People v. Ramirez CA5 ( 2022 )

Filed 2/15/22 P. v. Ramirez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079325
Plaintiff and Respondent,
(Super. Ct. No. DF013230A)
v.
JULIAN URQUIZO RAMIREZ, SR., OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Charles R.
Brehmer, Judge.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A.
Canzoneri, Darren K. Indermill and Eric L. Christoffersen, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
A jury convicted defendant of sexual intercourse or sodomy of a child 10 years old
or younger (Pen. Code, § 288.7, subd. (a); count 1), oral copulation or sexual penetration
of a child 10 years old or younger (§ 288.7, subd. (b); count 2), continuous sexual abuse
of a child (§ 288.5, subd. (a); count 3), and lewd and lascivious acts on a child under 14
years old (§ 288, subd. (a); count 4). The jury also found true enhancement allegations to
counts 3 and 4 that defendant was convicted of offenses against multiple victims within
the meaning of section 667.61, subdivision (e)(4). The court sentenced defendant to 25
years to life on counts 1 and 3, and 15 years to life on counts 2 and 4.
Defendant argues his sentence on count 4 was unauthorized because the
accusatory pleading did not charge him with the offense of which he was convicted or the
multiple victim circumstance enhancement as to that count. He also argues his sentence
on count 3 was unauthorized because he was sentenced under Penal Code section 667.61,
subdivision (j)(2), though that provision was not referenced in the information. He
further argues the jury instructions resulted in prejudicial error because they erroneously
negated the age element of certain offenses. He also contends the court erred in failing to
instruct the jury sua sponte on unanimity. Finally, he alleges the court failed to exercise
informed discretion in sentencing him to consecutive terms and his counsel provided
ineffective assistance at the sentencing hearing.
We reject all of defendant’s contentions and affirm the judgment.
FACTUAL BACKGROUND
Defendant was charged with multiple counts of sexual abuse of Jane Doe 1 and
Jane Doe 2. Between 2007 and 2011, Jane Doe 2, her parents and her siblings—
including Jane Doe 1—lived with defendant and his wife. They moved in with defendant
and his wife after Jane Doe 2 finished the fourth grade. While living there, Jane Doe 2
had fairly regular contact with defendant and he began to behave inappropriately toward
her.
She recalled the first incident occurred in the summer of 2008 when she was 11
years old. Defendant told Jane Doe 2 and her sister Jane Doe 1 that, before he would take
them to get snow cones, “he had to do what in Spanish is called ‘abionito,’” which meant
pretending “to be an airplane.” Defendant took turns grabbing them “from [their] vaginal
2.
areas and from [their] breasts,” lifting them up, and swinging them up and around. While
he was swinging them around, he continued to touch their vaginal areas and their breasts.
Jane Doe 2 testified defendant did this about three times between the summer of 2008
and December 29, 2011. She recalled one time defendant took her and Jane Doe 1 to his
room afterward, and he tried to put Jane Doe 2 against his bed. He pulled her pants down
and he put his mouth on her vaginal area on top of her underwear. Jane Doe 2 “started
freaking out,” and she ran off; defendant did not pursue her. She ran around the block
before reentering the house and went straight to the shower.
Jane Doe 2 testified defendant was very inappropriate. She explained, for years,
he would regularly “smack [her] butt” and, whenever he had the chance, he would make
her sit on his lap so he could touch her legs. Eventually, Jane Doe 2 became aware
defendant was abusing Jane Doe 1. At the end of 2015, Jane Doe 2 told her parents about
what happened and they stopped having contact with defendant. Jane Doe 2 also
reported defendant to the police in 2015 and again in 2017.
Jane Doe 1 also testified about living with defendant beginning in 2007. She
recalled him touching her several times in a way that made her feel uncomfortable.
During the first incident she recalled, Jane Doe 1 wanted a rice pudding cup. Defendant
told her if she wanted it he was going to do something to her and it was not going to hurt.
He then took her to the couch, pulled down her pants, and licked her vagina. Afterwards,
he said “‘See, it didn’t hurt,’” and he gave her a rice pudding cup. She was eight or nine
years old and in the third grade when that incident occurred. She testified it happened
multiple times, more than once a week. As Jane Doe 1 grew older, the abuse became
worse. Defendant would always start with oral sex and then started having sexual
intercourse with Jane Doe 1 in 2008, when she was in the third grade. She reported it
happened “all the time, all year”; she was 10 or 11 years old at the time. Defendant
continued to abuse Jane Doe 1 more than once a week until she was in the sixth grade.
He stopped after she told him she “didn’t want to” and he learned she had started her
3.
period. Jane Doe 1 explained defendant would reward her and Jane Doe 2 with things
like $1, $5, fries, and ice cream. She recalled him licking their ears and putting his
tongue in their mouths. When Jane Doe 1 was a sophomore in high school, defendant
picked her up from school and apologized to her for what he had done to her. He asked
her for forgiveness. She told her mother about the abuse in 2015 and her mother
confronted defendant.
In 2018, Jane Doe 1 and Jane Doe 2 participated in two recorded pretext calls with
defendant in which they tried to get him to talk about the charged acts. The prosecution
introduced the calls at trial. During the second pretext call, Jane Doe 1 asked defendant if
he recalled picking her up from school when she was in the 10th grade, and defendant
responded, “[H]ow could I not? Because that’s when I asked for your forgiveness,
honey, I remember.” Defendant said he remembered telling her he should not have
touched her and it was wrong. Jane Doe 1 told defendant he made her look like a liar
when she told her mom and defendant responded:
“Yes, honey, … forgive me. But, I felt … much worse because can you
imagine what it’s like …, they’re asking me questions, … and I want you to
know that in that moment I wanted the earth to split open and swallow me,
honey. Because it was like a nightmare … when your dad spoke with me
and then he told me that … they were going to file a report on me so they
could lock me up. I was already on my way over there to the police but
then I spoke with Saul and he told me, ‘No, look, wait.” But I was already
on my way there, honey, for them to lock me up and see if then I’d be able
to pay some of my fault. Believe me that I felt that way, honey.”
Jane Doe 1 asked defendant why he would touch and kiss her and Jane Doe 2.
Defendant repeatedly asked Jane Doe 1 for forgiveness and stated he was “guided by
affection.” He further stated he was “being an animal, being a beast” and that he
“regret[ted] it a lot.” He told Jane Doe 1 that the day he picked her up from school it had
“been several years that I hadn’t touched you.” He told her he knew “all of this” was
“hurting” her, she was an “innocent girl,” he was the “guilty one.” Jane Doe 1 asked
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defendant if it was “just us or did you do it to someone else?” Defendant responded it
was Jane Doe 1 “more than anyone.” He recalled “play[ing]” with Jane Doe 2, stating he
“would play flying the airplane with her” where he twirled her around in the air. But
“[he] never touched her like [he] touched” Jane Doe 1. Defendant acknowledged he
made “several errors” not just one because it was not “just one occasion, there were
several.” Jane Doe 2 then spoke to defendant and he also apologized to her “for all the
acts of savagery, the stupid things [he] did.” He apologized for playing “fly airplane”
with her. He told her he would be “willing to go to jail” if it would help Jane Doe 1 in
some way.
After the close of the prosecution’s evidence, defense counsel moved to dismiss
counts 1 and 2 as to the Penal Code section 288.7, subdivisions (a) and (b) allegations
related to a child under 10. He argued that “[t]he witness could not state with certainty
that she was under 11 on any of the times of those events.” The prosecutor responded
Jane Doe 1 “testified that the oral copulation occurred in third grade. She was either
eight or nine at the time, both of which are ten or younger. [¶] She said that that occurred
prior to any intercourse occurring and she later testified that intercourse happened all year
during 2008 during which year she would have been nine years old for most of the year
except two days at the very end when she would have been 10, both of which are 10
years or younger.” The court denied defendant’s motion, concluding there was sufficient
evidence for a reasonable juror to find defendant guilty as to counts 1 and 2 without
speculating.
