People v. Calla CA2/6 ( 2021 )

Filed 10/19/21 P. v. Calla CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B301783
(Super. Ct. No. BA461921)
Plaintiff and Respondent, (Los Angeles County)
v.
JESUS CALLA,
Defendant and Appellant.
Jesus Calla appeals his conviction, by jury, of
committing a lewd act against An.J., a child under the age of 14
(Pen. Code, §288, subd. (a)),1 and of committing a lewd act
against S.J., also under the age of 14. (§288, subd. (a).)
Appellant was acquitted of sexual penetration of Al.J., a child
under the age of 10. (§288.7, subd. (b).) The trial court declared
a mistrial on two counts of sexual intercourse or sodomy with
Al.J. (§288.7, subd. (a)), after the jury was unable to reach a
All statutory references are to the Penal Code, unless
1
otherwise noted.
verdict on those counts. Appellant was sentenced to two
consecutive terms of 15 years to life. (§ 667.61, subd. (b), (e).)
The trial court imposed a restitution fine of $300 and $70 in court
assessments. (§§ 1202.4, subd. (b), 1465.8, subd. (a)(1); Gov.
Code, § 70373, subd. (a).)
Appellant contends the prosecuting attorney
committed misconduct during closing argument and that the trial
court erred when it imposed consecutive rather than concurrent
sentences, calculated his custody credits and imposed fines and
assessments without holding a hearing on his ability to pay. We
remand the matter for resentencing. In all other respects, the
judgment is affirmed.
FACTS
Appellant met N.M. at work, in 2002. She had four
children from a prior relationship: L.J., S.J. (born 1996), An.J.
(born 2001) and Al.J. (born 2004). Appellant and N.M. were
married in 2006 and divorced in 2012. N.M. worked long hours
as a nurse. Appellant was often the primary caregiver for the
children while their mother was at work.
Count 8. From 2009 and 2011, the family lived in
Los Angeles. One Sunday morning, when An.J. was 10 years old,
she went in to appellant’s bedroom to wake him, so he could take
her to catechism class. Appellant told her they had a few
minutes, so she should get in bed with him. When she did,
appellant put his hand down her pajama pants and underwear,
and rubbed her clitoris in a circular motion. Later, appellant
took An.J. to her class.
An.J. did not disclose the abuse because she did not
know how to describe it. About three years later, when she was
2
about 13 years old and in the eighth grade, she told her
boyfriend, E.V., about it.
Count 9. In 2007 and 2008, when S.J. was 11 years
old, the family lived in a two-bedroom apartment in Inglewood
with the children’s godparents and their three children.
Appellant, N.M. and her three daughters all slept in the living
room area of the apartment. One morning, appellant woke S.J.
up and told her it was time to get ready for school. N.M. was not
present; An.J. and Al.J. were still asleep and no one else in the
apartment was awake. Appellant told S.J. to lie next to him on
the floor, under the covers. When she complied, appellant put his
hand under her pajama shorts and underwear and rubbed her
clitoris in a circular motion. Appellant asked S.J. if she liked it,
but she did not respond because she was frozen with fear and
shock.
S.J. first disclosed the incident to a friend when she
was 16 or 17 years old. By that time, appellant and N.M. had
been divorced for one or two years. She did not disclose it earlier
because she was embarrassed and afraid. She was not sure
anyone would believe her. In addition, S.J. loved appellant and
wanted to believe the best of him.
Uncharged Acts. S.J. testified that, in 2009 or 2010,
the family moved to Henderson, Nevada. One day, when she was
13 years old, appellant told her to lie down on the bed next to
him. He put his hand down her pants, under her underwear and
rubbed her vagina in a circular motion.
3
Allegations Resulting in Acquittal or Mistrial.
Appellant was also charged with four offenses against
the youngest sister, Al.J. She testified that when she was
between five and seven years old, appellant touched her vagina,
raped her twice and once sodomized her. Al.J. first disclosed the
abuse in text messages she sent to a friend when she was twelve
years old. The jury found appellant not guilty of two counts of
sexual intercourse or sodomy with a child under the age of 10
years. Because the jury was unable to reach a verdict on the
remaining counts, the trial court dismissed those counts in the
interest of justice.
