PEOPLE v. PEARSON (1984)

Defendant appeals from a judgment sentencing him to state prison for a total term of eight years after a jury found him guilty of two counts of sodomy with a child under 14 years of age and more than 10 years younger than defendant (Pen.Code, § 286, subd. (c)) and two counts of committing a lewd and lascivious act upon a child under 14 years of age (Pen.Code, § 288, subd. (a)).¹  Defendant contends:  (1) his convictions of either sodomy or lewd and lascivious conduct must be reversed because they are based only upon acts of sodomy;  (2) the court committed prejudicial error in not instructing the jury that it must unanimously agree on the specific act constituting each count;  and (3) the People failed to prove beyond a reasonable doubt that defendant was more than ten years older than the victims.   We reject each of these contentions.   However, we have discovered a sentencing error.   In all other respects, we shall affirm the judgment.

FACTS

During the period from 1980 to 1982, Mrs. N. was dating defendant.   She lived in Stockton with her three sons from a previous marriage, B., W. and E.  Occasionally, defendant would stay overnight at the residence.   Defendant participated in recreational activities with the children and also disciplined them on occasion.

One afternoon B., then nine years old, was alone in the house when defendant came by.   At that time defendant worked evenings as a security guard.   When defendant came into the house, he told B. to go into his bedroom, stating “I have something special for you.”   Once they were in the bedroom, defendant told B. to pull down his pants and face the wall.   Defendant then placed his penis in B.'s anus.   When B. asked defendant what he was doing, he said “something for a special reason.”   When defendant pulled out his penis, B. turned around and observed defendant wiping it.   Defendant told B. not to tell anyone about the incident or he would “get a whipping.”   Defendant had previously whipped B. with a belt.   However, B. did talk about the incident with a friend, the son of Mrs. N.'s friend, Ms. H.

B. testified this incident happened 12 more times.   He did not relate any detail about these subsequent incidents, but stated they happened in the same manner and usually in his bedroom.   Soon thereafter, in January 1981, B. went to live with his father in Bakersfield.

In February and March 1982, B.'s brother W., then six years old, was attending the Martin Luther King Child Development Center in Stockton.   Because Mrs. N. worked and did not own a car, defendant, who at that time was driving a taxicab, often picked up W. from the center in the afternoon and took him home.   One afternoon, after defendant picked up W., they drove to a dirt road.   After stopping, defendant told W. to get out of the car.   He then told W. to take his pants off and lie on the ground face down.   Thereupon, defendant lay on top of W.   W. felt something painful penetrate his anus.   After a few minutes, defendant told W. to get up.   They then left to pick up Mrs. N. from work.

W. testified that this incident occurred again at a different location and on the rear seat of defendant's taxi.   He testified defendant also sodomized him at home in the same manner as with B.—standing against the wall.   W. stated defendant sodomized him a total of ten times, most often at the dirt road.

In some manner unclear from the record, Mrs. N.'s friend, Ms. H., became aware of what had happened.   She talked with W., who told her about the incidents.   On March 23, 1982, W. spoke with the police about the incidents.   On March 31, 1982, B. spoke with the police about the incidents in which he was involved.

Defendant was charged by information with one count of sodomy (§ 286, subd. (c) ² ) and one count of lewd and lascivious conduct (§ 288, subd. (a) ³ ) as to each boy (a total of four counts).   At defendant's first trial, the jury deadlocked eleven to one in favor of conviction, whereupon the court declared a mistrial.

At his second trial, defendant denied sodomizing B. and W.   He admitted he often came to Mrs. N.'s house and found B. alone after school.   He also admitted he drove W. home from school in his taxicab.   He produced dispatch records from his employer in an attempt to show he did not have time to commit the acts of which W. accused him.

The jury found defendant guilty on each count.   The court sentenced defendant to the middle term of six years for the lewd and lascivious conduct conviction as to B., and imposed a consecutive subordinate term of two years for the lewd and lascivious conduct conviction as to W. (§ 1170.1, subd. (a)), for a total term of eight years.

In this case, only acts of sodomy were shown by the evidence.   Because the acts forming the basis of the sodomy convictions were the same acts forming the basis of the lewd and lascivious conduct convictions, the court avoided double punishment (§ 654) by staying the execution of middle term sentences for each of the sodomy convictions, such stay to become permanent upon serving the sentences for the lewd and lascivious conduct convictions.

