People v. Pitmon

• Citation: 216 Cal.Rptr. 221,170 Cal.App.3d 38
• Court: California Court of Appeals
• Decision Date: 15 July 1985
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Barrett Miles PITMON, Defendant and Appellant. Crim. 13408.

Page 221

216 Cal.Rptr. 221

170 Cal.App.3d 38

The PEOPLE of the State of California, Plaintiff and Respondent, v. Barrett Miles PITMON, Defendant and Appellant.

Crim. 13408.

Court of Appeal, Third District, California.

July 15, 1985.

Review Denied October 3, 1985.

Certified for Partial Publication. ^*

As modified Aug. 7, 1985.

[170 Cal.App.3d 43] Jon Paul Lippsmeyer, Sacramento, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Garrick W. Chock, Deputy Atty. Gen., for plaintiff and respondent.

ROBIE, Associate Justice. ^**

Defendant was charged with kidnapping (Pen.Code, § 207, count II) ¹ and eight counts of committing lewd and lascivious acts with a child under 14 years of age by means of force or duress ( § 288, subd. (b), counts I, III, IV, V, VI, VII, VIII, IX). It was also alleged in counts I and III through IX that defendant and the victim were strangers within the meaning of section A jury convicted defendant on all counts and found true the allegations in counts III through VII that the child was under the age of 11. In a bifurcated phase of trial in which defendant waived his right to a jury, the court found true the allegations pertaining to the five prior convictions. Defendant was sentenced to an aggregate term of 51 years--consecutive six-year middle terms on counts I, III, IV, V, VI, VII, VIII pursuant to section 667.6 subdivision (c), plus a five-year enhancement pursuant to section 667, and four one-year enhancements pursuant to section 667.5 subdivision (b) ².

1203.066, subdivision (a)(3), and in counts III through VII that the victim was under the age of 11 years within the meaning of subdivision (a)(8) of that section. The information further asserted defendant had suffered a prior conviction of a serious felony within the meaning of sections 667 and 1192.7, subdivision (c), and that he had served four separate prison terms as a result of prior felony convictions within the meaning of section 667.5, subdivision (b).

On appeal, defendant challenges the sufficiency of the evidence, the adequacy of jury instructions, and the validity of his sentence. We shall affirm the convictions and remand for resentencing. ³

FACTS

In the early afternoon of Sunday, July 24, 1983, eight-year-old Ronald P. went to David Lubin School, located two blocks from his home. At the schoolyard, Ronald saw defendant sitting on a bench and signaling for him to come over. When Ronald approached, defendant asked Ronald to sit down beside him on the bench. Defendant told Ronald he "looked like the kind of person to rub his balls." Defendant grabbed Ronald's hand, placed it on his own genitals, and rubbed himself with Ronald's hand. Thereafter, defendant pulled Ronald by the hand to an area outside the school staff lounge. He removed Ronald's penis from his shorts and orally copulated him. Defendant then made Ronald orally copulate him. Because defendant did not feel the lounge area was a good place to perform these acts, he led Ronald by the hand back to the bench and subsequently to an area near some fenced air conditioning units in the back of the school. He again orally copulated Ronald and had Ronald orally copulate him. Once more, defendant felt they should move to a safer location. Consequently, after a brief return to the bench, he took Ronald to a "bushy" area some 50 feet beyond the air conditioning units. There he twice orally copulated Ronald and Ronald orally copulated him.

Knowing that a security guard was present at Sacred Heart School, Ronald directed defendant to the school as a good place to continue the acts. Ronald told defendant he first had to go home but that he would meet him there. After Ronald told his mother of the molestations, the two went to Sacred Heart School where Ronald's mother informed the security guard what had happened. Defendant was detained until Officer Jeffrey Gibson of the Sacramento Police Department arrived at the scene to interview Ronald. Ronald informed Officer Gibson defendant had forced him to engage in the sex acts and that he had tried to get away once, but that defendant grabbed and held him.

DISCUSSION

I ⁴

II

Defendant also contends his sentence was excessive because there was insufficient evidence to support a finding of "force, violence, duress, menace, or threat of great bodily harm" to justify the use of the full and consecutive sentencing provision of section 667.6, subdivision (c). We reject this claim.

