People v. Jasso CA4/2 ( 2015 )

Filed 12/18/15 P. v. Jasso CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E059476
v. (Super.Ct.No. RIF1301760)
JUAN MANUEL JASSO, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Jeffrey Prevost, Judge.
Affirmed with directions.
Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Quisteen S.
Shum, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Juan Manuel Jasso, Jr., appeals his conviction on multiple
counts of sexual abuse of his daughter, G.J., and his stepdaughter, A.M.1 He asserts
multiple evidentiary errors as well as instructional and sentencing errors. We find no
prejudicial error, and we will affirm the judgment. We will, however, remand the matter
for further sentencing proceedings.
PROCEDURAL HISTORY
By information filed on April 17, 2103, defendant was charged in counts 1
through 7 with the following offenses against G.J.:
Counts 1 through 6: Lewd and lascivious act by force, violence, duress, menace,
and fear of immediate bodily injury on a child under the age of 14. (Pen. Code,2 § 288,
subd. (b)(1).) All offenses allegedly took place between approximately June 2011 and
May 2012.
Count 7: Aggravated sexual assault on a child under the age of 14 and seven or
more years younger than defendant, by means of rape by force, violence, duress, menace,
and fear of immediate bodily injury, in violation of section 261, subdivision (a). (§ 269,
subd. (a)(1).)
1 Defendant was charged with offenses against all four of his children but was
convicted only as to his daughter and stepdaughter. The information identified
defendant’s daughter, the victim alleged in counts 1 through 7, as “Jane Doe No. 1
(G.J.).” It identified his stepson, the victim alleged in counts 8 through 12, as “John Doe
No. 1 (A.J.).” It identified his stepdaughter, the victim alleged in counts 13 through 16,
as “Jane Doe No. 2 (A.M.).” It identified his son, the victim alleged in count 17, as “John
Doe No. 2 (J.J.).” The parties refer to them by their initials, and we will do the same.
2 All further statutory citations refer to the Penal Code unless another code is
specified.
2
The information charged defendant with the following offenses against A.J.:
Counts 8 through 12: Lewd and lascivious act by force, violence, duress, menace,
and fear of immediate bodily injury on a child under the age of 14. (§ 288, subd. (b)(1).)
All offenses allegedly took place between approximately May 2003 and May 2005.
The information charged defendant with the following offenses against A.M.:
Counts 13 and 14: Aggravated sexual abuse of a child under the age of 14 and
seven or more years younger than defendant, based on sexual penetration in violation of
section 289, subdivision (a) by force, violence, duress, menace, and fear of immediate
bodily injury on a child under the age of 14. (§ 269, subd. (a)(5).) Both offenses
allegedly took place between approximately January 2006 and April 2006.
Counts 15 and 16: Lewd and lascivious act by force, violence, duress, menace,
and fear of immediate bodily injury on a child under the age of 14. (§ 288, subd. (b)(1).)
Both offenses allegedly took place between approximately January 2006 and April 2006.
The information charged defendant with the following offense against J.J.:
Count 17: Willful infliction of cruel and inhuman corporal punishment and injury
resulting in a traumatic condition upon a child. (§ 273d, subd. (a).) The offense allegedly
took place between approximately November 1 and November 30, 2011.
The information also alleged that in the commission of counts 1 through 16,
defendant committed the offenses against multiple victims, within the meaning of section
667.61, subdivision (e)(4).
A jury convicted defendant on counts 1 through 7 and 13 through 16. It found the
multiple victim allegation true. The jury was unable to reach verdicts on counts 8
3
through 12 and 17, and the court declared a mistrial as to those counts. At sentencing, the
court dismissed those counts in the interest of justice.
Defendant was sentenced to five consecutive terms of 15 years to life and six
consecutive terms of 25 years to life. He filed a timely notice of appeal.
FACTS3
Defendant began dating A.R. in 1997. A.R. had a daughter, A.M., and a son, A.J.
When defendant and A.R. were married in February 1999, A.M. was six and A.J. was
three. Defendant and A.R.’s daughter, G.J., was born in August 1999, and their son, J.J.,
was born in January 2002.
At the end of March 2006, defendant told A.R. that he had disciplined A.M. by
“strip[ing] her down naked” and spanking her because she had received an “F” on her
report card. A.R. was upset because A.M. was 13 years old and was too old to be
spanked naked. The next afternoon, when she came home after school, A.M. told her
mother that defendant had made her take off her clothes and spanked her, and that he had
“touched” her. A.R. called defendant and confronted him with what A.M. had told her.
Defendant arrived home shortly afterward, “in a rage.” He yelled and screamed at A.M.
and demanded that she take back her accusation. A.M. refused and said she was not
lying. Defendant got his gun from his office and pointed it at A.R. and A.M. He pointed
it at A.M.’s face and said he should “just . . . kill her right now.” He then told A.M. to
get out of the house. A.M. left, but later came back into the house. Defendant went into
3 Because defendant was not convicted on the charges pertaining to A.J. and J.J.,
we will omit the details concerning those alleged offenses.
4
his office and stayed there all night. The next morning, A.R. took all four children and
went to her grandparents’ house in Coalinga.
A.R. spoke to law enforcement shortly after she and the children moved to
Coalinga.4 She did not let defendant know where they were for two weeks because she
was afraid of what he might do to them. However, she eventually relented and allowed
him to take the other three children for weekend visits. The other children did not know
about defendant’s sexual abuse of A.M. or about the gun incident, and they missed him.
After about six months, A.R. allowed G.J., A.J. and J.J. to live with defendant in Mira
Loma, while she and A.M. stayed in Coalinga. She tried to visit the children every
weekend, but it became too expensive. She spoke to them on the phone every night.
A.R. and defendant were divorced in 2007. A.R. moved to Fresno that year. A.M.
went to live with her grandmother in Tulare, and later went to live with her grandfather in
Montana. At trial, A.M. testified that defendant had spanked her while she was naked on
three to five occasions, and that during the spankings, he would touch her “around” her
vaginal opening. She did not know whether he used his finger or his penis because she
was bent over with her back to him and could not see what he was doing.
In 2012, G.J., who was then 12 years old, asked her mother why she had left
defendant. A.R. told her about A.M.’s accusation, which she had not previously shared
with the other children. G.J. then disclosed that defendant had been touching her as well.
4 The Fresno County Sheriff’s Office interviewed A.M. at the request of the
Riverside County Sheriff’s Department, which investigated the claim. The investigation
was closed when A.M. recanted.
5
She said that defendant had kissed her “with a tongue” on one occasion but was reluctant
to go into further details. A.R. asked G.J. to write down all the things defendant did to
her. G.J. did so, and gave A.R. the writing the next day. A.R. reported G.J.’s allegations
to the Riverside County Sheriff’s Department.
At trial, G.J. described five incidents in which defendant sexually abused her. The
first incident, during the summer between G.J.’s sixth and seventh grade school years,
defendant made G.J. sit on his lap, facing him, with her legs straddling him. He rubbed
her back, put his hands on her breasts and kissed her all over her face. During the second
incident, that same summer, defendant was lying on the couch when G.J. bent over to
kiss him goodnight. He pulled her down on top of him and started rubbing her back and
her breasts under her tank top. When she said she needed to get her eye medication, he
let her get up. He then bent her over and pushed his crotch against her bottom. She
could feel his erection. The third incident occurred right after G.J. began seventh grade.
When she showed him a mosquito or spider bite on her arm, defendant thrust his forearm
between her legs and grabbed her bottom, pulling her closer to him. The fourth incident
also occurred shortly after G.J. had begun seventh grade. Defendant got into bed with her
and put his arms around her. He rubbed her back, bottom and breasts under her clothes,
kissed her neck, and then began rubbing her crotch over her clothes. He asked if it felt
good. He continued rubbing all over her body, then finally left. The fifth incident
occurred in November 2011, also during G.J.’s seventh grade school year. Defendant
again got into bed with her, kissing and rubbing her body. He turned her onto her back,
6
rubbed her crotch and then pulled down her shorts and underwear and had sexual
intercourse with her.
