People v. Graves ( 2020 )

Filed 3/9/20
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A152603
v. (San Mateo County
JOHN PAUL GRAVES, Super. Ct. No. 16-NF-005927-A)
Defendant and Appellant.
A jury convicted John Paul Graves1 of one felony count of annoying or
molesting Jane Doe, a child under 18 (Pen. Code,2 647.6, subd. (c)(2)) and one
felony count of lewd acts involving Jane Doe, a child of 14 or 15 years by a
person at least 10 years older (§ 288, subd. (c)(1)). The trial court later found
true allegations that Graves had two prior felony convictions within the
meaning of section 647.6, subdivision (c)(2) and that Graves had served three
prior prison terms within the meaning of section 667.5.
Graves claims the court erred by allowing evidence of his past offenses
to be introduced under Evidence Code section 1108. He claims the trial court
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II.A., B., C., D., and E.
We note defendant’s last name is listed as “Graves-Ocon” on the
1
abstract of judgment, but the trial court record includes signed statements by
defendant and his parents in which his last name is simply “Graves.”
Unless otherwise specified, further statutory references are to the
2
Penal Code.
erroneously instructed the jury that the testimony of a single witness could
suffice to convict him, and that Jane Doe’s out-of-court report of the assault to
her friend could be used to establish that the assault occurred. He further
alleges the court was sua sponte obliged to give a unanimity instruction, and
that his sentence was unauthorized under section 647.6. Finally, in
supplemental briefing, Graves argues and the People agree, and so de we,
that under Senate Bill No. 136 (2019–2020 Reg. Sess.), effective January 1,
2020, the sentencing enhancements imposed for service of prior prison terms
must be stricken.
In the published portion of this opinion, we affirm the sentence imposed
on Graves under section 647.6. In the unpublished portion of the opinion we
reject his other arguments, except for his challenge to the sentence
enhancement. We strike the sentence enhancement imposed under
section 667.5, subdivision (b) for service of a prior term of incarceration in
state prison. In all other respects, we affirm. The case is remanded for
resentencing.
I. BACKGROUND
On May 20, 2016, Jane Doe and her friend Lucy went shopping at a
mall in San Mateo. Jane was 15 years old at the time. While browsing in a
clothing store, she noticed Graves was standing close to her. Soon after,
Graves came up behind Jane, put his hand on her right buttock and
“squeeze[d] tight.”
After squeezing Jane’s buttock, Graves entered the store’s changing
room, removed his shirt, and stepped out of the changing room multiple
times. He was bare chested and made eye contact with Jane each time.
Within minutes after Graves grabbed her, Jane told Lucy that Graves
had touched her. Lucy said that when Jane told her, she was “very upset and
2
about to start crying.” Jane and Lucy then told the store’s employees that
Graves had grabbed Jane’s buttock. Mall security detained Graves until
police arrived. The police conducted a field show-up and, after admonishing
her, asked Jane to look at a suspect. She identified Graves as the man who
grabbed her. Police arrested him. He had previous convictions for annoying
or molesting minors as well as sexual battery of minors.
The jury returned verdicts finding Graves guilty of annoying or
molesting a child under the age of 18 in violation of section 647.6,
subdivision (c)(2) (count 1), and committing a lewd act upon a child age 14 or
15 years by a person at least 10 years older in violation of section 288,
subdivision (c)(1) (count 2). Two prior felony convictions for violations of
section 647.6 and three prior terms in state prison as alleged under
section 667.5, subdivision (b) were found true by the court. On count 1,
Graves was sentenced under section 647.6, subdivision (c)(2) to the middle
term of four years in prison. The middle term of two years in prison was
imposed and stayed on count 2, under section 654. An additional year was
imposed for one of the prior prison terms for a total sentence of five years in
prison. This appeal is timely.