The jury convicted defendant of sexual intercourse or sodomy of Jane Doe 1, a
child 10 years old or younger (Pen. Code, § 288.7, subd. (a); count 1), oral copulation or
sexual penetration of Jane Doe 1, a child 10 years old or younger (§ 288.7, subd. (b);
count 2), continuous sexual abuse of Jane Doe 1, a child (§ 288.5, subd. (a); count 3), and
lewd and lascivious acts on Jane Doe 2, a child under 14 years old (§ 288, subd. (a);
count 4). The jury also found true enhancement allegations to counts 3 and 4 that
5.
defendant was convicted of offenses against multiple victims within the meaning of
section 667.61, subdivision (e)(4). The court sentenced defendant to 25 years to life on
counts 1 and 3, and 15 years to life on counts 2 and 4, with all the sentences to run
consecutively.
DISCUSSION
I. Defendant Was Properly Convicted of a Violation of Penal Code Section 288,
Subdivision (a) in Count 4
Defendant first contends the court lacked jurisdiction to convict him of a violation
of Penal Code section 288, subdivision (a) (lewd or lascivious act on a child under the
age of 14) in count 4 because such an offense was neither charged nor necessarily
included in the crime alleged in count 4, to which defendant pleaded not guilty—a
violation of section 288.7, subdivision (b) (oral copulation or sexual penetration with a
child 10 years of age or younger). He argues his conviction on count 4 should be
reversed with directions to bar further proceedings on that count.
A. Relevant Procedural History
On July 10, 2018, defendant was arraigned on an information alleging five counts:
count 1: sexual intercourse or sodomy of Jane Doe 1, a child 10 years old or younger,
(Pen. Code, § 288.7, subd. (a)); count 2: oral copulation or sexual penetration of Jane
Doe 1, a child 10 years old or younger (§ 288.7, subd. (b)); count 3: continuous sexual
abuse of Jane Doe 1, a child (§ 288.5, subd. (a)) with a multiple victim enhancement
pursuant to section 667.61, subdivision (e)(4); count 4: oral copulation or sexual
penetration of Jane Doe 2, a child 10 years old or younger (§ 288.7, subd. (b)); and count
5: continuous sexual abuse of Jane Doe 2, a child (§ 288.5, subd. (a)) with a multiple
victim enhancement pursuant to section 667.61, subdivision (e)(4). He entered a plea of
not guilty to all counts.
A minute order reflects that on April 2, 2019, the prosecutor moved to amend the
information as to count 4 to a felony violation of Penal Code section 288, subdivision (a)
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and to dismiss count 5. The order further states defense counsel stipulated to the
perfected arraignment. The clerk of the superior court filed an affidavit in this court
averring that no physical document entitled “Amended Information” was filed in this
case; rather, the charges “were amended verbally in open court on 04/02/19.” Defendant
entered a plea of not guilty to all counts. The amended information was then “deemed”
filed.
B. Standard of Review and Applicable Law
California law requires an accusatory pleading to contain a “statement of the
public offense or offenses charged therein.” (Pen. Code, § 950, subd. 2.) “‘It is
fundamental that “When a defendant pleads not guilty, the court lacks jurisdiction to
convict him of an offense that is neither charged nor necessarily included in the alleged
crime. [Citations.] This reasoning rests upon a constitutional basis: ‘Due process of law
requires that an accused be advised of the charges against him in order that he may have a
reasonable opportunity to prepare and present his defense and not be taken by surprise by
evidence offered at his trial.’ [Citation.]” (People v. West (1970) 3 Cal.3d 595, 612
[citations].)’” (People v. Thomas (1987) 43 Cal.3d 818, 823; see People v. Lohbauer
(1981) 29 Cal.3d 364, 368.)
C. Analysis
Defendant asserts the court lacked jurisdiction to convict him of a Penal Code
section 288, subdivision (a) offense (lewd or lascivious act on a child under the age of
14) that was neither charged nor included in the section 288.7, subdivision (b) crime he
alleges was charged in count 4, to which he pleaded not guilty. He contends his
conviction of count 4 should be reversed with directions to bar further proceedings on
that count. The People respond the information was amended to charge defendant with
lewd and lascivious conduct with a child under 14 in violation of section 288, subdivision
7.
(a) in count 4 as evidenced by the record. In his reply brief, defendant does not respond
to the People’s contention regarding the amended information.
Here, the record comports with the People’s argument. It reflects, before trial
began, defendant pleaded not guilty to an amended information that charged him with the
offense of which he was convicted in count 4.
Accordingly, we reject defendant’s first contention.
II. Jury Instructions Did Not Eliminate the Age Elements of Counts 1 and 2
Defendant next contends the court prejudicially erred in instructing the jury in a
manner that allowed the jury to convict him of counts 1 and 2 even if the age element had
not been proven.
A. Relevant Procedural History
Before trial, the court read the charges to the jury, stating with regard to counts 1
and 2, defendant is accused by the Information of the following crimes:
“Count 1: On or about and between January 1, 2007 and
December 29, 2011, [defendant] did willfully engage in sexual intercourse
or sodomy with a child, who is ten years old or younger, to wit, Jane Doe 1,
… in violation of Penal Code Section 288.7(A), a felony.
“Count 2: On or about and between January 1, 2007 and
December 29, 2011, [defendant] did willfully engage in oral copulation or
sexual penetration of a child, who is ten years old or younger, to wit, Jane
Doe 1, … in violation of Penal Code Section 288.7(B), a felony.”
At the jury instruction conference, the court noted it planned to read a modified
version of CALCRIM No. 207, “which would simply state it is alleged that the crimes
occurred on or about and between January 1, 2007 and December 29, 2011.” Both the
prosecutor and defense counsel agreed to the modification and neither party objected to
the instruction. Accordingly, the court instructed the jury with the modified instruction.
The court also instructed the jury:
“The defendant is charged in Count 1 with engaging in sexual intercourse
with a child 10 years of age or younger. [¶] To prove that the defendant is
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guilty of this crime the People must prove that: One, the defendant
engaged in an act of sexual intercourse with Jane Doe Number 1; two,
when the defendant did so, Jane Doe Number 1 was 10 years of age or
younger; three, at the time of the act, the defendant was at least 18 years
old. [¶] Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.”
The court further instructed the jury:
“The defendant is charged in Count 2 with engaging in oral copulation with
a child 10 years of age or younger. [¶] To prove that the defendant is guilty
of this crime, the People must prove that: One, the defendant engaged in an
act of oral copulation with Jane Doe Number 1; two, when the defendant
did so, Jane Doe Number 1 was 10 years of age or younger; three, at the
time of the act, the defendant was at least 18 years old. [¶] Under the law,
a person becomes one year older as soon as the first minute of his or her
birthday has begun.”
During closing argument, the prosecutor reiterated the age element of count 1,
which requires:
“When that act happened, the victim in this case, Jane Doe Number 1, was
10 or younger. So if she’s 10, it counts. If she’s 9, 8, 7, it counts. If she’s
11, it doesn’t count, so 10 years or younger.”
The prosecutor further described Jane Doe 1’s testimony in support of the age
element of count 2:
“On this one, [Jane Doe 1] described how, from the very beginning, the
first time she remembers the defendant would lick her vagina during these
acts. Number two, at the time she was 10 years of age or younger. Same
thing, 10, 9, okay. 11, not okay.”