A.R. and the children testified that defendant was a strict disciplinarian and that
they lived in fear of his temper. He was mercurial and “could flip on a dime,” changing
in an instant from being “fine” to being angry. The entire family “walk[ed] on eggshells”
around defendant. When defendant became angry, the children would scatter, because
they knew someone “was going to get it.” If defendant came home in a bad mood, the
children would go to their rooms immediately to avoid getting in trouble for something.
He was often “mad” and “mean.” He would verbally abuse the children—for example,
calling A.M. his “black slave” and “bitch” and making G.J. feel “worthless” or as though
she was just a burden to him—and would slap, punch or spank them for any misconduct.
If one child got into trouble, defendant would spank them all. He would hit them with a
belt, sometimes while they were naked, and would often make them get on their knees
and face the wall. He once threw a chair at A.J. and hit him with it. He once threatened
G.J. that he would make her blind if she rolled her eyes at him, and on another occasion,
verbally abused her, hit her on the head and told her he should leave her “dead in a ditch
somewhere” because she was rude to his girlfriend. He called her a “retard” and told her
he did not want her to be a “slut” like her mother, who had had her first two children out
of wedlock.
7
LEGAL ANALYSIS
1.
IT WAS NOT ERROR TO EXCLUDE EVIDENCE OF A PRIOR INCONSISTENT
STATEMENT BY WITNESS DEBRA NEAL
Defendant contends that the trial court deprived him of his due process right to
present a defense when it improperly sustained hearsay objections to testimony
concerning a prior inconsistent statement by a prosecution witness concerning G.J.
The issue arose as follows: Detective Boyd, the investigator in this case, referred
G.J. to Debra Neal, a registered nurse, for a sexual assault exam. Neal testified for the
prosecution that her examination did not show any scarring to G.J.’s hymenal ring. She
testified that her examination was consistent with sexual abuse, based on the history G.J.
gave. She testified that it is rare to find any evidence of injuries when the examination is
performed several months after penetration reportedly occurred. She examined G.J. in
June 2012; the incident in which G.J. reported that defendant had sexual intercourse with
her occurred in November 2011. On cross-examination, defense counsel asked Neal if
she had spoken to Detective Boyd, the investigator on the case, after her examination.
Neal first denied having spoken to Boyd after examining G.J., and then stated that she did
not recall whether she had. Defense counsel did not ask her about any statement she
might have made to Boyd after the examination. Defense counsel later called Boyd as a
defense witness. He attempted to ask Boyd whether, after the exam, Neal reported to him
that G.J. was a virgin. He also attempted to ask Boyd whether he had testified to that
8
effect at the preliminary hearing. The court sustained hearsay objections to both
questions.
Out of the presence of the jury, defense counsel read to the court Boyd’s
preliminary hearing testimony, in which Boyd stated that after the examination, Neal had
called him to discuss the findings. Boyd stated that Neal told him that the findings were
“normal” and that G.J. was a virgin. Although counsel characterized his reading of
Boyd’s testimony as an offer of proof, he did not specify either what it was intended to
prove or the grounds upon which Boyd’s testimony would be admissible. The court
again sustained the prosecutor’s objection that Boyd’s prior testimony was hearsay.
In his motion for a new trial, defense counsel asserted that it was error to exclude
Boyd’s prior testimony because the entire case as to G.J. would be undermined “if [G.J.]
was not raped, because if [G.J.] lied about the rape she should not be believed on
anything she said.” The trial court denied the motion.
Defendant now contends that his attorney’s questioning of Boyd was an attempt to
elicit testimony of a prior inconsistent statement by Ms. Neal and that his attorney’s
response to the hearsay objections and his new trial motion were sufficient to apprise the
court that he was relying on the prior inconsistent statement exception to the hearsay rule
as the basis of admissibility, or that if counsel did not sufficiently so apprise the court,
defendant was denied his constitutional right to the effective assistance of counsel.
We will assume, without deciding, that defense counsel adequately apprised the
court that his purpose in questioning Boyd was to elicit a prior inconsistent statement by
Neal because even if Boyd’s testimony might otherwise have been admissible for that
9
purpose, it was not admissible because defense counsel did not comply with the
requirements of Evidence Code section 770.
Evidence Code section 1235 provides that evidence of an inconsistent statement is
not made inadmissible by the hearsay rule if the statement is inconsistent with the
witness’s testimony at the trial or hearing and “is offered in compliance with Section
770.” Evidence Code section 770 provides: “Unless the interests of justice otherwise
require, extrinsic evidence of a statement made by a witness that is inconsistent with any
part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so
examined while testifying as to give him an opportunity to explain or to deny the
statement; or [¶] (b) The witness has not been excused from giving further testimony in
the action.”
When Neal testified, defense counsel did not ask her about the statement allegedly
attributed to her at the preliminary hearing by Detective Boyd. Rather, he merely asked
her if she spoke to Boyd after she rendered her report. She first denied having done so
and then stated that she did not recall. She was given no opportunity to explain or deny
any statement. After redirect examination, the parties agreed that Neal could be excused.
Defense counsel did not ask that she be subject to recall. The opportunity to explain or
deny a prior inconsistent statement is the sine qua non of admissibility under Evidence
Code section 770. (People v. Alexander (2010) 49 Cal.4th 846, 908-909, 910.)
Accordingly, because defense counsel did not ask Neal about her purported statement
before Neal was excused, defendant’s later efforts to examine Boyd about Neal’s
10
statements to him, or about his prior testimony concerning her statements to him, were
barred by the hearsay rule.
Defendant also contends that if counsel failed to adequately apprise the court of
the grounds for admissibility of Boyd’s testimony, he was deprived of his right to the
effective assistance of counsel. As we have stated, even if counsel had asserted to the
court that Boyd’s testimony was admissible as evidence of a prior inconsistent statement
by Neal, the evidence would not have been admissible because counsel failed to comply
with Evidence Code section 770. The question, then, is whether counsel’s failure to
comply with Evidence Code section 770 by asking Neal whether she told Boyd that G.J.
was a virgin constituted ineffective assistance by depriving defendant of potentially
exculpatory evidence.
To prevail on a claim of ineffective assistance of counsel, a defendant has the
burden to show both that his trial attorney’s representation fell below prevailing objective
standards of competence and that he was prejudiced by the attorney’s act or omission.
(Strickland v. Washington (1984) 466 U.S. 668, 691-692, 693-694.) An appellate court
need not decide whether counsel’s performance was deficient if the defendant fails to
demonstrate prejudice. (People v. Boyette (2002) 29 Cal.4th 381, 430-431; Strickland v.
Washington, at p. 700.)
In his reply brief, defendant contends that he was prejudiced by the exclusion of
Boyd’s testimony. Rather than summarize his argument, we quote it in full:
“Respondent next argues . . . that any error was non-prejudicial, based on the premise
that Ms. Neal’s statement to Detective Boyd that G.J. was a virgin was not inconsistent
11
with her trial testimony that her findings were ‘normal.’ [Citation.] This argument
ignores Ms. Neal’s testimony that because healing occurs very quickly after the cells of
the hymen of a young girl have been ‘disrupted’ by sexual intercourse, even if there has
been bleeding, an examiner would be unable to discern that disruption in the cells six
months later. [Citation.] The jury almost certainly would have understood this testimony
to indicate that even if there had been penetration, Ms. Neal would have been unable to
see signs of that by the time she performed her exam.
“That understanding is much different from what Ms. Neal told Detective Boyd.
