People v. Sinigur CA3 ( 2023 )

Filed 2/28/23 P. v. Sinigur CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C091622
Plaintiff and Respondent, (Super. Ct. No. 18FE004949)
v.
VLADIMIR SINIGUR,
Defendant and Appellant.
Defendant Vladimir Sinigur committed 18 sex offenses against his daughter, N.S.,
and two sons, I.S. and C.S. Sixteen of these offenses were committed against N.S., who
was six years old when the abuse came to light. With respect to these crimes, a jury
convicted defendant of two counts of sexual intercourse (counts one and three), five
counts of oral copulation (counts five, seven, nine, 11, and 13), one count of sexual
penetration (count 15), and eight counts of lewd or lascivious conduct with a child under
the age of 14 years (counts two, four, six, eight, 10, 12, 14, and 16). The remaining two
crimes, two counts of lewd or lascivious conduct with a child under the age of 14 years
1
(counts 17 and 18), were committed against I.S. and C.S., who were four and seven years
old when the abuse came to light. The jury also found defendant committed the
foregoing crimes against more than one victim within the meaning of the One Strike law
(Pen. Code, § 667.61).1 Pursuant to this alternate sentencing scheme, the trial court
sentenced defendant to an aggregate indeterminate prison term of 250 years to life.
On appeal, defendant contends: (1) the evidence is insufficient to support his
convictions for lewd or lascivious conduct with his sons; (2) defendant’s convictions for
lewd or lascivious conduct with his daughter must also be reversed because they violate
section 954; (3) defendant’s trial counsel provided constitutionally deficient assistance by
failing to object to the admission of his police interview on the ground that defendant
neither expressly nor impliedly waived his Miranda2 rights; (4) his trial counsel also
provided ineffective assistance by failing to object to the admission of a pretext
conversation between defendant and his wife; (5) the trial court prejudicially erred and
violated defendant’s federal constitutional rights by misinstructing the jury regarding the
requirement of unanimity; (6) the cumulative prejudicial effect of the foregoing
assertions of error requires reversal; and (7) various sentencing errors occurred, including
the claims that (A) all but one multiple-victim “sentence enhancement” must be vacated
because the prosecution alleged this “enhancement” with respect to only one count, and
(B) the matter must be remanded for a new sentencing hearing because the trial court did
not understand that it had the discretion to sentence defendant to concurrent as opposed to
consecutive terms of imprisonment.
The Attorney General concedes the latter point. We accept the concession and
will therefore vacate defendant’s sentence and remand the matter for a new sentencing
1 Undesignated statutory references are to the Penal Code.
2 Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
2
hearing. We otherwise affirm the judgment. As we shall explain, the evidence is
sufficient to support defendant’s convictions for lewd or lascivious conduct with his sons.
We also conclude section 954 was not violated. Despite the fact that defendant’s
convictions for lewd or lascivious conduct with N.S. were based on the same acts as his
convictions for sexual intercourse, oral copulation, and sexual penetration, the
Legislature intended to define separate offenses when it defined the crime of lewd or
lascivious conduct and these other more specific sex crimes. With respect to defendant’s
first assertion of ineffective assistance of counsel, we conclude the trial court properly
determined that he impliedly waived his Miranda rights. We also reject defendant’s
second assertion of ineffective assistance of counsel. Defendant’s instructional error
claim is forfeited and, in any event, also fails. There being no error, prejudicial or
otherwise, there is no cumulative prejudicial impact to assess. And finally, while we are
remanding the matter for resentencing, and therefore need not address certain additional
claims of sentencing error advanced by defendant, we do address and reject his assertion
that the prosecution was required to plead the multiple-victim allegation as to each count
in order for the trial court to impose multiple “enhancements.” The multiple-victim
allegation, found true by the jury, is not a sentence enhancement, but rather qualified
defendant for sentencing under the One Strike sentencing scheme.
BACKGROUND
Defendant and N.S. Disclose the Abuse
In January 2018, defendant and his wife, V.S., shared a room with their three
children at defendant’s parents’ house. Defendant and V.S. slept on a mattress on the
floor. The children slept on a bunk bed, with N.S. on the top mattress and I.S. and C.S.
sharing the larger bottom mattress. That month, N.S. turned six years old. I.S. and C.S.
were four and seven years old, respectively.
On January 25, while defendant and V.S. were having sex, he asked her when she
was “going to let him have [N.S.]” V.S. thought she misheard him and asked what he
3
meant. Defendant responded, “you know exactly what I mean, you know, have sex with
her.” V.S. then asked whether he had ever acted on these thoughts. Defendant said he
had and admitted having oral, vaginal, and anal sex with his daughter. When V.S. asked
defendant how he could do these things, he laughed and acted like she was “making a big
deal out of this.”
V.S. waited for defendant to fall asleep and then took N.S. into the bathroom for
her bath. During the bath, V.S. asked whether defendant had ever done anything to her
that she did not like, and whether he had asked her to keep it a secret. N.S. said that
defendant “made her suck his tsurka,” a Moldovan word for penis.3 N.S. also said
defendant put his penis “between [her] legs” and “he pushed and she told him to stop and
. . . he wouldn’t stop.” N.S. further explained that “stuff like spit would come out” of the
end of defendant’s penis.
The next day, V.S. called defendant’s therapist and told her what defendant and
N.S. had said. The therapist informed her that she would have to report the abuse. After
V.S. spoke to the therapist, defendant asked her to go for a drive with him. V.S. told
defendant she was afraid to go. He promised she would return safely and gave her the car
keys so she could drive. They drove to a park, where V.S. asked defendant why he did
this to N.S. Defendant said, “he didn’t want to do it, [N.S.] wanted it, so that’s why he
did it.” Defendant also said that “he used to think that people who did stuff like this, that
that was wrong, but then spirits came to him and told him like why don’t you come down
to our level and do this kind of stuff and see how you actually feel and he said now I
don’t feel–I don’t think it’s wrong anymore.”
3 Defendant and V.S. were immigrants from Moldova. Hereafter, we shall use the
word “penis.” During N.S’s forensic interview, described in greater detail post, N.S. also
used a Moldovan word for vagina. We shall use the word “vagina” throughout this
opinion.
4
Initial Investigation
When defendant and V.S. returned home after their drive to the park, four police
cars were parked at the house and several officers were inside. One of the officers had
already spoken briefly to N.S., but she did not initially disclose any sexual abuse.
However, the officer asked whether defendant “was being mean” to N.S., to which she
responded that defendant “hurts us a lot” with a belt and also “talks mad to us and takes
away toys.” Another officer briefly spoke with I.S. and C.S. The boys confirmed that
defendant would get “really mad” and spank them, but both denied that he ever touched
their private parts. The officers were conferring about their conversations with the
children when defendant and V.S. arrived at the house.
V.S. entered the house and immediately took her children into their bedroom.
Defendant also entered the house, without acknowledging the presence of the officers.
One of the officers asked to speak with him outside. Defendant “seemed frustrated” but
agreed to do so. The officer asked whether he had “done anything illegal with [his]
children,” to which defendant answered: “By my law, no.” When the officer said he was
talking about California law, defendant told the officer: “Be specific with me. What are
you asking me?” Defendant was then asked whether he sexually abused the children. He
denied the allegation. Defendant later said: “I have my kids. And I have my relationship
with each one of them the way I want to have the relationship with them. And they have
the relationship with me the way they want to have it with me. Simple.” He was taken
into custody a short time later after he “abruptly ended” the conversation and tried to
reenter the house.
N.S. was then interviewed a second time inside the house. During this interview,
when the officer asked whether there was anything else defendant did to her, N.S. said:
“He wants me to suck him, [penis].” When asked how often that happened, she
answered: “A lot.” N.S. said this had been happening since she was four years old. She
also said it happened on a daily basis. N.S. initially said defendant did not do anything
5
else, but then said she remembered that he also put his penis between her legs and
“pushes it.” This happened “just two times” and began when she was five years old.
N.S. said defendant would give her candy afterwards. N.S. also repeated her description
of “spittle” coming out of defendant’s penis. She further explained that defendant told
her: “If [you] tell anyone, . . . I won’t like you anymore.”
Subsequent SAFE Interviews
The following month, each child was interviewed by a forensic interview
specialist at the Special Assault Forensic Evaluation (SAFE) Center.4
During N.S.’s interview, she repeated her allegation that defendant “wanted [her]
to suck his [penis] and stuff every day” and also gave her candy after she did so. While
she said this happened “twenty times,” she specifically described four such incidents.