In closing argument, defense counsel challenged whether the evidence established
the age element of different offenses, asking, “So if we’re talking about the counts
involving [Jane Doe 1], was the evidence reliable as to age? [¶] [C]an you say beyond a
reasonable doubt with an abiding certainty, meaning a continuing conviction, that she
was below the age at the time of the acts. And can you point to a specific act that would
allow you to do that? We have a timeline jumping all over the place by somebody.” He
explained, “So you could conceivably have the element of this crime of the sexual
9.
penetration or the oral copulation but without having reliable credible evidence that it
occurred within the time frame, which leaves you for [Jane Doe 1], Count 3, which
doesn’t have that time frame.” He further argued there was a lack of sufficient credible
evidence of the age element as to count 4 as well.
B. Standard of Review
Appellate courts apply the de novo standard of review to claims of instructional
error. (People v. Riviera (2019) 7 Cal.5th 306, 326; People v. Posey (2004) 32 Cal.4th
193, 218.) “‘It is fundamental that jurors are presumed to be intelligent and capable of
understanding and applying the court’s instructions.’ [Citation.] When a defendant
claims an instruction was subject to erroneous interpretation by the jury, he must
demonstrate a reasonable likelihood that the jury misconstrued or misapplied the
instruction in the manner asserted. [Citation.] In determining the correctness of jury
instructions, we consider the entire charge of the court, in light of the trial record.
[Citation.]” (People v. Covarrubias (2016) 1 Cal.5th 838, 926.)
C. Analysis
Defendant asserts the information alleged, and “[t]he trial court charged the jury,”
that counts 1 and 2 occurred on or about and between January 1, 2007, and December 29,
2011. He argues, “On the outer limit of the alleged dates, December 29, 2011, [Jane Doe
1] would have been almost 13 years old,” but counts 1 and 2 required the sexual
intercourse and oral copulation with Jane Doe 1 to have occurred when she was 10 years
of age or younger. Accordingly, he contends, the “instructions erroneously extended the
time period for counts one and two’s age element well beyond under 11 years of age” and
relieved the People of their burden to prove every element of the charged offenses
beyond a reasonable doubt in violation of defendant’s due process rights. The People
respond the court’s instructions on counts 1 and 2 properly informed the jury of the
elements necessary to convict defendant of those offenses. They argue nothing in the
10.
court’s explanation of the general time frame of when all of the offenses occurred “could
be understood to have changed the age requirements of counts 1 and 2.” We agree with
the People.
First, “‘[a] party may not complain on appeal that an instruction correct in law and
responsive to the evidence was too general or incomplete unless the party has requested
appropriate clarifying or amplifying language.’” (People v. Covarrubias, supra, 1
Cal.5th at p. 901.) And defendant failed to object to the modified CALCRIM No. 207
instruction or ask that it be clarified or further modified. He also did not object to the
language of the information read to the jury by the court. However, he argues the court’s
instructions impacted an element of the charged offenses, and instructions regarding the
elements of a crime affect a defendant’s substantial rights. Accordingly, we review the
alleged instructional error to determine whether the challenged instruction resulted in a
miscarriage of justice. (Pen. Code, § 1259; People v. Hardy (2018) 5 Cal.5th 56, 91;
People v. Rojas (2015) 237 Cal.App.4th 1298, 1304.)
We conclude defendant’s claim must be rejected on the merits. Defendant was
charged in counts 1 and 2 with violations of Penal Code section 288.7 that occurred “[o]n
or about and between January 1, 2007 and December 28, 2011.” An essential element of
the offenses proscribed by section 288.7 is that the child must have been 10 years of age
or younger. (See People v. Mendoza (2015) 240 Cal.App.4th 72, 79–80.) As given, the
jury instructions correctly stated the age elements of counts 1 and 2. And we are not
confronted with a situation in which the jury was given plainly conflicting instructions,
one of which was erroneous on its face. (See People v. Rojas, supra, 237 Cal.App.4th at
p. 1304 [“CALCRIM No. 207 accurately states the general rule that when a crime is
alleged to have occurred ‘on or about’ a certain date, it is not necessary for the
prosecution to prove the offense was committed on that precise date, but only that it
happened reasonably close to that date”]; cf. People v. Ngo (2014) 225 Cal.App.4th 126,
153.)
11.
Viewing the charge as a whole, we cannot conclude there is a reasonable
likelihood the jury misconstrued or misapplied the court’s admonition the crimes
occurred on or about and between January 1, 2007, and December 29, 2011, to disregard
the age element for counts 1 and 2. Contrary to defendant’s contentions, nothing about
the accusatory pleading or jury instructions informed the jury they should ignore or
otherwise discount the age element of each offense. Rather, the court’s instructions as a
whole informed the jury that age was an essential element of each offense and it further
directed the jurors to consider the instructions together. We presume the jury followed
these instructions. (See People v. Sanchez (2001) 26 Cal.4th 834, 852 [“Jurors are
presumed able to understand and correlate instructions and are further presumed to have
followed the court’s instructions”].)
Furthermore, both the prosecutor and defense counsel emphasized the age
elements of the different offenses in their closing arguments. In support of his
contention, defendant highlights the prosecutor’s closing argument discussion of count 3,
in which he argued the acts giving rise to count 3 all occurred when Jane Doe 1 was
under the age of 14, stating “she’s under 14 through all of these acts, and also talking
about the dates that are alleged, it ends in 2011 when she’s under 14.” We disagree the
jurors could reasonably construe the prosecutor’s referenced comment related to count 3
as relieving them of the duty to find the age element of counts 1 and 2 beyond a
reasonable doubt. Rather, on this record, we conclude there is no reasonable likelihood
the jury understood the court’s instructions to permit convictions of the charged offenses
based on conduct that occurred when Jane Doe 1 was not the requisite statutory ages.
We reject defendant’s second contention.
III. Defendant Was Not Prejudiced by the Lack of a Unanimity Instruction
Defendant next argues the court prejudicially erred in failing to instruct the jury
sua sponte on unanimity.
12.
A. Standard of Review and Applicable Law
We independently review whether jury instructions correctly state the law.
(People v. Posey, supra, 32 Cal.4th at p. 218.) Review of the adequacy of instructions is
based on whether the trial court “‘fully and fairly instructed on the applicable law.’”
(People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)
“In a criminal case, a jury verdict must be unanimous” and “the jury must agree
unanimously the defendant is guilty of a specific crime.” (People v. Russo (2001) 25
Cal.4th 1124, 1132; accord, People v. Covarrubias, supra, 1 Cal.5th at pp. 877–878.)
“Therefore, cases have long held that when the evidence suggests more than one discrete
crime, either the prosecution must elect among the crimes or the court must require the
jury to agree on the same criminal act. [Citations.] [¶] This requirement of unanimity as
to the criminal act ‘is intended to eliminate the danger that the defendant will be
convicted even though there is no single offense which all the jurors agree the defendant
committed.’” (People v. Russo, supra, at p. 1132, italics added; accord, People v.
Covarrubias, supra, at p. 878; see People v. Brown (2017) 11 Cal.App.5th 332, 341.)
“‘The [unanimity] instruction is designed in part to prevent the jury from amalgamating
evidence of multiple offenses, no one of which has been proved beyond a reasonable
doubt, in order to conclude beyond a reasonable doubt that a defendant must have done
something sufficient to convict on one count.’” (People v. Russo, at p. 1132.)
The California Supreme Court has acknowledged “[s]ome cases [have] found
harmless any error in failing either to select specific offenses or give a unanimity
instruction, if the record indicated the jury resolved the basic credibility dispute against
the defendant and would have convicted the defendant of any of the various offenses
shown by the evidence to have been committed.” (People v. Jones (1990) 51 Cal.3d 294,
307.) The Jones court agreed with the holding of People v. Winkle (1988) 206
Cal.App.3d 822, 830, in which the Second Appellate District, Division Seven, sustained a
conviction of one count of lewd conduct based on a child victim’s testimony that the
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defendant molested her regularly each week, though no prosecutorial election was made
and no unanimity instruction was given. (Jones, at p. 307.) The Jones court noted the
Winkle defendant “made only a weak attempt to assert an alibi defense; in essence the
trial involved a question of credibility and the jury’s verdict necessarily implied that it
believed the victim. Under such circumstances, no unanimity instruction was needed.”