DISCUSSION

I

Defendant first contends that under section 654 he may not be convicted of both lewd and lascivious conduct and sodomy where the same act forms the basis of both convictions, and that on appeal his convictions for either sodomy or lewd and lascivious conduct must be reversed, notwithstanding that the trial court permanently stayed sentence on the sodomy convictions.   Section 654 provides in relevant part:  “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;  ․”

Defendant cites several cases which suggest that in the instance of a conviction under section 288 based upon a single act that is also punishable under another section of the Penal Code, section 654 requires that the conviction also be reversed, notwithstanding that sentence was stayed on the other counts.   However, a careful reading of the leading case upon which defendant relies reveals that it does not so hold.

The leading case is People v. Greer (1947) 30 Cal.2d 589, 184 P.2d 512.   In Greer, the defendant was convicted and sentenced for unlawful sexual intercourse (then called statutory rape and codified as section 261, subd. (1)) with his 13-year-old stepdaughter and lewd and lascivious conduct in violation of section 288.   The convictions were based upon a single act of intercourse.

On appeal defendant contended, inter alia, that he could not be convicted of both statutory rape and lewd and lascivious conduct in violation of section 288 because the convictions were based upon the same act.   Although the court began this section of its opinion with the heading, “CAN DEFENDANT BE CONVICTED OF BOTH LEWD AND LASCIVIOUS CONDUCT AND STATUTORY RAPE?”  (People v. Greer, supra, 30 Cal.2d at p. 601, 184 P.2d 512;  emphasis added), in the text of the opinion the court posed the question “whether a defendant may be punished for the same act under both section 288 and another section of part one of the Penal Code.”  (Id., at p. 603, 184 P.2d 512;  emphasis added.)   The court based its decision upon section 654.  (Ibid.)

The question before the court, therefore, was whether a single act may be punishable under both section 288 and another provision in part one of the Penal Code.   If so, section 654 would preclude double punishment for the same act.   The court focused upon the language of section 288 which states that a lewd and lascivious act “ ‘․ includ[es] any of the acts constituting other crimes provided for in part one of this code ․’ ”  (Id., at p. 602, 184 P.2d 512;  original emphasis.)   The court stated that under this language, “lewd and lascivious conduct ․ may be charged on the basis of acts that also constitute other crimes provided for in part one of the code.”   (Ibid.)  Thus, under section 288, an act that is punishable under another section in part one of the code, such as rape, “has been expressly made punishable in different ways and by different provisions of the code.”   (Id., at p. 603, 184 P.2d 512.)

Therefore, when a single act forms the basis of conviction under section 288 and another provision in part one of the Penal Code, it can only be punished once.  “[T]he crime of statutory rape is included within section 288 by that section's own terms, and the rape forms the basis for the prosecution under section 288․   Now statutory rape committed upon the body of a child under 14 years of age can be punished as a lewd and lascivious act.   It cannot, however, be punished twice, as statutory rape and as lewd and lascivious conduct.   Doubts as to the meaning of the amended section [288] are resolved against double punishment for the same act.”  (Greer, supra, 30 Cal.2d at p. 603, 184 P.2d 512;  emphasis added.)   Elsewhere, the court states “[w]e have concluded that the amended section [288] does not authorize ․ double punishment for the same act or acts.”  (Ibid.;  emphasis added.)

Accordingly, although the issue before the court was ostensibly whether defendant could be convicted under both sections, the issue the court actually addressed was whether defendant could be punished under both sections in light of section 654.   The terms “conviction” and “punishment” were used interchangeably.   Since the defendant was convicted and sentenced under both sections, the court did not squarely face the issue before us:  whether on appeal section 654 requires reversal of the conviction on one of the counts even when sentence has been permanently stayed on that count by the trial court.

The Supreme Court continued the imprecision in later cases by using the terms “punishment” and “conviction” interchangeably under a section 654 analysis, and unqualifiedly reversing “convictions” rather than merely ordering the stay of sentence.  (See, e.g., Neal v. State of California (1960) 55 Cal.2d 11, 21, 9 Cal.Rptr. 607, 357 P.2d 839;  People v. Brown (1958) 49 Cal.2d 577, 593–594, 320 P.2d 5;  People v. Logan (1953) 41 Cal.2d 279, 291, 260 P.2d 20;  People v. Knowles (1950) 35 Cal.2d 175, 217 P.2d 1;  People v. Kehoe (1949) 33 Cal.2d 711, 716, 204 P.2d 321.)

