Filed 12/6/13 P. v. Cross CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066200
         Plaintiff and Respondent,
                                                                        (Tulare Super. Ct. No. VCF261501)
                   v.

WILLIAM JOE CROSS,                                                                       OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Gary L.
Paden.
         Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A.
Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*         Before Kane, Acting P.J., Franson, J. and Peña, J.
                                    INTRODUCTION
       On April 25, 2012, an information was filed alleging that appellant, William Joe
Cross, committed four counts of lewd and lascivious acts on a child under the age of 14
years (Pen. Code, § 288 subd. (a), counts 1 through 4),1 had contact with a minor with the
intent to commit a sexual offense (§ 288.3, subd. (a), count 5), sent harmful matter with
the intent of seducing a minor (§ 288.2, subd. (a), count 6), and committed first degree
burglary (§ 459, count 7). Counts 1 through 4 had special allegations that the lewd acts
were committed during a burglary (§ 667.61, subds. (a), (b) & (d)). Counts 1, 3 and 4
had special allegations that appellant had substantial sexual conduct with the victim who
was under 14 years old (§ 1203.066, subd. (a)(8)). The trial court granted appellant’s
motion to dismiss count 7 pursuant to section 995.
       On August 28, 2012, appellant entered into a plea agreement in which the court
gave an indicated lid sentence of 14 years in exchange for appellant’s admission of
counts 1 through 6. The parties agreed the preliminary hearing transcript constituted the
factual basis for the plea. The court advised appellant of the consequences of his plea
and his constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re
Tahl (1969) 1 Cal.3d 122. Appellant waived his constitutional rights and pled no contest
to counts 1 through 6. Appellant also admitted the special allegation that he had
substantial sexual contact with a minor as alleged in counts 1, 3 and 4.
       On November 16, 2012, the court sentenced appellant to prison for six years on
count 1, and to consecutive sentences of two years on each of counts 2, 3, and 4. The
court sentenced appellant to concurrent sentences on counts 5 and 6. Appellant’s total
prison term is 12 years. The court awarded 331 days of custody credits, 58 days of
conduct credits, and total custody credits of 389 days. The court also imposed a
restitution fine of $5,000, and various other fines and fees. Appellant contends the trial
1      Unless otherwise indicated, all statutory references are to the Penal Code.



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court abused its sentencing discretion when it imposed consecutive sentences on counts 2
through 4. We disagree and affirm the judgment.
                                         FACTS
Preliminary Hearing Testimony
       On December 19, 2011, Detective Bobby Saldana of the Tulare County Sheriff’s
Department contacted N.G., who told Saldana she was 13 years old. N.G. knew appellant
who had dated her older sister, Amanda G. N.G.’s relationship with appellant included
texting and talking. N.G.’s relationship with appellant later became sexual. One
evening, appellant was texting N.G. and she informed him she was home alone.
Appellant went to N.G.’s residence, removed N.G.’s clothing, performed oral copulation,
penetrated her vagina with his fingers, and placed his mouth on N.G.’s breast. The two
then had sexual intercourse for approximately 10 minutes. The sexual activity occurred
in N.G.’s bedroom at about 9 p.m.
       N.G. admitted that she sent at least one photograph of her breast to appellant at his
request. She also received a photograph of appellant’s penis on her phone. Saldana
questioned appellant, who admitted that he had sexual intercourse with the victim, used a
condom, and flushed it down the toilet. Appellant admitted sending N.G. a photograph of
his penis, but denied performing any other sexual acts.
Probation Officer’s Report
       The probation officer’s report noted that on December 2, 2011, N.G. attempted
suicide by taking an overdose of pills. N.G. stated she did this because her grandfather
had passed away and her grandmother was not spending enough time with her. On
December 4, 2011, Amanda found text messages from appellant on N.G.’s phone, asking
N.G. about having oral sex and intercourse. A photograph of appellant’s genitals was
also found, attached to a text from appellant, on N.G.’s phone. Appellant asked N.G.
about meeting each other and referred to a previous meeting between the two near the



