People v. Wills
| Decision Date | 29 February 2008 |
| Docket Number | No. D050280.,No. D051292.,D050280.,D051292. |
| Citation | 160 Cal.App.4th 728,73 Cal.Rptr.3d 104 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Kaeokulani WILLS, Defendant and Appellant. In re Kaeokulani Wills on Habeas Corpus. |
Patrick Morgan Ford, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Melissa Mandel, Scott Taylor and James D. Dutton, Deputies Attorney General, for Plaintiff and Respondent.
The San Diego County District Attorney charged Kaeokulani Wills in an amended information with nine counts of committing a lewd act against a child under the age of 14 (Pen.Code,1 § 288, subd. (a)), and four allegations he had substantial sexual conduct with the victim (§ 1203.066, subd. (a)(8)). The charges and allegations involved conduct that allegedly occurred in late 1995, when the victim, Megan, was 11 years of age. In March 2006 Wills pleaded guilty to three counts of violating section 288, subdivision (a) (counts 2, 3 and 4). He also admitted the section 1203.066, subdivision (a)(8) enhancement allegation as to one of those counts (count 3), thereby rendering him presumptively ineligible for probation under that subdivision unless he qualified for probation under "all" of the criteria specified in the exception codified in former section 1203.066, subdivision (c).2 One of those criteria, set forth in former subdivision (c)(2) of that section (hereafter section 1203.066(c)(2)), required the court, in order to overcome Wills's presumptive ineligibility for probation, to find that "[a] grant of probation to the defendant is in the best interest of the child." (Italics added.)
At the sentencing hearing in May 2006, defense counsel argued that Wills was entitled to a grant of probation because he satisfied all of the section 1203.066, subdivision (c) probation eligibility criteria with the exception of the "`best interest of the child'" factor set forth in section 1203.066(c)(2), which he asserted did not apply because Megan was 22 years of age. The prosecutor argued Wills was ineligible for probation because Wills could not meet the "`best interest of the child'" criterion as Megan was not a child and suggested that probation would not have benefited her at the time of the offenses because there was no continuing relationship between Wills and Megan's mother after Wills was charged in this matter. The court found that Wills was ineligible for probation and sentenced him to a six-year prison term, consisting of the midterm of six years as to count 2 and concurrent midterms of six years each as to counts 3 and 4.
In his appeal, Wills contends the judgment should be reversed and the case remanded for resentencing because the court erred by conducting the section 1203.066 probation analysis without considering under section 1203.066(c)(2) whether probation would have been in Megan's best interests at the time of the offenses in 1995. In his habeas corpus petition, Wills repeats this same contention, but further asserts the supplemental exhibits attached to his petition show the court made its sentencing decision based upon the erroneous factual assumptions that (1) he did not financially support Megan's mother following the investigation into the molestations, and (2) he was a fugitive who fled the jurisdiction following that investigation.
For reasons we shall explain, we hold that under former section 1203.066, subdivision (c) a sentencing court has no authority to grant probation to a defendant against whom a true finding under section 1203.066, subdivision (a)(8) has been properly made in a case in which the molestation victim is no longer a child at the time of sentencing. We thus conclude the court did not err to the extent it denied Wills probation without expressly considering under section 1203.066(c)(2) whether a grant of probation would have been in Megan's best interests at the time Wills molested her in 1995. Accordingly, we deny Wills's petition and affirm the judgment.
In November 1995 Wills was living with his girlfriend, Megan's mother, Megan and her sister Daphne, and his son Levi. Megan was 11 years old at the time. Wills was 43 years of age. He served in combat in Vietnam, was decorated for his service, and suffered from post-traumatic stress disorder. He was also a drug and alcohol abuser. Megan called Wills "Papa" during the time he lived in the residence because her mother introduced him to her as "Papa," and his son called him "Papa," but she felt uncomfortable calling him by that name.
In late 1995 Wills sexually molested Megan on several occasions. The night before she reported the molestation to her mother and the San Diego County Sheriffs Department, Megan was awakened by Wills, who was touching her leg. Wills moved his hand up her leg and touched her vagina and buttocks under her underwear.
