People v. Fernandez CA3 ( 2021 )

Filed 1/20/21 P. v. Fernandez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(San Joaquin)
----
THE PEOPLE, C080861
Plaintiff and Respondent, (Super. Ct. Nos.
STKCRFE20140008190,
v. SF129708A)
JUSTO PULCIANO FERNANDEZ,
Defendant and Appellant.
Defendant sexually molested two young girls. On occasions in 2000 and 2001,
defendant entered the room where his niece, N.D., was sleeping and touched her breasts
and vagina. N.D. was under the age of 14 at the time. In October 2014, defendant
touched the vagina of the victim J.D., who was also under the age of 14 at the time. J.D.
is unrelated to defendant and his molestation of her took place in a church parking lot. A
jury found defendant guilty of four counts of violating subdivision (a) of Penal Code
1
section 2881 and found true allegations as to each count that defendant committed the
same crime against multiple victims within the meaning of section 667.61, subdivision
(e)(4). The trial court sentenced defendant to an aggregate term of 60 years to life,
consisting of four consecutive terms of 15 years to life.
On appeal, defendant asserts (1) that the trial court prejudicially erred in admitting,
pursuant to Evidence Code section 1360, the entirety of video recorded interviews of the
victims conducted by interviewers at the Child Advocacy Center (CAC). Defendant
asserts that the recordings should have been redacted to present the jury with only so
much of the victim statements as actually “describ[ed] any act of child abuse,” within the
meaning of Evidence Code section 1360 rather than the entire interviews. Defendant
further asserts that (2) the trial court violated ex post facto principles in sentencing him
on counts 2, 3, and 4, all of which involved N.D., under the version of section 667.61 that
was effective at the time of sentencing rather than the version of that section that was in
effect at the time of the 2000 and 2001 offenses. According to defendant, because he was
probation eligible in 2001, he did not qualify for life sentencing under the version of
section 667.61 in effect at the time of those offenses. Defendant also asserts that (3) the
matter must be remanded for the trial court to exercise its discretion to sentence him to
probation or to choose between concurrent and consecutive life sentences.
We conclude that the trial court properly admitted the full interviews conducted
with the victims at CAC. We further conclude that, contrary to defendant’s contention,
he was not statutorily eligible for probation under the sentencing scheme in effect at the
time of his 2000 and 2001 offenses, and, consequently, he was properly sentenced under
section 667.61. However, we agree with defendant, and accept the People’s concession,
that, on this record, we cannot determine whether the trial court was aware it had the
1 Further undesignated statutory references are to the Penal Code in effect at the time of
the charged offenses.
2
discretion to sentence defendant on counts 2, 3, and 4 to concurrent or consecutive
sentences, and, in any event, the court did not state specific reasons for imposing
consecutive sentences. We remand for resentencing, at which the trial court is to exercise
its discretion to choose whether to impose concurrent or consecutive sentences on counts
2, 3, and 4, and, if it imposes consecutive sentences, to state its reasons for doing so. We
will also order the correction of the abstract of judgment, and that, in resentencing
defendant, the trial court impose all appropriate penalty assessments.
In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Charges
Defendant was charged with four counts of lewd acts upon a child under the age of
14 (§ 288, subd. (a); counts 1-4). In count 1, the information alleged that, on or about
October 11, 2014, defendant touched J.D.’s vagina over her clothes, and that J.D. was
under the age of 14 at the time. In count 2, the information alleged that, in or about
October 2000, defendant touched N.D.’s breasts, and that, at the time, she was under the
age of 14. In count 3, the information alleged that, in or about January 2001, defendant
touched N.D.’s breasts, and that, at the time, she was under the age of 14. In count 4, the
information alleged that, in or about January 2001, defendant touched N.D.’s vagina, and
that, at the time, she was under the age of 14. The information further alleged as to each
count that defendant committed the same crime against multiple victims within the
meaning of section 667.61, subdivision (e)(4).
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Prosecution Evidence
Incidents Involving Victim N.D.
N.D. was an adult at the time of trial. When she was nine or ten years old, she
frequently visited her Aunt S’s house. Defendant, who was S’s husband, and their two
daughters (N.D.’s cousins) also lived in the house.2
N.D. testified that defendant would sneak into her aunt’s room where N.D. was
sleeping “and his hands would either go down my pants, underneath the underwears, and
touch my genitalia, as well as there were incidents where he had me touch his genitalia.”
She testified that this occurred “for about five years,” and that “it started at the age of five
until I finally said something at the age of ten.”
N.D. explained that when defendant touched her genitalia, she was referring to her
vagina, and when she said defendant would have her touch his genitalia, she was
referring to his penis, although she could “only recall one instance for that.” Defendant
touched her both over her clothing and under her clothing. Sometimes he touched her
“skin-to-skin.” He also touched her breasts, although, when he started, “it wasn’t too
developed so there wasn’t much to touch.”
N.D. testified that these incidents occurred “almost every time I visit[ed] my aunt.
And I visited my aunt frequently. Almost every weekend or every other weekend.”
Sometimes defendant would not be able to touch N.D. when N.D. slept in her aunt’s
room; according to N.D, “it really would depend on his opportunity, whether she was
really asleep or she wasn’t.”
2 N.D. testified that her Aunt S was her mother’s sister and that defendant had been S’s
husband, but that defendant was now S’s former husband. When defendant testified in
his defense, he testified that he and S were not divorced, although they stopped living
together in 2006.
4
N.D. also recalled an incident when defendant “was eating a slice of melon and
said that the taste of the melon would be similar to having to . . . taste my vagina.”
Defendant warned N.D. that if she said anything, she would no longer be able to
visit and see her aunt and her cousins. N.D. testified that she did not report defendant’s
conduct earlier because she feared that, if she did, she would no longer be able to go to
her Aunt S’s house, and her aunt was “like [her] second mother.” At some point, when
N.D. was in the fifth grade, she was at school speaking with a substitute teacher and some
other children, and she brought the issue up in conversation. After N.D. disclosed the
information to the teacher, another aunt with whom she was living at the time took N.D.
to the police station. She did not recall what happened after that.
Speaking of the time after she reported the matter, N.D. testified that her family
did not believe her. And S told N.D. she had caused her children to be taken away.
N.D.’s CAC Interview and Her Trial Testimony About the Interview
At trial, N.D. testified she did not recall making a statement at CAC in July 2001.
She did remember going into a room there with teddy bears in it, but she did not recall
her statement or any conversation that took place. The prosecution played for the jury a
video recording of N.D.’s statement at CAC and a transcript of the recording was
distributed to the jurors.
During the interview, N.D. told the interviewer she was 10 years old and that she
had finished the fourth grade. She acknowledged she had told her teacher that something
had happened to her. N.D. stated she told her teacher about her uncle, defendant,3 “who
touched me places I didn’t like.” The last incident N.D. could recall occurred in January
3 In the victims’ statements at CAC, the victims identified defendant as Justo and Justo
Fernandez. There is no dispute that, in doing so, they were referring to defendant. In
recounting these statements, we replace references to Justo Fernandez by name with
“defendant.”
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at her aunt’s house in Stockton. When the interviewer asked N.D. what happened, N.D.
responded that she did not know because “normally he does it when I’m sleeping.” N.D.
continued, “[s]o I really don’t . . . what he did or anything but . . . sometimes I wake up
and he (unintelligible) touched me in places I don’t like.” N.D. stated that, when the
incident occurred in January, she was in her Aunt S’s room. She stated that S was in the
room at the time, but “he tried to sneak in when my aunt won’t hear him ‘cause she’s a
light sleeper.” N.D. was in her cousin’s bed, and her cousin was sleeping with S. N.D.
woke up and defendant was pretending to be asleep on the floor. N.D. stated she did not
really know what woke her up, but she thought she may have had to go to the bathroom.
Ordinarily, defendant would sleep in his own room. Asked if she had felt defendant
touch her, N.D. responded, “Yeah a little.” She stated she felt defendant touch her on the
chest under her T-shirt. N.D. got up and went to the bathroom, and, when she returned,
defendant had moved to the living room. Nothing else happened on that occasion.
N.D. told the interviewer that the first incident she could remember occurred in a
hallway when she was playing with her cousin. N.D.’s cousin went to get something to
drink and defendant “tried to start touching” her. N.D. did not let defendant touch her,
and “kept on trying to get away.” N.D. stated that defendant “tried to come near me and I
tried running away but sometimes he catches me.” Defendant caught N.D. by her T-shirt
and started trying to touch her over her clothes. Nothing else happened on that occasion.
