People v. Scott

• Decision Date: 23 December 1993
• Docket Number: No. D015126,D015126
• Citation: 26 Cal.Rptr.2d 501,21 Cal.App.4th 383
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 21 Cal.App.4th 383, 26 Cal.App.4th 1480 21 Cal.App.4th 383, 26 Cal.App.4th 1480 The PEOPLE, Plaintiff and Respondent, v. Clifford A. SCOTT, Defendant and Appellant.

Page 501

26 Cal.Rptr.2d 501

Previously published at 21 Cal.App.4th 383, 26 Cal.App.4th 1480

21 Cal.App.4th 383, 26 Cal.App.4th 1480

The PEOPLE, Plaintiff and Respondent, v. Clifford A. SCOTT, Defendant and Appellant.

No. D015126.

Court of Appeal, Fourth District, Division 1, California.

Dec. 23, 1993.

Certified for Partial Publication ¹

Rehearing Denied Jan. 12, 1994.

Review Granted March 31, 1994.

[21 Cal.App.4th 388] Ellen Geis, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

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

HUFFMAN, Associate Justice.

Clifford Scott appeals from his jury convictions and sentence for 13 counts of performing lewd acts on a child under 14 years of age without force or fear (Pen.Code, § 288, subd. (a)) ² and 1 count of performing a similar act by means of force or fear (§ 288, subd. (b)), committed while he occupied a position of special trust with the child (§ 1203.066, subd. (a)(9): counts 1, 3 through 13). On several different theories he claims the evidence was insufficient to support conviction on certain of the counts and claims various sentencing errors. ³

We agree with his contention two of the counts were improperly "fragmented" from other counts, strike those convictions and affirm the judgment as modified. As to his sentencing contentions, we conclude he has waived any claim of judicial error concerning the consecutive and upper term sentences imposed, his claim of dual use is harmless error, and his section 654 claim has no merit.

FACTUAL AND PROCEDURAL BACKGROUND

Because all of Scott's contentions essentially involve arguments the facts are insufficient to support either conviction of an offense or a particular sentence, we follow the traditional pattern of stating the facts in a light most favorable to the judgment. (People v. Thomas (1992) 2 Cal.4th 489, 514, 7 Cal.Rptr.2d 199, 828 P.2d 101.)

Scott and his girlfriend Susan Carter, a frequent cocaine user, began living with each other in 1988. Because of her drug usage In April and May 1991, Scott was charged in amended and supplemental informations with two counts of molestation by force (counts 4 and 13) and ten counts of molestation without force stemming from incidents involving Latoya that commenced in the summer of 1990 through January 1991. With the exceptions of counts 2 and 14, all counts alleged Scott occupied a position of special trust with Latoya during the time the lewd acts were committed. Scott was also alleged to have suffered two out-of-state prior serious felony convictions (§ 667, subd. (a)) and an out-of-state prior prison term (§ 667.5, subd. (a)). The present charges were bifurcated from the priors for jury trial.

Carter was incarcerated between June and September 1990. At that time, Scott became the principal caretaker for Carter's four children: Latoya M., then eleven years old; two other daughters, aged three and one; and a six-month-old son.

At the jury trial, Latoya testified Scott began sexually molesting her in July 1990. She recounted 10 separate incidents which gave rise to the 14 counts.

Counts 1 and 2 (July 1990: "penile/genital" contact and "breast/vaginal/buttocks fondling") ⁴

As to these counts, Latoya testified that sometime in July 1990 she and her siblings were in Scott's bedroom watching television. She was wearing "regular" clothes. Scott instructed her to take her sisters and brother into the other bedroom and to return to his room. When she did, he told her to take off her clothes. Scott touched her breasts and buttocks and had sexual intercourse with her. When asked to define "sexual intercourse," Latoya explained, "he [ ] stuck his private in mine." When asked to explain "private," Latoya circled the vaginal area on a nude female drawing and the genital area on a nude male drawing. She testified that when Scott finished moving and got off of her, she went into the bathroom and took a shower to wash the "white stuff" off her leg.

Count 3 (August 1990: "penile/genital" contact)

Latoya testified about a similar incident that occurred the following month. Again all four children were in Scott's bedroom watching television. Latoya was in her pajamas. When all three younger children fell asleep, Latoya moved them to their bedroom and returned to Scott, who had been drinking. He instructed her to remove her clothes and then had sex with her. Again when he was finished, she went to the bathroom and washed off.