(Jones, at p. 307.) The Jones court concluded, “In a case consisting only of ‘generic’
evidence of repeated sex acts, it would be impossible for the prosecutor to select a
specific act he relies on to prove the charge, or for the jury to unanimously agree the
defendant committed the same specific act.” (Id. at p. 308; accord, Winkle, supra, at p.
830.) Accordingly, the Jones court held, “In a case in which the evidence indicates the
jurors might disagree as to the particular act defendant committed, the standard unanimity
instruction should be given.” (Jones, at p. 321.) “But when there is no reasonable
likelihood of juror disagreement as to particular acts, and the only question is whether or
not the defendant in fact committed all of them, the jury should be given a modified
unanimity instruction which, in addition to allowing a conviction if the jurors
unanimously agree on specific acts, also allows a conviction if the jury unanimously
agrees the defendant committed all the acts described by the victim.” (Id. at p. 322;
accord, CALCRIM No. 3501.)
B. Analysis
Defendant argues the court erroneously failed to sua sponte instruct the jurors on
unanimity on counts 1, 2, and 4. Accordingly, he argues, the trial court’s instructions
permitted the jury to convict him of these counts without agreeing on a single, specific
act as the basis of his convictions. The People respond a unanimity instruction was not
required and, regardless, any error in failing to give one was harmless. They contend, as
to counts 1 and 2, there was no rational basis to distinguish between any of the various
acts or assaults committed by defendant. The jury believed Jane Doe 1’s testimony that
14.
the consistent, repetitive pattern of acts occurred. Similarly, they argue, the jury’s guilty
verdict on count 4 demonstrates it found Jane Doe 2’s testimony credible and, because
there was no basis to distinguish between the various acts, the jury must have believed
defendant committed all the alleged acts against Jane Doe 2 if he committed any. We
agree with the People; any alleged error by the trial court in failing to give a unanimity
instruction was harmless.
The failure to give a unanimity instruction is harmless “if the record indicate[s] the
jury resolved the basic credibility dispute against the defendant and would have convicted
the defendant of any of the various offenses shown by the evidence to have been
committed.” (People v. Jones, supra, 51 Cal.3d at p. 307.) Here, even if we assume,
arguendo, the trial court erred in failing to sua sponte instruct the jury with a unanimity
instruction, we conclude the instructional error was harmless beyond a reasonable doubt.
Defendant’s defense to the alleged crimes as evidenced by his counsel’s closing
argument was to challenge the credibility and reliability of Jane Doe 1 and Jane Doe 2’s
testimony and, on that basis, to argue the jury could not convict him of the elements of
each offense beyond a reasonable doubt, particularly the age elements of counts 1, 2, and
4. The jury’s verdict reflects it found Jane Doe 1 and Jane Doe 2 credible, resolving any
credibility dispute against defendant and convicting him of all the charged sex offenses.
(People v. Jones, supra, 51 Cal.3d at p. 307.) It also implies the jury “did not believe the
only defense offered”—that the victims were not credible. (See People v. Jennings
(2010) 50 Cal.4th 616, 679 [“There also is no need for a unanimity instruction if the
defendant offers the same defense or defenses to the various acts constituting the charged
crime”].) Nothing in the evidence presented provided a “rational basis … for the jury to
distinguish between the various acts” alleged to have been committed against Jane Doe 1
or Jane Doe 2. (People v. Thompson (1995) 36 Cal.App.4th 843, 853.) Therefore, “the
jury must have believed beyond a reasonable doubt that defendant committed all acts if
he committed any, [so] the failure to give a unanimity instruction is harmless.” (Ibid)
15.
On this record, we cannot conclude there is a reasonable possibility the verdict
would have been different if the jury had been instructed on unanimity. We further
conclude any error by the trial court in failing to instruct the jury sua sponte with a
unanimity instruction was harmless beyond a reasonable doubt. (See People v.
Thompson, supra, 36 Cal.App.4th at p. 853 [“Where the record indicates the jury
resolved the basic credibility dispute against the defendant and therefore would have
convicted him of any of the various offenses shown by the evidence, the failure to give
the unanimity instruction is harmless”]; accord, People v. Brown (1996) 42 Cal.App.4th
1493, 1502 [“The important question is whether there was anything in the record by way
of evidence or argument to support discriminating between the two incidents such that
the jury could find that appellant committed one molestation but not the other.… There
was not.… Failure to deliver a unanimity instruction was harmless beyond a reasonable
doubt”]; see generally People v. Hernandez (2013) 217 Cal.App.4th 559, 576 [noting
split of opinion in appellate courts as to whether harmless error standard of Chapman v.
California (1967) 386 U.S. 18 or People v. Watson (1956) 46 Cal.2d 818 applies in a
unanimity instruction case].)
We reject defendant’s contention.
IV. Defendant’s Sentence on Count 4 Was Not Unauthorized
Defendant argues his sentence on count 4, which accounted for a multiple victim
enhancement, was unauthorized because the enhancement was not alleged as to this count
in the information.
A. Standard of Review and Applicable Law
“Fair notice requires that every sentence enhancement be pleaded in connection
with every count as to which it is imposed.” (People v. Anderson (2020) 9 Cal.5th 946,
956–957; accord, People v. Houston (2012) 54 Cal.4th 1186, 1227 [“A defendant has a
due process right to fair notice of the allegations that will be invoked to increase the
16.
punishment for his or her crimes”].) Penal Code section 667.61, subdivision (o)
specifically states, “The penalties provided in this section shall apply only if the existence
of any circumstance specified in subdivision (d) or (e) is alleged in the accusatory
pleading pursuant to this section, and is either admitted by the defendant in open court or
found to be true by the trier of fact.” (See People v. Mancebo (2002) 27 Cal.4th 735,
753–754 [“[T]he express pleading requirements of section 667.61, subdivisions (f) and
(i), read together, require that an information afford a One Strike defendant fair notice of
the qualifying statutory circumstance or circumstances that are being pled, proved, and
invoked in support of One Strike sentencing”].)
Notably, “not every amendment to a pleading—even one that increases the
defendant’s potential criminal liability—need be made in writing.” (People v. Anderson,
supra, 9 Cal.5th at p. 960.) The purpose of a statutory pleading requirement is “to give
sufficient notice to permit the defense to make informed decisions about the case,
including whether to plead guilty, how to allocate investigatory resources, and what
strategy to deploy at trial.” (Id. at p. 964.)
B. Analysis
Defendant asserts his sentence of 15 years to life on count 4 was unauthorized
because the information did not include a Penal Code section 667.61 enhancement
allegation, upon which the sentence was based. The People respond the information was
amended on the eve of trial to plead a section 667.61 allegation as to count 4. They also
argue the lack of any objection by defense counsel when the allegation was submitted to
the jury demonstrates the amended information properly included the one-strike
allegation on count 4. We conclude the record reflects defendant had sufficient notice of
the multiple victim enhancement allegation as to count 4 and the sentence he faced as a
result; thus, the related sentence was authorized, and defendant forfeited any objection he
had to the information.
17.
“[O]n appeal, a judgment is presumed correct, and a party attacking the judgment,
or any part of it, must affirmatively demonstrate prejudicial error.” (People v. Garza
(2005) 35 Cal.4th 866, 881; see People v. Thompson (2016) 1 Cal.5th 1043, 1097, fn. 11
[“On appeal, we assume a judgment is correct and the defendant bears the burden of
demonstrating otherwise”]; accord, People v. Sanghera (2006) 139 Cal.App.4th 1567,
1573 [“Perhaps the most fundamental rule of appellate law is that the judgment
challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively
demonstrate error”].)