II. DISCUSSION
A. Admissibility of Prior Convictions Under Evidence Code
Section 1108
Graves claims the trial court abused its discretion by allowing the
prosecution to introduce his record of prior sexual offenses under Evidence
Code section 1108. We disagree.
1. Additional Facts
The court ruled that Graves’s prior convictions for annoying or
molesting minors (§ 647.6) and for sexual battery of minors (former § 314.1)
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were admissible at trial under Evidence Code section 1108. Based on this
ruling, the parties reached a stipulation that was read to the jury. It stated:
“One, that on—that in 2013, the defendant was convicted in Santa
Clara County of the following: On or about July 20th, 2012, the crime of
annoying or molesting a child under 18 in violation of Penal Code
Section 647.6[, subdivision (c)(2)], a felony, was committed by John Paul
Graves who did annoy, molest a child under the age of 18 years, Cassandra
Doe, 16 years old.
“Two, that in 2011, the defendant was convicted in San Mateo County
of the following: On or about September 29, 2010, John Paul Graves-Ocon
did willfully and unlawfully annoy or molest a child under the age of 18
years, Gisela M. in violation of Penal Code Section 647.6[, subdivision] (c)(1).
“Three, that in 2009, the defendant was convicted in San Francisco
County of the following: That on or about November 26th, 2007, John P.
Graves did violate Penal Code Section 314.1 in that the defendant did
willfully and unlawfully and lewdly expose his person and the private parts
thereof in a public place and in a place where there were present other
persons to be offended and annoyed thereby, to wit, Lucy F. and Emma M.
“That on or about November 26th, 2007, John P. Graves did violate
Penal Code Section 647.6 in that the defendant did willfully and unlawfully
annoy, molest a child under the age of 18 years, Lucy F, Olivia F, Madeline A,
Molly D, Sophie H, Allisa G, Emma M and Tabitha S.”
2. Analysis
Evidence Code section 1101 generally prohibits the admission of
evidence the defendant committed a prior crime to prove the defendant likely
committed a later crime. (Id., subd. (a).) However, Evidence Code
section 1108, subdivision (a) provides an exception to this rule that allows
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evidence of a prior sexual offense when a defendant is charged with a sex
crime.
To prevent unfair misuse of such propensity evidence offered under
Evidence Code section 1108, the trial court is to weigh its admissibility under
Evidence Code section 352. (Evid. Code, § 1108; People v. Falsetta (1999)
21 Cal. 4th 903, 916–918, 920 (Falsetta).) Under Evidence Code section 352,
“[t]he court in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury.” “We will
not overturn or disturb a trial court’s exercise of its discretion under section
352 in the absence of manifest abuse, upon a finding that its decision was
palpably arbitrary, capricious and patently absurd.” (People v. Jennings
(2000) 81 Cal. App. 4th 1301, 1314 (Jennings).)
The trial court did not abuse its discretion here. The evidence admitted
under Evidence Code section 1108, subdivision (a) was highly probative
because, as the Legislature has recognized, “ ‘the willingness to commit a
sexual offense is not common to most individuals; thus, evidence of any prior
sexual offenses is particularly probative and necessary for determining the
credibility of the witness.’ ” (People v. Soto (1998) 64 Cal. App. 4th 966, 983.)
Indeed, “ ‘[s]uch evidence “is [considered] objectionable, not because it has no
appreciable probative value, but because it has too much.” ’ ” (Falsetta,
supra, 21 Cal.4th at p. 915, italics omitted; People v. Soto, at pp. 989–990.)
Graves counters that his prior convictions were not particularly
relevant in this case because the charged sexual offenses occurred in a public
place, not in relative seclusion where there may be no corroborating
witnesses. Because the potential witnesses in the store testified that they did
5
not see him touch Jane Doe, Graves argues there is no justification for
admission of the other crimes. Here, he says the lack of corroboration simply
shows a reasonable doubt as to his guilt, and does not raise any issue
regarding his possible propensities. But Graves did not defend the charges
on the basis that no touching occurred. Rather, he claimed that any touching
was inadvertent or incidental to moving past Jane in the store aisle.