Count 4 (August 1990: "penile/genital" contact)

The next incident occurred later in August. Latoya testified Scott put his "private" inside her "private" while they were lying on a brown blanket on the floor in his bedroom. Afterward he licked her "private" and told her it was going to feel good. Scott then told her he would kill her, her mother and sisters if she told anyone what he had been doing to her. She believed him and was frightened because she understood he had previously killed his own sister. She promised not to tell anyone.

Counts 5 and 6 (September 1990: "oral vaginal" and "penile/vaginal" contact)

Shortly before Carter was released from jail on September 10, Scott again had sex with Latoya and then licked her "private." The incident again occurred on the brown blanket on the floor while the other children were asleep. ⁵ Latoya showered afterwards to wash off the "white stuff."

Count 7 (September 1990: "penile/vaginal" contact)

Later in September, Scott again had sex with Latoya and licked her. The incident Counts 8 and 9 (October 1990: "penile/vaginal" and "oral vaginal" contact)

occurred at night and Latoya was wearing her pajamas. On this occasion, Latoya's sisters and brother were staying with one of their aunts, which they did on occasion. Latoya explained that sometimes Scott would not permit her to accompany her sisters and brother, telling her aunts she was on restriction for misbehaving.

During the middle of October, Scott again had sex with Latoya. She testified he licked her before they had sex. The incident occurred in Latoya's room while her sisters and brother were asleep. When they were finished Scott again told Latoya he would kill her if she told anyone.

Count 10 (November 1990: "penile/vaginal" contact)

Again in November, Scott had sex with Latoya on the floor of his bedroom lying on top of the brown blanket. Latoya was wearing her pajamas. After they finished she took a shower to wash off the "white stuff."

Count 11 (December 1990: "penile/vaginal" contact)

On the night of December 25, 1990, after various friends and relatives had left, Latoya's mother, sisters and brothers were asleep in their bedrooms. Scott approached Latoya in the kitchen, told her to get down on the floor and had sex with her. Latoya complied because she was afraid. After they finished she washed off and went to bed.

Count 12 (January 1991: "penile/vaginal" contact)

Early in the morning on New Year's Day, Scott told Latoya to come into his room where he had sex with her. Friends of Scott's who had spent the night were in the living room asleep. Afterwards she went to the bathroom to wash off and then went to bed.

Counts 13 and 14 (January 1991: "penile/vaginal" contact and "breast/buttocks fondling")

The final incident occurred on the evening of January 22. Latoya was in the living room with her sisters and brother when Scott began pulling her hair and pushing one of her sisters on top of her. When Latoya began to cry, Scott told her to go into his room. After the younger children went to bed, Scott came into the room. He fondled Latoya and they had sex. After Latoya washed off, Scott told her to get back into bed where they both fell asleep.

Early the next morning Carter returned home and discovered her daughter Latoya in bed with Scott. She took her into another room and asked for an explanation. After some prodding Latoya admitted what had been going on. Carter called the police and Scott was arrested. One of the arresting officers testified that while sitting in the back of a police car, Scott appeared to be talking to himself and twice said, "All this time and she says something now."

The jury found Scott guilty on all counts as charged with the exception of count 4, as to which it convicted him of the lesser included offense of molestation without force, and found he occupied a special trust with Latoya as alleged.

Scott then admitted the truth of the alleged priors. After denying Scott's motion for a new trial, the trial court sentenced Scott to a total 44-year prison term. Scott timely appealed from the judgment.

DISCUSSION

I

Sufficiency of the Evidence ^*

II Sentencing

After reading and considering the probation officer's report, the statements in aggravation and in mitigation, and hearing argument from counsel, the trial court found In determining the upper term was appropriate the court stated:

                Scott ineligible for probation due to the jury's findings he occupied a position of special trust with Latoya when he committed the acts of sexual conduct.  The court then noted it found it difficult to find any mitigating factors, but gave Scott the benefit of having had "a successful period of adjustment to parole."   However, the court found this factor was far outweighed by any of the aggravating factors
                

"[T]he fact that this case involves threats of great bodily harm on more than one occasion not only to the victim but to do something to the mother and the siblings of the victim, I think, illustrates that this offense is beyond the elements contained in [section 288, subdivisions (a) and (b) ] and, under [California Rules of Court, rule 421(a)(1) ], ¹⁰ is a matter in aggravation. [p] In addition, under [rule] 421(b)(1), you've engaged in violent conduct which indicates that you are a serious danger to society by abusing a child to whom you were not...