People v. Ruiz CA5 ( 2023 )

Filed 8/22/23 P. v. Ruiz CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F084254
Plaintiff and Respondent,
(Super. Ct. No. 19CMS-4644)
v.
OSCAR CATALAN RUIZ, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kings County. Kathy
Ciuffini, Judge.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D.
Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant Oscar Catalan Ruiz began touching V., his stepdaughter,
inappropriately when she was around 11 years old. On more than one occasion,
defendant told V. if she did not let him touch her, or if she told anyone, he would hurt or
even kill her mother and possibly her siblings. Defendant used this threat to force
intercourse with V. on more than one occasion. Eventually, V. told her sister and
grandmother about the incidents and V.’s mother called law enforcement.
V.’s mother testified she applied for a U visa, for which victims of crime could
apply. The trial court allowed questions related to the visa, limited to showing the
witness’s state of mind, and denied defendant’s request to present expert testimony on the
nature of the visa.1
For the defense, defendant’s daughter A. testified she had been physically abused
by defendant, but that he never sexually abused her. Defendant testified on his own
behalf at trial, denying the allegations against him.
The jury found defendant guilty on all counts as charged: lewd acts on a child
under 14 years old (Pen. Code, § 288, subd. (a), count 1),2 forcible lewd acts on a child
under 14 years old (§ 288, subd. (b)(1), count 2), and three counts of rape of a child under
14 years old (§§ 261, subd. (a), 269, subd. (a)(1), counts 3, 4 & 5). The court sentenced
defendant to an indeterminate term of 45 years to life for counts 3, 4 and 5; and a
consecutive determinate term of 14 years, which was the middle term of eight years for
count 2 plus a full consecutive middle term of six years for count 1.
1 A U visa allows a person who is a victim of certain crimes, including domestic violence
and sexual abuse, and who assists law enforcement to remain temporarily in the United States.
(See 8 U.S.C. § 1101(a)(15)(U); 8 C.F.R. § 214.14 (2023); People v. Villa (2020) 55 Cal.App.5th
1042, 1047, 1050 (Villa).) The record also refers to this as an O visa occasionally, but such
references have been edited to U visa for consistency purposes in order to eliminate confusion.
2 All statutory references are to the Penal Code unless otherwise indicated.
2.
On appeal, defendant claims the trial court abused its discretion when it denied
defendant’s request to present expert testimony on the nature of a U visa. Next,
defendant claims that his attorney rendered ineffective assistance of counsel (IAC) by
eliciting testimony from A. that defendant physically abused her and for not objecting to
the prosecutor’s cross-examination of A. regarding the physical abuse. Last, defendant
claims the trial court improperly imposed full, consecutive sentences on counts 1 and 2.
The People disagree with defendant’s claims and contend the trial court properly
exercised its discretion in excluding the expert testimony, defendant failed to demonstrate
his attorney rendered IAC, and that the consecutive terms were authorized under
section 667.6, subdivision (d).
We reject defendant’s contentions, but conclude the matter must be remanded for
resentencing on other grounds pursuant to section 667.6, subdivision (d). In all other
respects, we affirm the judgment.
FACTUAL BACKGROUND
I. Prosecution Evidence
V. and her grandmother, Blanca, were living in El Salvador when they witnessed a
murder in front of their house. The people who did it threatened to kill Blanca and V. if
they said anything to the police. Because they were scared, Blanca and V. traveled to the
United States in October 2016, arriving first in Texas. In November 2016, V. moved
from Texas to California to live with her mother, Wendy. This was the first time V.
remembered seeing Wendy in person. Blanca came to California on February 2, 2017.
Wendy was living on Ivy Street in Hanford with defendant, defendant’s mother
Ana C., and Wendy’s daughters A. and J. Defendant was introduced to V. as her stepdad.
V.’s birthday is November 23, 2005. When she moved to the United States, V. was
almost 11 years old, A. was about 8 years old, and J. was about 5 years old. The Ivy
house had one bathroom, a bedroom at the front, then a living room, kitchen and another
bedroom in the back. The entire house had carpet at the time, but it was changed to a
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hardwood type floor in 2017. In November 2016, Ana C. slept in the front bedroom by
the front door, and Wendy, defendant, and J. slept in the back bedroom by the kitchen. In
anticipation of V.’s arrival, Wendy bought a bunk bed and V. and A. slept on the bunk
bed in the living room. According to V., there was just one bed and a couch and V. and
A. would alternate sleeping on the bed and the couch.
Wendy worked at a packing house from November 2016 until March 2017, when
she went out on disability related to her pregnancy. Wendy worked Monday through
Friday, starting at 7:00 in the morning, but her shift ended at varying times. Wendy
shared a room with defendant and J. at the time. Wendy typically fell asleep first.
V. testified she did not have a very close relationship with defendant; she barely
knew him. One night while V. was sleeping on the couch, V. got up to get a cup of water
from the kitchen and saw defendant. V. was wearing a shirt and shorts and defendant
was wearing only his underwear. Defendant touched her on her chest with his hands,
over her shirt. V. said it felt like he was touching her a long time and she was not
comfortable with it. Defendant apologized and told her not to say anything and to stay
quiet. V. did not recall when this first incident happened, but Blanca had not arrived in
California yet, and A. was asleep in the living room. V. did not tell anyone because
defendant told her not to.
Another incident occurred before Christmas break in 2016, when V. stayed home
from school. It occurred in the morning while Wendy was at work, Ana C. was in the
front room, and A. and J. were at school. V. was helping defendant make his bed when
defendant grabbed V. by the legs and pulled her towards him. V. was facing up and
defendant positioned his body close to her. V. told defendant she felt uncomfortable and
he said “‘Oh, there’s nothing wrong with this .…’” V. continued to say she was
uncomfortable and he apologized and let her go. V. did not tell anyone because
defendant told her not to tell anyone.
4.
V. believed Wendy bought a bunk bed after Blanca arrived in February 2017.
Blanca slept on the bottom bed while V. and A. continued to alternate between sleeping
in the top bed and the couch. V. recalled that when you turned over in the top bunk it
would squeak, but it did not shake. The couch did not make any noise when you moved.
From February 2017 through June 2017, V. recalled incidents when defendant
touched her again. Wendy had complications with her pregnancy and was in and out of
the hospital during that time. Blanca was working during the night and V. took care of
her siblings until defendant came back from work. V. could not recall if Ana C. was
living there at the time because even when she was there, she barely left her room.
