Opinion
C097463
04-30-2024
THE PEOPLE, Plaintiff and Respondent, v. STEPHEN LEE REED, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. CRF200001229)
ROBIE, J.
Defendant Stephen Lee Reed was a high school wrestling coach who molested some of the female minor wrestlers he coached and had a sexual relationship with one of them. Based on this conduct, a jury found defendant guilty of 27 counts. On appeal, defendant challenges the judgment arguing: (1) the trial court erred by not providing a unanimity instruction for two sets of charges; (2) the trial court erred by not staying some sentences under Penal Code section 654; (3) the abstract of judgment misstates defendant's convictions; and (4) the reporter's transcript must be amended. We reject defendant's challenges but modify the judgment to reflect three convictions under section 647.6 must be felonies served in prison.
Undesignated section references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with 27 counts involving five victims. This appeal concerns two victims: Amanda and Liss. For victim Liss, defendant was charged with one count of sexual battery by restraint and one count of misdemeanor annoying or molesting a person under 18 years old; both crimes were alleged to have occurred between November 2018 and February 2019.
At trial, Liss testified defendant was her high school wrestling coach. Liss described several incidences involving defendant: Defendant massaged Liss's shoulders and lower back in the back seat of his car late one night while they were alone in a parking lot after a wrestling competition; defendant massaged Liss's shoulders, legs, and feet while they were in a hot tub; defendant massaged Liss's shoulders, back, and waist at his house; and, during a wrestling tournament, defendant gave Liss a massage where his hands were touching the underside and side of her breasts.
For victim Amanda, defendant was charged with eight counts of unlawful sexual intercourse with a person under 18 years old, nine counts of oral copulation with a person under 18 years old, and one count of misdemeanor annoying or molesting a person under 18 years old. All of the crimes committed against Amanda were alleged to have occurred between November 2019 and February 2020.
At trial, Amanda testified to having a sexual relationship with defendant while he was her high school wrestling couch. Amanda specifically testified to having intercourse with defendant eight separate times and usually engaging in oral copulation with defendant before or after the intercourse. Amanda also testified defendant gave her massages before three of the sexual encounters.
The prosecutor played for the jury an interview defendant had with Shasta County Sheriff's deputies where defendant eventually admitted to having sex with Amanda eight separate times and admitted to giving Liss a massage.
Several character witnesses testified in defendant's defense, including defendant's wife who testified she saw defendant give many massages, they never seemed sexual in nature, and that "[h]e's pretty huggy."
During closing argument for the charges related to Liss, the prosecutor generally summarized "the incident in the car where . . . defendant was driving her home from a wrestling tournament," then how Liss testified "defendant would massage her neck, her shoulders and waist, that he'd go under her bra, touch the sides of her breasts. The prosecutor then discussed the charge for "sexual battery by restraint with Liss," arguing the "restraint here goes to that authority of another, that essentially her liberty was affected because this was her coach who gave her massages regularly, that he acted like this was normal, and she felt she needed to comply. [¶] She also had that other experience in the car where she was alone with him affecting her perception of events, and all of that made her believe she needed to comply with what he was doing. Whether she wanted it or not, whether she asked for it or not, he would massage her, and he would touch the sides of her breasts, and that is sexual battery by restraint." The prosecutor continued: "As for the annoying or molesting charge, we can look to that incident in the car. Even though this was not under the clothes or touching the breasts, . . . defendant is alone with a minor female at eleven o'clock at night in a parking lot at a gas station giving her a massage. Any reasonable person would be disturbed by that .... The annoying or molesting charge is proven as to Liss."
The prosecutor similarly discussed massages defendant gave two other victims that supported two annoying or molesting a minor charges related to those victims.
For Amanda, the prosecutor detailed the acts of sexual intercourse and acts of oral copulation from Amanda's testimony and defendant's statements to police supporting the sexual intercourse with a minor and oral copulation with a minor charges. The prosecutor described how each sexual encounter would take place: three times starting with massages, then often including oral copulation, and then leading to sexual intercourse. The prosecutor did not specifically discuss in closing argument the annoying or molesting a minor charge related to Amanda.
After less than two hours of deliberation, the jury found defendant guilty of all charges, including four charges of annoying or molesting a minor.
At sentencing, the trial court stated it sentenced defendant to a total of "16 years and three months in state prison." For the convictions related to Liss, the trial court sentenced defendant to one year (one-third midterm) for the sexual battery by restraint conviction and one year for the misdemeanor annoying or molesting a minor conviction. For the convictions related to Amanda, the trial court sentenced defendant to eight months (one-third midterm) for each of the eight sexual intercourse convictions and nine oral copulation convictions; the court ran the oral copulation sentences concurrently to the sexual intercourse sentences. The court also imposed a one-year term for the misdemeanor annoying or molesting a minor conviction and ran that sentence concurrently. For the convictions related to the other victims, the court imposed a year on each of the other two annoying or molesting a minor convictions and seven years total on five other convictions.