On another occasion, N.D. was in the kitchen of her aunt’s house getting
something out of the refrigerator when defendant, from behind her, tried to touch her
between her legs. N.D. stated that defendant “tried touching me but his daughter walked
in. And I also called her.” N.D. stated that defendant did not manage to touch her.
The interviewer asked N.D. how she knew defendant had touched her, apparently
referring to N.D.’s accounts of defendant touching her when she was asleep. N.D.
responded that “[s]ometimes I feel it.” When the interviewer asked if she saw something,
N.D. stated, “No. (Unintelligible) feel is because I would have uh . . . uh feeling that I
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have to go to the bathroom.” N.D. continued: “But I don’t. So I’ll be like awake and I’ll
try to uh . . . when he . . . when I do feel it and I don’t have to go to the bathroom I try to
hurry up and like . . . make sure the blanket (unintelligible) stuff all under me and hum
people stuff them under them self like if they don’t want someone to get them or
anything.” She explained, she would put part of the blanket underneath her body and try
to hold it down with her body so that defendant would not touch her.
N.D. stated that, when defendant touched her, he told her “not to tell or I’m not
going to be able to go to his house anymore.”
After the prosecution played the video recording for the jury, N.D. identified
herself as the girl in the video, and stated that she was 10 years old at the time.
The prosecutor asked N.D. if there were things she did not disclose to the
interviewer in 2001. N.D. responded: “There was the comment about the melon that I
previously said that it was not said. I did refrain from telling at that time -- refrain from
telling a lot of details because I did fear not seeing my aunts and my cousins. I cannot
tell you a specific script of what I did and did not say to them. But I know that there’s a
feeling of regret after I even told the teacher because I didn’t want to risk not seeing them
again.” N.D. further testified there were details she did not want to share with the
interviewer because she feared “it would make matters worse and I would definitely not
see my cousins.”
On cross-examination, N.D. acknowledged she had not disclosed in the interview
that defendant had exposed his penis to her. The first time she disclosed that incident
was during an interview with law enforcement in 2014. N.D. did not talk to anyone
about these events between July 2001 and December 2014. She acknowledged that she
had no independent recollection of the CAC interview.
Incident Involving Victim J.D.
L.H., J.D.’s father, testified that he attended a church in Stockton on Wednesdays
and Saturdays. He was a musician and played piano in a group at the church. On or
7
about October 11, 2014, L.H. went to the church and J.D. and his two sons came with
him. L.H. played with his band and when he returned to where he had left his children,
J.D. was not with her brothers. L.H. then found her crying in a corner. L.H. asked her
what had happened, but J.D. cried, hugged L.H., and was trembling. J.D. then told L.H.
that someone had “said for her to come with him because he was going to give her some
chocolates.” J.D. then told L.H. that something had happened to her. She was crying a
lot and she did not want to tell L.H. what had happened. Initially she told L.H. that “he
was going to give her the chocolate and to go with him,” and that “it was in the
restroom . . . .” According to L.H., eventually J.D. told him that the incident had not
happened in the restroom, that it happened in the parking lot, and that “he hugged her and
that he pushed her up against the car and he embraced her, and he did like sort of sexual
movements on her.” She initially told L.H. that the incident occurred in the restroom
because she thought she would be in trouble with L.H. for going outside to the parking
lot. Asked to describe the movements reported by J.D., L.H. testified that “it is a motion
like to -- having sex, like a movement.” Ultimately, J.D. told L.H. that it was defendant,
who also attended the church, who had done these things to her. L.H. became very
angry. He was going to call the police, but instead he called the pastor’s wife. On cross-
examination, L.H. testified he had seen defendant hand out candy to children before, and
that defendant had given candy to J.D. before.
J.D. was 10 years old at the time of the trial. She testified she was in the fifth
grade and had two brothers. She testified that, on a night in October 2014, she went to
the church and something bad happened. Asked to describe what happened, J.D.
testified: “right when we were inside then I went to go get a drink of water and then I
saw -- the guy like was right there and then he told me if I wanted a candy so I’m like,
um, yeah, but later on. He said come on, just for a little while. And then I’m like, um,
my dad told me not to go outside. So I -- and then he’s like no, come on, it’s just for a
little while, so that’s why I went with him. And then like I was getting the candy, and
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then like, um, I wanted to run away but I couldn’t because like he was like about to rape
me, but like I was scared so I couldn’t move, and then I was about to run away and he
was like he already done it like three times.”
Initially, when asked whether the man was there in court, J.D. said she did not
know, but she identified the man who did it as “Justo.” Ultimately, she identified
defendant in the courtroom as the person who did it to her.
Recounting the incident in more detail, J.D. testified that she went with defendant
to his car. After she was given the candy, she “felt like he was going to do something.”
She wanted to run away, but she was scared and stayed still. Then defendant “did it three
times,” and it lasted for three to five seconds. J.D. testified that she felt defendant’s
private part near her private part. Defendant was “moving his private part around mine.”
He was hugging her when he had his private part on hers for five or six seconds, and then
he let go. He “put his private part on mine, and I didn’t like it. And that’s why I was
crying in church all the time and then my dad figured it out.”
Afterward, defendant acted like nothing happened and went to buy batteries. After
defendant left, J.D. went into the church, crying. J.D. talked to her father about what had
happened, and she also talked to the pastor’s wife. She explained to the jury that when
she first told her father what had happened, she did not tell him that it happened outside
by the car because he had told her not to go outside.
On cross-examination, J.D. acknowledged that defendant gave out candy to a lot
of kids at church.
J.D.’s CAC Interview
The prosecution played a video recording for the jury of J.D.’s statement at CAC.
A transcript of the recording, which is part of the record on appeal, was distributed to the
jurors.
J.D. was nine years old when she was interviewed at CAC. The interviewer asked
J.D. if she knew what she was there to discuss. J.D. responded: “Um, well one day when
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we went to church I was over there using the restroom and then I went to go drink some
water. And then this man from church . . . he came and he said um, ‘Do you want
chocolate?’ And then I’m like uh yeah. I thought he was going to bring it to me. And he
said come on I don’t know my dad might get me in trouble. And he’s like, No. And then
I went. Since I know. And then I went over there and then I was kind of like . . . far
away from the car like the car was right here and I was right here. And then he told me to
come in this place where it’s all dark. And I’m like ok to get my chocolate and then well
so then he said, ‘Give me a hug.’ And I gave him a hug but then he put me like against
the car and then he put his private part with mine.” J.D. stated that she “was about to run
but I couldn’t.” She continued: “Since he was coming really closer and closer. So, so I
couldn’t run. And then . . . well, when I was, when he, got separated close the door. I
came over here quickly. And then um . . . and then he was like, ‘You want another
hug?’, and I’m like ‘No’. And then he’s like, ‘Come on I’ll give you chocolate’. I’m like
‘No’.” When the interviewer asked if she knew the man who did it, J.D. responded that it
was “Justo. El hermano Justo.”
Asked to describe in more detail what the man did when he “put his private part
with” hers, J.D. stated that he “put his tummy first and then he put hum his private part
and then I felt it go like one and then two.” When she referred to the man’s private part,
she was referring to what her brother calls a “weenie.” When he did it, J.D. felt
“something like a little pokey thing or something like that.” She felt it on her “private
part.”
J.D. stated that, after the incident, she went inside and started crying. She then
told her father what had happened.
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Stipulation
The parties stipulated, among other things, that defendant “was convicted of . . .
Section 261.5(d), a felony-unlawful sexual intercourse without force or fear with a minor
14 years old on January 25, 2011, in San Joaquin County, California.”4
Defense Evidence
G.M. testified that she was the wife of the pastor at the church. She testified that
defendant attended the church and helped around the church with “[e]verything,”
including cleaning and picking up trash.
G.M. testified that she spoke with J.D. after an incident with defendant occurred.
J.D. told G.M. that defendant tried to touch her while she was trying to drink water.
While J.D. was describing the incident, her father “was pushing her, ‘Tell her, tell her.’ ”
Defense counsel asked if G.M. told the police that “the little girl told [G.M.] that
[defendant] hugged her,” and if G.M. remembered being told that, and G.M. responded:
“It was a long time ago. [¶] What can I say? The girl came out of the restroom to drink
water. And that right there, [defendant] tried to hug her. But she was crying. And
afterward she would say that he was touching her. She would give me several versions.”
She again testified that “[s]he said that he was trying to hug her.”