Her statement to Boyd that G.J. was a virgin indicated her belief that she would have
been able to tell if penetration had occurred, and her conclusion from her examination
was that no penetration had occurred. Thus, Ms. Neal’s statement to Detective Boyd
directly contradicted her testimony at trial that she would not have been able to determine
whether or not G.J. was a virgin.
“The contradiction in Ms. Neal’s statements was information the jury should have
been allowed to hear, in order to assess the credibility of both Ms. Neal and G.J. The
excluded evidence was especially important as to the charge of rape in count 7.[5] In her
interviews in May and June of 2012 with the forensic examiner and with Ms. Neal, G.J.
seemed to indicate she believed there had been no penetration, or at least that she was
unsure [citation], although she did also speak of the bleeding she experienced. [Citation.]
5 In count 7, defendant was charged with aggravated sexual assault of a child in
violation of section 269, subdivision (a)(1), based on rape by force in violation of section
261, subdivision (a).
12
However, roughly a year later, at trial, she stated with certainty that appellant had placed
his penis in her vagina. [Citation.]
“Thus, G.J.’s statements, alone, raised a significant question as to exactly what
had occurred. Ms. Neal’s statement to Detective Boyd was important to the jury’s full
consideration of that issue.” (Bold and italics omitted.)
While full vaginal penetration is not necessary to prove a violation of Penal Code
section 269, subdivision (a)(1) based on forcible rape,6 Neal’s statement to Boyd that G.J.
was a virgin might have had significant impeachment value, for the reasons defendant
describes. We cannot make that determination, however, because defense counsel’s
failure to comply with Evidence Code section 770 leaves us with an incomplete record.
We cannot speculate as to what Neal might have said if she had been asked to explain
that statement. Upon being confronted with Boyd’s preliminary hearing testimony, she
might, for example, have recalled having spoken to him but denied having used the word
“virgin.” Or, she might have provided an explanation that addressed the apparent
contradiction. Because we cannot determine on the basis of the record before us whether
trial counsel’s failure to comply with the requirements for admissibility of the prior
statement was prejudicial, we must conclude that defendant has failed to meet his burden
on appeal. (Strickland v. Washington, supra, 466 U.S. at p. 700.)
6 For purposes of rape, “Any sexual penetration, however slight, is sufficient to
complete the crime.” (§ 263.) This includes penetration of the external female genitalia.
(People v. Quintana (2001) 89 Cal.App.4th 1362, 1365-1372; People v. Karsai (1982)
131 Cal.App.3d 224, 232, overruled on other grounds in People v. Jones (1988) 46
Cal.3d 585, 600, fn. 8.)
13
2.
THE COURT’S ERRONEOUS EXCLUSION OF EVIDENCE PERTAINING TO G.J.’S
STATE OF MIND WAS NOT PREJUDICIAL
The prosecution called two friends of G.J. to testify that G.J. informed them that
defendant had been abusing her sexually. Direct examination of both witnesses was
limited to G.J.’s complaint of sexual abuse. On cross-examination of the first witness,
defense counsel asked her if G.J. had complained to her that defendant made her cook,
clean and take care of her brother or that he treated her brother better than he treated her.
The court sustained the prosecutor’s hearsay objections. Defense counsel asked to make
a record; the court stated that he could address the issue later, outside the presence of the
jury.
Out of the presence of the jury, defense counsel stated that he wanted to ask the
first witness whether G.J. had complained to her about defendant treating her brother
better than he treated her, if he did not let G.J. wear the kind of clothing she wanted to
wear or let her get her nails done the way she wanted, and if defendant’s girlfriend was
mean to G.J. He wanted to ask those questions in furtherance of his position that G.J.
wanted to go live with her mother for reasons unrelated to sexual abuse. He admitted that
he did not know how the first witness would answer those questions.7 He stated that the
statements he hoped to elicit had nothing to do with the fresh complaint, but were offered
7This statement is a bit puzzling, since in the motion for new trial he provided
copies of statements that both witnesses had given to police, in which they described
G.J.’s complaints along those lines. He stated that he received them in discovery.
14
for the nonhearsay purpose of showing G.J.’s state of mind. The court stated that its prior
rulings on the hearsay objections would stand. Defendant did not attempt to ask the
second witness any similar questions, nor did he make an offer of proof concerning what
he expected her to say.
Defendant raised the issue again in his motion for new trial. He informed the
court that the statements he had hoped to elicit from the two witnesses were contained in
reports of interviews with the witnesses which had been provided in discovery. He stated
that he wanted to introduce them as inconsistent statements. In denying the motion, the
court said, “I agree with the People that the evidence of fresh complaint is admitted
[solely] with respect to the making of the complaint only, and the reference to any
inconsistent statements is beyond the scope of the admission of evidence for fresh
complaint.”
Defendant now contends that this was error, and that the evidence he sought to
elicit was admissible for the nonhearsay purpose of showing G.J.’s state of mind, i.e., that
she disliked the way her father treated her in general and fabricated the sexual abuse
allegations to persuade her mother to allow her to come live with her.
Under the fresh complaint doctrine, “proof of an extrajudicial complaint, made by
the victim of a sexual offense, disclosing the alleged assault, may be admissible for a
limited, nonhearsay purpose—namely, to establish the fact of, and the circumstances
surrounding, the victim’s disclosure of the assault to others—whenever the fact that the
disclosure was made and the circumstances under which it was made are relevant to the
15
trier of fact’s determination as to whether the offense occurred.” (People v. Brown
(1994) 8 Cal.4th 746, 749-750, 762-763 (Brown).)
Here, the prosecutor argued that the fresh complaint doctrine limits questioning of
the witnesses. She cited Brown, supra, 8 Cal.4th 746, for its holding that questioning
must be limited “to the fact that a complaint was made and to the circumstances
surrounding the making of the complaint.” (Id. at p. 762.) The trial court apparently
agreed that because both witnesses were called by the prosecution as fresh complaint
witnesses, defendant was barred from asking them any questions about other statements
G.J. might have made to them. This is incorrect. As Brown explains, that rule is for the
protection of the defendant: “So long as the evidence that is admitted is carefully limited
to the fact that a complaint was made, and to the circumstances surrounding the making
of the complaint, thereby eliminating or at least minimizing the risk that the jury will rely
upon the evidence for an impermissible hearsay purpose, admission of such relevant
evidence should assist in enlightening the jury without improperly prejudicing the
defendant.” (Ibid.) The defendant, however, is not so constrained: “[U]nlike the
prosecution, which generally cannot introduce or rely upon the details or substantive
content of the victim’s complaint, a defendant who believes that the contents of the
victim’s extrajudicial complaint may be useful to impeach the victim’s in-court testimony
(or other aspects of the prosecution’s case) generally is free to introduce and rely upon
the details of such a complaint as a prior inconsistent statement.” (Ibid.)
The fresh complaint doctrine is a red herring in this case, however. Defendant was
not seeking to question the first witness about details of G.J.’s disclosure to her of
16
defendant’s sexual abuse in order to impeach G.J. Rather, he was seeking to question her
about other complaints G.J. had made about her father’s treatment of her, in order to
allow the jury to infer that G.J. had made up the sexual abuse allegations as a means of
escaping from defendant’s controlling and abusive behavior. Contrary to the trial court’s
ruling, those statements were not hearsay. Hearsay is a statement made other than while
testifying as a witness, which statement is offered in the trial to prove the truth of the
matter asserted in the statement. (Evid. Code, § 1200, subd. (a).) A statement offered as
circumstantial evidence of a person’s state of mind is not hearsay if it is offered not to
prove the truth of the matter asserted but to explain the declarant’s conduct. (Rufo v.
