Filed 4/10/13 P. v. Williams CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E054152

v.                                                                       (Super.Ct.No. RIF128198)

RODNEY JAMES WILLIAMS,                                                   OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Affirmed with directions.

         David McNeil Morse, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Peter Quon, Jr. and

Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.




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                                    I. INTRODUCTION

       Defendant Rodney James Williams violated Penal Code section 288, subdivision

(a),1 by committing lewd and lascivious acts against two children he babysat: six-year-

old Jane Doe 1 and five-year-old Jane Doe 2. Subsequently, he babysat Jane Doe 1, Jane

Doe 2, and a third child, 10-year-old Jane Doe 3. When the children were in the living

room, he played a pornographic movie on the television while Jane Doe 2 danced partly

naked. Jane Doe 3 put a pillow in front of her face because she did not want to watch.

Defendant pulled the pillow away from her. Shortly afterward, Jane Doe 1‟s mother

pulled into the driveway. Defendant stopped the videotape and told the children not to

say anything.

       In addition to being convicted of violating section 288, subdivision (a) against

Jane Doe 1 and Jane Doe 2 and of exhibiting harmful matter to minors with the intent to

seduce (§ 288.2, subd. (a)), he was convicted of attempted lewd and lascivious conduct

against Jane Doe 3. He was sentenced to an indeterminate term of 15 years to life plus a

consecutive five-year determinate term.

       Defendant does not challenge his convictions for the crimes he committed against

Jane Doe 1 and Jane Doe 2. His primary contention on appeal is that the evidence is

insufficient to support the conviction for attempted lewd and lascivious acts with Jane

Doe 3. He also asserts that the court failed to exercise its discretion when it ordered that

the determinate term run consecutive to the indeterminate term. The People dispute

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

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defendant‟s contention regarding the attempt conviction, but agree that the court failed to

exercise its sentencing discretion and that a new sentencing hearing is required.

       We will affirm the conviction for attempted lewd and lascivious conduct and

direct the court to hold a new sentencing hearing so that it may exercise its sentencing

discretion.

                               II. FACTUAL SUMMARY

       In the spring of 2005, Georgina M. and her daughter Jane Doe 2 were living at the

home of Mary H. and her children, including Jane Doe 1. Jane Doe 1 was six years old

and Jane Doe 2 was five years old. Defendant is Jane Doe 1‟s 20-year-old cousin. He

was also living at Mary H.‟s residence and would babysit Jane Doe 1 and Jane Doe 2

while their mothers were at work.

       The evidence at trial regarding defendant‟s sexual contact with Jane Doe 1 and

Jane Doe 2 consisted primarily of videotape recordings of Riverside Child Assessment

Team (RCAT) interviews that were made when the children were six and five years old,

respectively, and the children‟s testimony at trial more than five years later. The

children‟s descriptions of events during the RCAT interviews are somewhat disjointed

and chronologically vague, and their trial testimony was at times inconsistent with their

RCAT statements. Nevertheless, viewing the evidence, as we must, in a light favorable

to the judgment (see People v. Johnson (1980) 26 Cal.3d 557, 578), there is substantial

evidence of multiple instances of lewd and lascivious acts by defendant upon Jane Doe 1

and Jane Doe 2, including the following: (1) defendant touched Jane Doe 1‟s vagina


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with his finger when she was naked; (2) defendant licked the children‟s vaginas;; (3)

defendant put lotion on Jane Doe 2‟s naked body and on the buttocks of both children; (4)

the children put lotion on defendant‟s penis at his request; (5) defendant touched the

children‟s buttocks and vaginas with his penis; and (6) at defendant‟s direction, the

children sat naked on a large teddy bear as he watched and rubbed his finger on Jane Doe

2‟s buttocks.

       On March 28, 2005, Jane Doe 3 went to Mary H.‟s residence after school. Jane

Doe 1 and Jane Doe 2 were there. (Some time prior to this, Jane Doe 1 and Jane Doe 2

told Jane Doe 3 that defendant had “touched” them.) Defendant played a pornographic

DVD on the television in the living room with the children present. He asked Jane Doe 2

to take her clothes off. This “scared and shocked” Jane Doe 3. Jane Doe 2 pulled her

pants and underwear down, and danced while the movie played. Jane Doe 3 put a pillow

in front of her face. Without saying anything, defendant took the pillow away from Jane

Doe 3 and sat on top of it. Defendant remained dressed and never touched Jane Doe 3 or

the other children on this occasion.

       After the DVD played for about five minutes, Mary H. pulled into the driveway.

Defendant jumped up, stopped the DVD, and told the children not to say anything. Jane

Doe 3 was scared because she did not know what would happen if she said something.

