THE PEOPLE v. KENNETH EUGENE JACKSON (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

Kenneth Eugene Jackson committed multiple sex crimes against his girlfriend's two daughters, one of whom gave birth at age 13 to a child he fathered.   A jury found him guilty of five counts of lewd and lascivious acts with a child under the age of 14, two counts of lewd and lascivious acts with a child under the age of 14 by force or duress, and one count of aggravated sexual assault with personal infliction of great bodily injury.   The court sentenced him to a term of 130 years to life.

On appeal, Jackson argues his attorney rendered ineffective assistance of counsel, the court's denial of a continuance prejudiced him, the imposition of a fine violated the ex post facto clause, the court erred in calculating his local conduct credits, and a clerical error in the abstract of judgment requires correction.   We modify the judgment as to the fine and the credits and order correction of the abstract of judgment but otherwise affirm the judgment.

BACKGROUND

On March 9, 2009, the district attorney filed a second amended information charging Jackson with five counts of lewd and lascivious acts with a child under the age of 14 (counts 1-3 [victim D.C.], 5-6 [victim C.W.];  Pen.Code, § 288, subd. (a) ¹ ), two counts of lewd and lascivious acts with a child under the age of 14 by force or duress (counts 7-8 [victim C.W.];  § 288, subd. (b)(1)), and one count of aggravated sexual assault (count 4 [victim D.C.];   § 269, subd. (a)(1)).   The information alleged, in all counts, commission of a statutorily specified sex crime against more than one victim (§ 667.61, subd. (e)(5)) and, in count 4, personal infliction of great bodily injury (§ 667.61, subd. (e)(3)).²

On March 25, 2009, a jury found Jackson guilty as charged and found the personal infliction of great bodily injury allegation and all eight multiple-victim allegations true as pled.   On May 20, 2009, the court sentenced him to an aggregate term of 130 years to life consisting of a term of 15 years to life on count 1, a consecutive term of 15 years to life on count 2, a consecutive term of 15 years to life on count 3, a consecutive term of 25 years to life on count 4, a consecutive term of 15 years to life on count 5, a consecutive term of 15 years to life on count 6, a consecutive term of 15 years to life on count 7, and a consecutive term of 15 years to life on count 8.

DISCUSSION

1.  Assistance of Counsel

Jackson argues that his attorney rendered ineffective assistance of counsel by failing to object adequately to the admission of evidence of his Alabama sex crime priors.   The Attorney General argues the contrary.

On March 10, 2009, the prosecutor filed a trial brief in support of the admission of Jackson's sex crime priors as relevant to knowledge, intent, and motive within Evidence Code section 1101, subdivision (b) and as relevant to propensity within Evidence Code section 1108.   On March 11, 2009, the prosecutor filed a motion in limine seeking the admission of his sex crime priors within Evidence Code section 1108 and, as relevant to credibility, within Evidence Code section 788.

At a hearing on the latter date, an investigative assistant in the district attorney's office testified as an expert witness that Jackson's fingerprints from the time of his arrest matched fingerprints from the documents showing the sex crime priors.   The court heard argument and admitted certified copies of the documents into evidence.  (Peo.Exh. 102, 103.)   The parties stipulated Jackson was the person named in the documents.   The prosecutor characterized the documents as certified convictions of sexual misconduct, which the court defined in Alabama as sexual intercourse without consent, sexual intercourse with consent obtained by fraud, or deviant sexual intercourse.

In argument to the jury, the prosecutor linked Jackson's “separate convictions for sexual misconduct” to the charged crimes.  “Shortly after he pled guilty to those sexual offenses, he came to California and he began molesting [D.C.] and then [C.W.], because that's what he does.   He did it before, and he did it again.   That's how we know his intent when he touched [D.C.]'s bare vagina.   When he put his penis inside her vagina and raped her over and over again, he had the intent to sexually gratify himself just like he did in the other cases.”

The crux of Jackson's argument is that his attorney failed “to object that the Alabama misdemeanor convictions for ‘sexual misconduct’ did not qualify as ‘sexual offenses' under Evidence Code section 1108.”  (See Evid.Code, § 1108, subd. (d)(1).)   Additionally, as to one prior, but not the other, he argues that “sexual misconduct” includes consensual sodomy, which is not a crime in California.   He acknowledges that his attorney “objected to the evidence on multiple grounds” but emphasizes that “he did not object that the evidence lacked foundation” and that “there was no reasonable tactical justification” for failing to do so.