Asked about the last time defendant did this, N.S. explained that he called for her to come
into the bedroom while everyone else was playing games outside of the room. When she
got into the room, defendant told her to lock the door. He then lay down on the bed
without pants or underwear on, made her orally copulate him, and gave her candy
afterwards. N.S. also described ejaculation, much like she did in her previous statements,
and said that defendant told her: “ ‘Don’t tell anyone about this “kay.” ’ ” This incident
corresponds to count five (oral copulation) and count six (lewd or lascivious conduct).
N.S. then described a different incident that occurred on her birthday, the details of
which were almost identical to the incident described ante. This incident corresponds to
count seven (oral copulation) and count eight (lewd or lascivious conduct).
4 The children’s trial testimony confirmed much of what they said during their
SAFE interviews, but also conflicted in various ways. Where relevant to the issues raised
on appeal, we describe their trial testimony during the discussion portion of the opinion.
For present purposes, we simply note the children appeared reluctant to testify against
their father at trial.
6
A third incident of oral copulation occurred on N.S.’s bunk bed at night. As N.S.
described, her mother and brothers were watching something on V.S.’s computer on the
mattress on the floor when defendant climbed up onto N.S.’s bed with her and told her to
“suck his [penis]” or he would not give her any candy. While she was doing so, one of
her brothers asked, “Where is daddy?” Defendant responded: “I’m up here. Come on
boys go to sleep or I’ll slap you.” This incident corresponds to count nine (oral
copulation) and count 10 (lewd or lascivious conduct).
The fourth incident of oral copulation also involved penetration of N.S.’s vagina
with defendant’s finger. N.S. and defendant were alone in the room when defendant first
had her orally copulate him and then put coconut oil on his finger and put it inside her
vagina. N.S. said, “it really hurt[],” so defendant stopped and let her leave the room.
This incident corresponds to count 11 (oral copulation), count 15 (sexual penetration),
and counts 12 and 16 (lewd or lascivious conduct).
N.S. also described a different incident in which defendant “tickled” her vagina
with his tongue and then held her hands and feet down while he penetrated her vagina
with his penis. N.S. said, “it really hurt” when he did so, but this time defendant did not
stop. This incident corresponds to count 13 (oral copulation) and count 14 (lewd or
lascivious conduct), as well as either count one or count three (sexual intercourse) and
either count two or count four (lewd or lascivious conduct).5
I.S. and C.S. were also interviewed at the SAFE Center. We need not describe
their interviews in any detail. It will suffice to note that each boy described physical
abuse in the form of beatings, some of which drew blood. More importantly for our
5 The other sexual intercourse and lewd or lascivious conduct counts were
supported by N.S.’s previous statement that defendant put his penis between her legs and
pushed on two occasions, and defendant’s admission that he had sexual intercourse with
his daughter at least three times, specifically recalling one other act of sexual intercourse
that occurred at a park. We describe these admissions in greater detail, post.
7
purposes, they also described separate incidents in which defendant “tickled” their
penises. The latter incidents correspond to counts 17 and 18 (lewd or lascivious
conduct).
Defendant’s Conversation with V.S. at the Jail
The day after the SAFE interviews were conducted, V.S. spoke with defendant at
the jail at the request of Detective Lindsey Lamb. The conversation was recorded.
During the conversation, when V.S. accused defendant of raping N.S., defendant
responded: “You’re using words that [are] confusing ‘cause that’s not true.’ ” V.S.
pushed back: “And what words should I be using? You made love to her?” Defendant
answered: “Mm-hm.” When V.S. repeated the question, in apparent disbelief, defendant
responded that it was “none of [her] concern.” Defendant gave the same response later in
the conversation when V.S. asked him how many times he did this to her, adding:
“Nothing that happened between me and any woman is . . . your concern.” V.S. then
asked: “Okay, did you do anything to the boy?” Defendant responded: “You can push
me and you can find out things that you wanna find out but the consequences of that
information on you, you’re not gonna like it.” When V.S. reminded defendant of their
previous conversation, specifically that he told her that he “used to think . . . that doing
this kind of stuff to kids . . . was not good,” but then changed his mind, defendant
responded: “I never did anything to kids.” V.S. again pushed back: “So [N.S.’s] an
adult?” Defendant responded: “Again, that is not your concern.”
Defendant’s Interview with Detective Lamb
Five days later, defendant was interviewed by Detective Lamb. Defendant
claimed he viewed the ages of his children differently than their legal ages, explaining:
“By my counting [C.S.] is, uh, 16, 17. [N.S.] is, uh, 14 and a half, and [I.S.] is, um, 12
and a half [to] 13.” When asked whether N.S. orally copulated him, defendant answered:
“Yes, she did.” Defendant said it happened twice, claiming that it started when N.S. told
him “ ‘I can’t wait until I can have you.’ ” According to defendant, he was “really
8
against all that stuff” at the time, so he told her it would never happen. Then “spirits
entered [him] and her and confused [him] and things started happening.” When the
detective asked what else happened, defendant admitted having oral, vaginal, and anal
sex with his daughter. When asked how many times, defendant answered: “Three times
maybe, four times, I’m not really sure, five times. I can’t count.” Defendant claimed
these sex acts with his daughter were consensual. He also said that in addition to sex acts
that occurred at the house, he had sexual intercourse with N.S. on one occasion at a park.
Defendant also admitted giving N.S. candy after various sex acts, but claimed he did not
“remember that being a reason” she engaged in these acts with him. Defendant also
confirmed N.S.’s account of him using coconut oil as a lubricant. Defendant further
confirmed placing his tongue on N.S.’s vagina on one occasion.
Detective Lamb also asked defendant whether anything happened between him
and his sons. Defendant answered: “The only thing is I think I might have taught them
how to, uh, how to play with their penis.” Asked how he did so, defendant explained:
“Just how it went. How to jac–how to ejaculate but they never ended up doing it. So I
just taught them how to play with it, make it go hard pretty much.” When the detective
asked what he “explained to them,” defendant answered: “I didn’t explain nothing. I just
did it for them once that’s all.” Detective Lamb asked whether defendant used his hand.
Defendant said he did. The detective then asked: “And what did you do?” Defendant
responded: “Just play with it.” Further clarifying, the detective asked: “So you showed
[C.S.] and [I.S.] how to do that using your own hand on their penis?” Defendant
answered: “Just how to get their penis obvious.” Defendant admitted doing this on one
occasion for each of his sons.
9
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends the evidence is insufficient to support his convictions for lewd
or lascivious conduct with his two sons. We disagree.
The standard of review is well-settled: “When reviewing a challenge to the
sufficiency of the evidence, we ask ‘ “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” ’ [Citations.] Because the sufficiency
of the evidence is ultimately a legal question, we must examine the record independently
for ‘ “substantial evidence—that is, evidence which is reasonable, credible, and of solid
value” ’ that would support a finding beyond a reasonable doubt. [Citation.]” (People v.
Banks (2015) 61 Cal.4th 788, 804.) “A reversal for insufficient evidence ‘is unwarranted
unless it appears “that upon no hypothesis whatever is there sufficient substantial
evidence to support” ’ the jury’s verdict. [Citation.]” (People v. Zamudio (2008)
43 Cal.4th 327, 357.)
The crime of lewd or lascivious conduct requires proof of the following:
(1) willful commission of “any lewd or lascivious act”; (2) “upon or with the body, or
any part or member thereof, of a child who is under the age of 14 years”; (3) “with the
intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [the
defendant] or the child” (§ 288, subd. (a)). “ ‘Any touching of a child under the age of 14
violates this section, even if the touching is outwardly innocuous and inoffensive, if it is
accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator
or the victim.’ [Citation.] By focusing on the defendant’s intent to sexually exploit a
child rather than on the nature of the defendant’s offending act, section 288 ‘assumes that
young victims suffer profound harm whenever they are perceived and used as objects of
sexual desire.’ [Citation.]” (People v. Shockley (2013) 58 Cal.4th 400, 404.)
