People v. Citalan CA4/2

Filed 12/9/20 P. v. Citalan 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E072031
v. (Super.Ct.No. INF1601016)
MANUEL JONATAN PALENCIA OPINION
CITALAN,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Otis Sterling III, Judge.
Affirmed as modified.
Diane E. Berley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, and Susan
Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
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FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On October 17, 2016, an amended information charged defendant and appellant
Manuel Jonatan Palencia Citalan with a lewd and lascivious act upon a child under the
age of 14 under Penal Code1 section 288, subdivision (a) (count 1); oral copulation with a
child under the age of 14 and more than 10 years younger than defendant under section
288a, subdivision (c)(1) (count 2); oral copulation or sexual penetration with a person
who is 10 years of age or younger under section 288.7, subdivision (b) (count 3);
committing a lewd and lascivious act upon a child under the age of 14, by use of force,
violence, duress, menace and fear of immediate and unlawful bodily injury under section
288, subdivision (b)(1) (count 4); and felony false imprisonment under section 236 (count
5).
On November 16, 2017, a jury found defendant guilty of all charges.
On January 7, 2019, the trial court sentenced defendant to a total term of 17 years
as follows: the midterm of two years on count 5, and a consecutive indeterminate term of
15 years to life on count 3. The court also imposed, but stayed under section 654, a
determinate term of two years on count 1, two years on count 2, and two years eight
months on count 4.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
On January 16, 2019, defendant filed a timely notice of appeal. On January 29,
2020, defendant filed a motion to strike the filing of his opening brief and to file an
amended opening brief, which was attached to the motion. On January 31, 2020, we
granted defendant’s motion. On April 9, 2020, defendant filed a motion to file a
supplemental brief; defendant attached a copy of the supplemental brief to the motion.
April 10, 2020, we granted defendant’s motion and directed the clerk to file the attached
supplemental brief. We also directed the parties to file supplemental respondent and
reply briefs.
B. FACTUAL BACKGROUND
1. PROSECUTION EVIDENCE
In July of 2016, D.R. (Mother) lived in Cathedral City with her five children.
Defendant was Mother’s cousin and lived in Colorado at the time. On July 28, 2016,
Mother allowed defendant to stay at her home because he was going to attend a religious
meeting in Los Angeles. The morning after defendant arrived, Mother’s son (Doe), who
was eight years old, went with defendant to visit family. They were gone for 10 to 11
hours. When they got home, defendant immediately left the house; he told Mother there
was an emergency and he had to leave.
After defendant left, Doe started to cry. He told Mother that defendant took him
to a bathroom and told Doe that defendant would give him a dollar if Doe “sucked his
dick.” Doe then took Mother and a maternal aunt to the bathroom where the incident
occurred. The bathroom was a Port-a-Potty located off a narrow path, near a lake and a
golf course in Cathedral City.
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Mother called defendant, talked to him about what happened, and recorded the
conversation. When Mother asked defendant why he took Doe to the bathroom and why
he exposed himself, defendant replied, “One thing lead to another.” Defendant then said
that he was abused as a child. Defendant then begged Mother not to tell anyone.
Defendant went on to state that although he was abused, he was not “doing the things
because of that. I had always been curious and I’ve always tried to hold back because
I’m a pastor [Mother]. If anyone finds out about this, the whole world will fall on top of
me, [Mother].” Defendant asked for Mother’s forgiveness and said that if she forgave
defendant and taught Doe to forgive defendant, Doe would be better off. Although
defendant admitted that what he had done to Doe was wrong, he said he was at the
hospital because his blood pressure was high. He stated, “I’m really paying for what I
did and I’m—I’m with my conscience [sic] that it doesn’t make sense, really. I don’t feel
good, [Mother], really. Don’t think I’m a sleaze that—that did it and that—and that
already left and no, no. I’m dying right now, really, [Mother], I’m dying. But really, I
feel like I’m dying with this, [Mother], and I’m really paying for it.” He again asked for
Mother’s forgiveness and stated he would not do the same thing again. Mother told
defendant she would not forgive him. She then contacted the police.
Pursuant to a plan with the police, Mother contacted defendant. She told
defendant that she forgave him but said defendant should ask Doe for his forgiveness.
