People v. Adam CA2/1

Filed 12/6/22 P. v. Adam CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B322614
Plaintiff and Respondent, (Kern County
Super. Ct. No. BF171318A)
v.
DEREK CHANNING ADAM,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern
County, John W. Lua, Judge. Affirmed in part and reversed in
part.
Stephen M. Hinkle, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Eric L. Christoffersen and Sally Espinoza,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________________
Derek Channing Adam appeals from a judgment entered
after a jury found him guilty of continuous sexual abuse of a child
(count 2) and two specific (discrete) sexual offenses: oral
copulation or sexual penetration of a child who is 10 years of age
or younger (count 1) and committing a lewd or lascivious act upon
a child who is under 14 years of age (count 3). Adam contends
Penal Code section 288.5, subdivision (c)1 precludes his
convictions for both continuous sexual abuse of a child and
specific sexual offenses committed against the same victim
during the same time period. He is correct. The remedy is to
either reverse the conviction for continuous sexual abuse or the
convictions for the specific sexual offenses. For the reasons
explained below, under the rationale of applicable caselaw, we
conclude the appropriate remedy is to reverse the conviction for
continuous sexual abuse, leaving Adam convicted of the offenses
providing the greater punishment, commensurate with his
culpability (a 15-year-to-life sentence on count 1 and a stayed
term on count 2, as opposed to a 16-year sentence on count 2).
Adam also contends the trial court erred in failing to
determine his ability to pay various fines and assessments before
imposing them. He did not object in the trial court to the
imposition of the fines or assessments; nor did he request a
determination of his ability to pay. Thus, he forfeited his
challenge to the fines and assessments.
BACKGROUND
An information filed June 22, 2018, charged Adam with
oral copulation or sexual penetration of a child who is 10 years of
age or younger (§ 288.7, subd. (b); count 1); continuous sexual
1 Undesignated statutory references are to the Penal Code.
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abuse of a child (§ 288.5, subd. (a); count 2); and committing a
lewd or lascivious act upon a child who is under 14 years of age
(§ 288, subd. (a); count 3). The information alleged the three
offenses were committed against the same victim and occurred
“on or about and between September 8, 2014 and February 15,
2018.”
A lengthy recitation of the facts and circumstances of the
offenses is not necessary because Adam does not challenge the
sufficiency of the evidence supporting his convictions. The
prosecution presented evidence at trial indicating that, beginning
when his niece was six or seven years old, and continuing to
when she was eight or nine years old, Adam placed his penis in
his niece’s mouth when he babysat her. On these occasions, he
took her into a closet or a bedroom, and he usually draped
something over her, such as a blanket. The child could not state
the exact number of times this occurred, but she confirmed it
occurred more than 10 times.
On February 10, 2021, the jury found Adam guilty of the
charged offenses. On March 15, 2021, the trial court sentenced
him. The court deemed count 1, oral copulation or sexual
penetration of a child who is 10 years of age or younger, to be “the
primary sentence,” and noted it “require[d] a sentence by law” of
15 years to life in prison, which the court imposed. The court
imposed and stayed under section 654 the following terms on the
other counts: the middle term of 12 years on count 2, continuous
sexual abuse of a child; and the middle term of six years on count
3, committing a lewd or lascivious act upon a child who is under
14 years of age. In imposing these terms on counts 2 and 3, the
court referenced a circumstance in mitigation (Adam had no prior
record of criminal conduct) and a circumstance in aggravation (as
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the victim’s uncle and babysitter, Adam took advantage of a
position of trust to commit the offenses).
Without objection from Adam, the trial court imposed the
following fines and assessments: a $30 court facilities
assessment for each of the three convictions, or $90 (Gov. Code,
§ 70373); a $40 court operations assessment for each of the three
convictions, or $120 (§ 1465.8); the minimum restitution fine of
$300 (§ 1202.4, subd. (b)); a $300 parole revocation fine, which
was stayed unless parole was revoked (§ 1202.45); and, as to
count 1, a $300 fine for sex offenders (§ 290.3), plus statutory
penalty assessments on the fine of $930, or $1,230.2 Accordingly,
the total amount due was $1,740.