10
Defendant first challenges the sufficiency of the evidence establishing that he
“touched the boys at all.” We conclude the evidence is more than sufficient to prove this
element of the offense. Both boys stated in their SAFE interviews that defendant tickled
their penises. They confirmed this happened during their trial testimony. Defendant also
admitted touching the boys’ penises during his interview with Detective Lamb,
explaining that he “taught them how to, uh, how to play with their penis” in order to
“make it go hard pretty much.” He added that the point was to “ejaculate,” but said they
were not able to do so. When asked how he taught them this, defendant admitted he “did
it for them once” using his hand. When asked what he did, defendant responded: “Just
play with it.” Then, when the detective clarified that defendant “showed [the boys] how
to do that using [defendant’s] own hand on their penis,” he did not dispute this
description of what happened. Instead, defendant added: “Just how to get their penis
obvious.”
Defendant argues he might have been talking about teaching the boys how to
masturbate by touching his own penis. We acknowledge that defendant did not explicitly
confirm the detective’s characterization of him touching the boys’ penises with his hand.
However, as mentioned, nor did he dispute it. More importantly, the boys themselves
confirmed that defendant touched their penises, although they thought he was just
tickling them. Viewing the evidence as a whole, as we must, a reasonable jury could
have concluded beyond a reasonable doubt that defendant touched each boy’s penis in
order to show them how to masturbate, which each boy interpreted as him tickling their
penises.
Defendant’s argument that he and the boys were talking about different touchings
because the “tickling episodes don’t match [defendant’s] statements to the detectives
about demonstrating masturbation for the boys” is unconvincing. It is not surprising that
the boys interpreted defendant’s conduct as tickling. In fact, defendant used the words,
“[j]ust play with it” to describe how he touched the boys’ penises during his interview
11
with Detective Lamb. We conclude a reasonable jury could have concluded defendant
and his sons were talking about the same conduct.
Defendant also challenges the sufficiency of the evidence establishing he
possessed the requisite sexual intent. In making this argument, he focuses solely on the
boys’ descriptions of him tickling their penises and asserts nothing in those descriptions
supports a conclusion that it was anything other than a “non-sexual tickling.” However,
the fact that the boys did not perceive anything sexual about the touchings does not end
the inquiry. It is defendant’s intent that matters, not how the touchings were perceived by
the victims. As we have already explained, a reasonable jury could have concluded
defendant and the boys were talking about the same touchings, and defendant himself
admitted the sexual nature of those touchings. He “play[ed]” with the boys’ penises with
the intent to “make [them] go hard” and possibly “ejaculate.” We have no difficulty
concluding this satisfies the sexual intent requirement of section 288, subdivision (a).
Finally, in addition to the evidence delineating defendant’s conduct with the boys
and his admitted intent to sexually stimulate their penises, the jury also heard all of the
evidence relating to defendant’s conduct with his daughter. This evidence of defendant’s
sexual deviancy strongly supported a conclusion that defendant also possessed a sexual
intent when touching his sons’ penises.
Defendant’s convictions in counts 17 and 18 are supported by substantial
evidence, as is the finding that defendant committed crimes against more than one victim
within the meaning of the One Strike law.
II
Section 954
Defendant also claims his convictions for lewd or lascivious conduct with his
daughter must be reversed because they violate section 954. Specifically, he argues these
convictions were based on the same acts as his convictions for other sex crimes, i.e.,
sexual intercourse, oral copulation, and sexual penetration, and the Legislature did not
12
intend to define separate offenses when it defined the crime of lewd or lascivious conduct
and these other more specific sex offenses. He is mistaken.
Section 954 provides in relevant part: “An accusatory pleading may charge two or
more different offenses connected together in their commission, or different statements of
the same offense or two or more different offenses of the same class of crimes or
offenses, under separate counts . . . . The prosecution is not required to elect between the
different offenses or counts set forth in the accusatory pleading, but the defendant may be
convicted of any number of the offenses charged . . . .”
Our Supreme Court has “repeatedly held that the same act can support multiple
charges and multiple convictions. ‘Unless one offense is necessarily included in the other
[citation], multiple convictions can be based upon a single criminal act or an indivisible
course of criminal conduct (§ 954).’ [Citation.] Section 954 thus concerns the propriety
of multiple convictions, not multiple punishments, which are governed by section 654.”
(People v. Gonzalez (2014) 60 Cal.4th 533, 536-537 (Gonzalez).)
For example, in Gonzalez, the court held section 954 was not violated where the
defendant was convicted of both oral copulation of an intoxicated person and oral
copulation of an unconscious person based on the same act of oral copulation. (Gonzalez,
supra, 60 Cal.4th at p. 535.) The court first explained that whether these were separate
offenses or rather “different ways of committing the same offense properly turns on the
Legislature’s intent in enacting [former § 288a, subdivisions (f) and (i)].” (Gonzalez, at
p. 537.) The court then analyzed the statutory language and explained that the conduct
defined to be criminal in each subdivision was not necessarily included in the other
because “an act of oral copulation may be committed with a person who is unconscious
but not intoxicated, and also with a person who is intoxicated but not unconscious.” (Id.
at p. 539.) The court further explained that each subdivision of former section 288a “sets
forth all the elements of a crime, and each prescribes a specific punishment.” (Gonzalez
at p. 539.) The court concluded: “That each subdivision of [former] section 288a was
13
drafted to be self-contained supports the view that each describes an independent offense,
and therefore section 954 is no impediment to a defendant’s conviction under more than
one such subdivision for a single act.” (Ibid.)
Here, defendant was convicted of two counts of sexual intercourse (counts one and
three) and two counts of lewd or lascivious conduct (counts two and four) based on the
same two acts. Defendant was also convicted of five counts of oral copulation (counts
five, seven, nine, 11, and 13) and five counts of lewd or lascivious conduct (counts six,
eight, 10, 12, and 14) based on the same acts. Finally, his convictions for sexual
penetration (count 15) and lewd or lascivious conduct (count 16) were also based on the
same act. Thus, we must determine whether the Legislature intended to define a separate
offense when it enacted section 288, defining the crime of lewd or lascivious conduct, or
rather intended this section to merely be a different way of committing the crimes of
sexual intercourse, oral copulation, or sexual penetration of a child, defined in section
288.7.
The answer can be found in the language of section 288, subdivision (a), which
states in relevant part, “a person who willfully and lewdly commits any lewd or
lascivious act, including any of the acts constituting other crimes provided for in Part 1,
upon or with the body, or any part or member thereof, of a child who is under the age of
14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or
sexual desires of that person or the child, is guilty of a felony and shall be punished by
imprisonment in the state prison for three, six, or eight years.” (Italics added.) The
statute specifically states that the commission of “other crimes” may also constitute the
crime of lewd or lascivious conduct. (§ 288, subd. (a).)
Section 288.7 defines such other crimes: “(a) Any person 18 years of age or older
who engages in sexual intercourse or sodomy with a child who is 10 years of age or
younger is guilty of a felony and shall be punished by imprisonment in the state prison
for a term of 25 years to life. [¶] (b) Any person 18 years of age or older who engages in
14
oral copulation or sexual penetration, as defined in Section 289, with a child who is 10
years of age or younger is guilty of a felony and shall be punished by imprisonment in the
state prison for a term of 15 years to life.”
The crimes defined by sections 288 and 288.7 are not necessarily included within
each other because an act of sexual intercourse, oral copulation, or sexual penetration
with a child who is 10 years of age or younger may be committed without the specific
intent required by section 288,6 and conversely, a lewd or lascivious act need not be any
of the specific acts set forth in section 288.7, but may be a seemingly innocuous touching
if accompanied by the requisite intent. Moreover, as in Gonzalez, each subdivision at
issue here (§ 288, subd. (a), § 288.7, subd. (a), and § 288.7, subd. (b)) “sets forth all the
elements of a crime, and each prescribes a specific punishment.” (Gonzalez, supra,60 Cal.4th at p. 539.) The crime of lewd or lascivious conduct is also defined in a
separate section, as opposed to a separate subdivision of the same section, providing
further support for our conclusion that it is a “self-contained” offense. (Ibid.)