Defendant texted back stating he was going to kill himself. Mother convinced defendant
to meet up at a fast food restaurant. When they met, Mother was wearing a wire and the
conversation with defendant was recorded. Defendant told Doe that what he had done
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was “so wrong” and asked for forgiveness. Then defendant told Doe not to tell anyone
what had happened. Police, who had been waiting nearby, came and arrested defendant.
The recorded conversation was played for the jury.
An interview between Doe and a Riverside Child Assessment Team (RCAT) was
recorded and played for the jury. In the interview, Doe’s statement was consistent with
what Mother told law enforcement. Defendant took Doe to a “plastic” bathroom off a
dirt road by a golf course and lake. Defendant locked the door and told Doe to sit down.
Doe wanted to get out, but defendant would not let Doe leave. When Doe was sitting on
the toilet, defendant pulled down defendant’s pants and underwear, and stuck his penis in
Doe’s mouth. Defendant told Doe to “suck my dick.” Defendant’s penis was “nasty” in
Doe’s mouth, and smelled “nasty,” which made Doe vomit. Defendant pulled up his
underwear and pants and they left the bathroom. Defendant told Doe not to tell anyone
what had transpired.
Doe’s testimony during the trial was consistent with what he told Mother and
during the RCAT interview.
2. DEFENSE EVIDENCE
Laura Lopez, a victim advocate with the Riverside County District’s Attorney’s
Office testified. Lopez testified that Mother had asked Lopez about obtaining a Uvisa. A
Uvisa is an immigration application available to crime victims. Lopez referred Mother to
an immigration attorney for assistance in completing the application. When defense
counsel called Mother to the stand, she confirmed that she had missed court that morning
because of an immigration appointment.
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DISCUSSION
A. COUNT 1 SHOULD BE DISMISSED
In the supplemental brief, defendant contends that count 1 (committing a lewd and
lascivious act upon a child under the age of 14 under section 288, subdivision (a)), must
be stricken because it is a lesser included offense of count 4 (committing a lewd and
lascivious act upon a child under the age of 14, by use of force, violence, duress, menace,
and fear of immediate and unlawful bodily injury under section 288, subdivision (b)(1).)
The People agree.
A lesser offense is necessarily included in a greater offense if it is not possible to
commit the greater offense without also committing the lesser offense. (People v.
Miranda (1994) 21 Cal.App.4th 1464, 1467.)
In this case, the elements of section 288, subdivision (a) (count 1) and section 288,
subdivision (b)(1) (count 4) are identical except that a violation of section 288,
subdivision (b)(1), requires that the defendant use “force, violence, duress, menace, or
fear of immediate and unlawful bodily injury on the victim or another person.”
Therefore, a violation of section 288, subdivision (a), is a lesser offense necessarily
included in a violation of section 288, subdivision (b)(1). (People v. Chan (2005) 128
Cal.App.4th 408, 421.)
Under California law, if a defendant is convicted of both a greater offense and a
lesser offense necessarily included in it, the conviction of the lesser offense is unlawful
and must be reversed. (People v. Pearson (1986) 42 Cal.3d 351, 355, overruled on other
grounds in People v. Vidana (2016) 1 Cal.5th 632, 650.) This rule has been applied when
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a defendant is convicted under both section 288, subdivision (b), and section 288,
subdivision (b)(1), for the same conduct. (People v. Chan, supra, 128 Cal.App.4th at p.
421.) “When such a state of affairs is discovered on appeal, the correct course of action
is to reverse the conviction for the included offense and direct the entry of a dismissal of
the less serious crime.” (Ibid.)
In this case, the trial court stayed count 1 under section 654 because it was based
on the same conduct as count 4. Count 1, however, as discussed above, is based on the
same conduct as count 4. Therefore, count 1 is a lesser included offense of count 4. We
will dismiss count 1.
B. THE TRIAL COURT PROPERLY SENTENCED DEFENDANT
Defendant contends that “the trial court erred in imposing a full consecutive
sentence on count 5, false imprisonment, and in not running concurrent or staying the
sentence.” We disagree.
1. THE TRIAL COURT PROPERLY DESIGNATED COUNT 5 AS THE
PRINCIPAL COUNT
In this case, the trial court designated count 5 (false imprisonment) as the principal
term, and sentenced defendant to a total term of 17 years to life as follows: an
indeterminate term of 15 years to life for oral copulation with a child under 10 under
section 288.7, subdivision (b) (count 3), and a consecutive determinate term of two years
for false imprisonment under section 236 (count 5). The court also imposed, but stayed,
under section 654, determinate sentences on the remaining counts (counts 2 and 4).
