People v. Andres CA2/6 ( 2023 )

Filed 7/18/23 P. v. Andres CA2/6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B321459
(Super. Ct. No. 19CR03336)
Plaintiff and Respondent, (Santa Barbara County)
v.
BERNARDO JOSEFIN
ANDRES,
Defendant and Appellant.
Bernardo Josefin Andres appeals from the judgment
entered after a jury had convicted him of committing multiple sex
offenses against his stepdaughter, Jane Doe. He was convicted of
sexual intercourse with a child 10 years of age or younger (Pen.
Code, § 288.7, subd. (a));1 sexual penetration of a child 10 years of
age or younger (§ 288.7, subd. (b)); two counts of forcible lewd act
upon a child under the age of 14 years (§ 288, subd. (b)(1)); three
Unless otherwise stated, all statutory references are to
1
the Penal Code.
counts of lewd act upon a child 14 or 15 years of age (§ 288, subd.
(c)(1)); and dissuading a person from reporting a crime (§ 136.1,
subd. (b)(1)).
Appellant waived his right to a jury trial on aggravating
factors alleged in the information. The trial court found true
three aggravating factors: the victim was particularly vulnerable,
appellant took advantage of a position of trust or confidence, and
he threatened witnesses or dissuaded them from testifying. The
trial court sentenced appellant to an aggregate determinate term
of 26 years, four months, followed by a consecutive aggregate
indeterminate term of 40 years to life.
Appellant contends: (1) he did not knowingly and
intelligently waive his Miranda rights (Miranda v. Arizona
(1966) 384 U.S. 436); (2) if he waived his Miranda rights, he
subsequently invoked his right to remain silent; (3) the trial court
erred in permitting the People’s expert to testify about Child
Sexual Abuse Accommodation Syndrome; and (4) his sentence
constitutes cruel and unusual punishment in violation of the
Eighth Amendment. We affirm but direct the trial court to
correct clerical errors in the Indeterminate Abstract of Judgment.
Appellant Knowingly and
Intelligently Waived His Miranda Rights2
“‘Miranda holds that “[t]he defendant may waive
effectuation” of the rights conveyed in the warnings “provided the
waiver is made voluntarily, knowingly and intelligently.”
[Citation.] The inquiry has two distinct dimensions. [Citations.]
First, the relinquishment of the right must have been voluntary
2 We omit a summary of the evidence presented at trial.
The facts underlying appellant’s convictions are immaterial to
the issues on appeal.
2
in the sense that it was the product of a free and deliberate choice
rather than intimidation, coercion, or deception. Second, the
waiver must have been made with a full awareness of both the
nature of the right being abandoned and the consequences of the
decision to abandon it. Only if the “totality of the circumstances
surrounding the interrogation” reveals both an uncoerced choice
and the requisite level of comprehension may a court properly
conclude that the Miranda rights have been waived. . . .’” (People
v. Combs (2004) 34 Cal.4th 821, 845.)
“‘On appeal, we review independently the trial court’s legal
determinations of whether a defendant's statements were
voluntary [citation], whether his Miranda waivers were
knowingly, intelligently, and voluntarily made [citation], and
whether his later actions constituted an invocation of his [rights]
[citation]. We evaluate the trial court’s factual findings
regarding the circumstances surrounding the defendant’s
statements and waivers, and “‘accept the trial court’s resolution
of disputed facts and inferences, and its evaluations of credibility,
if supported by substantial evidence.’”’ [Citation.] When [as
here] ‘an interview is recorded, the facts surrounding the
admission or confession are undisputed and we may apply
independent review.’” (People v. Suarez (2020) 10 Cal.5th 116,
158.)
Appellant contends he did not knowingly and intelligently
waive his Miranda rights because “the Miranda advisals were
given to [him] in Spanish, which is not his native Chinanteco
language.” Before appellant was given the Miranda warnings, he
said he was from the Mexican state of Oaxaca. Pursuant to
Evidence Code sections 459 and 452, subdivision (h), we take
judicial notice that “[t]he Chinantec . . . languages . . . are spoken
3
by the indigenous Chinantec people . . . in Oaxaca . . . .”