However, later Supreme Court cases make clear that section 654 only prohibits double punishment, not double convictions, and that the proper procedure on appeal is to reverse only insofar as the sentence is concerned.

In People v. Tideman (1962) 57 Cal.2d 574, 21 Cal.Rptr. 207, 370 P.2d 1007, the court held that section 654 does not prohibit multiple convictions in a single prosecution, even one involving lesser included offenses, stating:  “ ‘Section 654 prohibits double punishment for the commission of a single act [citations], but it does not prohibit convictions for different offenses arising out of a single act․’  [¶] [I]t is established that section 654 prohibits multiple punishments for a single act, but like the jeopardy doctrine, has no application to multiple convictions as such, in a single prosecution․”  (Id., at pp. 586–587, 21 Cal.Rptr. 207, 370 P.2d 1007;  fns. omitted;  original emphasis.)

The same year, in People v. McFarland (1962) 58 Cal.2d 748, 26 Cal.Rptr. 473, 376 P.2d 449, the court emphasized that section 654 only prohibits double punishment and established that the proper procedure is to reverse only insofar as the sentence is concerned.  “With respect to the procedure to be followed on appeal where double punishment has been erroneously imposed, it should be stressed that section 654 proscribes double punishment, not double conviction;  conduct giving rise to more than one offense within the meaning of the statute may result in initial conviction of both crimes, only one of which, the more serious offense, may be punished.  [Citation.]   The appropriate procedure, therefore, is to eliminate the effect of the judgment as to the lesser offense insofar as the penalty alone is concerned.”  (McFarland, supra, at pp. 762–763, 26 Cal.Rptr. 473, 376 P.2d 449.)

 Since McFarland it has become the accepted procedure for the trial court to stay sentence on the offense to which section 654 applies pending service of the sentence for the other offense, or, on appeal, to reverse the judgment only insofar as the lesser sentence is concerned.  (See, e.g., People v. Miller (1977) 18 Cal.3d 873, 886, 135 Cal.Rptr. 654, 558 P.2d 552;  People v. Beamon (1973) 8 Cal.3d 625, 640, 105 Cal.Rptr. 681, 504 P.2d 905;  In re Wright (1967) 65 Cal.2d 650, 656, 56 Cal.Rptr. 110, 422 P.2d 998;  People v. Hicks (1965) 63 Cal.2d 764, 766–767, 48 Cal.Rptr. 139, 408 P.2d 747;  People v. Avila (1982) 138 Cal.App.3d 873, 879, 188 Cal.Rptr. 754;  People v. Perkins (1982) 129 Cal.App.3d 15, 21, 180 Cal.Rptr. 763;  People v. Williams (1975) 51 Cal.App.3d 65, 67, 123 Cal.Rptr. 891;  People v. Miranda (1967) 254 Cal.App.2d 517, 523–524, 62 Cal.Rptr. 339;  People v. Lindsey (1967) 249 Cal.App.2d 6, 10–12, 57 Cal.Rptr. 190;  People v. Niles (1964) 227 Cal.App.2d 749, 755–756, 39 Cal.Rptr. 11;  Cal.Rules of Court, rule 449.)⁴

Some appellate court cases interpreted Greer as requiring reversal of the conviction, not just a stay of the sentence, where a single act forms the basis of a violation of section 288 and another Penal Code section.  (See People v. Deletto (1983) 147 Cal.App.3d 458, 195 Cal.Rptr. 233;  People v. Nicholson (1979) 98 Cal.App.3d 617, 626, 159 Cal.Rptr. 766;  People v. Cline (1969) 2 Cal.App.3d 989, 997, 83 Cal.Rptr. 246;  People v. Toliver (1969) 270 Cal.App.2d 492, 497–498, 75 Cal.Rptr. 819;  People v. Webb (1958) 158 Cal.App.2d 537, 540–541, 323 P.2d 141.)

However, most of these cases, like Greer, involved defendants who were doubly convicted and sentenced and thus were not squarely faced with the issue whether section 654 required reversal of the conviction even where sentence has been stayed.   Moreover, to the extent these cases interpret Greer and other early Supreme Court cases as requiring reversal of the conviction under section 654, they are mistaken, as later Supreme Court cases make clear.

 Thus, where defendant has been convicted of two offenses on the basis of a single act, the proper procedure for the trial court under section 654 is to stay sentence on one of the offenses, such stay to become permanent upon completion of the sentence for the other offense.   When the trial court does this, section 654 does not require an appellate court to reverse any of defendant's convictions.   The trial court properly avoided the proscription against double punishment by staying sentence on the sodomy convictions.

