P. v. Graham

Filed 8/17/07 P. v. Graham CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Antonio Graham entered a negotiated plea of no contest to 15 sex offenses perpetrated against three victims. He agreed to a maximum sentence of eight years. The trial court ordered defendant to register as a sex offender under the mandatory requirement set forth in Penal Code section 290, subdivision (a)(1)(A),[1] and sentenced him to five years and eight months. It calculated the sentence as follows: three years for unlawful sexual intercourse with a minor under age 16 (count 2, victim K. Doe); eight months consecutive for oral copulation with a minor (count 4, victim K. Doe); eight months consecutive for unlawful sexual intercourse with a minor more than three years younger (count 9, victim E. Doe); eight months consecutive for unlawful sexual intercourse with a minor more than three years younger (count 11, victim M. Doe); eight months consecutive for recording confidential communications (count 15, victim M. Doe).[2] It imposed concurrent sentences on the remaining counts. On appeal, defendant contends that (1) he received ineffective assistance of counsel because trial counsel failed to object to the trial courts reason for imposing the consecutive sentence for count 15, (2) the sentences for counts 7 and 14 (using a minor to model in sexual conduct, victims K. Doe & M. Doe) and 15 constitute improper multiple punishment ( 654), and (3) the mandatory aspect of the order to register denied him equal protection of the law (People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier)). We affirm the judgment.

background

Defendant was 26 years old when he began a sexual relationship with 16-year-old E. Doe that lasted from November 2002 until April 2004. He began another sexual relationship with 15-year-old K. Doe in August 2003. With K. Does knowledge, he videotaped the two of them having sex. He began a third sexual relationship with 17-year-old M. Doe in June 2005. Without M. Does knowledge, he videotaped the two of them having sex. Defendant met the three victims while working as the director of the Palo Alto Fire Department Explorers and EMS Volunteer program. The victims were Explorers. According to M. Doe, defendant was a close friend and father figure to her and she believed [that] defendant truly cared about her.

At sentencing, the trial court overruled defendants objection to mandatory sex-offender registration and then explained: I am imposing these sentences consecutively because of the fact that they involved separate victims, except for Counts 2 and 4, which occurred on separate occasions. Im also doing that because of the fact that the defendant engaged in unprotected sex with the victims on many occasions. [] And with respect to Count 15, Im imposing that consecutively because I believe it was a gross invasion of privacy to tape these acts without the consent of at least one of the victims.

ineffective assistance of counsel

Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) That right entitles the defendant not to some bare assistance but rather to effective assistance. (Ibid.)

To establish constitutionally inadequate representation, a defendant must demonstrate that (1) counsels representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsels representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsels failings, the result would have been more favorable to the defendant. (People v. Mitcham (1992) 1 Cal.4th 1027, 1058; see Strickland v. Washington (1984) 466 U.S. 668, 687-696.) When a defendant on appeal makes a claim that his counsel was ineffective, the appellate court must consider whether the record contains any explanation for the challenged aspects of representation provided by counsel. If the record sheds no light on why counsel acted or failed to act in the manner challenged, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, [citation], the contention must be rejected. (People v. Samayoa (1997) 15 Cal.4th 795, 845.)

Defendant bears a burden that is difficult to carry on direct appeal. (People v. Lucas (1995) 12 Cal.4th 415, 436.) Our review is highly deferential; we must make every effort to avoid the distorting effects of hindsight and to evaluate the challenged conduct from counsels perspective at the time. (In re Jones (1996) 13 Cal.4th 552, 561; Strickland v. Washington, supra, 466 U.S. at p. 689.) A court must indulge a strong presumption that counsels acts were within the wide range of reasonable professional assistance. (Strickland v. Washington, supra, 466 U.S. at p. 689; People v. Hart (1999) 20 Cal.4th 546.) The burden is to establish the claim not as a matter of speculation but as a matter of demonstrable reality. (People v. Garrison (1966) 246 Cal.App.2d 343, 356.) As to the failure to object in particular, [a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel. (People v. Kelly (1992) 1 Cal.4th 495, 540.)