One night while V. was sleeping on the couch, defendant got close to her and tried
to touch her, which shocked her awake. V. was uncomfortable and scared. Defendant
told V. not to say anything and threatened V. that if she did not let him touch her he
would kill her mother. V. was scared because Wendy was pregnant and she did not want
anything to happen to Wendy or the baby. Because of this, V. let defendant touch her;
she felt defenseless. At the time, A. was asleep on the top bunk, J. was asleep in the back
bedroom, and Blanca was working. Defendant put his hands under V.’s shirt to touch her
chest slowly and reminded V. not to say anything.
Wendy went back to the hospital on June 26, 2017, and her baby boy, C., was
delivered by C-section. Another incident occurred when Wendy had to stay at the
hospital after having C. That night, Blanca was working, and defendant was sleeping
with A. and J. in the same bed, but V. chose to sleep on the top bunk bed. However,
defendant picked up V. from the top bed and carried her to the same bed where he and
her sisters were sleeping in the front room. Defendant laid V. next to him, which made
V. very uncomfortable. V. tried to get up and move back to the bunk bed, but defendant
hugged her so she could not move. J. got up to hug V. and V. told her we should move to
another place, but defendant said no. So V. switched places in bed with J. Nothing else
happened during that incident. V. was 11 years old at the time.
5.
One morning, defendant told V. to warm up a tortilla for him while Blanca was
preparing coffee for him. V. accidentally burned the tortilla, which made defendant
angry. Defendant told V. that she could not even warm up a tortilla right, grabbed the
tortilla, and threw it at her face. The tortilla hit V. in the face, causing her to cry because
the tortilla was really warm. Wendy came out of the back bedroom to see V. crying and
wiping her tears. When Wendy saw defendant intended to hit Blanca, she got in between
them because she was the victim of violence and did not want defendant to hit her
mother. Defendant kicked Blanca out of the house and Wendy decided to leave with her
children while defendant was at work. They moved out of the Ivy house around June 28
or 29, 2017, and stayed in Huron for about a week. Defendant asked Wendy to forgive
him and come back because they were a family and had a newborn baby.
Wendy moved back into the house on Ivy Street with her children, but neither
Blanca nor Ana C. returned. When they moved back, Wendy, defendant and C. slept in
the front bedroom, while V. and her sisters slept in the back bedroom where each of them
had their own bed. Even though they had their own beds, J. would often sleep with V. in
her bed. When V. was back at the Ivy house, defendant would wait until Wendy was
sleeping deeply and go into V.’s bedroom, lie in bed with V., and touch her. V. would
often wake up to defendant in her bed with his arm hugging her. Sometimes, defendant
would turn V. around and pull her close to him. V. would try to push back or get away
or, if her sister was in bed with her, she would switch places with her sister. Defendant
would pull V. towards him to put her on top of him while he was facing up. Defendant
would then hold V. by the hands and tell her not to make a sound. During these
incidents, defendant would still tell V. that he would kill her mother if she did not let him
touch her or do whatever he was doing to her. V. said she loved her mother and did not
want anything to happen to her.
V. described a specific incident during which defendant tried to take V.’s shirt off,
but he heard a noise, got scared, and pushed her off. V. was wearing a shirt and
6.
sweatpants and defendant was only wearing underwear. Defendant’s hands had been
moving up towards V.’s chest when he heard the noise and pushed her off. When
defendant pushed V. off, he told her not to say anything or make a sound.
On another incident, defendant ended up taking V.’s shirt off. That night, Wendy
was awake and defendant told her he was going to sleep with the girls. V. made sure J.
was between her and defendant, but defendant moved J. so he could be close to V.
Defendant told V. not to make any noise and not to attempt to yell because he would hurt
her mother. Defendant took off V.’s shirt and started touching her. Defendant placed his
hand over V.’s mouth and told her to let him do this. Defendant then started taking off
V.’s sweatpants and he started to pull down his underwear. Once again, he warned V. not
to make any noise or say anything because he would hurt her mom. Then, defendant
pulled down V.’s underwear and he touched her in a very uncomfortable way. V. did not
want him touching her, but he kept threatening her. Defendant touched V.’s breasts and
her private part in front with his hand. Defendant was touching her skin under her
clothes. Defendant removed his underwear and put his private part inside her private
part, which she described as very uncomfortable. Then, defendant moved V. off of him
and told her not to say anything or he would do something to her mother and possibly her
sisters. V. said defendant did this to her a lot of times. Defendant would either wait for
Wendy to fall asleep or he would say he wanted to sleep with the girls. It became
difficult for V. to fall asleep because of what defendant was doing.
One night, V. heard defendant use the restroom and then defendant got into bed
next to her. Defendant hugged V. and told her not to move. He turned V. to face him,
told her not to get spooked, and he got on top of her. They were facing each other, and
he was laying on her with his entire body. Defendant took off V.’s shirt, pants and
underwear. He took off his own underwear and put his private part inside of V.’s private
part. V. was uncomfortable and said it lasted a long time. The incident ended when one
7.
of V.’s sisters started moving. Defendant got off of V., put on his underwear, and left the
room.
The last incident occurred when defendant was upset at Wendy. Wendy learned
defendant had been unfaithful to her and defendant was sleeping on the couch after
drinking all day. When going to bed that night, the sisters closed their bedroom door, but
defendant told them to leave it open. A. went to sleep on J.’s bed and J. got in bed with
V. After her sisters fell asleep, defendant went to lay in V.’s bed and covered her mouth.
He told her not to make a noise and that he was very mad at her. Defendant whispered to
V. that it was her fault his life was ruined and called her “uncomfortable” names.
Defendant accused V. of telling Wendy that defendant was unfaithful to her. Defendant
pressed down on V.’s mouth and she got very scared. Defendant laid on top of V. and
said she should allow him that night because he was capable of killing her mother and
harming her sisters and brother. He also threatened to send Blanca to immigration.
Defendant took off V.’s shirt, sweatpants, and underwear as well as his own underwear.
Defendant then put his private inside V.’s private and moved his body up and down. V.
described it as uncomfortable, and she felt ashamed and disgusted with herself.
Afterwards, defendant told V. it did not matter what V. allowed him to do anymore
because he was still going to harm her mother and grandmother.
Around March 3, 2018, Wendy and her children moved out of the Ivy house into
an apartment on Silverado after defendant hit Wendy. V. felt scared of defendant when
she learned defendant hit Wendy. V. still had not told anyone at that time what defendant
had been doing to her. While living on Silverado, V. saw defendant’s car at the entrance
of their apartment.
In 2019, the family moved to a house on Tony Drive in Hanford because they no
longer felt safe at the Silverado place. On August 31, 2019, V. told her sister A. about
what defendant had done to her. When Blanca arrived home after work, V. told Blanca
that while Blanca was at the detention center in Texas, defendant had touched her
8.
intimate parts. V. said defendant put his private part inside her private part many times.