In sum, the crime of lewd or lascivious conduct is an independent offense because:
(1) it is set forth in an entirely different statute, section 288, subdivision (a), than the
6 The crimes of sexual intercourse and oral copulation set forth in section 288.7 do
not require any specific intent at all. (See People v. Saavedra (2018) 24 Cal.App.5th 605,
613 (Saavedra) [oral copulation in violation of § 288.7, subdivision (b) is a general intent
crime].) The crime of sexual penetration does require a specific intent. This is because it
incorporates the definition of “sexual penetration” set forth in section 289, subdivision
(k)(1) of which requires the sexual penetration to have been “for the purpose of sexual
arousal, gratification, or abuse . . . .” (§ 289, subd. (k)(1), italics added; see also
Saavedra, at p. 613.) Thus, while lewd or lascivious conduct in violation of section 288,
subdivision (a) requires a specific intent “of arousing, appealing to, or gratifying the lust,
passions, or sexual desires of [the defendant] person or the child” (§ 288, subd. (a)),
sexual penetration in violation of section 288.7, subdivision (b) can be violated with an
abusive rather than an arousing or gratifying intent. (People v. McCoy (2013)
215 Cal.App.4th 1510, 1538 [“the crime of unlawful sexual penetration requires the
specific intent to gain sexual arousal or gratification or to inflict abuse on the victim,”
italics added].)
15
other crimes set forth in section 288.7, subdivisions (a) and (b); (2) different mental states
are required; (3) lewd or lascivious conduct covers a broader range of conduct, with
different age thresholds, than the other more specific sex offenses; (4) the different
statutes prescribe different punishments; and (5) section 288, subdivision (a) specifically
states that the commission of “other crimes” may also constitute the crime of lewd or
lascivious conduct. (§ 288, subd. (a).)
For the foregoing reasons, we conclude section 954 does not prohibit multiple
convictions for lewd or lascivious conduct in violation of section 288, subdivision (a) and
the other crimes set forth in section 288.7, subdivisions (a) and (b) based on the same
physical act. However, while section 954 does not provide defendant with any relief,
section 654 does, and that is precisely what the trial court applied.
III
Miranda Waiver
Defendant further asserts his trial counsel provided constitutionally deficient
assistance by failing to object to the admission of his police interview on the ground that
Detective Lamb did not obtain a valid waiver of his Miranda rights. We address and
reject the core of this assertion outside the rubric of ineffective assistance of counsel. As
we explain, the trial court properly determined that defendant impliedly waived his
Miranda rights.
A. Additional Background
At the start of Detective Lamb’s interview with defendant, she fully and accurately
advised him of his Miranda rights. Before doing so, she also told defendant “when I’ve
read you your rights if you don’t understand them or have any questions about ‘em just
let me know and I’ll clarify, okay?” After the Miranda advisement, defendant did not
indicate a lack of understanding and did not ask for clarification. Detective Lamb then
informed defendant that she was there to speak to him “about a case involving your
daughter” and asked whether he knew “what that’s regarding.” Defendant answered:
16
“Yes, I’ve been informed.” The interview continued from there. We have already
provided a summary of defendant’s admissions during the interview. For present
purposes, we add that defendant’s first language was Moldovan, but he spoke fluent
English and stated that he studied English in school when he moved to the United States
in 2007. Defendant also appeared to be coherent during the interview, seemed to fully
understand the detective’s questions, and also seemed quite intelligent, notwithstanding
some admittedly delusional thinking.
We provide one example of the latter to place the arguments made before the trial
court in their proper context. When asked about his relationship with N.S., defendant
explained that a “group of people” approached him at some point in the past, during his
“spiritual growth,” and told him that he was “very delicious and they wanted to eat
[him].” Defendant continued: “I couldn’t say no. I–for some reason the law in me was
used somehow used to take that away from me. And I said, yes, but they cut my body
apart. They ate it all. And after that there was again a spiritual rule but by myself then.
There was nobody there. But I had the power that nobody else had, you know, I was able
to torment people. So–and when I found the person that was responsible for that and I
tormented them until they build me another body.” Defendant continued in a similar
manner until redirected to a specific question about the allegations of sexual abuse. He
answered that question, and follow-up questions, clearly and concisely.
Defendant filed an in limine motion seeking to, among other things, exclude his
police interview “pursuant to Miranda . . . and its progeny.” The motion itself did not
specify the reason Miranda was claimed to have been violated. The prosecution,
however, filed a more comprehensive opposition to the motion, arguing Detective Lamb
properly advised defendant of his Miranda rights and defendant validly waived those
rights by talking to her about the case.
At the hearing on the motion, the trial court indicated that it had listened to the
interview in its entirety and then heard from defendant’s counsel. Counsel cited records
17
from a psychiatric appointment defendant had about a month before his interview with
Detective Lamb. Counsel described the records as indicating that defendant had a
previous diagnosis of bipolar disorder, presented with “confusing cognitive functioning”
and thinking that was both “delusional and . . . paranoid,” and “he would be further
assessed for psychosis.” Counsel also noted defendant “had not been taking psychotropic
medications for two months” prior to the appointment, “believed that people on the TV
and on the radio [were] talking to him,” among other delusional thoughts, and also had a
chemical imbalance. Counsel then noted defendant returned for a second psychiatric visit
two days later, during which V.S. said defendant “had not been sleeping” and was
“saying things that do not make any sense at all as if he was speaking to a computer.”
The person who saw defendant noted that he “exhibited delusional thought content.”
Defense counsel argued these psychiatric symptoms precluded defendant’s waiver
of his Miranda rights from being “knowing and intelligent”: “When there are symptoms
such as these, paranoia, delusion, psychosis, bipolar disorder, not taking prescribed
medication that he was given for his pre-existing diagnosis, he is deluded to the point that
he believes there is metal in his body, that people on the television and radio are speaking
to him. He is himself seen talking to a computer by his wife and that the computers are
actually talking to him. That is not the behavior of someone who could understand and
knowingly waive Miranda warnings.” Counsel also correctly informed the trial court
that the standard for assessing whether defendant knowingly and intelligently waived his
Miranda rights was “to simply look to the totality of the circumstances.”7
In response, the prosecutor noted the second of these psychiatric visits was on the
same day the police showed up at the house and spoke to defendant about the allegations
7 Defense counsel specifically disclaimed any argument “that Detective Lamb’s
Miranda warnings were defective in any way or there was any police coercion or that the
statement that [defendant] gave to Detective Lamb was involuntary.”
18
of abuse. The prosecutor argued that despite “these diagnoses and these behaviors that he
was exhibiting,” he was nevertheless “able to answer questions that are being posed to
him” by the officers and “able to make denials when he feels that he is being accused of
something he did not do.” The prosecutor also noted that defendant decided to end that
interview and try to reenter the house. The prosecutor then discussed a case from the
United States Supreme Court, Colorado v. Connelly (1986) 479 U.S. 157, 170
[93 L.Ed.2d 473], in which a delusional defendant felt compelled by “the ‘voice of
God’ ” to confess to a murder and the high court held the defendant’s waiver of his
Miranda rights was not thereby rendered involuntary. (Id. at p. 170.)
Finally, the prosecutor turned to the interview with Detective Lamb, noting it
occurred “a month later,” and arguing: “[Defendant] is able to correct the detective
during the interview. He is able to correct the detective about her grammar. He is able to
talk about two different worlds he lives in, as he expresses it, but he can track both sides.”
As an example of these two worlds, the prosecutor cited defendant’s statements to the
detective indicating that he viewed his children’s ages differently than their actual ages.
As stated previously, defendant stated that he viewed N.S.’s age as being 14 and a half.
However, as the prosecutor noted, he appeared to understand that his “calculations” were
not the same as “the rest of the world.” Indeed, he agreed with the detective when she
clarified that the children were four, six, and seven years old, as she put it, “[i]n my–my
terms.” The prosecutor argued, “there are multiple examples, which is why we wanted
the Court to review the audio in its entirety, because there are multiple examples of that
description that the defendant will use where he will say, in my world it’s this, but in
your world, it’s this.” The prosecutor then noted the detective often asked defendant
questions to make sure he had “situational awareness.” The prosecutor argued,
“defendant understood what conversation he was having and who he was having it with,
and if the defendant was able to understand that, then I think it would logically follow
19
. . . that [he] understood what he was doing when he waived his Miranda rights and
proceeded to talk to the officer and engage in the interview . . . .”
Defense counsel responded that the prosecutor’s description of defendant
differentiating “between his world, his calculation of time and Detective Lamb’s world
and her calculation of time is clear evidence of either psychosis or delusion.”