G.M. testified that J.D. gave her two different versions of the events. However,
she subsequently testified that it was J.D.’s father who gave the second version.
According to G.M., when J.D. gave the first version, her father was near her, was angry,
and was pushing J.D. to tell G.M. what had happened. When J.D.’s father gave the
second version, he said the incident had not happened in the church, but instead that it
4 The trial court had previously granted the prosecution’s in limine motion, over defense
counsel’s objection, to admit the evidence of the prior sex offense pursuant to Evidence
Code sections 1108 and 1101, subdivision (b). Defendant appropriately does not
challenge that ruling on appeal.
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had happened in the parking lot. On cross-examination by the prosecutor, G.M.
acknowledged that the only difference between the two versions of the event as described
to her was the location where the incident occurred.
G.M. testified that defendant carried bags of candy and gave it to everyone.
According to G.M., defendant was very friendly. She never saw defendant hug or touch
children, and she testified that children did not seem to be afraid of him. A.R., a member
of the church, also testified that he had seen defendant give candy to everyone at the
church.
Defendant testified that he regularly gave out candy to people at church. He said it
was “just a habit of mine.”
Defendant further testified that, on the evening of October 11, 2014, he was at
church and someone asked him to go to the store to get batteries for the pastor’s
microphone. On his way out, defendant saw J.D. by the water fountain near the door.
According to defendant, J.D. asked him, “ ‘Where is my chocolates?’ ” Defendant
responded that they were in the car and that he was on his way out to get some batteries.
When defendant went outside, he turned around and saw that J.D. was following him.
She was saying that she wanted her chocolates. J.D. followed defendant toward his car.
Defendant stopped at his car, retrieved chocolates from the car, and gave one to J.D.
Defendant testified that J.D. raised her arms up to hug him, and he gave her a hug with
one arm, with J.D.’s body to the side of his. He testified his private parts never touched
J.D.’s private parts, he did not rub up against her and the hug last only one second.
Thereafter, he walked to get the batteries.
Minutes later, defendant returned to the church, went inside, and sat down at the
service. Approximately 20 minutes later, G.M. called defendant outside. J.D.’s father
and a person defendant identified as Tonio were outside. Tonio told defendant that he
wanted to talk to him about something serious that had happened. Defendant testified
that Tonio told defendant he thought defendant “had put my private parts on the wall in
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the bathroom.” Asked what he told Tonio, defendant testified: “ ‘Didn’t she come out to
the parking lot? It wasn’t over there on the wall.’ ” Tonio responded that J.D. had said
defendant had tried to hug her in the bathroom. Defendant testified that he did not hug
J.D. in the bathroom. He told Tonio that the only hugging he did was near his car.
Defendant testified he is four feet eleven inches tall. He further testified that in
October 2014, J.D. was probably four to six inches shorter.
Regarding N.D., defendant testified that she used to stay at his house. He did not
want her to stay at his house because “she would always kick me, she would jump on top
of me, and I didn’t like that.” When N.D. would sleep at his house, defendant would
sleep in the living room because “she said that I had touched her” and defendant did not
want any problems. He testified that, when it was very hot or very cold, he would sleep
in the bedroom, on the floor next to the door. There were also times when N.D. would be
at the house when defendant would sleep with his wife in the bed. N.D. would sleep with
one of his daughters. He testified he never touched N.D. inappropriately when he was
sleeping in that room. He also never exposed his penis to N.D. wanting her to touch it,
and he never talked to her about his penis. Defendant further testified that he never
talked to N.D. “about what her vagina tasted like, like it was a piece of fruit.”
Verdict and Sentencing
The jury found defendant guilty on all four counts and found all four section
667.61, subdivision (e)(4), multiple victim enhancement allegations to be true. The trial
court sentenced defendant to 15 years to life on each of the four counts, with the
sentences to run consecutively.
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DISCUSSION
I. The Admission of Statements Made by Victims
Pursuant to Evidence Code Section 1360
A. Additional Background
In his in limine motions, the prosecutor sought the admission, pursuant to
Evidence Code section 1360, of J.D.’s and N.D.’s statements made in the CAC
interviews. The prosecutor asserted that the statements satisfied the foundational
requirements of Evidence Code section 1360. At the hearing, defense counsel noted that
the statements could be admissible for impeachment purposes if the victims testified. He
did not object to the admission of these statements. The trial court granted the
prosecutor’s request, and the video recordings of the victims’ CAC interviews were
played for the jury as set forth ante. However, before J.D.’s interview was played for the
jury, defense counsel stated that “the whole thing’s over our objection, Your Honor. I
stated that earlier,” apparently referring to some off-the-record discussion. No specific
ground for the objection was stated on the record.
B. Evidence Code Section 1360
Evidence Code section 1360, subdivision (a), provides that “In a criminal
prosecution where the victim is a minor, a statement made by the victim when under the
age of 12 describing any act of child abuse or neglect performed with or on the child by
another, or describing any attempted act of child abuse or neglect with or on the child by
another, is not made inadmissible by the hearsay rule” if “three conditions are met: (1)
the court finds that the time, content and circumstances of the statement provides
sufficient indicia of reliability; (2) the child either testifies at the hearing or there is
corroborating evidence of the hearsay statements; and (3) the proponent of the statement
gives notice to the adverse party that it intends to use the statement at trial.” (Evid. Code,
14
§ 1360, italics added; People v. Brodit (1998) 61 Cal.App.4th 1312, 1329 (Brodit).)5
“We review a trial court’s admission of evidence under [Evidence Code] section 1360 for
abuse of discretion.” (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1367.)
C. Defendant’s Contentions
Defendant asserts that the trial court erred in permitting the prosecution to play the
entirety of the video recordings of the victims’ CAC interviews. He asserts that the video
recordings and the transcripts should have been redacted so the jury would only be
presented with those statements each victim made “ ‘describing acts of child abuse.’ ”
Defendant asserts that Evidence Code section 1360 only provides for the admission of
statements describing acts of child abuse and nothing more. He asserts that Evidence
Code section 1360 “is not carte blanc [sic] to admit everything the alleged victim said
outside of court about the defendant, the surrounding circumstances, his or her own
motivations and reasons, nor the statements and questions of trained child abuse
interviewers, which do not describe criminal acts of child abuse.” Defendant
5 In full, Evidence Code section 1360 provides: “(a) In a criminal prosecution where the
victim is a minor, a statement made by the victim when under the age of 12 describing
any act of child abuse or neglect performed with or on the child by another, or describing
any attempted act of child abuse or neglect with or on the child by another, is not made
inadmissible by the hearsay rule if all of the following apply: [¶] (1) The statement is
not otherwise admissible by statute or court rule. [¶] (2) The court finds, in a hearing
conducted outside the presence of the jury, that the time, content, and circumstances of
the statement provide sufficient indicia of reliability. [¶] (3) The child either: [¶] (A)
Testifies at the proceedings. [¶] (B) Is unavailable as a witness, in which case the
statement may be admitted only if there is evidence of the child abuse or neglect that
corroborates the statement made by the child. [¶] (b) A statement may not be admitted
under this section unless the proponent of the statement makes known to the adverse
party the intention to offer the statement and the particulars of the statement sufficiently
in advance of the proceedings in order to provide the adverse party with a fair
opportunity to prepare to meet the statement. [¶] (c) For purposes of this section, ‘child
abuse’ means an act proscribed by Section 273a, 273d, or 288.5 of the Penal Code, or any
of the acts described in Section 11165.1 of the Penal Code, and ‘child neglect’ means any
of the acts described in Section 11165.2 of the Penal Code.” (Italics added.)
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acknowledges that the CAC interview video recordings here do contain statements
describing acts of child abuse. However, he further asserts that the trial court did not
limit the evidence admitted to those statements describing acts of child abuse. He asserts
that “most” of the victims’ statements in the video recordings were not statements
describing acts of child abuse. According to defendant, by admitting the entirety of the
interviews, “extensive evidence of many details about the victims, the defendant and the
circumstances of which were not statements describing child abuse, but which tended to
corroborate the in-court testimony” was put before the jury. According to defendant, the
video recordings should have been redacted so that only statements describing acts of
child abuse would have been admitted, which is all that is authorized by Evidence Code
section 1360.
