P. v. Lettner

Filed 6/26/08 P. v. Lettner CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Tehama)

Defendant Raymond Lettner pled guilty to one count of substantial sexual conduct with a child under the age of 14 in violation of Penal Code section 288.5, subdivision (a), and five counts of committing a lewd act upon a child in violation of section 288, subdivision (a).^[1] He argues the record does not provide an adequate factual basis for the plea, and that the matter should be remanded to the trial court to determine if such a factual basis exists and to allow him to withdraw his plea. He further argues an amendment to the information after his guilty plea violated his right against double jeopardy. Finally, he argues the abstract of judgment must be corrected to specify the fines and fees ordered by the trial court at the sentencing hearing. We shall affirm the judgment, but order the abstract corrected.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts are summarized from the probation report, which information was derived from the Red Bluff Police Department report number 261399.

The victim was defendants 12-year-old stepdaughter. She indicated the defendant had sex with her on four different occasions when her mother had been at work. She stated the first time had been in November 2005, near Thanksgiving. The second incident occurred prior to the victims Christmas vacation from school, approximately three weeks later. The third incident occurred before the end of Christmas vacation, in late December or early January. The fourth incident was in mid-April 2006, just before Easter.

Defendant forced the victim against her will, and threatened to harm her family if she told anyone about the encounters.

Defendant admitted to having sexual intercourse with the victim on three occasions beginning in November 2005, and ending February 2006. Additionally, he admitted the victim orally copulated him at least five times and he rubbed his fingers on her vagina two to three times between November 2005 and February 2006.

When questioned about the oral copulation and digital penetration, the victim denied these allegations, but was hesitant and pensive in her denial.

The original complaint against defendant alleged four counts of aggravated sexual assault of a child, each count carrying a sentence of 15 years to life. The negotiated plea resulted in an amended information in which the charges were changed to one count of continuous sexual abuse of a child and five counts of lewd acts upon a child, the maximum possible sentence being 26 years.^[2] The same day the amended information was filed, defendant pled guilty to all charges.

At the plea hearing, both parties stipulated that the factual basis for the plea was the report from Red Bluff City Police Department case number 261399.

At the sentencing hearing, the court stated that the People had amended count one of the information. As amended, the information alleged defendant unlawfully engaged in three and more acts of substantial sexual conduct between October 1, 2005, through January 1, 2006. Previously, it was alleged the acts of substantial sexual conduct occurred between November 1, 2005, and January 1, 2006.^[3]

The trial court explained to defendant that the People were seeking to change the allegation date in count one, but that the maximum penalty would be exactly the same. The court asked, Sir, with that in mind, are you still pleading guilty to Count 1? Defendant replied, Yes. The court then sentenced defendant to the mid-term of 12 years on count one, plus one-third the mid-term, consecutive, for each of the remaining five counts, for a total of 22 years.

DISCUSSION

I

Factual Basis Existed for the Plea

Defendant argues the trial court did not satisfy itself there was a factual basis for the plea, in violation of section 1192.5. That section provides in pertinent part that the trial court shall cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea.

In this case the parties stipulated that the police report was the factual basis for the plea, and referenced the report by number. In this respect, the case before us differs from a case previously decided by this court and cited by defendant, People v. Willard (2007) 154 Cal.App.4th 1329. In Willard, we held a general stipulation that there was a factual basis for the plea without any reference to a document containing factual allegations was insufficient. (Id. at pp. 1334-1335.) Here, the stipulation referenced the police report, and such reference complies with the requirement set forth by the Supreme Court that where counsel stipulate to a factual basis, they may stipulate to a particular document that provides an adequate factual basis, such as a complaint, police report, preliminary hearing transcript, probation report, grand jury transcript, or written plea agreement. (People v. Holmes (2004) 32 Cal.4th 432, 442, italics added.)

Defendant further asserts that the particular document serving as the factual basis for the plea must be before the court when it accepts the stipulation. It is not clear from the record whether the trial court reviewed the police report prior to accepting defendants plea. The police report is not a part of the appellate record, although the information contained in the probation report was derived from the police report.

The cases defendant cites in support of this assertion are all distinguishable. In People v. Tigner (1982) 133 Cal.App.3d 430, 433, the court noted that there were no documents before the court upon which it could have relied to find a factual basis, but in that case there was no stipulation to a factual basis, rather the trial court merely stated that there was a factual basis for the plea. There was not, as here, a stipulation of a factual basis referencing a numbered police report.