Blanca did not ask V. anymore details about the incidents because V. was crying. V. told
Blanca that the incidents also happened when Blanca worked nights and Wendy was at
the hospital. Defendant had told V. that if she did not allow him to touch her, Blanca
would be deported and she would never get out of there. V. was 13 years old at the time
and was crying and trembling while she was talking. Blanca called Wendy and told her
to come home. When Wendy came home, Blanca and V. told her what happened to V.
and Wendy called the police.
V. spoke with the police about what happened multiple times. V. said it was very
difficult for her to tell the police and she did not tell them what fully happened because
she was still scared. Defendant told V. he could touch her like that because she was not
his daughter. V. said she always slept in the same room with A. and sometimes Blanca as
well. When defendant put his front private part in V.’s private part, A. and J. were
always there. When they were sleeping in the back bedroom, they each had their own
bed. Two twin beds were pushed together and the third was by the closet. These beds
did not make noise when you moved in them. When V. would move to try to get away
from defendant, her sisters never woke up.
At the time of the trial, Wendy was in the process of seeking a U visa, which had
not been granted yet. Wendy denied that the facts in this case could make a difference in
her petition for a visa.
V. had no knowledge of whether the allegations in this case would help her stay in
the United States. She stated she did not know if there was a petition for her to stay in
the United States, but expressed that she wanted to continue living here. V. did not know
about Wendy’s immigration status or whether Wendy had applied for a visa.
II. Defense Evidence
Ana C. had difficulty walking around due to pain and would use a walker, but she
preferred to sit and lay down. She is on medication for pain and other health issues.
9.
Ana C. could not hear well and was blind until August 2019, when she had eye surgery.
In 2016, Ana C. was living on Ivy Street with defendant, Wendy, and his girls A. and J.,
and slept in the front bedroom. V. arrived at the end of November or early December
2016. When Blanca arrived, Blanca slept in the room with A. and V. V. slept on the top
bunk bed and Blanca slept on the bottom bunk. Ana C. moved out at the end of June
2017, four days after C. was born.
Ana C. recalled an incident during which she heard Blanca grab defendant, throw
him against the wall and hit defendant because he dumped the coffee. Defendant left for
work, but told Wendy he did not want Blanca living there anymore. Wendy said if
Blanca was leaving, she was leaving too. When Wendy moved back to the Ivy house
without Blanca, she did not want Ana C. there anymore either.
A. testified defendant was her father. A. never saw defendant touch her sisters J.
or V. or her brother C. inappropriately. A. said she never woke up to noise or movement
to find defendant hurting V. because when she sleeps, nothing wakes her up.
A. remembered talking with investigators in the fall of 2019. About a year after
they stopped living with defendant, V. told A. that defendant raped her and that she had
not wanted to tell A. because she was afraid A. was not going to believe her. A. told V.
she believed her and, when they went back inside, V. told Blanca. Blanca called Wendy,
who was at work. When Wendy got home, she called the police.
Defendant testified he did not rape, molest, or otherwise touch V. inappropriately.
He remembered picking up V. from the airport in November 2016. The house on Ivy was
small and V. slept on the bunk bed in the living room. V. slept on the top bunk and never
slept on the couch. When Blanca arrived, she slept on the bottom bunk bed. Defendant
is 5 feet 4 or 3 inches tall and the top of the bunk bed came to his mid-forehead. He did
not think it was possible for him to yank V. out of the top bunk. He testified it was not
possible for him to rape V. because it was a small house with several people living there.
Defendant explained that you could hear everyone in the house, regardless of their
10.
location. When he was sleeping in the front bedroom, he could hear the girls talking in
the back bedroom. It was an old house and when you moved, it made noise. Defendant
stated that his voice is loud and you can always hear his voice.
Defendant would play with A., J., and V., but he never touched them
inappropriately. Defendant would be alone with A. and J., but he was adamant he was
never alone with V. because she was not his daughter. He testified he only touched V. in
a normal, fatherly way. The last time defendant saw V. was March 1, 2018.
Defendant first spoke with police about the accusations September 19, 2019.
Defendant was surprised when he learned about the allegations against him. According
to defendant, Wendy confronted defendant with the allegations in front of V. and V. said,
“‘My grandma told me to say that.’” Defendant testified the claim that he sexually
abused V. was part of Blanca’s “manipulation.” Defendant claimed that Blanca coached
V. into saying that defendant touched her sexually, touched her on the chest, and pulled
her by the legs. Blanca coached V. into saying that defendant took off V.’s clothes and
put his private part in her private part. Defendant believed Wendy had to agree with
Blanca, and A. had to follow through with the lies.
III. Verdict and Sentencing
Defendant was charged with committing a lewd and lascivious act upon V., a child
under 14 years of age, the first time (§ 288, subd. (a), count 1); committing a forcible
lewd and lascivious act upon V., a child under 14 years of age, when he touched V. under
her shirt (§ 288, subd. (b)(1), count 2); aggravated sexual assault, rape, upon V., who was
under the age of 14 years old and was seven or more years younger than defendant, by
means of force, violence, duress, menace or fear and accomplished by threatening to
retaliate against the victim or other person, in her own bed in the girls’ bedroom (§§ 269,
subd. (a)(1), 261, subd. (a)(2), (a)(6), count 3); aggravated sexual assault, rape, upon V.
who was under the age of 14 years old and seven or more years younger than defendant,
by means of force, violence, duress, menace or fear, in her own bed after Wendy fell
11.
asleep (§§ 269, subd. (a)(1), 261, subd. (a)(2), count 4); and aggravated sexual assault,
rape, upon V. who was under the age of 14 years old and was seven or more years
younger than the defendant, by means of force, violence, duress, menace or fear and
accomplished by threatening to retaliate against the victim or other person, the last time
(§§ 269, subd. (a)(1), 261, subd. (a)(2), (a)(6), count 5). The following aggravating
circumstances were also alleged: (1) The crime involved great violence, great bodily
harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty,
viciousness, or callousness; (2) The victim was particularly vulnerable; (3) The manner in
which the crime was carried out indicates planning, sophistication, or professionalism;
and (4) The defendant took advantage of a position of trust or confidence to commit the
offense.3 (See Cal. Rules of Court, rules 4.408, 4.421.)
The jury found defendant guilty of all counts. The court sentenced defendant to an
aggravated terms of 45 years to life, plus 14 years. The court imposed three consecutive
15-year-to-life terms for the three rape convictions in counts 3 through 5, plus eight years
for count 2 and six years for count 1, to run consecutive to the term on count 2.