D. Forfeiture
Defendant has forfeited his contention as to both CAC interviews by not making
specific objections to the evidence in the trial court. Evidence Code section 353 requires
that an objecting party “make clear the specific ground of the objection or motion.” And
based on Evidence Code section 353 our high court has explained: “[A] trial objection
must fairly state the specific reason or reasons the defendant believes the evidence should
be excluded. If the trial court overrules the objection, the defendant may argue on appeal
that the court should have excluded the evidence for a reason asserted at trial. A
defendant may not argue on appeal that the court should have excluded the evidence for
a reason not asserted at trial.” (People v. Partida (2005) 37 Cal.4th 428, 431, some
italics added.) Moreover, the objecting party cannot simply make a “ ‘placeholder’
objection” on general grounds. (People v. Demetrulias (2006) 39 Cal.4th 1, 22.) “The
objection must be specific enough as to ‘fairly inform the trial court, as well as the party
offering the evidence, of the specific reason or reasons the objecting party believes the
evidence should be excluded, so the party offering the evidence can respond
appropriately and the court can make a fully informed ruling.’ ” (People v. Lucas (2014)
16
60 Cal.4th 153, 264-265 [objection made at trial to photograph of a document was
insufficient to preserve contention that the photograph was admitted in violation of the
“best evidence” rule because that specific objection was not made].)
Defendant made no objection whatsoever to the admission of N.D.’s CAC
interview. And defendant did not object to J.D.’s statement on the grounds asserted on
appeal. Indeed, defendant’s objection –“the whole thing’s over our objection Your
Honor” – lacked any specificity whatsoever. Defense counsel’s statement indicating “I
stated that earlier” did not preserve the issue for appeal. (Italics added.) First, that an
objection was registered earlier is not in the record. Second, for this reason the “that” to
which defense counsel referred is unclear. Did counsel simply make a generic,
unspecified objection? Or did counsel state specific grounds, and if so, what were those
grounds? We do not know, because whatever was said is not in the record.
The purpose of Evidence Code section 353 is to provide the trial court an
opportunity to make an informed decision to avoid prejudice (People v. Davis (2008) 168
Cal.App.4th 617, 627), and give the proponent of the evidence the opportunity to cure the
defect or take other steps designed to minimize the prospect of reversal (People v. Morris
(1991) 53 Cal.3d 152, 187-188; People v. Chaney (2007) 148 Cal.App.4th 772, 779-
780).6 Moreover, without a specific objection, a reviewing court is unable to properly
review the admissibility of the evidence on appeal.
Realizing his dilemma, defendant asserts in his reply brief that defense counsel
provided constitutionally ineffective assistance of counsel by failing to object in the trial
6 The People argue that the doctrine of invited error bars consideration of defendant’s
contention on appeal regarding J.D.’s statement because defendant sought to introduce
her interview to attack her credibility regarding the inconsistency related to the location
where the molestation had taken place. But the People’s argument is inconsistent with
the record. Although it is unclear what grounds defendant had in mind for objecting to
J.D.’s CAC statement, the record is clear that defendant did register an objection before it
was introduced. The invited error doctrine does not apply here.
17
court. Ordinarily we would not consider new points raised in the reply brief, but to
forestall future claims of ineffective assistance of appellate counsel for failing to make
the claim in the opening brief, we shall address the belated claim of ineffective assistance
of trial counsel on this issue.
E. Ineffective Assistance of Counsel
1. General Principles Related to Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, a defendant must show
(1) counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms, and (2) the deficient performance prejudiced defendant.
(Strickland v. Washington (1984) 466 U.S. 668, 691-692 [80 L.Ed.2d 674, 696]
(Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma); People v.
Rogers (2016) 245 Cal.App.4th 1353, 1367 (Rogers).) “ ‘Surmounting Strickland’s high
bar is never an easy task.’ ” (Harrington v. Richter (2011) 562 U.S. 86, 105 [178 L.Ed.2d
624, 642] (Richter), quoting Padilla v. Kentucky (2010) 559 U.S. 356, 371 [176 L.Ed.2d
284, 297].) The reason why Strickland’s bar is high is because “[a]n ineffective-
assistance claim can function as a way to escape rules of waiver and forfeiture and raise
issues not presented at trial, and so the Strickland standard must be applied with
scrupulous care, lest ‘intrusive post-trial inquiry’ threaten the integrity of the very
adversary process the right to counsel is meant to serve. [Citation.] . . . It is ‘all too
tempting’ to ‘second-guess counsel’s assistance after conviction or adverse sentence.’ ”
(Richter, at p. 105.)
2. Analysis
a. Deficient Performance
Trial counsel was not constitutionally deficient if the grounds upon which
defendant relies on appeal for precluding portions of the victims’ statements is meritless.
(People v. Ochoa (1998) 19 Cal.4th 353, 463 (Ochoa) [counsel is not constitutionally
18
ineffective for failing to raise a meritless objection]; People v. Pierce (2015) 234
Cal.App.4th 1334, 1337 (Pierce) [same].)
Defendant does not dispute the foundational requirements of Evidence Code
section 1360 were satisfied as to statements describing acts of child abuse. He only
asserts that portions of the recordings containing statements which did not describe acts
of child abuse should not have been admitted because the admission of such statements
are not authorized by the statute.
It is not completely clear, however, what specific portions of the interviews
defendant claims should have been redacted. He has not identified any specific portions
for us to consider. He merely asserts that Evidence Code section 1360 does not permit
introduction about “everything the alleged victim said outside of court about the
defendant, the surrounding circumstances, his or her own motivations and reasons, nor
the statements and questions of trained child abuse interviewers, which do not describe
criminal acts of child abuse.” This would seem to include portions of the interviews
where the interviewer explained the interview process to the victims, tried to put them at
ease, and attempted to establish a rapport with the victims. It might also include N.D.’s
explanation of the circumstances under which she disclosed the acts of abuse and other
portions of the interviews. We will not attempt to guess at what specific segments of the
interviews defendant thinks should have been redacted. Instead, we will address
defendant’s contentions in the context of the more general assertions he has made.
We reject defendant’s myopic interpretation of Evidence Code section 1360’s
language identifying as admissible any statements “describing any act of child abuse.”
(Evid. Code, § 1360, subd. (a).) As we have previously observed, in interpreting a
statute, “ ‘Our fundamental task . . . is to determine the Legislature’s intent so as to
effectuate the law’s purpose. We first examine the statutory language, giving it a plain
and commonsense meaning. We do not examine that language in isolation, but in the
context of the statutory framework as a whole in order to determine its scope and purpose
19
and to harmonize the various parts of the enactment. If the language is clear, courts must
generally follow its plain meaning unless a literal interpretation would result in absurd
consequences the Legislature did not intend.’ ” (People v. Fandinola (2013) 221
Cal.App.4th 1415, 1421-1422, quoting San Leandro Teachers Assoc. v. Governing Bd. of
San Leandro Unified School Dist. (2009) 46 Cal.4th 822, 831 & Coalition of Concerned
Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737.)
We look first to the statutory context involving other provisions within Evidence
Code section 1360 and the Evidence Code generally. Under subdivision (a)(1)-(3) of
Evidence Code section 1360, certain circumstances must exist before the statements are
admissible. (See fn. 5, ante.) Subdivision (a)(2) of Evidence Code section 1360
addresses circumstances relevant to the reliability of the statements. To be admissible,
the court must find “that the time, content and circumstances of the statement provides
sufficient indicia of reliability.” (Brodit, supra, 61 Cal.App.4th at p. 1329.) These are all
circumstances that would be relevant to the credibility of a hearsay declarant for the
jury’s determination (see Evid. Code, § 210 [relevant evidence includes evidence relevant
to the credibility of a hearsay declarant]), and relevant to the weight the jury should give
such hearsay. So, for example, portions of the statement where the interviewer explained
the interview process to the victims, tried to put them at ease, and attempted to establish a
rapport with the victims would be pertinent to the reliability and weight the jury could
afford to the hearsay. So too would be the victim’s explanation of how she first disclosed
the molestations. In our view, defendant’s suggestion that such portions of the interview
must be redacted would result in an absurd consequence the Legislature could not have
intended.
Defendant’s apparent claim that statements concerning the surrounding
circumstances should not be admissible under Evidence Code section 1360 would also
result in absurd results. Defendant would apparently preclude any part of the statement
concerning where and when the acts of abuse the victim described took place, the
20
victim’s knowledge or relationship with the perpetrator, and how it was that the
perpetrator facilitated the molestation, for example, offering the victim candy.
Defendant’s interpretation on this point is untenable.
