People v. Hughes, H022186.
| Decision Date | 11 July 2003 |
| Docket Number | H022186. |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY W. HUGHES, Defendant and Appellant. |
Defendant Timothy Wayne Hughes observed three girls under the age of 14 shoplifting from a drugstore. He followed them home, told them he was a probation officer, and told them that they had to obey his rules or they would go to jail. Over a period of three months, he took the girls to his home and locations outside his home. He conducted phony physical examinations on them during which he had them undress, touched them inappropriately, took sexually explicit photographs of them, and caused objects to be inserted into the vaginas of two of the girls.
A jury convicted defendant of 12 counts of committing lewd acts on a child under the age of 14 (Pen. Code, § 288, subd. (b)),1 4 counts of rape with a foreign object (§ 289, subd. (a)), 19 counts of kidnapping (§ 207, subd. (a)), and 1 count of misdemeanor possession of child pornography (§ 311.11, subd. (a)). The jury found true enhancement allegations on various counts for multiple victims (§ 667.61, subd. (e)(5)), kidnapping (§ 667.61, subd. (e)(1)), aggravated kidnapping (§ 667.61, subd. (d)(2)), impersonation of a police officer (§ 667.17), and kidnapping of a person under the age of 14 for the purposes of committing a sexual offense (§ 667.8, subd. (b)). The jury also found true numerous probation ineligibility allegations (§§ 1203.066, subds. (a)(3), (6) & (7)).
Defendant was sentenced to a total term of 268 years eight months to life in prison, consisting of: (1) three consecutive 15 years to life terms and eight consecutive 25 years to life terms for the forcible lewd act and rape with a foreign object counts, which equal 245 years to life; (2) seven consecutive determinate terms of 32 months each (one-third of the middle term) on the kidnapping counts, which equals 18 years and eight months; and (3) 13 consecutive terms of four months each for the enhancements for impersonating a peace officer, which the court calculated as equal to five years. Defendant was also sentenced to five terms of six years each, or 30 years, on some of the forcible sexual offense counts and 90 years for the kidnapping enhancements on the forcible sexual offenses, which were stayed. He was also sentenced to one year in county jail for possessing pornography.
Defendant contends that the trial court erred in denying his motion for change of venue and committed instructional error regarding the definitions of "duress" and "menace" for the purposes of the forcible sexual offenses (§§ 288, subd. (b); 289, subd. (a); CALJIC No. 10.42). Defendant also claims a series of sentencing errors: (1) that it was error to impose consecutive 25 years to life terms on two of the forcible sexual offenses; (2) that it was error to impose consecutive sentences on two of the kidnapping counts; and (3) that it was error to impose the enhancement for impersonating a peace officer on some counts, since the underlying sentences on those counts had been stayed or ran concurrently with other sentences. Defendant also asserts that the 245 years to life sentence imposed for the sexual offenses is cruel and unusual.
The Attorney General correctly concedes some of the sentencing errors. We also find that the trial court erred in imposing 25 years to life sentences on both Counts 32 and 34, since both offenses occurred on the same occasion as defined by section 667.61, subdivision (g). Consequently, we will modify the sentence. Finding no other prejudicial error, we will affirm the judgment.
On March 23, 1999, L.T. (age 11); her sister, T.T. (age 12); and their friend, L.N.2 (age 12), shoplifted some pens and pencils from a drug store in Marina. As the girls walked home, defendant stopped them. He identified himself as a probation officer, told them that he had seen them stealing, and asked to search them. As part of the search, defendant placed one of his hands down the girls' pants and touched their "private" areas. T.T and L.N. testified that his hand was outside their underwear. L.T. said that he touched her skin. He also touched T.T.'s chest.
Defendant asked the girls their names, addresses, and telephone numbers. The girls told defendant that they were all sisters and provided him with T.T.'s address and telephone number. Defendant told the girls that they would have to report to him and obey his rules. He also told them that if they did not obey him, they would end up in juvenile hall, that their parents would go to jail, and that they would end up in foster care. Defendant instructed the girls to meet him three days later outside T.T.'s apartment building.