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion in Excluding Expert Testimony
Regarding the Nature of a U Visa
Defendant asserts the trial court abused its discretion and violated his right to
present a defense by refusing his request to present expert testimony on the nature of a
U visa. The People contend that the trial court properly exercised its discretion under
Evidence Code section 352. We conclude the trial court did not abuse its discretion in
excluding expert testimony regarding the U visa.
3 The court granted the prosecution’s motion to dismiss the special allegations after the
jury found defendant guilty on all counts.
12.
A. Relevant Factual and Procedural History
The People made a motion in limine to exclude evidence relating to immigration
status or applications for visas by V. or Wendy. At a pretrial hearing, Wendy testified
she came to the United Stated in 2008. In December 2018, Wendy applied for a U visa
on the grounds that she was a victim of domestic violence from 2008 to 2017.4 At the
time of trial, Wendy’s application for the U visa was still under review. Wendy had no
intention of having V. apply for the same visa since V. was already going through a
different process, having requested political asylum. Wendy had in her possession her
visa paperwork, asylum documents for V., and the restraining order against defendant.
After learning that an attorney was representing Wendy and V. in these other matters, the
court did not allow the documents to be read or entered into evidence.
The court decided defense counsel could ask Wendy about the timeframe with
respect to her U visa application and the reasons for applying for it. Defense counsel
suggested they could stipulate that Wendy is applying for a visa that is granted to victims
of crime and that V. came to the United States seeking asylum. The court did not see
how Wendy’s visa was “relevant to [V.] telling her grandmother that the defendant
sexually assaulted her because you don’t have Wendy in the mix there.” Defense counsel
argued Wendy is the one who called the police, but the court pointed out it was at the
behest of the grandmother who just talked to V. The court stated, “I just don’t see the
nexus,” but agreed to reserve ruling on the matter.
Before trial began, the prosecutor re-raised the asylum and visa issue. The court
had not stated what its ruling was with respect to the immigration asylum and wanted to
hear from the defense witnesses. Defense counsel suggested a stipulation on a
description of a U visa. The court expressed its concern that this evidence will cause the
4 In March 2018, a domestic violence incident prompted Wendy to contact police and
move out of the house with her children. Defendant grabbed Wendy by the hair while she was
laying down asleep in the bedroom with A., J., V. and C.
13.
jury to speculate about the visa and what is going to happen. Defense counsel suggested
it could call its expert, Ana Moore, to testify about the U visa. The court responded,
“That’s why I wanted to keep it very limited because otherwise it’s going to be … [¶] …
[¶] … conjecture and speculation by the jury.”
Defense counsel noted that Wendy is in the process of applying for a visa on the
grounds of being victimized and it is an ongoing process that accumulates evidence and
could include the evidence in this trial. Defendant argued that because this is an open
application, familial victimization is relevant, and is the motive for the coaching of V.
Defense counsel argued “It is essential to our defense. It is central to my client’s right to
defend himself and to cross-examine and confront the witnesses against him. We’re not
going to get into any of the details. I would just like the fact to go on the record that she
is in the process of applying for [a U-]visa and that’s it.”
The court reminded defense counsel the admission of this evidence is subject to an
Evidence Code section 352 analysis. And “the most pertinent portion of that defense is
what does [Wendy] believe the [e]ffect of that [U-]visa will have? What does [Wendy]
believe that these proceedings and the fact that she contacted police related to these
proceedings, not to the domestic violence. I mean, the domestic violence is related
because it’s the defendant who allegedly perpetrated the domestic violence, but it’s as it
relates what is in her mind in terms of why she filed it, why she made application for both
her and her daughter, and what she believes is going to happen with respect to these
proceedings? [⁋] Because that’s the bias, motive and intent of her. That’s the only
relevance of it, and whether or not it’s going to be granted or not granted, that’s not
relevant. What does she believe is going to happen?”
The court permitted defense counsel to ask Wendy what her intent was in applying
for the visa. But the court held it was “not going to have an expert witness Ana Moore
testify what [a U-]visa is because the jurors are just going to be spaced out.” The court
limited the testimony to “What did [Wendy] believe was going to happen as a result of
14.
applying for it? And when she applied for it, why she did it? And then also when she did
it.” “[W]hat was her state of mind when she applied for it and also her state of mind
now.” The court reiterated that “it’s her state of mind, you know, the certain triggering
events, so when she contacted the police when her mother told her [V.] had been
[abused], and that any contacts that she had with the police, what did she believe that—
what [e]ffect did she believe that would have on her immigration or her [U-]visa?”
The issue was revisited the following day. The court noted that Wendy’s U visa
application was based on the domestic violence incident that occurred on March 3, 2018,
and the petition was not yet final. The court recognized that the defense “theory could be
that [Wendy’s] pursuing the U-visa to get revenge on the defendant.” So the court ruled
that “what would be admissible with respect to the U-visa would be the date that
[Wendy] applied for the U-Visa, the status of the petition when the report to the police
was made, and the current status of the petition. And then also her belief of the nexus
between the granting or denial of the petition in this case and her assistance in this case
and whether her assistance in this case will lead to the petition being granted.” The court
concluded that was what was relevant to the case and defense counsel agreed.
B. Standard of Review and Applicable Law
A trial court’s order is presumed correct and the defendant has the burden to
demonstrate the court committed reversible error. (People v. Alvarez (1996) 49
Cal.App.4th 679, 694.) We review the trial court’s decision whether to admit expert
testimony for abuse of discretion. (People v. Pearson (2013) 56 Cal.4th 393, 443.)
Except as otherwise provided by statute, all relevant evidence is admissible.
(Evid. Code, §§ 350, 351.) “‘Relevant evidence’” means evidence, including “evidence
relevant to the credibility of a witness,” having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action. (Id.,
§ 210.)
15.
“As a general matter, a defendant is entitled to explore whether a witness has been
offered any inducements or expects any benefits for his or her testimony, as such
evidence is suggestive of bias.” (People v. Brown (2003) 31 Cal.4th 518, 544.) A party
may cross-examine a witness concerning motive and bias if relevant to prove a disputed
material fact. (Evid. Code, §§ 210, 780, subd. (f); Villa, supra, 55 Cal.App.5th at
p. 1050.) Although “‘[c]ross-examination to test the credibility of a prosecuting witness
in a criminal case should be given wide latitude’ [citation], such latitude does not
‘prevent the trial court from imposing reasonable limits on defense counsel’s inquiry
based on concerns about harassment, confusion of the issues, or relevance’ [citations].”