[as of May 12, 2023] archived at .
In the trial court defense counsel argued: “[A]ny reasonable
officer should have realized [appellant] was not a native Spanish
speaker. That realization should have triggered an inquiry as to
whether or not [his] native tongue was something other than
Spanish. . . . Although [appellant] can converse in Spanish,
Spanish is his second language and his proficiency in Spanish is
not equivalent to his ability to speak and comprehend
Chinanteco.”
At the hearing on appellant’s motion to exclude his
statements, the court said, “As to the issue of the underlying
language of Chinantec versus Spanish, the overall exchange
[during the police interrogation] in the Court’s review of the
evidence makes it apparent that [appellant] understood and was
understandingly responsive to the questions of the detective.”
Exercising our independent review, we conclude the
evidence shows that appellant knowingly and intelligently
waived his Miranda rights. After reading appellant his rights in
Spanish, Detective Rocio Cazares asked if he understood them.
Appellant replied, “Yes,” and he agreed to speak with her. He did
not say that his native language was Chinanteco or that he had
difficulty understanding Spanish. Nor did he request an
interpreter. Appellant’s responses during the interrogation
demonstrate that he spoke Spanish fluently. Detective Cazares
testified that the conversation between her and appellant
“flowed” like a normal conversation and that he appeared to
understand what she was “saying to him.”
4
Based on the following colloquy between appellant and
Cazares, appellant maintains Cazares “had a duty to clarify that
[he] understood he had the right to remain silent and
[understood] the consequences of waiving that right” before she
took the Miranda waiver:
“CAZARES: Do you understand all of the rights that I have
just explained to you?
[APPELLANT]: Yes.
CAZARES: Yes?
[APPELLANT]: Uh-huh.
CAZARES: Okay. Taking into account those rights, do you
wish to speak with me now?
[APPELLANT]: No. Like about what you ask me or . . .?
[Italics added.]
CAZARES: Yes.
[APPELLANT]: Yes, I agree.
CAZARES: Yes? It’s ok?
[APPELLANT]: Mhm”
Cazares did not have a duty to further explain appellant’s
Miranda rights. Nothing in the above colloquy indicates that
appellant did not understand his right to remain silent. We
reject appellant’s assertion that “[t]he contradictory nature of
appellant’s statements and the fact that Spanish is not his native
language indicate that he did not understand his right to remain
silent.”
We also reject appellant’s claim that his initial “No”
response was an invocation of his right to remain silent. The
“No” was immediately followed by an inquiry seeking clarification
of Cazares’s question, “[D]o you wish to speak with me now?”
Cazares merely answered “Yes” to appellant’s inquiry. Appellant
then made clear that he agreed to speak with her.
5
After Waiving His Miranda Rights, Appellant
Did Not Invoke His Right to Remain Silent
“In order to invoke the Fifth Amendment privilege after it
has been waived, and in order to halt police questioning after it
has begun, the suspect ‘must unambiguously’ assert his right to
silence . . . . [Citation.] It is not enough for a reasonable police
officer to understand that the suspect might be invoking his
rights. [Citation.] Faced with an ambiguous or equivocal
statement, law enforcement officers are not required under
Miranda . . . to cease questioning altogether. [Citation.] . . . [A]
rule requiring a clear invocation of rights from someone who has
already received and waived them ‘avoid[s] difficulties of proof’
[citation], and promotes ‘effective law enforcement.’” (People v.
Stitely (2005) 35 Cal.4th 514, 535 (Stitely).)
“[O]nce a . . . suspect has made a valid waiver of the
Miranda rights, any subsequent assertion of the right to counsel
or right to silence during questioning must be articulated
sufficiently clearly that a reasonable police officer in the
circumstances would understand the statement to be an
invocation of such rights. [Citations.]” (People v. Nelson (2012)
53 Cal.4th 367, 379-380.) “[B]ecause a postwaiver invocation
determination contemplates reference to a reasonable officer's
understanding of a suspect's statements in light of known or
objectively apparent circumstances, the suspect's subjective
desire for counsel [or to remain silent] is not relevant.” (Id. at
p. 377.)
