People v. Delp
| Decision Date | 29 January 2021 |
| Docket Number | E071300 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JIMMIE LEE DELP, Defendant and Appellant. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Affirmed in part; reversed in part with directions.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall D. Einhorn and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Jimmie Lee Delp of three counts of committing lewd and lascivious acts on a child under 14 years of age (Pen. Code, § 288, subd. (a), unlabeled statutory citations refer to this code) against more than one victim. (§ 667.61, subd. (e)(4).) The trial court sentenced Delp to two consecutive and one concurrent 15-year-to-life sentences under the "One Strike Act." (§ 667.61, subd. (e).)
Delp committed these acts more than 10 years before his trial, during a period when he was going through a divorce and living with a close friend. The victims were the friend's two young daughters who were between five and seven and seven and nine when Delp took advantage of their proximity to repeatedly molest them. The victims came forward after their father mentioned Delp's name years later, when the girls were teenagers. They accused Delp of molesting them repeatedly over a period of months and were able to describe three occasions of the abuse with sufficient detail to support convictions.
Delp identifies problems with his conviction, his sentence, and the assessments, fees, and a restitution fine the trial court imposed on him.
First, he argues the trial court erred by allowing expert medical testimony about the Child Sexual Assault Accommodation Syndrome for purposes of rebutting defense counsel's attempts to raise questions about the credibility of the victims' accusations. He argues for a change in California law to exclude such testimony on the ground it is not widely accepted in the scientific community. We conclude the law in California is clear that standard doesn't apply to expert psychological testimony and the court properly admitted it for the limited purpose of bolstering the victims' credibility. We therefore affirm the conviction.
Second, he argues his sentence is disproportionate to his crimes under section 17 of the California Constitution, which protects against cruel and unusual punishment. The trial court imposed two consecutive terms of 15 years to life and one concurrent term of 15 years to life because the offenses fall under the One Strike law as sex offenses committed against more than one young child. Delp argues the sentence is cruel and unusual because the statute lumps his crimes with a group of far more serious violent sex crimes, while other statutes punish other serious sex crimes more leniently. We conclude it was within the Legislature's broad authority to punish sex crimes against multiple young children as seriously as violent sex crimes against older children and adults. We therefore affirm the sentence.
Third, he objects to the trial court's imposition of a $1,000 restitution fine and $210 in criminal conviction and court operations assessments without first finding he had the ability to pay them. He argues People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) established a broad due process and equal protection right to have the court determine his ability to pay before imposing various assessments, fees, and fines and required the court to stay the restitution fine until determining he has the ability to pay.
Fourth, he makes the related objection that the trial court wrongly imposed $514.58 in booking fees, treating them as mandatory, though the statute gives the court discretion not to impose those fees on defendants who don't have the ability to pay them.
We conclude the trial court properly considered Delp's ability to pay in setting the restitution fine. The probation report recommended the court impose a $10,000 restitution fine. Delp opposed the fine on the ground his life sentence and poor health would preclude him from paying it. The trial court considered Delp's objection that he wouldn't be able to pay and reduced the restitution fine from $10,000 to $1,000. Because the trial court concluded Delp could pay a $1,000 restitution fine, there's no basis for objecting that the trial court violated the principles enunciated in Dueñas by failing to consider his ability to pay, so we affirm the order imposing a $1,000 restitution fine.
The People concede imposing assessments on indigent defendants implicates due process and also concede the court erred under the booking fee statute by imposing fees without considering Delp's ability to pay them. They ask us to affirm on the ground that Delp forfeited the objections and because imposing the assessments (though not the fees) was harmless error. We disagree. Though there are indications that Delp may be able to pay these assessments and fees, we conclude remand is appropriate because Delp's age and poor health raise a significant doubt about his ability to earn prison wages and the record is undeveloped concerning whether he has assets from before his arrest. Also relevant is the fact that the trial court decreased or struck other recommended fines and fees on the basis that Delp couldn't afford to pay them. Because the People have not established the error was harmless, we reverse the court's order imposing the booking fees and assessments and remand for the trial court to hold a hearing on Delp's ability to pay them.
I
FACTS
In 2004, George H. invited his friend, Jimmie Delp, to move in with his family in their five-bedroom home in Corona. Delp, then 57 years old, was going through an acrimonious divorce at the time, and couldn't stay with his then-wife. George said he and Delp had been close friends for 20 years, and Delp had been the best man in his wedding. The two worked together at a car dealership.
George and his wife had three daughters living with them in those years. The two young daughters were born in late 1997 and late 1999, so when Delp lived with them, the older one was between seven and nine and the younger was between five and seven. Their third daughter was a teenager. George's elderly father also lived with the family. To preserve their anonymity, we refer to the two young girls as the older daughter and the younger daughter.
Delp stayed with the family until around August 2006. After moving out, he stopped having social contact with George. George said he thought the change in conduct was odd, but he chalked it up to Delp being an unusual person. He did say he was hurt when Delp didn't call to offer condolences after George was laid off from the car dealership in 2008 or after George's father died in 2015.
This prosecution came about after the older daughter, when she was 17 years old, told her father Delp had touched her sexually on numerous occasions while he lived with them. The younger daughter reported she remembered an incident when Delp had touched her sexually as well.
At trial, both daughters, then 18 and 20 years old, testified against Delp.
The older daughter said Delp started doing "inappropriate things" to her when she was around seven years old. She said she thought Delp had touched her inappropriately at least 20 times. She also said he had touched her younger sister "pretty much" every time he touched her. She said she talked about the touching once or twice with her sister, but she never reported it to anyone else until she told her father when she was 17.
The older sister recalled two incidents well enough to describe the specific circumstances. She said on one occasion, she and Delp were sitting on the living room couch together late at night. She was wearing pajamas and Delp put his hand inside her pajamas and underwear and touched her vagina. She said she was scared and didn't understand what was going on, so she pretended to be asleep. She said her father and younger sister were both in the living room, but were asleep. On a second occasion, the older sister said she was sleeping in the living room at night and awoke when she felt Delp unbutton her pants. She said she tried to push his hand away, but he shushed her, put his hand down her pants, and touched her vagina.
The older daughter said she didn't tell her dad about the touching at the time because she was afraid of what he would do to Delp. She thought her father might end up going to jail for hurting him. She also said she didn't feel like she could tell anyone because she didn't really understand what was going on. The touching stopped when Delp moved out. She still didn't tell her parents about the touching then because she wasn't comfortable telling them and she was still afraid of what her dad would do if he found out. She also said she was embarrassed to tell anyone what Delp had done to her.
The younger sister testified about one specific incident of molestation. She said she recalled a time when she was around five or six years old and had fallen asleep on the couch in the living room. Her father and sister were also sleeping in the living room. She felt someone unbuttoning her pants and she woke up to discover it was Delp. She resisted by buttoning her pants back up and moving to the floor to get away from him. But Delp followed her to the floor and unbuttoned her pants again. He then put his hand underneath her underwear and touched...
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