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victim’s home. These messages were sent to N.G. before she attempted to commit
suicide. Appellant was aware of N.G.’s attempted suicide.
       Appellant had no previous criminal record. Appellant’s test results from the
STATIC-99R examination indicated that appellant was in the low-moderate risk category
for committing a new sexual offense. Concerning sentencing factors related to the crime,
the probation officer noted, inter alia, that the crime inflicted physical and emotional
injury on the victim (Cal. Rules of Court, rule 4.414(a)(4)), appellant was an active
participant (rule 4.414(a)(6)), the manner in which the crime was carried out
demonstrated planning and criminal sophistication or professionalism (rule 4.414(a)(8)),
and appellant took advantage of a position of trust or confidence to commit the offense
(rule 4.414(a)(9)).
       The probation officer noted that appellant had substantial ties to the community
and a satisfactory employment history (Cal. Rules of Court, rule 4.414(b)(4)), the likely
effect of appellant’s imprisonment on his dependents is substantial (rule 4.414(b)(5)),
there is a likelihood that if not imprisoned the appellant would be a danger to others (rule
4.414(b)(8)), appellant had no prior criminal record (rule 4.423(b)(1)), and appellant
acknowledged wrongdoing prior to his arrest (rule 4.423(b)(3)). The probation officer
recommended a prison term of eight years on count 1, and consecutive terms of two years
on each of counts 2 through 4, for a total prison sentence of 14 years.
Psychological Report
       Defense counsel attached the psychological evaluation of Dr. Thomas Middleton
to a statement in mitigation prepared for the sentencing hearing. Appellant told Dr.
Middleton that he met the victim while dating her sister, Amanda. Appellant stopped
dating Amanda when Amanda’s boyfriend was released from prison. Appellant
described the victim as troubled. Appellant knew the victim had periods of past
depression and had cut her wrists. Appellant was aware that N.G. had tried to overdose



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with pills. Appellant sent text messages to N.G. in which they discussed Amanda’s
activities, as well as their own relationship.
       Appellant told Dr. Middleton that he went to N.G.’s residence, used a quantity of
cocaine that he described as “‘one big line,’” and then went to see N.G. Appellant stayed
in the residence for about an hour until N.G.’s grandmother arrived and he left without
incident. Amanda later found N.G.’s phone and found the text messages to N.G. from
appellant. N.G.’s grandmother called the police. Since the incident, appellant has been
unable to sleep regularly, lost weight, and felt sick.
       Dr. Middleton believed that appellant had a history of learning problems that
impaired his executive functions, and his use of cocaine further interfered with
appellant’s judgment and reasoning. Appellant denied prior sexual contact with the
victim, as well as having persistent sexual thoughts about underage girls. Dr. Middleton
diagnosed appellant with major depression, attention deficit-hyperactivity disorder,
learning disorder not otherwise specified, cannabis dependence, cocaine abuse, borderline
intellectual functioning, and dependent personality disorder. Dr. Middleton concluded
that appellant did not qualify for a diagnosis of pedophilia and did not appear to be
predatory. Dr. Middleton did not believe it would be appropriate to refer appellant for
sex offender treatment.
Sentencing Hearing
       The trial court agreed with argument by defense counsel that the appellant’s
offenses did not involve great violence and the victim was not particularly vulnerable
because every victim of N.G.’s age had some vulnerability. Defense counsel argued that
appellant’s offenses did not involve any sophistication. The court also agreed with this
point, but noted that appellant’s offenses did show planning. Defense counsel also
argued appellant had a medical condition that reduced his culpability according to Dr.
Middleton’s report and that appellant admitted culpability at an early stage in the
proceedings. The court found the latter point to be a mitigating factor.