Expert Testimony. Dr. Jayme Jones, a clinical
psychologist who specializes in treating children and adults who
are victims of child sexual abuse, testified about Child Sexual
Abuse Accommodation Syndrome (CSAAS). Dr. Jones explained
that child sexual abuse typically occurs in secret, without
witnesses. Children are helpless to avoid it or fight back because
they are physically smaller than their abusers and are raised to
obey the adults in their lives. Children may adopt coping
mechanisms to accommodate the abuse and make it more
tolerable. Victims of sexual abuse may delay telling others about
it, or only provide a partial account of their abuse. They may also
disclose details in a piecemeal fashion. The same factors that
make it difficult for children to disclose abuse also make it
difficult for children to speak out, say no or verbalize their
discomfort while the abuse is occurring.
Dr. Jones further explained that it is common for
victims of child sexual abuse to delay disclosure or never disclose
their abuse. More than half of the children who have been
4
sexually abused never disclose the abuse. Only about 10 or 15
percent of victims disclose within the first year.
Defense Evidence. Appellant testified that he always
got along with his step-children, including those who testified
against him. He denied ever touching them in a sexual manner
or having any form of sexual intercourse with them. On cross-
examination, appellant testified that he was not aware of
anything the children would stand to gain by falsely accusing
him. He speculated that the children each had “issues,” including
depression, grief at their grandfather’s death, bullying at school
and resentment over the divorce, that might have motivated their
statements about him.
DISCUSSION
Prosecutorial Misconduct
Appellant contends the prosecuting attorney
committed prejudicial misconduct during her closing argument
because she misstated the evidence while summarizing
appellant’s testimony and the testimony of Dr. Jones, and that
she misstated the law and attempted to shift the burden of proof
to him. We conclude there was no misconduct.
Facts. During her closing argument, the prosecuting
attorney reminded the jury that appellant “wants you to think
that these three little girls who he has not heard from in years
suddenly decided to just pin this child molest case on him. [¶]
Now, you heard from the defendant, and you heard me ask him
basically why – why – why would they do that? What would they
stand to gain by doing that? . . . [¶] And he didn’t really have an
answer to that. There was no motive presented, no reasonable
motive presented as to why these girls would try to frame him,
make this stuff up.”
5
Defense counsel objected that the prosecutor was
“burden shifting.” That objection was overruled and the
prosecutor continued. “He [defense counsel] asked you to look at
the gaps and then fill in the gaps with evidence that you didn’t
have before you. Which is not what you’re supposed to do.
Remember, we talked about that, that you’re only allowed to look
at evidence that you saw here in court, not what you should have
had, not what you might have had.” After defense counsel
objected that the prosecutor misstated the law, the trial court
admonished the jury that “this is closing argument. . . . Nothing
they say is evidence. You will decide what happened in this
case . . . .”
The prosecutor’s argument continued with a
discussion of the reasonable doubt standard. “So [defense]
counsel invited you to look at the gaps, and . . . see if you have
any doubts. And I want you to think about that. See if you have
any doubts. That’s not the People’s burden of proof. It’s not the
People’s burden to proof to see if you have any doubts because
that’s beyond all possible doubt. It’s beyond a reasonable doubt.
Right? . . . [¶] But it’s not any doubts because anything in
human affairs is subject to some possible doubt.”
In discussing Dr. Jones’ testimony about delayed
disclosure and victims’ failure to disclose, the prosecuting
attorney argued, “defense counsel pointed to that as somehow, in
the context of this case, making their disclosure, like, almost
impossible because it happened after a period of years as though
there was some percentage that you can place on it. [¶] In other
words, it’s 67 percent less likely that they would tell after five
years than it would be after 3 years. I mean, there’s no evidence
to support that.” Defense counsel objected that the argument
6
misstated the evidence and the trial court again admonished the
jury that it was their job to determine what the evidence shows.
The prosecutor continued, “Point being, there’s late disclosure in
common. [sic] We’re not putting – we’re not putting . . . numbers
on it, because there are none to be had.”
Discussion. Appellant contends the prosecutor
misstated the People’s burden of proof when she commented that
appellant could not provide a motive for the victims to lie about
him. We are not persuaded.
A prosecutor commits misconduct under California
law when she uses “‘“deceptive or reprehensible methods”’” to
persuade the jury and it is reasonably probable that the
defendant would have obtained a more favorable outcome had the
misconduct not occurred. The standard under federal law
requires conduct “‘“‘“‘“‘so egregious that it infects the trial with
such unfairness as to make the conviction a denial of due
process.’”’”’”’” (People v. Caro (2019) 7 Cal.5th 463, 510.) A
prosecutor’s remarks to the jury will not constitute misconduct
unless, when read in context with the entire argument and the
jury instructions, “there was ‘a reasonable likelihood the jury
understood or applied the complained-of comments in an
improper or erroneous manner. . . .’” (People v. Centeno (2014) 60
Cal.4th 659, 667 (Centeno).)