Defendant appeals.
DISCUSSION
I
The Trial Court Did Not Commit Reversible Unanimity Error
Defendant argues the trial court erred by failing to provide unanimity instructions for the charges related to Liss and Amanda. We will address each set of charges separately.
In a criminal case, the jury must agree unanimously the defendant is guilty of a specific crime. (People v. Diedrich (1982) 31 Cal.3d 263, 281.) When the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the trial court must require the jury to agree on the same criminal act. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) A "prosecutor's statements and arguments" to the jury may constitute "an election for jury unanimity purposes." (People v. Mayer (2003) 108 Cal.App.4th 403, 418.) When the prosecutor does not make the election, the trial court has a sua sponte duty to instruct on jury unanimity. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.)
We apply the federal law standard of Chapman v. California (1967) 386 U.S. 18 in analyzing an erroneous failure to give a unanimity instruction. (See People v. Deletto (1983) 147 Cal.App.3d 458, 470-472.) Thus, we will reverse for such error unless "we . . . conclude 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" (People v Cooper (2023) 14 Cal.5th 735, 746.)
A
There Was No Unanimity Error For The Liss-related Charges
For Liss, defendant argues the prosecutor failed to make an election on the sexual battery by restraint charge and argues the jury could have found defendant guilty of this charge based on defendant "giving [Liss] the massages he gave her regularly, or by the massage incident in the car." Thus, the argument continues, the jury may not have unanimously agreed beyond a reasonable doubt which act constituted sexual battery by restraint. We disagree.
The prosecutor made an election for the sexual battery by restraint charge based on the crime's elements. Sexual battery by restraint requires a person to "touch[] an intimate part of another person while that person is unlawfully restrained by the accused." (§ 243.4, subd. (a).)" 'Intimate part' means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female." (§ 243.4, subds. (f), (g)(1); see CALCRIM No. 935.) Liss did not testify to defendant touching an intimate part of her body while they were in the car. The prosecutor conceded this when she said the massage in the car "was not under the clothes or touching the breasts." Instead, the prosecutor argued the car incident was an example of how defendant made Liss "believe she needed to comply with what he was doing" to support the sexual battery by restraint. But the prosecutor argued the charge was ultimately proven by the incident where defendant "touch[ed] the sides of her breasts, and that is sexual battery by restraint." Liss testified to only one incident where defendant touched the side of her breasts and that was at the wrestling tournament. Liss did not testify any of the other massages involved touching an intimate part. The prosecutor was also clear the annoying or molesting a minor charge related to Liss was based on the car incident: "As for the annoying or molesting charge, we can look to that incident in the car."
It was therefore sufficiently clear from closing arguments the prosecutor elected the wrestling tournament massage for the sexual battery by restraint charge and the car incident to support the annoying or molesting a minor charge. There was consequently no need for a unanimity instruction as to these charges.
B
There Was No Prejudicial Unanimity Error For The Amanda-Related Charges
For Amanda, defendant contends the prosecutor also did not make an election as to the conduct supporting the annoying or molesting a minor charge. Instead, the prosecutor focused exclusively on the acts supporting the sexual intercourse and oral copulation charges and did not "tie a massage or any other specific act" to the annoying or molesting a minor charge. Defendant reasons this resulted in prejudicial error because "it is likely that the jurors did not agree on the act constituting child annoyance . . . and may have relied on one of the acts" of sexual intercourse or oral copulation. We conclude any error here was harmless.
Even though the prosecutor did not discuss in closing arguments the annoying or molesting a minor charge relating to Amanda, the prosecutor did for the other victims. For those charges, the prosecutor relied on defendant's massages of those victims to establish the annoying or molesting a minor charge related to those victims. The prosecutor also mentioned in closing argument the massages defendant gave Amanda for three of the sexual events that led to oral copulation and intercourse. These three acts- sexual intercourse, oral copulation, and massages-were the acts the prosecutor discussed during closing arguments. And the prosecutor explained how each act of sexual intercourse and each act of oral copulation satisfied the sexual intercourse and oral copulation charges. It was therefore sufficiently clear the prosecutor was not using these acts for the annoying or molesting a minor charge related to Amanda and instead elected the massages defendant gave Amanda to support that charge, just as the prosecutor did for the other annoying or molesting a minor charges.
