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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Frank David HARDIN, Defendant and Appellant.

No. F007231.

Decided: November 04, 1987

Mark E. Cutler, under appointment by the Court of Appeal, Rescue, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., and W. Scott Thorpe, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.


Appellant was convicted after a trial by jury on four counts of violation of Penal Code section 288, subdivision (b).1  He admitted that he had served four prior prison sentences and had suffered a prior serious felony conviction.   Probation was denied and appellant was sentenced to state prison for a total of 39 years.

Appellant contends:  (1) the trial court abused its discretion in allowing him to be impeached with a highly prejudicial prior conviction when several less prejudicial convictions were available;  (2) the trial court erred in allowing him to be impeached with a prior that had been reduced by operation of law to a misdemeanor;  (3) there were a series of prejudicial errors which tainted the findings that the offenses were committed by means of force;  (4) he was denied effective assistance of counsel and of his right to control over critical decisions when defense counsel made crucial tactical decisions without adequately explaining the options;  (5) the evidence failed to establish three separate acts, in violation of section 288, subdivision (b), involving one victim;  and (6) the trial court erred in imposing four full consecutive aggravated terms.


On October 4, 1985, an information was filed in the Kern County Superior Court charging appellant with four counts of lewd and lascivious conduct upon the body of a child under the age of 14 years, by use of force or threat of great bodily harm in violation of section 288, subdivision (b).2  The information also alleged that appellant committed the violation of section 288, subdivision (b) on more than one victim in the same course of conduct within the meaning of section 1203.066, subdivision (a)(7), that appellant had two prior prison terms within the meaning of section 667.5, subdivision (b), and that appellant had two prior serious felony convictions within the meaning of section 667.   An amended information was filed on October 31, 1985, which alleged the same violations of section 288, subdivision (b) but alleged five prior prison terms within the meaning of section 667.5, subdivision (b) and one serious felony conviction within the meaning of section 667.   Appellant pleaded not guilty and denied the special allegations.

A jury trial commenced on December 4, 1985.   Appellant was found guilty as charged on all four counts on December 11, 1985.   He admitted four prior prison sentences and one prior serious felony conviction.   On April 3, 1986, appellant's motion for a new trial was denied.   Probation was denied and appellant was sentenced to full consecutive terms of eight years on each of the four counts, to consecutive terms of one year each on two of the prior prison terms,3 and to five years consecutive on the prior serious felony conviction, for a total of thirty-nine years.

A timely notice of appeal was filed on May 28, 1986.





Count I of the amended information charged appellant with committing a lewd and lascivious act on Yolanda, i.e., having her place her hand on his penis.   Count II charged the separate lewd and lascivious act of having Yolanda place her mouth upon appellant's testicles.   Count III alleged appellant committed a third separate lewd and lascivious act by having Yolanda place her mouth on his penis.

After taking the two girls to an isolated, rural area, appellant exposed his penis and ordered Yolanda to play with it.   Appellant then ordered her to orally copulate him.   Judy testified Yolanda placed her mouth on appellant's penis at that time 11 and appellant then told Judy to show her how to do it.   Judy then orally copulated appellant.   Yolanda testified that while Judy was orally copulating appellant's penis Yolanda was sucking on his testicles and then appellant gave another order for the two victims to switch.   Judy sat up and Yolanda “sucked on his penis” for a few minutes until appellant ejaculated.

Appellant, relying on People v. Perkins (1982) 129 Cal.App.3d 15, 180 Cal.Rptr. 763 and People v. Perez (1979) 23 Cal.3d 545, 153 Cal.Rptr. 40, 591 P.2d 63, contends that count I was nothing more “than an act in preparation for the oral copulation, or an offense committed to facilitate the commission of the oral copulation.”   On this basis, appellant argues section 654 12 should bar separate punishment for count I.   Appellant also contends that the movement by Yolanda from sucking appellant's testicles (count II) and to orally copulating his penis (count III) constituted a single offense based on an act of oral copulation interrupted only by a change in position, relying on People v. Hammon (1987) 191 Cal.App.3d 1084, 236 Cal.Rptr. 822.

 The purpose of section 654 is to insure that a defendant's punishment will be commensurate with his culpability.  (People v. Perez, supra, 23 Cal.3d 545, 550–551, 153 Cal.Rptr. 40, 591 P.2d 63.)  “Because of the many differing circumstances wherein criminal conduct involving multiple violations may be deemed to arise out of an ‘act or omission,’ there can be no universal construction which directs the proper application of section 654 in every instance.”  (People v. Beamon (1973) 8 Cal.3d 625, 636, 105 Cal.Rptr. 681, 504 P.2d 905.)   Section 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction.  (Id. at p. 637, 105 Cal.Rptr. 681, 504 P.2d 905.)

