People v. Malcolm CA5 ( 2015 )

Filed 2/18/15 P. v. Malcolm 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,
F063174
Plaintiff and Respondent,
(Super. Ct. No. F09901869)
v.
JONATHAN McCOY MALCOLM, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. James M.
Petrucelli, Judge.
Nuttall & Coleman, Roger T. Nuttall and Glenn M. Kottcamp for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and
Jennifer M. Poe for Plaintiff and Respondent.
-ooOoo-
Jonathan Malcolm engaged in a pattern of inappropriate behavior with underage
girls who were students at a high school where he was employed as a music teacher. A
Fresno County jury found him guilty of one count of sexually penetrating a minor (Pen.
Code,1 § 289, subd. (h)), six counts of oral copulation with a minor (§ 288a, subdivision
(b)(1)), and six counts of sending harmful matter to a minor with the intent to seduce
(former § 288.2, subd. (a)). He was sentenced to an aggregate term of seven years and
four months in prison.
Malcolm appeals his convictions under a former version of section 288.2, which
has since been repealed and reenacted in substantially the same form (see discussion,
infra). He maintains there was insufficient evidence to establish his intent to seduce
certain students to whom he had sent sexually explicit text messages and photographs,
and he further argues that the statute was worded in an unconstitutionally vague manner
at the time of his prosecution. Additional claims are presented concerning the trial
court’s rejection of a special jury instruction proposed by the defense, the court’s denial
of probation at the time of sentencing, and the length of the imposed prison term.
Finding no cause for reversal, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Malcolm was charged by amended information with 13 felony counts relating to
three victims who were under the age of 18 at the time of the offenses. The charging
document alleged acts of oral copulation (Counts 1-6) and sexual penetration (Count 7)
with Jane Doe I between May 1, 2007 and August 31, 2007. Malcolm’s second victim is,
rather perplexingly, identified throughout the record as Jane Doe III. It was alleged that
Malcolm provided harmful matter to Jane Doe III for sexual purposes within the meaning
of former section 288.2, subdivision (a) on multiple occasions between December 1,
2007 and May 31, 2008 (Counts 10-13). Additional violations of former section 288.2,
subdivision (a) were alleged to have occurred between September 1, 2008 and January
28, 2009 with the third victim, Jane Doe II (Counts 8-9). To avoid confusion, we refer to
Jane Doe I as “Victim One,” to Jane Doe III as “Victim Two,” and to Jane Doe II as
1 All statutory references are to the Penal Code.
2.
“Victim Three.” All charges were tried before a jury in December 2010 and January
2011.
Prosecution Case
Victim One attended a charter high school for musically inclined students from
2003 to 2007. She took several classes taught by Malcolm during the last few semesters
of her enrollment and served as his teacher’s assistant (TA) throughout her senior year.
Malcolm was 29 years old when she became his TA, and had turned 30 by the time she
graduated in Spring 2007. Victim One was 17 years old during the time period relevant
to Counts 1 through 7.
Victim One developed what she considered to be a close friendship with Malcolm
while working as his TA. They eventually began to interact outside of normal school
hours, conversing in person, over the telephone, by e-mail, and via text messaging. The
topics of discussion included sex, which came up more frequently as she approached
graduation. Malcolm shared the details of his experiences with various women whom he
had been with prior to getting married and asked probing questions of Victim One
concerning the level of physical intimacy she had reached with her boyfriend. Their
familiarity with one another progressed to the point where Malcolm would sometimes
claim to be masturbating during their telephone conversations and encouraged Victim
One to engage in the same activity as they talked.
Malcolm and Victim One kissed a few days after she completed the 12th grade.
This marked the initial stage of a consensual sexual affair that began around June 2007
and lasted for approximately six weeks. They never had intercourse (due to an
unwillingness on her part), but Malcolm digitally penetrated Victim One and received
oral sex from her on multiple occasions. Victim One also allowed Malcolm to orally
copulate her during one of their trysts. She ultimately terminated the relationship before
moving away to attend college.
3.