In addition, where the Evidence Code section 1360 statements are video-recorded,
as they were here, a trial court could reasonably conclude that allowing the jury to view
the complete interviews was relevant to the veracity of the victims’ disclosures because it
allowed the jury to observe the hearsay declarant’s demeanor, developmental level, and
the interaction between the victims and their interviewers. (See Evid. Code, § 210
[evidence pertaining to the credibility of a hearsay declarant is relevant]; People v. Yor
Xiong (2020) 54 Cal.App.5th 1046, 1074 [noting that the jurors were able to view and
scrutinize the video recording of an interrogation and, from that, evaluate defendant’s
credibility during the interrogation].)
We do not agree with defendant to the extent that he would limit Evidence Code
section 1360 evidence literally to only those statements in which a victim describes the
discrete acts of child abuse, devoid of any context or narrative. Defendant has cited no
case to support his contention, nor any analysis from a case that would advance his
argument.
Defendant singularly relies upon People v. Hefner (1981) 127 Cal.App.3d 88(Hefner), in which the Court of Appeal concluded that the trial court erred in admitting,
on its own motion, for the truth of the matter asserted, the preliminary hearing and first
trial testimony of one of the victims at a subsequent trial. (Id. at p. 97.) On defendant’s
appeal, the People asserted that the statements were admissible under Evidence Code
section 1237, the hearsay exception for past recollection recorded. (Hefner, at p. 97.)
The Hefner court stated: “[T]he necessary foundation for admitting prior testimony
under Evidence Code section 1237, subdivision (a), was not laid as to all of the matters to
which [the victim] testified in the first two proceedings. At most, it would have been
proper to admit prior testimony under Evidence Code section 1237, subdivision (a), as to
21
those matters which [the victim] testified she could not remember clearly. By admitting
the previous testimony in its entirety for the truth of the matters stated, the trial court
went well beyond this. For example, [the victim’s] testimony at the last trial contained
reference to only one instance of oral copulation upon her, and she did not express any
inability to recollect how many times Hefner had performed this act on her. However,
her preliminary hearing testimony, while somewhat confusing, is susceptible to the
interpretation that Hefner, in fact, orally copulated her two different times. The potential
prejudicial effect of this error is compounded by the failure to give [the unanimity
instruction]. . . .” (Hefner, at p. 97.)
Obviously, Hefner is not an Evidence Code section 1360 case. Moreover, we
agree with the People that, here, the foundational requirements for admission of the CAC
statements pursuant to Evidence Code section 1360 were satisfied. Because we disagree
with defendant concerning the interpretation of Evidence Code section 1360 and the
admission of the entire CAC interview statements under that section, the admission of
certain statements in those interviews that did not strictly describe an act of child abuse
does not undermine the fact that the prosecution made the requisite foundational
showing.
We conclude that defendant’s proffered interpretation of Evidence Code section
1360 is neither mandated by the plain language of that section nor what the Legislature
intended. Defense counsel was not deficient for failing to object on the grounds
defendant now asserts on appeal.
b. Prejudice
Even if it was error to allow the unspecified portions of the interviews and trial
counsel should have made specific objections as required by Evidence Code section 353,
we conclude defendant has failed to show prejudice.
To establish prejudice, “[i]t is not enough ‘to show that the errors had some
conceivable effect on the outcome of the proceeding.’ ” (Richter, supra, 562 U.S. at
22
p. 104.) Rather, defendant must show a reasonable probability he would have received a
more favorable result had counsel’s performance not been deficient. (Strickland, supra,466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
(Strickland, at p. 694; accord, Ledesma, at p. 218.) “The likelihood of a different result
must be substantial, not just conceivable.” (Richter, at p. 112, italics added; Rogers,
supra, 245 Cal.App.4th at p. 1367; People v. Jacobs (2013) 220 Cal.App.4th 67, 75
(Jacobs); In re M.P. (2013) 217 Cal.App.4th 441, 457, fn. 10 (M.P.).)
Both victims testified at trial consistently with their interview statements, although
N.D. offered additional details not furnished in her interview. We consider the evidence
against defendant independent of the CAC interviews to be overwhelming. That
evidence included: the victims’ trial testimony; the portions of the CAC interview
statements to which defendant does not raise any objection; L.H.’s testimony describing
J.D. reporting to him the incident she had with defendant; and defendant’s prior
conviction for section 261.5 admitted under Evidence Code section 1108, showing that he
has a propensity for sexual conduct with underage persons. We also note the lack of
credible evidence showing a motive why the two victims, independent of each other,
would accuse defendant of sexual molestations approximately 15 years apart.7 We
conclude it is not reasonably probable that the result at trial would have been more
7 Defendant’s trial testimony as to potential motives for the victims to fabricate lacked
credibility. He testified that L.H., J.D.’s father might have been mad at him because he
refused to loan his truck or because L.H. was jealous because defendant told him he had
papers and was going to Mexico. Defendant testified that N.D.’s mother used drugs and
made N.D. accuse him of the molestations. But he gave no explanation why N.D.’s
mother would have it out for him. Defendant also testified that N.D. accused him of the
molestations to cause him and his wife to separate. According to defendant, N.D. said
defendant was not good enough for her aunt. But according to defendant’s own
testimony, he and his wife stopped living together in 2006, long before N.D.’s 2014
police interview and trial testimony.
23
favorable to defendant had the portions of the CAC interviews about which he
generically complains on appeal been redacted. (Strickland, supra, 466 U.S. at pp. 693-
694; Ledesma, supra, 43 Cal.3d at pp. 217-221.)
In asserting that the purported error was prejudicial, defendant contends that the
victims’ CAC interview statements served to corroborate their own trial testimony with
matters other than “acts of child abuse.” He emphasizes that the prosecution made use of
such corroboration in his closing argument. As noted by defendant, the prosecutor
argued in closing: “And you saw those witnesses come in here and testify. And she said,
‘Well, yeah, she changed her story. She changed her story in one detail where it
happened.’ Why? Because she was worried that her dad would be mad that she went out
with him in the parking lot. And she freely admitted that. She admitted that that night.
She admitted it on the stand. And she admitted it at the CAC. That’s why that one detail
changed. [¶] Compare what she said on the stand with what she said at the CAC.
Remarkably similar. Remarkable memory that she has for a ten-year-old.” (Italics
added.)
Assuming that a statement about where a molestation took place is not part of a
description about an act of child abuse within the meaning of Evidence Code section
1360, the prosecutor’s closing argument that J.D.’s trial testimony was consistent with
her CAC interview statements and the fact that certain CAC statements which did not
describe acts of child abuse could be deemed to have corroborated trial testimony does
not establish that defendant was prejudiced by the introduction of the entirety of the CAC
statements into evidence. Indeed, once defendant sought to impeach J.D. with the
inconsistency, and J.D. responded by giving her explanation to the jury, the prosecution
24
would have been permitted to introduce the prior consistent statement under Evidence
Code section 791, the hearsay exception for prior consistent statements.8
Defendant’s contention that the alleged error was prejudicial because the victims
“were permitted to tell the jury their whole stories twice, once without being cross
examined” is also without merit. The victims were subject to complete cross-
examination by defense counsel on any relevant subject, including their CAC statements.
And the basis of defendant’s substantive contention would not preclude presentation of
the most damaging aspects of the victims’ CAC statements: those statements describing
acts of child abuse committed by defendant.
We conclude that, in view of the other evidence, if defendant’s trial attorney
sought and successfully obtained redaction of the victims’ CAC statements, there is no
reasonable probability the jury would have reached a more favorable outcome.
(Strickland, supra, 466 U.S. at p. 694; Ledesma, supra, 43 Cal.3d at p. 218.) Not only is
the likelihood of a different result insubstantial, it is inconceivable on these facts. (See
Richter, supra, 562 U.S. at p. 112; Rogers, supra, 245 Cal.App.4th at p. 1367; Jacobs,
supra, 220 Cal.App.4th at p. 75; M.P., supra, 217 Cal.App.4th at p. 457, fn. 10.)9
8 Evidence Code section 791 provides: “Evidence of a statement previously made by a
witness that is consistent with his testimony at the hearing is inadmissible to support his
credibility unless it is offered after: [¶] (a) Evidence of a statement made by him that is
inconsistent with any part of his testimony at the hearing has been admitted for the
purpose of attacking his credibility, and the statement was made before the alleged
inconsistent statement; or [¶] (b) An express or implied charge has been made that his
testimony at the hearing is recently fabricated or is influenced by bias or other improper
motive, and the statement was made before the bias, motive for fabrication, or other
improper motive is alleged to have arisen.”