Simpson (2001) 86 Cal.App.4th 573, 591.) The out-of-court statements the defense
sought to elicit in this case were not offered for their truth but for the nonhearsay purpose
of showing G.J.’s state of mind, i.e., that she was desperate to escape from defendant’s
household for reasons unrelated to sexual abuse.8 Accordingly, it was error to exclude
them on that basis.9
8Contrary to defendant’s contention in his motion for new trial, the complaints
G.J. made to both witnesses were not inconsistent statements; they did not contradict her
complaints of sexual abuse but were simply additional complaints on different subjects.
9 It is arguable that because defendant’s questions to the first witness were not
directed toward the circumstances of her disclosure of sexual abuse, they were outside the
scope of direct examination and objectionable on that basis. (People v. Foss (2007) 155
Cal.App.4th 113, 127.) The prosecutor did not object on that ground, however. Even if
she had, however, defendant could have called both witnesses as his own witnesses to
testify to G.J.’s complaints. The trial court’s ruling on the hearsay objections rendered it
futile to do so, however.
17
The error was harmless, however. Prejudice from the erroneous admission or
exclusion of evidence is reviewed under the standard of People v. Watson (1956) 46
Cal.2d 818. (People v. Bradford (1997) 15 Cal.4th 1229, 1325.) Under that standard, the
conviction will be reversed only if it is reasonably probable that an outcome more
favorable to the defendant would have resulted in the absence of the error. (Ibid.)10 The
record is replete with evidence that defendant was a harsh disciplinarian with a hair-
trigger temper who chastised his children in an abusive manner for the smallest
infractions, calling them names and demeaning them and frequently slapping, punching
and spanking them. G.J. testified that she was afraid her father would beat her for any
number of innocuous acts, such as texting her mother or talking too much about her
mother. She had wanted to live with her mother since she was eight years old, long
before the molestation began. The additional evidence that G.J. complained to the first
witness, i.e., her father made her do chores, favored her brother, and would not let her get
her nails done or buy the kind of clothes she wanted to wear, would have added little in
the way of a basis for arguing that G.J. fabricated her claim of sexual abuse as a ploy to
escape from defendant. Accordingly, defendant was not prejudiced by its exclusion.
10 Defendant contends that the court’s exclusion of this evidence amounted to a
refusal to allow him to present a defense, in violation of his constitutional right to due
process. We disagree. Where a ruling does not entirely preclude a defendant from
presenting a particular defense but merely rejects certain evidence concerning the
defense, no constitutional violation occurs. (People v. Bradford, supra, 15 Cal.4th at
p. 1325.) As we discuss, there was a great deal of evidence that would have permitted the
jury to conclude that G.J. fabricated her allegations of sexual abuse in order to escape
from defendant’s household. The exclusion of additional evidence does not amount to a
constitutional violation. (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1317-1318.)
18
3.
DEFENDANT WAS NOT PREJUDICED BY THE ERRONEOUS EXCLUSION
OF A.M.’S 2006 STATEMENT TO POLICE
A.M. first reported that defendant sexually abused her in 2006. An investigation
ensued, but no charges were filed. Defendant wished to have A.M.’s statement to Andrea
McCormick, a Fresno sheriff’s detective who interviewed her in 2006, admitted into
evidence. He subpoenaed the recording of the interview and McCormick’s report.
McCormick testified that she had sent a copy of her report and the tape to the Riverside
County Sheriff’s Department. Her department did not keep a copy of the tape. The
Riverside County Sheriff’s Department destroyed the tape sometime after the
investigation was closed. McCormick testified that her report, which she wrote while
listening to the audio recording, accurately reflected what A.M. had said. However, she
had no independent recollection of what A.M. had said during the interview, and reading
the report did not refresh her recollection.
Defendant then made an offer of proof as to what McCormick would say if
“allowed to testify what [A.M.] told her.” According to defendant’s offer of proof, the
report stated that A.M. had told McCormick that she did not like living in “LA” and
wanted to get away, so she “made up this one lie that [defendant] was touching me and
stuff like that so we could just move.” The court sustained the prosecutor’s hearsay
objections. Defendant now contends that A.M.’s statement to McCormick was
admissible as a past recollection recorded pursuant to Evidence Code section 1237, and
19
that because A.M.’s statement to McCormick was inconsistent with her trial testimony,
the exclusion was prejudicial.
The Attorney General contends that the issue is waived because defense counsel
did not state on the record any basis for the admission of the contents of McCormick’s
report.11 Again, however, defendant asserts that if the issue was not preserved for
review, he received constitutionally ineffective assistance of trial counsel. Accordingly,
we will address the merits of the argument.
Evidence Code section 1237 permits evidence of a witness’s past statement “if the
statement would have been admissible if made by him while testifying, the statement
concerns a matter as to which the witness has insufficient present recollection to enable
him to testify fully and accurately, and the statement is contained in a writing which:
[¶] (1) [w]as made at a time when the fact recorded in the writing actually occurred or
was fresh in the witness’[s] memory; [¶] (2) [w]as made (i) by the witness himself or
under his direction or (ii) by some other person for the purpose of recording the
witness’[s] statement at the time it was made; [¶] (3) [i]s offered after the witness testifies
that the statement he made was a true statement of such fact; and [¶] (4) [i]s offered after
the writing is authenticated as an accurate record of the statement.” (Evid. Code, § 1237,
subd. (a).) If the court concludes that the statement should come in under subdivision (a),
11 In the motion for a new trial, it was asserted that “the evidence of the facts in
the report” was admissible under Evidence Code section 1237, as a past recollection
recorded. The basis for admission of excluded evidence must be brought to the trial
court’s attention at the time it was offered, however. (People v. Ervine (2009) 47 Cal.4th
745, 783.)
20
the writing may be read into evidence, but the writing itself may not be received into
evidence unless offered by an adverse party. (Evid. Code, § 1237, subd. (b).)
Defendant contends that McCormick’s report was admissible to show that A.M.
made statements which were inconsistent with her testimony at trial. He argues that
McCormick’s report is admissible under Evidence Code section 1237 as McCormick’s
past recollection recorded, i.e., McCormick’s recollection of what A.M. said to her.
Defendant relies on People v. Sam (1969) 71 Cal.2d 194. In that case, in a
footnote, our Supreme Court stated: “As Officer Meraz did not recall defendant’s exact
statement but did acknowledge the correctness of the police report, defendant’s statement
was properly admitted as past recollection recorded. (Evid. Code, § 1237.) The People
now assert that if the report of defendant’s statement was admissible on this basis, the
report of [witness] Tubby’s statement should likewise have been admissible. This
contention completely overlooks the fact that both statements involved multiple hearsay
objections. The past recollection recorded exception only alleviated the fact that Officer
Meraz’ written report was hearsay as to the statements therein by Officer Meraz, and in
effect allowed the report to ‘testify’ in place of the officer who wrote it. This still left the
statements to the officer by the parties as hearsay declarations. No specific reason was
given for the admission of defendant’s statement, and it is not in issue on appeal.
Tubby’s statement to Meraz was admitted as a prior inconsistent statement. For the
latter to have been past recollection recorded as to Tubby’s words to Officer Meraz as
well as the officer’s words in the report, Tubby as well as Meraz would have had to
acknowledge the truth and accuracy of the written statement. This Tubby was unable or
21
unwilling to do. Therefore the report could properly ‘testify’ in place of Meraz, but not
in place of Tubby.” (People v. Sam, at p. 208, fn. 3, last italics added.)
We find this footnote more than a little opaque, and it is far from clear that it
supports defendant’s position. Nevertheless, defendant’s position as to the admissibility
of McCormick’s report12 is fully consistent with Evidence Code section 1237. As noted
above, McCormick testified that her report, which she wrote while listening to the audio
recording, accurately reflected what A.M. had said. However, she had no independent
recollection of what A.M. had said during the interview, and reading the report did not
refresh her recollection. Accordingly, the report qualifies as past recollection recorded as
to what A.M. told McCormick. However, because the inconsistencies between A.M.’s
testimony and her statement to McCormick were in fact presented to the jury, the
exclusion of McCormick’s report was not prejudicial.
