Filed 7/8/15 P. v. Watson CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A140044
v.
MICHAEL ANTHONY WATSON,                                              (Contra Costa County
                                                                     Super. Ct. No. 51221811)
         Defendant and Appellant.


         A jury convicted defendant Watson of four counts of lewd acts against Jane Doe I
(hereafter Jane). (Pen. Code, § 288, subd. (a).)1 At trial, she testified about three counts
she clearly remembered. However, a year earlier, on the day the lewd acts occurred, she
told her school counselor and police about four counts. Her statements to them were
admitted as prior inconsistent statements and substantive evidence. On appeal, defendant
argues the evidence is insufficient to sustain the conviction on the fourth count. He also
contends consecutive sentencing on the four counts was error. We affirm.
                                       STATEMENT OF THE CASE
         A second amended information charged defendant with four counts of lewd acts
upon Jane, a child under 14, on August 15, 2012. (§ 288, subd. (a).) Count four included
a “One Strike” allegation that the offense had been committed during a first degree
burglary. (§ 667.61, subd. (d).) A fifth count charged defendant with annoying or
molesting Jane, a child under 18, with a prior conviction for annoying or molesting a


1
     Unless otherwise indicated, all further statutory references are to the Penal Code.
child. (§ 647.6, subd. (c)(1).) A sixth count charged defendant with indecent exposure
with a prior conviction for indecent exposure. (§ 314, subd. 1.)
       In addition, the information alleged 13 prior felony convictions between 1980 and
2010. Eight prior convictions were alleged to be serious felonies under the “Three
Strikes” law. (§§ 667, subd. (b)–(i)/1170.12) Three prior convictions were alleged to be
violent felonies. (§ 667.5, subd. (a).) Two were alleged to be prior prison terms.
(§ 667.5, subd. (b).) Three were alleged to be serious felonies. (§ 667, subd. (a)(1).)
       A jury convicted defendant of all charges on August 22, 2013. At a bifurcated
court trial on the prior conviction allegations, the court granted the prosecutor’s motion to
dismiss several of the allegations. The court found the remaining allegations true. The
court sentenced defendant to state prison for 14 years consecutive to 150 years to life.
Defendant timely appeals.
                            STATEMENT OF THE FACTS2
    A. Jane’s Trial Testimony
       In January 2012, Jane moved from Pittsburg with her brother, sister and
grandmother to a small, two-bedroom apartment in Richmond. Her sister moved out in
April or May, just before Jane’s 13th birthday in June 2012. Jane and her grandmother
shared one bedroom and her brother had the other bedroom. Defendant is Jane’s uncle.
He visited the apartment on a weekly basis.
       In Spring 2012, defendant exposed his private parts to her during multiple car
rides. He also started hugging her low on her waist when no one else was around.
       The night before school started on August 15, 2012, Jane fell asleep on the couch.
About 10 minutes after her grandmother woke her up on August 15, defendant showed
up. When he arrived, she was in the room she shared with her grandmother getting ready
for school. Jane heard him greet her grandmother, then he came into the bedroom and
hugged Jane, face to face, with his hands on her bottom for about 15 seconds. He “kind

2
  Because defendant’s appellate contentions involve only counts one through four, we
will not summarize the evidence adduced on counts five and six, except as relevant to
those four counts.

                                              2
of moved” when he hugged her. Then defendant walked out of the room. She finished
getting ready for school.
       A little while later, while Jane was putting on her socks, defendant reentered the
bedroom and gave her another hug. This one was like the first, with his hands on her
bottom, and lasted about the same amount of time, but defendant moved his hips against
Jane more, and she could feel his “sexual parts.” Then defendant let go and immediately
left the bedroom.
       Jane put on her shoes and coat and went into the kitchen. Defendant was in the
kitchen making breakfast, and her grandmother was across from the kitchen on the
computer. Jane went back into the bedroom to straighten it up and get her school bag.
After about three minutes, defendant reentered the bedroom and hugged Jane again, but
this time he gripped Jane’s bottom more tightly, and he moved his hips a lot more. Jane
could feel defendant’s private parts. She described how they felt to the police as “stick-
like” and she was being truthful when she said this. This hug lasted about 30 seconds.
Then defendant walked away.
       About a minute later, defendant asked Jane if she wanted a ride to school. Jane
felt uncomfortable and declined the offer; she walked to school by herself. During her
first class she felt something was not right and “it felt weird”; she decided to talk to
Ms. Ryan, the health teacher, whom she trusted. At the end of class when everyone had
left she asked Ms. Ryan, “What do you do when you feel uncomfortable at home?”
Ms. Ryan told her to go talk to Ms. Santiago, the school psychologist. Jane did speak
with Ms. Santiago, and after that a police officer came. She told the police about the car
rides and what had happened to her earlier that morning.
       Jane testified she remembered getting three weird hugs from defendant that
morning, but she also remembered describing four to the police. To the best of her
recollection, as she was testifying, she could not remember if there were three or four
hugs, but she knew for a fact there were three. When she spoke to the officer, she was
being as truthful as she could be.