Whether or not Jane’s claim could have been corroborated by other witnesses
was not the issue. Graves’s other crimes were highly relevant to prove his
intent. (Falsetta, supra, 21 Cal.4th at pp. 922–923.) Moreover, Graves cites
no law to support his argument that the use of prior crimes evidence is
limited to situations in which there are no witnesses to corroborate the
victim’s claims.
The stipulation also lessened any possible prejudice. “[T]he test for
prejudice under Evidence Code section 352 is not whether the evidence in
question undermines the defense or helps demonstrate guilt, but is whether
the evidence inflames the jurors’ emotions, motivating them to use the
information, not to evaluate logically the point upon which it is relevant, but
to reward or punish the defense because of the jurors’ emotional reaction.”
(People v. Valdez (2012) 55 Cal. 4th 82, 145.) Here, the stipulation stated the
charges, the date each offense occurred, the victims’ ages and their first
names (apparently to show that each of the prior victims was female). The
stipulation contains no details of the conduct that resulted in the convictions,
thereby making it easier for the jury to evaluate the stipulation objectively
rather than emotionally.
Graves still insists the risk of prejudice that the jury would punish him
for his past conduct was high. But he identifies nothing about the stipulation
other than the number of prior convictions that would inflame the passions of
6
the jury. Indeed, this argument is a double-edged sword, because his
numerous convictions are also part of what make his prior sexual offenses
probative. (Falsetta, supra, 21 Cal.4th at p. 915.)
In short, we cannot conclude the trial court abused its discretion when
admitting Graves’s prior convictions under Evidence Code section 1108
because the convictions were highly relevant to the charges against him and
were admitted in a manner that minimized their potential to inflame the
jury.
B. CALCRIM No. 1190 and Due Process
The trial court gave CALCRIM No. 1190 at the end of the trial. It
provides in its entirety that: “Conviction of a sexual assault crime may be
based on testimony of a complaining witness alone.”
Graves argues it was error to instruct with CALCRIM No. 1190
because there are certain elements of the charged crimes in this case that the
complaining witness could not possibly know, and it “essentially exhorts the
jury in sexual misconduct cases to disregard the court’s other instructions
that the defendant is entitled to an acquittal unless the People have proved
each element of each charged offense beyond a reasonable doubt.” Again, we
disagree.
1. Additional Facts
The trial court provided the jury with other instructions that bear upon
our analysis of Graves’s claim of error. First, at the beginning and end of the
trial, the court instructed the jury on the presumption of innocence and the
People’s burden to prove guilt beyond a reasonable doubt with CALCRIM
7
No. 220.3 The court also instructed the jury for each charged crime on the
elements that were required to be proven beyond a reasonable doubt.
At the beginning and the end of the trial the court also provided the
jury with CALCRIM No. 226, on evaluating the credibility of witnesses. That
instruction, in part, told each juror that: “You, alone, must judge the
credibility or believability of the witnesses. In deciding whether testimony is
true and accurate, use your common sense and experience. [¶] You must
judge the testimony of each witness by the same standards, setting aside any
bias or prejudice you may have. You may believe all, part, or none of any
witness’s testimony. Consider the testimony of each witness and decide how
much of it you believe.” CALCRIM No. 226 also provides the jury with a list
of considerations for evaluating the truthfulness of witness testimony. At the
conclusion of the trial, the court also delivered CALCRIM No. 301, stating,
“The testimony of only one witness can prove any fact. Before you conclude
the testimony of one witness proves a fact, you should carefully review all the
evidence.”
Finally, at the end of the trial, the court delivered CALCRIM No. 200,
which instructed the jury to “[p]ay careful attention to all of these
instructions and consider them together.”