9 Defendant also makes a bald assertion that the purported evidentiary error deprived
him of a fair trial. “ ‘One asserting prejudice has the burden of proving it; a bald
assertion of prejudice is not sufficient.’ ” (People v. Sandoval (1992) 4 Cal.4th 155, 174,
quoting People v. Johnson (1988) 47 Cal.3d 576, 591.) Defendant has failed to show that
the admission of the entire CAC interviews deprived him of a fair trial.
25
II. Ex Post Facto Application of Section 667.61
A. Ex Post Facto Principles, Section 667.61, and Section 1203.066
Ex post facto principles bar laws which (1) make criminal an act that was innocent
when committed, (2) make a crime greater than it was when committed, (3) make the
punishment greater than it was when the act was committed, and (4) alter the legal rules
of evidence by allowing for “ ‘less or different testimony than the law required at the time
of the commission of the offense in order to convict the offender.’ ” (Carmell v. Texas
(2000) 529 U.S. 513, 522, 525 [146 L.Ed.2d 577].) California’s constitutional bar on ex
post facto laws is analyzed in the same manner as the federal constitutional bar. (U.S.
Const., art. I, § 10, clause 1; Cal. Const., art. I, § 9; People v. Alford (2007) 42 Cal.4th
749, 755.) The People acknowledge on appeal that reliance on the version of section
667.61, also known as the “One Strike Law,” as amended after defendant committed the
offenses in counts 2, 3, and 4 concerning N.D. would violate ex post facto principles.
Under section 667.61 in effect at the time of sentencing, with exceptions not
relevant here, “any person who is convicted of an offense specified in subdivision (c) [of
section 667.61] under one of the circumstances specified in subdivision (e) [of that
section] shall be punished by imprisonment in the state prison for 15 years to life.”
(§ 667.61, subd. (b).) Among the offenses in subdivision (c) of section 667.61 is “Lewd
or lascivious act, in violation of subdivision (a) of Section 288.” (§ 667.61, subd. (c)(8).)
Among the circumstances specified in subdivision (e) of section 667.61 is where “[t]he
defendant has been convicted in the present case or cases of committing an offense
specified in subdivision (c) against more than one victim.” (§ 667.61, subd. (e)(4).)
However, the former version of section 667.61, in effect in 2000 and 2001, at the
time of defendant’s offenses against N.D., allowed for an exception to life sentences for
lewd or lascivious acts, in violation of subdivision (a) of Section 288 as referenced in
subdivision (c) of section 667.61. At the time, that provision read: “[a] violation of
subdivision (a) of Section 288, unless the defendant qualifies for probation under
26
subdivision (c) of Section 1203.066.” (§ 667.61, former subd. (c)(7), italics added.) And
at that time, section 1203.066 concerning probation eligibility prohibited probation when
specified aggravating factors were present, including: “A person who is convicted of
committing a violation of Section 288 or 288.5 against more than one victim.”
(§ 1203.066, former subd. (a)(7).)10 But subdivision (c) of section 1203.066 in effect at
the time set forth several circumstances, for which the court was required to make
findings, to avoid the multiple victim prohibition on probation. Among those was
10 In full, former section 1203.066, subdivision (a), prohibiting probation provided: “(a)
Notwithstanding Section 1203 or any other law, probation shall not be granted to, nor
shall the execution or imposition of sentence be suspended for, nor shall a finding
bringing the defendant within the provisions of this section be stricken pursuant to
Section 1385 for, any of the following persons: [¶] (1) A person who is convicted of
violating Section 288 or 288.5 when the act is committed by the use of force, violence,
duress, menace, or fear of immediate and unlawful bodily injury on the victim or another
person. [¶] (2) A person who caused bodily injury on the child victim in committing a
violation of Section 288 or 288.5. [¶] (3) A person who is convicted of a violation of
Section 288 or 288.5 and who was a stranger to the child victim or befriended the child
victim for the purpose of committing an act in violation of Section 288 or 288.5, unless
the defendant honestly and reasonably believed the victim was 14 years of age or older.
[¶] (4) A person who used a weapon during the commission of a violation of Section 288
or 288.5. [¶] (5) A person who is convicted of committing a violation of Section 288 or
288.5 and who has been previously convicted of a violation of Section 261, 262, 264.1,
266, 266c, 267, 285, 286, 287, 288, 288.5, 288a, or 289, or of assaulting another person
with intent to commit a crime specified in this paragraph in violation of Section 220, or
who has been previously convicted in another state of an offense which, if committed or
attempted in this state, would constitute an offense enumerated in this paragraph. [¶] (6)
A person who violated Section 288 or 288.5 while kidnapping the child victim in
violation of Section 207, 209, or 209.5. [¶] (7) A person who is convicted of committing
a violation of Section 288 or 288.5 against more than one victim. [¶] (8) A person who,
in violating Section 288 or 288.5, has substantial sexual conduct with a victim who is
under 14 years of age. [¶] (9) A person who, in violating Section 288 or 288.5, used
obscene matter, as defined in Section 311, or matter, as defined in Section 311, depicting
sexual conduct, as defined in Section 311.3.” (Italics added.)
27
subdivision (c)(2): “A grant of probation to the defendant is in the best interest of the
child.”11 (Italics added.)
B. Defendant’s Contentions
On counts 2, 3, and 4, concerning the offenses committed against N.D. in 2000
and 2001, the trial court sentenced defendant to consecutive terms of 15 years to life.
Defendant asserts that the imposition of life sentences for those offenses constitutes an
improper ex post facto application of section 667.61, because under the version of section
667.61 in effect at the time, a conviction under subdivision (a) of section 288 only
11 In full, former section 1203.066, subdivision (c) provided: “Paragraphs (7), (8), and
(9) of subdivision (a) shall not apply when the court makes all of the following findings:
[¶] (1) The defendant is the victim’s natural parent, adoptive parent, stepparent, relative,
or is a member of the victim’s household who has lived in the victim’s household. [¶]
(2) A grant of probation to the defendant is in the best interest of the child. [¶] (3)
Rehabilitation of the defendant is feasible, the defendant is amenable to undergoing
treatment, and the defendant is placed in a recognized treatment program designed to deal
with child molestation immediately after the grant of probation or the suspension of
execution or imposition of sentence. [¶] (4) The defendant is removed from the
household of the victim until the court determines that the best interests of the victim
would be served by returning the defendant to the household of the victim. While
removed from the household, the court shall prohibit contact by the defendant with the
victim, except the court may permit the supervised contact, upon the request of the
director of the court ordered supervised treatment program, and with the agreement of the
victim and the victim’s parent or legal guardian, other than the defendant. As used in this
paragraph, ‘contact with the victim’ includes all physical contact, being in the presence of
the victim, communication by any means, any communication by a third party acting on
behalf of the defendant, and any gifts. [¶] (5) There is no threat of physical harm to the
child victim if probation is granted. The court upon making its findings pursuant to this
subdivision is not precluded from sentencing the defendant to jail or prison, but retains
the discretion not to do so. The court shall state its reasons on the record for whatever
sentence it imposes on the defendant. [¶] The court shall order the psychiatrist or
psychologist who is appointed pursuant to Section 288.1 to include a consideration of the
factors specified in paragraphs (2), (3), and (4) in making his or her report to the court.”
(§ 1203.066, former subd. (c), italics added.) As the italicized language indicates, the
court must make “all” of the required findings, including that a grant of probation is in
the “best interest of the child” before it could grant probation. (Ibid., italics added.)
28
qualified for sentencing under section 667.61 if the defendant did not qualify for
probation. He asserts that he did qualify for probation. He argues that, under the version
of section 1203.066, subdivision (a), in effect at the time, he was not ineligible for
probation because none of the aggravating factors set forth in that subdivision were
involved in his offenses committed against N.D. Furthermore, defendant asserts that,
because he was a relative of N.D.’s, under subdivision (c)(1) of section 1203.066 (see fn.
11, ante), he would have been eligible for probation, and, thus, the sentencing provision
of section 667.61 would not have applied for this reason as well.
Defendant asserts that the application of the law to him as amended in 2006,
which made all violations of section 288, subdivision (a), a qualifying offense for a life
sentence under section 667.61, without regard to probation eligibility, violates the ex post
facto provisions of the state and federal Constitutions. Under ex post facto principles,
defendant asserts that he could not lawfully be charged or sentenced for offenses
committed in 2000 and 2001 under the current provisions of section 667.61. Thus,
defendant asserts that the sentence imposed on counts 2, 3, and 4 were unauthorized.