                                              3
       B. Jane’s Statement to Emily Santiago
       Emily Santiago, a school psychologist for the West Contra Costa County Unified
School District, was the case manager of mental health services at Helms Middle School,
and spoke with Jane on the morning of August 15, 2012. Jane was neatly dressed,
poised, and mature. Hesitant at first, she eventually described the events of earlier that
morning calmly and clearly. Santiago did not testify about the substance of Jane’s
statements to her.
       C. Jane’s Oral and Written Statements to the Police
       On August 15, 2012, San Pablo police officer Katie Casalnuovo was working as a
school resource officer at Helms Middle School, where she interviewed Jane and took a
written statement from her that day. Jane told Officer Casalnuovo defendant hugged her
four separate times that morning.3 In the written statement, Jane also disclosed four
separate hugs.
       In the recorded statement, Jane said she lived with her grandmother and brother.
She slept on the couch the night before. Her grandmother woke her up to get ready for
school. She was getting her clothes and was about to go into the bathroom when her
uncle arrived. She went into the bathroom to get ready, then into her room to put on her
socks and shoes. Defendant came in and hugged her. It was not a “a regular relative
hug.” He hugged her on the butt and then let go. He walked away. She put on her socks
and was going to get her shoes when he hugged her “on the other side of the bedroom.”
She put on her shoes and went into her brother’s room. Defendant went into the
bathroom. She went to get her coat, and when she put it on, “he came out and he hugged
me again.” She went back into her room. She put on her shoes and got her backpack.
Defendant hugged her again, this time moving his hips in a thrusting motion. This was in
her grandmother’s bedroom. During this hug she noticed something that felt stick-like.
She felt his penis. He walked out of the room and started cooking breakfast. She sat


3
  Jane’s recorded statement was played for the jury and a transcript of it was admitted
into evidence.

                                              4
down next to her grandmother. When she went back into the bedroom to get a notebook
she had left there, he followed her and asked if she wanted a ride. She said no, she would
walk. He stayed around for a while longer and finally left. She went to school after he
left.
        Jane also said in May and June when defendant gave her rides in the car he would
have his pants undone so that his penis was exposed.
        After the interview, Officer Casalnuovo asked Jane to write a statement describing
what happened that morning with defendant. Jane wrote: “I slept on the couch that
morning. My Grandmother told me to get up for school. My uncle had just walked in the
door & he hugged my Grandma. I went into the room & got my clothes went to the
bathroom. I came out and made my way to put my socks on that’s when my uncle came
in & hugged me (face to face) he grabbed my butt. I was too nervous to say anything
then I went to put my shoes on he came & hugged me again & then I went to get my
jacket when I came out my brother’s room & went to my Grandmas room he hugged me
again & let go. I went to sit by my Grandma. I forgot my backpack & went back I
[grabbed] it thats when he hugged me then he grinded/thrusted with his hips then at 7:00
he waited for 7:30 to come he offered me a ride but I said ‘[I’m] OK [I’m] gonna walk’
he said ‘alright’ then I left at 7:30.”
        D. Jane’s September 5, 2012 Statement
        On September 5, 2012 Jane was interviewed at the Children’s Interview Center in
San Pablo by a forensic interviewer. District Attorney Senior Inspector Robert
Pamplona, formerly a San Pablo police officer, listened to the entire interview from
behind a two-way mirror. He recalled Jane described three specific hugs her uncle gave
her.
                                          DISCUSSION
        Defendant argues the evidence supporting a fourth count of lewd conduct on
August 15, 2012 is insufficient because Jane testified to three hugs only, she gave a
statement on September 5, 2012 describing three hugs only, and in her prior oral and
written statements to Officer Casalnuovo, she never described the fourth hug “in any