Still, there were three distinct massages Amanda testified about, so it was error to not provide a unanimity instruction on which massage supported the charge. But this error was harmless beyond a reasonable doubt because there was no meaningful difference between these massages. Amanda testified as to each that defendant massaged her then they either performed oral copulation and/or had sexual intercourse. The defense witnesses also did not testify specifically about any massages related to Amanda. And the jury found defendant guilty of every oral copulation and sexual intercourse charge. From this, there is no basis to believe the jury would have accepted Amanda's testimony as to those acts but not the massages, nor that the jury would have found one massage beyond a reasonable doubt but not the other massages. Under these circumstances, we conclude beyond a reasonable doubt the jury would not have reached a different result had it been instructed with a unanimity instruction. This error was therefore harmless.
II
The Trial Court Did Not Violate Section 654
Defendant next contends the trial court erred by not staying under section 654 the sentences for the convictions related to Liss and Amanda. Defendant's arguments here mirror his arguments on unanimity instructions, asserting the crimes for these victims were based on the same act. For the Liss convictions, defendant argues, "[T]he jury may have convicted [him] . . . based on the same act, the massage in the car." For the Amanda convictions, he asserts the annoying or molesting a minor charge could have been based on the acts of sexual intercourse or oral copulation. For similar reasons as discussed above, we reject these arguments.
Section 654, subdivision (a) provides, "An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision." This provision "bars the imposition of multiple sentences for a single act or omission, even though the act or omission may violate more than one provision of the Penal Code." (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1413.) "It 'does not bar multiple punishment simply because numerous sex offenses are rapidly committed against a victim with the "sole" aim of achieving sexual gratification.'" (People v. Bolanos (2023) 87 Cal.App.5th 1069, 1085.)
As explained, the convictions related to Liss and Amanda were not based on the same acts. For Liss, the only crime that could support the battery by restraint charge was the massage at the tournament due to the touching of an intimate part element, and the prosecutor relied on this fact in closing argument. The prosecutor also clearly stated the car incident supported the annoying or molesting a minor charge as to Liss. For Amanda, the jury must have understood the massages to support the annoying or molesting a minor charge, conduct distinct from the acts of sexual intercourse and oral copulation supporting the other convictions relating to Amanda. And even though the massages led up to the other sexual acts and all possessed the aim of sexual gratification, this does not bar punishment for the massages. (See People v. Bolanos, supra, 87 Cal.App.5th at p. 1085.) Consequently, the trial court did not err in not staying the sentences for any of these convictions under section 654.
III
The Judgment Must Be Modified
Defendant also argues the abstract of judgment erroneously states he was sentenced to 16 years four months in prison. He asserts the abstract mistakenly includes the four years for the four annoying or molesting a minor charges in its total calculations, which are misdemeanors and must be served in jail. The People contend the oral pronouncement correctly sentenced the convictions as misdemeanors in prison. We disagree with both parties but conclude the judgment does require modification.
We must first determine the actual sentence imposed as there is a conflict in the record. The trial court stated in its oral pronouncement it was imposing "16 years and three months in state prison." The abstract of judgment lists a total of 12 years four months for defendant's felony convictions, states the "total time excluding county jail term" (capitalization omitted) as 16 years four months, and states in the "[o]ther orders" section: (1) one year in jail for a child pornography misdemeanor conviction under section 311.11, subdivision (a); (2) one year in jail for three annoying or molesting a minor convictions; and (3) one year in jail concurrent to the prison sentence for the annoying or molesting a minor conviction relating to Amanda. Typically, the oral pronouncement governs over the abstract of judgment and minute order. (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) But here, both require alteration.
First, defendant's total sentence as ordered adds up to 16 years four months. The oral pronouncement of 16 years three months was incorrect.
Second, three of the annoying or molesting a minor convictions must be felonies served in prison. The annoying or molesting a minor provision defendant violated, section 647.6, subdivision (a) states: "Every person who annoys or molests any child under 18 years of age shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment." Section 647.6, subdivision (c)(1) further provides: "Every person who violates this section shall be punished upon the second and each subsequent conviction by imprisonment in the state prison." (Italics added.) Section 647.6 consequently "is a hybrid offense, classified as a misdemeanor or felony" depending "upon the presence or absence of certain factors." (People v. Johnson (2006) 145 Cal.App.4th 895, 904, 907 [analyzing "[t]he statutory scheme of section 314, subdivision 1[, which] is virtually identical to that embodied in section 647.6 to the extent that it provides for elevation to felony status under certain circumstances, including prior similar convictions"].)
One violation of section 647.6 permits punishment served in jail but any subsequent conviction results in a punishment in prison, which constitutes a felony. (§ 17, subd. (a) ["A felony is a crime that is punishable with death, [or] by imprisonment in the state prison"]; People v. Park (2013) 56 Cal.4th 782, 789 [same].) This also necessarily covers multiple convictions in the same case. (See People v. O'Neal (2004) 122 Cal.App.4th 817, 822 ["Each count involved a separate conviction. Because there were two counts, [the defendant] had a second or subsequent conviction"].) In this way section 647.6 operates like fee provisions increasing fines for "the second and each subsequent conviction," such as in section 290.3 where trial courts "must impose fines in the amount of $300 for the first qualifying conviction and $500 for additional qualifying convictions." (People v. Walz (2008) 160 Cal.App.4th 1364, 1370.)