2. Analysis
“ ‘ “[T]he correctness of jury instructions is to be determined from the
entire charge of the court, not from a consideration of parts of an instruction
3CALCRIM No. 220 provides: “A defendant in a criminal case is
presumed to be innocent. This presumption requires that the People prove a
defendant guilty beyond a reasonable doubt. Whenever I tell you the People
must prove something, I mean they must prove it beyond a reasonable doubt
[unless I specifically tell you otherwise]. [¶] . . . [¶] . . . Unless the evidence
proves the defendant[ ] guilty beyond a reasonable doubt, [he] is entitled to
acquittal, and you must find [him] not guilty.”
8
or from a particular instruction.” ’ ” (People v. Salazar (2016) 63 Cal. 4th 214,
248.) “[W]hen all the instructions are given, ‘a balance is struck which
protects the rights of both the defendant and the complaining witness.’ ”
(People v. Gammage (1992) 2 Cal. 4th 693, 701 (Gammage).)
In Gammage, our Supreme Court considered whether it was error to
give CALJIC No. 10.60, concerning testimony by the complaining witness in a
sex offense trial, in conjunction with the general instruction on a single
witness’s testimony in CALJIC No. 2.27. The defendant argued the
combination of the instructions “improperly suggested that the jury should
view his testimony with caution [citation], but that the testimony of the
complaining witness need not be viewed with caution.”4 (Gammage, supra,
2 Cal.4th at p. 697.) The court analyzed the charge in the context of all the
instructions given and rejected the defendant’s argument. (Id. at pp. 700–
701.)
As in Gammage, we analyze Graves’s claim of instructional error by
examining the entire charge of the court. Here, too, the trial court instructed
the jury that it must consider all the instructions together. Witness
credibility was for each juror to decide based on “common sense and
experience” and “setting aside any bias or prejudice.” The jury was
instructed on the elements the prosecution was required to prove to convict
CALJIC No. 10.60 provides: “It is not essential to a finding of guilt on
4
a charge of [sexual activity] that the testimony of the witness with whom
sexual relations is alleged to have been committed be corroborated by other
evidence.” It is the corollary of CALCRIM No. 1190. CALJIC No. 2.27
provides: “You should give the [uncorroborated] testimony of a single witness
whatever weight you think it deserves. Testimony concerning any fact by one
witness which you believe, [whose testimony about that fact does not require
corroboration] is sufficient for the proof of that fact. You should carefully
review all the evidence upon which the proof of that fact depends.” It is the
corollary of CALCRIM No. 301.
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Graves of each of the charged crimes. Moreover, “[t]he jury [was] instructed
that the prosecution must prove its case beyond a reasonable doubt. This
place[d] a heavy burden of persuasion on a complaining witness whose
testimony [was] uncorroborated.” (Gammage, supra, 2 Cal.4th at p. 701.)
Taken together, these instructions informed the jury that Jane’s testimony
would be sufficient to convict Graves if the jury was convinced that her
testimony was truthful and if the jury concluded her testimony proved every
element of the offenses with which Graves was charged beyond a reasonable
doubt.
To distinguish his case from Gammage, Graves contends CALCRIM
No. 1190 does not correctly state the law because “there are often (if not
always) elements of sexual assault crimes that a complaining witness would
be unable to establish via testimony.” For example, Graves notes that a
child’s testimony often cannot establish the final element of count 2 in this
case, which requires that the child be at least 10 years younger than the
defendant, because in most cases a child will not know the perpetrator’s age.