                                                 5
         The trial court made further findings that appellant was an active participant in the
crime, the crime involved planning by the appellant, and that appellant took advantage of
the victim’s trust. The court again noted that appellant admitted culpability at an early
stage of the proceedings. The court found the effect of imprisonment would have
substantial consequences on appellant’s wife and children. The court denied parole and
sentenced appellant to 12 years in prison as set forth above.
                                        DISCUSSION
         Appellant contends the trial court abused its discretion by imposing consecutive
terms of imprisonment on counts 1, 2, 3 and 4. Appellant argues the court erred in
relying on planning and taking advantage of a position of trust as aggravating factors, and
the factors in mitigation “overwhelmingly favored concurrent sentences on counts 2, 3,
and 4.” We disagree.
         Penal Code section 669 grants the trial court discretion to impose consecutive
sentences when a person is convicted of two or more crimes. (People v. Rodriguez
(2005) 130 Cal.App.4th 1257, 1262-1263.) Only a single aggravating circumstances is
required to impose consecutive sentences. A trial court has discretion to impose
consecutive sentences where, multiple crimes have been perpetrated on the same victim.
(People v. Osband (1996) 13 Cal.4th 622, 653-655, 728-729 [victim raped and
murdered]; also see People v. Leon (2010) 181 Cal.App.4th 452, 467-469 [one criminal
act against multiple victims].)
         A trial court is generally required to state reasons for denying probation and
imposing a prison sentence. Unless the record shows otherwise, the trial court is deemed
to have considered all relevant criteria in making its discretionary sentencing choices. In
determining whether the trial court abused its discretion in making a sentencing choice,
we consider whether there is substantial evidence to support a finding that a particular
sentencing factor was applicable. (People v. Weaver (2007) 149 Cal.App.4th 1301,
1313.)

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       The trial court properly relied on the factor that appellant planned the offense,
even though the court also found this planning was not sophisticated. Appellant had
known the victim for some time. Appellant developed a friendship with the victim,
texted the victim prior to arriving to her residence, and went to the victim’s residence
knowing there were no other adults present.
       The trial court also properly relied upon the fact that appellant took advantage of a
position of trust when he decided to perform multiple sex acts on the victim. Appellant’s
texting relationship with the victim included trading of information about both the victim
and her older sister. Also, appellant admitted to Dr. Middleton that he was aware that the
victim was troubled prior to committing the instant offenses. Appellant knew the victim
was emotionally vulnerable and proceeded to take advantage of a position of trust to
engage in sexual acts with her.
       Here, the trial court stated its reasons for its sentencing choices. In doing so, it
found some factors applicable and disregarded or found others inapplicable. The court
was clearly aware of both the aggravating and mitigating sentencing factors in appellant’s
case. Where the court has affirmatively demonstrated knowledge of the applicable law
and has weighed the evidence in the record and the various sentencing factors to deny
probation and to fashion a sentence, we cannot say that the court has abused its discretion
in deciding to impose consecutive sentences. (See People v. Ramirez (2006) 143
Cal.App.4th 1512, 1530.)
       The court was clearly aware of the mitigating factors in this case, but gave them
less weight than the aggravating factors it relied upon. Appellant seeks to have this court
reweigh the mitigating and aggravating factors used by the trial court. We cannot do so
and view the trial court’s sentencing scheme under the abuse of discretion standard of
review. (People v. Bradford (1976) 17 Cal.3d 8, 20.) Appellant further argues that
counts 1 through 4 occurred only during a single sexual encounter. The law is clear,
however, that separate and distinct sexual acts can be sentenced consecutively even if

                                              7
they all occurred during a single sexual encounter. (People v. Senior (1992) 3
Cal.App.4th 765, 780; People v. Reeder (1984) 152 Cal.App.3d 900, 914-915.) We
conclude that the trial court was well aware of its sentencing discretion, applied the
appropriate legal principles and sentencing factors, and did not abuse its discretion in
doing so.
                                      DISPOSITION
       The judgment is affirmed.




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