People v. Lamb
| Decision Date | 30 November 1999 |
| Docket Number | No. A083097.,A083097. |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Robert Bruce LAMB, Defendant and Appellant. |
Scott A. Sugarman, Sugarman and Cannon, San Francisco, Attorneys for Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, George F. Hindall III, Asst. Supervising Deputy Attorney General, Moona Nandi Deputy Attorney General, Attorneys for Respondent.
Robert Bruce Lamb, who was charged by information with 12 counts of child molestation, pleaded guilty to 3 counts of committing lewd acts on a child under the age of 14 (Pen.Code, § 288, subd. (a)).1 He was sentenced to the upper term of eight years on each count, with the terms to be served concurrently. Appellant obtained a certificate of probable cause to challenge both the validity of his plea and the legality of his sentence.
Appellant contends: (1) Both the court and the prosecutor violated the plea agreement and the principles established in People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396, thereby entitling appellant to have his convictions reversed; (2) appellant's plea was induced by misinformation by the trial court, rendering his plea involuntary; (3) the trial court had no jurisdiction over two of the three counts of conviction because the statute of limitations had expired on those two offenses; and (4) the admission at sentencing of allegations that appellant had committed misconduct more than 20 years previously, where such allegations had never been adjudicated, violated appellant's due process rights to a fundamentally fair sentencing hearing.
We conclude that the judgment must be reversed and appellant's plea set aside for misadvisement regarding the applicability of People v. Harvey, supra, 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396. So as to guide the trial court and the parties on remand, we address appellant's other contentions and reject his claims regarding the statute of limitations and denial of due process at the sentencing hearing.
All 12 counts charged against appellant related to the same victim, Randy, who was 18 years old when he went to the police in August 1997 to report that appellant had molested him in 1990 and 1991 when he was 11 and 12 years old.2 Randy began taking piano lessons from appellant when he was 10 years old. At first, his lessons were one-hour long and took place on a weekday after school. In July 1990, when Randy was 11, the schedule changed to a two-hour session at appellant's house on Saturday mornings every other week.
During the first two-hour session, appellant told Randy that music was like sex in that they both had a build-up and a climax. He also showed Randy some pornographic magazines. At the next lesson, appellant again showed Randy pornographic magazines, which caused Randy to have an erection. Randy then pulled down his pants, and appellant measured his penis.
Randy said that appellant masturbated Randy's penis during piano lessons on about 10 separate occasions between July and December 1990. During the first hour there would be a piano lesson. During the second hour, appellant would have Randy lie on the couch. Randy would pull his own pants and underwear down, and appellant would apply Vaseline to Randy's penis and proceed to masturbate Randy's penis with his hands. Randy never reciprocated by masturbating appellant.
Randy's last piano lesson took place in August 1991, when Randy was 12. While Randy was lying on the couch, appellant asked him if he would like to try something different. When Randy agreed, appellant put the Vaseline away, knelt beside Randy and orally copulated him. This act upset Randy, and he stopped taking piano lessons from appellant.
After Randy talked to the police, he made several calls to appellant at the request of the police. The call made on August 22, 1997, which was recorded, was played for the magistrate during the preliminary hearing. Randy told appellant that he was thinking of talking to a therapist about their relationship. Appellant told Randy he hoped he would not do so because the therapist would have to tell the police, and appellant's life would be ruined. Appellant admitted that his conduct with Randy was a "mistake on my part for which I grievously apologize." Appellant said what he did was "wrong," but there was no detailed discussion of what had occurred between Randy and appellant. Appellant told Randy he regretted what he had done to him and had been "straight and narrow ever since."
As previously noted, there were 12 counts alleged against appellant. Count 1 alleged continuous sexual abuse consisting of oral copulation and masturbation (§ 288.5). The other 11 counts alleged lewd conduct in violation of section 288, subdivision (a), with counts 2-11 referring to masturbation and count 12 to oral copulation.