When A.M. testified on direct, she acknowledged that she had retracted her
accusation at some point, apparently in 2006, telling an unidentified officer that the
sexual abuse she had alleged did not happen, and that she had made it up. She said that
she retracted her accusation because she did not want to talk about it anymore and did not
want people thinking about her “that way.” At trial, she admitted that in 2006, she
wanted to get out of defendant’s house, but she maintained that she told the truth when
she told her mother that defendant was touching her. She said everyone in the family
knew how badly she was being treated without reference to any sexual abuse and that she
12 By admissible, we mean that it could have been read into evidence, not that the
report itself could be admitted into evidence. (See Evid. Code, § 1237, subd. (b).)
22
did not need “to make up something all stupid to get out of the house.” On cross-
examination, she testified that when she spoke to Detective Boyd in 2012, she told Boyd
that the reason she had told other officers in 2006 that the sexual abuse did not happen
was that defendant pointed a gun at her and she was in fear. She stated that this was one
reason she recanted, and that the other reason was that she “wanted to get out of there,”
apparently referring to the interview with McCormick. She then testified that she did not
recall speaking to McCormick in Fresno in 2006. However, she acknowledged that she
“probably did” tell a female detective in Fresno that she wanted to live near her father
and that she was unhappy living in southern California. She testified that she did, in fact,
tell “that detective in May 2006” that she lied when she said defendant had touched her in
a bad way. When she was asked how McCormick responded to her statement that she
had lied because she wanted to get away and live near her father, A.M. responded,
“Nope. I don’t remember talking to her really.” A.M. also admitted that the first time
she told any officer about the gun was when she spoke to Boyd in 2012. She had
previously testified that she thought she had told the police about the gun back in 2006.
Her testimony was sufficient to enable the defense to contrast her statement in 2006 with
her testimony at trial and to argue that she was not being truthful about the reasons for
her recantation and that her recantation was actually the truth. (Defense counsel did not
explicitly make that argument, but he could have done so.)
The only part of A.M.’s statement to McCormick that was not put before the jury
is the concluding phrase of A.M.’s statement, expressing satisfaction that her ploy was
successful: “[I lied] so we could just move and ya we did.” Although we understand
23
why defendant would have liked the jury to hear that portion of her statement, we do not
agree that it added anything to the substance of A.M.’s admission that she lied in order to
persuade her mother to move away, nor do we agree that a more favorable outcome was
reasonably probable if that portion of A.M.’s statement had been admitted into evidence.
Because A.M.’s prior statements to McCormick were sufficiently presented to the jury to
permit the jury to infer that she lied about defendant having touched her, defendant has
failed to demonstrate that there is a reasonable probability of a more favorable outcome if
McCormick’s report had been admitted into evidence. (People v. Bradford, supra, 15
Cal.4th at p. 1325; People v. Watson, supra, 46 Cal.2d at p. 836.)
4.
THE COURT DID NOT ABUSE ITS DISCRETION IN EXCLUDING
DEPUTY CORTEZ’S REPORT
Defendant contends that the court deprived him of his constitutional right to
present a defense when it excluded Deputy Cortez’s report of statements made by A.R. in
2006. He contends that the statements recorded in Cortez’s report were inconsistent with
A.R.’s trial testimony, and that the report should have been admitted as past recollection
recorded.
The issue arose as follows: A.R., the mother of the alleged victims, testified on
direct that on the night when defendant allegedly spanked A.M. and touched her
inappropriately, she came home with G.J. from a Girl Scout meeting and found that all
the other children were already in bed. She asked defendant what was going on, and he
told her that he had disciplined A.M. by “strip[ing] her down naked” and spanking her.
24
When A.M. came home from school the next day, A.M. told her that defendant had made
her bend over and touch her toes and that he had “touched” her. A.R. called defendant
and confronted him with A.M.’s accusation. Defendant came home in a rage and took
out a gun, pointed it at A.R. and A.M., and demanded that A.M. admit that she was lying.
About two days later, after she had taken the children to Coalinga, she telephoned the
Riverside County Sheriff’s Department to report the incident. She did not “clearly” recall
a telephone conversation with Deputy Cortez, and reading his report did not refresh her
recollection. After reading his report, she stated, “I just don’t recall saying this.”
On cross-examination, A.R. testified that she did not recall ever having told law
enforcement about defendant pointing a gun during the confrontation over the spanking
incident. She said she did not recall what she told “any of them” about the incident.
In his case-in-chief, defendant wanted to call Deputy Cortez to testify about
statements A.R. made to him that were inconsistent with her trial testimony. He wanted
to admit Cortez’s report under Evidence Code section 1237 as past recollection recorded.
The prosecutor requested an Evidence Code section 402 hearing to ascertain what
Cortez’s testimony would be. Cortez testified that he did not recall the events reported in
his 2006 report of his interview with A.R. or the statements attributed to her in the report,
and that reading the report did not refresh his recollection. He testified that he
customarily writes reports within a few days after an interview or incident, and that it is
his practice to report truthfully and accurately. After reading his report, he testified that it
reflected that A.R. said that she saw the spanking and that she did not have any facts
which showed that defendant touched A.M. “in an appropriate [sic] manner.” The report
25
showed that A.R. stated that there was no sexual touching. The report showed that A.R.
did not make any statement about a gun being used in the incident.
The trial court sustained the prosecutor’s objection that Cortez’s report did not
qualify as past recollection recorded. In doing so, the court stated that the foundation for
admission under Evidence Code section 1237 was not met, in part because Cortez could
not vouch for the accuracy of the statement: “He doesn’t know if it’s accurate or not. He
can’t say that he recorded it within 20 minutes of the conversation or within 24 hours.”
In his argument on appeal, defendant does not address this finding. It is, however,
dispositive of the issue. “[A] trial court has broad discretion to determine whether a party
has established the foundational requirements for a hearsay exception [citation] and ‘[a]
ruling on the admissibility of evidence implies whatever finding of fact is prerequisite
thereto[.]’ (Evid. Code, § 402, subd. (c).) We review the trial court’s conclusions
regarding foundational facts for substantial evidence. [Citation.] We review the trial
court’s ultimate ruling for an abuse of discretion [citations], reversing only if ‘“the trial
court exercised its discretion in an arbitrary, capricious, or patently absurd manner that
resulted in a manifest miscarriage of justice.”’ [Citation.]” (People v. DeHoyos (2013)
57 Cal.4th 79, 132.)
A past recollection recorded is admissible only if the trial court concludes that the
declarant has reliably established the accuracy of the recorded statement. (People v.
Cummings (1993) 4 Cal.4th 1233, 1293.) It is within the trial court’s discretion to
determine whether the “circumstances surrounding the statement” provide a sufficient
basis for concluding that the report is accurate. (Id. at pp. 1293-1294.) Here, Cortez
26
testified in very general terms about his practices with respect to writing reports. He had
no recollection whatsoever of writing this report. He was not asked how soon after
speaking to A.R. he wrote the report, or whether he took notes while speaking to her and
transcribed his notes, or whether he wrote the report several days later based solely on his
recollection of the conversation. There was no other evidence concerning the
circumstances surrounding the report which might have established its accuracy. We see
no abuse of discretion in the trial court’s conclusion that Cortez’s undisputed and
unaugmented testimony did not establish reliably that the report was accurate.
Accordingly, the court did not abuse its discretion in excluding the contents of Cortez’s
report.
5.
THE EVIDENCE DOES NOT SUPPORT AN INSTRUCTION
ON ATTEMPTED RAPE
Defendant contends that the trial court had a sua sponte duty to instruct on
attempted rape as a lesser included offense of aggravated sexual abuse of a child by rape,
as alleged in count 7.