On Victim One’s referral and recommendation, Victim Two became Malcolm’s
new TA for the 2007/2008 school year. Victim Two, who had just turned 16, was a
sophomore during the time period relevant to Counts 10 through 13. The TA position
required her to spend several hours alone with Malcolm in his classroom every week,
which led to the formation of a close interpersonal relationship. They soon began
communicating outside of school and sending text messages to each other on their mobile
phones.
Victim Two estimated that she and Malcolm exchanged tens of thousands of text
messages between approximately November 2007 and May 2008. It was not uncommon
for their texting “conversations” to stretch on for hours at a time and late into the night.
Many of the conversations were of a sexually explicit nature.
Malcolm first broached the topic of sex with Victim Two by making risqué jokes
and asking questions about her personal sexual history. She informed him that she had
never been kissed and planned to remain a virgin until marriage. Malcolm shared with
her his opinion that a person could have oral sex without losing their virginity. He also
encouraged her to try masturbation, which she had never done before, and instructed her
on to how to stimulate herself with her fingers.
Malcolm shared a number of stories with Victim Two about his past lovers. His
text messages contained graphic details of the positions and techniques he and his
partners had used during various sexual encounters, including the loss of his virginity to
an ex-girlfriend, his first “oral experience,” and his extramarital affair with Victim One.
There were additional tales of a one-night stand in a motel room, mutual masturbation
with a female friend on a trampoline, and an alleged “threesome” between himself and
two other women. Some of the stories provided context for more subtle overtures.
Malcolm once expressed regret over not receiving oral sex from a partner whom he
remembered as having particularly nice lips, and later told Victim Two that she also had
nice lips. He relayed another story that involved him ejaculating on a woman’s stomach,
4.
and requested that Victim Two provide him with a picture of her own torso. She
complied by sending him a self-shot photograph of the area between her waist and neck,
clad in only a brassiere. Malcolm sent a response complimenting her on her flat stomach
and saying something to the effect of, “that [stomach] would be nice to come on.”
By Spring 2008, it had essentially become routine for Malcolm to tell Victim Two
that he was masturbating during their text message exchanges. He sometimes asked her
to participate in the same activity and to describe for him how she was touching herself.
Malcolm offered on one occasion to send her “a picture of his come,” but she declined.
Victim Two never had physical sexual contact with Malcolm, but she testified to a
precarious moment when he once leaned in towards her face while holding her from
behind in a “spooning” position. The situation made her feel uncomfortable, so she
pulled away from him. According to her trial testimony, Malcolm later admitted that he
had almost kissed her. He also boasted about being a good kisser and offered to be her
first kiss.
After passing the California High School Proficiency Exam, Victim Two elected
to forgo her junior and senior years of high school. Her communications with Malcolm
tapered off at that point, but she maintained occasional contact with him from Fall 2008
through January 2009. She testified that during this time period Malcolm told her he was
exchanging text messages with one of his current students, Victim Three, and expressed
his willingness to have a physical romantic relationship with Victim Three if the
opportunity arose. Victim Two urged Malcolm to discontinue all extracurricular contact
with Victim Three because she believed “his intentions with her were going to lead to
bad places.”
Victim Three took courses taught by Malcolm throughout all four years of high
school. The two developed a personal relationship of sorts during her senior year,
starting around November 2008. She was 17 years old during the time period relevant to
Counts 8 and 9.
5.
With Victim Three, an initial exchange of seemingly innocuous text messages
quickly transitioned to a series of sexually charged conversations. Malcolm asked her if
she was a virgin, if she had ever masturbated, and if so, what types of positions and
techniques she used to stimulate herself. Her trial testimony described two occasions
where Malcolm claimed to be masturbating on his end of the line, so to speak, as they
texted back and forth with each other. In one of these instances, Malcolm requested that
Victim Three send him a picture “to help the situation along.” She responded by
transmitting a photograph of herself wearing only a brassiere and a pair of pants.
Malcolm later informed her that he had brought himself to climax and, with her
permission, transmitted back a photograph of ejaculate-stained bed sheets. Victim Three
received the message on her mobile phone but was unable to open the attached image.