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When a sentence involves both indeterminate and determinate terms, the trial court
is required to calculate the indeterminate terms (including any attached determinate-term
enhancements) separately from the determinate terms. (People v. Neely (2009) 176
Cal.App.5th 787, 798 (Neely).) Once the court determines the sentences for the
indeterminate term offenses and the determinate term offenses, it combines the two to
reach an aggregate total sentence and determines whether the aggregate determinate term
will run concurrently or consecutively to the indeterminate term. (Id. at pp. 798-799.)
The Neely court observed, “Such sentencing has been conceptualized as sentencing in
separate boxes. [Citation.] Applying this ‘box’ analogy to the instant case, the
indeterminate term crime of first degree murder is placed in one box. . . . [¶] A second
box is created to include the three determinate sentence crimes. Applying section 1170.1,
the court would select a base term for each of the crimes, set the crime with the greatest
base term as the principal term, [and] impose the full base term as the sentence for the
principal term crime.” (Id. at pp. 798-799.)
Defendant concedes that the trial court properly sentenced defendant to an
indeterminate term of 15 years to life. Defendant, however, claims that the trial court
erred in sentencing defendant in counts 2, 4, and 5. Defendant claims that the principal
determinate term should have been count 4—eight years, “followed by 1/3 the middle
term of 6 years, or 2 years on Count 2 (§ 288a, subd. (c)(1)), and 1/3 the middle term, or
8 months on Count 5 (§ 236.)”
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“Section 1170.1 sets forth the sentencing protocol for felony offenses for which a
determinate low, middle or upper term of incarceration is imposed. It also sets forth the
rules for imposing a consecutive sentence through the designation of ‘principal’ and
‘subordinate’ terms. First, the trial court is required to select a base term—either the
statutory low, middle or upper term—for each of the crimes. [Citations.] Second, if the
court determines that a consecutive sentence is merited, it must designate the crime with
the “greatest” selected base term as the principal term and the other crimes as subordinate
terms. [Citation.] Third, the court sentences the defendant to the full base term it
selected for the principal term crime and one-third of the middle term for any crimes for
which the sentence is ordered to run consecutively. [Citations.] A subordinate term is
one-third of the middle term even if the trial court had initially selected the lower or
upper term as the base term.” (Neely, supra, 176 Cal.App.4th at pp. 797-798.)
Therefore, as discussed ante, the court in Neely provided that under section
1170.1, when selecting a base term for determinate consecutive sentencing, the court
would “set the crime with the greatest base term as the principal term.” (Neely, supra,
176 Cal.App.5th 799.) In this case, the crime with the greatest base term is count 4, eight
years but the court deemed count 2 (two years) as the principal count. Section 1170.1,
however, specifically states “except as otherwise provided by law, and subject to Section
654 . . . .” (§ 1170.1, subd. (a).) Here, defendant’s sentence is subject to section 654.
Section 654 prohibits multiple punishments for different offenses that are
committed in the course of a single intent or objective. Section 654, subdivision (a),
provides in pertinent part, “[a]n act or omission that is punishable in different ways by
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different provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision.”
In this case, the trial court sentenced defendant to two years in count 2 and eight
months in count 4—but stayed both sentences pursuant to section 654. Therefore, subject
to section 654, the trial court stayed the sentence to count 4, even though it had the
greatest base term. Therefore, the court properly selected the principal term to be count
5—which was not subject to section 654, as will be discussed post.
2. SECTION 654 DOES NOT BAR IMPOSITION OF THE SENTENCE
ON COUNT 5
Defendant argues that in the alternative, the sentence for count 5, felony false
imprisonment, must be stayed under section 654. He claims that he cannot be sentenced
for both false imprisonment (count 5) and oral copulation with a child under 10 (count 3)
because the sole purpose of the false imprisonment was to facilitate the oral copulation.
Defendant, therefore, argues that the two crimes were part of an indivisible course of
conduct with a single criminal objective. We disagree.
“The test for determining whether section 654 prohibits multiple punishment has
long been established: ‘Whether a course of criminal conduct is divisible and therefore
gives rise to more than one act within the meaning of section 654 depends on the intent
and objective of the actor.’ ” (People v. Britt (2004) 32 Cal.4th 944, 951-952.) “[I]f all
of the offenses were merely incidental to, or were the means of accomplishing or
facilitating one objective, defendant may be found to have harbored a single intent and
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therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant
harbored ‘multiple criminal objectives,’ which were independent of and not merely
incidental to each other, he may be punished for each statutory violation committed in
pursuit of each objective, ‘even though the violations shared common acts or were parts
of an otherwise indivisible course of conduct.’ ” (People v. Harrison (1989) 48 Cal.3d
321, 335.)
