People v. Percy

1

THE PEOPLE, Plaintiff and Respondent, v. ALFORD DEJOHN PERCY, Defendant and Appellant.

F085950

California Court of Appeals, Fifth District

May 23, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Fresno County No F20906033. Heather Mardel Jones, Judge.

Solomon Wollack, 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, Kari Ricci Mueller and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THE COURT ^[*]

Defendant Alford DeJohn Percy sexually abused his stepdaughter for several years starting when she was seven years old. Defendant pled no contest to multiple sex offenses without a plea bargain. The trial court sentenced defendant to 52 years eight months to life consisting of consecutive terms of 25 years to life, the middle term on three counts of 10 years nine years, and eight years, respectively, plus eight months on the final count. Defendant contends the trial court erroneously imposed the middle terms without making a finding on whether his psychological trauma was a contributing factor to the offenses warranting imposition of the low term under Penal Code^[1]section 1170, subdivision (b)(6).

The People respond that defendant's appeal must be dismissed because he did not obtain a certificate of probable cause. In the alternative, the People argue the trial court did not abuse its discretion in selecting defendant's sentence and any error in the court's sentence was harmless. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Summary of the Offenses^[2]

Defendant and Veronica began dating in 2006. Veronica had a daughter, Susanna, from a prior relationship who was born in 2004.^[3] Defendant and Veronica never legally married but had a son together and lived together. Susanna identified defendant as her stepfather.

When Susanna was seven years old, defendant was watching pornography on a computer in a back room where they lived. Defendant took Susanna into the back room to watch pornography with him. Defendant watched pornography with Susanna at least three times. The third time defendant inserted his fingers into Susanna's vagina.

This began a pattern of defendant sexually abusing Susanna almost weekly until she was 15 years old. Defendant inserted a massager into Susanna's vagina about five times. He also twice inserted a vibrating video game controller into her vagina when she was around 8 or 9 years old. Shortly after he inserted the controller into Susanna, defendant had vaginal intercourse with Susanna. Defendant would perform oral sex on Susanna almost every time he sexually assaulted her and put his mouth on her anus multiple times. He did not have Susanna perform oral sex on him but instead would have her hold his penis. Defendant would also insert his fingers into Susanna's vagina and anus. Susanna did not report defendant because she did not understand what was happening.

Defendant threatened to kill Veronica or Susanna's younger brother if Susanna denied his advances. When Susanna told him no once, he walked away and told Susanna her mother would pay for it. If she refused or denied sex to defendant, he would hit her, sometimes using a belt. Defendant whipped Susanna with a belt and gave her a black eye when she was in fifth or sixth grade. When school officials observed the injury, Susanna lied and said she got the black eye when she fell.

One time, Veronica went to Texas and left defendant home with Susanna. Defendant made Susanna smoke marijuana with him twice. The marijuana made Susanna dizzy. He also made Susanna walk around the house naked and sleep naked.

Defendant and Veronica separated in 2016 after a domestic violence incident.^[4]The former couple had shared custody of both children after they separated.

In 2018, Susanna was asleep on her stomach on her bed when defendant came into her room and proceeded to rip off her clothes. Susanna told defendant she wanted to sleep. Defendant grabbed her hair, shoved her face into the bed and had anal sex with her. Susanna was in pain and crying.

On January 9, 2020, defendant climbed on top of Susanna while she was laying on the couch at his home. Susanna's younger brother was at the home, but he was in a separate room playing video games with the door shut. Defendant pulled down Susanna's shorts and inserted his penis into her vagina. He then put his penis into her anus. Susanna woke up during the assault and pretended to be asleep. She felt paralyzed. The assault took place for approximately 15 to 20 minutes and ended when defendant ejaculated on the couch. After defendant finished, Susanna went into the bathroom and cried. When she came out of the bathroom she continued to cry on the couch.