DISCUSSION
I. Under Section 288.5, Subdivision (c), Adam Cannot
Stand Convicted of Both Continuous Sexual Abuse of
a Child and Other Specific Sexual Offenses
The parties agree, as do we, that Adam’s convictions for
continuous sexual abuse of a child and the two other specific
sexual offenses committed against the same victim during the
same time period cannot all stand under the prohibition in
section 288.5, subdivision (c), defined below. They disagree as to
which convictions we should reverse. Adam urges us to “dismiss”
his convictions on counts 1 and 3 (the two specific sexual
offenses), leaving him convicted of continuous sex abuse of a child
(count 2) and sentenced to 12 years in prison. The Attorney
General argues the appropriate remedy is to “vacate” Adam’s
convictions on counts 2 and 3, leaving him convicted of oral
2As to counts 2 and 3, the trial court stayed the fine
imposed under section 290.3.
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copulation or sexual penetration of a child who is 10 years of age
or younger (count 1) and sentenced to 15 years to life in prison.
For the reasons explained below, we reverse Adam’s conviction on
count 2 for continuous sexual abuse of a child and conclude
Adam’s convictions on counts 1 and 3 (the specific sexual
offenses) may stand.3
Section 288.5, subdivision (c) provides, in pertinent part:
“No other act of substantial sexual conduct, as defined in
subdivision (b) of Section 1203.066, with a child under 14 years of
age at the time of the commission of the offenses, or lewd and
lascivious acts, as defined in Section 288, involving the same
victim may be charged in the same proceeding with a charge
under this section unless the other charged offense occurred
outside the time period charged under this section or the other
offense is charged in the alternative.” In Johnson, supra, 28
Cal.4th at page 248, our Supreme Court interpreted section
288.5, subdivision (c) to mean prosecutors “may not obtain
multiple convictions” for “continuous sexual abuse and specific
sexual offenses, pertaining to the same victim over the same
period of time.”
As set forth above, Adam was charged in count 1 with oral
copulation or sexual penetration of a child who is 10 years of age
or younger, an act of substantial sexual conduct (§§ 288.7, subd.
(b), 1203.066, subd. (b)), in count 2 with continuous sexual abuse
3 We use the term “reverse” rather than “vacate” to describe
our disposition, following the terminology our Supreme Court
used in People v. Johnson (2002) 28 Cal.4th 240, 248 (Johnson).
Courts appear to use these two terms interchangeably. We
include the word “vacate” below when quoting from other
appellate court opinions.
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of a child (§ 288.5, subd. (a)), and in count 3 with committing a
lewd or lascivious act upon a child who is under 14 years of age
(§ 288, subd. (a)). The three offenses involved the same victim,
and the information alleged each of the offenses occurred during
the same time period. The offenses were not charged in the
alternative, and Adam was convicted of all three. As the parties
agree, under section 288.5, subdivision (c), Adam cannot stand
convicted of continuous sexual abuse of a child as well as the two
specific sexual offenses committed against the same victim
during the same time period.
In Johnson, the Supreme Court did not specifically address
which of the defendant’s multiple convictions should be reversed,
the continuous sexual abuse of a child or the five specific sexual
offenses for forcible lewd act upon the same child, which occurred
during the same time period. The Court did, however, set forth
“the Court of Appeal’s reasoning” in the case that “either the
continuous abuse conviction or the convictions on the specific
offenses must be vacated.” (Johnson, supra, 28 Cal.4th at p. 245,
italics added.) The Supreme Court affirmed the Court of Appeal’s
reversal of the convictions for the five specific sexual offenses,
leaving the defendant convicted of continuous sexual abuse. (Id.
at p. 248.) Adam takes this to mean that the proper remedy for
the charging violation under section 288.5, subdivision (c) in this
case is to reverse the convictions for the specific sexual offenses
and leave him convicted of continuous sexual abuse. Appellate
caselaw decided subsequently to Johnson shows otherwise and
explains how to determine which conviction(s) should be reversed
in the event of such a charging violation.