An appellate court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . , that course should be followed. (Strickland v. Washington, supra, 466 U.S. at p. 697.) Therefore, if the defendant does not show that he or she was prejudiced by the purported deficient performance of counsel, the claim can be rejected without deciding whether counsels performance was actually deficient under the Strickland standard. As to the prejudice prong, [t]he United States Supreme Court [has] explained that this second prong of the Strickland test is not solely one of outcome determination. Instead, the question is whether counsels deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. (In re Harris (1993) 5 Cal.4th 813, 833.) A defendant must prove prejudice that is a demonstrable reality, not simply speculation. (People v. Williams (1988) 44 Cal.3d 883, 937.)

Defendant argues that the trial courts reason for imposing a consecutive sentence for count 15 (gross invasion of privacy) was improper because an invasion of privacy is a de facto element of recording confidential communications. (See Cal. Rules of Court, rule 4.425(b)(3).) He implicitly contends that there was no reason for counsels failure to object to the sentence for count 15 (victim M. Doe) being run consecutively to the sentence for count 11 (victim M. Doe). Defendant fails to carry his burden on appeal.

Criteria affecting the decision to impose consecutive rather than concurrent sentences include the factors articulated in California Rules of Court, rule 4.425, and, via incorporation, rule 4.421. The trial court needs only one reason to impose consecutive sentences. (People v. Bishop (1984) 158 Cal.App.3d 373, 382-383.)

The probation report listed the aggravating factor that defendant took advantage of a position of trust or confidence to commit the offenses. (Cal. Rules of Court, rule 4.421(a)(11).) It also mentioned that defendant had engaged M. Doe in at least two incidents of unprotected sex, and the trial court articulated that defendant had engaged his victims in unprotected sex.[3] Moreover, the factor that The crimes and their objectives were predominantly independent of each other (id., rule 4.425(a)(1)), also applies (unlawful sexual intercourse with M. Doe; videotaping sex acts with M. Doe without M. Does knowledge).[4]

Defendants burden is to convince that there is a reasonable probability that, but for counsels failings, the result would have been more favorable. Here, had counsel objected to the trial courts stated reason for imposing a consecutive sentence on count 15, the trial court could have instead articulated any one or all of the above three factors, factors that indisputably exist. There is therefore no reasonable probability that, had trial counsel objected, the trial court would have imposed a concurrent sentence.

In short, the trial court elected to impose a consecutive sentence and there are at least three reasons upon which it could have, but did not, justified this election. As stated in the harmless-error context, Where sentencing error involves the failure to state reasons for making a particular sentencing choice, including the imposition of consecutive terms, reviewing courts have consistently declined to remand cases where doing so would be an idle act that exalts form over substance because it is not reasonably probable the court would impose a different sentence. (People v. Coelho (2001) 89 Cal.App.4th 861, 889.) The point is equally applicable in the context of showing prejudice from supposed ineffective assistance of counsel.

We add that defendant fails to carry his burden to show deficient performance as a demonstrable reality for the same reason--counsel could have failed to object because objection would have been futile.

section 654

Section 654 states, in pertinent part: An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one . . . . The statute literally applies only where [multiple] punishment arises out of multiple statutory violations produced by the same act or omission. [Citation.] However, . . . its protection has been extended to cases in which there are several offenses committed during a course of conduct deemed to be indivisible in time. [Citation.] [Citations.] [] It is defendants intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.] . . . [I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. (People v. Hicks (1993) 6 Cal.4th 784, 788-789.)

As this court explained in People v. Braz (1997) 57 Cal.App.4th 1, 10, multiple punishment is permissible notwithstanding section 654 if the defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other. [Citation.] A defendants criminal objective is determined from all the circumstances and is primarily a question of fact for the trial court, whose findings will be upheld on appeal if there is any substantial evidence to support it. We must view the evidence in a light most favorable to the respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. McGuire (1993) 14 Cal.App.4th 687, 698.)

Defendant contends that the trial court improperly punished him for the three convictions that involved videotaping the sex offenses (counts 7, 14, and 15) because those counts involved the same objective as the sex-offense counts. He urges that he had only a single criminal goal: To enjoy sexual gratification by engaging in consensual relations with the victims. This analysis is erroneous.

