People v. Hetherington

This is a sentencing appeal.

Sixty-seven-year-old Thomas Max Hetherington and his wife ran a licensed day care center where for almost three years he molested many children. An information charged Hetherington with 82 sex offenses. In a written plea bargain containing a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754 , 757-759 [ 159 Cal.Rptr. 696 , 602 P.2d 396 ]), Hetherington pleaded guilty to five counts of Penal Code section 288, subdivision (a)^[1] (counts 16, 38, 42, 70 and 81) and three counts of section 288a, subdivision (c) (counts 77, 79 and 82). He was sentenced to a total term of 21 years, 4 months: an aggravated principal term of 8 years on count 77 (§ 288a, subd. (c)) and 13 years, 4 months representing the total consecutive subordinate midterms for the balance of the crimes. In extending the total subordinate term beyond five years the court treated section 288, subdivision (a) as a “violent felony” under section 667.5, subdivision (c)(6). Hetherington challenges that treatment, as well as the court’s sentence choice reasons and refusal to apply the now repealed mentally disordered sex offender statutes. We affirm the judgment and remand for resentencing on counts 70 and 81.

I^[2]

A

Hetherington contends his total subordinate term of thirteen years and four months must be reduced to five years under section 1170.1, subdivision (a). That subdivision limits the total of the subordinate terms under section 1170.1 for consecutively sentenced nonviolent offenses to five years. The limitation does not apply, however, to subordinate terms imposed for any offense which is a “violent felony” under section 667.5, subdivision (c). (See § 1170.1, subd. (a).) Section 667.5, subdivision (c)(6) defines “violent felony” as including “[l]ewd acts on a child under 14 as defined in Section 288.” (Italics added.) Notwithstanding this express language to the contrary, Hetherington contends section 288, subdivision (a) is not a “violent felony” under section 667.5, subdivision (c)(6), and thus the five-

As a threshold matter, Hetherington points out the Legislature itself distinguished “violent” and “nonviolent” section 288 offenses when it added subdivision (b) in 1979.^[4] From this observation, Hetherington reaches a number of conclusions. First, Hetherington argues the Legislature must have had a reason for adding subdivision (b) to section 288 because it would not have done so if the “new” subdivision (b) offense was to be no different than the “old” subdivision (a) offense.^[5] From this correct premise Hetherington draws an incorrect conclusion: the Legislature’s reason for adding subdivision (b) was to provide the basis for a “narrowing” of section 667.5, subdivision (c)(6) by limiting its applicability to “violent” subdivision (b) offenses while removing “nonviolent” subdivision (a) offenses from its scope. The problem with this conclusion is that section 667.5, subdivision (c)(6) still refers generally to “Section 288” rather than specifically to section 288, subdivision (b). Hetherington proposes oversight as the explanation for the Legislature’s failure to amend section 667.5, subdivision (c)(6) to refer specifically to section 288, subdivision (b). We believe, however, the Legislature would not have overlooked amending section 667.5, subdivision (c)(6) if its reason for adding subdivision (b) to section 288 was to provide the basis for just such an amendment.

A better explanation for the Legislature’s addition of subdivision (b) to section 288 appears from the legislative history. When it added subdivision

Hetherington next observes section 288, subdivisions (a) and (b) provide identical punishment. (See fn. 5, ante.) However, if the two subdivisions are to be distinguished for sentencing purposes, Hetherington reasons their respective punishments must somehow differ and the punishment for a “violent” subdivision (b) offense must be more severe than the punishment for a “nonviolent” subdivision (a) offense. The difference, he concludes, is that section 667.5, subdivision (c)(6) removes subordinate terms for subdivision (b) offenses (but not for subdivision (a) offenses) from the five-year subordinate term limitation of section 1170.1, subdivision (a). Again, we agree with Hetherington’s premise but not with his conclusion.

Beyond the identical three terms provided in section 288, subdivisions (a) and (b), a subdivision (b) offender is vulnerable to more severe punishment than a subdivision (a) offender. By concurrent statutory changes enacted in 1979 (see ante), the Legislature provided longer sentences (§ 667.6, subds. (c), (d)) and more enhancements (§§ 667.6, subd. (a), 1170.1, former subd. (h), 12022.8) for subdivision (b) offenders. It also restricted plea bargaining (§ 1192.5) and the availability of probation (§ 1203.065, former subd. (a), subd. (b)), treatment as a minor (Welf. & Inst. Code, § 707, subd. (b)(6)) and commitment to the Youth Authority (Welf. & Inst. Code, § 1732). Thus, apart from section 667.5, subdivision (c)(6), a section 288, subdivision (b) conviction results in proportionately more serious consequences (see § 1170, subd. (a)(1)) than does a section 288, subdivision (a) conviction.