Appellant claims that, after waiving his Miranda rights, he
twice invoked his right to remain silent.
6
First Invocation
The first invocation allegedly occurred during the following
conversation:
“CAZARES: Okay. So, tell me about the allegations of why
you are here. [Italics added.]
[APPELLANT]: But the allegations, how? That, uh. I
prefer to remain silent or you must already know because I
didn’t know what happened. You must already know the,
what the reason is. And I think that I am willing, in your
hands, I complied with all, with the law that I am being
accused, and what else can I say? [Italics added.]
CAZARES: Okay. Tell me when you, the first time you
touched [Jane Doe].”
The trial court concluded that appellant’s statements were
not “a full invocation of his right to remain silent.” The court
interpreted the statements as indicating only that appellant did
not want to speak about the “allegations of why [he was] here.”
His statements “moved [Detective Cazares] to a different
subject.”
A reasonable police officer in Detective Cazares’s situation
could have similarly interpreted appellant’s statements. “A
suspect may invoke his right to remain silent selectively.”
(People v. Flores (2020) 9 Cal.5th 371, 425 (Flores).) “A defendant
may indicate an unwillingness to discuss certain subjects without
manifesting a desire to terminate ‘an interrogation already in
progress.’” (People v. Silva (1988) 45 Cal.3d 604, 629-630.)
“Through the exercise of [a suspect’s] option to terminate
questioning he can control . . . the subjects discussed . . . .”
(Michigan v. Mosley (1975) 423 U.S. 96, 103-104.) Appellant
indicated that he did not want to discuss the “allegations” against
7
him that had led to his arrest. He did not unambiguously
express a desire to cut off all questioning.
Second Invocation
The second invocation of appellant’s right to remain silent
allegedly occurred during the following conversation about DNA
evidence:
“CAZARES: Okay. Do you know what is DNA?
[APPELLANT]: Yes.
CAZARES: . . . [I]s there any reason why your DNA could
be in her [Jane Doe’s] underwear? [This was a ruse; there
was no DNA evidence.] Explain it to me.
[APPELLANT]: Yes, there is a reason.
CAZARES: Okay, explain it to me.
[APPELLANT]: Did you find that in her underwear?
CAZARES: I’m asking you.
[APPELLANT]: Did that happen now, officer?
CAZARES: No?
[APPELLANT]: I prefer to remain silent. And, uh, well,
yes, I prefer to remain silent, officer, I am already in your
hands. Yes, detective, I am already in your hands. [Italics
added.]
CAZARES: What, what are you saying, I don’t understand.
[APPELLANT]: You, uh, well, what other evidence can you
have if, if you already ran the DNA to the girl?
CAZARES: So, I don’t understand, do you want to talk to
me, or you don’t want to talk to me?
[APPELLANT]: Detective, uh, what else can I say?
CAZARES: I just want to know the truth, Bernardo. Okay.
[APPELLANT]: What else can I say?
CAZARES: I feel that you have something to tell me, and
that you want to tell me, I don’t know if you want to, to feel
better or because you have a burden, but I just want to
know what happened with [Jane Doe].
8
[APPELLANT]: Okay, detective. It happened something
else now. Uh, I think that’s why . . . I am guilty, detective.”
In the above conversation appellant voiced his preference to
remain silent in response to Cazares’s insistence that he explain
how his DNA could have been found in his stepdaughter’s
underwear. A reasonable police officer could have inferred that
appellant wished to remain silent only as to the requested
explanation.
Moreover, “[a] reasonable officer in Detective [Cazares’s]
position [c]ould have concluded that [appellant’s statement that
he preferred to remain silent] expressed apparent frustration
[about the alleged DNA evidence], but did not end the interview.”