She encountered this problem again when Malcolm attempted to send her another
photograph of his ejaculate on a different set of sheets. He eventually sent the pictures to
her via e-mail, and she was able to view them on her home computer. The images were
admitted into evidence at trial.
In addition to discussing masturbation, Malcolm solicited Victim Three’s opinions
regarding his physical appearance and asked her if she would consider sleeping with him.
Victim Three replied that she would not sleep with him because he was her teacher, a
married man, and well outside of her preferred age group. Despite her stated position on
the matter, Malcolm sent Victim Three text messages which described how he would
perform oral copulation and intercourse with her if she decided to lose her virginity to
him.
In January 2009, Victim Three confided in a classmate about her private
interactions with Malcolm. The classmate claimed to have her own first-hand knowledge
of Malcolm’s penchant for sexual discourse, and took it upon herself to report Victim
Three’s experience to school officials, who in turn alerted the police. Malcolm was
arrested following an investigation into the students’ allegations.
6.
During a subsequent custodial interview, Malcolm waived his Miranda2 rights and
confessed to certain misbehavior with Victim Three, including the transmission of images
depicting his bodily fluids. Upon further questioning by the investigators, who were not
fully aware of his prior misconduct at the start of the interview, Malcolm admitted that he
had exchanged illicit text messages with Victim Two and carried on a sexual relationship
with Victim One while she was still a minor. The videotaped confession was shown to
the jury.
Defense Case
Malcolm testified on his own behalf at trial. He acknowledged his affair with
Victim One and admitted the acts of unlawful sexual conduct alleged in Counts 1
through 7. Nevertheless, he claimed to have had only platonic intentions towards Victim
One while she was his student and TA. The prospect of a romantic liaison supposedly
never crossed his mind until after she had already graduated.
As for Victims Two and Three, Malcolm admitted his transgressive behavior
towards them, but insisted that he never intended for the inappropriate communications to
result in sexual encounters. The affair with Victim One allegedly left him so guilt
stricken that he had resolved to never again be (physically) unfaithful to his wife. He
denied making contrary statements to Victim Two concerning his intentions towards
Victim Three.
Following his arrest, Malcolm and his wife participated in a series of counseling
sessions with a clinical psychologist named Allan Hedberg, Ph.D. Based on his personal
evaluation of the defendant, Dr. Hedberg was of the opinion that Malcolm did not fit the
profile of a sexual predator. Dr. Hedberg further testified to his belief that Malcolm’s
actions with Victims Two and Three were not performed with the intent or purpose of
seducing the girls.
2 Miranda v. Arizona (1966) 384 U.S. 436, 478-479.
7.
Verdict and Sentencing
Malcolm was found guilty on all counts. The trial court imposed a total prison
term of seven years and four months, in addition to various fines, fees, and sex offender
registration requirements. Additional facts relevant to the sentencing issues raised on
appeal are discussed later in the opinion.
DISCUSSION
Former § 288.2
Malcolm was convicted in Counts 8 through 13 under a former version of section
288.2 which provided, in pertinent part:
(a) Every person who, with knowledge that a person is a minor, …
knowingly distributes, sends, causes to be sent, exhibits, or offers to
distribute or exhibit by any means, including, but not limited to, live
or recorded telephone messages, any harmful matter, as defined in
Section 313, to a minor with the intent of arousing, appealing to, or
gratifying the lust or passions or sexual desires of that person or of a
minor, and with the intent or for the purpose of seducing a minor, is
guilty of a public offense and shall be punished by imprisonment.…
(b) Every person who, with knowledge that a person is a minor,
knowingly distributes, sends, causes to be sent, exhibits, or offers to
distribute or exhibit by electronic mail, the Internet, as defined in
Section 17538 of the Business and Professions Code, or a
commercial online service, any harmful matter, as defined in Section
313, to a minor with the intent of arousing, appealing to, or gratifying
the lust or passions or sexual desires of that person or of a minor, and
with the intent, or for the purpose of seducing a minor, is guilty of a
public offense and shall be punished by imprisonment….