Contrary to Hetherington’s presumption, section 288, subdivision (a) is not the only “nonviolent” felony remaining in section 667.5, subdivision (c). At least two other felonies which, by definition, can be committed without causing physical injury to a person (§§ 37, 218) are included in section 667.5, subdivision (c)(7).^[9] Consequently, the inclusion of section 288, subdivision (a) offenses in section 667.5, subdivision (c)(6) looks more like a legislative intention which should be judicially respected and less like a legislative aberration which should be judicially excised. Furthermore, even if section 288, subdivision (a) was the only “nonviolent” felony remaining in section 667.5, subdivision (c), its continuing presence following the Legislature’s removal of other formerly included “nonviolent” felonies is equally consistent with either inadvertence or an intent to retain subdivision (a) offenses as “violent felonies” under section 667.5, subdivision (c).

In addition to the above, two other points are particularly persuasive indicators the Legislature intended to include section 288, subdivision (a) offenses within section 667.5, subdivision (c)(6). Foremost is the clear and unambiguous language of the statute: “Lewd acts on a child under 14 as defined in Section 288.” (Italics added.) We must follow the plain meaning of the statute unless doing so will produce absurd results or will frustrate the manifest purpose of the legislation considered as a whole. (People v. Belled (1979) 24 Cal.3d 879 , 884 [ 157 Cal.Rptr. 503 , 598 P.2d 473 ].) As shown above, we need not be concerned with producing absurd results by including section 288, subdivision (a) offenses within section 667.5, subdivision (c)(6). We must be concerned, however, with following the manifest purpose of section 667.5, subdivision (c). That concern leads to the second indicator of legislative intent. Section 667.5, subdivision (c) states: “The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence to display society’s

Hetherington further contends the court violated California Rules of Court rule 441^[10] by (1) using the same facts to impose the upper term on the principal count as to impose consecutive sentences (rule 441(c)), and (2) relying on an element of a crime to impose an upper term. (Rule 441(d).)

The court did not use the same facts to impose both the upper term and the consecutive sentences. In imposing the upper term on the principal count the court relied on the facts that Hetherington, as a day care center operator, occupied and took advantage of a position of trust, he demonstrated callous disregard of the ages and unsophistication of the children, the victims were particularly vulnerable and the three-year period of the crimes demonstrated scheming, careful planning and premeditation. Each of these factors is set out in rule 421.^[11] To impose consecutive sentences the court relied on the separate and distinct nature of each act involving different victims and different times. (See post.) These factors are not the same as those the court relied on under rule 421 and consequently there was no dual use of facts. (Cf. People v. Ratcliffe (1981) 124 Cal.App.3d 808 , 821-822 [ 177 Cal.Rptr. 627 ].)

The court did not violate rule 441(d) by relying on an element of the crime to impose the upper term. The court stated: “I also note that he demonstrated callous disregard to the ages and unsophistication of the victims, and I know that these are crimes perpetrated on children under the age of 14, which is a statutory definition of the crime, but these were particularly vulnerable people under the circumstances being taken to a child— of all places, to a child care home.”

The supervision and control Hetherington exercised over his victim at the day care center provided a sufficient basis for the court’s finding the victim

Hetherington also argues the court failed to state specific reasons for imposing consecutive sentences on the subordinate counts.

In imposing a consecutive sentence for the first subordinate count the court stated: “Count 79 is predominantly independent of Count 77, independent in its objective. It’s a separate act, violence, separate victim, separate time, different time, different place, different act of violence. For that reason, I am ordering the term to be consecutive to the prior term.” Each factor expressed by the court is contained in rule 425.^[12]

Hetherington additionally claims the court failed to articulate fully its reasons for imposing consecutive sentences on each subordinate count. A consecutive sentence was imposed on count 82 “for the same reasons outlined above [in count 79],” on count 16 “for the exact reasons outlined above,” on count 38 “for the reasons stated above” and on count 42 “for the same reason as expressed just a while ago.” The court, however, failed to state reasons for imposing consecutive sentences on counts 70 and 81.

Obviously, the court’s statement of reasons for counts 82, 16, 38 and 42 is less complete than for count 79. Under the circumstances of this case, however, the court’s failure to formally repeat reasons for counts 82, 16, 38 and 42 does not require remand. For purposes of appellate review, the record sufficiently reveals the reasons the court relied on for imposing the four consecutive sentences on those counts after imposing the first consecutive sentence on count 79. (See People v. Powell (1980) 101 Cal.App.3d 513 , 519 [ 161 Cal.Rptr. 803 ].)

Hetherington finally asserts the court’s use of the same facts as a basis for more than one consecutive sentence was improper. However, “[n]othing in the statute or rules precludes the sentencing court from using the same fact(s) as a basis for more than one consecutive sentence.” (People v. Bejarano (1981) 114 Cal.App.3d 693 , 705 [ 173 Cal.Rptr. 71 ].) Moreover, Bejarano aside, even though the court mentioned the same factors, it actually relied on different facts in imposing consecutive sentences on counts