On another occasion, on a school day while Megan was sitting at the computer playing solitaire, Wills sat next to her and touched her vagina and breasts with his hand under her clothes. Wills massaged and squeezed Megan's breasts and asked her whether it felt good. When he massaged her vagina, Megan flinched, tried to close her legs, and told him to stop.
Another day, when Megan stayed home from school, she sat down on Wills's lap in her bedroom at his request. As he was showing her how to play chess, he began to touch her all over her body. He touched her vagina, breasts, stomach and legs, and kissed her neck. On another occasion, Wills kissed the top of Megan's vagina after pulling down her underwear.
On November 27, 1995, after Megan told her mother about the touchings, her mother took her to CPS at Children's Hospital where Megan was interviewed. CPS prepared a report of that interview.
Megan also reported the molestation to the sheriffs department, which conducted an investigation. On December 21, 1995, in a videotaped interview conducted by Detective Nick Saraceni, Wills admitted that he touched Megan on her chest under her shirt, Wills called back on December 28, 1995, and admitted to Detective Saraceni in tape-recorded and transcribed telephonic statements the truth of the allegations Megan had made against him, stating "I agree to all the charges that [Megan] has put in there" and confirming the details of the molestations.
The last time Megan saw Wills prior to the September 2005 preliminary hearing was two weeks after her initial reporting.
On January 2, 1996, Wills was charged in a felony complaint with seven counts of a lewd act upon a child under the age of 14 (§ 288, subd. (a)), with an allegation as to two of those counts that he had substantial sexual conduct with the victim within the meaning of section 1203.066, subdivision (a)(8).
Wills was informed by mail of his January 24, 1996 arraignment date, but he failed to appear at that hearing.
Based on a declaration submitted by Detective Saraceni, a warrant for Wills's arrest for the sex offenses he admitted he committed was issued on January 31, 1996. In his declaration, Detective Saraceni stated that Wills's last known address was a specified address in Fullerton, California. Detective Saraceni's investigative report dated December 26, 1995, which reported the statements Wills made during the videotaped interview that Detective Saraceni conducted December 21, 1995, indicated that Wills had provided that address.
D. Wills's February. 1996 Apartment Rental in Mexico and July 2005 Arrest
In a supplemental statement, which is not executed under penalty of perjury, that he has submitted in support of his habeas corpus petition, Wills states that after he "[went] to the police station to tell them of the events that took place with Megan[,]" he and Megan's mother stayed with his former spouse's sister in Fullerton for "a few weeks," and then decided to go to Rosarito Beach in Baja California, Mexico, where they "found a small house."4 He asserts he rented an apartment from Hugh Wynn in Cantiles Dorado, Rosarito Beach, in February 1996.
More than nine years later, in July 2005, the United States Marshals Service arrested Wills in Hawaii on a warrant. He was then extradited to California. As already discussed, Wills pleaded guilty in March 2006 to three counts of violating section 288, subdivision (a), and admitted a section 1203.066, subdivision (a)(8) enhancement allegation.
In his appeal Wills contends the judgment should be reversed and the case remanded for resentencing because the court erred by conducting the section 1203.066 probation analysis without considering under section 1203.066(c)(2) whether probation would have been in the victim's best interests at the time of the 1995 offenses. We reject this contention.
The parties agree that as a result of his admission of the section 1203.066, subdivision (a)(8) enhancement allegation,5 Wills was presumptively ineligible for probation unless he demonstrated eligibility under the criteria specified in subdivision (c) of that section. At the sentencing hearing in May 2006, defense counsel argued that Wills was entitled to a grant of probation because he satisfied all of the section 1203.066, subdivision (c) probation eligibility criteria with the exception of the "best interest of the child" factor set forth in section 1203.066(c)(2) (discussed, post), which he asserted did not apply because Megan was 22 years of age, there was "no child as we stand here today," and thus it was "impossible to analyze whether a grant of probation would be in the child's best interest."
The prosecutor argued Wills was ineligible for probation because Wills could not meet the "best...
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