Filed 5/5/14 P. v. Sellers 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----



THE PEOPLE,                                                                                  C073734

                   Plaintiff and Respondent,                                     (Super. Ct. No. 62113751)

         v.

JERIMEY LEN SELLERS,

                   Defendant and Appellant.




         A jury convicted defendant Jerimey Len Sellers of seven counts of lewd and
lascivious acts on a child under 14 (Pen. Code, § 288, subd. (a); further statutory
references are to the Penal Code unless otherwise stated) and one count of lewd and
lascivious acts on a child under 14 by force or fear (§ 288, subd. (b)) with multiple
victims enhancement (§ 667.61, subd. (c)). The trial court sentenced defendant to 120
years to life in state prison.
         On appeal, defendant contends (1) the admission of a recorded telephone
conversation from jail violated his Sixth Amendment right to counsel, (2) there is an error



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in the abstract regarding custody credits, and (3) the imposition of a $280 restitution fine
(§ 1202.4) constitutes an impermissible ex post facto punishment. We will modify the
stayed parole revocation fine (§ 1202.45), order a correction to the abstract, but otherwise
affirm the judgment.

                                FACTS AND PROCEEDINGS

       The Crimes
       M. Sellers is the mother of three children. Her oldest child, Jane Doe One, was
born in September 1997. Her youngest, Jane Doe Three, was born in December 2001.
       Sellers married defendant in 2008. She lived with defendant and her three
children in Rocklin. In November 2010, after Jane Doe One told her that defendant
molested her, she made defendant leave their home and contacted Child Protective
Services (CPS). After Jane Doe One recanted her allegation, CPS closed the case and
defendant returned home.
       Sellers was a close friend of L.K., the mother of Jane Doe Two, who was born in
August 1998. Jane Doe Two often stayed overnight at Sellers’ home. In May 2012, Jane
Doe Two told L.K. that defendant had been touching her. L.K. took Jane Doe Two to the
police department, where the girl made a statement. L.K. also told Sellers that defendant
had touched Jane Doe Two. Sellers then talked to Jane Doe One, who said defendant had
molested her and she was sorry for changing her story.
       When confronted by Sellers, defendant denied touching Jane Doe Two and called
her a liar. Defendant told Sellers he did nothing more than walk into Jane Doe One’s
room when she was naked and stood there looking at her. Sellers drove defendant to the
Roseville Police Department on May 14, 2012. Defendant called the department from
the parking lot, where he said that he was outside and wanted to turn himself in “for
touching little girls.” In a statement to a Roseville Police officer, defendant admitted
molesting Jane Doe One and Jane Doe Two. He denied molesting any other minor girls.


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       On May 17, 2012, defendant was arraigned and then called Sellers from his jail
cell. During the call, which was taped and played to the jury, defendant admitted
molesting Jane Doe Three as well. When Sellers asked whether he put his fingers inside
Jane Doe Three, defendant said, “I might of done this, but I didn’t put them all inside of
her. [¶] . . . [¶] I only rubbed the outside of her.” Defendant also admitted kissing Jane
Doe Two on the day of the Super Bowl, claiming that “she came on to me. . . . She
forced herself on me, and I kissed her.” Defendant also called Sellers on July 14, 2012,
and said, “I’m guilty, but I’m not going to take a fucking life sentence.”
       Jane Doe One testified that defendant started touching her when she was 12. He
would enter her bedroom, lie down, and touch her breasts and vagina. While she was
sleeping in her sister’s bedroom on Halloween in 2010, defendant woke her up by
touching her breast and vagina with his mouth.
       Jane Doe Two testified that one night while she was sleeping in Jane Doe Three’s
bedroom, defendant came into the room, laid down next to her, put his arms around her,
and touched her breasts. Defendant also molested her when she went to the bathroom
during a Super Bowl party at the Sellers’ home. Defendant tried to unzip her jacket as
well as trying to pull her tank top down and kiss her. He also tried to put her hands on his
pants, over his penis. He left when Sellers called for him.
       According to Jane Doe Three’s testimony, defendant first molested her in his
bedroom, when he pulled down her pants and touched her “rear-end” with his hands and
with the “part” he uses to go to the bathroom. Another time he touched her rear end with
his fingers.
       In a recorded multidisciplinary interview center (MDIC) interview, Jane Doe
Three, who called defendant “dad” even though he was not her biological father, told the
interviewer, “whenever my mom was gone, my dad would take me into his room, make
me bend over, he would stick his thing in my butt.” This started when she was in third
grade and ended when she was in the middle of the fourth grade. It happened whenever