Graves concludes that “[a]s a result, the instructions as a whole fail to
adequately convey that a defendant cannot be convicted unless the
prosecution proves each element of each charged offense beyond a reasonable
doubt.” Nonsense. The law is clear that the testimony of a single witness can
establish any fact. (Evid. Code, § 411.) Any contradictions or weaknesses in
a witness’s testimony are matters to be explored on cross-examination and
can be argued to the trier of fact. (People v. Robertson (1989) 48 Cal. 3d 18,
44.) Moreover, Graves’s example of possible deficiency in child testimony is
of no moment. Graves’s age was proven by the admission of his driver’s
10
license, so even if the jury misunderstood the charge as Graves argues, the
purported instructional error was necessarily harmless.5
When the instructions are reviewed together, the only reasonable
conclusion is that the jury could only convict Graves if the People had proven
all elements of the charged offenses beyond a reasonable doubt, including any
elements that could not have been proven by Jane Doe’s testimony alone.
(People v. Salazar, supra, 63 Cal.4th at p. 248.)
C. CALCRIM No. 318 and the Fresh Complaint Doctrine
Graves claims the trial court erred by instructing the jury with
CALCRIM No. 318 because it allowed the jury to consider Lucy’s testimony
that Jane told her she was touched by Graves shortly after it happened to “be
considered substantively by the jury to prove Graves’ guilt of the charged
offenses.” Graves also appears to argue his counsel was ineffective for failing
to request that CALCRIM No. 318 be modified so that Jane’s statement could
not be considered as evidence the assault occurred. The Attorney General
argues this claim was forfeited, and that any possible error was harmless.
We agree that Graves was not prejudiced by any possible error in admission
of this statement without a limiting instruction or modification of CALCRIM
No. 318.
1. Additional Facts
Lucy testified about what happened in the store with Jane Doe. During
direct examination, the prosecutor asked her, “Without going into the details
of it, did she tell you that she was touched?” Lucy responded, “Yes.” Lucy
said that she and Jane were towards the back of the women’s section near the
changing room when Jane told her that Graves touched her. Jane was very
5To be clear, it is not reasonable to conclude that the instructions as
given would have caused such a misperception.
11
upset and about to start crying when she told her. No other details were
provided about Jane’s disclosure to Lucy.
2. Analysis
The trial court admitted Lucy’s testimony under the “fresh complaint
doctrine.” Fresh complaint evidence is admitted “for the limited purpose of
showing that a complaint was made by the victim, and not for the truth of the
matter stated. [Citation.] Evidence admitted pursuant to this doctrine may
be considered by the trier of fact for the purpose of corroborating the victim’s
testimony, but not to prove the occurrence of the crime.” (People v. Ramirez
(2006) 143 Cal. App. 4th 1512, 1522, citing People v. Brown (1994) 8 Cal. 4th
746, 761.)
As given by the trial court, CALCRIM No. 318 provides: “You have
heard evidence of statements that a witness made before the trial. If you
decide that the witness made those statements, you may use the statements
in two ways: [¶] One, to evaluate whether the witness’s testimony in court is
believable; [¶] And, two, as evidence that the information in those earlier
statements is true.” Because the last portion of CALCRIM No. 318 would
allow the jury to conclude Jane’s report to Lucy was true, Graves argues it
was error to give the instruction or to give it without modification.
We begin by observing that Graves neither objected to CALCRIM
No. 318 in the trial court nor asked that it be modified. His failure to do
either ordinarily forfeits this claim. (People v. Sully (1991) 53 Cal. 3d 1195,
1218; see People v. Tuggles (2009) 178 Cal. App. 4th 1106, 1130 [failure to
request modification or amplification of CALCRIM Nos. 318 and 335 forfeited
claim of instructional error].)
Graves relies on section 1259 to argue there is no forfeiture.
Section 1259 permits an appellate court to “review any instruction given . . .
12
even though no objection was made thereto in the lower court, if the
substantial rights of the defendant were affected thereby.” (§ 1259; People v.
Smithey (1999) 20 Cal. 4th 936, 976, fn. 7.) An instructional error violates a
defendant’s substantial rights if it is reasonably probable the defendant
would have obtained a more favorable result absent the error. (People v.