The trial court issued an extensive and thoughtful ruling from the bench. The
court ultimately concluded that defendant both “understood and properly waived his
[Miranda rights]” and also “made a knowing, intelligent, and voluntary statement to law
enforcement.” This conclusion was based on the court’s review of the entire interview,
as well as “all of the mental health records,” including “jail psychiatric records” that
indicated defendant “was thinking and acting rather rationally” closer to the time of the
actual interview, and the fact that defendant was “not a stranger to the criminal justice
system.”
B. Analysis
As a preliminary matter, we note that defendant’s assertion on appeal is one of
ineffective assistance of counsel. He claims his trial counsel provided constitutionally
deficient assistance by not objecting to the admission of his interview with Detective
Lamb on the specific ground that Lamb did not obtain a valid waiver of his Miranda
rights, but rather “plow[ed] directly into the interrogation, without stopping to ask
whether he understood his rights.” However, there being no explicit waiver in this case,
the parties appeared to have assumed that an implied waiver would be found if it could be
“clearly inferred from [defendant’s] actions and words,” after being properly advised of
his Miranda rights, that he “knowingly and voluntarily waived [those] rights” by
speaking to the detective. (North Carolina v. Butler (1979) 441 U.S. 369, 373
[60 L.Ed.2d 286] (Butler).) Defense counsel specifically argued defendant’s psychiatric
condition prevented any such waiver from being knowing and intelligent. The trial court
disagreed and found a knowing waiver of these rights based on the totality of
20
circumstances surrounding the interrogation. To be sure, defense counsel did not
specifically argue the detective’s “Miranda procedure” of moving directly from
advisement to questioning rendered any subsequent implied waiver invalid, but that
procedure was part of the totality of the circumstances the trial court considered in
making its ruling. We conclude defense counsel’s objection preserved the claim raised
on appeal and will therefore address the claim outside the rubric of ineffective assistance
of counsel.
“The rule the [United States Supreme] Court established in Miranda is clear. In
order to be able to use statements obtained during custodial interrogation of the accused,
the State must warn the accused prior to such questioning of his right to remain silent and
of his right to have counsel, retained or appointed, present during interrogation.” (Fare v.
Michael C. (1979) 442 U.S. 707, 717 [61 L.Ed.2d 197].) “Miranda further recognized
that after the required warnings are given the accused, ‘[i]f the interrogation continues
without the presence of an attorney and a statement is taken, a heavy burden rests on the
government to demonstrate that the defendant knowingly and intelligently waived his
privilege against self-incrimination and his right to retained or appointed counsel.’
[Citation.]” (Id. at p. 724.) “[A] valid waiver of Miranda rights may be express or
implied.” (People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 218 (Sauceda-
Contreras).)
Here, there is no dispute that Detective Lamb accurately delivered the required
warnings. Nor is there any claim that defendant expressly waived his Miranda rights.
The question we must resolve, whether defendant impliedly waived those rights, “is not
one of form, but rather whether the defendant in fact knowingly and voluntarily waived
the rights delineated in the Miranda case.” (Butler, supra, 441 U.S. at p. 373.) As the
high court has made clear, while “courts must presume that a defendant did not waive his
rights[,] . . . in at least some cases waiver can be clearly inferred from the actions and
words of the person interrogated.” (Ibid.) This question “must be determined on ‘the
21
particular facts and circumstances surrounding [the] case, including the background,
experience, and conduct of the accused.’ [Citations.]” (Id. at pp. 374-375.)
As our Supreme Court has summarized: “Although there is a threshold
presumption against finding a waiver of Miranda rights [citation], ultimately the question
becomes whether the Miranda waiver was knowing and intelligent under the totality of
the circumstances surrounding the interrogation.” (People v. Cruz (2008) 44 Cal.4th 636,
668 (Cruz).) Moreover, “[a]lthough we independently determine whether, from the
undisputed facts and those properly found by the trial court, the challenged statements
were illegally obtained [citation], we ‘ “give great weight to the considered conclusions”
of a lower court that has previously reviewed the same evidence.’ [Citations.]” (People
v. Wash (1993) 6 Cal.4th 215, 236.) The knowing and voluntary nature of such a waiver
need only be established by a preponderance of the evidence. (Ibid.)
Defendant argues this standard is not met in this case because he did not tell
Detective Lamb that he understood each of his Miranda rights and knowingly and
voluntarily waived them. Defendant also argues two additional circumstances prevented
any implied waiver of his Miranda rights from being knowing and intelligent; his mental
illness and the fact that English was not his first language. We are not persuaded.
First, defendant was not required to specifically tell the detective that he waived
his rights. It is conceded that no express waiver occurred. We are determining whether
an implied waiver occurred based on the totality of the circumstances.
Second, defendant’s argument that the “transcript is replete with instances in
which he didn’t understand what the detectives were asking him, and in which he gave
responses that were either delusional or included words that didn’t make sense in the
context of the sentences,” is belied by the record. Having reviewed the transcript and
listened to the audio of the interview, we are confident that there was no language barrier
between Detective Lamb and defendant during the interview. As the trial court observed,
defendant “speaks very, very good English.” Indeed, on one occasion, he corrected the
22
detective’s grammar. Moreover, as the trial court also observed, Detective Lamb
specifically asked defendant “no problems understanding what we’re talking about here?”
She then told him to ask her to clarify if there was anything he did not understand. He
did not indicate there was any lack of understanding. And when defendant did not
understand a question later in the interview, he followed the detective’s instruction and
asked for clarification. For example, when asked about N.S.’s allegations of child
molestation, defendant said, “child molestation I’m not sure what that is.” The detective
responded, “in this case it would be oral copulation, meaning that she sucked your penis.”
Defendant admitted: “Yes, she did.”
We do acknowledge the seemingly delusional nature of some of defendant’s
responses. However, just as delusions do not necessarily render a waiver of Miranda
rights involuntary (Colorado v. Connelly, supra, 479 U.S. 157, 170), nor do they
necessarily render such a waiver unknowing. We must view defendant’s odd statements
in the context of the entire interrogation.
Defendant’s first strange statement about his children’s ages was followed by the
detective asking him whether he had any medical issues. Defendant answered that his
body was “jumped” prior to his birth and implanted with metal. In response, the
detective asked defendant a series of questions to make sure he knew where he was
located in time and space, as well as the identity of the President of the United States.
Defendant answered these questions correctly. Although defendant said the year was
2028 by his “counting,” he knew the year was actually 2018. Defendant also
acknowledged he previously went to a psychiatric facility after he threatened to harm his
children. Defendant then answered a series of questions about his life and living
situation. Only then did the interview shift to allegations of sexual abuse. It was at this
point that defendant asked the detective to clarify the meaning of “child molestation” and
admitted that N.S. orally copulated him. We have already described defendant’s further
admissions, including his apparent belief that N.S. initiated their first sexual contact, that
23
“spirits entered [him] and her and confused [him],” and that defendant ultimately
engaged in oral, vaginal, and anal sex with his daughter between three and five times.
Additional details need not be recounted here. It will suffice to note that notwithstanding
defendant’s strange beliefs, our review of the entire recorded interview reveals he
understood the detective’s questions and provided direct and coherent answers to her
specific questions regarding the abuse.
Turning to the crux of defendant’s appellate contention, we acknowledge the fact
that defendant did not state that he understood his rights is a relevant circumstance. (See,
e.g., Sauceda-Contreras, supra, 55 Cal.4th at p. 206; Cruz, supra, 44 Cal.4th at p. 666;
People v. Whitson (1998) 17 Cal.4th 229, 245.) We disagree, however, with his assertion
that this circumstance is “a bridge too far under Miranda and Butler.” To be sure, in
Butler, supra, 441 U.S. 369, the suspect was asked whether he understood his rights and
replied that he did. (Id. at pp. 370-371.) Similarly, in Sauceda-Contreras, supra,55 Cal.4th 203, the defendant “clearly indicated that he understood each of those rights.”
(Id. at p. 206.) In Cruz, supra, 44 Cal.4th 636, after the defendant answered, “ ‘more or
less’ ” when asked whether he understood his Miranda rights, the detective repeated each
of the rights, and the defendant “indicated after each one that he understood.” (Id. at
p. 666; see also Whitson, at p. 245 [the “defendant affirmatively told the interviewing
officers that he understood those rights”]; People v. Sully (1991) 53 Cal.3d 1195, 1233
[“Asked if he understood his rights, defendant, a former police officer, responded, ‘Yes, I
do.’ ”].) However, in none of these cases did the court hold an affirmative expression of
understanding is required. It is simply one circumstance to be considered among the
totality of the circumstances surrounding the interrogation.
