P. v. Tejeda

Filed 8/17/06 P. v. Tejeda CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William H. Kennedy, Judge. Affirmed.

A jury convicted Juan Carlos Tejeda of four counts of committing a lewd act upon a child (Pen. Code, § 288, subd. (a)).^[1] The trial court imposed consecutive sentences on the four counts, resulting in a prison sentence of 12 years.

Tejeda argues that the imposition of consecutive sentences violated the proscription against multiple punishment for a single act. (§ 654.) We conclude that Tejeda's argument lacks merit, and accordingly, we affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

Tejeda, who was a family friend, sexually molested Christian G. when Christian was six or seven years old. According to the evidence at trial, the molestation occurred on at least two separate days. Tejeda admitted to police that he made Christian touch Tejeda's penis on two different occasions. On one occasion Tejeda was sitting on the sofa with Christian, and on the other occasion Christian woke up from a nightmare and went to the sofa where Tejeda was sleeping. Tejeda admitted that during the nighttime encounter he also rubbed Christian's anus with his hand and he inserted his penis between the cheeks of Christian's buttocks. In Christian's testimony, he described at least three encounters with Tejeda, including two instances of touching Tejeda's penis with his hand and one instance at night when Tejeda made penile contact with his buttocks.

The jury convicted Tejeda of four counts of committing a lewd act upon a minor. The conduct at issue in the four counts was specifically described in the verdict form as "Defendant's finger on Victim's buttocks" (count 4); "Defendant's penis on Victim's buttocks" (count 6); "Victim's hand on Defendant's penis, first time" (count 8); and "Victim's hand on Defendant's penis, last time" (count 10).

The trial court imposed consecutive sentences on each of the four counts, resulting in a sentence of 12 years' imprisonment.

II

DISCUSSION

Tejeda argues that the trial court erred in imposing consecutive sentences because section 654 proscribes the imposition of multiple punishment for the same criminal act. Tejeda argues that because the evidence shows that there were only two or three encounters, the conduct underlying some of the four counts necessarily took place during the same encounter. He claims that conduct occurring during the same encounter constitutes one criminal act, which cannot be separately punished under section 654. As we will explain, we reject this argument because it is contrary to the decisions of our Supreme Court, which establish that different criminal sex acts committed during the same assault may be separately punished.

Section 645, subdivision (a) provides that "[a]n 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." "[S]ection 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. . . . If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (People v. Perez (1979) 23 Cal.3d 545, 551 (Perez), italics added, citations omitted.)

"The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial." (People v. Saffle (1992) 4 Cal.App.4th 434, 438; see also People v. Osband (1996) 13 Cal.4th 622, 730 [approving standard of review as stated in Saffle].)

Our Supreme Court has defined how section 654 is to be applied to a series of sex offenses committed in a single encounter. Section 654 "does not prohibit the imposition of multiple punishment for separate sexual offenses committed during a continuous attack, 'even where closely connected in time.' " (People v. Hicks (1993) 6 Cal.4th 784, 788, fn. 4; see also People v. Harrison (1989) 48 Cal.3d 321, 324, 338 (Harrison) [section 654 did not prohibit consecutive sentences for three separate acts of vaginal penetration occasioned by two interruptions in the penetration when the victim struggled to get free]; Perez, supra, 23 Cal.3d 545 at pp. 549, 552-554 [section 654 did not prohibit separate punishment for rape, sodomy and two counts of oral copulation which occurred during the same encounter].) This rule only applies, however, when "[n]one of the sex offenses was committed as a means of committing any other, none facilitated commission of any other, and none was incidental to the commission of any other." (Perez, at pp. 553-554.)

Separate sex offenses during the same encounter may be separately punished because "[a] 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." (Perez, supra, 23 Cal.3d at p. 553 [rejecting the argument that the single objective of obtaining sexual gratification through a series of criminal sex acts during a single encounter implicated § 654].) Following our Supreme Court's direction on the issue, "Courts of Appeal . . . routinely . . . uphold separate sentences for each sex crime committed in a single encounter, even where closely connected in time." (Harrison, supra, 48 Cal.3d at p. 336.)

Based on the above, we conclude that there is no merit to Tejeda's argument that section 654 bars the imposition of consecutive sentences for sex crimes that occurred during the same encounter. On the contrary, case law is clear that criminal sexual conduct occurring during the same assault and closely connected in time may be separately punished.

Apparently aware that his argument is defeated by our Supreme Court's determination that section 654 does not prohibit the separate punishment of separate sex acts committed during the same assault, Tejeda attempts to rely on the rule that sex crimes may not be separately punished if one act was merely incidental to another act or merely facilitated it. (Perez, supra, 23 Cal.3d at pp. 553-554.) Without any citation to the record or specification of which sex acts he is referencing, Tejeda argues that section 654 should apply here because "the first form of touching in that brief episode merely 'facilitated commission of [the] other, [or] was incidental to the commission of the other.' " We reject this argument. Based on our review of the record, we conclude that substantial evidence supports a conclusion that none of the separate acts of which Tejeda was convicted merely facilitated or were incidental to any of the others. Further, Tejeda has failed to offer any citation to evidence in the record to support a contrary conclusion, and he fails to even specify which sex acts he believes were incidental to or facilitated the others. (See People v. DeSantis (1992) 2 Cal.4th 1198, 1227-1228 [the court is not required to scrutinize the record for evidence supporting a defendant's argument].)

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

NARES, Acting P. J.

AARON, J.

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