People v. Scott, No. S037757

• Court: United States State Supreme Court (California)
• Writing for the Court: BAXTER; LUCAS; KENNARD
• Citation: 885 P.2d 1040,9 Cal.4th 331,36 Cal.Rptr.2d 627
• Parties: , 885 P.2d 1040 The PEOPLE, Plaintiff and Respondent, v. Clifford Albert SCOTT, Defendant and Appellant.
• Decision Date: 30 December 1994
• Docket Number: No. S037757

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36 Cal.Rptr.2d 627 9 Cal.4th 331, 885 P.2d 1040 The PEOPLE, Plaintiff and Respondent,
v.
Clifford Albert SCOTT, Defendant and Appellant. No. S037757. Supreme Court of California,
In Bank. Dec. 30, 1994.
As Modified on Denial of Rehearing March 14, 1995.

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[9 Cal.4th 336] [885 P.2d 1041] Ellen D. Geis and Paul Bell, under appointments by the Supreme Court, San Diego, for defendant and appellant.

Bradley A. Bristow, Sacramento as amicus curiae on behalf of defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Asst. Atty. Gen., M. Howard Wayne, Keith I. Motley and Niki Cox Shaffer, Deputy Attys. Gen., for plaintiff and respondent.

BAXTER, Justice.

Defendant, an ex-felon, repeatedly molested his girlfriend's 11-year-old daughter. The evidence revealed that he had sexual intercourse with the girl during each unlawful encounter. On some of these occasions, he also either orally copulated or sexually fondled the victim. Defendant was convicted under the lewd conduct statute for each act of sexual intercourse, oral copulation, and fondling charged and disclosed at trial. (Pen.Code, § 288.) ¹

The case raises both guilt and sentencing issues. First, we conclude the Court of Appeal erred in striking the lewd conduct convictions based on the acts of fondling. Unlike the court below, we reject defendant's broad suggestion that fondling activities are necessarily "indivisible" from other sex crimes committed on the same occasion and that the number of convictions is limited to

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[885 P.2d 1042] the number of nonfondling crimes. Consistent with the general principles set forth in People v. Harrison (1989) 48 Cal.3d 321, 256 Cal.Rptr. 401, 768 P.2d 1078 (Harrison ), each distinct lewd act can result in a separate violation of section 288.

Second, we address a sentencing issue that can arise in any felony case. In People v. Welch (1993) 5 Cal.4th 228, 19 Cal.Rptr.2d 520, 851 P.2d 802 (Welch ), we held that sentencing claims are not exempted per se from an objection requirement and that defendants cannot challenge the terms of their probation for the first time on appeal. Here, we apply the same principles to defendants who challenge the statement of reasons given by the trial court in support of its discretionary sentencing choices.

The Court of Appeal reached a similar conclusion and held that defendant had waived such claims by failing to object below. It appears, however, that [9 Cal.4th 337] this view is not widely held and that sentencing hearings are largely conducted under the assumption that such claims can be raised in the first instance on appeal. As a result, the waiver rule adopted herein will be applied prospectively for the benefit of the bench and bar and to avoid unfairness to this defendant.

I. FACTS

The crimes occurred in late 1990 and early 1991. Defendant, who was then in his mid-thirties, lived with his girlfriend, Susan, and her four children. Defendant had fathered the two youngest children, both infants. Susan's other children were 3-year-old Ebony and 11-year-old Latoya. Latoya is the victim in this case.

Latoya's mother regularly used crack cocaine. She was incarcerated for four months between June and September 1990. After her release, she continued using drugs and was gone from the apartment several days a week. Defendant took care of the children in Susan's absence.

At trial, Latoya testified that defendant molested her over a seven-month period beginning in July 1990, and continuing through January 1991. Latoya reported 10 sexual encounters during this time--1 per month, plus an additional incident in August, September, and January.

For purposes of this case, it is sufficient to note that Latoya described the circumstances surrounding all of the crimes in fairly detailed terms. She remembered the exact dates of the last three incidents (Christmas Day, New Year's Day, and the night before defendant's arrest on January 23). She identified the room of the house in which the acts occurred (her bedroom, defendant's bedroom, or the kitchen), and sometimes narrowed the location even further (bed or floor). According to Latoya, the molestations generally took place while her siblings slept in another room or when she and defendant were alone in the apartment. She mentioned what she was wearing on some occasions (pajamas or "regular" clothes) and whether she washed herself afterwards.