Three days later, the girls met defendant as instructed. Defendant took them in his car to his home. Defendant brought out some papers that said "State of California" on them. He again told the girls that he was a probation officer and that his name was "Officer John." He told them that they would go to juvenile hall, that their mothers would go to jail, and that they would end up in a foster home if they did not cooperate with him. Defendant had each of the girls sign a paper that contained purported conditions of probation, including a statement that they would obey his instructions.
Defendant also had the girls fill out forms entitled "Juvenile Criminal Family Information," which asked for their names, telephone numbers, and addresses; their parents' names, the names of their parents' employers, and the hours that their parents worked. Defendant told the girls that they could not miss more than three meetings with him or they would go to juvenile hall.
Defendant took the girls to his home on several other occasions between the end of March 1999 and mid-June 1999. Sometimes it was all three girls; some times it was only two of the girls. L.T. recalled going to his house three or four times. T.T. went there seven to ten times; L.N. was there six to ten times. Sometimes, defendant had the girls clean his house. Once, he paid them $ 20 for cleaning his house.3 Later, he told them he could not pay them anymore because they were on probation and were supposed to be punished.
The girls signed documents promising to obey "Officer John" on two or three different occasions. The evidence included form documents signed by each of the girls on June 4, 1999, entitled "Rules of Probation."4 The Rules of Probation forms referred to a document that each of the girls had signed earlier entitled "Request for Probation and Temporary Release from Juvenile Hall." Copies of the latter forms were not in evidence.
On occasion, defendant told the girls to shower before they left for home. T.T. recalled showering five times. T.T. and L.N. showered together. During the course of the subsequent police investigation, the police found a hole in the wall between the bathroom and a walk-in closet that allowed a person in the closet to observe individuals in the bathroom.
During some of their meetings, defendant took the girls to locations other than his home. One day, he drove them to the main jail in Salinas and told them that if they did not obey him "that's the jail [they were] going to go in." He also took them to the Wal-Mart and Costco stores in Salinas. Another time, he took them to the Kmart in Marina. He bought them a meal at Costco and some personal items at Kmart. One day, he took them out to lunch at McDonald's and then to the beach in Seaside.
About a month after their first encounter, defendant told the girls that they had to undergo physical examinations. He brought the girls to his house and examined each girl individually in his bedroom. He ordered each girl to remove all of her clothing. He checked the girls for lice and looked at their eyes, ears, and throat. He even took a urine sample. Defendant had L.T. pose for several nude pictures, including one in which, at his direction, she held her vagina open.
Defendant told T.T. that she had to obey him during the examination and that she and her mother would go to jail if she did not. He instructed her to touch her breast to check for breast cancer. He also touched her breast and her genitals, stuck a tampon up her vagina, and photographed her nude and with the tampon protruding from her vagina.
Defendant told L.N. that if he did not examine her, he would take her some place else and have someone else do it, and that that person would probably rape her. Defendant directed L.N. to feel her breast to check for cancer and took several pictures of L.N. while she was nude.
In early June 1999, defendant brought the girls back to his house for the purposes of a second examination. He told them that "there was something wrong with [the first examination] so the state told him to do it over." He instructed the girls to remove all of their clothing. He touched T.T.'s chest and genitals. He took more photographs and told T.T. to "spread" her "private parts" while he was taking the photographs.
Defendant again told L.N. that if she did not do the examination that she would "have to go to another place to do it" and that she could be raped there. He photographed L.N. with a cigar tube and a bottle inserted into her vagina. He touched her genitals and penetrated her digitally. He also told L.N. that she would go to juvenile hall or be taken away from her parents if she did not "fake to be his girlfriend." She understood this to mean taking "pictures and stuff."
Defendant had created a medical examination checklist form on his computer. He used it while he was conducting the examinations. The form contained the following entries: "2) Strip to panties & Bra; . . . 9) Breast Cancer Screening & Nipple Leakage; . . . 11)...
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