Willard, supra, is distinguishable because like People v. Tigner, supra, the parties gave only a general stipulation without reference to any document. (Willard, supra, 154 Cal.App.4th at p. 1334.)

Finally, People v. Enright (1982) 132 Cal.App.3d 631, also cited by defendant, actually supports the judgment here. In that case the parties stipulated that the police reports could be considered as the factual basis for the plea. (Id. at p. 634.) The court stated that the fact that the record did not show the trial court specifically considered the reports was of no moment because the record failed to establish the trial court did not consider the reports. (Ibid.) Here, too, the record does not establish that the trial court did not consider the referenced police report.

However, even if the trial court did not see a copy of the report prior to accepting the plea, the probation report supplied a sufficient factual basis for the plea. The probation report stated that it was derived from the same police report to which the parties stipulated. Defendant argues the probation report may not have been an accurate summary of the police report. However, defendant has made no showing that the probation report is inaccurate in any material respect. It is defendants burden to demonstrate error on appeal. (People v. Foss (2007) 155 Cal.App.4th 113, 126.)

Even though the probation report had not been prepared at the time the trial court accepted the plea, the courts approval at that time was conditional. The court could have withdrawn its approval at the sentencing hearing upon further consideration, including a finding that the factual basis was inadequate. ( 1192.5.) As stated, the Supreme Court in Holmes, supra, included probation reports in the list of particular documents to which defense counsel may stipulate. Because probation reports are generally not prepared until after a conditional plea is entered, the Supreme Courts approval of probation reports for this purpose suggests that the probation report may be used by the trial court to determine the adequacy of the factual basis subsequent to the initial acceptance of the plea.

II

Factual Basis Existed for Amended Count I

For this reason we also reject defendants argument that his renewed guilty plea to count 1 after that count was amended to expand the dates of the offense was accepted without any determination of a factual basis for the amended charge. The plea to the amended count was taken after the trial court had reviewed the probation report, which referenced the police report to which the parties stipulated.

Defendant argues the police report, a summary of which is before us in the probation report, does not support his guilty plea to count 1 as amended. Defendant argues nothing in the report established that the first incident occurred in October 2005, as the count was amended to allege. We disagree.

Section 288.5, subdivision (a) provides in pertinent part: Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child . . . . The conduct necessary to show a violation of the statute thus includes any touching of the body with the specific intent of arousing, appealing to, or gratifying the lust of the child or the accused. (People v. Raley (1992) 2 Cal.4th 870, 907.)

Here, the victim claimed the first incident occurred in November 2005. Defendant admitted sexual intercourse beginning in November 2005, but also admitted the incidents started with the victim nibbling on his ear . . . and sitting on his leg grinding on him while they were home alone. He stated this occurred six or seven times. He also admitted this excited him. The clear implication of his admission that the sexual intercourse started with these incidents, was that these incidents occurred prior to the sexual intercourse, which started in November. A single occurrence in October was sufficient to provide a factual basis.

[T]he prosecution need not prove the exact dates of the predicate sexual offenses [under section 288.5] in order to satisfy the three-month element. Rather, it must adduce sufficient evidence to support a reasonable inference that at least three months elapsed between the first and third sexual acts. (People v. Mejia (2007) 155 Cal.App.4th 86, 97.) The facts need only show that the acts were committed within the applicable time period. (Ibid.) The probation report supports an inference that lewd and lascivious acts began before the sexual intercourse began in November. Therefore, there is a factual basis that there was continuous sexual abuse beginning in October 2005.

III

No Violation of Double Jeopardy

The federal and California Constitutions prohibit placing a person twice in jeopardy for the same offense. No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . ." (U.S. Const., 5th Amend.) Persons may not twice be put in jeopardy for the same offense

. . . ." (Cal. Const., art I, 15.) Defendant argues his guilty plea to the amended information violated his right against double jeopardy. He reasons that the protection against double jeopardy protects against a second prosecution after conviction for the same offense, that a guilty plea equals a conviction, and that therefore his guilty plea to the amendment was a second conviction for the same offense. We disagree.

This case is controlled by People v. Thomas (1994) 25 Cal.App.4th 921. In Thomas, the defendant entered into a negotiated plea agreement whereby he pleaded guilty to driving with a .08 percent or greater blood-alcohol level and admitted to prior DUI convictions. (Id. at p. 924.) The trial court accepted the plea. (Ibid.) However, in the course of sentencing the defendant, the court discovered he had suffered three prior DUI convictions, rather than two. (Ibid.) The court vacated the defendants plea, and he was thereafter convicted of felony drunk driving. (Id. at p. 923.)