Furthermore, defendant asserts that, because these counts do not qualify for treatment
under section 667.61, his conviction under count 1 does not implicate the multiple
conviction of qualifying crimes factor under section 667.61, subdivision (e)(4), and
therefore he could not properly be sentenced to 15 years to life on count 1 either.
C. Forfeiture
The People assert that, because defendant failed to request probation and present
proof that he met the criteria for probation in the trial court, defendant has forfeited his
contentions. Defendant responds that forfeiture does not apply where a trial court
imposes an unauthorized sentence. He also asserts he cannot be deemed to have waived
the issue for failing to present evidence to establish probation eligibility where the trial
court was unaware of its discretion to sentence him to probation under the statutes in
effect at the relevant time. As we explain, the sentence was not unauthorized.
29
The “ ‘unauthorized sentence’ concept constitutes a narrow exception to the
general requirement that only those claims properly raised and preserved by the parties
are reviewable on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 354 (Scott).)
“Although the cases are varied, a sentence is generally ‘unauthorized’ where it could not
lawfully be imposed under any circumstance in the particular case. Appellate courts are
willing to intervene in the first instance because such error is ‘clear and correctable’
independent of any factual issues presented by the record at sentencing. [Citation.] . . .
[L]egal error resulting in an unauthorized sentence commonly occurs where the court
violates mandatory provisions governing the length of confinement. It does not follow,
however, that nonwaivable error is involved whenever a prison sentence is challenged on
appeal.” (Ibid., fn. omitted, italics added.) “In essence, claims deemed waived on appeal
involve sentences which, though otherwise permitted by law, were imposed in a
procedurally or factually flawed manner.” (Ibid.)
The sentence imposed here could lawfully be imposed, even under the law
existing at the time of defendant’s offenses against N.D. in 2000 and 2001. Defendant’s
assertion is that he qualified for probation relative to counts 2, 3, and 4, and the trial court
sentenced him without being aware that it had the discretion to sentence him to probation.
Whether defendant qualified for probation is a factual determination that would have
been made had defendant’s trial counsel requested a grant of probation and presented
evidence to establish defendant eligible for and worthy of probation. Defendant’s
contentions amount to a claim that the sentences, “though otherwise permitted by law,
were imposed in a procedurally or factually flawed manner.” (Scott, supra, 9 Cal.4th at
p. 354.) Thus, his claim does not establish an unauthorized sentence.
Rather than being a burden on the prosecution to disprove eligibility for probation,
any eligibility for probation here must be shown by defendant. (People v. Woodward
(2011) 196 Cal.App.4th 1143, 1152 (Woodward).) It is defendant’s burden to present
30
evidence showing that he is entitled to consideration for probation under subdivision (c)
of section 1203.066. (Woodward, at p. 1152.)
Defendant acknowledges Woodward and similar cases. However, he asserts that,
where the trial court is unaware of its discretion to sentence the defendant to probation,
remand for resentencing is required because the court, unaware of its discretion, could
not have exercised “informed discretion” in sentencing. We disagree. Because it was
defendant’s burden to show that he was entitled to consideration for probation under
section 1203.066 (Woodward, supra, 196 Cal.App.4th at p. 1152), we conclude that, by
failing to request a grant of probation in the trial court, and submit evidence in support of
that request, the trial court was under no obligation to consider probation and, moreover,
defendant forfeited these contentions on appeal.
D. Ineffective Assistance of Counsel
Defendant asserts that if, by failing to present evidence that he was eligible for
probation, he forfeited or waived the issue, the forfeiture or waiver resulted from the
constitutionally ineffective assistance of counsel. We conclude defendant has failed to
show deficient performance because even if defense counsel would have requested the
court to grant probation, he could not have presented facts sufficient to satisfy all of the
circumstances required to grant probation -- specifically defendant could not have
established that probation was in the best interest of the child.
As stated ante, the version of section 667.61 in effect in 2000 and 2001, at the
time of defendant’s offenses against N.D., included among the offenses specified in
subdivision (c), “[a] violation of subdivision (a) of Section 288, unless the defendant
qualifies for probation under subdivision (c) of Section 1203.066.” (§ 667.61, former
subd. (c)(7), italics added.)
Defendant’s contention that he was eligible for probation under section 1203.066,
former subdivision (a), because none of the aggravating factors set forth therein applied
to the circumstances of his offenses is without merit. However, the issue is whether
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defendant is eligible for probation “under subdivision (c) of Section 1203.066.”
(§ 667.61, former subd. (c)(7).) As noted, one of the circumstances required to grant
probation is: “A grant of probation to the defendant is in the best interest of the child.”
(§ 1203.066, former subd. (c)(2), italics added.)
In People v. Wills (2008) 160 Cal.App.4th 728 (Wills), the Court of Appeal held
that, under section 1203.066, former subdivision (c), a sentencing court has no authority
to grant probation to a defendant when the molestation victim is no longer a child at the
time of sentencing. (Wills, at p. 732.) The Wills court reasoned: “[l]ogically, where, as
here, the victim is no longer a child at time of sentencing, the sentencing court is unable
to make a finding under section 1203.066(c)(2) that ‘[a] grant of probation . . . is in the
best interest of the child’ for the simple reason that there is no child. In such a case, the
sentencing court is unable to make ‘all’ of the findings specified in former subdivision (c)
of section 1203.066, as required by that subdivision, and thus is not authorized to grant
probation to a defendant . . . .” (Wills, at pp. 737-738.)
Defendant asserts that the Wills decision “is short-sighted and wrongly decided,”
urging us to decline to follow it. Defendant relies primarily on People v. Jeffers (1987)
43 Cal.3d 984. However, in Wills, the defendant also relied on Jeffers, and the Wills
court discussed that case at length. (Wills, supra, 160 Cal.App.4th at pp. 738-739.)
While we need not reproduce that analysis here, we note the Wills court concluded:
“Jeffers is distinguishable in that it involved the household-member status factor set forth
in former section 1203.066, subdivision (c)(1), not the ‘best interest of the child’ factor
set forth in section 1203.066(c)(2), and the reasoning expressed in Jeffers with respect to
the interpretation of the former does not apply here.” (Wills, at p. 739.) The court also
noted that the legislative concerns underlying the best interest of the child consideration
noted by the Jeffers court—problems of financial and emotional dependency and self-
blame by the victim for breaking up the family—relate to conditions “existing at the time
of the sentencing.” Because the victim is no longer a child, these legislative
32
considerations are no longer in play. (Ibid.) We disagree with defendant’s criticism of
Wills and adhere to the reasoning of that case here.
At the time of sentencing, N.D. was an adult. Therefore, the court could not have
concluded under former subdivision (c)(2) of section 1203.066 that probation was in the
“best interest of the child.” (Wills, supra, 160 Cal.App.4th at pp. 732, 737-738.) Thus,
regardless of any of the other required elements in former subdivision (c) of section
1203.066 that defendant bore the burden of establishing to demonstrate eligibility for
probation (Woodward, supra, 196 Cal.App.4th at p. 1152), under Wills, defendant could
not satisfy “all” of the requirements of former subdivision (c) of section 1203.066.
Therefore, the trial court could not have found defendant eligible for probation under
former subdivision (c) of section 1203.066 as to counts 2, 3, and 4, and, as a result, the
probation eligibility exception in section 667.61, former subdivision (c)(7), would not
apply. Defense counsel was therefore not deficient for failing to request probation and
present evidence to justify the grant because such an effort would have been meritless.
(Ochoa, supra, 19 Cal.4th at p. 463; Pierce, supra, 234 Cal.App.4th at p. 1337.)
Moreover, in light of this, defendant suffered no prejudice; there is no likelihood, let
alone a substantial likelihood, that had defendant’s attorney raised the former versions of
the sentencing statutes and the possibility of probation eligibility and presented evidence
relevant to that determination, defendant would have achieved a more favorable result.
(Richter, supra, 562 U.S. at p. 112.)12
12 Moreover, even if we were to conclude that defendant could raise the issue for the first
time on appeal simply because it appears the trial court was unaware of its sentencing
discretion (see part III.C. of the Discussion, post), for all of the same reasons discussed
ante, defendant’s contentions fail on the merits and thus, any error was harmless.
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III. Resentencing for Consideration of Concurrent Sentencing
A. Additional Background
The probation report did not refer to the One Strike Law or consecutive or
concurrent sentencing. As we shall discuss, the former law allowed for concurrent
sentencing, and that it did was apparently not on the radar screen of the parties or the trial
court.