       Jane Doe 1 told Jane Doe 2‟s mother about defendant‟s sexual contact with her

and Jane Doe 2. Georgina M. then asked Jane Doe 2, who confirmed what Jane Doe 1

said. The police were then contacted.


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        During their RCAT interviews, Jane Doe 1 and Jane Doe 2 referred to watching a

pornographic movie with defendant. It is unclear how many times the children watched

the movie. At one point, Jane Doe 1 told the interviewer that Jane Doe 2 wanted to “lick

[defendant‟s] long thingy.” When the interviewer asked how Jane Doe 2 knew “about

that stuff,” Jane Doe 1 responded, “„Cause from [defendant]. „Cause the movies they

took away . . . .‟” This suggests that they watched the movie on at least one occasion

before the March 28, 2005, incident. In addition, Jane Doe 2 referred to “the first time

[when] he just made me watch the movie,” implying they watched the movie more than

once.

        At trial, defendant testified that he did not show the children a pornographic movie

and did not molest them. He may have put lotion on the girls, but not in a sexual way.

The defense produced three character witnesses who had known defendant for at least 15

years. Other than hearing of the allegations in this case, they had never seen or heard of

defendant acting inappropriately around children.

                                      III. ANALYSIS

A. Sufficiency of the Evidence to Support the Conviction for Attempt to Commit Lewd

and Lascivious Acts Against Jane Doe 3

        Defendant contends the evidence is insufficient to support his conviction on count

3 for attempting to commit a lewd and lascivious act upon Jane Doe 3 in violation of

section 288, subdivision (a). We disagree.




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       In addressing a challenge to the sufficiency of the evidence supporting a

conviction, we “must review the whole record in the light most favorable to the judgment

below to determine whether it discloses substantial evidence—that is, evidence which is

reasonable, credible, and of solid value—such that a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt.” (People v. Johnson, supra, 26 Cal.3d at p.

578.) “[A]lthough reasonable inferences must be drawn in support of the judgment, [a

reviewing court] may not „go beyond inference and into the realm of speculation in order

to find support for a judgment. A [conviction] which is merely the product of conjecture

and surmise may not be affirmed.‟ [Citations.]” (People v. Memro (1985) 38 Cal.3d 658,

695 (Memro).)

       Section 288, subdivision (a) provides: “[A]ny person who willfully and lewdly

commits any lewd or lascivious act . . . upon or with the body, or any part or member

thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing

to, or gratifying the lust, passions, or sexual desires of that person or the child . . . .” The

statute requires “a touching of „any part‟ of the victim‟s body.” (People v. Martinez

(1995) 11 Cal.4th 434, 442.)

       “An attempt to commit a crime consists of two elements: a specific intent to

commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a.)

“„“Although mere preparation such as planning or mere intention to commit a crime is

insufficient to constitute an attempt, acts which indicate a certain, unambiguous intent to

commit that specific crime, and, in themselves, are an immediate step in the present


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execution of the criminal design will be sufficient. [Citations.]” [Citation.]‟ [Citation.]

No clear marker divides acts that are merely preparatory from those initiating the

criminal act. Nonetheless, „the more clearly the intent to commit the offense is shown . . .

“the more likely that steps in the early stages of the commission of the crime will satisfy

the overt act requirement”‟ of an attempt. [Citation.]” (People v. Crabtree (2009) 169

Cal.App.4th 1293, 1322.)

       Memro is instructive. In that case, the state Supreme Court upheld a murder

conviction on a felony-murder theory where the underlying felony was the attempt to

commit a lewd and lascivious act in violation of section 288, subdivision (a). (Memro,

supra, 38 Cal.3d at pp. 695-700.) The defendant in Memro asked the seven-year-old

male victim if he wanted to go get a Coke. (Id. at pp. 690-691.) As he drove the boy to

his apartment, the defendant “„had it in the back of his mind he was going to try to take

some pictures of [the boy] in the nude because that is how he got his sexual satisfaction,

photographying [sic] young boys in the nude.‟” (Id. at p. 691.) On the walls and shelves

of the defendant‟s apartment were hundreds of photographs of clothed and partially clad

young boys. (Id. at p. 667.) There were also pornographic books or magazines in plain

view. (Ibid.) The defendant took the boy into his bedroom, turned on strobe lights, and

sat down on the bed. (Id. at p. 699.) The boy stood next to the bed watching the strobe

lights for five or ten minutes. (Ibid.) When he suddenly announced he had to leave, the

defendant became angry and strangled him with a clothesline. (Ibid.)