On January 28, 1998, appellant signed a plea agreement indicating that he would plead guilty to counts 2, 3, and 12. The form indicated that the only promises and representations made to appellant were that counts 4 and 5 would be dismissed with Harvey waivers, that count 1 would be dismissed in light of the plea and section 654, and that the prosecutor would strike the probation ineligibility allegation (§ 1203.066, subd. (a)(9)). The form also stated that counts 6 through 11 would be dismissed outright, but that the dismissal was not part of the plea bargain.
The court confirmed with appellant the terms of the bargain and stated: "Now, you understand with regard to the statement that you just affirmed, that by Harvey waiver is meant that while counts will be dismissed, the Court and the probation officer may take into consideration the facts underlying those counts in determining what an appropriate sentence to Counts Two, Three and 12 may be?" Appellant said he understood that and proceeded to enter his pleas. After accepting the guilty pleas, the court referred appellant for a psychological evaluation regarding his suitability for probation, pursuant to Penal Code section 288.1.
On May 1, 1998, the prosecutor submitted a sentencing statement that summarized appellant's history with Randy. The statement mentioned that Randy believed appellant had masturbated him at least 10 times, but it described only 4 specific instances: one in which appellant measured Randy's penis, one in which appellant masturbated Randy on the living room couch, one in which appellant and Randy each masturbated himself while watching a pornographic movie, and the incident in which appellant orally copulated Randy. The prosecutor argued that appellant should be denied probation and sentenced to the aggravated prison term of eight years to be served concurrently.
In announcing its decision, the court stated it was confining its statements to what "has come from Mr. Lamb's own mouth." The court then referred to statements by appellant contained in the reports submitted by psychologists. In explaining its decision to deny probation, the court stated that, although it did not have any particular reason to disbelieve the conclusion of the three psychologists that appellant may be amenable to treatment,3 it was "certainly a matter that's open to question, given the nature of Mr. Lamb's conduct over the past 20 years, by his own admission and his absolutely unbelievable ... failure to comprehend the enormity of the harm that he was wreaking upon these minors." The court discussed the factors affecting the decision whether to grant or deny probation, commenting that the seriousness of the crime was markedly worse than others of its type since it involved "skin-on-skin conduct, including oral copulation, that occurred on, at least by Mr Lamb's own admission, three separate occasions." In finding that appellant should be sentenced to the aggravated term of eight years, the court cited the callousness involved, noting that appellant "knew what he was doing was wrong" and "had plenty of opportunity to stop with respect to the three crimes in question and he didn't." It ordered the terms to run concurrently in view of appellant's lack of prior record, age, and health.
Appellant contends that the court and the prosecutor violated People v. Harvey, supra, 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396, which held that a court may not consider the facts underlying charges dismissed as part of a plea bargain to aggravate or enhance the defendant's sentence. Appellant contends that the prosecutor violated the plea bargain by relying on all of the dismissed counts to argue for denial of probation and imposition of the aggravated term instead of limiting her argument to the two dismissed counts as to which he entered a Harvey waiver. He claims the court violated Harvey by considering the prosecutor's argument.
We agree with appellant that the prosecutor could not avoid the Harvey rule simply by characterizing dismissed counts 6-11 as not part of the plea bargain. The charges were dismissed at the time appellant entered his guilty plea, and there is nothing to indicate they would have been dismissed if appellant had not pled guilty.
We do not agree, however, that the Harvey rule was violated. First, we observe that Harvey involved an unrelated and wholly separate robbery charge that had been dismissed. Harvey itself noted that facts surrounding offenses that are transactionally related to the admitted offense may be considered by the sentencing court. (People v. Harvey, supra, 25 Cal.3d at p. 758, 159 Cal.Rptr. 696, 602 P.2d 396.) The Harvey rule is based on the reasonable expectations of the parties to the bargain: "Implicit in such a plea bargain, we think, is the...
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