In this regard, In re Eduardo G. (1980) 108 Cal.App.3d 745 (Eduardo G.) is
instructive. There, concurrent with the minor’s adjudication hearing, the juvenile court
heard and denied the minor’s Miranda motion seeking to suppress statements he made to
police officers during a traffic stop. (Id. at p. 750.) The officers had reason to believe the
24
minor was driving a stolen car. One of the officers advised the minor of his Miranda
rights and asked whether he gave up these rights. The minor answered in the affirmative.
He was then asked whether the car was stolen, and the minor admitted to stealing the car.
(Id. at pp. 751-752.) However, between the advisement and the waiver, the minor “was
not asked if he understood the constitutional rights which he had just heard.” (Id. at
p. 752.) Our colleagues at the Second Appellate District concluded the failure to so
inquire did not require the exclusion of the minor’s statement. (Id. at pp. 755-757.) The
court first explained that although minors “are provided a mantle of protection in our
society because of their inability to make insightful, mature decisions,” this did not mean
that they lacked capacity to waive their Miranda rights in a knowing and intelligent
manner. (Id. at p. 756.) Assessing the totality of the circumstances, the court explained
that the following circumstances supported the trial court’s denial of the motion: (1) the
minor was 17 years old; (2) he was properly advised of his Miranda rights; (3) prior to
the waiver, there was “no incommunicado incarceration, . . . no ‘third degree’ atmosphere
prevailed, . . . [he] was not exposed to threat or cajolery, . . . there was no lengthy
interrogation”; and (4) the record did not “suggest that the [minor] was taken unfair or
unlawful advantage of due to his ignorance, lack of intelligence, mental condition or
vulnerability to persuasion.” (Id. at p. 757.)
Here, as in Eduardo G., defendant was properly advised of his Miranda rights and
was not asked whether he understood them. However, contrary to defendant’s argument
on appeal, this circumstance alone does not dictate the result. We have already dispelled
the notion that defendant did not understand the questions posed by Detective Lamb. He
clearly did. And far from possessing low intelligence, the record supports the trial court’s
observation that defendant “attended school until the eleventh grade, that he came to the
United States from Moldova, that he received his GED, that he attended some courses in
college at [Sacramento City College], that he received some sort of certificate degree in
mechanical engineering and worked on planes at Mather Air Force Base.” These
25
observations support a conclusion that defendant was more sophisticated than the minor
in Eduardo G. We also note that the record supports the trial court’s observation that
defendant was “not a stranger to the criminal justice system,” although we do not know
whether defendant had his Miranda rights read to him in connection with a prior case.
We acknowledge, as did the trial court, that defendant “does have some mental
health issues.” However, for reasons already expressed, our review of both the transcript
and the audio of the interview supports the trial court’s conclusion that these issues did
not prevent defendant from understanding the detective or providing coherent answers to
her specific questions regarding the abuse.8
We further agree with the trial court’s assessment that Detective Lamb never
sought to take advantage of defendant’s mental problems during the interview. As
mentioned, trial counsel disclaimed any argument that the detective engaged in coercion
or unduly influenced defendant’s statement. One concrete example of Detective Lamb’s
efforts to make sure defendant understood what he was admitting to, as well as
defendant’s ability to engage in conversation knowingly and intelligently, occurred when
the detective asked a “silly” but “serious question,” specifically what defendant
understood vaginal sex, anal sex, and oral copulation to mean. When she asked him
whether he agreed that oral copulation meant “when a male or female places their mouth,
um, over a penis,” defendant agreed and added: “Well oral copulation could mean when
a man is playing with his mouth with a woman’s vagina too.” The trial court observed:
“That is a certain level of in my view intellectual reasoning that shows me that there is a
8 We also note the trial court’s observations regarding the jail psychiatric records
are supported by the record. Two reports from February 13 and February 15, 2018, about
two weeks before defendant’s interview with Detective Lamb, indicate defendant was
oriented to person, place, date, situation, and his thought processes were intact and
coherent. However, we consider defendant’s performance during the interview itself to
be a better indicator of his ability to understand and knowingly waive his Miranda rights.
26
clear indication that he is knowingly and intelligently engaging in a conversation with
these officers notwithstanding what appears to be his mental health issues.” We agree
with this assessment.
Finally, we note that defendant had already confessed to V.S. at the time of the
interrogation, demonstrating that he was comfortable discussing his conduct towards his
children.
The record supports the trial court’s determination that defendant knowingly
waived his Miranda rights.
IV
Failure to Object to the Pretext Jail Conversation
Defendant’s second assertion of ineffective assistance of counsel also fails. As
previously mentioned, Detective Lamb facilitated a pretext conversation between V.S.
and defendant at the jail. While the conversation was in-person, a glass panel separated
defendant and V.S., with communication occurring through telephones on each side of
the glass. At the start of the call, defendant was informed that the conversation would be
recorded. We have already set forth the relevant contents of the conversation and decline
to repeat them here.
Defendant did not object to the admission of this conversation below, forfeiting a
direct challenge to its admission in this appeal. (See People v. Quiroz (2013)
215 Cal.App.4th 65, 78.) Implicitly acknowledging this fact, defendant contends his trial
counsel provided constitutionally deficient assistance by failing to object on the ground
that defendant’s statements in the conversation were involuntarily obtained by an agent of
the police. Not so.
A criminal defendant has the right to the assistance of counsel under both the Sixth
Amendment to the United States Constitution and article I, section 15, of the California
Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right “entitles the
defendant not to some bare assistance but rather to effective assistance. [Citations.]
27
Specifically, it entitles him to ‘the reasonably competent assistance of an attorney acting
as his diligent conscientious advocate.’ [Citations.]” (Ibid.) The burden of proving a
claim of ineffective assistance of counsel is squarely upon the defendant. (People v.
Camden (1976) 16 Cal.3d 808, 816.) “ ‘In order to demonstrate ineffective assistance of
counsel, a defendant must first show counsel’s performance was “deficient” because his
“representation fell below an objective standard of reasonableness . . . under prevailing
professional norms.” [Citations.] Second, he must also show prejudice flowing from
counsel’s performance or lack thereof. [Citation.] Prejudice is shown when there is a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” ’ ” (In re Harris (1993) 5 Cal.4th
813, 832-833, disapproved on another point in Shalabi v. City of Fontana (2021)
11 Cal.5th 842, 854-855, fn. 5; Strickland v. Washington (1984) 466 U.S. 668, 687
[80 L.Ed.2d 674, 693].) Defendant has not carried his burden of demonstrating deficient
performance.
Had counsel objected to the pretext conversation on involuntariness grounds, the
prosecution would have been required to establish by a preponderance of the evidence
that defendant’s statements in the conversation were voluntary and not obtained as a
result of police coercion. (People v. Massie (1998) 19 Cal.4th 550, 576 (Massie); People
v. Maury (2003) 30 Cal.4th 342, 404 (Maury) [“finding of coercive police activity is a
prerequisite to a finding that a confession was involuntary under the federal and state
Constitutions”].) “Under both state and federal law, courts apply a ‘totality of
circumstances’ test to determine the voluntariness of a confession. [Citations.] Among
the factors to be considered are ‘ “the crucial element of police coercion [citation]; the
length of the interrogation [citation]; its location [citation]; its continuity” as well as “the
defendant’s maturity [citation]; education [citation]; physical condition [citation]; and
mental health.” ’ [Citation.] . . . In determining whether a confession was voluntary,
28
‘[t]he question is whether defendant’s choice to confess was not “essentially free”
because his will was overborne.’ [Citation.]” (Massie, at p. 576.) “A confession may be
found involuntary if extracted by threats or violence, obtained by direct or implied
promises, or secured by the exertion of improper influence.” (Maury, at p. 404.)
Assuming, without deciding, that V.S. was acting as an agent of the police when
she spoke to defendant at the jail, a matter subject to considerable doubt (see People v.
Martin (2002) 98 Cal.App.4th 408, 419-420 [providing witness with equipment to record
a conversation with the defendant did not make the witness an agent of the police for
purposes of determining whether his right to counsel was violated]), the totality of the
circumstances surrounding the conversation does not reveal any coercive conduct at all.