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her brother and sister went to the gym. Defendant made her get into bed, whereupon he
pulled her pants down and started touching her. While initially he put only his fingers
inside her; by the fifth time, defendant “started putting his thing in me.” Defendant told
her not to tell anyone because it would get him in trouble and he would hurt her.
       The Evidence Code Section 402 Hearing
       Defendant moved to suppress the call he made to Sellers from his jail cell on
May 17, 2012, claiming that Sellers acted as an agent of the police a violation of his Sixth
Amendment right to counsel.
       Rocklin Police Detective Brad Alford testified at the hearing on defendant’s
motion. While investigating the allegations against defendant, Detective Alford attended
Jane Doe Three’s MDIC interview on May 16, 2012. Following the interview, he told
Sellers that he was going to jail to speak with defendant. Detective Alford then
interviewed defendant in order to get him to talk about anything that happened to Jane
Doe Three. Defendant invoked his right to counsel and the interview ended before he
gave any information.
       Detective Alford then called Sellers because she was curious about the interview.
He told Sellers that defendant asked for counsel, and he could not elaborate any further as
it would be improper. The detective explained to Sellers that this “was for the benefit of
later prosecution.”
       Detective Alford also told Sellers that telephone calls coming from jail cells were
recorded. He told Sellers about the recorded calls because he and Sellers “originally
talked about the jail telephone calls and that being a possible option to see what--you
know, if Mr. Sellers would provide any information and in regards to what he did.” The
first conversation about calls from jail happened on May 15, 2012, the day after
defendant was taken into custody. In that first conversation, he told her if defendant
called her from jail he could get copies of the calls which “could be potentially helpful
for the investigation.”

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       Addressing the second conversation with Sellers about calls from jail, counsel
asked Detective Alford, “what else did you talk about?” Detective Alford replied: “I’m
sorry. Are you talking about 5/17 after I left Placer?” Counsel said, “Sorry. I apologize.
5/17. That’s correct?” Detective Alford answered, “No problem. It’s confusing. There
are a lot of dates. I get confused too.”
       The trial court interjected: “All right. Now I’m confused, because my
understanding is that you went to the jail to speak with him after the MDIC interview,”
which was on the 16th. Detective Alford agreed. Counsel then asked Detective Alford if
he called Sellers before he left the jail on May 16. Detective Alford said he pulled over
at a gas station and called her from there, about 15 to 20 minutes after he interviewed
defendant.
       During the May 16 conversation, Detective Alford also told Sellers, “it would not
be proper for me to instruct her to, you know, do these jail telephone calls. In fact, it
would be a violation of his Constitutional rights.” He additionally told Sellers that it
would be improper for him to tell her how to make those calls as well. He was “very
clear” on instructing Sellers not to make a call to jail, but if defendant “calls her and that
topic comes up in conversation and he makes admissions and if you let me know later
and if you choose to--if that is what you want to do, then that is something that I could
obtain and it could potentially be useful.” Detective Alford even explained the concept
of acting as an agent to Alford and said he was “not telling [her] to do that.”
       Detective Alford said Sellers was crying and upset during their May 16
conversation. She asked Detective Alford if defendant made any admissions about Jane
Doe Three during the interview. Although she wanted to know whether defendant had
done so, Detective Alford explained, “that it just would not be proper to go into that.”
Sellers said she understood.
       Sellers testified she remembered speaking to Detective Alford about the case after
Jane Doe Three’s MDIC interview. She told him that defendant kept trying “to make

