People v. Fernandez, H004537

CourtCalifornia Court of Appeals
Writing for the CourtCAPACCIOLI
Citation276 Cal.Rptr. 631,226 Cal.App.3d 669
PartiesThe PEOPLE, Plaintiff and Respondent, v. David Michael FERNANDEZ, Defendant and Appellant.
Docket NumberNo. H004537,H004537
Decision Date24 December 1990

Page 631

276 Cal.Rptr. 631
226 Cal.App.3d 669
The PEOPLE, Plaintiff and Respondent,
David Michael FERNANDEZ, Defendant and Appellant.
No. H004537.
Court of Appeal, Sixth District, California.
Dec. 24, 1990.
Certified for Partial Publication. *

Review Denied March 21, 1991.

Page 633

[226 Cal.App.3d 674] John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Gerald A. Engler, and Violet M. Lee, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Harvey R. Zall, State Public Defender, Kent Barkhurst, Deputy State Public Defender, San Francisco, for defendant and appellant.

CAPACCIOLI, Acting Presiding Justice.

I. Statement of the Case

Defendant David Michael Fernandez appeals from a judgment entered after a jury found him guilty of 155 counts of lewd and lascivious conduct upon a child and one count of lewd conduct by force (Pen.Code, § 288, subds. (a) and (b)) (hereafter sections

Page 634

288(a) and 288(b)). 1 He admitted having a prior "serious felony" conviction for rape and having served a prior prison term for various felonies. (§§ 667, 1192.7, subd. (c)(3), and 667.5.) He was sentenced to 330 years in prison. On appeal, he claims the prosecution failed [226 Cal.App.3d 675] to present sufficient specific evidence of each count. He also claims the court gave an erroneous unanimity instruction, erred in failing to grant a mistrial due to jury misconduct, and committed numerous sentencing errors. We affirm the conviction but remand the matter for resentencing. 2

II. Facts

Defendant and Cathy were married for fourteen years and had three children, including a daughter R., who was born in 1976 and, at the time of trial, was 11 years old. R. attended third grade at Glenview School in Gilroy from September 1984 to June 1985. She repeated third grade, spending the first half at Glenview and the second half at El Roble school in Gilroy. She attended fourth grade at El Roble.

R. testified that her father engaged in three types of lewd conduct with her. Using an incident that occurred during the summer of 1987, between third and fourth grade, she explained that defendant told her to go into his bedroom and lie on her back. After removing his clothes, defendant straddled her and rubbed his penis against her vagina until he ejaculated. Thereafter, he cleaned both of them off with a towel. R. testified that defendant simulated intercourse in this way "a lot," twice a week during third and fourth grades and the summers through the fourth grade. She also said that once, when she was 11 years old, she told defendant she did not want to undress and tried to leave the room, but defendant hit her in the face, giving her a "fat lip." He then simulated intercourse with her.

R. testified that at least twice a week during this same time period, more often than simulated intercourse, defendant had her masturbate him with her hand. She also said that at least once during the third grade and again during fourth grade, defendant had her orally copulate him until he ejaculated. 3

R. testified that she once told her mother about the molestation, and her mother became upset and confronted defendant, but he denied everything.

[226 Cal.App.3d 676] R. said that she wrote about being molested in her diary. Her Aunt Tina, defendant's sister, discovered the entry, asked R. about it, and immediately called Child Protective Services. Thereafter, the police interviewed R.

On July 23, 1987, Officer Raymond Hansell of the Gilroy Police Department spoke to R. She told him that on July 20 and July 21, 1987, defendant simulated intercourse with her. She also said the molestation started when she was eight years old and that she orally copulated defendant.

R. testified that defendant came home while she was talking to Officer Hansell and stood in the hallway shaking his head. She took this as a signal to be quiet about the molestation.

R.'s brother Michael testified that defendant would call R. into his bedroom for a "backrub" about four times per week. The door was always shut, except on one occasion when defendant came out wearing only a shirt and underwear. He saw R. inside the room wearing only her underwear. Michael said that R. looked upset

Page 635

whenever she came out of defendant's bedroom but never explained why. He also recalled a time when R. went into defendant's bedroom and came out with a "fat lip."

The defense sought to impeach R.'s credibility by attacking particulars of her testimony and showing the improbability that she was molested at certain times because other adults were there.

Officer Joe Ramirez of the Gilroy Police Department testified that when he interviewed R. on July 29, 1987, she said she orally copulated defendant on July 20, contrary to what she told Officer Hansell.

Defendant's mother testified that she came over to defendant's house to look after his children on July 20 because neither R.'s mother nor defendant could be there. She said she was there from 2:45 p.m. until 1:00 a.m. the next morning.