At sentencing, defense counsel stated, in part, “[i]f the Court had the discretion,
we would request that at least some of these counts be run concurrently. The Court is
familiar with the facts of this case, and granted he was found guilty on four separate
counts, two victims, but the overall nature of the conduct I think the Court could be, if it
had discretion, might go with the sentencing more like 30 to life, rather than 60 to life.
My client is 46 years old. And 30-to-life sentence would enable him to at least be
eligible again for probation by the time he was 76, rather than 60[-to-life], which means
he basically has a life sentence with no way out.” (Italics added.)
The prosecutor stated that, “pursuant to . . . section 667.61(i), for any offense
specified Paragraphs one through seven which would include the 288(A), the Court must
impose consecutive sentence for each crime that resulted in conviction under the section,
if it involves separate victims or involves same victims on separate occasion. [¶] So
based on the, the language in the charging document for which he was convicted, we
have four counts involving two separate victims, and all of the crimes occurred on
different occasions. So, therefore, he’s required to be sentenced to 60 years to life in
state prison.”
In sentencing defendant, the trial court stated that it considered the probation
report, letters submitted on behalf of defendant, and a letter from the father of one of the
victims. The trial court also stated it had considered, pursuant to California Rules of
Court, rule 4.421, the circumstances in aggravation that the victims were particularly
vulnerable, and that defendant took advantage of a position of trust or confidence to
34
commit the offenses. (Cal. Rules of Court, rule 4.421(a)(3), (11).) The court mentioned
defendant’s prior sex offense conviction and his prior prison term. The court sentenced
defendant to 15 years to life on each of the four counts, with the sentences to run
consecutively. The trial court did not expressly acknowledge its discretion to sentence
defendant to concurrent or consecutive sentences or expressly state a reason for imposing
consecutive sentences.
B. Defendant’s Contentions
Defendant asserts that the matter must be remanded and he must be resentenced so
that the sentencing court can consider concurrent sentences and probation. Defendant
asserts that he cannot be lawfully sentenced under section 667.61, and therefore he is
entitled to consideration for concurrent sentencing. Reprising the argument we have
rejected, he further asserts that, because he is not subject to sentencing under section
667.61, he is not rendered ineligible for probation under that section. He further asserts
that he is not rendered ineligible for probation under the current version of section
1203.066.
C. Analysis
As the People assert, and as we have determined, defendant was not improperly
sentenced pursuant to sections 667.61 and 1203.066. Because defendant was not eligible
for probation under former subdivision (c) of section 1203.066, and because defendant
was convicted in the present case of committing violations of section 288, subdivision
(a), against more than one victim (§ 667.61, subd. (e)(4); § 667.61, former subd. (e)(5)),
defendant was not improperly sentenced to life terms pursuant to section 667.61 on
counts 2, 3, and 4.
However, the People concede the matter should be remanded for resentencing on
counts 2, 3, and 4 so that the sentencing court can exercise its discretion to consider
whether to impose concurrent or consecutive sentences. The People correctly
acknowledge that, under the version of section 667.61 in effect at the time defendant
35
committed his offenses against N.D. in 2000 and 2001, section 667.61 did not mandate
consecutive sentences. (See Stats. 2006, ch. 337, § 33, adding subdivision (i) to section
667.61 mandating for the first time consecutive sentences under particular
circumstances.) And “ ‘[a]bsent an express statutory provision to the contrary, section
669 provides that a trial court shall impose either concurrent or consecutive terms for
multiple convictions.’ ” (People v. Woodworth (2016) 245 Cal.App.4th 1473, 1479
(Woodworth), quoting People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262.)
“ ‘Generally, when the record shows that the trial court proceeded with sentencing
on the erroneous assumption it lacked discretion, remand is necessary so that the trial
court may have the opportunity to exercise its sentencing discretion at a new sentencing
hearing. [Citations.] Defendants are entitled to “sentencing decisions made in the
exercise of the ‘informed discretion’ of the sentencing court,” and a court that is unaware
of its discretionary authority cannot exercise its informed discretion.’ ” (Woodworth,
supra, 245 Cal.App.4th at p. 1480.) Additionally, “[t]he trial court must ‘state the
reasons for its sentence choices on the record at the time of sentencing.’ [Citation.]
Where the court has discretion, the imposition of a consecutive, rather than concurrent,
term represents a sentencing choice.” (People v. Coelho (2001) 89 Cal.App.4th 861, 886
(Coelho); Cal. Rules of Court, rule 4.406.)
The People concede that it does not appear clear on this record whether the
sentencing court was aware of its discretion to impose concurrent sentences. As noted,
the probation report did not mention the One Strike Law or concurrent sentences.
Defense counsel urged the court that, if it had discretion, the court should run at least
some sentences concurrently. The prosecutor erroneously stated that the court must
impose consecutive sentences. In sentencing defendant, the trial court did not refer to
any discretion to impose concurrent sentences and imposed consecutive sentences
without stating reasons for that sentencing choice.
36
We must remand for resentencing on counts 2, 3, and 4 unless we can say that
“doing so would be an idle act that exalts form over substance because it is not
reasonably probable the court would impose a different sentence.” (Coelho, supra, 89
Cal.App.4th at p. 889.) On this record, we cannot conclude that remanding for
resentencing so that the trial court can knowingly exercise its discretion in choosing to
impose concurrent or consecutive sentences as to each count would be an idle act.
Therefore, we will remand for resentencing.
IV. Additional Issues Pertaining to Sentencing and the Abstract of Judgment
Although this issue is not raised by the parties, the abstract of judgment indicates
that, at sentencing, the trial court ordered defendant to undergo AIDS testing pursuant to
section 1202.1. However, the reporter’s transcript of the sentencing hearing reveals that
the prosecutor declined to request AIDS testing and the trial court did not order it. Based
on defendant’s convictions, an order directing AIDS testing was only required under
subdivision (a) of section 1202.1 “if the court finds that there is probable cause to believe
that blood, semen, or any other bodily fluid capable of transmitting HIV has been
transferred from the defendant to the victim.” (§ 1202.1, subd. (e)(6)(A)(iii).) The court
made no such finding here.
“[T]he abstract of judgment is not itself the judgment of conviction, and cannot
prevail over the court’s oral pronouncement of judgment to the extent the two conflict.”
(People v. Delgado (2008) 43 Cal.4th 1059, 1070.) Thus, the oral pronouncement of
judgment, during which the trial court did not order AIDS testing, controls. (Ibid.)
Accordingly, we shall order the trial court to correct the abstract of judgment to conform
to this aspect of the oral pronouncement of judgment.
Additionally, at sentencing, the trial court failed to impose any penalty
assessments pursuant to, inter alia, section 1464 and Government Code section 76000 and
no penalty assessments are reflected in the abstract of judgment. “The penalty
assessment statutes apply to all fines collected by the criminal courts.” (People v.
37
Stewart (2004) 117 Cal.App.4th 907, 910.) We also note that the “[F]ailure to impose
section 1464, subdivision (a) and Government Code section 76000, subdivision (a)
penalty assessments is a jurisdictional error which can be corrected for the first time on
direct appeal.” (Stewart, at p. 910.) Here, the oral pronouncement of judgment did not
even contain a “shorthand reference to ‘penalty assessments,’ ” which may be sufficient
if the fines, fees, and penalties are appropriately specified in the abstract of judgment
(People v. Sharret (2011) 191 Cal.App.4th 859, 864), let alone a “detailed description of
the amount of and statutory basis for the fines and penalty assessments imposed . . .”
(People v. Hamed (2013) 221 Cal.App.4th 928, 939). Because we are remanding for
resentencing, we further direct the trial court to impose the correct amounts in penalty
assessments, and to ensure that these amounts and the statutory bases therefor appear on
the abstract of judgment.
DISPOSITION
The matter is remanded for resentencing, at which the trial court is to exercise its
discretion to choose whether to impose concurrent or consecutive sentences on counts 2,
3, and 4, and, if it imposes consecutive sentences on any of these counts, to state its
reasons for doing so. The court is also to impose the correct amounts in penalty
assessments, and to ensure that these amounts and the statutory bases therefor appear on
the abstract of judgment. Further, the abstract should not indicate defendant is required
to submit to AIDS testing pursuant to section 1202.1. The court shall amend the abstract
of judgment accordingly and forward a certified copy to the California Department of
Corrections and Rehabilitation.
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In all other respects, the judgment is affirmed.
/s/
MURRAY, J.
We concur:
/s/
RAYE, P. J.
/s/
BLEASE, J.
39