Filed 4/10/13 P. v. Williams CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E054152
v. (Super.Ct.No. RIF128198)
RODNEY JAMES WILLIAMS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed with directions.
David McNeil Morse, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Peter Quon, Jr. and
Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
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I. INTRODUCTION
Defendant Rodney James Williams violated Penal Code section 288, subdivision
(a),1 by committing lewd and lascivious acts against two children he babysat: six-year-
old Jane Doe 1 and five-year-old Jane Doe 2. Subsequently, he babysat Jane Doe 1, Jane
Doe 2, and a third child, 10-year-old Jane Doe 3. When the children were in the living
room, he played a pornographic movie on the television while Jane Doe 2 danced partly
naked. Jane Doe 3 put a pillow in front of her face because she did not want to watch.
Defendant pulled the pillow away from her. Shortly afterward, Jane Doe 1‟s mother
pulled into the driveway. Defendant stopped the videotape and told the children not to
say anything.
In addition to being convicted of violating section 288, subdivision (a) against
Jane Doe 1 and Jane Doe 2 and of exhibiting harmful matter to minors with the intent to
seduce (§ 288.2, subd. (a)), he was convicted of attempted lewd and lascivious conduct
against Jane Doe 3. He was sentenced to an indeterminate term of 15 years to life plus a
consecutive five-year determinate term.
Defendant does not challenge his convictions for the crimes he committed against
Jane Doe 1 and Jane Doe 2. His primary contention on appeal is that the evidence is
insufficient to support the conviction for attempted lewd and lascivious acts with Jane
Doe 3. He also asserts that the court failed to exercise its discretion when it ordered that
the determinate term run consecutive to the indeterminate term. The People dispute
1 All further statutory references are to the Penal Code unless otherwise indicated.
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defendant‟s contention regarding the attempt conviction, but agree that the court failed to
exercise its sentencing discretion and that a new sentencing hearing is required.
We will affirm the conviction for attempted lewd and lascivious conduct and
direct the court to hold a new sentencing hearing so that it may exercise its sentencing
discretion.
II. FACTUAL SUMMARY
In the spring of 2005, Georgina M. and her daughter Jane Doe 2 were living at the
home of Mary H. and her children, including Jane Doe 1. Jane Doe 1 was six years old
and Jane Doe 2 was five years old. Defendant is Jane Doe 1‟s 20-year-old cousin. He
was also living at Mary H.‟s residence and would babysit Jane Doe 1 and Jane Doe 2
while their mothers were at work.
The evidence at trial regarding defendant‟s sexual contact with Jane Doe 1 and
Jane Doe 2 consisted primarily of videotape recordings of Riverside Child Assessment
Team (RCAT) interviews that were made when the children were six and five years old,
respectively, and the children‟s testimony at trial more than five years later. The
children‟s descriptions of events during the RCAT interviews are somewhat disjointed
and chronologically vague, and their trial testimony was at times inconsistent with their
RCAT statements. Nevertheless, viewing the evidence, as we must, in a light favorable
to the judgment (see People v. Johnson (1980) 26 Cal.3d 557, 578), there is substantial
evidence of multiple instances of lewd and lascivious acts by defendant upon Jane Doe 1
and Jane Doe 2, including the following: (1) defendant touched Jane Doe 1‟s vagina
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with his finger when she was naked; (2) defendant licked the children‟s vaginas;; (3)
defendant put lotion on Jane Doe 2‟s naked body and on the buttocks of both children; (4)
the children put lotion on defendant‟s penis at his request; (5) defendant touched the
children‟s buttocks and vaginas with his penis; and (6) at defendant‟s direction, the
children sat naked on a large teddy bear as he watched and rubbed his finger on Jane Doe
2‟s buttocks.
On March 28, 2005, Jane Doe 3 went to Mary H.‟s residence after school. Jane
Doe 1 and Jane Doe 2 were there. (Some time prior to this, Jane Doe 1 and Jane Doe 2
told Jane Doe 3 that defendant had “touched” them.) Defendant played a pornographic
DVD on the television in the living room with the children present. He asked Jane Doe 2
to take her clothes off. This “scared and shocked” Jane Doe 3. Jane Doe 2 pulled her
pants and underwear down, and danced while the movie played. Jane Doe 3 put a pillow
in front of her face. Without saying anything, defendant took the pillow away from Jane
Doe 3 and sat on top of it. Defendant remained dressed and never touched Jane Doe 3 or
the other children on this occasion.
After the DVD played for about five minutes, Mary H. pulled into the driveway.