The right to counsel protects the due process right to a fair trial by guaranteeing “access to counsel's skill and knowledge” and by ensuring an “ ‘ample opportunity to meet the case of the prosecution.’ ”  (Strickland v. Washington (1984) 466 U.S. 668, 684-686 (Strickland ).)   To establish ineffective assistance, the defendant's burden is to show that counsel's performance “fell below an objective standard of reasonableness” and prejudiced the defense.  (Id. at pp. 687-692;  People v. Ledesma (1987) 43 Cal.3d 171, 216-217.)   To establish prejudice, the defendant's burden is to show a “reasonable probability” - one that is “sufficient to undermine confidence in the outcome” - that but for counsel's performance “the result of the proceeding would have been different.”  (Strickland, supra, at pp. 693-694;  Ledesma, supra, at pp. 217-218.)   A reviewing court can adjudicate an ineffective assistance claim solely on the issue of prejudice without evaluating counsel's performance.  (Strickland, supra, at p. 697.)

Here, in the interest of judicial efficiency, we address neither the court's ruling admitting Jackson's sex crime priors nor the performance of his attorney and adjudicate his claim solely on the issue of prejudice.   A summary of the evidence at trial frames our analysis.

For about seven years, Jackson lived with Adrian Jenkins, her daughter D.C. (born in 1993), her daughter C.W. (born in 1997), and her son.   On February 8, 2005, five days after the birth of her only child by Jackson, Jenkins was hospitalized for a heart condition that required her to take medication and to return frequently to the hospital for overnight stays lasting anywhere from a day and a half to a week.

When Jenkins was in the hospital, Jackson was at home, where he touched D.C. and C.W. on “the breasts,” “the vagina,” and “the behind,” with his hand and with his penis, and where he raped both girls.   He put his finger and his penis into D.C.'s vagina and, grabbing her hand, forced her to touch his penis in a back-and-forth motion.   She cleaned white stuff from his penis off her vagina.   She “started crying” and “begged him to stop,” but he “didn't listen.”

Jackson called D.C. “dumb” and “stupid” and “ugly” and told her no one would ever believe her, not even the police.   He said she would go to foster care if she ever told her mother and “they would treat you wrong in foster care.”   She said she felt sad and cried when he told her those things.   When she cried he told her to shut up.  “Over and over and over again,” she told him she did not want to have sex with him.   She resisted him physically by pushing him off her, but he pushed her down, held her hands down, and sometimes struck her.   He forced her to have sex with him in her room, in the bathroom, in the hallway, and in her mother's room.   On her 13th birthday, he raped her “and said it was a birthday gift.”

Jackson touched C.W.'s buttocks with his hand over her clothes, and touched her breasts with his hand, sometimes over but mostly under her clothes, and made her touch his penis with her hand, and touched her vagina with his penis when she wore no clothes.   He put his penis inside her vagina over 20 times.   Before he took off her clothes to do that, she told him to stop and tried to push him off her, but he pushed back, and that hurt.   He put his penis inside her vagina as she stood up, as she lay down on her back, and as she lay down on her stomach.   He put his penis inside her vagina in the hallway, in the living room, in the kitchen, in her bedroom, and in D.C.'s bedroom.

Jackson threatened to “whoop” C.W. if she did not let him put his penis inside her vagina and told her she should not to tell anyone because no one would believe her and her mother “would get real sick and she might just die.”   Sometimes he forced both C.W. and D.C. to have sex with him on the same day.   Sometimes he forced D.C. to have sex with him as C.W. watched, crying and begging him to stop.

The next-to-last time Jackson had forcible sex with D.C. was in January of 2007.   The last time he had forcible sex with her was about two months later, when he raped her.   Two weeks afterward, on March 21, 2007, he tried to pull off her pants while Jenkins was in the hospital overnight, but she held on tight, not caring if she lived or died, since by that time “it seemed like no one cared about me.”   She ran to the telephone, called 911, and heard the operator ask, “What's your emergency.”   Jackson pushed her out of the way and snatched the telephone cord out of the wall.   She said nothing about the molestations when the police arrived.  “I thought we was going to go to foster homes and we would be split up like he said, and my mom was in the hospital again.”

