Filed 1/26/18 P. v. Maxfield CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

MEMORANDUM OPINION[1]

Defendant Antonio Maxfield appeals a judgment entered upon a jury verdict finding him guilty of two counts of committing a lewd act upon Jane Doe 1, a child aged 14 or 15 years, in 2011 (Pen. Code,[2] § 288, subd. (c)(1), counts one and two) and two counts of committing a lewd act upon Jane Doe 2, a child under the age of 14, in 2008 (§ 288, subd. (a), counts three and four). The trial court sentenced defendant to a term of six years for count three, a consecutive two-year term for count four, and consecutive eight-month terms for counts one and two, for a total term of nine years and four months. Defendant’s sole challenge on appeal is to the trial court’s imposition of consecutive sentences for counts one and two.

Defendant was a family friend of Jane Doe 1. He was living with her family at the time of the crimes, and he occasionally gave her massages. In April 2011, when Jane Doe 1 was 15 years old, defendant massaged her legs as she sat on the couch. He began with her calves, then massaged her thighs. She was not comfortable with him massaging her thighs, and she tried to sit up more to move the position of his hands. She was wearing loose shorts, and he began rubbing the outside of her vaginal area with his hands. She thought his hands were beneath her underwear. She got up and left the room. In Jane Doe 1’s July, 2014 trial testimony, she did not recall how many times defendant touched her vagina. However, in an interview given in June 2012, Jane Doe 1 said defendant touched the outside of her vagina, under her clothes, and his hand remained there for a couple of seconds. She “jumped up from it,” startled. He tried to massage her thigh again, and she asked him to massage her calf or foot. He agreed, but then moved his hands up her leg again and touched the outside of her vaginal area a second time.

Defendant was convicted of two counts of lewd conduct based on this incident. In imposing consecutive sentences for all four counts, including those based on the crimes committed against Jane Doe 2 in 2008, the trial court cited People v. Perez (1979) 23 Cal.3d 545, 551-554 (Perez), which held that section 654 did not preclude separate punishment for multiple sex offenses committed against a single victim on a single occasion. The court stated that Perez “analogizes the idea that sentencing in a case such a[s] this should be concurrent to the idea that a person who commits a series of separate theft offenses should be sentenced to concurrent sentences because the motivating force for the theft offenses was to accumulate wealth. Similarly, to impose a concurrent sentence in this matter would be in Perez’[s] words, to reward the defendant for having greater criminal ambitions than someone who committed fewer offenses. Perez states at [page] 553, ‘The defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act.’ ” The court continued: “So were I to impose a concurrent sentence and to impose a sentence that defense counsel is requesting, would be to virtually ignore most of what the criminal conduct of the defendant was. I’m not going to do that. I think it’s clear that each of the crimes in this case were committed at a different time and separate place. They weren’t committed so closely in time or place as to indicate a single period of abhorrent behavior. And I believe the crimes and objectives were predominantly independent of each other.”

Defendant challenges the imposition of consecutive sentences on the two counts related to Jane Doe 1. He contends the trial court’s stated reasons were factually incorrect—that is, that the offenses did not take place “at a different time and separate place,” did not establish the crimes “weren’t committed so closely in time or place as to indicate a single period of abhorrent behavior,” and did not show the crimes were independent of each other. He argues the trial court mistakenly concluded, based on Perez, that consecutive sentences must be imposed when a defendant commits multiple sexual crimes against a victim.

Defendant did not raise this issue below and has therefore forfeited it. (People v. Scott (1994) 9 Cal.4th 331, 356.) In any case, we would reject this contention on the merits. It is well established that a defendant may be punished with separate, consecutive sentences for multiple sexual acts against a victim, even where closely connected in time. (People v. Hicks (1993) 6 Cal.4th 784, 788, fn. 4; Perez, supra, 23 Cal.3d at pp. 551-554; People v. Harrison (1989) 48 Cal.3d 321, 338 [“[T]here is no legal or logical bar to separate punishment where, as here, each of defendant’s ‘repenetrations’ was clearly volitional, criminal and occasioned by separate acts of force”].) The transcript makes clear the trial court was aware of Perez and understood its reasoning. There is no reason to conclude the court mistook the scope of its discretion, that it believed it was compelled to impose consecutive sentences, or that it was under any misapprehension about the time, place, or manner in which the various offenses occurred.

DISPOSITION

The judgment is affirmed.

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Rivera, J.*

We concur:

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Ruvolo, P.J.

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Streeter, J.