Wrapping up separate acts within a course of illegal sexual conduct under the broad label of sexual gratification is too broad and amorphous to determine applicability of section 654. [Citation.] The purpose of section 654 is to ensure punishment will be commensurate with ones culpability. [Citations.] Allowing such a broad-based objective as sexual gratification to trigger section 654, could reward the wrongdoer who has a greater criminal ambition with a lesser punishment. [Citations.] And, the fact certain acts are proximate in time is not determinate in finding an indivisible course of conduct. Multiple criminal objectives may divide those acts occurring closely together in time. [Citation.] So, convictions for both lewd and lascivious conduct for removal of clothes and rape were judged to be of one objective in accomplishing the rape [citations], while the acts resulting in convictions for lewd and lascivious conduct and oral copulation were ruled to be divisible, not combined within the same criminal objective [citations]. [] Here, [defendants] course of conduct included the forceful taking, forceful movement, and assault, all with the intent to commit rape. On the surface, his intent and objective could broadly be labeled sexual gratification. However, the movement of [the victim], leading to his kidnapping conviction, is an act separate from the assault within the dumpster area. To combine these acts into an indivisible course of conduct under one broad-based objective of [defendants] sexual gratification, would reward him for his greater criminal ambition. The acts resulting in his assault upon [the victim] while in the dumpster, enhanced his culpability over those acts resulting in his kidnapping conviction, which only required he forcefully take and substantially move her with an intent to commit rape. We view his objective in moving [the victim] as separate from his later objective in assaulting her, and, therefore, he may be punished for each of these convictions. (People v. Bradley (1993) 15 Cal.App.4th 1144, 1157-1158; see also People v. Andrus (1990) 226 Cal.App.3d 73, 78-79 [ 667.6, subd. (c), excepts certain sex offenses, including child molestation, from 654 and thus allows consecutive punishment for kidnapping and a sex offense even though the kidnapping was for the purpose of committing the sex offense]; cf. People v. Hicks, supra, 6 Cal.4th at pp. 788-797 [same for burglary committed for the purpose of committing an enumerated sex offense].)

Here, defendants course of conduct included sex acts and videotaping those sex acts. On the surface, his intent and objective could broadly be labeled sexual gratification. However, videotaping is an act separate from a sex offense. Rather than a part and parcel of the sex act and the gratification derived therefrom, the videotaping is more accurately viewed as a memorial of the sex act and the gratification derived therefrom. In other words, defendants conduct implicates two objectives: one, to commit the sex act; and two, to memorialize the sex act. To combine the two acts into an indivisible course of conduct under one broad-based objective of sexual gratification would reward defendant for his greater criminal ambition. We conclude that defendant may be punished for the videotaping convictions.

Hofsheier

Section 290 is a tangle of cross-references, tangents, parentheses, and elaborations. As applicable here, the core of the statute is its declaration that [e]very person described in paragraph (2) . . . shall be required to register as a sex offender. ( 290, subd. (a)(1)(A).) The first subdivision of the cross-referenced paragraph lists code sections whose violation automatically subjects the offender to the registration requirement. (Id., subd. (a)(2)(A).) A later subdivision provides that in cases not subject to mandatory registration, a sentencing court may still impose a registration requirement under certain conditions. (Id., subd. (a)(2)(E).)

As relevant to defendants claim that he was not subject to mandatory registration, defendant pleaded no contest to violating sections 288a (oral copulation, counts 1, 4, 8, 12), 289 (sexual penetration, counts 3, 6, 10, 13), and 311.4 (minor modeling in sexual conduct, counts 7, 14). Sections 288a, 289, and 311.4 subject an offender to mandatory registration. ( 290, subd. (a)(2)(A).)

In Hofsheier, the Supreme Court held that the statutory distinction in section 290 requiring mandatory lifetime registration of all persons who, like defendant here, were convicted of voluntary oral copulation with a minor of the age of 16 or 17 [pursuant to section 288a], but not of someone convicted of voluntary sexual intercourse with a minor of the same age [pursuant to section 261.5], violates the equal protection clauses of the federal and state Constitutions. (Hofsheier, supra,37 Cal.4th at p. 1207.)

Hofsheier unquestionably applies to defendants section 288a convictions concerning 16-year-old E. Doe (count 8), 17-year-old M. Doe (count 12), and K. Doe after she had reached 16 years old (count 4). And the People concede that the reasoning of Hofsheier applies to defendants section 289 convictions concerning E. Doe (count 10), M. Doe (count 13), and then 16-year-old K. Doe (count 6). But they argue that the reasoning of Hofsheier applies neither to defendants convictions under sections 288a and 289 concerning then 15-year-old K. Doe (counts 1, 3) nor to his convictions under section 311.4 (counts 7, 14). Since we agree that the reasoning of Hofsheier does not apply to convictions under section 311.4, we need not address the issue as to sections 288a and 289.