II 5

III

Defendant finally contends the People failed to prove beyond a reasonable doubt that the defendant was more than 10 years older than his victims at the time of the offenses, a necessary element of section 286, subdivision (c).  Defendant's contention is meritless.

 The jury was adequately instructed on the elements of sodomy and on the fact that the elements must be proved beyond a reasonable doubt.   B. and W. directly testified to their ages.   Although defendant did not directly testify to his age, the jury was properly instructed in accordance with CALJIC No. 2.00 that circumstantial evidence is an acceptable means of proof.   It also was properly instructed that evidence includes “anything presented to the senses” to prove the existence of a fact.   The jury could observe defendant.   He was 38 years old at the time of trial, 26 years older than B. and 31 years older than W.   He was having an intimate relationship with their mother.   Prior to the incidents with W., defendant went “back east” for his daughter's wedding.   This is certainly substantial evidence—“i.e., evidence that is credible and of solid value” (People v. Green (1980) 27 Cal.3d 1, 55, 164 Cal.Rptr. 1, 609 P.2d 468)—from which a rational jury could conclude beyond a reasonable doubt that defendant was more than 10 years older than his victims.

IV

Although defendant does not contend the trial court committed sentencing errors, our review of the record disclosed an error that requires a remedy.

 The court sentenced defendant to the middle term of six years for the lewd and lascivious conduct conviction as to count 4 relating to B.   This is the correct middle term as section 288, subdivision (a), now exists.   However, the offenses against B. were alleged to have taken place between September 1980, and March 30, 1981.   At that time, the middle term for a violation of section 288, subdivision (a), was five years.  (Stats.1979, ch. 944, § 6.5, p. 3254.)   It was not until January 1982 that the penalty for the middle term was increased to six years.  (Stats.1981, ch. 1064, § 1, p. 4093.)

The judgment as to count 4 is modified from 6 years to 5 years and the trial court is ordered to amend the abstract of judgment accordingly.

In all other respects, the judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   All further statutory references herein are to the Penal Code.

2.   Section 286, subdivision (c), provides in relevant part:  “Any person who participates in an act of sodomy with another person who is under 14 years of age and more than 10 years younger than he, ․ shall be punished by imprisonment in the state prison for three, six or eight years.”   Sodomy is “contact between the penis of one person and the anus of another person.”  (§ 286, subd. (a).)

3.   Section 288, subdivision (a), provides:  “Any person who shall willfully and lewdly commit any lewd or lascivious act including any of the acts constituting other crimes provided for in Part 1 of this code upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, shall be guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or eight years.”

4.   The trial court is not actually required to impose the greater sentence while staying only the lesser sentence.   Rather, the court has discretion under section 654 to sentence defendant under the less seriously punishable offense and stay sentence under the more serious offense, unless otherwise directed.  (See People v. Barela (1983) 145 Cal.App.3d 152, 160–161, 193 Cal.Rptr. 257;  People v. Avila, supra, 138 Cal.App.3d at p. 879, 188 Cal.Rptr. 754;  People v. Mendevil (1978) 81 Cal.App.3d 84, 89, 146 Cal.Rptr. 65;  People v. DeVaney (1973) 33 Cal.App.3d 630, 639, 109 Cal.Rptr. 276;  People v. Wesley (1970) 10 Cal.App.3d 902, 911–912, 89 Cal.Rptr. 377.)   When the trial court erroneously imposes double sentences for a single act, the appellate court must reverse the lesser sentence and allow the greater sentence to stand.  (People v. Bradley (1981) 115 Cal.App.3d 744, 753, 171 Cal.Rptr. 487;  People v. Wesley, supra, 10 Cal.App.3d at p. 911, 89 Cal.Rptr. 377.)   This is because the appellate court can presume that where the trial court sentences on all counts, the court meant to impose at least the most serious offense.  (Bradley, supra, 115 Cal.App.3d, at p. 753, 171 Cal.Rptr. 487.)   However, as a general rule, the trial court, “in the exercise of its discretion, may impose the lesser offense while staying the greater;  for unless otherwise directed, it is not required to punish a defendant with the most severe penalty.”  (Ibid.)

5.   See footnote *, ante.

MARLER, Associate Justice.** FN** Assigned by the Chief Justice.

EVANS, Acting P.J., and SPARKS, J., concur.