(Stitely, supra, 35 Cal.4th at p. 535.) In People v. Williams (2010)
49 Cal.4th 405, 434, our Supreme Court concluded that “the
statement . . . – ‘I don’t want to talk about it’ – was an expression
of defendant's frustration with [Detective] Salgado's failure to
accept defendant's repeated insistence that he was not
acquainted with the victim as proof that he had not encountered
her on the night of the crime, rather than an unambiguous
invocation of the right to remain silent.” The court explained, “‘A
defendant has not invoked his or her right to silence when the
defendant's statements were merely expressions of passing
frustration or animosity toward the officers, or amounted only to
a refusal to discuss a particular subject covered by the
questioning.’” (Id. at p. 433.)
9
The ambiguity of appellant’s statements was heightened by
his use of the word “prefer.”3 In Delashmit v. State (Miss. 2008)
991 So.2d 1215, 1221 (Delashmit), the court said, “Delashmit’s
statement of ‘I prefer a lawyer’ was only an ambiguous mention
of possibly speaking with an attorney. . . . [W]e find that this
statement was insufficient to invoke the right to counsel.
Clearly, a reasonable police officer would not understand this
statement alone to be an unequivocal assertion of the right to
counsel.”
Our Supreme Court cited Delashmit in People v. Molano
(2019) 7 Cal.5th 620, 660: “see also Delashmit[, supra,] 991 So.2d
[at pp.] 1219, 1221 [defendant’s statement, ‘“I prefer a lawyer”’
was ambiguous].” The Molano court held, “[A]ssuming, as
defendant asserts, that he said he would ‘feel more comfortable’ if
he spoke to a public defender first, the comment did not amount
to a ‘clear assertion’ of the right to counsel under our high court's
precedent.” (Molano, at p. 659.) The Molano court apparently
believed that the defendant’s statement that he would “feel more
comfortable” with a lawyer was similar to Delashmit’s statement,
“I prefer a lawyer.”
“In certain situations, words that would be plain if taken
literally actually may be equivocal under an objective standard,
in the sense that in context it would not be clear to the reasonable
listener what the defendant intends. In those instances, the
protective purpose of the Miranda rule is not impaired if the
authorities are permitted to pose a limited number of followup
questions to render more apparent the true intent of the
3 After waiving his Miranda rights, appellant also used the
word “prefer” in his first alleged invocation of his right to remain
silent. (See p. 7, ante.)
10
defendant.” (Williams, supra, 49 Cal.4th at p. 429.) This is one
of those instances where Detective Cazares’s follow-up questions
were permissible to ascertain appellant’s true intent. (See Flores,
supra, 9 Cal.5th at p. 422 [“we conclude that defendant's ‘[n]o,’ in
context, was susceptible of more than one possible interpretation.
[Lieutenant] Kusch therefore was not forbidden from asking his
followup question to clarify defendant's intent”]; Medina v.
Singletary (11th Cir. 1995) 59 F.3d 1095, 1105 [“Taking into
consideration the events preceding Medina’s response, Medina’s
‘No’ was ambiguous and did not clearly indicate his desire to
remain silent. . . . [¶] . . . “To prohibit a clarifying question under
the circumstances . . . would ‘transform the Miranda safeguards
into wholly irrational obstacles to legitimate police investigative
activity’”].) “[A]lthough the right to silence is the core right
protected by Miranda, . . . ‘we must consider the other side of the
Miranda equation: the need for effective law enforcement.’”
(People v. Martinez (2010) 47 Cal.4th 911, 949.)
The Trial Court Did Not Err in Admitting Evidence
of Child Sexual Abuse Accommodation Syndrome
The trial court permitted the People’s expert to testify
about Child Sexual Abuse Accommodation Syndrome (CSAAS).
“‘Expert testimony on “the common reactions of child molestation
victims,” known as CSAAS theory evidence, “is admissible to
rehabilitate such witness’s credibility when the defendant
suggests that the child’s conduct after the incident—e.g., a delay
in reporting—is inconsistent with his or her testimony claiming
molestation.” [Citation.] “‘Such expert testimony is needed to
disabuse jurors of commonly held misconceptions about child
sexual abuse, and to explain the emotional antecedents of abused
11
children's seemingly self-impeaching behavior.’” . . .’” (People v.
