People v. Wandrey

• Decision Date: 07 July 2022
• Docket Number: A161691
• Parties: The PEOPLE, Plaintiff and Respondent, v. Nathan Christian WANDREY, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

80 Cal.App.5th 962

296 Cal.Rptr.3d 460

The PEOPLE, Plaintiff and Respondent,

v.Nathan Christian WANDREY, Defendant and Appellant.

A161691

Court of Appeal, First District, Division 2, California.

Filed July 7, 2022

Certified for Partial Publication.^*

Attorney for Appellant: By appointment of the Court of Appeal under the First District Appellate Project, Dirck Newbury

Attorneys for Respondent: Rob Bonta, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Alice B. Lustre, Supervising Deputy Attorney General, J. Michael Chamberlain, Deputy Attorney General

Mayfield, J.^** Nathan Christian Wandrey was convicted of numerous counts of sex offenses committed against the daughter of his then-girlfriend, and sentenced to consecutive aggravated prison terms totaling 756 years. Several of his arguments on appeal arise from the fact that he was charged with and prosecuted for numerous separate but undifferentiated offenses after being held to answer on a single count of continuous sexual abuse of a child and single count of committing a lewd and lascivious act on a child. Wandrey additionally argues the victim's generic testimony was insufficient to support the verdicts; the trial court's requirement that witnesses wear masks covering their noses and mouths violated his constitutional right to confrontation; and the trial court erred in failing to conduct an in camera review of subpoenaed documents and in its instructions to the jury. He also raises several claims of sentencing error. We find the challenges to the convictions meritless and reject the challenges to consecutive sentencing. We agree, however, that remand for resentencing is required due to postsentencing statutory amendments affecting the imposition of upper terms.

STATEMENT OF THE CASE

A complaint filed on October 12, 2018, charged Wandrey with one count of continuous sexual abuse ( Pen. Code, § 288.5, subd. (a) )¹ in a three-year period from April 2012 to April 2015, with a substantial sexual conduct enhancement (§ 1203.066, subd. (a)(8)); one count of committing a lewd act upon a minor (§ 288, subds. (a) & (c)(1)) between April 2015 and April 2017; and one count of contacting a minor with intent to commit a sexual offense (§ 288.3, subd. (a)) between April 2016 and April 2017. Following a preliminary hearing, Wandrey was held to answer on the first two counts; the court found insufficient evidence to support the third count.

On July 9, 2019, an information was filed charging Wandrey with 272 counts, the odd numbered counts alleging assault with intent to commit a sexual offense against a victim under 18 years of age ( § 220, subd. (a)(2) ), alternating with even numbered counts alleging commission of lewd acts upon a child ( § 288, subds. (a) & (c)(1) ). The offenses were alleged to have been committed in four specified time periods: April 2012 to April 2013 (counts 1–48), April 2013 to April 2014 (counts 49–96), April 2014 to April 2015 (counts 97–220), and April 2015 to April 2016 (counts 221–272).

The trial court overruled Wandrey's demurrer. The trial court also denied Wandrey's subsequent motion to dismiss ( § 995 ) as to all counts through 220; as to counts 221 through 272, the trial court granted the motion to dismiss all the counts alleging violations of section 288, subdivision (c)(1),² and all but 10 of the counts alleging sexual assault.

The first amended information, filed March 18, 2020, alleged a total of 230 counts. Counts 1 through 220 alternately alleged assault with intent to commit a sex offense against a victim under 18 years of age (odd numbered counts) and commission of lewd acts upon a child (even numbered counts) committed as follows: On or between April 2012 and April 2013 (counts 1–48); on or between April 2013 and April 2014 (counts 49–96); and on or between April 2014 and April 2015 (counts 97–220). Certain of the counts alleging commission of lewd acts further alleged that Wandrey engaged in substantial sexual contact while committing the offense ( § 1203.066, subd. (a)(8) ) (even numbered counts 26–48, 74–96, 122–220).

Counts 221 to 230 alleged assault with intent to commit a sex offense against a victim under 18 years of age on or between April 2015 and April 2016.

Wandrey pleaded not guilty and denied the special allegations.

During trial, the court granted the prosecutor's motion to dismiss counts 1 through 48.

On November 16, 2020, the jury found Wandrey guilty on counts 49 through 72 and 97 through 230, and found true the enhancement allegations in the even numbered counts from 122 through 220. The jury deadlocked on counts 73 through 96. The trial court declared a mistrial as to these counts and subsequently dismissed them on the prosecutor's motion.