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phone calls, and I have not took any and what should I do.” Detective Alford replied he
could not tell her what to do because it would jeopardize the case. However, he did tell
her the calls were recorded. She did not remember whether this conversation took place
on May 15 or May 16. She did not remember Detective Alford telling her defendant
invoked his right to counsel or that the detective could no longer talk to defendant
because he asked for an attorney. She did not remember Detective Alford telling her to
call him if defendant made an admission. Detective Alford did not tell her what to say or
do. She just “wanted to know what happened to my babies.” She was an emotional
wreck at the time; that time was like a blur to her.
       In a written opinion, the trial court found defendant did not establish Sellers acted
as an agent for the government, and therefore denied defendant’s motion.

                                        DISCUSSION

                                              I
                                     The Recorded Call
       Defendant contends admitting the recording of his May 17, 2012, call to Sellers,
violated his Sixth Amendment right to counsel. We disagree.
       Massiah v. United States (1964) 377 U.S. 201 [12 L.Ed.2d 246] prohibits the use
in evidence of incriminating statements made by a defendant which were deliberately
elicited by a government agent in the absence of counsel after criminal proceedings have
been initiated against him. The agent need not be a government employee, and the
agency relationship need not be explicit or formal. Rather, it “may be ‘inferred from
evidence that the parties behaved as though there were an agreement between them,
following a particular course of conduct’ over a period of time. [Citation.]” (In re Neely
(1993) 6 Cal.4th 901, 915 (Neely).) The critical issue for purposes of Massiah is whether
there has been a “ ‘knowing exploitation’ of an opportunity to coax information from a
formally charged suspect in the absence of his lawyer. [Citations.]” (People v. Gonzalez


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(1990) 51 Cal.3d 1179, 1240.) It is not the government’s intent or overt acts that are
dispositive; rather, it is the likely result of the government’s acts. (United States v. Henry
(1980) 447 U.S. 264, 271 [65 L.Ed.2d 115, 122].) The trial court’s determination on a
Massiah issue is essentially factual in nature and entitled to deferential review. (People
v. Fairbank (1997) 16 Cal.4th 1223, 1247-1248.)
       Defendant claims this case is analogous to Neely. Neely involved a police
informant for the El Dorado County Sheriff’s Department, Malcolm Centers, who, along
with the petitioner Neely and another person, robbed and killed a man at his home.
(Neely, supra, 6 Cal.4th at pp. 906-907, 909.) Within hours of his arrest for the murder,
Centers told deputies that Neely was the shooter and agreed to assist the authorities in
apprehending him. (Id. at p. 910.) Centers had been told that if he cooperated
completely, some of the charges against him would be dismissed. (Ibid.) Neely invoked
his right to silence upon his arrest and his right to counsel at his arraignment. (Id. at p.
911.) The investigating deputies told Centers they wanted to know the direction Neely
fled from the home so they could better find the murder weapon. (Ibid.) They told
Centers “that he (Centers) could not ask petitioner any questions directly, but could ‘mill
around them,’ discuss the weapon in a ‘round about way,’ and ‘talk about things to get
him [petitioner] to talk about the crime.’ ” (Ibid.) A deputy provided Centers with
specific examples on how to get the conversation going. (Ibid.) The prosecutor and a
deputy subsequently arranged for the three codefendants to be transported together in a
van in which a recording device was concealed. (Id. at p. 912.) “Thereafter, en route to
court in the sheriff’s van, Centers made statements likely to evoke incriminating remarks
from petitioner, and petitioner in fact made such remarks regarding the crimes and the
murder weapon.” (Ibid.)
       The Supreme Court concluded “that the referee’s ultimate findings and
conclusions--that, while acting as a government agent, Centers deliberately elicited
incriminating information from petitioner--are supported by the record in this proceeding