Clotfelter (2021) 65 Cal.App.5th 30, 64.)
Appellant contends: “CSAAS is not a diagnosable
syndrome, it was not created as a forensic tool, and it is not
adequately reliable, detailed, or scientific.” (Bold omitted.)
“CSAAS is subject to the Kelly-Frye [test] because it purports to
present a scientific analytic technique,” but it has not been shown
to satisfy the test’s requirements. “‘[T]he Kelly/Frye test
constitutes a judicially created rule relating to the admissibility
of certain types of evidence . . . .’ [Citation.] ‘[U]nder the Kelly–
Frye rule the proponent of evidence derived from a new scientific
methodology must satisfy three prongs, by showing, first, that the
reliability of the new technique has gained general acceptance in
the relevant scientific community, second, that the expert
testifying to that effect is qualified to do so, and, third, that
“‘correct scientific procedures were used in the particular case.’”’”
(Geffcken v. D'Andrea (2006) 137 Cal.App.4th 1298, 1309.)
Appellant’s contentions are similar to the contentions we
rejected in People v. Munch (2020) 52 Cal.App.5th 464. We
noted, “The CSAAS evidence Munch challenges has been ruled to
be properly admitted by the courts of this state for decades.” (Id.
at p. 472.) Pursuant to our reasoning in Munch (id. at pp. 468-
473), we reject appellant’s contentions. (See also People v.
Lapenias (2021) 67 Cal.App.5th 162, 173 (Lapenias) [“expert
CSAAS testimony is not ‘“‘scientific’” evidence’ subject to the
Kelly rule”].)
Appellant argues that the trial court abused its discretion
in admitting the CSAAS evidence because “it was more
prejudicial than probative.” (Bold omitted.) Therefore, the
evidence should have been excluded under Evidence Code section
12
352 (section 352), which provides, “The court in its discretion may
exclude evidence if its probative value is substantially
outweighed by the probability that its admission will . . . create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.”
“Evidence is not ‘prejudicial’ merely because it is harmful to
a criminal defendant's case. [Citation.] Indeed, essentially all
relevant evidence introduced by the prosecution is likely to be
harmful to a defendant's case. Evidence only creates ‘undue
prejudice’ if the evidence tends to evoke an emotional bias
against the defendant, and the evidence has relatively little
importance based on the specific issues involved in the particular
case. [Citation.] ‘The weighing process under section 352
depends upon the trial court's consideration of the unique facts
and issues of each case, rather than upon the mechanical
application of automatic rules.’” (Lapenias, supra, 67
Cal.App.5th at p. 174.)
“We apply the deferential abuse of discretion standard
when reviewing a trial court's ruling under Evidence Code section
352.” (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) “[A] trial
court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with
it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
In his motion to exclude CSAAS evidence, appellant’s
section 352 argument was as follows: “CSAAS was developed as a
treatment aid for confirmed child abuse victims, not a forensic
tool. Its presentation in the courtroom has the strong chance of
misleading the jury as to its purpose. CSAAS testimony is
explicitly barred from being introduced to show that a child has
displayed common signs of victims, and therefore is likely to have
13
been sexually assaulted. However, introducing this testimony is
extremely likely to entice the jury into drawing this exact
conclusion. Therefore, the limited probative value CSAAS
testimony has in dispelling myths is far outweighed by its
potential to unfairly prejudice the jury against the defendant.”
In their opposition to the motion, the People argued: “The
introduction of CSAAS evidence . . . is relevant because the
instant case involves allegations by Jane Doe of sexual abuse
incidents starting as early as when [she] was seven years old.