(Stats. 1997, ch. 590, § 1; see Stats. 2011, ch. 15, § 317.)
8.
In 2014, former section 288.2 was repealed and reenacted in a similar form.
(Stats. 2013, ch. 777, §§ 1, 2.) The current version of the statute consolidates the
elements of the offense into one provision and no longer contains the phrase “seducing a
minor.” (§ 288.2, subd. (a)(1).) The law now expressly requires that a defendant act with
the intent to “engag[e] in sexual intercourse, sodomy, or oral copulation with the other
person, or with the intent that either person touch an intimate body part of the other….”3
(Ibid.)
In the current and former versions of section 288.2, “harmful matter” is defined as
“matter, taken as a whole, which to the average person, applying contemporary statewide
standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts
or describes in a patently offensive way sexual conduct and which, taken as a whole,
lacks serious literary, artistic, political, or scientific value for minors.” (§ 313, subd. (a).)
Malcolm does not deny he sent harmful matter to Victims Two and Three, but argues that
3
The full text of section 288.2, subdivision (a) provides: “(1) Every person who
knows, should have known, or believes that another person is a minor, and who
knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit
by any means, including by physical delivery, telephone, electronic communication, or in
person, any harmful matter that depicts a minor or minors engaging in sexual conduct, to
the other person with the intent of arousing, appealing to, or gratifying the lust or
passions or sexual desires of that person or of the minor, and with the intent or for the
purposes of engaging in sexual intercourse, sodomy, or oral copulation with the other
person, or with the intent that either person touch an intimate body part of the other, is
guilty of a misdemeanor, punishable by imprisonment in a county jail not exceeding one
year, or is guilty of a felony, punishable by imprisonment in the state prison for two,
three, or five years. [¶] (2) If the matter used by the person is harmful matter but does not
include a depiction or depictions of a minor or minors engaged in sexual conduct, the
offense is punishable by imprisonment in a county jail not exceeding one year, or by
imprisonment in the state prison for 16 months, or two or three years. [¶] (3) For
purposes of this subdivision, the offense described in paragraph (2) shall include all of
the elements described in paragraph (1), except as to the element modified in paragraph
(2).”
9.
former section 288.2 was unconstitutionally vague in its failure to explain what it means
to have the intent or purpose of seducing a minor. We are not so persuaded.
Questions of statutory construction and interpretation are reviewed de novo.
(People v. Health Laboratories of North America, Inc. (2001) 87 Cal.App.4th 442, 445.)
“‘All presumptions and intendments favor the validity of a statute and mere doubt does
not afford sufficient reason for a judicial declaration of invalidity.’” (Personal
Watercraft Coalition v. Marin County Bd. of Supervisors (2002) 100 Cal.App.4th 129,
137, quoting Lockheed Aircraft Corp. v. Superior Court (1946) 28 Cal.2d 481, 484.) The
presumption of validity prevails if there is a reasonable degree of certainty in the text of
the challenged provisions. (People v. Heitzman (1994) 9 Cal.4th 189, 199.) “‘[A] penal
statute [must] define the criminal offense with sufficient definiteness that ordinary people
can understand what conduct is prohibited and in a manner that does not encourage
arbitrary and discriminatory enforcement.’” (Ibid., quoting Kolender v. Lawson (1983)
461 U.S. 352, 357.)
In People v. Hsu (2000) 82 Cal.App.4th 976 (Hsu), the First District Court of
Appeal upheld the constitutionality of former section 288.2 in the face of a vagueness
challenge regarding the concept of seduction. The appellate court concluded that insofar
as some dictionaries may indicate the word “seduce” alternatively means “to lead astray”
or to “persuad[e] into partnership in sexual intercourse,” a person of ordinary intelligence
would readily understand that the latter definition applies in the context of the statute.
(Hsu, supra, 82 Cal.App.4th at p. 992.) The Sixth District agreed with this conclusion in
People v. Jensen (2003) 114 Cal.App.4th 224 (Jensen), and went on to hold that the
“‘seducing’ intent element of the offense requires that the perpetrator intend to entice the
minor to engage in a sexual act involving physical contact between the perpetrator and
the minor.” (Jensen, supra, 114 Cal.App.4th at pp. 239-240).