While advocates are given significant leeway in
argument and we do not “‘“lightly infer”’” misconduct, it is
improper for the prosecutor to misstate the law “‘and particularly
to attempt to absolve the prosecution from its . . . obligation to
overcome reasonable doubt on all the elements . . . .’” (Centeno,
supra, 60 Cal.4th at pp. 666-667.) A prosecutor may also commit
misconduct by misstating facts or referring to facts that are not
7
in evidence. (See, e.g., People v. Hill (1998) 17 Cal.4th 800, 824-
827.)
The prosecutor’s argument here did not violate these
standards. First, the argument accurately characterized
appellant’s testimony. The prosecutor asked appellant whether
he knew of anything the victims would stand to gain by falsely
accusing him. He said he did not. When she asked why the
children would lie about him, appellant mentioned that the
children faced some difficult circumstances after he left the
family. He could not, however, explain how those circumstances
would prompt them to falsely accuse him of sexual assault. As
the prosecutor noted in her argument, appellant could not supply
a motive for them to lie. This argument was not misconduct
because it was grounded in the evidence and was a comment on
the credibility of the victims’ testimony. (People v. Young (2005)
34 Cal.4th 1149, 1191; People v. Boyette (2002) 29 Cal.4th 381,
433.)
For similar reasons, we reject the contention that the
prosecutor misstated Dr. Jones’ testimony. Although somewhat
garbled, the prosecutor’s argument seems to have been that there
is no way to assign a number or percentage to the number of
victims who disclosed after five years of the abuse due to the
absence of data. These comments were fairly based on Dr. Jones’
testimony that there was no good data about the percent of
victims who disclose sexual abuse after five or more years.
Because the prosecutor’s argument was based on the evidence
and reasonable inferences to be drawn from it the argument did
not constitute misconduct. (People v. Valdez (2004) 32 Cal.4th 73,
134.)
8
Nor did the prosecutor attempt to shift the burden of
proof by suggesting that appellant had an obligation to produce
evidence. (People v. Osband (1996) 13 Cal.4th 622, 697.) She
argued that appellant was unable to supply a motive for the
victims to lie about him. She did not suggest he had an
obligation to supply a motive. Instead, she argued the absence of
a motive to lie leant credibility to the victims’ testimony and
detracted from the credibility of appellant’s denials. Arguments
about the witnesses’ relative credibility do not shift the burden of
proof. (People v. Leonard (2007) 40 Cal.4th 1370, 1408.)
Finally, we disagree that the prosecutor misstated
the reasonable doubt standard in her rebuttal argument. The
prosecutor reminded the jury that looking for gaps in the
evidence “is not what you’re supposed to do. Remember, we
talked about that, that you’re only allowed to look at evidence
that you saw here in court, not what you should have had, not
what you might have had.” She continued, “It’s not the People’s
burden of proof to see if you have any doubts because that’s
beyond all possible doubt . . . . [¶] But it’s not any doubts
because anything in human affairs is subject to some possible
doubt. And that’s, in fact, exactly what your instruction says.
But it’s reasonable doubt.”
This argument did not misstate the law. It was
nearly a direct quote from CALCRIM No. 220, on reasonable
doubt, which the trial court provided to the jury. There is no
reasonable probability the jury would have understood this
comment to mean appellant had the burden to prove his
innocence or that the jury could convict him even it was not
convinced of his guilt. “The prosecutor’s reminder, consistent
with CALCRIM No. 220, that the evidence need not eliminate all
9
possible doubt, did not mean they could find defendant guilty
even if they had a reasonable doubt.” (People v. Perez (2017) 18
Cal.App.5th 598, 625.)
Sentencing Error
Appellant contends the trial court abused its
discretion when it ordered that his two terms of 15 years to life be
served consecutively rather than concurrently. Respondent
concedes the trial court had discretion to impose concurrent
sentences but contends the sentence imposed was unauthorized
for a different reason: the trial court failed to impose the
mandatory sentence of 25 years to life for appellant’s conviction
on count 8.2 (§ 667.61, subd. (j).) We will address the latter
contention first.
