California Cases August 16, 2021: People v. Howell

Case Description

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County No. BF156292A. John R. Brownlee, Judge.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THE COURT

INTRODUCTION

In 2015, a jury convicted appellant Allen Edward Howell of lewd and lascivious acts against a child under the age of 14 years (Pen. Code, § 288, subd. (a); count 2) and continuous sexual abuse of a child under the age of 14 years (§ 288.5, subd. (a); count 3). The jury was unable to reach a verdict on the charge of oral copulation of a child under the age of 14 years (former § 288a, subd. (c)(1); count 1), and that count was dismissed. The trial court sentenced appellant to the middle term of 12 years on count 3 and the full middle term of six years on count 2, for a total determinate prison term of 18 years.

Appellant appealed. In 2017, this court issued an unpublished opinion in People v. Howell (Nov. 21, 2017, F073020). We reversed count 2 because it was a dual conviction for the offense charged in count 3. The judgment was otherwise affirmed and the matter was remanded for resentencing on count 3.

In April 2018, the trial court denied appellant's application for probation and his request for a full probation report. The court imposed the upper term of 16 years.

Appellant again appealed. In July 2019, this court issued an unpublished opinion in People v. Howell (July 8, 2019, F077387). We vacated appellant's sentence and remanded the matter for the preparation of a new probation report followed by resentencing.

In December 2019, resentencing occurred. The trial court sentenced appellant to prison for the middle term of 12 years on count 3. The court also issued an order prohibiting appellant from having visitation with the victim (§ 1202.05).

Appellant filed the present appeal, raising two issues. First, the parties agree that the order prohibiting appellant from having visitation with the victim is impermissible. Because the victim is no longer a minor, we agree with the parties that section 1202.05 is no longer applicable and we will strike that prohibition. However, we reject appellant's second claim; the trial court did not abuse its sentencing discretion in imposing the middle term of 12 years. We will strike the order prohibiting visitation and direct the trial court to issue a modified abstract of judgment. We otherwise affirm.

BACKGROUND

We summarize the facts which support appellant's judgment. These facts are taken from our unpublished opinion in People v. Howell , supra , F073020.

Appellant is the victim's grandfather. Over a period of years, and starting in 2009 when the victim was 12 or 13 years old, appellant would conduct “monthly ‘body checks' on her in his locked bedroom.” At the time, the victim was living with appellant. He would direct her to disrobe entirely and lie on his bed. He “fondled her breasts, and visually inspected her vagina and anus, during which his fingers made contact with her vaginal and anal areas.” These incidents continued until the victim was approximately in her junior year of high school. In 2014, the victim moved out of appellant's home. Later that year, she disclosed the abuse to others.

A pretextual phone call occurred that was played for the jury. Appellant “admitted conducting nude body checks, but said he conducted them because [the victim] was not cleaning herself properly and she had complained about bumps on her breasts and vaginal discharge. [Appellant] said he was wrong for conducting the body checks and apologized, but denied he molested her.”

At trial, the prosecutor introduced evidence of prior uncharged sexual misconduct. Appellant's sister testified that, when she was around 11 years old and he was around 14 years old, “he ‘constantly' asked her to allow him to orally copulate her and when she finally agreed, he did so for months.”

Appellant's former cousin-in-law testified that she and her family moved in with appellant when she was six or seven years old. He masturbated in front of her on one occasion and orally copulated her on another. These incidents occurred in 1986. She testified that appellant had “threatened to harm her mother if she told and she did not disclose the abuse to anyone until she was 18 years old.”

DISCUSSION

I. The Trial Court Did Not Abuse Its Sentencing Discretion.

Appellant contends the trial court abused its discretion in imposing the middle term of 12 years. He acknowledges his conduct “was serious and caused the victim to suffer emotionally.” Nevertheless, he argues his conduct “did not deserve 12 years in prison.” He maintains that the low term of six years is appropriate. He requests that this matter be remanded for resentencing.

Respondent opposes appellant's request. According to respondent, the trial court's sentencing choice was well within its discretion. Respondent contends “the record shows a careful exercise of discretion.”

We agree with respondent and we reject appellant's arguments. The trial court did not abuse its discretion in imposing the middle term of 12 years on count 3.

A. A summary of the factors considered at resentencing.

Prior to sentencing in this matter, appellant filed a statement in mitigation and sentencing brief. Accompanying his brief were approximately nine letters of support from relatives and friends. Appellant's brief requested either felony probation or the low term.

The probation officer filed an updated report prior to sentencing that recommended the middle term of 12 years. The prosecutor filed a sentencing statement which sought the upper term of 16 years.