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       In concluding there was substantial evidence to support a finding of an attempt to

commit lewd or lascivious conduct, the Memro court explained: “[T]he simple act of

accompanying [the boy] up to [the defendant‟s] apartment probably fell within the „zone

of preparation.‟ However, [the defendant] went beyond preparation. He ushered the boy

into the bedroom to watch the strobe lights and stayed close by. These were steps which

furthered his aim of readying [the boy] for a nude photography session which was, in all

likelihood, intended to culminate in lewd conduct. These acts, therefore, constituted the

„actual commencement of his plan‟ and were sufficient to support an attempt. [Citation.]

But for [the boy‟s] abrupt decision to leave the apartment, it is likely that these steps

would have resulted in a completed violation of section 288.” (Memro, supra, 38 Cal.3d

at p. 699.)

       Defendant focuses his argument on defendant‟s action of removing the pillow

from Jane Doe 3‟s face, and contends that this is evidence that he intended only to have

Jane Doe 3 watch the movie. This focus, however, is too narrow. As in Memro, we

consider the evidence of defendant‟s prior history and his “entire course of conduct.”

(Memro, supra, 38 Cal.3d at p. 699.)

       Defendant had engaged in numerous acts of sexual contact with Jane Doe 1 and

Jane Doe 2. The RCAT interviews with the younger children indicate that they had seen

the pornographic movie on at least one occasion before it was shown to Jane Doe 3 and

that viewing the movie may have contributed to fostering an environment where sexual

contact could take place. The viewing of the movie by Jane Doe 2, for example, appears


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to have prompted the child to say she wanted to lick defendant‟s “long thingy.” The

connection between the viewing of the movie and sexual behavior is further indicated by

defendant‟s direction to Jane Doe 2 to take off her clothes and Jane Doe 2‟s willingness

to dance half-naked while the movie played. In this context, defendant‟s acts of putting

on the movie in Jane Doe 3‟s presence, having Jane Doe 2 take off her clothes, and

pulling the pillow away from Jane Doe 3‟s face, could reasonably be viewed as steps in

the execution of a plan to engage in sexual contact with Jane Doe 3. The jury could thus

reasonably conclude that defendant‟s actions would have resulted in a violation of section

288 if he had not been interrupted by the arrival of Jane Doe 1‟s mother. We therefore

reject defendant‟s argument.

B. Court’s Failure to Exercise Sentencing Discretion

       At the sentencing hearing, the court pronounced an indeterminate sentence of 15

years for the convictions on the three counts of violating section 288, subdivision (a). It

further pronounced a total determinate sentence of five years for the convictions of

attempted lewd and lascivious conduct and on the three counts of exhibiting harmful

matter to a minor. The following colloquy then took place.

       “THE COURT: . . . Do I have discretion in terms of consecutive versus

concurrent on the determinatives (sic) versus indeterminatives (sic)? [¶] . . . [¶]

       “[DEFENSE COUNSEL]: It‟s my experience indeterminate has to be served first.

       “THE COURT: I agree. Determinate sentence will run consecutively to the

indeterminate sentence, total aggregate sentence of 20 years to life.”


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       Defendant and the People assert that the court had discretion to decide whether the

determinate and indeterminate terms should run consecutively or concurrently, and that

the court‟s failure to understand that it had such discretion requires a new sentencing

hearing. We agree.

       When a defendant is convicted of multiple offenses, the court “shall direct whether

the terms of imprisonment or any of them to which he or she is sentenced shall run

concurrently or consecutively.” (§ 669.) In that situation, “a trial court has discretion to

determine whether several sentences are to run concurrently or consecutively.” (People

v. Bradford (1976) 17 Cal.3d 8, 20.) When the record shows that the court proceeded

with sentencing on the erroneous assumption it lacked discretion, the court should hold a

new sentencing hearing “so that the trial court may have the opportunity to exercise its

sentencing discretion.” (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.)

       Here, the court‟s question to counsel indicates the court did not know whether it

had discretion to impose concurrent determinate and indeterminate sentences. Defense

counsel‟s response—that the indeterminate sentence must be served first—implies that

the sentences must run consecutively. The court agreed with this and ordered the

sentences to run consecutively. Applying the rules set forth above, the court must hold a

new sentencing hearing to exercise its discretion in deciding whether to order defendant‟s

determinate and indeterminate terms to run concurrently or consecutively.




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                                   IV. DISPOSITION

      Defendant‟s convictions are affirmed. Following remand, the trial court shall hold

a new sentencing hearing to determine, in its discretion, whether defendant‟s

indeterminate and determinate terms shall run concurrently or consecutively.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                              KING
                                                                                Acting P. J.


We concur:

MILLER
                          J.

CODRINGTON
                          J.




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