“Whether a course of conduct is indivisible depends upon the intent and objective of the actor.  (Neal v. State of California [ (1960) 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839,] 19.)   If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.  (Ibid.)  For example, the defendant in Neal, who attempted to murder a husband and wife by throwing gasoline into their bedroom and igniting it, could not be punished for both arson and attempted murder because his primary objective was to kill, and the arson was the means of accomplishing that objective and thus merely incidental to it.

“On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct.”  (People v. Perez, supra, 23 Cal.3d 545, 551, 153 Cal.Rptr. 40, 591 P.2d 63, fn. omitted.)

 The Perez court held that a defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act.   The court declined to extend the single intent and objective test of section 654 beyond its purpose and rejected the defendant's assertion that his sole intent and objective to obtain sexual gratification came within the protection of section 654.  (Id. at pp. 552–553, 153 Cal.Rptr. 40, 591 P.2d 63.)

“Assertion of a sole intent and objective to achieve sexual gratification is akin to an assertion of a desire for wealth as the sole intent and objective in committing a series of separate thefts.   To accept such a broad, overriding intent and objective to preclude punishment for otherwise clearly separate offenses would violate the statute's purpose to insure that a defendant's punishment will be commensurate with his culpability.  [Citation.]  It would reward the defendant who has the greater criminal ambition with a lesser punishment.  [Citation.]”  (Id. at p. 552, 153 Cal.Rptr. 40, 591 P.2d 63.)

In People v. Reynolds (1984) 154 Cal.App.3d 796, 201 Cal.Rptr. 826, the court held the defendant's lewd and lascivious act, which consisted of touching the child victim's genitalia, was done as a means of perpetrating, and was not preparatory to, the act of forcing the child to orally copulate him and another child.   Thus, the punishment for each of the offenses was not precluded by section 654.  (Id. at pp. 808–809, 201 Cal.Rptr. 826.)

In People v. Slobodion (1948) 31 Cal.2d 555, 191 P.2d 1, the California Supreme Court held “section 654 did not preclude punishment for both lewd and lascivious conduct and oral copulation, even though both acts were closely connected in time and a part of the same criminal venture, because the act giving rise to the lewd and lascivious conduct was separate and distinct and was not incidental to or the means by which the oral copulation was accomplished.”  (People v. Perez, supra, 23 Cal.3d 545, 553, 153 Cal.Rptr. 40, 591 P.2d 63.)

In Hammon, the defendant was convicted by the trial court of 11 counts of lewd conduct with a child under the age of 14, in violation of section 288, subdivision (a), with allegations of substantial sexual conduct with a victim under the age of 11 years in violation of section 1203.066, subdivision (a)(8), sustained as to 6 of the counts.   The court sentenced the defendant to consecutive sentences on each of the 11 counts.   At issue on appeal was the identity of separate crimes for repeated instances of the same sexual act and the application of the proscription against multiple punishment under section 654 to those criminal acts.   The court explained that identical sexual conduct is divisible into discrete crimes, and is separately punishable for purposes of section 654, whenever the perpetrator completes one sexual offense before beginning another.  (People v. Hammon, supra, 191 Cal.App.3d at p. 1088, 236 Cal.Rptr. 822.)   The court noted that a sexual offense is completed whenever it is followed by the commission of a different sex offense, when the perpetrator reaches a sexual climax, or when there is an appreciable interval of time between the identical acts, or if not appreciable, at least a sufficient lapse of time that the offender had a reasonable opportunity to reflect upon his actions before resuming the same sexual conduct.  (Id. at pp. 1088, 1099, 236 Cal.Rptr. 822.)

The Hammon court determined under the facts there that two acts of fellatio distinguishable only by a change of position where the “defendant momentarily disengaged, moved slightly and then resumed” did not meet the test for separate offenses, concluding the defendant could only be convicted of one offense for this conduct.   The court applied the same reasoning to two counts of oral copulation of the victim's vagina which were distinguishable only by a change in position.   Those four counts were reversed with directions to the trial court to dismiss those counts.  (Id. at pp. 1100–1101, 236 Cal.Rptr. 822.)

The Hammon court disagreed with the conclusions and analyses of the First District Court of Appeal in People v. Clem (1980) 104 Cal.App.3d 337, 163 Cal.Rptr. 553, the Fourth District Court of Appeal in People v. Marks (1986) 184 Cal.App.3d 458, 229 Cal.Rptr. 107 (see People v. Hammon, supra, 191 Cal.App.3d 1084, 1097, 236 Cal.Rptr. 822), and this court in People v. Vela (1985) 172 Cal.App.3d 237, 218 Cal.Rptr. 161.