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and are consistent with governing legal principles.” (Neely, supra, 6 Cal.4th at p. 917.)
It grant habeas relief for ineffective assistance of counsel based on trial counsel’s failure
to pursue a Massiah claim. (Id. at pp. 920, 922.)
       According to defendant, this case also presents an implicit agreement, made
between Sellers and Detective Alford on May 17, to obtain incriminating evidence from
defendant. We are not persuaded. Unlike Neely, and contrary to defendant’s mistaken
assertion, the conversations between Detective Alford and Sellers took place before the
initiation of criminal charges against defendant on May 17, 2012. Detective Alford’s
testimony at the Evidence Code section 402 hearing shows he talked to Sellers on
May 15, the day after defendant was taken into custody, and on May 16, just after the
MDIC interview. Defendant’s contrary contention is based on a single statement from
Detective Alford that the second interview was on May 17. This contention fails because
Detective Alford almost immediately recanted this statement and affirmed that the
conversation took place on May 16 after further inquiry from the trial court.
       The right to counsel recognized in Massiah does not attach until the “ ‘ “initiation
of adversary judicial criminal proceedings--whether by way of formal charge,
preliminary hearing, indictment, information, or arraignment.” ’ [Citation.]” (People
v. Webb (1993) 6 Cal.4th 494, 526.) Since any agreement between Sellers and Detective
Alford necessarily happened before defendant’s arraignment, defendant is asking us to
find a prospective Massiah violation. We decline to find a violation of the Sixth
Amendment right to counsel based on an agreement formed before defendant’s right to
counsel came into being.
       Unlike the informant in Neely, Sellers was told not to contact defendant and was
not told what information the authorities wanted from him. Also unlike Neely, Sellers
was not told what to say to defendant if he did call her or how to obtain incriminating
information from him. This case also differs from Neely because there is no evidence the
authorities made any special arrangements for defendant to converse with Sellers. In

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short, there is no evidence of an explicit or implicit arrangement between Sellers and
Detective Alford to obtain information from defendant in violation of his Sixth
Amendment right to counsel. Defendant’s Massiah claim therefore fails.
                                              II
                                 The Abstract of Judgment
       The parties identify an error in the abstract. The trial court awarded 345 days’
presentence custody credit but the abstract reflects an award of 245 days. We will order a
correction to the abstract.
                                              III
                                      Restitution Fine
       Defendant contends the imposition of a $280 restitution fine (§ 1202.4, subd. (b))
violates the prohibition against ex post facto laws.
       At the time of defendant’s crimes, the minimum restitution fine was $200.
Effective January 1, 2012, the minimum was raised to $240. Effective January 1, 2013,
the minimum was raised again to $280. (§ 1202.4, subd. (b)(1).) Defendant was
sentenced on April 24, 2013. According to defendant, the trial court intended to impose
the minimum fine, which was $200 rather than the $280 actually imposed. He concludes
imposing the higher minimum fine was an ex post facto violation and the fine should be
reduced to $200.
       Pronouncing judgment, the trial court imposed “a $250 state restitution fine” and
“an additional $280 restitution fine pending revocation of parole.” The probation report
recommended a $4,000 restitution fine and a stayed $4,000 parole revocation fine. The
abstract and minute order imposed a $280 restitution fine and a stayed parole revocation
fine for the same amount.
       “In every case where a person is convicted of a crime and his or her sentence
includes a period of parole, the court shall, at the time of imposing the restitution fine
pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation

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restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section
1202.4.” (§ 1202.45, subd. (a).)
       Since the trial court imposed a $250 restitution fine, we shall modify the parole
revocation fine to $250. As the $250 amount does not conform to any statutory
minimum, it is clear that the trial court did not intend to impose the minimum fine.
Defendant’s ex post facto contention is therefore without merit.

                                       DISPOSITION

       The judgment is modified to impose a stayed parole revocation fine (§ 1202.45) of
$250. As modified, the judgment is affirmed. The trial court is directed to prepare an
amended abstract of judgment reflecting $250 restitution (§ 1202.4) and stayed parole
revocation fines, as well as an award of 345 days’ custody credit. The trial court is
further directed to forward a certified copy of the amended abstract of judgment to the
Department of Corrections and Rehabilitation.



                                                        HULL                  , J.



We concur:



      BLEASE                , Acting P. J.



      DUARTE                , J.




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