In People v. Torres (2002) 102 Cal.App.4th 1053, 1055
(Torres), applying Johnson, the Court of Appeal held the
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defendant could not “stand convicted of both a violation of section
288.5 [continuous sexual abuse of a child], and of multiple counts
of other specific felony sex offenses committed against the same
victim and in the same time period as the section 288.5 count.”
The court further held “the appropriate remedy for the failure to
plead these offenses in the alternative, as required by subdivision
(c) of section 288.5, is to reverse [the defendant]’s conviction on
the section 288.5 count,” leaving him “convicted of 10 counts of
other felony sex offenses committed against [the same victim]
occurring within the same time period.” (Torres, at pp. 1055-
1056.)
Similarly to Adam, the defendant in Torres argued Johnson
“requires that whenever multiple convictions are obtained in
violation of section 288.5, subdivision (c), only the conviction for
continuous sexual abuse may stand, and the convictions on the
specific counts must be vacated.” (Torres, supra, 102 Cal.App.4th
at p. 1057.) The Court of Appeal in Torres rejected this argument
explaining, as we did above, that in Johnson the Supreme Court
did not reach the question of whether “the proscription against
multiple convictions in section 288.5, subdivision (c) could be
remedied instead by reversing the section 288.5 conviction.”
(Ibid.) The “Supreme Court’s opinion [in Johnson] requires
nothing more than vacation of either the continuous sexual abuse
conviction or the convictions on the specific sexual offenses.”
(Ibid.)
In deciding whether to reverse the defendant’s conviction
for continuous sexual abuse or his convictions for the specific
sexual offenses, the Court of Appeal in Torres concluded it was
appropriate to “leave [the defendant] standing convicted of the
alternative offenses that are most commensurate with his
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culpability.” (Torres, supra, 102 Cal.App.4th at p. 1059.) In
reversing the defendant’s conviction for continuous sexual abuse
and leaving him convicted of the 10 specific sexual offenses that
occurred in the same period and against the same victim as the
continuous sexual abuse offense, the court explained: “Because of
the number and severity of these specific offenses, [the
defendant] faced a greater maximum aggregate penalty with
respect to these than he did on the continuous sexual abuse
offense. The [trial] court also imposed a greater aggregate
sentence with respect to the specific offenses than on the section
288.5 offense [continuous sexual abuse], and stayed execution of
sentence on the latter. In these circumstances we conclude the
appropriate remedy is to reverse the conviction for violating
section 288.5.” (Id. at p. 1060.) The appropriate remedy “will
ordinarily translate to upholding whichever conviction resulted in
the greater aggregate penalty and vacating the less serious
count.” (People v. Rojas (2015) 237 Cal.App.4th 1298, 1309.)
The Court of Appeal in Torres noted that the “intent of the
Legislature in enacting section 288.5 was ‘to provide additional
protection for children subjected to continuing sexual abuse and
certain punishment.’ (Stats. 1989, ch. 1402, § 1, p. 6138, italics
added.)” (Torres, supra, 102 Cal.App.4th at pp. 1058-1059.) The
Torres court also quoted from this appellate district’s opinion in
People v. Alvarez (2002) 100 Cal.App.4th 1170, 1177-1178, which
reasoned, “It would be anomalous if section 288.5, adopted to
prevent child molesters from evading conviction, could be used by
those molesters to circumvent multiple convictions with more
severe penalties and prior-strike consequences than available for
a conviction under section 288.5.” (Torres, at pp. 1060-1061;
compare People v. Bautista (2005) 129 Cal.App.4th 1431, 1438
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[the defendant “has not suggested how a conviction of four counts
of procuring C. [the victim] is in any way more commensurate
with her culpability than a conviction of continuous sexual abuse
of C., and we fail to see how convicting [the defendant] only of
procurement is in any way proportionate to the egregious
criminal conduct in which she engaged. Consequently, we affirm
the conviction of continuous sexual abuse of C., and vacate her
convictions of procurement of C.” under the prohibition in section
288.5, subdivision (c)].)