(People v. Brown, supra, at p. 545.)
The right to cross-examine a witness on potential bias, prejudice, or ulterior
motive is subject to restriction on the grounds stated in Evidence Code section 352.
(Villa, supra, 55 Cal.App.5th at p. 1051.) That section “gives the trial court discretion to
exclude evidence “‘if its probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury.’ (Evid.
Code, § 352; accord, People v. Lee (2011) 51 Cal.4th 620, 643.) Such ‘discretion extends
to the admission or exclusion of expert testimony.’” (People v. Linton (2013) 56 Cal.4th
1146, 1181.) Trial courts have broad discretion to exclude such evidence to “‘prevent
criminal trials from degenerating into nitpicking wars of attrition over collateral
credibility issues.’” (People v. Ayala (2000) 23 Cal.4th 225, 301; accord, People v.
Wheeler (1992) 4 Cal.4th 284, 296; Villa, supra, at p. 1051.)
A reviewing court will uphold a trial court’s exercise of discretion under Evidence
Code section 352 unless “‘it exercised its discretion in an arbitrary, capricious, or
patently absurd manner.’” (People v. Johnson (2019) 8 Cal.5th 475, 521; Villa, supra, 55
Cal.App.5th at p. 1051; accord, People v. Pearson, supra, 56 Cal.4th at p. 443 [we review
the trial court’s decision whether to admit expert testimony for abuse of discretion];
16.
People v. McDowell (2012) 54 Cal.4th 395, 426 [trial court has broad discretion in
deciding whether to admit or exclude expert testimony; reviewed for abuse of discretion];
People v. Alcala (1992) 4 Cal.4th 742, 788–789 [same].)
Any erroneous exclusion of evidence is generally evaluated under the Watson
standard of prejudice. (See People v. Watson (1956) 46 Cal.2d 818, 836 (Watson);
People v. DeHoyos (2013) 57 Cal.4th 79, 131.)
C. Analysis
Defendant argues that expert testimony of the U visa application process would
have assisted the jury in determining whether Wendy’s application for a visa gave her
motive to encourage V. to falsely allege she was a victim of defendant’s sexual abuse.
Defendant argues the domestic violence incident alone may not have been enough to
qualify for the U visa. Defendant claims that the jury had no way of knowing that Wendy
and V. potentially stood to gain legal residency by falsely implicating defendant.
Defendant argues an expert could have explained how Wendy and V. stood to gain from
V.’s accusations against defendant. Defendant further contends the trial court’s exclusion
of such expert testimony violated his right to present a defense. The People disagree and
respond that the trial court properly exercised its discretion under Evidence Code
section 352, limiting the evidence regarding the U visa to Wendy’s state of mind. The
People also contend that even if the trial court abused its discretion, the exclusion of the
proposed evidence did not prejudice defendant.
“In determining the admissibility of expert testimony, ‘the pertinent question is
whether, even if jurors have some knowledge of the subject matter, expert opinion
testimony would assist the jury.’” (People v. Lindberg (2008) 45 Cal.4th 1, 45.) A
U visa provides visa status for someone who is a victim of certain crimes, including
domestic violence and sexual abuse, and who is or is likely to be helpful to authorities
investigating or prosecuting such criminal activity. (See 8 U.S.C. § 1101(a)(15)(U); 8
C.F.R. § 214.14 (2023); Villa, supra, 55 Cal.App.5th at pp. 1047, 1050.) In Villa, the
17.
defendant argued that he should be allowed to cross-examine the complaining witness
regarding the circumstances behind her application for a U visa. (Villa, supra, at
p. 1047.) The trial court found the evidence regarding her visa was “‘relevant to show
motive and/or bias and was relevant to [the victim’s] credibility.’” (Id. at p. 1051.) The
court also found the probative value of such evidence “was substantially outweighed by
the risk of confusing the issues and consuming an undue amount of time.” (Id. at
p. 1052.) Accordingly, the trial court prohibited the defendant from asking the
complaining witness about her U visa application. (Ibid.)
On review, the Villa court concluded the trial court did not abuse its discretion in
excluding the visa application evidence under Evidence Code section 352. (Villa, supra,
55 Cal.App.5th at pp. 1052, 1054.) Villa agreed that the evidence had limited probative
value based on (1) the fact that the victim’s testimony following her discovery of the visa
procedure “simply repeated what she said earlier” at the preliminary hearing, thereby
leaving “very little reason to believe discovering she could obtain a U visa motivated her
to testify falsely” and (2) “the physical evidence strongly supported the jury’s finding that
Doe was a victim of domestic abuse” given that she was found inside the defendant’s
vehicle with “several serious and obvious injuries.” (Id. at pp. 1052–1053.) Villa also
agreed there was a substantial risk of prejudice because (1) “the U visa evidence would
have been unduly time consuming to present” since it would entail additional witnesses
on the topic and “‘take a huge chunk of time’”; (2) “the topic would have created a
substantial risk of distracting and confusing the jury” by requiring an expert to educate
them “on obtaining a U visa, the process of applying for one, the likelihood the visa
would be approved, and the precise effect this would have had on Doe’s immigration
status”; and (3) the evidence would have “created at least some potential for prejudicing
the jury against Doe” being “inclined to view her unfavorably if they found out she could
use her standing as a victim of abuse to gain a path to legal immigration status.” (Id. at
p. 1053.) “All these complexities would likely have bogged the jury down in collateral
18.
issues and presented it from focusing on the evidence of [the defendant’s] conduct.”
(Ibid.) The Villa court further held, irrespective, exclusion of the evidence did not
prejudice the defendant, since there was little reason to think the jury would have
discredited Doe’s testimony had it learned of the U visa application since Doe testified
about the abuse consistently before she learned of the visa or applied for one and there
was strong physical evidence of abuse. (Id. at p. 1054.)
Here as well, we cannot conclude the trial court abused its discretion in excluding
the expert testimony under Evidence Code section 352. The trial court considered
defendant’s request to have an expert testify on the U visa process and carefully weighed
the probative value of having an expert explain the visa against potential for undue
prejudice. V. testified she was unaware of Wendy’s application status or whether the
result of this proceeding would have any effect of the outcome of Wendy’s application
for a visa. We agree with the trial court that evidence of Wendy’s visa application
process had little probative value on V.’s credibility. Wendy applied for a visa in
December 2018, which was before V. said anything about defendant’s sexual abuse in
2019. There is minimal probative value that the expert testimony would be relevant to
show Wendy was motivated by the visa to get V. to make a false claim since V. did not
disclose the sexual abuse to Wendy, but to A. first and then to Blanca. Wendy was only
informed about the allegations after Blanca called her and told her to come home and call
the police. Further, the trial court expressed its concern that the expert testimony would
cause the jury to space out, and we agree that expert testimony on the U visa process
would cause undue delay and invite “conjecture and speculation by the jury.” (See Villa,
supra, 55 Cal.App.5th at p. 1053 [testimony regarding the U visa would have been
unduly time consuming to present and would have created a substantial risk of distracting
and confusing the jury].) Thus, the trial court’s decision to exclude expert testimony
regarding the U visa was not made arbitrarily, capriciously, or in an absurd manner. (See
People v. Johnson (2022) 12 Cal.5th 544, 610–611.) We cannot conclude the court
19.
abused its discretion in excluding the expert testimony regarding the U visa. (See Villa,
supra, at pp. 1053–1054.)