In People v. Clem, supra, the defendant committed five acts of rape upon the victim within a two-and-one-half-hour period.   The Clem court rejected the defendant's contention he could not be sentenced for five separate counts of rape when there was but one single sexual transaction.   The court, relying on sections 261 and 263, determined that since there were five sexual penetrations, each penetration of the victim was to be considered a separate act of rape and, therefore, the sentencing on those five counts did not constitute multiple punishment as prohibited by section 654.  (People v. Clem, supra, 104 Cal.App.3d 337, 346–347, 163 Cal.Rptr. 553.)

In People v. Marks, supra, the court held two convictions of sodomy were proper notwithstanding the fact that the defendant committed the two penetrations of the victim within a short period of time.   The court reasoned that neither of the two acts was the means of achieving the other, facilitated commission of the other or was incidental to the other.   The defendant, who caused his victim to undergo two separate humiliating and painful violations of her body, was more culpable in committing the two acts of sodomy than if he had committed only one and, therefore, could be punished twice.  (People v. Marks, supra, 184 Cal.App.3d 458, 465–466, 229 Cal.Rptr. 107.)

In dictum, this court in People v. Vela, supra, 172 Cal.App.3d 237, 218 Cal.Rptr. 161 stated:

“It is also settled that each act of nonconsensual sexual penetration of a victim constitutes a separate rape offense.   If a female initially consents to an act of sexual intercourse but thereafter withdraws her consent, each subsequent act of sexual penetration accomplished by force or fear will constitute a separate and distinct act of rape.  [Citations.]”  (Id. at p. 243, 218 Cal.Rptr. 161.)

We disagree with appellant's conclusion that “it cannot be said that the act involving Judy interrupted the oral copulation by Yolanda.   All of Yolanda's activities involving her mouth and appellant's sexual organ were part of a single uninterrupted transaction, during part of which Judy simultaneously performed a similar act.   Indeed, it is clear that the act by Judy was committed merely for the purpose of facilitating the oral copulation by Yolanda.”

Neither Yolanda nor Judy testified that this conduct was uninterrupted.   In fact, one could reasonably infer that the changes of position involving the two victims applying their mouths to appellant's genitalia while all three individuals were in the passenger compartment of appellant's truck would require substantial maneuvering for the two girls to switch places.   While it does not appear that an appreciable passage of time or perhaps a reasonable opportunity for reflection took place between the time Yolanda placed her mouth on appellant's testicles and subsequently orally copulated his penis (which would require reversal according to Hammon ), a new, separate and distinct application of the victim's mouth to appellant's genitalia occurred and, therefore, appellant was more culpable in subjecting Yolanda to two acts of oral contact than if he had only subjected her to one.  (People v. Perez, supra, 23 Cal.3d at pp. 553–554, 153 Cal.Rptr. 40, 591 P.2d 63.)   We disagree with the rationale in Hammon to the extent it suggests there must be a “significant time lapse” between separate acts in order “that a court may declare that separate crimes have been committed as a matter of law” (People v. Hammon, supra, 191 Cal.App.3d at p. 1097, 236 Cal.Rptr. 822) and follow the decisions of Clem and Marks and approve the dictum in Vela. 13

 Furthermore, appellant's conduct in demanding Yolanda fondle him was separate and distinct from his request for oral copulation.   The fondling was neither necessary nor necessarily preparatory to or incidental to the oral copulation.

Section 654 does not preclude punishment for each of the offenses and the trial court properly punished appellant by imposing sentences for counts I, II, and III.


The trial court did not abuse its discretion in sentencing appellant.

The judgment is affirmed.



1.   All statutory references are to the Penal Code unless otherwise specified.

2.   The first three counts involved Yolanda H., and count IV involved Judy W.

3.   The other two were dismissed.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

11.   At trial, Yolanda could not recall placing her mouth on appellant's penis at that time.

12.   Section 654 provides:“An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one;  an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.”

13.   Even the Hammon court agrees that multiple crimes may be separately punished when the “same criminal conduct ․ constitutes discrete crimes which demonstrate separate intents by a defendant to achieve different gratifications ․ [and] when the same crime is repeated in one criminal transaction but against different victims.”  (Hammon, supra, at p. 1096.)

FOOTNOTE.   See footnote *, ante.

IVEY, Associate Justice.*** FN*** Assigned by the Chairperson of the Judicial Council.

HAMLIN, Acting P.J., and BEST, J., concur.

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