Under these circumstances, defendant fails to establish the pleading was defective
as to count 4; rather, defendant was given adequate notice of the charges against him and
the punishment he faced, including the multiple victim enhancement on count 4. As
previously discussed, the information was orally amended on April 2, 2019, to modify
count 4 to a felony violation of Penal Code section 288, subdivision (a) and to dismiss
count 5, an alleged violation of section 288.5, subdivision (a) with a section 667.61,
subdivision (e)(4) enhancement allegation. Defense counsel stipulated to the perfected
arraignment. Accordingly, defendant was arraigned and entered a plea of not guilty to all
counts. The amended information was then “deemed” filed. A subsequent minute order
from April 4, 2019, reflects the charges, including the amended count 4 alleged violation
of section 288, subdivision (a) with a section 667.61, subdivision (e)(4) enhancement.
Before opening statements, the clerk read the charges to the jury as “accused by
the District Attorney of the County of Kern of the State of California by this Information”
stating, in relevant part, “As to all these charges, it is alleged that the defendant
committed sexual offenses as to multiple victims.” The court informed the jury “[t]he
defendant has pled not guilty to the charges.” During the jury instruction conference, the
court discussed the People’s verdict form noting, “It has options of guilty and not guilty.
It has the appropriate lesser-included offenses as to Counts 1 through 3 and the
enhancement under 667.61(C), which is alleged as to Counts 3 and 4 being
18.
enhancements.” He then asked the parties if they had any “issues, questions, or
concerns” with the verdict form and both the prosecutor and defense counsel responded,
“No.” The jury’s findings as to counts 3 and 4 included true findings that defendant
committed an offense specified in Penal Code section 667.61, subdivision (c) against
more than one victim, within the meaning of section 667.61, subdivision (e)(4) “as
alleged in the [third and] fourth count of the information.”
Accordingly, the record before us reflects defendant was on notice count 4
included an allegation he committed sexual offenses against multiple victims based upon
the reading of the information before the jury, the discussion of the jury charge, and the
trial court’s minute orders. He never objected to the charges or enhancements when they
were read to the jury before trial or during the jury instruction conference. He also did
not raise the issue at the sentencing hearing or object when sentence was imposed. To
the extent defendant now challenges the pleading on the grounds it was defective, he has
forfeited this challenge. (See People v. Houston, supra, 54 Cal.4th at p. 1229 [defendant
forfeited his claim indictment was deficient in failing to allege attempted murder was
willful, deliberate, and premeditated where trial court “actually notified defendant of the
possible sentence he faced before his case was submitted to the jury, and defendant had
sufficient opportunity to object to the indictment and request additional time to formulate
a defense,” and jury was properly instructed and made express findings related to
enhancements]; cf. People v. Anderson, supra, 9 Cal.5th at p. 964 [defendant did not
learn of potential sentence he faced until right before the jury left to deliberate on his
guilt]; People v. Mancebo, supra, 27 Cal.4th at pp. 753–754 [sentencing error occurred
where trial court substituted an unpled circumstance of multiple victims to support one-
strike terms so it could use properly pleaded and proved gun-use circumstances to impose
gun-use enhancements].) And we cannot conclude his resulting sentence was
unauthorized.
We reject defendant’s fourth contention.
19.
V. Defendant’s Sentence on Count 3 Was Proper and Does Not Violate
Defendant’s Constitutional Rights
Defendant argues his sentence on count 3 should have been 15 years to life
pursuant to Penal Code section 667.61 because only one section 667.61, subdivision (e)
circumstance was found true and he was not charged with a violation of section 667.61,
subdivision (j); accordingly, the imposed 25 years to life sentence was unauthorized and
violated his due process rights. We disagree.
A. Relevant Procedural History
The information charged defendant in count 3 with a violation of Penal Code
section 288.5, subdivision (a), stating defendant “was a person who resided with or had
recurring access to a child under the age of 14, Jane Doe #1 …, [and] who, over a period
of not less than three months engaged in three or more acts of substantial sexual conduct
as defined in Penal Code section 1203.066(b), or three or more acts of lewd and
lascivious conduct under Penal Code section 288, in violation of Penal Code section
288.5(a).” (Some capitalization omitted.) It further alleged as an enhancement to count 3
that “defendant has been convicted in the present case or cases of committing an offense
specified in section 667.61(c) of the Penal Code against more than one victim, within the
meaning of Penal Code section 667.61(e)(4).” (Some capitalization omitted.) As
discussed, the jury found defendant guilty of count 3 as charged and found true the
related enhancement allegation.
B. Applicable Law
The one strike law creates an alternative, harsher sentencing scheme of either 15
or 25 years to life for certain enumerated sex offenses accompanied by additional
specified factual findings. (Pen. Code, § 667.61; see People v. Mancebo, supra, 27
Cal.4th at pp. 741–742.) A section 288.5 violation of continuous sexual abuse of a child
is included in the list of qualifying one strike crimes per section 667.61, subdivision
(c)(9). Subdivision (e)(4) contains a multiple victim aggravating circumstance: “The
20.
defendant has been convicted in the present case … of committing an offense specified in
subdivision (c) against more than one victim.” (§ 667.61, subd. (e)(4).)
Except as provided for in subdivision (j), (l), or (m) of Penal Code section 667.61,
when a subdivision (c) offense is committed and two or more subdivision (e)
circumstances exist, the punishment is 25 years to life. (§ 667.61, subd. (a).) And except
as provided for in subdivision (j), (l), or (m), when a section 667.61, subdivision (c)
conviction occurs with only one subdivision (e) circumstance, the punishment is 15 years
to life. (§ 667.61, subd. (b).)
Penal Code section 667.61, subdivision (j)(2) provides an exception stating “[a]
person who is convicted of an offense specified in subdivision (c) under one of the
circumstances specified in subdivision (e), upon a victim who is a child under 14 years of
age, shall be punished by imprisonment in the state prison for 25 years to life.”
In People v. Jimenez (2019) 35 Cal.App.5th 373 (Jimenez), the Sixth Appellate
District held the failure to expressly plead Penal Code section 667.61, subdivision (j)(2)
did not provide sufficient notice this provision might apply at sentencing. (Jimenez,
supra, at p. 397.) There, the defendant was charged with, among other things, 13 sex
crimes against more than one victim. (Id. at pp. 377–378, 394.) In expressly pleading a
multiple victim circumstance for each of these 13 crimes, the charging document referred
only to subdivisions (b) and (e) of section 667.61. (Jimenez, at p. 394.) The trial court
sentenced the defendant to 25-year-to-life terms under section 667.61, subdivision (j)(2)
for nine of these crimes, which involved children under the age of 14 years. (Jimenez, at
pp. 378, 394.) On appeal, the defendant claimed the charging document referenced only
section 667.61, subdivision (b), and it did not give him fair notice of the 25-year-to-life
term imposed under subdivision (j)(2) for committing the qualifying offenses upon
multiple victims, at least one of whom was under the age of 14 years. (Jimenez, at pp.
395, 397.) The Jimenez court held the information did not put the defendant on notice he
could be sentenced to terms of 25 years to life under subdivision (j)(2) for committing
21.
those offenses upon multiple victims, at least one of whom was under 14 years of age.
(Jimenez, at p. 397.) Accordingly, the failure to plead the enhancement under section
667.61, subdivision (j)(2) precluded sentencing based on that provision; thus, the
imposed sentence was unauthorized and violated the defendant’s constitutional right to
due process. (Jimenez, at p. 397.)