The information alleges that appellant committed a
lewd act against An.J. and against S.J., both of whom were under
the age of 14. It then alleges, “within the meaning of Penal Code
section 667.61(b) and (e), as to [appellant], as to . . . counts 7
thru 9 that the following circumstances apply: The defendant in
the present case committed an offense specified in Section
667.61(c) against more than one victim.” The information does
not expressly refer to section 667.61, subdivision (j), which
mandates a sentence of 25 years to life where the defendant
commits an offense listed in subdivision (c), under at least one
2 Confusingly, respondent’s brief transposes counts 8 and 9
of the information. Count 8 alleges the lewd act against An.J.
and is the only count eligible for sentencing under section 667.61,
subdivision (j). Count 9 pertains to S.J. and is not eligible for the
longer term mandated by subdivision (j) of section 667.61 because
the offense against S.J. was committed before September 9, 2020,
the effective date of that statute. (Stats. 2010, ch. 219 (A.B.
1844) § 16.)
10
circumstance listed in subdivision (e), against a victim who is
under the age of 14.
Section 667.61, the “One Strike” law, creates an
alternate, harsher sentencing scheme for certain sex offenses
committed under specified circumstances. Subdivision (b) of the
statute provides, “Except as provided in subdivision . . . (j) . . . ,
any 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 15
years to life.” (§667.61, subd. (b).) Subdivision (j) provides, “Any
person who is convicted of an offense specified in subdivision (c)
under one of the circumstances specified in subdivision (e), upon
a victim who is a child under 14 years of age, shall be punished
by imprisonment in the state prison for 25 years to life.”
(§667.61, subd. (j)(2).)
Appellant was convicted of committing a lewd act
against a child, in violation of section 288, subdivision (a). This is
one of the offenses specified in subdivision (c) of section 667.61.
(§ 667.61, subd. (c)(8).) He was convicted of committing that
offense against An.J. and S.J. One of the circumstances listed in
subdivision (e) is 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.” (Ibid., subd.
(e)(4).) An.J. and S.J. were both under 14 when the crimes
occurred. Subdivision (j) provides that a person “shall be
punished” by imprisonment for 25 years to life if that person
commits an offense listed in subdivision (c) under a circumstance
listed in subdivision (e) against a victim who is under the age of
14. Each of those conditions is satisfied here. The trial court was
11
required to impose a sentence of 25 years to life on count 8. Its
failure to do so resulted in an unauthorized sentence.
Appellant contends sentencing him under subdivision
(j) would violate his due process rights because the information
did not notify him that he might be subject to sentencing under
that provision. It alleges only that he is eligible for sentencing
under subdivision (b), which mandates a shorter term of 15 years
to life. Respondent contends the reference to section 667.61,
subdivision (b) provided adequate notice that appellant might be
sentenced under subdivision (j). The question whether an
information alleging the defendant is eligible for sentencing
under section 667.61, subdivision (b) provides adequate notice
that he or she may also be sentenced under subdivision (j) is
pending before our Supreme Court. (In re Vaquera (2019) 39
Cal.App.5th 233 (rev. granted Nov. 26, 2019, S258376); People v.
Zaldana (2019) 43 Cal.App.5th 527 (Zaldana) (rev. granted Mar.
18, 2020, S259731).)
In People v. Jimenez (2019) 35 Cal.App.5th 373, on
which appellant relies, the information alleged the defendant was
eligible for a sentence of 15 years to life under section 667.61,
subdivisions (b) and (e). It did not specifically reference
subdivision (j). (Jimenez, supra, at p. 397.) The court of appeal
held “the failure to plead the enhancement under 667.61(j)(2)
precluded sentencing based on that provision.” (Ibid.) It
reasoned that, “[T]he information only informed Jimenez he could
be sentenced to terms of 15 years to life under Penal Code section
667.61, subdivisions (b) and (e) for committing the alleged
offenses against multiple victims. The information did not put
[Jimenez] on notice that he could be sentenced to terms of 25
years to life under section 667.67(j)(2) for committing those
12
offenses upon multiple victims, at least one of whom was under 14
years of age. Under these circumstances, imposition of sentence
of under section 667.61(j)(2) violated [appellant’s] constitutional
right to due process.” (Ibid.)