Considering Hsu and Jensen were published in 2000 and 2003, respectively, the
legal definition of seduction, as contemplated by former section 288.2, was well
10.
established by the time Malcolm engaged in the activity for which he was prosecuted.
Both opinions reason that the statute’s accompanying intent requirement of “arousing,
appealing to, or gratifying the lust or passions or sexual desires” of the perpetrator or the
victim provides a reasonable degree of certainty as to the meaning of the words “seducing
a minor.” (Jensen, supra, 114 Cal.App.4th at p. 239; Hsu, supra, 82 Cal.App.4th at p.
992.) We are inclined to agree with this analysis and find no reason to depart from
existing precedent on the constitutionality of the former law.
In a separate claim involving statutory interpretation, Malcolm argues that
subdivision (a) of former section 288.2 did not prohibit the conduct upon which his
convictions under Counts 8 and 9 were based. He presumes the jury’s verdict rested on
his acts of e-mailing harmful matter to Victim Three, and asserts that such behavior could
have only been prosecuted under subdivision (b) of the statute. A similar argument was
considered and rejected by the Fourth District in Hatch v. Superior Court (2000)
80 Cal.App.4th 170 (Hatch), where the appellant claimed that references to the Internet
and electronic mail in subdivision (b) necessarily meant that such means of
communication were excluded from the scope of an earlier version of the statute
containing the same wording as subdivision (a) in terms of the distribution or exhibition
of harmful matter “by any means.” (Hatch, supra, 80 Cal.App.4th at pp. 204-205.)
Malcolm recognizes the precedential import of Hatch, but believes the case was wrongly
decided.
Regardless of the holding in Hatch, supra, 80 Cal.App.4th at p. 205 (“‘any means’
means ‘any means,’ and thus necessarily does include usage of the Internet to affect the
prohibited acts”), Malcolm’s argument fails to account for the fact that he admittedly sent
photographs of his bodily fluids to Victim Three by way of phone-to-phone messaging
before transmitting the images to her over e-mail. The initial method of delivery did not
fall within subdivision (b)’s limited application to the use of “electronic mail,” “the
Internet,” or “a commercial online service,” but was certainly subject to subdivision (a)’s
11.
broadly worded proscription against the dissemination of harmful matter “by any means,
including, but not limited to, live or recorded telephone messages….” (Italics added.)
We therefore reject Malcolm’s claim that he was erroneously convicted of Counts 8 and 9
under former section 288.2, subdivision (a) because that particular provision did not
apply to his actions.
Jury Instructions
Background
The jury below was instructed on the elements of former section 288.2,
subdivision (a) with CALCRIM No. 1140 and a specially prepared jury instruction that
was modified by the trial court from a version drafted by Malcolm’s trial counsel. The
CALCRIM pattern instruction explained that “[t]o seduce a minor means to entice the
minor to engage in a sexual act involving physical contact between the seducer and the
minor.” The special jury instruction advised: “‘Physical contact’ refers to any contact
involving the seducer’s genitals, the minor’s genitals[,] or both. Enticing a minor to
masturbate herself does not satisfy the ‘intent to seduce.’ [¶] You cannot find the
defendant guilty unless you find the defendant’s ‘intent to seduce’ was present at the time
he sent the material to the recipient.”
Defense counsel had originally requested that the special jury instruction include
the following statements: “‘Physical contact’ refers to ‘intercourse involving genital
contact between individuals’” and “You cannot find that the defendant had the ‘intent to
seduce,’ if you find that the defendant’s intent was to engage in physical contact after the
recipient had reached the age of majority – and thus was over the age of 18 and no longer
a minor.” The trial court refused to include the word “intercourse” in the final version of
the instruction out of concern that jurors would be misled to believe the offense
exclusively required intentions of genital-to-genital contact as opposed to other forms of
sexual touching (e.g., oral copulation). It also ruled that the language regarding a
defendant’s intent to engage in sexual activity only after the child has reached the age of
12.
majority was not an accurate statement of law and “would clearly mislead the jury.”
