate that the court sentenced him to the middle term on counts 3, 4, 10, and 11. In all other respects, the judgment is affirmed.

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^*Before Wiseman, Acting P.J., Levy, J., and Dawson, J.

^[1] All further statutory references are to the Penal Code, unless otherwise indicated.

^[2] Section 269 was amended effective September 16, 2006, to make numerous substantive changes, including requiring the victim to be only seven or more years younger than the perpetrator. (Stats. 2006, ch. 337.)

^[3] Section 654, subdivision (a), in pertinent part, provides: An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . .

^[4] Hazelton also contends that although the court imposed middle terms on counts 5, 6, 12, and 13, the clerks minute order and his abstract of judgment erroneously indicate that the court imposed the lower term on these counts. This contention is moot in light of the conclusion that offenses in those counts are lesser included offenses of the offenses charged in counts 1, 2, 8, and 9, which requires reversal of Hazeltons conviction in counts 5, 6, 12, and 13.