Filed 12/9/20 P. v. Citalan 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E072031

v. (Super.Ct.No. INF1601016)

MANUEL JONATAN PALENCIA OPINION

CITALAN,

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Otis Sterling III, Judge.

Affirmed as modified.

Diane E. Berley, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, and Susan

Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.

1

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

On October 17, 2016, an amended information charged defendant and appellant

Manuel Jonatan Palencia Citalan with a lewd and lascivious act upon a child under the

age of 14 under Penal Code1 section 288, subdivision (a) (count 1); oral copulation with a

child under the age of 14 and more than 10 years younger than defendant under section

288a, subdivision (c)(1) (count 2); oral copulation or sexual penetration with a person

who is 10 years of age or younger under section 288.7, subdivision (b) (count 3);

committing a lewd and lascivious act upon a child under the age of 14, by use of force,

violence, duress, menace and fear of immediate and unlawful bodily injury under section

288, subdivision (b)(1) (count 4); and felony false imprisonment under section 236 (count

5).

On November 16, 2017, a jury found defendant guilty of all charges.

On January 7, 2019, the trial court sentenced defendant to a total term of 17 years

as follows: the midterm of two years on count 5, and a consecutive indeterminate term of

15 years to life on count 3. The court also imposed, but stayed under section 654, a

determinate term of two years on count 1, two years on count 2, and two years eight

months on count 4.

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 On January 16, 2019, defendant filed a timely notice of appeal. On January 29,

2020, defendant filed a motion to strike the filing of his opening brief and to file an

amended opening brief, which was attached to the motion. On January 31, 2020, we

granted defendant’s motion. On April 9, 2020, defendant filed a motion to file a

supplemental brief; defendant attached a copy of the supplemental brief to the motion.

April 10, 2020, we granted defendant’s motion and directed the clerk to file the attached

supplemental brief. We also directed the parties to file supplemental respondent and

reply briefs.

B. FACTUAL BACKGROUND

1. PROSECUTION EVIDENCE

In July of 2016, D.R. (Mother) lived in Cathedral City with her five children.

Defendant was Mother’s cousin and lived in Colorado at the time. On July 28, 2016,

Mother allowed defendant to stay at her home because he was going to attend a religious

meeting in Los Angeles. The morning after defendant arrived, Mother’s son (Doe), who

was eight years old, went with defendant to visit family. They were gone for 10 to 11

hours. When they got home, defendant immediately left the house; he told Mother there

was an emergency and he had to leave.

After defendant left, Doe started to cry. He told Mother that defendant took him

to a bathroom and told Doe that defendant would give him a dollar if Doe “sucked his

dick.” Doe then took Mother and a maternal aunt to the bathroom where the incident

occurred. The bathroom was a Port-a-Potty located off a narrow path, near a lake and a

golf course in Cathedral City.

3 Mother called defendant, talked to him about what happened, and recorded the

conversation. When Mother asked defendant why he took Doe to the bathroom and why

he exposed himself, defendant replied, “One thing lead to another.” Defendant then said

that he was abused as a child. Defendant then begged Mother not to tell anyone.

Defendant went on to state that although he was abused, he was not “doing the things

because of that. I had always been curious and I’ve always tried to hold back because

I’m a pastor [Mother]. If anyone finds out about this, the whole world will fall on top of

me, [Mother].” Defendant asked for Mother’s forgiveness and said that if she forgave

defendant and taught Doe to forgive defendant, Doe would be better off. Although

defendant admitted that what he had done to Doe was wrong, he said he was at the

hospital because his blood pressure was high. He stated, “I’m really paying for what I

did and I’m—I’m with my conscience [sic] that it doesn’t make sense, really. I don’t feel

good, [Mother], really. Don’t think I’m a sleaze that—that did it and that—and that

already left and no, no. I’m dying right now, really, [Mother], I’m dying. But really, I

feel like I’m dying with this, [Mother], and I’m really paying for it.” He again asked for

Mother’s forgiveness and stated he would not do the same thing again. Mother told

defendant she would not forgive him. She then contacted the police.

Pursuant to a plan with the police, Mother contacted defendant. She told

defendant that she forgave him but said defendant should ask Doe for his forgiveness.

Defendant texted back stating he was going to kill himself. Mother convinced defendant

to meet up at a fast food restaurant. When they met, Mother was wearing a wire and the

conversation with defendant was recorded. Defendant told Doe that what he had done

4 was “so wrong” and asked for forgiveness. Then defendant told Doe not to tell anyone

what had happened. Police, who had been waiting nearby, came and arrested defendant.