On appeal Thomas raised a double jeopardy challenge. The court rejected this challenge. It recognized that [j]eopardy attaches, and a defendant is deemed to have been placed on trial, upon a regular entry of a plea of guilty . . . . and that [i]t has been held that a guilty plea is equivalent to a conviction and, if allowed to stand, it bars a subsequent prosecution for the same offense, and a plea of former conviction is good [citations]. (Id. at p. 926.) However,
[i]n taking a guilty plea and approving a negotiated disposition, the trial court retains the inherent power to withdraw its approval at the time of sentencing. (Id. at p.925.)

If the guilty plea does not stand, it does not bar a subsequent prosecution. In this case, defendant agreed to plead guilty to the amended information, so that the plea to the original information did not stand, but it was replaced by the second plea. Defendant argues the trial court never withdrew its approval of the first guilty plea, nor did the prosecutor ever withdraw the states acceptance of the plea. However, by allowing the amendment, and accepting the plea of guilty to the amended count, there was an effective withdrawal of approval on the part of the court and a withdrawal of acceptance on the part of the prosecutor to the original plea. To hold anything else would be to elevate form over substance.

The concern behind the double jeopardy protection is that
the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. [Citations.]" (Bryan v. Superior Court (1972) 7 Cal.3d 575, 581.) Nor may the government be given the opportunity to rehearse its prosecution, honing its trial strategies and perfecting its evidence through successive attempts at conviction . . . . (United States v. Dixon (1993) 509 U.S. 688, 747 [125 L.Ed.2d 556, 601] (conc. & dis. opn. of Souter, J.).)
Nevertheless, [c]ourts have disparaged rigid, mechanical rules in the interpretation of the Double Jeopardy Clause. [Citation.] [Citation.] The exaltation of form over substance is to be avoided. [Citation.] The standards for determining when a double jeopardy violation has occurred are not to be applied mechanically. [Citations.] (People v. Saunders (1993) 5 Cal.4th 580, 593.) The evils against which the double jeopardy clause is directed are not present here, and we would be exalting form over substance to find a violation under the circumstances of this case.

IV

Abstract of Judgment

Defendant argues the abstract of judgment must be corrected to specify the fines and fees ordered by the court. We are satisfied that the fines and fees imposed are correct, and defendant does not seriously contest the amount of the fines. However, we will order the abstract corrected to specify the amount of each fine and fee as required by People v. High (2004) 119 Cal.App.4th 1192, 1200.

The fines and fees are specified in the probation report at page 57 of the clerks transcript. The correction relates only to the lump sums of $4,320 and $3,620 listed in section 11 of the abstract of judgment under the heading other orders. The breakdown is as follows: As to each of the six counts, pay $720 for a total of $4,320 as follows: a fine per 290.3 in the amount of $200, plus a $40 surcharge per 1465.7, subdivision (a), plus a $100 State Court facilities fee per Government Code section 70372, plus a $200 state penalty assessment per 1464, plus a $140 county penalty assessment per Government Code section 76000, plus a $20 DNA Identification Fund fee per Government Code section 76104.6, plus a $20 DNA Identification Fund fee per Government Code section 76104.7, for a total of $4,320.

As to Count 1, $3,620 as follows: Pay a $1,000 Child Abuse Prevention Fund fine per 294, subdivision (a), plus a $200 Court surcharge per section 1465.7, subdivision (a), plus a $500 State Court facilities construction fund per Government Code section 70372, plus a $1,000 state penalty assessment per section 1464, plus a $700 county penalty assessment per Government Code section 76000, plus a $100 DNA Identification Fund fee per Government Code section 76104.6, plus a $100 DNA Identification Fund per Government Code section 76104.7, plus a $20 collection fee per section 294, subdivision (d) for a total of $3,620.

DISPOSITION

The superior court is directed to correct the abstract of judgment consistent with the views expressed in section IV herein. In all other respects, the judgment is affirmed.

BLEASE , Acting P. J.

We concur:

MORRISON , J.

HULL, J.

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^[1] References to an undesignated section are to the Penal Code.

^[2] The parties mistakenly believed the maximum penalty was 26 years pursuant to the sentencing scheme set forth in section 1170.1. In fact, as they discovered after the probation report was prepared, defendant was eligible for sentencing pursuant to section 667.6, subdivision (c), resulting in a maximum sentence of 32 years. The parties agreed to abide by the terms of the plea form, and defendant was sentenced pursuant to section 1170.1.

^[3] Section 288.5, subdivision (a) provides: Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years. (Italics added.)