Malcolm claims these rulings were erroneous.
Analysis
A trial court is required to instruct jurors on general principles of law relevant to
the issues raised by the evidence. (People v. Valdez (2004) 32 Cal.4th 73, 115.)
Defendants are further entitled, upon request, to instructions that pinpoint the theory of
the defense case. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1142.) However, the
court “may properly refuse an instruction offered by the defendant if it incorrectly states
the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not
supported by substantial evidence [citation].” (People v. Moon (2005) 37 Cal.4th 1, 30.)
“[W]here standard instructions fully and adequately advise the jury upon a particular
issue, a pinpoint instruction on that point is properly refused.” (People v. Canizalez
(2011) 197 Cal.App.4th 832, 857.) We review claims of instructional error de novo.
(People v. Posey (2004) 32 Cal.4th 193, 218.)
The language in CALCRIM No. 1140 regarding the intent to seduce a minor is
derived from the holding in Jensen, supra, and closely mirrors the words used in that
opinion to define this particular element of the offense. (Judicial Council of Cal., Crim.
Jury Instns. (2014) Authority for CALCRIM No. 1140, p. 997; Jensen, supra, 114
Cal.App.4th at pp. 239-240.) Thus, the standard instructions that were given to the jury
in this case fully and adequately defined the phrase “seducing a minor” for purposes of
former section 288.2. (Jensen, supra, 114 Cal.App.4th at pp. 239-240; see People v.
Nakai (2010) 183 Cal.App.4th 499, 508-510 [applying the Jensen definition in analysis
of alleged instructional error on charges under former § 288.2, subd. (a)].) It follows that
the trial court was under no obligation to supplement the pattern instruction with the
language proposed by Malcolm. In any event, we agree that adding the word
“intercourse” to the special jury instruction would have carried a significant risk of
confusing and/or misleading the jury.
13.
The language regarding a defendant’s intent to seduce the minor but delay sexual
activity until he or she reaches the age of majority is not supported by the text of the
statute or any of the case law cited in appellant’s briefs. This component of the proposed
instruction was argumentative and, moreover, antithetical to the defense presented at trial.
Malcolm specifically testified that he did not intend to have sexual relations with Victims
Two or Three under any circumstances, even if they were over the age of 18. Therefore,
the proposed instruction did not actually pinpoint a theory of the defense case, which
alone justifies the trial court’s decision not to allow it.
Sufficiency of the Evidence
Malcolm twice moved for a judgment of acquittal (§ 1118.1) as to Counts 8
through 13 on grounds that the prosecution failed to present sufficient evidence of his
intent to seduce Victims Two and Three. Both motions were denied. On appeal, he
again alleges there was insufficient evidence to support his convictions under former
section 288.2, subdivision (a). Malcolm’s arguments are, in essence, an attempt to
relitigate the disputed issues of fact that were resolved against him by the jury, with an
emphasis on his subjective interpretations of the evidence. He underscores his own
denials on the witness stand, the opinions of his retained expert, and certain testimony by
Victims Two and Three wherein they conceded that at the time of the subject events they
did not personally believe Malcolm was trying to seduce them.
“In resolving claims involving the sufficiency of evidence, a reviewing court must
determine ‘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. Marshall (1997) 15 Cal.4th 1, 34.) Each
element of the offense must be supported by substantial evidence. (People v. Coffman
and Marlow (2004) 34 Cal.4th 1, 89; People v. Misa (2006) 140 Cal.App.4th 837, 842.)
Evidence is substantial only if it “reasonably inspires confidence” and is of credible and
solid value. (People v. Raley (1992) 2 Cal.4th 870, 891.)
14.