Elsey (2000) 81 Cal. App. 4th 948, 953–954, fn. 2.) Accordingly, we will
consider whether it is reasonably probable the result at trial would have been
different if CALCRIM No. 318 were refused or modified.
On this record we have no difficulty concluding it would not. Lucy’s
testimony was limited to confirming that Jane said she was touched. She
provided no details of the incident. In its entirety, Lucy’s description of
Jane’s comment lacks sufficient detail to prove either count. But more
importantly, Jane testified at trial and provided a detailed account of
Graves’s behavior. “[T]he jury did not have to rely on her secondhand
statements to other people, but was able to hear her directly and judge her
credibility. Her fresh complaint statements were consistent with and
cumulative to her trial testimony. [Citation.] Thus, we conclude any
instructional error was harmless.” (People v. Manning (2008)
165 Cal. App. 4th 870, 881; accord, People v. Ramirez (2006) 143 Cal. App. 4th
1512, 1526–1527.)
D. Ineffective Assistance of Counsel
Graves alternatively claims his trial counsel was ineffective for failing
to object to CALCRIM No. 318 or to request a proper instruction. To
establish ineffective assistance of counsel, Graves must prove (1) that his
trial counsel’s representation was deficient because it fell below an objective
standard of reasonableness under prevailing professional norms, and (2) the
deficiency caused him prejudice. (People v. Maury (2003) 30 Cal. 4th 342, 389;
13
Strickland v. Washington (1984) 466 U.S. 668, 687.) If a defendant makes an
insufficient showing on either of those components, a claim of ineffective
assistance of counsel fails. (People v. Holt (1997) 15 Cal. 4th 619, 703;
Strickland, at p. 687.) In light of our conclusion that Graves cannot show he
was prejudiced by any instructional error, his ineffective assistance claim
fails.
E. Unanimity Instruction
Graves contends a unanimity instruction was required because “the
prosecutor argued and presented evidence that Graves had violated
section 647.6 in two distinct ways: first, he had allegedly squeezed Jane
Doe’s right buttock with his hand; and second, he allegedly came in and out of
a co-ed dressing room without a shirt and stared at Jane Doe.” Graves’s
contention is based on a mischaracterization of the record and therefore lacks
merit.
1. Additional Facts
During her closing argument, the prosecutor repeatedly emphasized
that Graves had grabbed Jane Doe’s buttock. In discussing the evidence in
support of count 1, annoying or molesting a child under the age of 18 in
violation of section 647.6, the prosecutor said, “Would a reasonable person, a
normal person without hesitation have been disturbed by this conduct? Some
random stranger, an adult male you don’t know, suddenly comes to you and
grabs your buttocks in the store. Yes, absolutely.” In wrapping up her
argument on this count, the prosecutor mused, “How does one accidentally
grab another person’s buttocks, and she specifically felt the squeeze of her
buttocks.” When applying the facts to the elements of count 2, a lewd act
involving a child of 14 or 15 years by a person at least 10 years older in
violation of section 288, subdivision (c)(1), the prosecutor described the first
14
element as requiring proof “the Defendant willfully touched any part of a
child’s body, either on the bare skin, . . . or it can be through clothing.” The
prosecutor relied on Jane Doe’s testimony that Graves “touched her buttocks
through the clothing over the clothes” to prove this element.
Indeed, the only time the prosecutor mentioned Graves’s shirtless
appearances from the store’s changing room was during her rebuttal
argument. In closing, defense counsel claimed that “one-second-incidental
conduct in a public place is not child molestation.” The prosecutor began
rebuttal by observing that counsel’s one-second characterization of Graves’s
act did not take into account its many ramifications, among them that “one
second doesn’t take into account the fact that the Defendant was coming out
of the fitting room without a shirt on making eye contact with [Jane Doe] just
staring over at her multiple times.” Other than this brief comment that
Graves’s emergence from the fitting room evidenced his intent, the prosecutor
never again mentioned this behavior. Rather, the gravamen of the
prosecution’s argument was that Jane was “able to discern between an
inadvertent bump and an intentional squeeze.”