Law enforcement did not discover the abuse until nearly eight
years later. Jane Doe staying within the home and having not
reported the incident by itself presents ‘paradoxical’ behavior, as
identified by [People v. Patino (1994) 26 Cal.App.4th 1737, 1744-
1745]. The presentation of CSAAS evidence will help jurors
resolve this paradox and [they] will be better equipped to
understand the full context of Jane Doe’s disclosure and assess
her credibility. . . . Once educated on CSAAS, jurors will be freed
of mistaken beliefs surrounding child sexual abuse and delays in
reporting.” The People maintained that a jury instruction –
CALCRIM No. 1193 – would “properly admonish[] the jury as to
the limited purpose of CSAAS evidence.”
The trial court accepted the People’s argument. It
concluded “that the probative value of the expert testimony [on
CSAAS] outweighs any prejudicial effect.” The court explained,
“The relevancy is to show the aspects of Jane Doe's behavior were
not inconsistent with abuse having taken place . . . .” The court
said it would give an appropriate “limiting instruction” on
CSAAS evidence.
“The [trial] court made a reasoned judgment that the
probative value of the proffered CSAAS evidence was
14
substantially outweighed by any prejudicial effect. (See § 352.)
Prior to its evidentiary ruling, the prosecutor informed the court
about the anticipated evidence . . . . The court plainly did not
approach its ruling in an arbitrary or capricious manner. Thus,
we find no abuse of discretion.” (Lapenias, supra, 67 Cal.App.5th
at p. 174.)
Appellant claims the admission of the CSAAS evidence
violated his Sixth and Fourteenth Amendment rights to due
process. “Generally, a court's compliance with the rules of
evidence does not violate a defendant's right to due process.
[Citation.] Further, reviewing courts have routinely held the
admission of CSAAS evidence does not violate due process.
[Citations.]” (Lapenias, supra, 67 Cal.App.5th at p. 174.)
The Trial Court Did Not Err in Instructing
The Jury Pursuant to CALCRIM No. 1193
Pursuant to CALCRIM No. 1193, the trial court instructed
the jury: “You have heard testimony from Dr. Anthony Urquiza
regarding Child Sexual Abuse Accommodation Syndrome. Dr.
Anthony Urquiza’s testimony . . . is not evidence that the
defendant committed any of the crimes charged against him or
any conduct or crimes with which he was not charged. You may
consider this evidence only in deciding whether or not Jane Doe’s
conduct was not inconsistent with the conduct of someone who
has been molested[,] and in evaluating the believability of [her]
testimony.”
Appellant maintains the instruction violated his Sixth and
Fourteenth Amendment rights to due process. He argues that
CALCRIM No. 1193 “permits jurors to use CSAAS evidence in
the very way that is prohibited – to determine if the sexual abuse
actually happened.” In addition, appellant asserts that the
15
instruction “is fundamentally argumentative because it expressly
permits jurors to use CSAAS evidence to determine if the
complainant’s behavior is consistent with that of a sexual abuse
victim, but ignores the defensive inference that the same
behavior might suggest falsity.”
Appellant notes that, in People v. Gonzales (2017) 16
Cal.App.5th 494, 503-504, we “rejected a challenge to CALCRIM
No. 1193, similar to the one made here.” Appellant has not
persuaded us to reexamine our reasoning in Gonzales. In
Lapenias, supra, 67 Cal.App.5th at pp. 175-176, the court stated:
“We agree with People v. Gonzales . . . . We similarly hold the
official jury instruction accurately instructs the jury on the law:
the proper use—and the proper limitations on the use—of CSAAS
evidence. Thus, we find the trial court did not commit error by
instructing the jury with CALCRIM No. 1193.”
Appellant’s Sentence Does Not Constitute Cruel and
Unusual Punishment in Violation of the Eighth Amendment
Appellant was sentenced to an aggregate determinate term
of 26 years, four months, followed by a consecutive aggregate
indeterminate term of 40 years to life. Appellant notes that, at
the time of sentencing, he was 39 years old. Appellant argues,
“While the conduct as found true by the jury is morally
reprehensible, [he] does not deserve a sentence which is the
functional equivalent of life without the possibility of parole.”
Appellant claims his sentence “is cruel and unusual and violates
the Eighth Amendment.” (Bold omitted.)