Two Courts of Appeal subsequently disagreed with Jimenez in published
decisions. In In re Vaquera (2019) 39 Cal.App.5th 233 (Vaquera), review granted
November 26, 2019, S258376, the defendant argued his due process rights were violated
by the trial court’s imposition of a 25-year-to-life sentence under Penal Code section
667.61, subdivision (j)(2) because that subdivision was not expressly alleged in the
information. (Vaquera, supra, at p. 238.) Rather, the prosecution had alleged a multiple
victim circumstance under section 667.61, subdivision (e)(4) in combination with section
667.61, subdivision (b), like in Jimenez. (Vaquera, supra, at pp. 235–236.) In Vaquera,
however, the court concluded the pleading complied with due process principles and
supplied the defendant with sufficient notice of the harsher term of 25 years to life under
section 667.61, subdivision (j)(2). (Vaquera, at pp. 240–242.) Although the charging
document cited section 667.61, subdivision (b), which provides for a term of 15 years to
life, that statutory reference put the defendant on notice he faced the harsher term under
subdivision (j)(2). (Vaquera, at p. 235.) The language of the facts alleged in the
information put the defendant on notice the counts against him involved children under
the age of 14 years. (Id. at pp. 240–241.) The charges themselves required the
prosecution to prove the victims were under the age of 14 years at the time of the
offenses, and the information expressly pleaded both children were under the age of 14
years at the time of the offenses. (Id. at pp. 236, 240–241.) Moreover, the Vaquera court
observed section 667.61, subdivision (j)(2) was expressly referenced in section 667.61,
subdivision (b) as an exception. (Vaquera, supra, at pp. 241–242.) The court also
concluded no prejudice had been shown. (Id. at p. 242.) Finally, the Vaquera court
22.
distinguished People v. Mancebo, supra, 27 Cal.4th 735—in which the court imposed a
multiple victim circumstance though it was not pleaded—and People v. Wilford (2017)
12 Cal.App.5th 827—in which the information specifically referenced a provision
providing a specified sentencing triad with no exceptions, though the defendant was
sentenced under a different provision. (Vaquera, supra, at pp. 242–244.)
In People v. Zaldana (2019) 43 Cal.App.5th 527 (Zaldana), review granted
March 18, 2020, S259731, the court also declined to follow Jimenez. Like Jimenez and
Vaquera, the charging document alleged that “‘within the meaning of Penal Code section
667.61(b) and (e)(4) … [t]he defendant … committed an offense specified in Section
667.61(c) against more than one victim.’” (Zaldana, supra, at p. 535.) The Zaldana
court concluded the reference to section 667.61, subdivision (b) in the pleading did not
result in deficient notice of the harsher penalty that would apply under section 667.61,
subdivision (j)(2) because subdivision (j)(2) is expressly referenced in subdivision (b) as
an exception to the shorter 15-year-to-life term provided for in subdivision (b). (Zaldana,
at p. 535.) Because the information alleged that both of the defendant’s victims were
under the age of 14 years when he molested them, there was no doubt he was on notice
he could be subject to subdivision (j)(2). (Zaldana, at p. 535.)
The Zaldana court rejected the defendant’s argument that by citing Penal Code
section 667.61, subdivision (b), the prosecutor must have been exercising charging
discretion to select the lower 15-year-to-life term provided therein, rather than the longer
25-year-to-life term provided in section 667.61, subdivision (j)(2). (Zaldana, supra, 43
Cal.App.5th at p. 535, review granted.) The court explained that subdivision (b)
expressly states that a sentence of 15 years to life is required “‘“[e]xcept as provided in
subdivision … (j) ….”’” (Zaldana, supra, at p. 536, quoting Vaquera, supra, 39
Cal.App.5th at p. 245, review granted.) “‘And section 667.61, subdivision (j)(2),
requires that any person coming under its provisions “shall be punished by imprisonment
in the state prison for 25 years to life.” (Italics added.) Because the Legislature used the
23.
word “shall,” and because the prosecution properly pleaded and proved multiple victim
allegations for qualifying sex offenses in which the victims were under 14 years of age,
the trial court was required to impose a 25-year-to-life sentence under section 667.61, the
One Strike law.’” (Ibid.)
C. Analysis
Defendant asserts he was convicted in count 3 of continuous sexual abuse of a
child (in violation of Pen. Code, § 288.5, subd. (a)) and the jury found true a multiple
victim allegation pursuant to section 667.61, subdivisions (c) and (e)(4). He argues his
sentence should have been 15 years to life pursuant to section 667.61 because only one
section 667.61, subdivision (e) circumstance was found true; accordingly, the 25-year-to-
life sentence was unauthorized and violated his due process rights. In response, the
People argue defendant was properly sentenced to a term of 25 years to life under section
667.61, subdivision (j)(2) because the qualifying sex offense was committed against a
victim under 14 years of age and the jury found true the multiple victim allegation as to
count 3. In his reply and supplemental briefing, defendant asserts his sentence for count
3 was unauthorized because the accusatory pleading did not allege a violation of section
667.61, subdivision (j)(2), relying on Jimenez, supra, 35 Cal.App.5th at pages. 393–397.
Relying on Vaquera, supra, 39 Cal.App.5th 233, review granted, the People respond the
information in this case complied with the one strike law pleading and proof
requirements, and defendant had sufficient notice he faced the sentence proscribed by
section 667.61, subdivision (j)(2). We agree with the People.
Here, the information specifically alleged defendant committed the sexual offenses
alleged in count 3 against Jane Doe 1, a child under the age of 14 years, in violation of
Penal Code section 288.5, subdivision (a), a qualifying offense under section 667.61,
subdivision (c)(9). And count 3 involved the multiple victim circumstance under section
667.61, subdivision (e)(4). These facts gave defendant fair notice he faced a sentence
24.
under section 667.61, subdivision (j)(2)—the only sentencing provision of the one strike
law that applies to qualifying offenses against victims under the age of 14 years in the
presence of one qualifying circumstance under section 667.61, subdivision (e).
We note the multiple victim circumstance here was pled differently from those
alleged in Jimenez, Vaquera, and Zaldana. Here, the special allegation invoking
application of the one strike law did not reference Penal Code section 667.61, subdivision
(b); instead, the information alleged, in the commission of the underlying crime,
defendant has been convicted in the present case or cases of committing an offense
specified in section 667.61, subdivision (c) against more than one victim within the
meaning of section 667.61 subdivision (e)(4). The lack of reference to section 667.61,
subdivision (b) in the information is even more straightforward than the pleadings in
Vaquera and Zaldana. In both of those cases, the defendants argued reference to
subdivision (b) in the one strike allegations was essentially an exercise of the
prosecutor’s charging discretion to select sentencing under subdivision (b) rather than
subdivision (j)(2). As both Zaldana and Vaquera explained, application of section
667.61, subdivision (j)(2) is mandatory when the prosecutor properly pleads and proves
the multiple victim circumstance for qualifying sex offenses in which the victims are
under the age of 14 years. Subdivision (b) expressly states it applies “[e]xcept as
provided in subdivision … (j),” and subdivision (j)(2) states that any person coming
within its provisions “shall be punished by imprisonment in the state prison for 25 years
to life.” (§ 667.61, subds. (b), (j)(2), italics added; accord, Zaldana, supra, 43
Cal.App.5th at pp. 535–536, review granted; Vaquera, supra, 39 Cal.App.5th at p. 245,
review granted.)
Without any citation to Penal Code section 667.61, subdivision (b) in the
information here, there is no basis on which defendant could conclude the prosecutor was
making such an election. Further, because conviction of the qualifying offense under
section 667.61, subdivision (c) was dependent on proving the victim was under the age of
25.
14 years, the only applicable sentencing provision under the one strike law was section
667.61, subdivision (j)(2).
Accordingly, even without express citation to Penal Code section 667.61,
subdivision (j)(2), the law cited and the facts alleged in the information gave defendant
fair notice he necessarily faced the 25-year-to-life term under subdivision (j)(2) of section
667.61 on count 3 pursuant to the one strike law if the qualifying offense and the multiple
victim circumstance under section 667.61, subdivision (e)(4) were proven. Put
differently, the prosecutor alleged an underlying offense that necessarily required proving
the victim was under the age of 14 years at the time of the offense—a fact expressly
pleaded and proved; the information included a special allegation under the one strike
law that count 3 was a qualifying offense under section 667.61, subdivision (c) and the
multiple victim circumstance applied under section 667.61, subdivision (e). The specific
statutory pleading requirements were thus met under section 667.61, subdivision (o), and,
under the express language of the statute, only subdivision (j)(2) could apply if defendant
was convicted of the qualifying offenses and the special one strike allegations were found
true. Thus, defendant had adequate notice of the sentence he faced and his due process
rights were not violated.