3. Analysis
A criminal defendant has a constitutional right to a unanimous jury
verdict. (Cal. Const., art. I, § 16.) “ ‘Additionally, the jury must agree
unanimously the defendant is guilty of a specific crime. [Citation.]
Therefore, cases have long held that when the evidence suggests more than
one discrete crime, either the prosecution must elect among the crimes or the
court must require the jury to agree on the same criminal act.’ ” (People v.
Hawkins (2002) 98 Cal. App. 4th 1428, 1452, italics added.) No duty to
instruct exists if the prosecutor elects to rely on a specific act to prove the
charge. (People v. Salvato (1991) 234 Cal. App. 3d 872, 878–880.)
15
“The duty to instruct on unanimity when no election has been made
rests upon the court sua sponte.” (People v. Melhado (1998) 60 Cal. App. 4th
1529, 1534.) “[S]uch an instruction must be given sua sponte where the
evidence adduced at trial shows more than one act was committed which
could constitute the charged offense, and the prosecutor has not relied on any
single such act.” (People v. Dieguez (2001) 89 Cal. App. 4th 266, 274–275.)
Here, the prosecutor elected to use Graves’s grabbing Jane Doe’s
buttock as the offending conduct to prove both counts. Her closing argument
focused exclusively on that act as the criminal conduct. Only when defense
counsel argued that Graves’s contact with Jane was incidental or inadvertent
did the prosecutor rely on his repeated shirtless displays and eye contact to
demonstrate his intent and sexual motivation. Given the prosecutor’s
exclusive focus on the grabbing as the basis for both counts, the court had no
duty to give a unanimity instruction.6
F. Authorized Sentence Under Section 647.6
Section 647.6, subdivision (c)(2) provides an enhanced sentence of two,
four or six years in prison for a defendant with a record of certain prior
crimes who is convicted of violating the statute. Graves was assessed a
midterm sentence of four years for his violation of section 647.6. He asserts
this enhanced sentence was unauthorized because neither of his two prior
6 This argument is somewhat nuanced in the briefing. Graves
acknowledges that in light of the jury verdict rejecting his defense of
inadvertent contact with Jane, the failure to give a unanimity instruction
would be harmless error, citing People v. Diedrich (1982) 31 Cal. 3d 263, 283.
Thus, he says, reversal would only be required in the event we were to
reverse count 2 on one of the grounds argued in his brief. We have not, and
neither does the record support his claim that the jury could have, considered
his shirtless displays as the basis for one of the charged crimes.
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felony convictions for violations of section 647.6 involved a minor under 14
years of age. Graves’s argument is based upon a misreading of the statute.
Section 647.6, subdivision (c)(2) provides: “Every person who violates
this section after a previous felony conviction under Section 261, 264.1, 269,
285, 286, 287, 288.5, or 289, or former Section 288a, any of which involved a
minor under 16 years of age, or a previous felony conviction under this
section, a conviction under Section 288, or a felony conviction under
Section 311.4 involving a minor under 14 years of age shall be punished by
imprisonment in the state prison for two, four, or six years.”
Under the longstanding “last antecedent rule” of statutory
interpretation, “ ‘qualifying words, phrases and clauses are to be applied to
the words or phrases immediately preceding and are not to be construed as
extending to or including others more remote.’ ” (White v. County of
Sacramento (1982) 31 Cal. 3d 676, 680.) “Evidence that a qualifying phrase is
supposed to apply to all antecedents instead of only to the immediately
preceding one may be found in the fact that it is separated from the
antecedents by a comma.” (Ibid.) However, the use of a disjunctive such as
the word “or” denotes alternative or separate categories. (Ibid.)
Applying the last antecedent rule to subdivision (c)(2) of section 647.6,
the phrase “involving a minor under 14 years of age” modifies the
immediately preceding phrase “or a felony conviction under Section 311.4.”