The recorded conversation was played for the jury.

An interview between Doe and a Riverside Child Assessment Team (RCAT) was

recorded and played for the jury. In the interview, Doe’s statement was consistent with

what Mother told law enforcement. Defendant took Doe to a “plastic” bathroom off a

dirt road by a golf course and lake. Defendant locked the door and told Doe to sit down.

Doe wanted to get out, but defendant would not let Doe leave. When Doe was sitting on

the toilet, defendant pulled down defendant’s pants and underwear, and stuck his penis in

Doe’s mouth. Defendant told Doe to “suck my dick.” Defendant’s penis was “nasty” in

Doe’s mouth, and smelled “nasty,” which made Doe vomit. Defendant pulled up his

underwear and pants and they left the bathroom. Defendant told Doe not to tell anyone

what had transpired.

Doe’s testimony during the trial was consistent with what he told Mother and

during the RCAT interview.

2. DEFENSE EVIDENCE

Laura Lopez, a victim advocate with the Riverside County District’s Attorney’s

Office testified. Lopez testified that Mother had asked Lopez about obtaining a Uvisa. A

Uvisa is an immigration application available to crime victims. Lopez referred Mother to

an immigration attorney for assistance in completing the application. When defense

counsel called Mother to the stand, she confirmed that she had missed court that morning

because of an immigration appointment.

5

DISCUSSION

A. COUNT 1 SHOULD BE DISMISSED

In the supplemental brief, defendant contends that count 1 (committing a lewd and

lascivious act upon a child under the age of 14 under section 288, subdivision (a)), must

be stricken because it is a lesser included offense of count 4 (committing a lewd and

lascivious act upon a child under the age of 14, by use of force, violence, duress, menace,

and fear of immediate and unlawful bodily injury under section 288, subdivision (b)(1).)

The People agree.

A lesser offense is necessarily included in a greater offense if it is not possible to

commit the greater offense without also committing the lesser offense. (People v.

Miranda (1994) 21 Cal.App.4th 1464, 1467.)

In this case, the elements of section 288, subdivision (a) (count 1) and section 288,

subdivision (b)(1) (count 4) are identical except that a violation of section 288,

subdivision (b)(1), requires that the defendant use “force, violence, duress, menace, or

fear of immediate and unlawful bodily injury on the victim or another person.”

Therefore, a violation of section 288, subdivision (a), is a lesser offense necessarily

included in a violation of section 288, subdivision (b)(1). (People v. Chan (2005) 128

Cal.App.4th 408, 421.)

Under California law, if a defendant is convicted of both a greater offense and a

lesser offense necessarily included in it, the conviction of the lesser offense is unlawful

and must be reversed. (People v. Pearson (1986) 42 Cal.3d 351, 355, overruled on other

grounds in People v. Vidana (2016) 1 Cal.5th 632, 650.) This rule has been applied when

6 a defendant is convicted under both section 288, subdivision (b), and section 288,

subdivision (b)(1), for the same conduct. (People v. Chan, supra, 128 Cal.App.4th at p.

421.) “When such a state of affairs is discovered on appeal, the correct course of action

is to reverse the conviction for the included offense and direct the entry of a dismissal of

the less serious crime.” (Ibid.)

In this case, the trial court stayed count 1 under section 654 because it was based

on the same conduct as count 4. Count 1, however, as discussed above, is based on the

same conduct as count 4. Therefore, count 1 is a lesser included offense of count 4. We

will dismiss count 1.

B. THE TRIAL COURT PROPERLY SENTENCED DEFENDANT

Defendant contends that “the trial court erred in imposing a full consecutive

sentence on count 5, false imprisonment, and in not running concurrent or staying the

sentence.” We disagree.

1. THE TRIAL COURT PROPERLY DESIGNATED COUNT 5 AS THE

PRINCIPAL COUNT

In this case, the trial court designated count 5 (false imprisonment) as the principal

term, and sentenced defendant to a total term of 17 years to life as follows: an

indeterminate term of 15 years to life for oral copulation with a child under 10 under

section 288.7, subdivision (b) (count 3), and a consecutive determinate term of two years

for false imprisonment under section 236 (count 5). The court also imposed, but stayed,

under section 654, determinate sentences on the remaining counts (counts 2 and 4).