Susanna was not sexually active with any other partners during defendant's abuse and suspected she got pregnant because defendant never used protection when he had sex with her. Susanna was unaware she had become pregnant as her period is normally very light spotting. On January 11, 2020, Susanna went into labor while at defendant's home. Defendant panicked and told Susanna to deliver the baby in the bathtub. He wanted to deliver the baby at home and then take the baby to a safe surrender location so no one would have to find out Susanna was pregnant. Susanna refused so defendant started to drive her to the hospital. On the way to the hospital, defendant pulled over into a parking lot and tried to convince Susanna to have the baby there. Susanna refused and said," 'I can potentially die.' "

Defendant resumed driving them to the hospital. In the car, defendant said," 'I'm driving to my doom,'" " 'I'm done,'" " 'I'm going to prison,'" and" 'I'm never going to see you again.'" Defendant also told Susanna they had to come up with a story so no one would find out he was the father of the baby. He instructed Susanna to say she got pregnant by a boy she met during summer school. Susanna told this story to her mother.

Susanna gave birth to a daughter at the hospital. She was told she was 30 to 39 weeks pregnant when she gave birth. Susanna told Veronica she did not want to keep the baby and pushed to place the baby for adoption. Susanna was worried if she kept the baby, her daughter would become defendant's victim as well.

Susanna was laying on the couch at defendant's home after her daughter's birth. Defendant was rubbing Susanna's leg and said something like," 'When are we going to get back to that place'" or" 'When are we going back to the time like before?'" Susanna knew defendant was trying to continue to have sexual relations with her. She told defendant she had just had a baby. Susanna hoped this would deter defendant from continually sexually assaulting her.

On September 1, 2020, Veronica and Susanna reported defendant's sexual abuse to the Fresno Police Department. Susanna detailed the abuse in interviews with Fresno police officers.

Fresno Police Detective Cha Thao interviewed defendant on September 4, 2020. When Thao asked defendant if he has kids, defendant identified three: Susanna's younger brother, Susanna, and Susanna's child. Defendant confirmed he had sex with Susanna but said the sex was consensual. He said he possibly blocked the incident. Defendant consented to the police's request to search his cell phone. Defendant's cell phone contained photographs of naked underage females in sexual poses.

B. Charges and Plea

On September 9, 2021, the Fresno County District Attorney filed an information charging defendant with: one count of forcible rape (§ 261, subd. (a)(2); count 1); two counts of sexual intercourse or sodomy with a child 10 years of age or younger (§ 288.7, subd. (a); counts 2 &3); two counts of oral copulation or sexual penetration with a child 10 years of age or younger (§ 288.7, subd. (b); counts 4 &5); one count of forcible sexual penetration of a child under 14 years of age (§ 289, subd. (a)(1)(B); count 6); one count of forcible sexual penetration of a child 14 years of age or older (§ 289, subd. (a)(1)(C); count 7); one count of forcible sodomy on a child 14 years of age or older (§ 286, subd. (c)(2)(C); count 8); and one count of possession or control of child pornography (§ 311.11, subd. (a); count 9). The information further alleged the aggravating circumstance that defendant personally inflicted great bodily injury in the commission of count 1.

On December 14, 2022, defendant pled no contest to all nine counts charged in the information. He also admitted the enhancement allegation. Defendant signed a plea form that included a waiver of rights. The trial court discussed the plea form with defendant and advised defendant of the rights being waived. Neither the plea form nor the court's discussion of the rights waived included a waiver of defendant's right to appeal any sentencing issue. The court calculated defendant's maximum sentence exposure as 120 years four months to life. The court indicated a sentence of 52 years eight months to life if defendant pled to all the counts in the information. The following exchange took place:

"[DEFENSE COUNSEL]: Your Honor, I advised that this is the Court's indicated. [Defendant] asked me if it's a possibility that he could get less than 52 years. I said that it's possible, but [the court is] indicating it, so it's what you're going to get.

"THE COURT: Yes. So this is my indication and, frankly, given the conduct and your maximum you're actually facing, I think this is a fair number that addresses your conduct. I understand that you are a veteran and that you suffer from disabilities as a result of your service to this country and the...