The statute’s use of the word “or” “indicates an intention to use it
disjunctively so as to designate alternative or separate categories.” (White v.
County of Sacramento, supra, 31 Cal.3d at p. 680.) The phrase “involving a
17
minor under 14 years of age” therefore does not extend to other clauses in
section 647.6, subdivision (c)(2).7
This limiting application of the phrase is further apparent because
other age requirements are mentioned within section 647.6,
subdivision (c)(2)’s specification of prior offenses. For example, “a previous
felony conviction under Section 261, 264.1, 269, 285, 286, 287, 288.5, or 289,
or former Section 288a,” are all modified by the clause “any of which involved
a minor under 16 years of age.”
The trial court correctly determined that Graves should be punished
per section 647.6, subdivision (c)(2) based on his prior convictions, which did
not require proof that the convictions involved a minor under 14 years of age.
Graves had prior convictions for felony annoying or molesting a child under
18 in violation of section 647.6, subdivision (c)(2) in 2012, and felony
annoying or molesting a child in violation of section 647.6, subdivision (c)(1)
in 2007. These two prior felony convictions for violating section 647.6
authorized the court to impose a four-year sentence on Graves under
subdivision (c)(2).
7 There is an exception to the last antecedent rule “which ‘provides
that “ ‘[w]hen several words are followed by a clause which is applicable as
much to the first and other words as to the last, the natural construction of
the language demands that the clause be applicable to all.’ ” ’ ” (Lickter v.
Lickter (2010) 189 Cal. App. 4th 712, 726.) We are aware of no case that
applies the exception to disregard the effect of clauses, like those in
section 647.6, subdivision (c)(2), that are written “disjunctively so as to
designate alternative or separate categories” (White v. County of Sacramento,
supra, 31 Cal.3d at p. 680).
18
G. The Sentencing Enhancement for a Prior Prison Term Must
Be Stricken
The sentence imposed included a one-year enhancement under
section 667.5, subdivision (b) due to Graves’s incarceration in state prison for
two prior violations of section 647.6. Effective January 1, 2020, section 667.5
was amended to limit the prior prison terms that qualify for the enhancement
to those served “for a sexually violent offense as defined in subdivision (b) of
Section 6600 of the Welfare and Institutions Code.” (§ 667.5, subd. (b); Stats.
2019, ch. 590, § 1.) Under the new law, prison terms served for violations of
section 647.6 no longer qualify for enhancement under section 667.5,
subdivision (b).
When the Legislature acts to lessen or eliminate the prescribed
punishment for an offense, the reduction must be applied in all cases that are
not yet final when the statute becomes effective. (In re Estrada (1965)
63 Cal. 2d 740; accord, People v. Nasalga (1996) 12 Cal. 4th 784, 792.) Such is
the case here. The People agree, and so do we.
The one-year enhancement imposed for Graves’s prior service of a term
in state prison must be stricken, and we will remand for resentencing to
allow the trial court to exercise its sentencing discretion in light of this
modification. (People v. Navarro (2007) 40 Cal. 4th 668, 681–682.)
III. DISPOSITION
The one-year enhancement of sentence imposed under section 667.5,
subdivision (b) for Graves’s prior service of a term in state prison is stricken.
The judgment in all other respects is affirmed. The case will be remanded for
resentencing on both counts to allow the trial court to exercise its discretion
in light of this modification.
19
____________________________
Siggins, P. J.
We concur:
_____________________________
Petrou, J.
_____________________________
Jackson, J.
A152603
People v. Graves
20
Trial Court: San Mateo County Superior Court
Trial Judge: Hon. Joseph C. Scott
Counsel:
Tiffany J. Gates, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General,
Jeffrey M. Laurence, Assistant Attorney General, Donna M. Provenzano, Seth K. Schalit,
and Roni Dina Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
21