7 When a sentence involves both indeterminate and determinate terms, the trial court

is required to calculate the indeterminate terms (including any attached determinate-term

enhancements) separately from the determinate terms. (People v. Neely (2009) 176

Cal.App.5th 787, 798 (Neely).) Once the court determines the sentences for the

indeterminate term offenses and the determinate term offenses, it combines the two to

reach an aggregate total sentence and determines whether the aggregate determinate term

will run concurrently or consecutively to the indeterminate term. (Id. at pp. 798-799.)

The Neely court observed, “Such sentencing has been conceptualized as sentencing in

separate boxes. [Citation.] Applying this ‘box’ analogy to the instant case, the

indeterminate term crime of first degree murder is placed in one box. . . . [¶] A second

box is created to include the three determinate sentence crimes. Applying section 1170.1,

the court would select a base term for each of the crimes, set the crime with the greatest

base term as the principal term, [and] impose the full base term as the sentence for the

principal term crime.” (Id. at pp. 798-799.)

Defendant concedes that the trial court properly sentenced defendant to an

indeterminate term of 15 years to life. Defendant, however, claims that the trial court

erred in sentencing defendant in counts 2, 4, and 5. Defendant claims that the principal

determinate term should have been count 4—eight years, “followed by 1/3 the middle

term of 6 years, or 2 years on Count 2 (§ 288a, subd. (c)(1)), and 1/3 the middle term, or

8 months on Count 5 (§ 236.)”

8 “Section 1170.1 sets forth the sentencing protocol for felony offenses for which a

determinate low, middle or upper term of incarceration is imposed. It also sets forth the

rules for imposing a consecutive sentence through the designation of ‘principal’ and

‘subordinate’ terms. First, the trial court is required to select a base term—either the

statutory low, middle or upper term—for each of the crimes. [Citations.] Second, if the

court determines that a consecutive sentence is merited, it must designate the crime with

the “greatest” selected base term as the principal term and the other crimes as subordinate

terms. [Citation.] Third, the court sentences the defendant to the full base term it

selected for the principal term crime and one-third of the middle term for any crimes for

which the sentence is ordered to run consecutively. [Citations.] A subordinate term is

one-third of the middle term even if the trial court had initially selected the lower or

upper term as the base term.” (Neely, supra, 176 Cal.App.4th at pp. 797-798.)

Therefore, as discussed ante, the court in Neely provided that under section

1170.1, when selecting a base term for determinate consecutive sentencing, the court

would “set the crime with the greatest base term as the principal term.” (Neely, supra,

176 Cal.App.5th 799.) In this case, the crime with the greatest base term is count 4, eight

years but the court deemed count 2 (two years) as the principal count. Section 1170.1,

however, specifically states “except as otherwise provided by law, and subject to Section

654 . . . .” (§ 1170.1, subd. (a).) Here, defendant’s sentence is subject to section 654.

Section 654 prohibits multiple punishments for different offenses that are

committed in the course of a single intent or objective. Section 654, subdivision (a),

provides in pertinent part, “[a]n act or omission that is punishable in different ways by

9 different provisions of law shall be punished under the provision that provides for the

longest potential term of imprisonment, but in no case shall the act or omission be

punished under more than one provision.”

In this case, the trial court sentenced defendant to two years in count 2 and eight

months in count 4—but stayed both sentences pursuant to section 654. Therefore, subject

to section 654, the trial court stayed the sentence to count 4, even though it had the

greatest base term. Therefore, the court properly selected the principal term to be count

5—which was not subject to section 654, as will be discussed post.

2. SECTION 654 DOES NOT BAR IMPOSITION OF THE SENTENCE

ON COUNT 5

Defendant argues that in the alternative, the sentence for count 5, felony false

imprisonment, must be stayed under section 654. He claims that he cannot be sentenced

for both false imprisonment (count 5) and oral copulation with a child under 10 (count 3)

because the sole purpose of the false imprisonment was to facilitate the oral copulation.

Defendant, therefore, argues that the two crimes were part of an indivisible course of

conduct with a single criminal objective. We disagree.