Section 667.6, subdivision (c) states in pertinent part: "In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of ... subdivision (b) of Section 288 ... whether or not the crimes were committed during a single transaction." Section 288, subdivision (b), provides that any person who while harboring sexual intent commits a lewd and lascivious act with a child under 14 years of age by means of force, violence, duress, menace, or threat of great bodily harm, shall be guilty of a felony. ⁵ In People v. Cicero (1984) 157 Cal.App.3d 465, 204 Cal.Rptr. 582, this court held that in order to establish "force" within the meaning of section 288, subdivision (b), the People must show "defendant used physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself." (Id., at p. 474, 204 Cal.Rptr. 582.) Since defendant's offenses occurred prior to the Cicero decision, we must first decide whether the Cicero definition of force applies to the present case.

"To determine whether a decision should be given retroactive effect, the California courts first undertake a threshold inquiry: does the decision establish a new rule of law? If it does, the new rule may or may not be retroactive, ... but if it does not, 'no question of retroactivity arises' because there is no material change in the law. [Citations.]" (People v. Guerra (1984) 37 Cal.3d 385, 399, 208 Cal.Rptr. 162, 690 P.2d 635.) "Neither is there any issue of retroactivity when we resolve a conflict between lower court decisions, or address an issue not previously presented to the courts. In all such cases the ordinary assumption of retrospective operation [citations] takes full effect." (Donaldson v. Superior Court (1983) 35 Cal.3d 24, 36-37, 196 Cal.Rptr. 704, 672 P.2d 110.)

If a decision establishes a new rule contrary to one already in existence the retroactive effect of that decision is determined by application of the test derived from Stovall v. Denno (1967) 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. (People v. Guerra, supra, 37 Cal.3d at p. 401, 208 Cal.Rptr. 162, 690 P.2d 635.) Since Cicero established a definition for force different from that which was commonly understood, application of the Stovall test is appropriate.

"Under [that] test, the court considers three factors: '(a) the purpose to be served by the new standards, (b) the extent of reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of retroactive application of the new standards.' [Citations.]" (People v. Garcia (1984) 36 Cal.3d 539, 548, 205 Cal.Rptr. 265, 684 P.2d 826.) The factors, however, are not of equal weight. When the purpose of the new standard clearly favors retroactivity or prospectivity, it will be given effect without regard to the weight of the other factors. (People v. Guerra, supra, 37 Cal.3d 385 at p. 402, 208 Cal.Rptr. 162, 690 P.2d 635.)

"Perhaps the most consistent application of this principle has been in cases in which the primary purpose of the new rule is to promote reliable determinations of guilt or innocence. The United States Supreme Court has aptly characterized its operation in that event: 'Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect....' (Fn. omitted.) (Williams v. United States (1971) 401 U.S. 646, 653 [91 S.Ct. 1148, 1152, 28 L.Ed.2d 388, 395].)" (Ibid.)

The purpose underlying our decision in Cicero was to establish a standard for determining the existence of force in section 288, subdivision (b) offenses in order to ensure just and consistent results in trial. (People v. Cicero, supra, 157 Cal.App.3d at pp. 484-485, 204 Cal.Rptr. 582.) Since Cicero established a rule by which guilt or innocence is ascertained, it must be given retroactive effect. The Cicero definition of force applies to all cases not yet final as of the date it was decided (June 21, 1984). (See People v. Guerra, supra, 37 Cal.3d at pp. 402-406, 208 Cal.Rptr. 162, 690 P.2d 635; People v. Garcia, supra, 36 Cal.3d at pp. 548-549, 205 Cal.Rptr. 265, 684 P.2d 826; cf. Pryor v. Municipal Court (1979) 25 Cal.3d 238, 158 Cal.Rptr. 330, 599 P.2d 636.) With that in mind, we proceed with our analysis.

In the present case, defendant concedes the evidence is sufficient to support findings of lewd and lascivious conduct on counts I and III through IX. He argues, however, that Ronald's admission of lack of force, duress, or threat of harm precludes any rational finding that force or duress was used in the commission of his crimes. That position is based on the following colloquy:

[The court] Did this man ever use any force on you?

[Ronald] No.

[The court] Did he ever use any violence on you?

[Ronald] No.

[The court] Do you know what duress or menace mean?

[Ronald] No.

[The court] That's sort of a threat--

[Ronald] No.

[The court] --to do harm to you?

[Ronald] No.

[The court] He never did--

[Ronald] No.

[The court] --exercise any duress or threats?

[Ronald] Huh-uh (negatively).

[The court] Did he ever threaten to hurt you?

[Ronald] No.

We seriously doubt Ronald understood the questions asked. Throughout his testimony at the trial, Ronald had...