Indeed, defendant does not claim that V.S. threatened him, engaged in any violence, or
promised him anything of value in exchange for his confession. His argument on appeal
is limited to what he calls “emotional pressure” from V.S., for example, asking defendant
whether he wanted to get help in order to be a family again, telling him that N.S. was
having dreams about him apologizing to her but she did not believe him, and asking
defendant whether he felt any remorse for raping his daughter. Defendant cites no
authority supporting the suggestion that such statements rise to the level of coercion. Nor
have we found any on our own. Defendant further argues that “[V.S.] and the detective
took advantage of [defendant’s] mental illness.” However, as with his police interview,
our review of the pretext conversation reveals that defendant was able to intelligently
engage in conversation with his wife notwithstanding his mental health issues.
We conclude any objection to the admission of the pretext conversation on
grounds that defendant’s statements were involuntarily obtained as the result of coercive
police conduct would have failed. Counsel is not ineffective for failing to bring a
meritless challenge to admissible evidence. (People v. Hart (1999) 20 Cal.4th 546, 629.)
29
V
Unanimity Instruction
Defendant also claims the trial court prejudicially erred and violated his federal
constitutional rights by omitting “critical wording” from CALCRIM No. 3501 regarding
the requirement of unanimity. Defendant did not object to this instruction at trial.
“Failure to object to instructional error forfeits the issue on appeal unless the error affects
defendant’s substantial rights. [Citations.] The question is whether the error resulted in a
miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818 . . . .” (People v.
Anderson (2007) 152 Cal.App.4th 919, 927.) We conclude there was no miscarriage of
justice. The claim is therefore forfeited.
The jury was instructed: “The defendant is charged with numerous acts of child
molestation against [N.S.] and one count of child molestation against [C.S.] [¶] The
People have presented evidence of more than one act to prove that the defendant
committed these offenses. You must not find the defendant guilty unless: [o]ne, you all
agree that the People have proved that the defendant committed at least one of these acts
and you all agree on which act he committed; or [two,] you all agree that the People have
proved that the defendant committed all the acts alleged to have occurred.”
Defendant argues: “The first option should have included the following italicized
language: ‘You all agree that the People have proved that the defendant committed at
least one of these acts and you all agree on which act he committed for each offense.’
(CALCRIM No. 3501, brackets omitted.) Without the italicized words, the court’s
instruction allowed the jurors to bypass the requirement that they unanimously agree on
which act [defendant] committed for each count, and instead only agree that he
committed at least one of the alleged acts.”
While we agree with defendant that the challenged instruction should have
included “for each offense,” we are not persuaded that the jury would have read the entire
charge in the manner he asserts on appeal. “The correctness of jury instructions is
30
determined from the entire charge by the trial court and not from consideration of part or
parts of an instruction. [Citation.] We assume the jurors are intelligent persons capable
of understanding and correlating all jury instructions given them.” (People v.
Milosavljevic (2010) 183 Cal.App.4th 640, 649.) “[T]he question is whether there is a
‘reasonable likelihood’ that the jury understood the charge as the defendant asserts.”
(People v. Kelly (1992) 1 Cal.4th 495, 525.)
Here, the challenged instruction began by referring to multiple counts and then
informed the jury that the prosecution “presented evidence of more than one act to prove
that the defendant committed these offenses.” (Italics added.) The jury was then
informed unanimity with respect to which act he committed was required. The omitted
“for each offense” language would have made it crystal clear that unanimity is required
for each offense. But even without that language, a reasonable jury would have read the
instruction to require unanimity for “these offenses,” i.e., each of the multiple offenses
referred to at the start of the instruction. Moreover, we must read the challenged
instruction together with CALCRIM No. 3515, which followed immediately after
CALCRIM No. 3501. That instruction informed the jury: “Each of the counts charged in
this case is a separate crime. You must consider each count separately and return a
separate verdict for each one.” Read together, we conclude the jury was likely to have
interpreted CALCRIM No. 3501 correctly, and not, as defendant suggests, to allow it to
convict him of multiple molestation counts based on only one act of molestation.
Defendant’s instructional error claim is forfeited and, in any event, also fails.
VI
Cumulative Prejudice
Having identified no errors, prejudicial or otherwise, defendant’s assertion of
cumulative prejudice also fails.
31
VII
Sentencing Error
Finally, defendant asserts five claims of sentencing error. We need to address
only two. As we explain post, we reject defendant’s assertion that he is eligible for only
one multiple-victim “sentence enhancement.” The multiple-victim allegation, found true
by the jury, is not an enhancement, but rather qualified defendant for sentencing under
the One Strike law. However, as the Attorney General properly concedes, the trial court
does not appear to have understood that it had the discretion to sentence defendant to
concurrent as opposed to consecutive terms of imprisonment under the One Strike law.
This requires remand for a new sentencing hearing.9
9 This conclusion makes it unnecessary to address whether or not the sentence
originally imposed amounted to cruel and/or unusual punishment in violation of the
federal or California Constitutions. Defendant acknowledges as much with respect to his
as-applied challenge to the constitutionality of his sentence, but argues we should
nevertheless address his facial challenge to the One Strike law. In that regard, we simply
note that a mandatory life sentence for specified sex crimes committed against vulnerable
members of society under aggravating circumstances is not “excessive in any case,” as
defendant argues on appeal. Indeed, a multitude of appellate decisions has upheld the
constitutionality of such sentences in a variety of circumstances. (See, e.g., People v.
Reyes (2016) 246 Cal.App.4th 62, 85; People v. Crooks (1997) 55 Cal.App.4th 797, 805-
809.) Defendant may, however, raise his as-applied challenge to whatever sentence the
trial court imposes on remand. We also decline to address whether or not the trial court
violated the Sixth and Fourteenth Amendments by imposing consecutive terms for the
crimes committed against N.S. because the necessary factual finding was made by the
judge rather than a jury. A similar issue is currently pending before our Supreme Court.
(See People v. Catarino, review granted Jan. 19, 2022, S271828.) Defendant may also
raise this issue before the trial court during the new sentencing hearing. Finally,
defendant argues he is entitled to retroactive application of Assembly Bill No. 518 (2021-
2022 Reg. Sess.) (Stats. 2021, ch. 441). On remand, defendant may assert his entitlement
to the benefit of this change in the law. (See People v. Mani (2022) 74 Cal.App.5th 343,
351.) We express no opinion on the matter.
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A. One-Strike Sentencing
“Approximately six months after the Legislature enacted the ‘Three Strikes’ law
as urgency legislation, it adopted section 667.61, the One Strike law. [Citations.] This
section sets forth an alternative and harsher sentencing scheme for certain enumerated sex
crimes . . . .” (People v. Mancebo (2002) 27 Cal.4th 735, 741 (Mancebo).) As relevant
here, “[a] person who is convicted of [one of the enumerated offenses] under one of the
circumstances specified in subdivision (e), [including the circumstance that such an
offense was committed in the present case against more than one victim,] 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.” (§ 667.61, subd. (j)(2); see also § 667.61, subd. (e)(4).)
Section 667.61, subdivision (o) “requires the facts of any specified circumstance to be
pled and proved to the trier of fact or admitted by the defendant in open court” and
“[s]ubdivision (f) provides that if only the minimum number of qualifying circumstances
required for One Strike sentencing treatment have been pled and proved, they must be
used as the basis for imposing the One Strike term rather than to impose lesser
enhancements or punishment under any other law.” (Mancebo, at p. 742 [summarizing
subdivision (f) and former subdivision (i), now subdivision (o)].)
Defendant argues “the prosecution pled the multiple-victim enhancement only
after Count 18, creating a reasonable inference that it was only seeking one 25-to-life
enhancement,” as opposed to multiple enhanced terms of 25-to-life for each conviction
subject to the One Strike sentencing scheme. In support of this argument, defendant first
relies on Mancebo, supra, 27 Cal.4th 735, in which our Supreme Court held two gun-use
enhancements had to be stricken where gun use was one of two special circumstances
pled and proved to qualify the defendant for sentencing under the One Strike law. (Id. at
pp. 743-745.) In so holding, the court rejected the argument that the error was harmless
because the trial court could have substituted the properly pled and proved gun-use
circumstance for an unpled multiple-victim circumstance because the defendant was
33
convicted of enumerated offenses against more than one victim. (Id. at pp. 741, 743.)