Reversal is not warranted unless the evidence is insufficient to support the verdict
under any hypothesis. (People v. Bolin (1998) 18 Cal.4th 297, 331.) The appellate court
cannot reweigh the evidence, reinterpret the evidence, or substitute its judgment for that
of the jury. (People v. Baker (2005) 126 Cal.App.4th 463, 469.) The same standard of
review applies in cases such as this one where the prosecution relies primarily on
circumstantial evidence. (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
“Intent is rarely susceptible of direct proof and must usually be inferred from a
consideration of all the facts and circumstances shown by the evidence.” (People v. Pitts
(1990) 223 Cal.App.3d 606, 888.) This is especially true where the alleged objective is
seduction, which by its very nature will often involve incremental and nuanced forms of
persuasion. The jury in this case was called upon to consider the entirety of Malcolm’s
actions and find some kind of explanation for his conduct towards Victims Two and
Three. It was their province to weigh the significance of his distinct and repetitious
pattern of behavior with three different girls and decide whether he intended for his
relationships with Victims Two and Three to follow the same trajectory towards sexual
contact that he achieved with Victim One. Although Malcolm denied harboring such an
intent, the evidence supported reasonable inferences of a plan to pique the girls’ sexual
curiosity and entice them to act out in person with him the same forms of physical
intimacy which they had so thoroughly discussed over the phone and in writing.
Particularly damaging to his case was the testimony of Victim Two regarding the
overtures about her lips and stomach; the offer to be Victim Two’s first kiss; his alleged
admissions to Victim Two about being open to having a physical relationship with
Victim Three; his questions to Victim Three regarding her willingness to sleep with him;
and the text messages he sent to Victim Three describing the manner in which he would
take her virginity if such an encounter ever occurred. The sufficiency of the evidence is
manifest.
15.
Denial of Probation
At the time of sentencing, Malcolm asked the trial court to consider ordering
felony probation with a suspended term of incarceration. In its denial of the request, the
trial court made a lengthy record of all the reasons why it felt Malcolm was not a suitable
candidate for probation. Among those considerations were the serious nature of the
crimes he had committed while holding a position of trust and authority over his victims,
the facts which showed planning, sophistication, and his “predatory and grooming
instincts on minors,” and the court’s belief that despite having no prior criminal
convictions, Malcolm’s freedom would pose a danger to members of the community.
While setting forth the basis for its ruling, the court stated on two occasions that
Malcolm was statutorily ineligible for probation “unless the mandates of [section]
1203.067 are met.” The statute to which the court referred contains a list of prerequisites
that must be satisfied before probation can be granted to a defendant who has been
convicted of certain sex crimes, including sections 288a and 289 (i.e., Counts 1-7).
(§ 1203.067, subd. (a).) Among those requirements is the completion of a court-ordered
evaluation at a diagnostic facility of the Department of Corrections or a similar
assessment by the county probation department. (Id., subd. (a)(1); see § 1203.03.)
Section 1203.067 does not apply to persons convicted of violating section 288.2; such
individuals are eligible for probation subject to the discretion of the trial court. (See
§§ 1203, subd. (e), 1203.03, subd. (a); Cal. Rules of Court, rule 4.414.4)
Malcolm contends that the trial court failed to consider his suitability for probation
under the criteria set forth in rule 4.414 and abused its discretion by denying probation
without giving him the opportunity to satisfy the prerequisites of section 1203.067. We
find no merit in these claims.
4 Subsequent references to rules are to the California Rules of Court.
16.
“‘The trial court enjoys broad discretion in determining whether a defendant is
suitable for probation.’ [Citation.] ‘To establish abuse, the defendant must show that,
under the circumstances, the denial of probation was arbitrary or capricious. [Citations.]
A decision denying probation will be reversed only on a showing of abuse of
discretion.’” (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1530 (Ramirez).)
Malcolm’s argument that the trial court failed to properly consider his suitability
for probation using the criteria in rule 4.414 belies the clear evidence to the contrary in
the reporter’s transcript. Our summary of the reasons given by the court for denying
probation shows that its decision was based in part upon the factors enumerated in rule
4.414 (a)(1), (8), and (9), as well as (b)(1) and (8). The court further acknowledged its
consideration of the probation officer’s report, victim impact statements, letters of
support provided by Malcolm’s family members, sentencing memoranda submitted by
defense counsel, and, pursuant to rules 4.421 and 4.423, the possibility of other
circumstances in aggravation and mitigation.