Even assuming error, defendant fails to demonstrate he was prejudiced by the trial
court’s decision to exclude expert testimony of the U visa. (See Watson, supra, 46
Cal.2d at p. 836; People v. DeHoyos, supra, 57 Cal.4th at p. 131.) First, the trial court
allowed the defense to cross-examine Wendy regarding potential bias and motive for the
visa. (See People v. Brown, supra, 31 Cal.4th at p. 545 [the trial court may impose
reasonable limits on defense counsel’s ability to test credibility of a witness based on
concerns about confusion of the issues or relevance].) Counsel was permitted to ask
questions such as “What did [Wendy] believe was going to happen as a result of applying
for [the U visa]? And when she applied for it, why she did it? And then also when she
did it.” “[W]hat was her state of mind when she applied for it and also her state of mind
now.” The court reiterated that “it’s [Wendy’s] state of mind, you know, the certain
triggering events, so when she contacted the police when her mother told her [V.] had
been [abused], and that any contacts that she had with the police, what did she believe
that—what [e]ffect did she believe that would have on her immigration or her [U]-visa?”
By allowing this portion of evidence regarding Wendy’s visa application, it allowed the
jury to be made aware of any potential for motive and bias. (See Villa, supra, 55
Cal.App.5th at p. 1051 [evidence “‘relevant to show motive and/or bias and was relevant
to her credibility’”].)
Even if the jury had heard expert testimony on the U visa application process and
learned that additional evidence could be added to the application, defendant has not
demonstrated it was reasonably probable he would have obtained a more favorable
outcome. (See Watson, supra, 46 Cal.2d at p. 837.) The evidence shows V. did not
know about Wendy’s visa application and there was no evidence V. told Wendy about
the sexual abuse first. Wendy was at work and only found out about the abuse when
Blanca called to tell her. Even if expert testimony on the U visa process was admitted, it
20.
would not change this evidence. Nor does it make it reasonably probable that the jury
would have disregarded the victim and chosen to accept the unsupported defense theory
that Wendy manipulated V. to lie in detail about numerous detailed instances of sexual
abuse. Therefore, we cannot conclude the trial court abused its discretion by excluding
expert testimony on the U visa or that defendant was prejudiced as a result of the
exclusion of such evidence.
II. Defendant Fails to Demonstrate He Received IAC at Trial Regarding A.’s
Testimony
Defendant asserts that his counsel was prejudicially ineffective for (1) eliciting
testimony from A. that defendant physically abused her, and (2) not objecting to the
prosecutor’s cross-examination of A. on the subject. The People disagree, contending
defendant failed to show there was no tactical reason for his counsel’s actions. The
People also argue the evidence was not entirely harmful to defendant, since the trial court
told the jury to disregard the evidence, and it tended to show that A. had reason to be
biased against defendant, but still testified she never saw defendant sexually abuse V.
We conclude defendant failed to demonstrate he was prejudiced by any alleged
deficiencies in his counsel’s representation.
A. Relevant Procedural History
Defense counsel called A., defendant’s daughter, as a witness. On direct
examination of A., defense counsel asked A. “has [defendant] ever hurt you?” to which
she responded “Yeah.” Counsel asked A. “In terms of what he did to your sister?” and A.
responded “Yeah, and he was abusive.” Counsel followed up with the specific question
“has he ever touched you sexually?” and A. responded “No.” Through further
questioning, A. clarified that defendant never touched her vagina or her chest and that she
never saw defendant touch either of her sisters or brother inappropriately. Defense
counsel then said to A., “you said your dad was physically abusive with you?” and asked
21.
her “What did he do?” A. answered “Well, once he hit me hard. He made my nose
bleed.” She said it did not make her angry, it made her “sad and a little scared of him.”
On cross-examination, the following colloquy occurred:
“[PROSECUTOR:] One thing, first you said that your dad hit you
once?
“A. Yeah, multiple times actually.
“[PROSECUTOR:] Was there anyone else there?
“A. My mom would know about it but obviously wouldn’t do
anything because she was afraid of him.
“[PROSECUTOR:] Did you ever tell [V.] what he did to you?
“A. Everyone knew.
“PROSECUTOR:] Everyone knew? [¶] What grade are you in
right now?
“A. I'm in 8th.
“[PROSECUTOR:] Does that make you 13 years old now?
“A. Yeah.
“[PROSECUTOR:] Do you remember what grade you were in
when your dad hit you?
“A. It would be like every single—like from all the time, like it
stopped in 4th grade because that's when we moved away. We moved from
the house.
“[PROSECUTOR:] I’m just asking about the time you got that
bloody nose. Do you remember what grade you were in?
“A. I think I was in third, second.
“[PROSECUTOR:] Would you have been around seven or eight
years old?
“A. Yeah.”
22.
At this point, the trial court interrupted proceedings and called the attorneys to the
bench. The court asked the defense attorney why he had not objected yet and whether
she had a strategy for not objecting. Defense counsel explained she did not object
because she believed she opened the door, but that she was going to start objecting
because the questioning went beyond what she asked about. Defense counsel also
explained that when she asked A. if she had been abused, she “meant it to be sexually
abused.” When they returned to proceedings before the jury, defense counsel made an
objection to the line of questioning based on Evidence Code section 352 and the court
reserved its ruling.
After completing A.’s testimony, the court took a break and returned to the issue
of A.’s statements outside the presence of the jury. The court restated for the record that
since it did not hear an objection from defense counsel, it paused the proceedings because
it did not know where counsel was going with the line of questions. The court explained
that the domestic violence evidence with Wendy was admitted only for the limited
purpose regarding her immigration petition. Defense counsel asked the court to strike
A.’s statements. The court responded that “strategically we certainly can strike that. I
can give a jury instruction. You know, we always instruct the jurors to try to unring the
bell, if the bell’s been rung, so I guess my question to you, if you want it stricken with
respect to [A.?]” Defense counsel continued with her motion to strike and requested
mitigating instructions. The court decided to strike all of A.’s testimony related to
defendant’s physical abuse.
