The People v. Coelho

107 Cal.Rptr.2d 729 (Cal.App. 6 Dist. 2001)

THE PEOPLE, Plaintiff and Respondent, v. RICHARD GLENN COELHO, Defendant and Appellant.

H020689

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Filed 6/5/01

(Santa Cruz County Super.Ct.No. S6-08809)

Trial Court:Santa Cruz County Superior Court No. S6-08809

Trial Judge:Hon. William M. Kelsay

Attorney for Defendant and Appellant:Paul V. Carroll, Esq. By Appointment of the

Sixth District Appellate Program

Attorneys for Plaintiff and Respondent:Bill Lockyer

Attorney General David Druliner Chief Asst. Atty. General Ronald A. Bass Senior Asst. Atty. General Bruce Ortega Supervising Deputy Atty. General Jeremy Friedlander Deputy Atty. General

CERTIFIED FOR PUBLICATION

Wunderlich, J.

I. Introduction

Under the "Three Strikes" law, the court must impose a consecutive sentence for each current offense "not committed on the same occasion, and not arising from the same set of operative facts . . . ."¹ (Pen. Code, 667, subd. (c)(6) and (c)(7); 1170.12, subd. (a)(6) and (a)(7).) Conversely, if the current offenses were committed on the same occasion and arose from the same set of operative facts, the court has discretion to impose consecutive or concurrent sentences. (People v. Hendrix (1997) 16 Cal.4th 508, 512-513; People v. Hall (1998) 67 Cal.App.4th 128, 137-138; People v. Bell (1998) 61 Cal.App.4th 282, 294.) Thus, to determine the scope of its discretion, a court must know the factual basis of each conviction. In this case, we hold that if the jury could have based its verdicts upon a number of unlawful acts and the court cannot determine beyond a reasonable doubt the particular acts the jury selected, the court should assume that the verdicts were based on those acts that would give it the most discretion to impose concurrent terms.

II. Statement of the Case

In 1996, the Santa Cruz County District Attorney charged defendant with 10 counts of lewd and lascivious conduct with a minor under the age of 14 ( 288, subd. (a)), alleging generally that each act occurred between January 13 and March 2, 1996. At trial, the prosecution introduced evidence of more than 10 lewd acts, some that occurred on different occasions and others during a single episode on March 2, 1996. The jury returned 10 guilty verdicts and also found that defendant had two prior convictions that qualified as "strikes" under the Three Strikes law. At sentencing, the court found consecutive sentences mandatory and imposed ten 25-years-to-life terms and two consecutive 5-year enhancements.

Defendant appealed, claiming, among other things, that the court erroneously thought consecutive sentences on all counts were mandatory. He argued that the jury could have based some of its verdicts on the acts of March 2, and because they were committed at the same time, the court would have had discretion over those convictions. The People agreed that the court misunderstood the scope of its discretion but argued that only two of the convictions were based on acts of March 2. Given defendant's 260-year sentence, the People proposed that we modify the judgment to reflect nine consecutive terms and one concurrent term, making remand unnecessary.

In People v. Coelho (Apr. 9, 1999, H017064) (nonpub. opn.) (hereafter Coelho I), we agreed that the trial court misunderstood the scope of its discretion.² However, we declined to modify the judgment because, contrary to the People's argument, the record did not reveal how many convictions the trial court may have thought were based on the acts of March 2 and thus over how many convictions it erroneously believed it lacked discretion. (Coelho I, supra, typed opn. p. 33.) We remanded the matter, advising the court to "make a record that will permit a reviewing court, if necessary, to determine the factual and legal bases for any consecutive sentence." (Ibid.)

On remand, defendant asserted that there was evidence of seven unlawful acts committed on March 2: one act of masturbation, one act of oral copulation, and five acts of digital penetration. He argued that because the factual bases for the 10 verdicts is unclear, the court should assume that 7 of the 10 verdicts were based on the acts of March 2 and exercise discretion on 7 counts. The prosecutor argued that the jury convicted defendant of only two acts committed on March 2: masturbation and one digital penetration. Thus, the court had discretion over only two counts.