Defendant jumped up, stopped the DVD, and told the children not to say anything. Jane
Doe 3 was scared because she did not know what would happen if she said something.
Jane Doe 1 told Jane Doe 2‟s mother about defendant‟s sexual contact with her
and Jane Doe 2. Georgina M. then asked Jane Doe 2, who confirmed what Jane Doe 1
said. The police were then contacted.
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During their RCAT interviews, Jane Doe 1 and Jane Doe 2 referred to watching a
pornographic movie with defendant. It is unclear how many times the children watched
the movie. At one point, Jane Doe 1 told the interviewer that Jane Doe 2 wanted to “lick
[defendant‟s] long thingy.” When the interviewer asked how Jane Doe 2 knew “about
that stuff,” Jane Doe 1 responded, “„Cause from [defendant]. „Cause the movies they
took away . . . .‟” This suggests that they watched the movie on at least one occasion
before the March 28, 2005, incident. In addition, Jane Doe 2 referred to “the first time
[when] he just made me watch the movie,” implying they watched the movie more than
once.
At trial, defendant testified that he did not show the children a pornographic movie
and did not molest them. He may have put lotion on the girls, but not in a sexual way.
The defense produced three character witnesses who had known defendant for at least 15
years. Other than hearing of the allegations in this case, they had never seen or heard of
defendant acting inappropriately around children.
III. ANALYSIS
A. Sufficiency of the Evidence to Support the Conviction for Attempt to Commit Lewd
and Lascivious Acts Against Jane Doe 3
Defendant contends the evidence is insufficient to support his conviction on count
3 for attempting to commit a lewd and lascivious act upon Jane Doe 3 in violation of
section 288, subdivision (a). We disagree.
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In addressing a challenge to the sufficiency of the evidence supporting a
conviction, we “must review the whole record in the light most favorable to the judgment
below to determine whether it discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Johnson, supra, 26 Cal.3d at p.
578.) “[A]lthough reasonable inferences must be drawn in support of the judgment, [a
reviewing court] may not „go beyond inference and into the realm of speculation in order
to find support for a judgment. A [conviction] which is merely the product of conjecture
and surmise may not be affirmed.‟ [Citations.]” (People v. Memro (1985) 38 Cal.3d 658,
695 (Memro).)
Section 288, subdivision (a) provides: “[A]ny person who willfully and lewdly
commits any lewd or lascivious act . . . upon or with the body, or any part or member
thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing
to, or gratifying the lust, passions, or sexual desires of that person or the child . . . .” The
statute requires “a touching of „any part‟ of the victim‟s body.” (People v. Martinez
(1995) 11 Cal.4th 434, 442.)
“An attempt to commit a crime consists of two elements: a specific intent to
commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a.)
“„“Although mere preparation such as planning or mere intention to commit a crime is
insufficient to constitute an attempt, acts which indicate a certain, unambiguous intent to
commit that specific crime, and, in themselves, are an immediate step in the present
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execution of the criminal design will be sufficient. [Citations.]” [Citation.]‟ [Citation.]
No clear marker divides acts that are merely preparatory from those initiating the
criminal act. Nonetheless, „the more clearly the intent to commit the offense is shown . . .
“the more likely that steps in the early stages of the commission of the crime will satisfy
the overt act requirement”‟ of an attempt. [Citation.]” (People v. Crabtree (2009) 169
Cal.App.4th 1293, 1322.)
Memro is instructive. In that case, the state Supreme Court upheld a murder
conviction on a felony-murder theory where the underlying felony was the attempt to
commit a lewd and lascivious act in violation of section 288, subdivision (a). (Memro,
supra, 38 Cal.3d at pp. 695-700.) The defendant in Memro asked the seven-year-old
male victim if he wanted to go get a Coke. (Id. at pp. 690-691.) As he drove the boy to
his apartment, the defendant “„had it in the back of his mind he was going to try to take
some pictures of [the boy] in the nude because that is how he got his sexual satisfaction,
photographying [sic] young boys in the nude.‟” (Id. at p. 691.) On the walls and shelves
of the defendant‟s apartment were hundreds of photographs of clothed and partially clad
young boys. (Id. at p. 667.) There were also pornographic books or magazines in plain
view. (Ibid.) The defendant took the boy into his bedroom, turned on strobe lights, and
sat down on the bed. (Id. at p. 699.) The boy stood next to the bed watching the strobe
lights for five or ten minutes. (Ibid.) When he suddenly announced he had to leave, the
defendant became angry and strangled him with a clothesline. (Ibid.)