The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. (In re Eric J. (1979) 25 Cal.3d 522, 530.) The equal protection clause does not assure defendant of the same treatment as all other felons; it assures him only . . . that he will receive like treatment with all other persons similarly situated. (People v. Enriquez (1977) 19 Cal.3d 221, 229, disapproved on another point in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.) Neither the Fourteenth Amendment of the Constitution of the United States nor the California Constitution (art. I, 7; art. IV, 16) precludes legislative classification with respect to persons who are different. (People v. Jacobs (1984) 157 Cal.App.3d 797, 802.) What is required is that similarly situated persons with respect to the legitimate purpose of the law receive the same treatment. (Ibid.)

Defendant likens the circumstances of his case to those discussed in Hofsheier. According to defendant, the purpose of section 311.4 is to protect a minor from being exploited by causing the minor to pose or act in a sexual fashion and this purpose is identical to the statute which outlaws consensual sexual intercourse. We disagree.

Again, the issue in Hofsheier was the constitutionality of mandatory sex offender registration for violation of section 288a (oral copulation) in light of the absence of such a requirement for violation of section 261.5 (unlawful sexual intercourse). The court first found that defendants convicted of section 288a, subdivision (b)(1), were similarly situated to those convicted of section 261.5 because both concerned sexual conduct with minors, the only difference being the nature of the sexual act. (Hofsheier, supra, 37 Cal.4th at p. 1200.) Noting that there was no rational basis for the statutory distinction between persons convicted of voluntary oral copulation and those convicted of voluntary sexual intercourse, and finding no plausible rationale or reasonably conceivable factual scenario to justify such a distinction (id. at pp. 1202-1204), the court concluded that the statutory distinction in section 290 requiring lifetime registration by persons convicted of voluntary oral copulation with a minor of the age of 16 or 17 but not requiring the same of someone convicted of voluntary sexual intercourse with a minor of the same age violates the equal protection clauses of the federal and state Constitutions. (Hofsheier, supra, 37 Cal.4th at p. 1207.) The court eliminated the mandatory registration requirement under section 290 in the narrow circumstance where a person is convicted of violating section 288a, subdivision (b)(1) for engaging in voluntary oral copulation with 16- or 17-year-old minors. (Hofsheier, supra, 37 Cal.4th at p. 1208.)

In short, section 288a[, subdivision](b)(1) and section 261.5 both concern sexual conduct with minors. The only difference between the two offenses is the nature of the sexual act. (Hofsheier, supra, 37 Cal.4th at p. 1200.)

But the primary focus of section 311.4 is not sexual conduct with minors but rather posing or modeling conduct with minors. Enacted in 1961, section 311.4 is part of a statutory scheme to combat the exploitive use of children in the production of pornography. [Citation.] The statute is aimed at extinguishing the market for sexually explicit materials featuring children. [Citation.] The Legislature was particularly concerned with visual displays such as might be found in films, photographs, videotapes and live performances, and section 311.4 thus prohibits the employment or use of a minor . . . in the production of material depicting that minor in sexual conduct. (People v. Cochran (2002) 28 Cal.4th 396, 402, citing People v. Cantrell (1992) 7 Cal.App.4th 523, 540.)

Persons convicted of using minors to produce pornography are simply not similarly situated to those convicted of having sex with minors. We add that defendant fails to identify any other similarly situated group not required to register. We therefore reject defendants equal protection claim.

disposition

The judgment is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

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[1] Further unspecified statutory references are to the Penal Code.

[2] The felony complaint and sentencing-hearing colloquy do not identify a victim as to count 15. However, the dates alleged in count 15 correspond to the dates during which defendant had a relationship with M. Doe; and the underlying facts of count 15 apply to M. Doe (videotaped sex acts without the victims knowledge).

[3] Having unprotected sex is not listed as a criterion for a consecutive sentence or a circumstance in aggravation. But neither the listed criteria affecting consecutive sentences nor the listed circumstances in aggravation are exclusive. The criteria include what is listed. (Cal. Rules of Court, rule 4.425.) The circumstances include what is listed. (Id., rule 4.421.)

[4] Defendant disagrees with this point in the context of his claim under section 654, but we reject the argument.