Later that day, D.C. called her mother at the hospital and left a voice message saying that Jackson “had been raping them every time I go to the hospital to get my heart fixed and that he told ‘em that it would kill me if she telled [sic ] me.”   After Jenkins heard the voice message, she checked herself out of the hospital, called her sister and the police, and went to D.C.'s school, where D.C. told her Jackson “had been raping ‘em every time I go in the hospital.”

On April 27, 2007, D.C. arrived at the emergency room of Mercy Medical Center approximately 36 weeks pregnant.   With a diagnosis of moderately severe preeclampsia, and with a pelvis too small for a vaginal delivery, she delivered a premature baby girl by Caesarian section on April 29, 2007.   On the basis of DNA samples from Jackson, D.C., and D.C.'s baby, a senior criminalist at the Department of Justice Central Valley Crime Lab opined that the baby was 4.6 billion to 15 billion times more likely to be D.C.'s and Jackson's than the baby of D.C. and a random male in the population.   A forensic nurse practitioner who performed a sexual assault examination of C.W. found an old healed laceration of the hymen consistent with the insertion of a penis into her vagina.

Jenkins's son, who was 14 years old at the time of trial, never saw Jackson molest D.C. or C.W., but sometimes while he and D.C. walked to school together in the morning she talked about how Jackson stuck his penis in her and kept on raping her.   He wanted to tell someone, but he was afraid Jackson “would try to hurt me if I had said anything,” so he told no one.   On the night she called 911, he heard her scream, and he saw Jackson run after her, push her out of the way, and pull the telephone cord out of the wall.

On the record here, the requisite showing of prejudice is lacking.  “The testimony of the two victims and their brother,” as the Attorney General persuasively argues, “was consistent, compelling, graphic and overwhelming.”   The sketchy documentary evidence of Jackson's sex crime priors was far less impactful than the shocking evidence of the horrific crimes he committed, time after time, against D.C. and C.W. Even if his attorney had made the foundational objection on which he now focuses, and even if, on the basis of that objection, the court had ruled the evidence inadmissible, the result of the proceeding would have been the same.  (Strickland, supra, 466 U.S. at p. 697.)   His ineffective assistance of counsel argument has no merit.

2. Continuance

Jackson argues that the court committed an abuse of discretion and violated his right to due process by denying his motion for a continuance to investigate the sex crime priors and to determine if he was the person in the documents showing those priors.   The Attorney General argues the contrary.

Jackson's argument requires little comment.   First, the parties stipulated that he was the person named in the documents showing his sex crime priors.   (See ante, part 1.) Second, our rejection of his ineffective assistance of counsel argument solely on the issue of prejudice expressly embraces the conclusion that, even if the court had ruled the evidence of those priors inadmissible, the result of the proceeding would have been the same.   (Ibid.) So the issue is moot.

3. Sex Offender Registration Act Fine

Jackson argues that the imposition of a $300 Sex Offender Registration Act fine on the authority of section 290.3 violates the ex post facto clause.   The Attorney General argues the contrary.

The parties agree that, effective September 20, 2006, the Legislature amended section 290.3 by, inter alia, raising the base fine from $200 to $300.   (Stats.2006, ch. 337, § 18, eff.Sept. 20, 2006.)   The parties agree, too, that none of Jackson's crimes was “alleged to have occurred solely after September 20, 2006,” and that the jury “made no finding that any of the offenses occurred after September 20, 2006.”   The parties disagree, however, whether the ex post facto clause precludes the imposition of the $300 fine.