At the December 2019 sentencing, appellant's counsel made the following relevant arguments. Counsel asserted that appellant's “Static-99 risk was minus one, which is very, very, very low[.]” Counsel argued that one factor in aggravation and one factor in mitigation existed, which “cancel each other out, ” and appellant had “other circumstances in mitigation in regard to his post-conviction behavior.” Appellant's counsel noted that many letters of support had been submitted to the court on appellant's behalf. According to counsel, these letters gave the court insight regarding what appellant is “really like.” Counsel noted that appellant was 63 years old, and an upper term sentence would effectively amount to a life sentence.

The prosecutor argued that an upper term of 16 years was justified. The prosecutor noted that appellant had taken advantage of the victim over four years, every single month. According to the prosecutor, this was a betrayal of trust or confidence, and the victim was particularly vulnerable to her grandfather. The prosecutor asserted that appellant still refused to accept responsibility for his actions. The prosecutor noted that appellant was working in prison as a cook, but he was refusing to get mental health counseling.

In reply, appellant's counsel noted that, when appellant had been initially interviewed by probation in 2015, appellant had stated, “ ‘Part of it' ” when asked if he admitted culpability. However, during his 2019 interview with probation, appellant had stated, “ ‘Sorry and ashamed. I did it. I don't know why. I really would like to apologize and make amends for what I've done.' ” Appellant's counsel asserted that this showed appellant had admitted culpability.

The trial court stated it had read both of the sentencing briefs, the remittitur, its file and documents in this matter. The court found two factors in mitigation: (1) appellant had no prior criminal record, and (2) appellant had no violations while in prison. The court found two factors in aggravation: (1) as the victim's grandfather, appellant took advantage of a position of trust, and (2) the victim was particularly vulnerable.

The court stated that a psychological evaluation had been completed pursuant to section 288.1, and appellant had been found “unamenable to treatment.” The court determined that, even if appellant was eligible for a grant of felony probation, he was “an absolutely unsuitable candidate” based on “the serious nature of the present offense.”

It was the court's opinion that, at the end of his trial, appellant had failed to accept full culpability for his actions. Appellant admitted culpability and expressed remorse for the offense almost four years after the trial. The court summarized the facts of the offense. After going through the facts, the court concluded that appellant took “great advantage of his vulnerable minor granddaughter and his actions were predatory and depraved and a prison sentence is absolutely appropriate.”

The court noted that appellant had not suffered any disciplinary action while incarcerated in prison. However, the court determined that did not mitigate the seriousness of the offense, or suggest leniency should be offered in sentencing. The victim had suffered ongoing abuse from 2008 through 2010 at the hands of appellant, her grandfather.

According to the court, appellant had submitted information showing he had participated in a faith-based program. However, the court stated nothing suggested appellant has been rehabilitated, “given his lack of participation in evidence-based programming.” Appellant had not had an opportunity to recidivate again because of his incarceration.

The court concluded that, after weighing the two mitigating factors versus the two aggravating factors, and taking into consideration the circumstances of the case, it appeared that the mid-term was appropriate. The court stated, “The turmoil experienced by the victim and performance by [appellant] for such a lengthy period of time should also be taken into account when considering [appellant's] punishment.” The court imposed the middle term of 12 years in count 3.

B. Analysis.

Appellant argues the applicable factors weigh against imposition of the 12-year prison term. According to appellant, his nine character letters show he can have a positive outcome following his release from prison. He notes the Static-99 risk assessment tool puts him in the “low risk” category to reoffend. He further notes he has been a “model prisoner” with no violations while in prison. Given his age at the time of sentencing (63 years old), he maintains his risk of reoffending is diminishing. He asserts “there were numerous mitigating factors supporting imposition of the low term.” He concludes that “the aggravating factors, while serious, do not outweigh the significance of the favorable mitigating factors.” We reject appellant's arguments.

A trial court's sentencing decision is reviewed for abuse of discretion. ( People v. Sandoval (2007) 41 Cal.4th 825, 847.) A sentencing court may not exercise its discretion in an arbitrary or capricious manner. Sentencing must be consistent with the letter and spirit of the law, and based on an individualized consideration of the offense, the offender, and the public interest. ( Ibid. ) In exercising sentencing discretion, a court has wide discretion in weighing aggravating and mitigating factors. ( People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) A court is not required to explain its reasons for rejecting factors in mitigation. ( People v. Salazar (1983) 144 Cal.App.3d 799, 813; accord, People v. Thompson (1982) 138 Cal.App.3d 123, 127.)