On December 4, 2020, the trial court denied Wandrey's posttrial motion to dismiss counts 49 through 72, and sentenced him to an aggregate term of 756 years in prison.

STATEMENT OF FACTS

Jane Doe, born in April 2001, was 19 years old at the time of trial. She testified that she was "very stressed" being in court; it was hard to talk about what had happened and "incredibly hard" to be in court because, "I have to be so close to the source of my trauma in the same room." Memories from her childhood were "on [her] mind all the time" and "really intrusive."

Doe testified that her mother began dating Wandrey when Doe was about nine years old. Doe came to think of Wandrey as a father figure because he paid attention to her, fed her and taught her things like cooking and personal hygiene that her mother, whom Doe described as mentally unstable, had not taught her. Doe was closer with Wandrey than she was with her mother: He treated her as a person instead of a baby, as her mother did, spent more time with her, and gave her more attention.

As Doe got older, Wandrey would ask her about changes in her body. When she was around 10 years old, he asked how large her nipples were, which at the time Doe thought was "weird." She testified this was the first time she "vividly remember[ed]" him being sexual with her, but "it was just verbal."

Doe, her mother, and Wandrey moved from Santa Rosa to a new neighborhood when Doe was in sixth grade, 11 or 12 years old.³ Doe's mother became "very bitter"; she and Wandrey started arguing more and spending less time together. Wandrey spent more time with Doe and began to be "more physical" with her when her mother was not nearby. Starting around the second or third month after the move, Wandrey would have Doe sit on his lap while she played computer games; when she sat on his knees, he would tell her it was okay to "scoot back" and sometimes pull her back with his hands. This made her uncomfortable, but she tried to ignore it. Around a month later, Wandrey began to give her "what he called massages," which started at Doe's shoulders and "would evolve to underneath my shirt on my breasts." Doe described a time when she was sitting at the piano bench and Wandrey started to massage her this way, inhaling loudly every so often. He told her the massages were "normal" and "natural" and she believed him because she trusted him. The massages happened "[m]any times." During the first year after the move, when Doe was 12 years old, Wandrey would touch her chest "[p]robably three times a week," but "[i]t could have been less or more." There would be weeks when it did not happen at all, as Wandrey sometimes stayed at his own home and went to Hawaii for a month or two each year to see his family. Doe agreed with the prosecutor's suggestion that the three times per week she estimated would amount to approximately 150 times that year and testified that Wandrey "definitely" touched her chest "at least 12 times" that year.

Doe testified that the chest touching "evolved" into Wandrey coming into her room and touching her vagina.⁴ He would "start over my underwear by rubbing the top part of my vagina and then he would continue under my underwear and he would put his fingers inside of my vagina repeatedly." Sometimes Wandrey would touch her legs or "butt" or back, but he would then move to her vagina. Doe would sometimes try to "squirm away," but usually she "would just freeze," feeling there was nothing she could do. She felt "just completely overpowered" because she knew he exercised frequently and practiced martial arts, and she started to become afraid she might get hurt if she did not let him do what he wanted.

Asked if she remembered every time Wandrey touched her in the way she was describing, Doe testified, "They happened so frequently that a lot of them just blur together." Wandrey would sometimes touch both her chest and her vagina in one incident, but usually it was one or the other. Once it started, the vagina touching became much more frequent than the chest touching. Doe testified that "[i]t felt like it happened every day to me" and estimated that Wandrey touched her vagina at least 100 times during the year she was 12. This was an approximation, but he "definitely" touched her vagina "at least 12 times" that year.

The "massages" continued when Doe was 13 years old. She blocked them from her mind; when she tried to think about it, it would be "really confusing because I trusted him so much and I didn't want to think that what he was doing was wrong." She estimated that Wandrey touched her chest "[m]aybe once a week" when she was 13, but "definitely" at least 12 times. He touched her vagina three or four times a week: "[W]henever he was home it would happen." This estimate would mean Wandrey touched Doe's vagina approximately 152 to 208 times the year she was 13. Doe testified he "definitely" touched her vagina at least 50 times that year.

When Doe was 14, the touching continued and Wandrey started giving her very strong alcoholic drinks, almost always at night before bed. She liked the feeling of being drunk and would fall asleep easily. That year, Wandrey continued to touch Doe's...