Of the jury's eight guilty verdicts, two (counts 3 and 4) found Jackson guilty beyond a reasonable doubt of crimes committed sometime “from the dates of August 8, 2006 through March 22, 2007,” and two (counts 6 and 8) found him guilty beyond a reasonable doubt of crimes committed sometime “from March 22, 2006 through March 22, 2007,” but none found him guilty beyond a reasonable doubt of a crime committed on or after September 20, 2006, the effective date of the amendment of section 290.3.   The Attorney General argues that the record shows D.C. testifying to two incidents that occurred in 2007 - both of which were after the effective date of the amendment of section 290.3 - so “there was sufficient evidence to impose the section 290.3 fine.”   We disagree.   The record contains no finding beyond a reasonable doubt that the jury based either of those verdicts on either of those incidents.  “For a court to hypothesize which acts the jury may have based its verdicts on, or what dates might be attached to certain acts based on ambiguous evidence, would amount to ‘judicial impingement upon the traditional role of the jury.’ ”  (People v. Hiscox (2006) 136 Cal.App.4th 253, 261, quoting Blakely v. Washington (2004) 542 U.S. 296, 309.)   Our duty is to modify the judgment by striking the imposition of a $300 fine and substituting the imposition of a $200 fine.

In addition to the section 290.3 fine, the Attorney General requests the imposition of a mandatory penalty on the authority of section 1464, subdivision (a)(1).   A section 290.3 fine is subject to other mandatory penalties.  (See, e.g., Gov.Code, §§ 70372, subd. (a)(1), 76000, subd. (a)(1);  § 1465.7, subd. (a).)  A court's failure to impose mandatory penalties after imposing a section 290.3 fine is a jurisdictional error cognizable on appeal even in the absence of an objection by the prosecutor.  (People v. Stewart (2004) 117 Cal.App.4th 907, 911.)   So we remand the matter for the imposition of mandatory penalties.

For the court's benefit on remand, we note that the law requires the preparation of abstracts of judgment with detailed itemizations of all fines and penalties to enable the Department of Corrections and Rehabilitation to fulfill its statutory duty to deduct from prisoner wages and send to appropriate agencies the correct sums as well as to assist those agencies in their collection efforts.  (People v. High (2004) 119 Cal.App.4th 1192, 1200.)  “Just as a ‘ “ ‘[r]ose is a rose is a rose is a rose [ ]’ ” (Gertrude Stein, Sacred Emily (1913)[ ] )' (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 459 (conc. opn. of Eagleson, J.)), a fine is a fine is a fine is a fine and is part of the judgment which the abstract must ‘ “digest or summarize.” ’ ”  (People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332.)

4. Local Conduct Credit

Jackson argues, the Attorney General agrees, and we concur that he is entitled to one additional day of local conduct credit.   We modify the judgment to award 858 (not 857) total days of credit consisting of 751 days of custody credit and 107 (not 106) days of local conduct credit.  (See People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8.)

5.  Clerical Error

Jackson argues, the Attorney General agrees, and we concur that although the court correctly imposed a $160 section 1465.8 court security fee the abstract of judgment incorrectly shows a $300 section 1465.8 court security fee.   We order correction of the abstract of judgment accordingly.  (See People v. Mitchell (2001) 26 Cal.4th 181, 185.)

DISPOSITION

The judgment is modified by striking the $300 section 290.3 fine, substituting a $200 section 290.3 fine, and awarding 858 total days of credit consisting of 751 days of custody credit and 107 days of local conduct credit.   The matter is remanded and the court is ordered to impose mandatory penalties on the section 290.3 fine, to issue an amended abstract of judgment itemizing those penalties in detail, to additionally amend the abstract of judgment by striking the imposition of a $300 section 1465.8 fee and by substituting the imposition of a $160 section 1465.8 fee, and to send a certified copy of

the abstract of judgment so amended to the Department of Corrections and Rehabilitation.   Jackson has no right to be present at those proceedings.   (See People v. Price (1991) 1 Cal.4th 324, 407-408.)   In all other respects, the judgment is affirmed.

Gomes, Acting P.J.

WE CONCUR:

Dawson, J.

Poochigian, J.

FOOTNOTES

FN1. Later statutory references are to the Penal Code unless otherwise noted..  FN1. Later statutory references are to the Penal Code unless otherwise noted.

FN2. The information alleged two 2002 Alabama sex crime convictions as serious or violent felonies within the scope of the three strikes law (§§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d)).  On March 23, 2009, the court granted the prosecutor's motion to dismiss those allegations..  FN2. The information alleged two 2002 Alabama sex crime convictions as serious or violent felonies within the scope of the three strikes law (§§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d)).  On March 23, 2009, the court granted the prosecutor's motion to dismiss those allegations.