                                              5
detail or with any particularity.” Such evidence, he posits, cannot qualify as substantial
evidence that is “reasonable, credible and of solid value.” (People v. Johnson (1980)
26 Cal.3d 557, 578.) We disagree.
       In reviewing a claim of insufficiency of the evidence on appeal, “ ‘the relevant
question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’ ” (People v. Johnson, supra, 26 Cal.3d at p. 576, quoting
Jackson v. Virginia (1979) 443 U.S. 307, 318–319.) “This court must view the evidence
in a light most favorable to respondent and presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence. [Citation.]
If the circumstances reasonably justify the trial court’s findings, reversal is not warranted
merely because the circumstances might also be reasonably reconciled with a contrary
finding. [Citations.]” (People v. Redmond (1969) 71 Cal.2d 745, 755; People v. Clark
(2011) 52 Cal.4th 856, 945; see People v. Jackson (2014) 58 Cal.4th 724, 749.)
       “ ‘Although we must ensure the evidence is reasonable, credible, and of solid
value, nonetheless it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts on which that determination
depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must
accord due deference to the trier of fact and not substitute our evaluation of a witness’s
credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993)
6 Cal.4th 1199, 1206.)
       In this case the jury was called upon to decide whether defendant had given Jane
no lewd hugs, three lewd hugs, or four. All of her prior inconsistent statements were
admitted into evidence for the jury’s consideration. On the day the hugs were given, Jane
clearly described four hugs orally and in writing. The first one occurred after she left the
bathroom and entered her room to put on her socks and shoes. The second occurred after
she put on her socks and he hugged her “on the other side of the bedroom.” The third
occurred after he went to the bathroom and she went to get her coat. Finally, the fourth
occurred when she went back into her room to get her backpack. It is true not all the


                                              6
hugs were described in lewd detail. However, the jury was entitled to infer from the fact
of defendant’s prior indecent exposure to Jane during car rides, the thrusting motion
accompanying at least one of the hugs, the stick-like feel of defendant’s private parts, that
all of the hugs were accomplished with a lewd intent. In addition, Jane’s prompt report to
school officials may have enhanced the credibility of her same-day statements. A
rational jury could conclude from all of these facts that Jane’s memory of the events was
freshest on the day the hugs occurred, and that her memory of events had receded
somewhat with the passage of time when she testified a year later. If believed by the
jury, Jane’s prior inconsistent statements recounting four lewd hugs were admissible to
prove four lewd hugs occurred.4 (Evid. Code, § 1235.) Substantial evidence supports the
jury’s findings of four lewd acts.
The Trial Court’s Imposition of Consecutive Life Terms for Counts One Through
Four Was Not an Abuse of Discretion.
        Defendant was sentenced to three consecutive 25-year-to-life terms for counts one
through three, and one consecutive 75-year-to-life term for count four, for a total
consecutive sentence of 150 years to life. Defendant argues it was an abuse of discretion
to impose consecutive sentences in this case. We disagree.
        In this case, consecutive sentences were permissive, not mandatory, under former
section 1170.12, subdivisions (a)(6) and (a)(7).5 Under those subdivisions of the Three


4
    The jury was instructed it could use statements made by a witness before trial to
evaluate the believability of the witness and “[a]s evidence that the information in
(that/those) earlier statement[s] is true.” (CALCRIM No. 318)
5
   At the time defendant committed the offenses of which he was later convicted, section
1170.12 provided in relevant part: “(a) Notwithstanding any other provision of law, if a
defendant has been convicted of a felony and it has been pled and proved that the
defendant has one or more prior felony convictions, as defined in subdivision (b), the
court shall adhere to each of the following:
    [¶] . . . [¶]
    “(6) If there is a current conviction for more than one felony count not committed on
the same occasion, and not arising from the same set of operative facts, the court shall
sentence the defendant consecutively on each count pursuant to this section.

                                             7
Strikes law, the court must impose a consecutive offense for each current offense not
committed on the same occasion, and not arising from the same set of operative facts. By
implication, this means if the current offenses were committed on the same occasion or
did arise out of the same set of operative facts, the court has discretion to impose
concurrent or consecutive sentences. (People v. Lawrence (2000) 24 Cal.4th 219, 223,
fn. 2; People v. Hendrix (1997) 16 Cal.4th 508, 512–513; People v. Hall (1998)
67 Cal.App.4th 128, 137–139.)
       The trial court recognized as much, stating, “I understand that I have discretion to
impose a concurrent sentence, and the law is clear that I do.” The court exercised that
discretion to impose consecutive sentences, deeming them more “appropriate based on
the facts that we heard at trial.”
       The phrase “ ‘committed on the same occasion’ ” means “at least a close temporal
and spatial proximity between the acts underlying the current convictions.” (People v.
Deloza (1998) 18 Cal.4th 585, 595, 599.) The phrase “ ‘arising from the same set of
operative facts’ ” means “sharing common acts or criminal conduct that serves to
establish the elements of the current felony offenses of which defendant stands
convicted.” (People v. Lawrence, supra, 24 Cal.4th at p. 233.) Defendant first argues


   “(7) If there is a current conviction for more than one serious or violent felony as
described in paragraph 6 of this subdivision, the court shall impose the sentence for each
conviction consecutive to the sentence for any other conviction for which the defendant
may be consecutively sentenced in the manner prescribed by law.”
    “(b) Notwithstanding any other provision of law and for the purposes of this section,
a prior conviction of a felony shall be defined as:
    “(1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any
offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state.”
(§ 1170.12, added by Initiative Measure (Prop. 184, § 1, approved Nov. 8, 1994; eff. to
Nov. 6, 2012.)
    A lewd and lascivious act on a child under 14 in violation of section 288, subdivision
(a), is both a violent felony under section 667.5, subdivision (c)(6) and a serious felony
under section 1192.7, subdivision (c)(6).