The prosecution requested that the testimony that came out on direct examination
remain in since it was from defense counsel’s questioning. Defense counsel explained
that she did not understand the court’s ruling regarding the domestic violence evidence
with Wendy and said that if she had she would not have brought this evidence in. The
court decided that “Any testimony from [A.] about physical abuse by her father towards
her should be stricken, and the jury should be told to completely disregard it. It’s not—
23.
‘it’s not relevant. It’s not relevant to the charges.” The court stated, “my ruling would be
during [A.]’s testimony I reserved a ruling on an objection made by the defense. My
ruling relates to any testimony—my ruling is as follows: [¶] It relates to any testimony
given by [A.] about physical abuse on her by her father. That testimony is stricken from
the record and the jury is to disregard it.”
At the close of trial, the court instructed the jury as follows: “any testimony given
by [A.] about physical abuse on her by her father, the defendant .… The testimony is
stricken from the record and may not be considered for any purpose. The jury is ordered
to disregard it.”
During deliberations, the jury asked for readback of A.’s entire testimony. The
trial court redacted the testimony regarding the physical abuse against A. in the testimony
read back to the jury.
B. Standard of Review and Applicable Law
The Sixth Amendment of the federal Constitution and article I, section 15 of the
California Constitution guarantee the right to the assistance of counsel. (See Strickland v.
Washington (1984) 466 U.S. 668, 687.) The Strickland court established a two-prong test
requiring the defendant to demonstrate deficient performance as well as prejudice. The
standard is the same under the federal and state Constitutions. (Ibid.; People v. Osband
(1996) 13 Cal.4th 622, 700.) The first part of this test requires a showing by a
preponderance of the evidence that the defense attorney failed to act in accordance with
an objective standard of reasonableness. (People v. Rodrigues (1994) 8 Cal.4th 1060,
1126; People v. Bolin (1998) 18 Cal.4th 297, 333 (Bolin) [trial counsel’s performance fell
below an objective standard of reasonableness]; People v. Yates (2018) 25 Cal.App.5th
474, 487–488.) It is sufficient if the defendant can show that defense counsel’s omissions
involved a crucial issue with no reasonable explanation for counsel’s inaction. (People v.
Jackson (1980) 28 Cal.3d 264, 289, overruled on other grounds in People v. Cromer
(2001) 24 Cal.4th 889, 901, fn. 3; People v. Scott (1997) 15 Cal.4th 1188, 1212 (Scott)
24.
[there can be no reasonable explanation]; People v. Mendoza Tello (1997) 15 Cal.4th 264,
266 [same].)
Review of trial counsel’s performance “must be highly deferential” and include a
“strong presumption” that the defendant received reasonable professional assistance of
counsel. (Strickland v. Washington, supra, 466 U.S. at p. 689.) The alleged deficiency
must also be assessed “‘under the circumstances as they stood at the time that counsel
acted or failed to act.’” (Scott, supra, 15 Cal.4th at p. 1212.) “Although deference is not
abdication [citation], courts should not second-guess reasonable, if difficult, tactical
decisions in the harsh light of hindsight.” (Ibid.; accord, People v. Ledesma (1987) 43
Cal.3d 171, 217 (Ledesma).)
In resolving claims of IAC, “‘we must “assess counsel’s overall performance
throughout the case” [citation], evaluating it “from counsel’s perspective at the time of
the alleged error and in light of all the circumstances. [Citation.]”’” (Bolin, supra, 18
Cal.4th at p. 335; accord, Strickland v. Washington, supra, 466 U.S. at p. 690 [viewed at
the time of counsel’s conduct]; Kimmelman v. Morrison (1986) 477 U.S. 365, 384, 386.)
“Merely tactical errors by counsel are not deemed reversible [citations], for the decisions
of counsel in the midst of trial cannot be second-guessed by the hindsight of an appellate
court [citation].” (People v. Frausto (1982) 135 Cal.App.3d 129, 139.)
The failure to object is a matter that usually involves tactical decisions on
counsel’s part and seldom establishes counsel’s incompetence. (People v. Frank (1990)
51 Cal.3d 718, 736; People v. Jackson, supra, 28 Cal.3d at pp. 291–292; People v.
Frierson (1979) 25 Cal.3d 142, 158.) It cannot be said that counsel was ineffective if
there was a plausible tactical reason for the failure to object. (People v. Sapp (2003) 31
Cal.4th 240, 277 [no IAC where “counsel’s choice to forgo any objection may have been
tactical”]; People v. Jones (2003) 29 Cal.4th 1229, 1254 [“‘where counsel’s trial tactics
or strategic reasons for challenged decisions do not appear on the record, we will not find
25.
[IAC] on appeal unless there could be no conceivable reason for counsel’s acts or
omissions’”].)
To establish prejudice, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at
p. 694; accord, People v. Rodrigues, supra, 8 Cal.4th at p. 1126; People v. Lewis (1990)
50 Cal.3d 262, 288 [“it is reasonably probable that a more favorable determination would
have resulted in the absence of counsel’s failings”].) “[T]here is no reason for a court
deciding an [IAC] claim to approach the inquiry in the same order [set forth above] or
even to address both components of the inquiry if the defendant makes an insufficient
showing on one. In particular, a court need not determine whether counsel’s performance
was deficient before examining the prejudice suffered by the defendant as a result of the
alleged deficiencies.” (Strickland v. Washington, supra, at p. 697.)
C. Analysis
First, defendant contends that his counsel was ineffective by eliciting information
from A. that defendant physically abused her by posing the open-ended question whether
defendant ever hurt her. Second, he asserts his counsel was ineffective in failing to
object to the prosecutor’s cross-examination of A., which allowed the jury to learn that
defendant was abusive not just once, but on multiple occasions, and that it only stopped
when A. moved out. The People disagree, arguing defendant fails to demonstrate that
trial counsel was ineffective. Regardless, the People contend defendant fails to
demonstrate he was prejudiced by any alleged error by counsel.
1. Defense Counsel’s Direct Examination of A., Eliciting Testimony
Defendant Physically Abused Her
Defendant claims he received IAC when his defense attorney solicited damaging
testimony from A. that defendant physically abused her by hitting her and giving her a
26.
bloody nose and that it made her sad and scared of defendant. The People claim
defendant cannot show counsel had no reasonable tactical reason for proceeding as she
did, nor can defendant demonstrate he was prejudiced.