We disagree. In People v. Bestelmeyer (1985) 166
Cal.App.3d 520, the defendant was convicted of 25 counts of
sexually abusing his stepdaughter over an extended period of
time. He was sentenced to prison for 129 years. On appeal, he
16
contended the sentence “constitutes cruel and unusual
punishment in violation of both federal and state Constitutions.”
(Id. at p. 528.) His “principal argument [was] based on the fact
that a sentence of 129 years is equivalent to a sentence of life
without possibility of parole.” (Id. at p. 531.) The appellate court
concluded that, in view of his multiple sex crimes, the 129-year
sentence was not cruel or unusual punishment. (Id. at p. 532.)
The same reasoning applies to appellant’s sentence, especially in
view of the aggravating factors found true by the trial court.
“[I]t is immaterial that [appellant] cannot serve his
sentence during his lifetime. In practical effect, he is in no
different position than a defendant who has received a sentence
of life without possibility of parole: he will be in prison all his life.
However, imposition of a sentence of life without possibility of
parole in an appropriate case does not constitute cruel or unusual
punishment . . . .” (People v. Byrd (2001) 89 Cal.App.4th 1373,
1383.)
“In Harmelin v. Michigan (1991) 501 U.S. 957 . . . , the
United States Supreme Court concluded that a term of life
without the possibility of parole for possessing more than 650
grams of cocaine did not constitute cruel and unusual
punishment [within the meaning of the Eighth Amendment]. It
follows that, in view of appellant's far more serious . . . crimes . . .
[against his stepdaughter], his sentence [does not violate the
Eighth Amendment].” (People v. Leon (2010) 181 Cal.App.4th
452, 469.)
Clerical Errors in Indeterminate Abstract of Judgment
Appellant acknowledges that the trial court imposed
“consecutive sentences, amounting to 40 years-to-life and an
additional determinate sentence of 26 years and 4 months.”
17
(Italics added.) The People refer to appellant’s “combined
sentence of 66 years four months to life.”
There are two abstracts of judgment – one for the
determinate sentence and the other for the indeterminate
sentence. The determinate abstract is correct. It shows that
appellant was sentenced to an aggregate determinate term of 26
years, four months. The indeterminate abstract correctly shows
that appellant was sentenced to 25 years to life on count 1 and 15
years to life on count 2. It does not show that the court ordered
the term on count 2 to run consecutively to the term on count 1.
Nor does it show that the court ordered the aggregate
indeterminate term of 40 years to life to run consecutively to the
aggregate determinate term of 26 years, four months. “Where, as
here, the trial court imposes an indeterminate life sentence and a
determinate sentence, it has discretion to decide whether the
sentences shall be served concurrently or consecutively.” (People
v. Galvez (2011) 195 Cal.App.4th 1253, 1264; see also § 669
[“Whenever a person is committed to prison on a life sentence
which is ordered to run consecutive to any determinate term of
imprisonment, the determinate term of imprisonment shall be
served first”].)
Neither party has raised the clerical errors in the
Indeterminate Abstract of Judgment. In the disposition set forth
below, we direct the trial court to correct the errors.
Disposition
The judgment is affirmed. The trial court is directed to
correct the clerical errors in the Indeterminate Abstract of
Judgment as discussed in the above section entitled “Clerical
Errors in Indeterminate Abstract of Judgment.” The corrected
abstract of judgment shall show that the 15-year-to-life
18
indeterminate term on count 2 runs consecutively to the 25-year-
to-life indeterminate term on count 1. It shall also show that the
aggregate indeterminate term of 40 years to life runs
consecutively to the aggregate determinate term of 26 years, four
months. The trial court is further directed to transmit certified
copies of the Determinate Abstract of Judgment and the corrected
Indeterminate Abstract of Judgment to the Department of
Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
CODY, J.
19
Patricia Kelly, Judge
Superior Court County of Santa Barbara
______________________________
Bases & Bases and Arielle Bases, under appointment by
the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, Gary A. Lieberman, Deputy Attorney
General, for Plaintiff and Respondent.