A trial court errs if it “fails to instruct, sua sponte, on all theories of a lesser
included offense which find substantial support in the evidence. On the other hand, the
court is not obliged to instruct on theories that have no such evidentiary support.”
(People v. Breverman (1998) 19 Cal.4th 142, 162.) Such instructions are required
whenever evidence that the defendant is guilty only of the lesser offense is substantial
enough to merit consideration by the jury. (Ibid.) “Substantial evidence” in this context
27
is evidence from which a jury composed of reasonable persons could conclude that the
lesser offense, but not the greater, was committed. (Ibid.)
Attempted rape has two elements: the specific intent to commit rape and a direct
but ineffectual act done toward its commission. (People v. Lee (2011) 51 Cal.4th 620,
633.) “‘The act must be a direct movement beyond preparation that would have
accomplished the crime of rape if not frustrated by extraneous circumstances.’
[Citation.]” (Ibid.)
Defendant contends that the instruction on attempted rape was supported by G.J.’s
statement to investigators that she was not sure defendant had actually penetrated her and
her statement denying that he had raped her, in contrast to her trial testimony that he put
his penis into her vagina and moved back and forth for 15 minutes, and that she saw
blood on her body afterward. She acknowledged that she had initially thought the blood
might be menstrual blood, but she later concluded that it was not. He contends that the
evidence “leave[s] the question open as to whether penetration occurred.” The evidence
does leave that question open, but that is not the question posed by his assertion that the
court should have instructed on the lesser included offense. The question is whether
there is any evidence that defendant attempted to penetrate G.J. but was frustrated in his
attempt to do so. Defendant does not cite any such evidence. In its absence, the evidence
presented to the jury supports either the conclusion that he did penetrate her or the
conclusion that he did not, but it does not support the conclusion that he specifically
intended to penetrate her and attempted to do so but failed.
28
6.
SUBSTANTIAL EVIDENCE SUPPORTS THE FINDING THAT THE LEWD ACTS
AGAINST G.J. WERE COMMITTED BY DURESS
Counts 1 through 6 alleged that defendant committed lewd acts on G.J. in
violation of section 288, subdivision (b)(1). That statute penalizes such acts if they are
committed “by use of force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the victim or another person.” Defendant contends that there was
insufficient evidence that the acts were committed by any of those means.
We review a claim of insufficient evidence under the substantial evidence rule.
Substantial evidence is evidence which is “reasonable, credible, and of solid value,” such
that “a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) In determining whether such
evidence exists, we review the entire record, examining it in the light most favorable to
the judgment. (Ibid.) We presume in support of the judgment the existence of every fact
that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th
978, 1053.) We may reverse for lack of substantial evidence only if “‘upon no
hypothesis whatever is there sufficient substantial evidence’” to support the judgment.
(People v. Bolin (1998) 18 Cal.4th 297, 331.)
29
The prosecutor relied upon five separate incidents to prove the six counts.13 She
argued that all of the acts were perpetrated by the use of fear or duress. “Duress,” as used
in section 288, subdivision (b)(1), means “‘“a direct or implied threat of force, violence,
danger, hardship or retribution sufficient to coerce a reasonable person of ordinary
susceptibilities to (1) perform an act which otherwise would not have been performed or,
(2) acquiesce in an act to which one otherwise would not have submitted.”’ [Citation.]”
(People v. Soto (2011) 51 Cal.4th 229, 246.) Here, the record as a whole supports the
inference that in each instance, G.J. acquiesced out of fear of a violent reprisal if she
resisted. G.J. testified that in the first incident, when defendant told her to sit on his lap,
she complied because she “didn’t want to get in trouble.” She said the same thing with
respect to the second incident—she never told him “no” because she “didn’t want to get
in trouble.” She did not expressly state that she acquiesced in any of the other acts for
that reason, but her testimony made it clear that she did not willingly participate in any of
them. The record supports the inference that G.J. had good reason to be afraid of
resisting. As we have discussed elsewhere, the entire family lived in fear of defendant’s
temper and the violent punishments and vicious verbal and emotional abuse he would
mete out for the smallest infraction. G.J. testified that defendant frequently slapped or hit
her and that she was afraid to text her mother or even talk about her mother because she
thought defendant would beat “the crap” out of her if she did. She also testified that she
13The prosecutor informed the jury that there were multiple acts committed on
each occasion, such as multiple acts of fondling G.J.’s breasts or genital area, each of
which could form the basis of an individual count.
30
was afraid she “would be dead or close to that” if defendant found the journal in which
she described the abuse other than the molestation. A reasonable 12-year-old of ordinary
susceptibilities would clearly not wish to provoke a man such as defendant by resisting
his sexual touching. Accordingly, the verdicts are supported by substantial evidence.
7.
THE TRIAL COURT’S FAILURE TO INSTRUCT ON NONFORCIBLE
LEWD ACTS WAS NOT PREJUDICIAL
Defendant argues as to counts 1 through 6 that the trial court had a sua sponte duty
to instruct the jury on the lesser offense of nonforcible lewd acts, within the meaning of
section 288, subdivision (a).
Even if we assume that the evidence supported a verdict on the lesser offense, we
find no prejudice from the omission. Failure to instruct on a lesser included offense is
reviewed for prejudice under the standard of People v. Watson, supra, 46 Cal.2d 818.
(People v. Breverman, supra, 19 Cal.4th at p. 165.) Under that standard, in a noncapital
case, the error is reversible only if there is a reasonable probability that the error affected
the outcome. (Ibid.) Given the overwhelming evidence that defendant generally
terrorized G.J. and her siblings and that G.J. acquiesced in defendant’s sexual touching
out of fear of reprisals, we are not persuaded that it is reasonably likely that the jury
would have elected to convict defendant of the lesser offense if it had been given that
option.
31
8.
THE OMISSION OF A UNANIMITY INSTRUCTION ON
COUNTS 13 AND 14 WAS HARMLESS
By agreement of the parties, the court instructed the jury with CALCRIM No.
3501 as to all counts except counts 13 and 14. In pertinent part, the instruction read:
“The People have presented evidence of more than one act to prove the defendant
committed these offenses. You must not find defendant guilty unless you all agree that
the People have proved the defendant committed at least one of these acts and you all
agree upon which act he committed. Or, you all agree the defendant[14] [sic] proved the
defendant committed all the acts alleged to have occurred during this time period and
have proved the defendant committed at least the number of offenses charged.”
Defendant contends that the instruction should have included counts 13 and 14 because
A.M., the victim alleged in those counts, testified to multiple incidents which the jury
could have found to be the basis of the two counts charged. He contends that the error
requires reversal of his conviction on those counts.
We agree that the instruction should have included counts 13 and 14.
“In a criminal case, a jury verdict must be unanimous. [Citations.]” (People v.
Russo (2001) 25 Cal.4th 1124, 1132.) “Additionally, the jury must agree unanimously
the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held
that when the evidence suggests more than one discrete crime, either the prosecution
14 The written instruction provided to the jury correctly stated that the jury must
find that the People proved that defendant committed all the acts alleged.
32
must elect among the crimes or the court must require the jury to agree on the same
criminal act. [Citations.]” (Ibid., italics omitted.) Alternatively, in cases involving
sexual molestation of children where the prosecution relies on generic evidence
describing (1) the kind of acts committed, (2) the number of acts committed with
sufficient certainty to support the alleged counts, and (3) the general time period in which
the acts occurred, due process allows a conviction if the jury unanimously agrees the
defendant committed all the acts described by the victim. (People v. Jones (1990) 51
Cal.3d 294, 321-322.)