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In concluding there was substantial evidence to support a finding of an attempt to
commit lewd or lascivious conduct, the Memro court explained: “[T]he simple act of
accompanying [the boy] up to [the defendant‟s] apartment probably fell within the „zone
of preparation.‟ However, [the defendant] went beyond preparation. He ushered the boy
into the bedroom to watch the strobe lights and stayed close by. These were steps which
furthered his aim of readying [the boy] for a nude photography session which was, in all
likelihood, intended to culminate in lewd conduct. These acts, therefore, constituted the
„actual commencement of his plan‟ and were sufficient to support an attempt. [Citation.]
But for [the boy‟s] abrupt decision to leave the apartment, it is likely that these steps
would have resulted in a completed violation of section 288.” (Memro, supra, 38 Cal.3d
at p. 699.)
Defendant focuses his argument on defendant‟s action of removing the pillow
from Jane Doe 3‟s face, and contends that this is evidence that he intended only to have
Jane Doe 3 watch the movie. This focus, however, is too narrow. As in Memro, we
consider the evidence of defendant‟s prior history and his “entire course of conduct.”
(Memro, supra, 38 Cal.3d at p. 699.)
Defendant had engaged in numerous acts of sexual contact with Jane Doe 1 and
Jane Doe 2. The RCAT interviews with the younger children indicate that they had seen
the pornographic movie on at least one occasion before it was shown to Jane Doe 3 and
that viewing the movie may have contributed to fostering an environment where sexual
contact could take place. The viewing of the movie by Jane Doe 2, for example, appears
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to have prompted the child to say she wanted to lick defendant‟s “long thingy.” The
connection between the viewing of the movie and sexual behavior is further indicated by
defendant‟s direction to Jane Doe 2 to take off her clothes and Jane Doe 2‟s willingness
to dance half-naked while the movie played. In this context, defendant‟s acts of putting
on the movie in Jane Doe 3‟s presence, having Jane Doe 2 take off her clothes, and
pulling the pillow away from Jane Doe 3‟s face, could reasonably be viewed as steps in
the execution of a plan to engage in sexual contact with Jane Doe 3. The jury could thus
reasonably conclude that defendant‟s actions would have resulted in a violation of section
288 if he had not been interrupted by the arrival of Jane Doe 1‟s mother. We therefore
reject defendant‟s argument.
B. Court’s Failure to Exercise Sentencing Discretion
At the sentencing hearing, the court pronounced an indeterminate sentence of 15
years for the convictions on the three counts of violating section 288, subdivision (a). It
further pronounced a total determinate sentence of five years for the convictions of
attempted lewd and lascivious conduct and on the three counts of exhibiting harmful
matter to a minor. The following colloquy then took place.
“THE COURT: . . . Do I have discretion in terms of consecutive versus
concurrent on the determinatives (sic) versus indeterminatives (sic)? [¶] . . . [¶]
“[DEFENSE COUNSEL]: It‟s my experience indeterminate has to be served first.
“THE COURT: I agree. Determinate sentence will run consecutively to the
indeterminate sentence, total aggregate sentence of 20 years to life.”
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Defendant and the People assert that the court had discretion to decide whether the
determinate and indeterminate terms should run consecutively or concurrently, and that
the court‟s failure to understand that it had such discretion requires a new sentencing
hearing. We agree.
When a defendant is convicted of multiple offenses, the court “shall direct whether
the terms of imprisonment or any of them to which he or she is sentenced shall run
concurrently or consecutively.” (§ 669.) In that situation, “a trial court has discretion to
determine whether several sentences are to run concurrently or consecutively.” (People
v. Bradford (1976) 17 Cal.3d 8, 20.) When the record shows that the court proceeded
with sentencing on the erroneous assumption it lacked discretion, the court should hold a
new sentencing hearing “so that the trial court may have the opportunity to exercise its
sentencing discretion.” (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.)
Here, the court‟s question to counsel indicates the court did not know whether it
had discretion to impose concurrent determinate and indeterminate sentences. Defense
counsel‟s response—that the indeterminate sentence must be served first—implies that
the sentences must run consecutively. The court agreed with this and ordered the
sentences to run consecutively. Applying the rules set forth above, the court must hold a
new sentencing hearing to exercise its discretion in deciding whether to order defendant‟s
determinate and indeterminate terms to run concurrently or consecutively.
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IV. DISPOSITION
Defendant‟s convictions are affirmed. Following remand, the trial court shall hold
a new sentencing hearing to determine, in its discretion, whether defendant‟s
indeterminate and determinate terms shall run concurrently or consecutively.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING
Acting P. J.
We concur:
MILLER
J.
CODRINGTON
J.
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