The trial court agreed with the prosecutor and exercised its discretion to reimpose two consecutive terms. In doing so the court stated, " . . . I've handled a lot of sentencings in sex cases in my career and on the issues of whether it's appropriate for consecutive or concurrent sentencing simply based on separate and distinct acts, time to reflect, you know, all that sort of thing. [] These are really separate and distinct acts. I am sorry I don't have a lot of sympathy for [defendant]. His conduct-it is one thing to have the child orally copulate him; it's another thing for him to digitally penetrate the child. They're separate, distinct; they provide for thought in between."³

Defendant appeals from this judgment. He claims the court erred in finding that it had discretion over only two counts. He also claims the court abused its discretion in reimposing consecutive terms for the two counts. We agree with defendant's first claim but not his second. However, under the unique circumstances of this case, we decline to remand the matter again and affirm the judgment.

III. Facts

In 1993, while in prison, defendant began to correspond with Katrina M., the sister of another inmate. Thereafter, she visited him, and they fell in love. In 1994, after his release, they were married, and defendant started living with Katrina and her three daughters. Some time later, Katrina became pregnant and gave birth to another daughter (R.). Before R. was born, however, Katrina's relationship with defendant became strained because he would stay out late at night. Katrina suspected that he was taking drugs and seeing a woman named Lori Franklin.

Just before R.'s birth, defendant violated parole and was sent back to prison. After his release, he returned to the family. His behavior started out good but then changed, and he became cold, aloof, and hostile. Katrina became suspicious again and confronted him and Franklin. Although he denied being involved, Katrina did not believe him and bought a voice-activated tape recorder to eavesdrop on him.

On March 2, 1996, defendant told Katrina he was taking one of her daughters (M.) with him on an errand. At the time, M. was almost nine years old. Unbeknownst to defendant, Katrina had put the tape recorder in a diaper bag in the car. When defendant returned, she went to the car and listened to the tape. She heard M. say "Daddy, my hand is tired. Can I stop?" Defendant said he wanted to show her something and asked her to spread her legs. M. giggled because he was tickling her. He asked why she was not wearing underwear. She told him she did not know why. At one point, M. asked defendant not to touch her, and he responded, "Why not? You let [your sister] touch you in the bathtub." M. denied this, but defendant continued, "[W]ell, you're going to let your boyfriend touch you that way." M. asked him to stop, but he said, "It won't hurt you to give me some once in a while, will it?" M. continued to protest, and defendant became aggressive, saying it would not hurt her to let him touch her. When M. continued to resist, defendant turned the car on, and Katrina could no longer hear any conversation.

After listening to the tape, Katrina drove to a store and called defendant. At first, she mocked him, asking how her "spirit-filled man of God" was doing. Then she repeated what she had heard on the tape. Defendant became enraged and denied everything. She suggested letting his parole officer decide and threatened to play the tape on his voice mail. Defendant asked Katrina if she wanted a divorce, and she said she did. Defendant admitted molesting M. but threatened to take R. if Katrina did not give him the tape.

Katrina drove home. Her neighbor was in the driveway, and Katrina told her defendant had molested M. Defendant came outside with R., and Katrina told him to go. When he left with R., Katrina chased after him in the car. She found him at the nearby ravine and told him to get in the car. Defendant asked her for the tape recorder. When Katrina could not find it, defendant took R. and started to leave. Katrina searched again, found the recorder, and gave it to defendant. They then returned to the house.

At home, defendant listened to the tape. When he heard his conversation with M., he became enraged, ripped the tape out of the recorder, and flushed it down the toilet. He told Katrina, "If I'm going down, I might as well kill all of you right now." Katrina defiantly said, "Go ahead and kill me. I know I'm going to go to heaven. Go ahead and do it." At that point, defendant sat down and began to cry, saying "I don't know what is wrong with me. I feel like I have a psychotic mind. I would never hurt you or these kids." Later, however, he blamed M., claiming that she had reached into his pocket for candy and grabbed his private parts. M. called him a liar. He admitted touching her but continued to make excuses. Katrina got hysterical, and defendant became disgusted and said, "If there can't be love and forgiveness, why don't we both just not drag each other through the mud. You go your way and I'll go mine." However, he agreed to leave the next morning.

Later that evening, Katrina called her sister (Tina B.) and told her about the tape and her confrontation with defendant. She said defendant had flushed the tape down the toilet and threatened her and the children. Tina got hysterical and wanted defendant out of the house immediately. Tina believed defendant was capable of murder and told Katrina to call...