In support of his claim that his sentence on count 5 should be stayed, defendant
relies on People v. Islas (2012) 210 Cal.App.4th 116. The facts in this case are
distinguishable. In People v. Islas, two defendants, who were gang members, broke into
a building, climbed up a ventilation shaft, and entered a bathroom occupied by a woman
and her daughters. The defendants intimidated the woman and her daughters into hiding
the defendants from police. (Id. at pp. 119-122.) The defendants were convicted of
burglary and five counts of false imprisonment by violence or menace. The trial court
sentenced both defendants to concurrent terms on each of the false imprisonment counts.
The appellate court stated that the burglary was committed “entirely on entry with the
intent to commit felony false imprisonment.” (Id. at p. 130, italics added.) Therefore,
because there was a single criminal objective, the court held that the defendants could not
be sentenced for false imprisonment in addition to the burglary under section 654. (Ibid.)
Here, as noted by the probation officer and the trial court, counts 1, 2, 3, and 4 “related to
the same act in which [defendant] engaged in oral copulation with a child under 10 years
of age.” Therefore, the trial court imposed and stayed the sentences on counts 1, 2, and 4
under section 654. The court, however, did not stay the sentence on count 5—false
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imprisonment. Here, although defendant took Doe into the bathroom with the intent to
have the child orally copulate him, it was not until Doe resisted that defendant decided to
falsely imprison Doe to keep him from fleeing. As noted in the probation report, in the
false imprisonment charge, defendant blocked “the child’s only route of escape when the
child attempted to leave, therefore sentencing limitations for this charge pursuant to
section 654 do not apply.” We agree.
The trial court is vested with broad discretion in making the factual determination
whether the defendant had separate intents and objectives, which warranted separate
punishments under section 654. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
“A trial court’s implied finding that a defendant harbored a separate intent and objective
for each offense will be upheld on appeal if it is supported by substantial evidence.”
(People v. Blake (1998) 68 Cal.App.4th 509, 512.) Under the substantial evidence
standard of review, the trial court’s determination is reviewed in the light most favorable
to the judgment and presumes the existence of every fact the trial court could reasonably
deduce from the evidence. (Jones, at p. 1143; People v. Akins (1997) 56 Cal.App.4th
331, 339.)
Based on our review of the record, we find that substantial evidence supports a
finding that defendant demonstrated a separate criminal intent for count 3 (oral
copulation) and for count 5 (false imprisonment). Therefore, section 654 does not apply
to count 5.
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3. THE SENTENCES ON COUNTS 2 AND 4 ARE ALREADY STAYED
In his reply brief, defendant contends that “Counts 2 and 4 cannot be both
consecutized and stayed; they must be stayed under Penal Code section 654.” Defendant
makes the argument that “the trial court imposed consecutive sentences for counts 1,[2] 2
and 4, all of which were then stayed. It is with this initial pronouncement that the court
erred. The court should have imposed these sentences concurrent to each other and to
count 5, then stayed them under section 654.” Defendant’s argument is without merit.
In this case, the trial court has already imposed concurrent sentences and stayed
the sentences on counts 2 and 4. After reviewing the transcript from the sentencing
hearing, the minute order from the hearing, and abstract of judgment, there is nothing to
indicate that the court imposed consecutive sentences on counts 2 and 4. In fact, in the
abstract of judgment, under the column labeled “principal or consecutive time imposed,”
there is nothing written next to counts 2 and 4. As to count 5, however, 2 years and 0
months is noted under the “principal of consecutive time imposed.” Therefore, the
sentences on counts 2 and 4 were not imposed consecutively and have already been
stayed by the court.
DISPOSITION
The abstract of judgment is modified to dismiss the conviction on count 1. The
trial court is directed to prepare an amended abstract of judgment reflecting the dismissal
2 Because we have dismissed count 1, ante, issues relating to count 1 are not
discussed further.
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of count 1 and to forward a certified copy to the Department of Corrections and
Rehabilitation. As so modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RAMIREZ
P. J.
FIELDS
J.
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