Here, counts 13 and 14 pertained to A.M. Both counts alleged sexual penetration
by force, in violation of section 269, subdivision (a)(5). The prosecutor told the jury that
to prove those two counts, she was relying on A.M.’s testimony that there were up to five
incidents during which penetration occurred. Accordingly, the jury should have been
instructed that it must unanimously agree on the particular incident it relied on for each
count or must unanimously agree that defendant committed all of the acts A.M.
described.
The omission, however, was not prejudicial. There is a split of authority as to
whether the omission of a required unanimity instruction is reviewed under the harmless
error standard of Chapman v. California (1967) 386 U.S. 18 or the miscarriage of justice
standard of People v. Watson, supra, 46 Cal.2d 818. (People v. Hernandez (2013) 217
Cal.App.4th 559, 576 [Fourth Dist., Div. Two].) We concur with prior decisions of this
court which hold that the error violates federal constitutional law, as stated in People v.
Hernandez. (Id. at pp. 576-577.)
33
Under the Chapman test, reversal is not required if an error is harmless beyond a
reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.) Here, although A.M. testified to
more than two acts of sexual penetration, the record shows beyond a reasonable doubt
that the jury unanimously agreed either that defendant committed all of the acts A.M.
described, or that it unanimously agreed that defendant committed two particular acts.
A.M. described the first incident in detail, but did not describe the other incidents
with any specificity. She did not recall how many times the spankings and penetration
took place, but she was sure it was three times, and maybe as many as five. However,
she explained that the first incident occurred when she was in the sixth grade and the final
one occurred when she was in the seventh grade. A.R. confirmed that when A.M. told
her of the abuse after the final incident, A.M. was in the seventh grade. Because the
evidence unequivocally described two specific instances—the first and the last—we are
convinced beyond a reasonable doubt that no rational juror would have rejected A.M.’s
testimony as to either the first or last incident but would have believed that the incidents
that she could not recall with any particularity did occur. Accordingly, the verdicts
would have been unanimous as to the first and last incidents, and the omission of the
instruction was harmless beyond a reasonable doubt.
9.
THE CUMULATIVE ERROR DOCTRINE DOES NOT APPLY
Defendant contends that even if the first eight errors he asserted were not
individually prejudicial, cumulatively they deprived him of a fair trial.
34
We found no error with respect to defendant’s arguments 1, 4, 5 and 6.
Accordingly, those arguments do not provide any basis for concluding that cumulative
error occurred.
With respect to arguments 2 and 3, we concluded that the erroneous exclusion of
potentially exculpatory testimony was not prejudicial because other testimony brought
the same evidence to the jury’s attention. We are not persuaded that those two errors
have any cumulative effect in combination with the instructional errors we found
nonprejudicial in defendant’s arguments 7 and 8.
10.
SENTENCING ISSUES
Defendant contends that the trial court erred in imposing consecutive terms on all
counts of conviction, pursuant to section 667.61. He contends that the evidence does not
support the court’s implied finding that at least several violations of section 288,
subdivision (b)(1) as to G.J. took place on separate occasions within the meaning of
section 667.6, subdivision (d). He also contends that the evidence does not support the
court’s implied finding that the violations of section 288, subdivision (b)(1) and
section 269, subdivision (a) as to A.M. took place on separate occasions within the
meaning of section 667.6, subdivision (d). Contrary to defendant’s argument, however,
the court did not rely on separate occasions to impose consecutive sentences. Rather, it
relied on the jury’s finding that there were multiple victims. At oral argument, defendant
argued that consecutive sentences were not available on some counts, under the version
35
of the applicable statute that was in effect on the date of his offenses. We will address
that contention.
Section 667.61
As to most counts, defendant was sentenced pursuant to section 667.61.15 Section
667.61 has been amended several times. As currently in effect, it provides for a specified
sentence for each offense listed in subdivision (c). Those offenses include violations of
section 288, subdivision (b). (§ 667.61, subd. (c)(4).) The statute mandates a sentence of
15 years to life for each such offense if any one of several circumstances specified in
subdivision (e) is present. (§ 667.61, subd. (b).) If, however, the victim of an offense
specified in subdivision (c) is under the age of 14 and one of the special circumstances is
present, the mandatory sentence is 25 years to life. (§ 667.61, subd. (j)(2).) One of the
specified circumstances is that the defendant committed an offense specified in
subdivision (c) against more than one victim. (§ 667.61, subds. (b), (e)(4).) Further,
section 667.61, subdivision (i) provides that “the court shall impose a consecutive
sentence for each offense that results in a conviction under this section if the crimes
involve separate victims or involve the same victim on separate occasions as defined in
subdivision (d) of Section 667.6.”
15 As we discuss below, section 667.61 does not apply to counts 7, 13 and 14.
36
The jury returned a finding that defendant did commit such crimes against more
than one victim, and both victims were under the age of 14 when the crimes occurred.
Accordingly, assuming that the current version of the statute applies, imposition of
consecutive terms of 25 years to life on each such count—counts 1 through 6 and counts
15 and 16—is mandatory, without reference to whether the crimes were committed on
separate occasions. (People v. Huber (1986) 181 Cal.App.3d 601, 631-632.)
The version of section 667.61 containing the provisions of subdivisions (i)
concerning mandatory consecutive sentences first went into effect on September 20,
2006. (Stats. 2006, ch. 337, § 33.) The version containing the provisions of (j)(2),
providing for a term of 25 years to life for convictions involving multiple victims, first
went into effect on September 9, 2010. (Stats. 2010, ch. 219, § 16.) G.J. testified that the
first incident of abuse took place during the summer of 2011. Accordingly, the court
properly imposed consecutive terms of 25 years to life on counts 1 through 6.
The evidence showed, however, that all of the crimes committed against A.M.
took place in or before March 2006.16 To the extent that more recent versions of section
667.61 impose a greater punishment than the version of the statute that was in effect in
March 2006, defendant is entitled to be sentenced under the earlier law. (See John L. v.
Superior Court (2004) 33 Cal.4th 158, 181-182 [under both state and federal
constitutions, ex post facto violation occurs where laws setting the length of a prison
16A.R. testified that the last incident involving A.M., which precipitated her
move to Coalinga with all of the children, occurred toward the end of March 2006.
37
sentence are revised after the crime to contain either a longer mandatory minimum term
or a higher presumptive sentencing range].)
The version of section 667.61 that was in effect between September 28, 1998 and
September 19, 200617 provided that “a person who is convicted of an offense specified in
subdivision (c) under one of the circumstances specified in subdivision (e) shall be
punished by imprisonment in the state prison for life and shall not be eligible for release
on parole for 15 years . . . .” (Former § 667.61, subd. (b) (1998).) Violations of section
288 were qualifying offenses. (Former § 667.61, subd. (c)(4) (1998).) A qualifying
circumstance under subdivision (e) was conviction in the current case of an offense
specified in subdivision (c) against more than one victim. (Former § 667.61, subd. (e)(5)
(1998).) Subdivision (g) of former section 667.61 provided: “The term specified in
subdivision (a) or (b) shall be imposed on the defendant once for any offense or offenses
committed against a single victim during a single occasion. If there are multiple victims
during a single occasion, the term specified in subdivision (a) or (b) shall be imposed on
the defendant once for each separate victim. Terms for other offenses committed during
a single occasion shall be imposed as authorized under any other law, including Section
667.6, if applicable.” (Stats. 1998, ch. 936, § 9, eff. Sept. 28, 1998.) Thus, the
consecutive sentencing provision did not apply to counts 15 and 16 on the basis of
separate victims because A.M. was the sole victim in each count. However, former
section 667.6, subdivision (d), as in effect at the time of defendant’s offenses, did provide
17 (See Stats. 1998, ch. 936, § 9, eff. Sept. 28, 1998; Stats. 2006, ch. 337, § 33,
eff. Sept. 20, 2006.)