It is not entirely clear why the court felt compelled to reference section 1203.067,
but the record sufficiently indicates that it understood the scope of its sentencing
discretion and exercised that discretion in a reasoned manner. Malcolm is in no position
to complain that he was denied the opportunity to comply with the requirements of
section 1203.067, because such compliance is necessary “only if, after weighing the
criteria listed in rule 4.414, a court is inclined to order probation rather than prison time.”
(Ramirez, supra, 143 Cal.App.4th at p. 1532.) “When the court has no intention of
granting probation, and the record adequately supports such a determination, there is no
need for a section 1203.067 diagnostic evaluation.” (Ibid.) Malcolm has failed to carry
his burden to show the denial of probation was arbitrary, irrational, or otherwise
erroneous.
17.
Term of Imprisonment
During the oral pronouncement of judgment, the trial court sentenced Malcolm to
prison and decreed, “The aggregate term of incarceration is seven years, four months.”
However, its count-by-count recital of the imposed terms for each conviction, which
included a variety of concurrent and consecutive sentences, added up to only four years.
When the prosecutor brought this discrepancy to the court’s attention, the judge corrected
his prior statements for the record so as to bring the intended aggregate term and the
count-by-count calculations into unison.5
Malcolm claims that the trial court “acted in excess of its jurisdiction” by
“increasing” the length of his sentence because the attempt to correct its earlier
statements was not made until after it had ordered that he be remanded into custody. We
disagree with these characterizations and the premise upon which his argument is based.
Malcolm relies on the common law rule that a trial court loses jurisdiction to resentence a
criminal defendant after it relinquishes custody of the individual and the execution of his
or her sentence has commenced. (People v. Karaman (1992) 4 Cal.4th 335, 344.) Once
the sentence has been formally entered in the minutes, the court’s power to modify same
is restricted; it retains the power to mitigate a defendant’s prison term prior to execution,
but lacks the authority to increase it. (Id. at pp. 344-345, 350; People v. Ramirez (2008)
159 Cal.App.4th 1412, 1423-1424.) In this instance, however, the trial court made it
clear that Malcolm would be required to serve an aggregate term of seven years and four
5 The court indicated that Malcolm would be committed to prison for the middle
term of two years as to Counts 1, 11, 12, and 13, and one-third of the middle term (8
months) as to Counts 2 through 10, with all time to be served concurrent to the sentence
under Count 1 except for those terms imposed for Counts 7, 8, and 10. After realizing its
mistake, the court clarified that Malcolm’s sentence consisted of the middle term of two
years for each conviction under Counts 1, 3, 4, 5, and 6, and one-third of the middle term
(8 months) as to Counts 2, 7, 8, 9, 10, 11, 12, and 13, with all time to be served
consecutively except for the sentences imposed for Counts 3-6.
18.
months in prison, and did so prior to ordering that he be remanded into custody. Also,
the changes in question occurred before Malcolm’s sentence was recorded in the clerk’s
minutes. The trial court did not attempt to “resentence” the defendant, but rather
corrected the record to reflect its previously stated intentions. We thus conclude that the
sentence was authorized.
Finally, Malcolm asserts that the trial court violated section 654 by ordering the
terms imposed under Counts 8 through 13 to be served consecutively. Section 654
prohibits multiple punishments for separate crimes arising out of a single occurrence
when all of the offenses are incident to a lone objective. (People v. Cowan (2010) 50
Cal.4th 401, 498; People v. Hester (2000) 22 Cal.4th 290, 294.) Malcolm may have
entertained the singular intent to seduce Victims Two and Three, but his distribution of
harmful matter occurred in different ways, on multiple occasions, and over long periods
of time. He fails to explain how section 654 might possibly apply to the facts of this
case, and we conclude that it does not.
DISPOSITION
The judgment is affirmed.
_____________________
Gomes, J.
WE CONCUR:
_____________________
Cornell, Acting P.J.
_____________________
Franson, J.
19.