Section 647.6 is also not a "wobbler" where a trial court has the discretion to sentence subsequent convictions as either a felony or a misdemeanor. (In re H.N. (2022) 76 Cal.App.5th 962, 967 [explaining wobblers].) Instead, a defendant's subsequent convictions "shall" be sentenced in prison. (§ 647.6, subd. (c)(1); People v. Johnson, supra, 145 Cal.App.4th at p. 906 ["felony punishment is prescribed for repeat offenders. (§ 647.6, subd. (c).)"].) And if a statute requires a felony sentence, "the trial court exceed[s] its jurisdiction in purporting to reduce the offense to a misdemeanor." (People v. Mauch (2008) 163 Cal.App.4th 669, 674.)
Defendant was convicted of four violations of section 647.6. Under section 647.6, subdivision (a), one of the convictions could have been sentenced as a misdemeanor in jail, but under section 647.6, subdivision (c)(1), three of defendant's section 647.6 convictions must be sentenced as felonies in prison. Instead, the trial court ordered all four of the convictions to be sentenced as misdemeanors in prison and the abstract of judgment lists these as misdemeanors to be served in jail. Both pronouncements of judgment are unauthorized by the statute.
"Authority exists for an appellate court to correct a sentence that is not authorized by law whenever the error comes to the attention of the court, even if the correction creates the possibility of a more severe punishment." (In re Ricky H. (1981) 30 Cal.3d 176, 191.) We shall exercise that authority here and make three of the section 647.6 convictions felonies to be served in prison. Which three convictions matter because the trial court ran one of the sentences concurrently-the section 647.6 conviction related to Amanda (count 27). Still, "first conviction" necessarily means the crime alleged to have been committed first, and two charges were alleged to have occurred before the Amanda-related charges, the Liss-related charge (count 26) and one related to another victim (count 25). The section 647.6 conviction relating to Amanda therefore cannot be the "first conviction" susceptible to misdemeanor punishment in jail. We consequently will modify the judgment and order one section 647.6, subdivision (a) conviction (count 25) to be a misdemeanor served in jail, and the three other convictions as felonies served in prison, including the one related to Amanda that runs concurrently (count 27).
Finally, one additional complication arises with the unrelated misdemeanor conviction for possession of child pornography under section 311.11, subdivision (a) (count 24). Though not addressed by either party, the trial court's oral pronouncement also necessarily sentenced this conviction in prison even though section 311.11, subdivision (a) is a wobbler. (In re H.N., supra, 76 Cal.App.5th at p. 969 [finding § 311.11 is a wobbler].) Unlike a hybrid offense requiring a felony conviction or sentence under certain circumstances, a wobbler offense imposed as a misdemeanor conviction is punished by a sentence served in jail. (Ibid. ["But a straight felony cannot be alternatively punished by a one-year county jail term and a fine"].) The abstract of judgment correctly notes this conviction is a misdemeanor to be served in jail, but the trial court's oral pronouncement that the sentence for the conviction would be served in prison was erroneous.
These collective changes still result in a total sentence of 16 years four months, but only two years of this sentence shall be served in jail for misdemeanor convictions and the remaining time is to be served in prison for felony convictions. We will modify the judgment accordingly.
IV
Reporter's Transcript Does Not Need To Be Modified
The probation report recommended defendant pay $68.86 in victim restitution and this was reflected in the abstract of judgment. But the reporter's transcript states the trial court ordered defendant to pay victim restitution "in the amount of [$]6,886." Defendant requests we order the reporter's transcript modified. But "[u]nder the circumstances, we will deem the minute order and abstract of judgment to prevail over the reporter's transcript. [Citations.] The erroneous statement in the reporter's transcript is of no effect." (People v. Cleveland (2004) 32 Cal.4th 704, 768.)
DISPOSITION
The judgment is modified to reflect three felony convictions for violations of section 647.6, subdivision (a) (counts 26, 27, &28), one of which (count 27) to run concurrently, for a total sentence of 14 years four months in prison. The judgment is further modified to reflect two one-year sentences in jail for one misdemeanor conviction under section 311.11, subdivision (a) (count 24), and one misdemeanor conviction under section 647.6, subdivision (a) (count 25). The trial court is directed to prepare an amended abstract of judgment and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. The judgment is affirmed as modified.
We concur: HULL, Acting P. J. MAURO, J.