Defendant's wife Cathy, who was divorcing him at the time of trial, testified that she stayed home from work for a period of time the previous year due to an injury. She could not recall how long she was home but was on heavy medication and slept a lot. She said that everyone in the family gave defendant backrubs in his bedroom.

226 Cal.App.3d 677

III. Discussion **

IV. Sentencing Errors

Defendant contends the trial court committed numerous sentencing errors. We agree.

Before explaining the court's errors, we recount how it determined defendant's sentence in the first place.

The probation report lists six circumstances in aggravation (Cal. Rules of Court, rule 421 7) and no circumstances in mitigation (rule 423). It recommended, inter alia, a prison term of 146 years. The report was reviewed and approved by a supervising probation officer, who, for reasons not revealed in the record, submitted a separate memorandum to the court "to show the maximum possible exposure on the charges." She found this to be 330 years.

After reviewing the probation report and supplemental memo, the court stated, "The testimony of the complaining witness was both overwhelming and pathetic in its nature. The charges are such that this Court feels it has no alternative based upon the conduct of the Defendant, his past conduct, to impose the maximum possible sentence. I will do so. [p] Probation officer [sic] makes note ... that the Defendant cannot be rehabilitated. He has shown by his repeated deviant behavior that he cannot or will not conform to the mores of society and it suggests in a poetic fashion that he should spend his time behind bars. That is an understatement. [p] Mr. Fernandez, to suggest that your behavior is deviant is an understatement. Your behavior is beyond all acceptable norms of society that we live in today. Nothing more can be said by me. It would be redundant to say anything else."

The court then imposed an aggravated eight-year principal term for one violation of section 288(a), stating, "I base that aggravated term upon Rule 421 and the circumstances in aggravation more specifically set forth in the [226 Cal.App.3d 678] probation officer's report." The court likewise found the remaining violations of section 288(a) to be aggravated, but stated no reasons for doing so. For each, the court imposed consecutive two-year terms, staying the other six years of the aggravated terms so as to comply with the one-third-the-middle-term requirement of section 1170.1, subdivision (a) (hereafter section 1170.1(a).) (See rules 439 and 449.) The court stated no reasons for making these terms consecutive.

As to the violation of section 288(b), the court expressly stated it was exercising its discretion under section 667.6, subdivision (c) (hereafter section 667.6(c)), to impose a

Page 636

consecutive eight-year aggravated term, "again relying on Rule 421 of the circumstances in aggravation more specifically set forth in the probation officer's report."

In addition, the court imposed a consecutive five-year enhancement for a prior "serious felony" conviction and a consecutive one-year enhancement for a prior prison term, making a total sentence of 330 years.

The most fundamental duty of a sentencing court is to state reasons justifying the sentencing choices it makes. (§ 1170, subd. (c); rule 443; People v. Gulbrandsen (1989) 209 Cal.App.3d 1547, 1552, 258 Cal.Rptr. 75; see rule 405, subd. (f).) Here, the trial court was required to state reasons for imposing the 156 aggravated terms (§ 1170, subd. (b); People v. Turner (1978) 87 Cal.App.3d 244, 246-247, 150 Cal.Rptr. 807; see § 1170.3; rules 439, subd. (c) and 405, subd. (f)); the 154 consecutive sentences under section 1170.1(a) (§ 1170.3; People v. Belmontes (1983) 34 Cal.3d 335, 346-347, 193 Cal.Rptr. 882, 667 P.2d 686; see rules 405, subd. (f) and 425); and the one full-term consecutive sentence under section 667.6(c). (Ibid.; People v. Coleman (1989) 48 Cal.3d 112, 161-163, 255 Cal.Rptr. 813, 768 P.2d 32.). 8

In imposing an aggravated term for one violation of section 288(a) and a full consecutive term for the violation of section 288(b), the trial court simply cited rule 421 and incorporated by reference the aggravating factors enumerated in the probation report. This method of stating reasons was [226 Cal.App.3d 679] proscribed over ten years ago in People v. Turner, supra, 87 Cal.App.3d 244, 247, 150 Cal.Rptr. 807. There, the court concluded that merely incorporating the probation report by reference violates the spirit of the sentencing laws and fails to properly explain the basis for any sentencing choice. (Accord People v. Turner (1978) 87 Cal.App.3d 244, 247, 150 Cal.Rptr. 807; People v. Hernandez (1979) 100 Cal.App.3d 637, 643, 160 Cal.Rptr. 607; People v. Davis (1980) 103 Cal.App.3d 270, 280, 163 Cal.Rptr. 22; People v. Salazar (1980) 108 Cal.App.3d 992, 1000, ...

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