38
for full consecutive sentences for violations of section 288, subdivision (b) “if the crimes
involve separate victims or involve the same victim on separate occasions.”18
Accordingly, even though the trial court erred in sentencing defendant to consecutive
terms on counts 15 and 16 under the current version of section 667.61, the sentence was
nevertheless mandated by former section 667.6, subdivision (d).19
Section 269
On counts 7, 13 and 14, defendant was convicted of aggravated sexual assault on
a child, in violation of section 269, subdivision (a). As the trial court recognized,
section 269 contains its own sentencing scheme. Section 269, subdivision (b), provides
for a mandatory term of 15 years to life for all convictions under that statute. Section
18 Former section 667.6, subdivision (d), provided: “A full, separate, and
consecutive term shall be served for each violation of Section 220, other than an assault
with intent to commit mayhem, provided that the person has been convicted previously of
violating Section 220 for an offense other than an assault with intent to commit mayhem,
paragraph (2), (3), (6), or (7) of subdivision (a) of Section 261, paragraph (1), (4), or (5)
of subdivision (a) of Section 262, Section 264.1, subdivision (b) of Section 288,
subdivision (a) of Section 289, of committing sodomy in violation of subdivision (k) of
Section 286, of committing oral copulation in violation of subdivision (k) of Section
288a, or of committing sodomy or oral copulation in violation of Section 286 or 288a by
force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the
victim or another person if the crimes involve separate victims or involve the same victim
on separate occasions.” (Stats. 2002, ch. 787, § 16.)
19 We note, too, that the term specified in the version of section 667.61 that was
in effect at the time of the offenses against A.M. was life in prison with a minimum of 15
years prior to eligibility for parole. (Former § 667.61 (1998), subd. (b).) This is not the
same as the term of 15 years to life provided for in the current version of section 667.61
and imposed by the trial court (People v. Jefferson (1999) 21 Cal.4th 86, 92-93), and it is
arguably a longer sentence than 15 years to life. The Attorney General has not raised any
issue pertaining to propriety of imposing an arguably lesser term than the term mandated
by former section 667.61, however.
39
269, subdivision (c) provides for mandatory consecutive sentences “for each offense that
results in a conviction under this section if the crimes involve separate victims.” The
court imposed consecutive terms of 15 years to life on all three counts pursuant to that
statute.20 Subdivision (c), however, was enacted in 2006 and became effective
September 20, 2006. (Stats. 2006, ch. 337, § 6) Accordingly, while the current version
of the statute applies to count 7, involving G.J., it does not apply to counts 13 and 14,
involving A.M.
In People v. Figueroa (2008) 162 Cal.App.4th 95 (Fourth Dist., Div. Two), this
court addressed the same issue. The defendant was convicted of two counts of
aggravated sexual assault on a minor in violation of section 269 by committing rape
(§ 261, subd. (a)(2)) on a child under the age of 14 and 10 or more years younger than the
defendant. The acts charged were committed before the enactment of section 269,
subdivision (c), and the defendant contended that the trial court had the discretion to
impose concurrent rather than consecutive terms. (Figueroa, at p. 98.) We held that
because the underlying offense of rape in violation of section 261, subdivision (a)(2), is a
crime enumerated in section 667.6, and because the defendant committed the acts on the
same victim on separate occasions, consecutive terms were mandated by section 667.6,
subdivision (d). (Figueroa, at pp. 98-100.) The same reasoning applies here. The crime
underlying the aggravated sexual assault alleged in count 7 was rape, in violation of
section 261, subdivision (a)(2), and the crime underlying the aggravated sexual assaults
20 Count 7 is the principal count; all other counts run consecutive to it.
40
in counts 13 and 14 was sexual penetration in violation of section 289, subdivision (a), by
force, violence, duress, menace, and fear of immediate bodily injury. Both of the
underlying crimes are crimes enumerated in the versions of section 667.6,
subdivision (d), as effective on the dates of the offenses. Accordingly, because the
crimes were committed against separate victims, consecutive terms were mandatory.21
(Former § 667.6, subd. (d).)
Following oral argument, we requested supplemental briefing concerning
sentencing issues raised at oral argument. In his supplemental brief, defendant contends
that section 654 bars unstayed sentences for two of counts 13 through 16. Section 654
provides, in part, “An act or omission that is punishable in different ways by 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.” (§ 654, subd. (a).) Defendant contends that multiple
punishment is precluded based on the prosecutor’s argument that “the same conduct” at
“the same time” supported both the sexual penetration counts (counts 13 and 14) and the
forcible lewd and lascivious acts counts (counts 15 and 16). However, the act of
spanking a naked child can violate section 288, subdivision (b)(1) if it is done with the
intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the
21 In the supplemental briefing we requested following oral argument, defendant
continues to contend that consecutive sentencing was not mandatory because there was
insufficient evidence to support the trial court’s supposed finding that the offenses
occurred on separate occasions. We reiterate that the basis for consecutive sentencing is
the jury’s finding that the crimes were committed against two victims.
41
defendant or the child. (§ 288, subd. (a).) Accordingly, despite the prosecutor’s
argument, the evidence supported a finding of two separate crimes on each occasion.
“[M]ultiple sex acts committed on a single occasion can result in multiple statutory
violations. Such offenses are generally ‘divisible’ from one another under section 654,
and separate punishment is usually allowed. [Citations.]” (People v. Scott (1994) 9
Cal.4th 331, 344, fn. 6.) If the rule were otherwise, “the clever molester could violate his
victim in numerous lewd ways, safe in the knowledge that he could not be convicted and
punished for every act.” (Id. at p. 347.) Defendant provides no basis for concluding that
a spanking that violates section 288, subdivision (b), and sexual penetration are not
separate criminal acts subject to separate punishment, even if committed on a single
occasion. Furthermore, A.M. testified that defendant engaged in spanking and sexually
penetrating her on as many as five separate occasions. Section 654 does not preclude
separate punishment for each such incident.
11.
REMAND IS REQUIRED TO PERMIT THE TRIAL COURT TO CLARIFY THE
AMOUNT OF THE FINES IMPOSED UNDER SECTIONS 1204.2 AND 1202.45
Section 1202.4 provides for imposition of a mandatory restitution fine for all
felony convictions, in an amount ranging from $240 to $10,000. Section 1202.45
provides that the court must impose and stay a parole revocation fine in the same amount
imposed pursuant to section 1202.4.
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Here, the trial court initially stated that it was imposing fines in the amount of
$2,500 pursuant to those statutes. At the conclusion of the sentencing hearing, in
response to a question posed by defendant, the court stated, “Restitution fine is $2,250.”
The sentencing minutes, however, state that the fines are imposed in the amount of
$10,000 each, while the abstract of judgment states that the fine imposed pursuant to
section 1202.4 is $10,000 and that no fine was imposed pursuant to section 1202.45. The
parties concur that we should remand the matter to the trial court with directions to
clarify the amount of fines the court intended to impose and to issue corrected sentencing
minutes and a corrected abstract of judgment reflecting the amounts imposed. We agree,
and we shall do so.
DISPOSITION
The cause is remanded to the superior court for further sentencing proceedings, as
stated below. The judgment is otherwise affirmed.
The superior court is ordered to determine the amount of the restitution and parole
revocation fines to be imposed pursuant to Penal Code sections 1202.4 and 1202.45 and
ensure that the amounts imposed are correctly reflected in the sentencing documents.
The court is further ordered to correct the abstract of judgment to reflect that sentence is
imposed pursuant to sections 667.6, 667.61 and 269. Finally, the court is ordered to issue
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corrected sentencing minutes and a corrected abstract of judgment, and to provide a copy
of those documents to the parties and to the Department of Corrections and Rehabilitation
within 30 days after this opinion becomes final.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
KING
J.
MILLER
J.
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