Relying on the plain meaning of section 667.61, specifically the subdivisions summarized
above, the court explained that because the properly pled and proved gun-use
circumstance was required to impose the One Strike sentence, it was not available to
support the gun-use enhancements. And because a multiple-victim circumstance was not
pled in the case, it was not available to be substituted for the gun-use circumstance, even
though there was no dispute that it would have applied had it been properly pled.
(Mancebo at pp. 744-745.)
Here, there is no dispute that the multiple-victim circumstance was pled and
proved. At the end of the amended information, the prosecution “further alleged that the
defendant . . . has been convicted in the present case or cases of committing an offense
specified in subdivision (c) against more than one victim, within the meaning of Penal
Code Section 667.61(e)(4) and 667.61(j)(2).”
In support of the argument that the prosecution was required to plead the
circumstance with respect to each count, as opposed to at the end of the charging
document, defendant relies on People v. Anderson (2020) 9 Cal.5th 946 (Anderson).
There, “the court held that an information alleging a 25-year-to-life vicarious firearm
enhancement under section 12022.53, subdivision (e) as to a single murder count did not
provide adequate notice that the prosecution would seek the same enhancement on five
robbery counts as to which the enhancement was not pleaded.” (People v. Laanui (2021)
59 Cal.App.5th 803, 816 (Laanui), citing Anderson, at p. 950.) The Anderson court
explained: “A pleading that alleges an enhancement as to one count does not provide fair
notice that the same enhancement might be imposed as to a different count. When a
pleading alleges an enhancement in connection with one count but not another, the
defendant is ordinarily entitled to assume the prosecution made a discretionary choice not
to pursue the enhancement on the second count, and to rely on that choice in making
decisions such as whether to plead guilty or proceed to trial.” (Anderson, at p. 956.)
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In Laanui, supra, 59 Cal.App.5th 803, our colleagues at the Second Appellate
District concluded the Anderson court’s concerns about fair notice to a defendant were
not present in the context of a prior strike allegation under the Three Strikes law (§ 667).
That court held “[p]leading and proof of a prior strike allegation is sufficient to subject a
defendant to Three Strikes sentencing on all eligible offenses, without alleging the strike
on a count-by-count basis.” (Id. at pp. 817-818.)
We reach the same conclusion with respect to the multiple-victim allegation pled
and proved under the One Strike law in this case. Unlike the sentence enhancements at
issue in Anderson, our Supreme Court has made clear that “the One Strike law is not
. . . a sentence enhancement. ‘A sentence enhancement is “an additional term of
imprisonment added to the base term.” [Citation.]’ [Citation.] The 25-year minimum
term of the One Strike law ‘does not fall within [this] definition of an enhancement,
because it is not an “additional term of imprisonment,” and it is not added to a “base
term.” ’ [Citation.] Rather, it ‘sets forth an alternate penalty for the underlying felony
itself, when the jury has determined that the defendant has satisfied the [statute’s]
conditions . . . .’ [Citation.] Thus, the One Strike law does not establish an enhancement,
but ‘sets forth an alternative and harsher sentencing scheme for certain enumerated sex
crimes’ when a defendant commits one of those crimes under specified circumstances.
[Citations.]” (People v. Acosta (2002) 29 Cal.4th 105, 118-119.)
Here, in compliance with section 667.61, subdivision (o), the prosecution pled and
proved the multiple-victim special circumstance qualifying defendant for sentencing
under the One Strike law. No more was required.
B. Remand is Required for an Exercise of Discretion
Finally, defendant argues the trial court “failed to recognize its discretion to
sentence the sexual intercourse convictions . . . and the lewd acts convictions that weren’t
stayed . . . concurrently instead of consecutively.” The Attorney General concedes the
35
point with respect to the lewd conduct convictions.10 We accept the concession and will
therefore vacate defendant’s sentence and remand the matter for a new sentencing
hearing.
Section 667.61, subdivision (i) provides: “For any offense specified in paragraphs
(1) to (7), inclusive, of subdivision (c), or in paragraphs (1) to (6), inclusive, of
subdivision (n), 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.” These
offenses are: “(1) Rape, in violation of paragraph (2) or (6) of subdivision (a) of Section
261. [¶] (2) Rape, in violation of paragraph (1) or (4) of subdivision (a)
of former Section 262. [¶] (3) Rape or sexual penetration, in concert, in violation of
Section 264.1. [¶] (4) Lewd or lascivious act, in violation of subdivision (b) of Section
288. [¶] (5) Sexual penetration, in violation of subdivision (a) of Section 289. [¶]
(6) Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of
Section 286. [¶] (7) Oral copulation, in violation of paragraph (2) or (3) of subdivision
(c), or subdivision (d), of Section 287 or former Section 288a.” (§ 667.61, subd. (c); see
also § 667.61, subd. (n)(1)-(6).) Defendant was not convicted of any of these offenses.
The probation report recommended consecutive sentences for defendant’s crimes
based on the factors set forth in California Rules of Court, rule 4.425, without mentioning
section 667.61, subdivision (i). At the sentencing hearing, the prosecution argued for
10 With respect to defendant’s sexual intercourse convictions, the Attorney General
notes that defendant was sentenced to terms of 25 years to life, not because of the One
Strike law, but because section 288.7, subdivision (a) requires that term of imprisonment
be imposed. While true, this provision does not require the trial court to impose
consecutive terms of imprisonment. For reasons to be explained post, the trial court did
not distinguish between these convictions and the other convictions when imposing
consecutive sentences in this case. Instead, it appeared to believe the One Strike law
required consecutive sentences for all.
36
consecutive sentences while impliedly acknowledging concurrent sentences were a
possibility if the trial court were inclined to grant defendant some leniency. However,
defense counsel stated: “What [the prosecution] is saying regarding a recommendation
and concurrent time, in my reading of the law, I don’t think the Court has any–even if the
Court wanted to exercise discretion, I don’t think the Court can.” The trial court agreed
stating, “[t]he only way this could be concurrent would be if I were to find that one or
more of these offenses that occurred against [N.S.] were perpetrated on the same day, but
I’m not making that finding.” After explaining that the crimes committed against N.S.
were alleged and proved to have been committed on separate occasions, the trial court
concluded, “it would be an error for me not to impose consecutive sentencing, and I don’t
think you would have an argument to do otherwise.”
Then, before imposing defendant’s sentence, the trial court stated: “So I am going
to absolutely follow the Probation Department’s recommendations. Actually, it’s what
the law requires[.]” The court then imposed consecutive sentences on all counts that
were not stayed pursuant to section 654. Regarding the reason for imposing consecutive
sentences, the court stated: “I incorporate by reference my earlier colloquy between
myself and [defense counsel] with respect to why I am imposing consecutively in this
case.”
Because defendant was not convicted of any of the crimes specified in section
667.61, subdivision (i), consecutive sentencing was discretionary, not mandatory.
(People v. Lopez (2022) 76 Cal.App.5th 287, 291.) However, as the Attorney General
concedes, the trial court “appeared to believe that consecutive sentences were mandated
by [this provision].” “ ‘It is axiomatic that when an issue entrusted to the trial court’s
discretion is properly presented to the court for decision, the court must exercise its
discretion: In such a case a statement or other evidence that the court believes it has no
discretion, but must rule in a certain way, indicates an error so fundamental as to be said
to amount to a refusal to exercise jurisdiction.’ [Citation.]” (People v. Bolian (2014) 231
37
Cal.App.4th 1415, 1421.) “Because the trial court may not have recognized it had
discretion to impose concurrent or consecutive sentences on [defendant’s] convictions
. . . remand is appropriate to allow the trial court to exercise that discretion. On remand,
the court must state its reasons for imposing either concurrent or consecutive sentences.”
(Lopez, at p. 294; see Cal. Rules of Court, rule 4.406(b).)
DISPOSITION
The sentence is vacated, and the matter remanded to the trial court for a new
sentencing hearing, during which the trial court shall: (1) exercise its discretion in
imposing either consecutive or concurrent terms of imprisonment, stating reasons for that
sentencing choice; and (2) prepare an amended abstract of judgment and forward a
certified copy to the Department of Corrections and Rehabilitation. The judgment is
otherwise affirmed.
\s\ ,
McADAM, J.*
We concur:
\s\ ,
HULL, Acting P. J.
\s\ ,
RENNER, J.
* Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
38