Latoya also described the various sex acts with particularity. She testified that an act of "sexual intercourse" occurred during each of the 10 episodes. When asked to define the term, she explained that defendant "stuck his private into [her private]." Latoya found "white stuff" on her leg after each penetration.

Latoya indicated that on at least four occasions, the act of intercourse was accompanied by another sex act. Specifically, defendant fondled ("was [9 Cal.4th 338] feeling on") her in a sexual manner during the first and last encounters (July and January 22). ² On at least two

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[885 P.2d 1043] other occasions (September and October), defendant orally copulated Latoya ("licked" her "private") in addition to having intercourse with her.

Latoya knew defendant had a bad temper and she was afraid of him. She testified that after the third incident (August) and on subsequent occasions, he reportedly threatened to kill her, her mother, and her sister Ebony if the molestations were ever disclosed. Defendant also pulled Latoya's hair and made her cry before ordering her into the bedroom and molesting her for the last time in January.

Latoya's mother called the police when she returned home after the last January incident and found defendant and Latoya sleeping together. When defendant was arrested and placed in the patrol car, a police officer twice heard him mutter, "[A]ll this time and she says something now."

A medical examination performed shortly after defendant's arrest disclosed tenderness in Latoya's vaginal area. Although her hymen was intact, this phenomenon apparently is not unusual in molestation cases or inconsistent with penetration. The examining physician explained that because Latoya's hymen was "estrogenized" and highly elastic, it might never have torn or it could have torn and healed and left no detectable scar.

Defendant testified on his own behalf and denied molesting Latoya. He believed she was retaliating against him because of his strict parenting style and because of the beatings he inflicted upon her mother. Defendant's friends and Susan's brother testified that they saw nothing unusual in defendant's behavior towards Latoya around the time some of the molestations occurred.

[9 Cal.4th 339] Defendant was charged with 14 counts of lewd conduct, 2 of which were allegedly committed by force or fear. (§ 288, subds. (a), (b).) The information also alleged that defendant occupied a position of special trust while committing most of the crimes. (§ 1,203.066, subd. (a)(9).) The jury found defendant guilty as charged, except that only one forcible lewd act (January 22) was found. ³ Defendant admitted that he had sustained separate prior convictions for armed robbery and involuntary manslaughter (§ 667, subd. (a)), and that he had served a prior prison term (§ 667.5, subd. (a)).

At the start of the sentencing hearing in mid-1991, the court announced that it had read the probation report and the parties' statements in aggravation and mitigation. It then solicited argument from counsel. Defense counsel urged the court not to impose either the upper term or consecutive terms on the lewd conduct counts and insisted that a 16-year prison sentence was appropriate. Leniency was urged primarily on the basis of evidentiary and jury trial issues that had been raised and rejected in a prior motion for new trial. The prosecution sought a 50-year term, citing the repeated abuse and emotional trauma Latoya had endured.

The court ultimately imposed a 44-year prison sentence that was similar in all material respects to the sentence recommended by the probation officer. First, defendant was found ineligible for probation based on the use of force in one count and his violation of a position of special trust. In mitigation, the court acknowledged that defendant had performed satisfactorily on parole. It made clear, however, that this factor was entitled to little weight and was "far outweigh[ed]" by the aggravating circumstances.

As noted, defendant was convicted of 14 counts of lewd conduct. The court designated count 1 as the principal term and imposed the upper term of eight years on this count. It cited three aggravating factors in support of this choice (repeated threats of harm, violent conduct posing a serious threat to society, and multiple prior convictions of an increasingly serious nature). As to the remaining convictions (i.e., counts 2 through 14), the court determined that consecutive

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[885 P.2d 1044] sentences were warranted, but rejected the prosecutor's suggestion that full consecutive terms be imposed to the extent available under section 667.6, subdivision (c). Instead, a consecutive term equal to one-third of the middle term (i.e., two years) was imposed under section 1170.1, subdivision (a) for each of the lewd conduct convictions in counts 2 through 14. Again, three aggravating factors were cited (independent crimes, separate threats and acts of violence, and crimes committed in different places and at different times).

[9 Cal.4th 340] As to enhancements, the court imposed a consecutive five-year term for each of defendant's two prior serious felony convictions. An additional three-year term imposed for the prior prison term was ordered stayed. After reciting its sentence, the court invited comments from counsel. No objections were raised. Defendant appealed the judgment.

On the issue of guilt, the Court of Appeal unanimously agreed with a claim defendant had...