In re Vaquera, supra, 39 Cal.App.5th 233 and
Zaldana, supra, 43 Cal.App.5th 527, reached the opposite
conclusion. As the court explained in Zaldana, an accusatory
pleading is sufficient if it contains “‘in substance’” a statement
that the accused has committed a specified public offense.
(Zaldana, at p. 533.) “‘Similarly, the number of an enhancement
statute does not have to be alleged, so long as the accusatory
pleading apprises the defendant of the potential for the enhanced
penalty and alleges every fact and circumstance necessary to
establish its applicability.’” (Ibid., quoting Vaquera, supra, at p.
239.)
The accusatory pleadings in both Vaquera and
Zaldana alleged the defendant committed lewd acts against two
victims who were under the age of 14. Both pleadings alleged the
multiple victim circumstance in section 667.61, subdivision (e)
and referred to subdivision (b) of the statute. Neither referenced
subdivision (j)(2), the provision that mandates a sentence of 25
years to life. Both Vaquera and Zaldana held the reference to
section 667.61, subdivision (b) “provided adequate notice to the
defendant that he could be subject to the longer sentence in
subdivision (j)(2). Not only was the requisite fact that the victims
were under the age of 14 expressly pled, but subdivision (b) itself
stated the 15-year-to-life term applied ‘[e]xcept as provided in
subdivision . . . (j)’ (italics added), i.e., when the 25-years-to-life
term applied because the victims were under the age of 14.”
(Zaldana, supra, 43 Cal.App.5th at p. 534.)
13
Subdivision (b) of section 667.61 refers to subdivision
(j) as an exception to the mandatory 15-year sentence. This
reference is “key to adequate notice – [subdivision (b)] specifically
directed [appellant] to subdivision (j)(2) and its longer prison
term.” (Zaldana, supra, 43 Cal.App.5th at p. 535.) Because the
information alleged the factual predicate necessary for the longer
sentence, e.g., that at least one of the multiple victims was under
the age of 14, “there was no doubt [appellant] was on notice that
he could be subject to subdivision (j)(2).” (Ibid.)
We agree with In re Vaquera and Zaldana. Here, the
information notified appellant that he could be sentenced under
section 667.61, subdivision (b). It also alleged every fact
necessary for him to be sentenced under subdivision (j). The
information alleged that, “within the meaning of section 667.61
(b) and (e),” appellant committed a sex offense listed in
subdivision (c) of the statute against more than one victim and
that the victims were under 14 when the crimes occurred. These
allegations gave appellant adequate notice that he was subject to
sentencing under section 667.61, subdivision (j)(2).
Although we have authority to correct appellant’s
sentence (People v. Vizcarra (2015) 236 Cal.App.4th 422, 432), we
will remand the case for resentencing because, as appellant
noted, the trial court may have misunderstood its discretion to
impose concurrent sentences. At the sentencing hearing, the trial
court noted its understanding that consecutive sentences were
required by sections 667.61 and 667.6, subdivision (d). The trial
court also noted its conclusion that consecutive sentences were
appropriate “based upon the way the law has been written,
consistency of sentences for defendants, and then hearing the
actual factor underpinnings of this case . . . .”
14
Section 667.61 does not require consecutive sentences
where, as here, the defendant has violated section 288,
subdivision (a).3 (§667.61, subd. (i).) The trial court retained
discretion to impose concurrent terms. On remand, it should
exercise its sentencing discretion in light of the changed
circumstances created by our reversal of the sentence on count 8.
(See, e.g., People v. Buycks (2018) 5 Cal.5th 857, 893.) The trial
court should also consider on remand whether appellant has the
ability to pay restitution, fines and fees and whether his pre-
sentence custody credits have been correctly calculated. (People
v. Castellano (2019) 33 Cal.App.5th 485; People v. Dueñas (2019)
30 Cal.App.5th 1157; People v. Fares (1993) 16 Cal.App.4th 954,
959 [“We can perceive no reason why a defendant should lose his
entitlement to credits simply because of inadvertence or
mathematical error of the court, the probation department or his
own counsel”].)
DISPOSITION
The matter is remanded for resentencing consistent
with this opinion. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, Acting P. J.
We concur:
PERREN, J.
TANGEMAN, J.
3Consecutive sentences are required where the defendant
has violated section 288, subdivision (b). (§667.61, subd. (i).)
15
Renee F. Korn, Judge
Superior Court County of Los Angeles
______________________________
Joanna McKim, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, Allison H. Chung, Deputy Attorney
General, for Plaintiff and Respondent.