We reject defendant’s contention.
VI. Defendant Has Not Established the Court Was Unaware It Had Discretion in
Sentencing Him
Defendant next argues he was denied an “informed exercise of sentencing
discretion” when the court imposed 80 years to life without considering whether his
sentences on each count should run concurrently. We reject this contention.
A. Relevant Procedural History
At the sentencing hearing, the court stated on the record it had received and
reviewed the letters in support of sentencing submitted on behalf of defendant along with
the victims’ statements. It also indicated it considered the presentence investigation
26.
report submitted by the probation department and the victims’ testimonies, which the
court heard during the trial.
The probation report submitted to the court advised consecutive sentencing was
not mandatory in this case:
“The present offense involves separate victims and the same victim on
separate occasions; however, the convicted charges are not crimes listed
under PC 667.6(e); therefore, mandated fully consecutive sentencing
(pursuant to subsection (d)) does not apply in this case.”
The probation report, however, recommended consecutive sentencing, reasoning:
“Case facts reflect numerous separate and distinct facts of sexual
misconduct as to [Jane Doe] 1 and Count 4 involves a separate victim,
consecutive sentencing is justified:
“(1). The crimes and their objectives were predominantly
independent of each other.
“(2). The crimes were committed at different times or separate
places, rather than being committed so closely in time and place as to
indicate a single period of aberrant behavior.
“(3). The crimes involved separate acts of violence or threats of
violence.
“However, if the Court determines Counts One and Two are
encompassed in Count Three, instead of Count Three being a distinct
crime, it would be recommended Count Three be stayed pursuant to PC
654, including the Count’s PC 290.3 fine. Based on the analysis provided
above, it is recommended the defendant be sentenced to 25 years to Life,
plus 15 years to Life, plus 25 years to Life, plus 15 years to Life.”
Before sentencing defendant, the court asked the parties if they had any comments.
Defense counsel stated, “I know the Court has to follow the statutory sentencing structure
but I would ask that the sentencing letters be included in his file that’s sent onward to the
Department of Corrections. They may be of use to him for social workers or counselors
there.” The court agreed.
27.
The court then sentenced defendant to 25 years to life on counts 1 and 3, and to 15
years to life on counts 2 and 4, with all the sentences to run consecutively. After
announcing defendant’s sentences, the court asked if either party had further comments;
both the prosecutor and defense counsel said, “No.”
B. Standard of Review and Applicable Law
“‘Generally, when the record shows that the trial court proceeded with sentencing
on the erroneous assumption it lacked discretion, remand is necessary so that the trial
court may have the opportunity to exercise its sentencing discretion at a new sentencing
hearing. [Citations.] Defendants are entitled to “sentencing decisions made in the
exercise of the ‘informed discretion’ of the sentencing court,” and a court that is unaware
of its discretionary authority cannot exercise its informed discretion.’” (People v.
Woodworth (2016) 245 Cal.App.4th 1473, 1480; see People v. Brown (2007) 147
Cal.App.4th 1213, 1228; accord, People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
“Remand for resentencing is not required, however, if the record demonstrates the
trial court was aware of its sentencing discretion. [Citations.] Further, remand is
unnecessary if the record is silent concerning whether the trial court misunderstood its
sentencing discretion. Error may not be presumed from a silent record. [Citation.] ‘“[A]
trial court is presumed to have been aware of and followed the applicable law.”
[Citations.]’ [Citation.]” (People v. Brown, supra, 147 Cal.App.4th at pp. 1228–1229.)
A trial court has broad discretion to decide whether to run prison terms on multiple
offenses concurrently or consecutively. (People v. Clancey (2013) 56 Cal.4th 562, 579.)
The court “shall state the reasons for its sentence choice on the record at the time of
sentencing.” (Pen. Code, § 1170, subd. (c).) “[I]n the absence of a clear showing that its
sentencing decision was arbitrary or irrational, a trial court should be presumed to have
acted to achieve legitimate sentencing objectives and, accordingly, its discretionary
28.
determination to impose consecutive sentences ought not be set aside on review.”
(People v. Giminez (1975) 14 Cal.3d 68, 72.)
California Rules of Court, rule 4.425 lists factors affecting whether concurrent or
consecutive sentences should be imposed, which include whether: “(1) The crimes and
their objectives were predominantly independent of each other; [¶] (2) The crimes
involved separate acts of violence or threats of violence; or [¶] (3) The crimes were
committed at different times or separate places, rather than being committed so closely in
time and place as to indicate a single period of aberrant behavior.”
“[C]omplaints about the manner in which the trial court exercises its sentencing
discretion and articulates its supporting reasons cannot be raised for the first time on
appeal.” (People v. Scott (1994) 9 Cal.4th 331, 356 (Scott).) “The reviewing court cannot
substitute its reasons for those omitted or misapplied by the trial court, nor can it reweigh
valid factors bearing on the decision below.” (Id. at p. 355.)
“[T]he Scott rule applies when the trial court ‘clearly apprise[s]’ the
parties ‘of the sentence the court intends to impose and the reasons that
support any discretionary choices’ [citation], and gives the parties a chance
to seek ‘clarification or change’ [citation] by objecting to errors in the
sentence. The parties are given an adequate opportunity to seek such
clarifications or changes if, at any time during the sentencing hearing, the
trial court describes the sentence it intends to impose and the reasons for
the sentence, and the court thereafter considers the objections of the parties
before the actual sentencing. The court need not expressly describe its
proposed sentence as ‘tentative’ so long as it demonstrates a willingness to
consider such objections.… [¶] It is only if the trial court fails to give the
parties any meaningful opportunity to object that the Scott rule becomes
inapplicable.” (People v. Gonzalez (2003) 31 Cal.4th 745, 752.)
C. Analysis
Defendant asserts he “was denied an informed exercise of sentencing discretion”
because the court imposed consecutive sentences “without any consideration of
concurrent sentences, despite abundant mitigating circumstances.” He cites his age (67),
the lack of a prior record, his health issues, and the letters regarding his character
29.
submitted on his behalf at sentencing as mitigating factors. In a related contention
discussed further post, defendant asserts his counsel was ineffective in failing to advocate
for concurrent sentences. The People respond defendant forfeited his challenge to the
court’s decision to run his sentences consecutively by failing to object. They further
contend his claim fails on its merits because he did not establish the court did not know it
had discretion to sentence him concurrently.
We agree with the People that defendant forfeited his sentencing claim because he
did not object at any time during the sentencing hearing. (Scott, supra, 9 Cal.4th at p.
353; People v. Gonzalez, supra, 31 Cal.4th at p. 751; accord, People v. Boyce (2014) 59
Cal.4th 672, 731 [defendant forfeited claim that trial court had given no reasons for
imposing consecutive sentences because court “adjourned after asking counsel if there
was anything else to discuss,” and “[a]t no time did defense counsel lodge his objections
to the imposition of consecutive sentences, or request a continuance”]; People v. Sperling
(2017) 12 Cal.App.5th 1094, 1100–1101 [defendant waived claim court failed to consider
several mitigating factors by failing to object at sentencing hearing]; People v. Kelley
(1997) 52 Cal.App.4th 568, 582 [Scott forfeiture doctrine applies where defendant
complains for first time on appeal trial court failed to consider relevant mitigating
factors]; People v. Ortiz (2012) 208 Cal.App.4th 1354, 1372, fn. 6 [“To the extent Ortiz
… argues the trial court erred by making the three-year term consecutive to his life term,
… he waived any error by not timely and specifically objecting to that purported error”].)
