People v. Acosta

239 Cal. Rptr. 3d 454, 28 Cal. App. 5th 701
California Court of Appeal, 5th District·Decided October 25, 2018·No. H045175·Published·Cited by 31 cases

Opinion

DANNER, J.

*456*702Ralph Acosta, Jr., appeals aspects of his sentence for his convictions for committing a lewd or lascivious act on a child under the age *703of 14 and for contacting a minor with the intent to commit a sexual offense. He contends that: (1) the sentence imposed for contacting a minor with the intent to commit a sexual offense should have been stayed pursuant to Penal Code section 6541 because he harbored the same intent and objective for both crimes of conviction; (2) his trial counsel was constitutionally ineffective for failing to object to the sexual offender fines imposed by the trial court; and (3) the trial court lacked authority to issue a protective order forbidding him from contacting the sister of the named victim of his crimes.

In the unpublished portion of our decision, we conclude that the trial court correctly imposed sentences for each count of conviction without staying the punishment for either crime and had authority to issue a protective order barring Acosta from having contact with Jane Doe's sister, Jane Doe 2, under section 136.2, subdivision (i)(1).

In the published portion of our decision, we determine that Acosta has not demonstrated that his trial counsel was constitutionally ineffective for failing to request a hearing on Acosta's ability to pay the sexual offender fines. Nevertheless, we encourage trial courts to inquire into a defendant's financial circumstances when imposing a sexual offender fine, even in the absence of a request by the defendant.

I. FACTS AND PROCEDURAL BACKGROUND

Eight-year-old Jane Doe was a student at the elementary school where her mother, M.S.,2 worked as a teacher. Jane Doe and her five-year-old sister were playing outside after school while M.S. worked in her classroom. The girls got tired and went back inside the school.

Jane Doe first saw Acosta, whom she did not know, standing outside the school office. Acosta told Jane Doe to " '[c]ome here,' " and she followed him into a small room near the school office. Acosta and Jane Doe then exited the room together, and Jane Doe followed Acosta down several hallways.

Acosta sat down on a bench and again told Jane Doe to " '[c]ome here.' " Acosta picked Jane Doe up by her torso, put her on his lap, and touched her vagina.3 After Acosta touched Jane Doe's vagina, she stood up and got off his lap.

*704Acosta went to a door leading outside to the school playground and gestured to Jane Doe to follow him. Jane Doe followed *457Acosta to the door but then ran to her mother's classroom. Jane Doe next saw Acosta outside of her mother's classroom. Acosta again gestured to Jane Doe with his hand to go to him. Jane Doe refused by shaking her finger back and forth. Jane Doe's sister was present during all of Jane Doe's interactions with Acosta. Jane Doe's sister discussed details of the incident with her mother the following day. Acosta did not touch Jane Doe's sister.

An information charged Acosta with committing a lewd or lascivious act on a child under the age of 14 (§ 288, subd. (a) (count 1) ) and contacting a minor with the intent to commit a sexual offense (§ 288.3, subd. (a) (count 2) ). The information alleged in count 2 that Acosta contacted Jane Doe with the intent "to commit an offense specified in Penal Code Section 273a and/or 288." The information listed Jane Doe4 as the sole victim and made no reference to her sister.

Acosta waived his right to a jury trial. Following a bench trial, the trial court found him guilty of both crimes. With respect to the offense of contacting a minor with the intent to commit a sexual offense, the court found "the People have proven their case beyond a reasonable doubt as to Count 2, Penal Code [section] 288.3 [, subdivision] (a), under the theory that the defendant intended to commit Penal Code [section] 288." The court stated that it did "not find sufficient evidence as to the alternate theory that [Acosta] intended to commit [a violation of section] 273a."

The trial court sentenced Acosta to eight years on count 1 for the violation of section 288, subdivision (a). The court imposed a concurrent sentence of four years on count 2 for the violation of section 288.3. The court stated, "I do believe that under [the] circumstances the 288.3 was really almost something that necessarily has to happen to commit the 288, [subdivision] (a). So that's a concurrent term." The prosecutor and defense counsel agreed that a concurrent term was appropriate for the section 288.3 conviction. Neither the court, the prosecutor, defense counsel, nor the probation officer raised section 654 's prohibition against double punishment regarding Acosta's crimes.

Among other fees and fines assessed during Acosta's sentencing, the trial court imposed two fines pursuant to section 290.3, the first for $300 and the second for $500, as well as related penalty assessments and administrative fees. The court made no explicit findings about Acosta's ability to pay the section 290.3 fines. Acosta did not ask for a hearing on his ability to pay these fines and did not object to their imposition.

*705At the sentencing hearing, the prosecutor read a letter written by M.S. M.S. referenced the nightmares and fears that both her daughters continued to experience as a consequence of Acosta's actions. The prosecutor argued that "there really were two victims here ... he did this in front of two girls." The trial court asked the prosecutor whether he had listed both Jane Doe and her sister, whom the court referred to as Jane Doe 2, on the criminal protective order "given your argument at sentencing." The prosecutor responded that he had, and the court issued a 10-year criminal protective order listing "Jane Doe 1 & 2" as the protected persons. Acosta did not object to the inclusion of Jane Doe 2 in the protective order.

II. DISCUSSION

Acosta challenges three aspects of his sentence. He argues that section 654 precluded the imposition of an unstayed sentence *458on count 2 in light of his sentence on count 1. He contends that his trial counsel was ineffective for failing to object to the sexual offender fines imposed pursuant to section 290.3. Finally, he states that the trial court lacked authority to issue a criminal protective order for Jane Doe's sister. We discuss each claim in turn.

A. Section 654 and Double Punishment

B. Imposition of the Section 290.3 Sex Offender Fines

Acosta's convictions of section 288, subdivision (a) and section 288.3 triggered the imposition of sex offender fines for each count pursuant to section 290.3.7

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People v. Acosta, 239 Cal. Rptr. 3d 454, 28 Cal. App. 5th 701 (Cal. Ct. App. 2018).

239 Cal. Rptr. 3d 454 (People v. Acosta) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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