In this matter, appellant took advantage of his minor granddaughter. She was living in his home when the ongoing abuse occurred. As her grandfather, he held a tremendous amount of authority over her. He brought her into his locked bedroom on a monthly basis to inspect and touch her naked body. We agree with the trial court's assessments that the victim had been particularly vulnerable, and appellant took advantage of a position of trust or confidence to commit the offense. (Cal. Rules of Court, rule 4.421(a)(3), (11).) These factors in aggravation amply justify the court's sentencing decision. We reject appellant's assertion that his factors in mitigation required the court to impose a low term. To the contrary, appellant's criminal behavior, which lasted about four years, supports the imposed sentence.

Based on this record, the trial court did not exercise its sentencing discretion in an arbitrary or capricious manner. The court's sentence is consistent with the letter and spirit of the law. The court considered both appellant's circumstances, and the particulars of his offense. An abuse of sentencing discretion does not appear. (See People v. Sandoval , supra , 41 Cal.4th at p. 847.) Consequently, appellant's arguments are without merit and this claim fails.

II. We Will Strike The Trial Court's Order Prohibiting Visitation With The Victim; The Court Shall Issue An Amended Abstract Of Judgment.

At sentencing in December 2019, the trial court ordered that appellant was prohibited from having visitation with “the child victim” pursuant to section 1202.05. The court issued a minute order imposing this prohibition. The abstract of judgment (on p. 2 at par. 13.) states in relevant part: “COURT PROHIBITS ALL VISITATIONS BETWEEN DEFT., AND CHILD VICTIM PURSUANT TO PC 1202.05[.]”

The parties agree, as do we, that this prohibition is unauthorized and must be stricken.

“Section 1202.05 requires a sentencing court to prohibit visitation between a defendant and his ‘child victim' if the defendant is convicted of an offense involving sexual abuse of a child ‘and the victim … is a child under the age of 18 years.' (§ 1202.05, subd. (a).)” ( People v. Scott (2012) 203 Cal.App.4th 1303, 1312.) This prohibition is “intended to affect only victims who were under the age of 18 at the time of sentencing or, more precisely, at the time of a contemplated visit with a state prison inmate.” ( Id. at p. 1313.) The California Court of Appeal has already concluded that this restriction on visitation no longer applies once a victim has reached the age of majority. At that point, the act has no effect on a victim's right to visit the defendant in prison. ( Id. at p. 1323.)

In this matter, the victim's ongoing abuse started in 2009 when she was 12 or 13 years old. ( People v. Howell , supra , F073020.) We agree with the parties that the victim was no longer a minor when appellant was resentenced in 2019. Thus, section 1202.05 was inapplicable when appellant was resentenced. ( People v. Scott , supra , 203 Cal.App.4th at p. 1323.) Accordingly, we will strike this prohibition but otherwise affirm appellant's judgment.

DISPOSITION

The judgment is modified to specify that the no-visitation order under section 1202.05 is stricken. The trial court is directed to issue an amended abstract of judgment reflecting this modification and to forward a certified copy of the abstract to the appropriate authorities. In all other respects, the judgment is affirmed.

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Notes:

Before Levy, Acting P.J., Detjen, J. and De Santos, J.

All future statutory references are to the Penal Code unless otherwise noted.

The victim also testified about an incident of oral copulation. “That allegation was charged as count 1, which was dismissed after the jury was unable to reach a verdict.”

In his opening brief, appellant states that the low term of five years is appropriate. This request is erroneous because the low term in count 3 is six years for a violation of continuous sexual abuse of a child under the age of 14 years. (§ 288.5, subd. (a).) Appellant correctly requests a low term of six years in his reply brief.

Appellant's counsel represented to the trial court that, according to appellant, his interview for the evaluation pursuant to section 288.1 lasted less than 30 minutes.

In its entirety, section 1202.05, subdivision (a) provides: “(a) Whenever a person is sentenced to the state prison on or after January 1, 1993, for violating Section 261, 264.1, 266c, 285, 286, 287, 288, 288.5, or 289, or former Section 288a, and the victim of one or more of those offenses is a child under the age of 18 years, the court shall prohibit all visitation between the defendant and the child victim. The court's order shall be transmitted to the Department of Corrections, to the parents, adoptive parents, or guardians, or a combination thereof, of the child victim, and to the child victim. If any parent, adoptive parent, or legal guardian of the child victim, or the child victim objects to the court's order, he or she may request a hearing on the matter. Any request for a hearing on the matter filed with the sentencing court shall be referred to the appropriate juvenile court pursuant to Section 362.6 of the Welfare and Institutions Code.”

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