Irrespective, this claim would fail on its merits. As discussed, generally, “‘“a trial
court is presumed to have been aware of and followed the applicable law.”’” (People v.
Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 398.) And here, nothing in the record
affirmatively shows the trial court was unaware of its discretion to sentence defendant to
concurrent sentences. (See People v. Lee (2017) 16 Cal.App.5th 861, 866–867 [error will
not be presumed absent affirmative showing trial court misunderstood its
sentencing discretion].) To the contrary, the probation report stated consecutive
30.
sentences were not mandatory but recommended them on the grounds the crimes and
their objectives were predominantly independent of each other; they were committed at
different times or separate places, rather than being committed so closely in time and
place as to indicate a single period of aberrant behavior; and they “involved separate acts
of violence or threats of violence.” And, at the sentencing hearing, the court expressly
stated it considered the presentence probation report along with the statements submitted
by the defense and the victims’ impact statements and testimonies in making its
sentencing decision.
Nor does the record clearly establish the trial court’s decision to run the sentences
on each count consecutively was arbitrary or irrational. The court is presumed to have
acted to achieve legitimate sentencing objectives in sentencing defendant to consecutive
terms. (See People v. Carmony (2004) 33 Cal.4th 367, 376–377 [“‘“[t]he burden is on
the party attacking the sentence to clearly show that the sentencing decision was
irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is
presumed to have acted to achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set aside on review”’”].)
Accordingly, we reject defendant’s contention.
VII. Defendant Fails to Establish Ineffective Assistance of Counsel
Defendant next argues his counsel provided ineffective assistance at the
sentencing hearing. We disagree.
A. Standard of Review
A defendant claiming ineffective assistance of counsel must satisfy the two-part
test of Strickland v. Washington requiring a showing of counsel’s deficient performance
and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) As to
deficient performance, a defendant “must show that counsel’s representation fell below
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an objective standard of reasonableness” measured against “prevailing professional
norms.” (Id. at p. 688.)
In evaluating trial counsel’s actions, “a court must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance.”
(Strickland, supra, 466 U.S. at p. 689; see People v. Dennis (1998) 17 Cal.4th 468, 541.)
Thus, a defendant must overcome the presumption that the challenged action might be
considered sound trial strategy under the circumstances. (Strickland, supra, at p. 689;
Dennis, supra, at p. 541.) “Reasonableness must be assessed through the likely
perspective of counsel at the time.” (People v. Ochoa (1998) 19 Cal.4th 353, 445.)
The prejudice prong requires a defendant to establish that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” (Strickland, supra, 466 U.S. at p. 694.) “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” (Ibid.)
B. Applicable Law
“[S]crutiny of counsel’s performance must be highly deferential. It
is all too tempting for a defendant to second-guess counsel’s assistance
after conviction or adverse sentence, and it is all too easy for a court,
examining counsel’s defense after it has proved unsuccessful, to conclude
that a particular act or omission of counsel was unreasonable. [Citation.]
A fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time. Because of the difficulties inherent
in making the evaluation, a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action ‘might be considered sound
trial strategy.’ [Citation.]” (Strickland, supra, 466 U.S. at p. 689.)
On direct appeal, when no explanation for counsel’s conduct can be found in the
record, “we must reject the claim [of ineffective assistance of counsel] on appeal unless
counsel was asked for and failed to provide a satisfactory explanation, or there simply
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can be no satisfactory explanation.” (People v. Scott (1997) 15 Cal.4th 1188, 1212; see
People v. Hernandez (2004) 33 Cal.4th 1040, 1053.)
C. Analysis
Defendant asserts his counsel was ineffective by (1) failing to be familiar with
sentencing alternatives available to the court, (2) not ensuring the court was aware of its
sentencing alternatives, (3) conceding the court had to “‘follow the statutory sentencing
structure,’” (4) asking “only that mitigating letters be included in his file for forwarding
to the Department of Corrections,” (5) not advocating for concurrent sentences, and (6)
not ensuring the court was aware of and that it exercised its informed discretion in
sentencing. He argues he was prejudiced as a result because “[m]itigating personal
factors abounded.” We cannot conclude defendant has met his burden of establishing
ineffective assistance of counsel.
As the reviewing court, we must defer to counsel’s reasonable tactical decisions
and indulge the strong presumption that counsel’s conduct at the sentencing hearing fell
within the wide range of reasonable professional assistance. (See People v. Hinton
(2006) 37 Cal.4th 839, 876.) And here the record does not disclose counsel’s reasons for
acting or failing to act in the manner challenged. (People v. Maury (2004) 30 Cal.4th
342, 389 [“To the extent the record on appeal fails to disclose why counsel acted or failed
to act in the manner challenged, we will affirm the judgment unless counsel was asked
for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation”]; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 [same].)
There is also no evidence defense counsel failed to familiarize himself with the available
sentencing alternatives.
But the record does reflect the trial court had information regarding the available
sentencing alternatives and defendant’s age, health, and lack of prior record before it as
detailed in the probation report. Specifically, the probation report states defendant’s
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health was “Poor”; he was considered “disabled”; he previously had a heart attack, and
was taking medications for diabetes, high blood pressure, and a hernia. It also lists as an
aggravating factor that “defendant took advantage of a position of trust or confidence to
commit the offense,” and, as a circumstance in mitigation, that defendant had no known
prior record of criminal conduct. And, as discussed, the report further advised the court
that consecutive sentencing was not mandatory. The record from the sentencing hearing
reflects the court reviewed and considered the report and letters submitted by the defense
prior to sentencing defendant. On this record, we cannot conclude defendant has
overcome the strong presumption that defense counsel’s comments at sentencing or his
failure to further discuss the sentencing alternatives and circumstances in mitigation at
the sentencing hearing fell outside of the range of reasonable professional assistance.
Moreover, a claim of ineffective assistance of counsel can be disposed of without
inquiry into counsel’s possible tactical reasons for his or her actions if the reviewing
court can determine that even if there was attorney error it was not prejudicial. (People v.
Kipp (1998) 18 Cal.4th 349, 366–367; Strickland, supra, 466 U.S. at p. 697.) Here, even
assuming deficient performance by defense counsel at the sentencing hearing, the record
does not demonstrate a reasonable probability that absent counsel’s statements at
sentencing and his alleged failure to emphasize the mitigating evidence and the
sentencing alternatives, the result of the proceeding would have been different.
As discussed, the record establishes the court had the letters submitted on
defendant’s behalf and the information regarding defendant’s age, his poor health, and his
lack of a prior record before it in the presentence probation report. The presentence
report also informed the court consecutive sentences were not mandatory. And the court
expressly stated it considered the report before sentencing defendant.
Under these circumstances, we cannot conclude it is reasonably probable the court
would have rendered a different conclusion had defense counsel argued the specifics of
the sentencing alternatives and further emphasized defendant’s age, health, lack of a prior
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record, and character evidence. (See People v. Jacobs (2013) 220 Cal.App.4th 67, 76
[defendant not prejudiced by counsel’s alleged failure to sufficiently argue mitigating
factors at sentencing where circumstances in mitigation were reflected in probation
reports and defendant did not identify any mitigating circumstances of which the court
was unaware or which would have reasonably supported a lower sentence]; accord,
People v. Maury, supra, 30 Cal.4th at p. 389 [“prejudice must be affirmatively proved;
the record must demonstrate ‘a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different”].)
Accordingly, we cannot conclude defendant has met his burden of establishing he was
prejudiced by defense counsel’s alleged ineffectiveness.
We reject defendant’s final contention.
DISPOSITION
The judgment is affirmed.
PEÑA, J.
WE CONCUR:
FRANSON, Acting P. J.
DE SANTOS, J.
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