The remedy here for the charging violation under section
288.5, subdivision (c) is either reversal of the conviction for
continuous sexual abuse of a child or reversal of the convictions
for the specific sexual offenses. The conviction on count 1 for oral
copulation or sexual penetration of a child who is 10 years of age
or younger under, a violation of section 288.7, subdivision (b),
carries the greatest punishment: the defendant “shall be
punished by imprisonment in the state prison for a term of 15
years to life.” (§ 288.7, subd. (b).) Commensurate with Adam’s
culpability, the trial court selected count 1 as the base term and
imposed the mandatory sentence of 15 years to life. The court
imposed and stayed the middle terms on count 2 for continuous
sexual abuse of a child (§ 288.5, subd. (a)) and count 3 for
committing a lewd or lascivious act upon a child who is under 14
years of age (§ 288, subd. (a)).4 In accordance with the rationale
in Torres and other caselaw cited above, we reverse Adam’s
conviction for continuous sexual abuse of a child (count 2),
4 The punishment for a violation of section 288.5,
subdivision (a) is 6, 12, or 16 years in state prison. The
punishment for a violation of section 288, subdivision (a) is 3, 6,
or 8 years in state prison.
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dismiss count 2, and leave Adam standing convicted of the
specific sexual offenses (counts 1 & 3), with the sentence the trial
court imposed on those counts (the mandatory term of 15 years to
life on count 1 and the middle term, stayed, on count 3). The
sentence and fines and assessments imposed on count 2 are
vacated. Remand for resentencing is not required, and neither
Adam nor the Attorney General suggests otherwise.
II. Adam Forfeited His Contentions Regarding Inability
to Pay Fines and Assessments
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157(Dueñas), Adam contends the trial court violated his due process
rights under the federal and state constitutions when it imposed
fines and assessments without a hearing to determine his ability
to pay. In the alternative, citing People v. Cowan (2020) 47
Cal.App.5th 32 (Cowan), review granted June 17, 2020, S261952,
Adam contends the trial court violated prohibitions in the federal
and state constitutions against excessive fines when it imposed
fines and assessments without determining his ability to pay.
The Attorney General argues Adam forfeited these contentions by
failing to raise an objection in the trial court to the imposition of
the fines and assessments or request the court consider his
ability to pay them. We agree with the Attorney General.
As set forth above, at the March 15, 2021 sentencing
hearing, held well after Dueñas and Cowan were decided, the
trial court imposed the following fines and assessments, with no
objection from Adam: a $300 restitution fine under section
1202.4, subdivision (b), the minimum fine permissible under the
statute;5 $120 in court operations assessments ($40 per
5 A trial court may not consider a defendant’s inability to
pay in imposing the minimum restitution fine, only in increasing
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conviction), as required under section 1465.8; $90 in court
facilities assessments ($30 per conviction), as required under
Government Code section 70373; and, as to count 1, a $300 fine
for sex offenders under section 290.3, plus statutory penalty
assessments on the fine of $930, or $1,230.6 Thus, Adam was
required to pay a total of $1,740.7 This amount is now reduced by
$70 ($40 for the court operations assessment and $30 for the
court facilities assessment), to $1,670, based on our reversal of
Adam’s conviction on count 2.
the fine in excess of the minimum. (§ 1202.4, subd. (c).) Here,
the trial court imposed the minimum restitution fine under
section 1202.4, subdivision (b).