                                              8
that “[i]n concluding it retained discretion to impose concurrent terms, the court
impliedly determined the four hugs were committed on the same occasion and arose from
the same set of operative facts.” From this premise, defendant appears to argue that
having made the initial “same occasion/same set of operative facts” determination, the
trial court was compelled to impose concurrent sentences. We disagree.
       In order to determine whether it has the discretion to choose between consecutive
or concurrent sentences under former section 1170.12, subdivisions (a)(6) and (a)(7), a
trial court must make a preliminary determination whether multiple current felony
convictions were committed “on the same occasion” or “arose ‘from the same set of
operative facts.’ ” (People v. Hall, supra, 67 Cal.App.4th at pp. 137–139.) The threshold
determination that one or the other circumstance exists then allows the trial court to
sentence the defendant either concurrently or consecutively. (Hendrix, supra, 16 Cal.4th
at p. 514; People v. Deloza, supra, 18 Cal.4th at p. 596.) It does not mandate concurrent
sentences.
       We review the trial court’s decision to impose consecutive sentences for abuse of
discretion. Under that standard “ ‘a “trial court’s ruling will not be disturbed, and
reversal of the judgment is not required, unless the trial court exercised its discretion in
an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage
of justice.” ’ [Citation.]” (People v. Jones (2013) 57 Cal.4th 899, 924.) Defendant
argues the consecutive sentences were patently absurd and a manifest miscarriage of
justice because defendant’s conduct was not that serious: the hugs were close in time,
both defendant and Jane were fully clothed, there was no skin-to-skin contact or
penetration, and no use of force, violence, duress or fear of bodily injury. These facts
were apparent to the trial court and, we presume, duly considered. Defendant does not
argue otherwise.
       In making the decision whether to impose concurrent or consecutive sentences,
“the trial court is guided by the criteria set forth in California Rules of Court, rule 425

                                               9
[now 4.425]. Rule [4.425] provides: [¶] ‘Criteria affecting the decision to impose
consecutive rather than concurrent sentences include: [¶] (a) [Criteria relating to crimes]
Facts relating to the crimes, including whether or not: [¶] (1) The crimes and their
objectives were predominantly independent of each other. [¶] (2) The crimes involved
separate acts of violence or threats of violence. [¶] (3) The crimes were committed at
different times or separate places, rather than being committed so closely in time and
place as to indicate a single period of aberrant behavior. [¶] (b) [Other criteria and
limitations] Any circumstances in aggravation or mitigation may be considered in
deciding whether to impose consecutive rather than concurrent sentences, except (i) a fact
used to impose the upper term, (ii) a fact used to otherwise enhance the defendant’s
prison sentence, and (iii) a fact that is an element of the crime shall not be used to impose
consecutive sentences.’ ” (People v. Deloza, supra, 18 Cal.4th at p. 596, fn. 8.)
       In this case, the court stated its reasons for choosing consecutive sentences as
follows: “I don’t find that in this case . . . Counts 1 through 4 arose out of the same set of
circumstances. I think Mr. Watson made choices during that evening [sic]. He left the
room several times, returned. And even though it is the same victim, there are different
acts against that victim even though it’s the same location. [¶] . . . [¶] But as to the
concurrent versus consecutive issue, I think that the consecutive sentence is appropriate
based on the facts that we heard at trial.”
       The trial court’s stated reasons fall within the parameters of the Rules of Court,
rule 4.425. The trial court found each act separate and distinct from the others such that
defendant had the opportunity to choose to persist or desist in his conduct. “[T]he fact
that defendant had time to reflect between the [acts] was relevant in determining whether
to impose a consecutive or concurrent term because having time to reflect may
reasonably be considered an aggravating factor.” (People v. Coelho (2001)
89 Cal.App.4th 861, 887.) In addition, defendant had a long criminal history that



                                              10
included both violent and serious felonies and indecent exposure at school yards. We
cannot say the trial court abused its discretion in imposing consecutive sentences.
                                     CONCLUSION
       The judgment is affirmed.




                                            11
                                 _________________________
                                 DONDERO, J.


We concur:


_________________________
MARGULIES, Acting P. J.


_________________________
BANKE, J.




                            12
A140044




          13