“The test for determining whether section 654 prohibits multiple punishment has

long been established: ‘Whether a course of criminal conduct is divisible and therefore

gives rise to more than one act within the meaning of section 654 depends on the intent

and objective of the actor.’ ” (People v. Britt (2004) 32 Cal.4th 944, 951-952.) “[I]f all

of the offenses were merely incidental to, or were the means of accomplishing or

facilitating one objective, defendant may be found to have harbored a single intent and

10 therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant

harbored ‘multiple criminal objectives,’ which were independent of and not merely

incidental to each other, he may be punished for each statutory violation committed in

pursuit of each objective, ‘even though the violations shared common acts or were parts

of an otherwise indivisible course of conduct.’ ” (People v. Harrison (1989) 48 Cal.3d

321, 335.)

In support of his claim that his sentence on count 5 should be stayed, defendant

relies on People v. Islas (2012) 210 Cal.App.4th 116. The facts in this case are

distinguishable. In People v. Islas, two defendants, who were gang members, broke into

a building, climbed up a ventilation shaft, and entered a bathroom occupied by a woman

and her daughters. The defendants intimidated the woman and her daughters into hiding

the defendants from police. (Id. at pp. 119-122.) The defendants were convicted of

burglary and five counts of false imprisonment by violence or menace. The trial court

sentenced both defendants to concurrent terms on each of the false imprisonment counts.

The appellate court stated that the burglary was committed “entirely on entry with the

intent to commit felony false imprisonment.” (Id. at p. 130, italics added.) Therefore,

because there was a single criminal objective, the court held that the defendants could not

be sentenced for false imprisonment in addition to the burglary under section 654. (Ibid.)

Here, as noted by the probation officer and the trial court, counts 1, 2, 3, and 4 “related to

the same act in which [defendant] engaged in oral copulation with a child under 10 years

of age.” Therefore, the trial court imposed and stayed the sentences on counts 1, 2, and 4

under section 654. The court, however, did not stay the sentence on count 5—false

11 imprisonment. Here, although defendant took Doe into the bathroom with the intent to

have the child orally copulate him, it was not until Doe resisted that defendant decided to

falsely imprison Doe to keep him from fleeing. As noted in the probation report, in the

false imprisonment charge, defendant blocked “the child’s only route of escape when the

child attempted to leave, therefore sentencing limitations for this charge pursuant to

section 654 do not apply.” We agree.

The trial court is vested with broad discretion in making the factual determination

whether the defendant had separate intents and objectives, which warranted separate

punishments under section 654. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)

“A trial court’s implied finding that a defendant harbored a separate intent and objective

for each offense will be upheld on appeal if it is supported by substantial evidence.”

(People v. Blake (1998) 68 Cal.App.4th 509, 512.) Under the substantial evidence

standard of review, the trial court’s determination is reviewed in the light most favorable

to the judgment and presumes the existence of every fact the trial court could reasonably

deduce from the evidence. (Jones, at p. 1143; People v. Akins (1997) 56 Cal.App.4th

331, 339.)

Based on our review of the record, we find that substantial evidence supports a

finding that defendant demonstrated a separate criminal intent for count 3 (oral

copulation) and for count 5 (false imprisonment). Therefore, section 654 does not apply

to count 5.

12 3. THE SENTENCES ON COUNTS 2 AND 4 ARE ALREADY STAYED

In his reply brief, defendant contends that “Counts 2 and 4 cannot be both

consecutized and stayed; they must be stayed under Penal Code section 654.” Defendant

makes the argument that “the trial court imposed consecutive sentences for counts 1,[2] 2

and 4, all of which were then stayed. It is with this initial pronouncement that the court

erred. The court should have imposed these sentences concurrent to each other and to

count 5, then stayed them under section 654.” Defendant’s argument is without merit.

In this case, the trial court has already imposed concurrent sentences and stayed

the sentences on counts 2 and 4. After reviewing the transcript from the sentencing

hearing, the minute order from the hearing, and abstract of judgment, there is nothing to

indicate that the court imposed consecutive sentences on counts 2 and 4. In fact, in the

abstract of judgment, under the column labeled “principal or consecutive time imposed,”

there is nothing written next to counts 2 and 4. As to count 5, however, 2 years and 0

months is noted under the “principal of consecutive time imposed.” Therefore, the

sentences on counts 2 and 4 were not imposed consecutively and have already been

stayed by the court.

DISPOSITION

The abstract of judgment is modified to dismiss the conviction on count 1. The

trial court is directed to prepare an amended abstract of judgment reflecting the dismissal

2 Because we have dismissed count 1, ante, issues relating to count 1 are not discussed further.

13 of count 1 and to forward a certified copy to the Department of Corrections and

Rehabilitation. As so modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

RAMIREZ

P. J.

FIELDS

J.

14