6 The fine under section 290.3 shall be imposed as
punishment “unless the court determines that the defendant does
not have the ability to pay the fine.” (§ 290.3, subd. (a).) The
penalty assessments applicable to a $300 base fine under section
290.3, as required by statute, are: (1) a 100 percent state penalty
assessment (§ 1464, subd. (a)(1)), or $300; (2) a 70 percent
additional penalty (Gov. Code, § 76000, subd. (a)(1)), or $210; (3)
a 20 percent state surcharge (§ 1465.7), or $60; (4) a 50 percent
state court construction penalty (Gov. Code, § 70372), or $150; (5)
a 20 percent additional penalty for emergency medical services
(Gov. Code, § 76000.5), or $60; (6) a 10 percent additional DNA
penalty (Gov. Code, § 76104.6, subd. (a)(1)), or $30; and (7) a 40
percent additional state-only DNA penalty (Gov. Code, § 76104.7,
subd. (a)), or $120. As set forth above, the total of these penalty
assessments is $930.
7 The trial court also imposed but stayed a $300 parole
revocation fine under section 1202.4, and a $300 fine under
section 290.3 on each of counts 2 and 3. The latter $300 fine on
count 2 is vacated based on our reversal of Adam’s conviction on
count 2.
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Adam forfeited any contentions about the fines and
assessments by failing to raise them in the trial court. (See, e.g.,
People v. Avila (2009) 46 Cal.4th 680, 729 [rejecting argument
that, because the defendant did not have the ability to pay,
imposition of a restitution fine in excess of the minimum resulted
in an unauthorized sentence not subject to the forfeiture rule];
People v. Trujillo (2015) 60 Cal.4th 850, 859 [the constitutional
nature of the defendant’s claim regarding his ability to pay did
not justify deviation from the forfeiture rule].) Although Dueñas
and Cowan were decided before Adam’s sentencing hearing,
Adam did not argue he was entitled to an ability-to-pay hearing
either before or at the sentencing hearing when the trial court
imposed the fines and assessments.
Adam argues his trial counsel rendered ineffective
assistance by failing to object. He cannot make the requisite
showing: “(1) that defense counsel’s performance fell below an
objective standard of reasonableness, i.e., that counsel’s
performance did not meet the standard to be expected of a
reasonably competent attorney, and (2) that there is a reasonable
probability that defendant would have obtained a more favorable
result absent counsel’s shortcomings.” (People v. Cunningham
(2001) 25 Cal.4th 926, 1003, citing Strickland v. Washington
(1984) 466 U.S. 668, 687-694.) “ ‘If the record on appeal fails to
show why counsel acted or failed to act in the instance asserted to
be ineffective, unless counsel was asked for an explanation and
failed to provide one, or unless there simply could be no
satisfactory explanation, the claim must be rejected on appeal.’ ”
(Cunningham, at p. 1003.)
The record before us does not demonstrate that Adam had
an inability to pay or that there was no valid reason trial counsel
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did not object to the fines and assessments. The trial court
imposed the minimum statutory fines and assessments, in
accordance with the recommendation in the probation report,
after the probation officer interviewed Adam about his financial
status. The probation report reflects that Adam’s monthly
expenses were less than half the amount he received in monthly
government benefits. Adam was 35 years old at the time he was
sentenced. Based on the record before us, Adam cannot establish
ineffective assistance of counsel because he cannot show (1) there
could be no satisfactory explanation for his counsel’s decision not
to object to the fines and assessments (i.e., that he had the ability
to pay) or (2) the outcome would have been more favorable if his
counsel objected.8
DISPOSITION
Adam’s conviction on count 2 for continuous sexual abuse of
a child under section 288.5, subdivision (a) is reversed, the
sentence and fines and assessments imposed on count 2 are
vacated, and count 2 is dismissed. In all other respects, the
judgment is affirmed. The clerk of the superior court is directed
8 In his appellate briefing, Adam asks us to take judicial
notice of information on the California Department of Corrections
and Rehabilitation’s Web site regarding jobs and wages for
inmates. Because this information is not material to our
analysis, we decline to take judicial notice.
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to prepare an amended abstract of judgment and to forward it to
the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
WEINGART, J.
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