We begin by considering the facts in People v. McDermott (2002) 28 Cal.4th 946,
as guidance in this case. The defendant claimed his trial counsel improperly asked Gary
Venturini, the murder victim’s former lover, if Venturini's relationship with another
former lover was physical, which improperly elicited testimony that the other former
lover had died of AIDS. (Id. at p. 995.) After the prosecution objected, defense counsel
rephrased the question to delete any reference to the relationship being physical. (Ibid.)
The court decided defense counsel could not have anticipated the testimony the defendant
claimed was offensive, that Venturini's former lover had died of AIDS, because that
statement was not responsive to defense counsel’s question, which made no reference to
the death of the former lover. (Id. at pp. 995–996.) The court concluded the defendant
failed to show incompetent representation at trial. (Id. at p. 996.)
Similarly here, A. was called as a witness by the defense to testify that her father
had never sexually abused her. Under the circumstances of the case, at the time counsel
asked A. whether her father ever hurt her, it is reasonable to believe that counsel did not
anticipate A. would answer yes. (See Scott, supra, 15 Cal.4th at p. 1212 [deficiency must
also be assessed “‘under the circumstances as they stood at the time that counsel acted or
failed to act’”].) The record also includes defense counsel’s explanation that she meant
sexual abuse when she asked if defendant ever hurt A., expecting A. to answer no.
Although we agree the question was poorly posed and vague, it does not necessarily
demonstrate counsel’s performance fell “below an objective standard of reasonableness.”
(See Bolin, supra, 18 Cal.4th at p. 333.)
We disagree with defendant that the facts of this case are more like In re Jones
(1996) 13 Cal.4th 552. In In re Jones, defense counsel made a conscious, strategic
decision to ask a witness to name the person her mother identified as the murderer of
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Janet, the victim. (Id. at p. 570.) Defense counsel failed to indicate whether he
interviewed the witness before trial to determine what her answer would be and must
have failed to read the police report, which showed the witness telling the police her
mother identified the defendant as the murderer. (Ibid.) The court also noted counsel
posed his question in a manner that made it unlikely the witness would identify someone
else. (Ibid.) Thus, the court concluded defense counsel’s question fell below the
standard of a reasonable competent attorney. (Ibid.) Here, although defense counsel
asked an open-ended question, there is no evidence in the record that counsel could have
known A. would answer that defendant had hurt her. Defense counsel called A. as a
witness for the purpose of testifying that defendant never sexually assaulted her. It is
apparent from the record that counsel did not anticipate A. would say that defendant
physically abused her.
In further support of his position, defendant cites several federal cases that may be
persuasive but are not binding on this court. (See People v. Cleveland (2001) 25 Cal.4th
466, 480 [California courts are not bound by lower federal courts, even on federal
questions]; People v. Bradley (1969) 1 Cal.3d 80, 86 [not bound by federal courts];
People v. C.S.A. (2010) 181 Cal.App.4th 773, 777 [federal circuit cases persuasive].) In
United States v. Villalpando (8th Cir. 2001) 259 F.3d 934, trial counsel elicited testimony
from a witness tending to establish the defendant’s character as threatening and
murderous. (Id. at p. 939.) The court agreed that, under the circumstances of the drug-
related prosecution, such evidence had absolutely no strategic value for the defendant and
was prejudicial to the outcome of his case. (Ibid.) The court, applying an abuse of
discretion standard of review, affirmed the IAC conclusion. (Ibid.) However, abuse of
discretion is not the applicable standard of review here. (See People v. Yates, supra, 25
Cal.App.5th at pp. 487–488 [burden on the defendant to demonstrate IAC by a
preponderance of the evidence].)
28.
In Glancy v. State (Fla.Dist.Ct.App. 2006) 941 So.2d 1201, defense counsel was
found to render IAC for asking the victim of the residential burglary why she did not like
the defendant, which elicited testimony that the defendant had given her 14-year-old son
pot, booze, and cigarettes. (Id. at p. 1203.) Counsel then asked the victim’s son why his
mother did not like the defendant and he said it was because the defendant had been in
and out of prison. (Ibid.) The court found that because counsel repeated this type of
questioning on two witnesses and took no action to alleviate the damage, counsel’s
representation fell outside the wide range of professionally competent assistance. (Ibid.)
Here, however, defense counsel did not repeat the line of questioning with another
witness. Rather, once A. answered that defendant hurt her, defense counsel worked to
recover from A.’s answer to demonstrate defendant did not sexually abuse her. Defense
counsel later objected to the testimony and moved to strike all reference to defendant’s
physical abuse of A. Therefore, the Glancy case is distinguishable.
Defendant’s reliance on Chatmon v. United States (D.C. 2002) 801 A.2d 92 is also
misplaced. In Chatmon, defense counsel’s questions led to the introduction of the
defendant’s identification from evidence that was otherwise inadmissible. (Id. at p. 109.)
The court noted that defense counsel knew that questioning this witness could have
elicited a response about the identification, yet he did it anyway. (Ibid.) The court found
IAC and a reasonable probability the jury would have had a reasonable doubt as to the
defendant’s guilt absent the evidence. (Id. at pp. 111–112.) Here, there was no evidence
in the record that defense counsel knew A. would testify that defendant physically abused
her. Rather, defense counsel’s question was meant to get A. to respond that defendant
never sexually abused her.
Additionally, defendant fails to demonstrate his trial counsel’s decision to ask A.
follow-up questions about what defendant did to hurt her was an unreasonable tactical
decision. (See Scott, supra, 15 Cal.4th at p. 1212.) Once A. stated that defendant hurt
her, defense counsel could not ignore that answer since defendant was facing charges of
29.
sexual abuse. Defense counsel’s follow-up questions allowed A. to clarify that defendant
did not sexually abuse her and that she never saw defendant sexually abuse V. or her
siblings. A.’s answer that defendant hit her hard and made her nose bleed was bad
character evidence, but it cannot be said there was no reasonable or sound tactical
strategy in asking A. additional questions in order for her to explain what she meant when
she said defendant had hurt her.
On this record, and giving deference to trial counsel, defendant fails to
demonstrate by a preponderance of the evidence that trial counsel’s performance fell
“below an objective standard of reasonableness” in her direct examination of A. (See
Strickland v. Washington, supra, 466 U.S. at p. 688; see also Bolin, supra, 18 Cal.4th at
p. 333.)
2. Defense Counsel Failed to Object to the Prosecutor’s Cross-
examination of A., Which Allowed the Jury to Learn Defendant
Was Abusive on Multiple Occasions and Only Stopped When A.
Moved Out
Defendant also claims his counsel was ineffective when she failed to object to the
prosecutor’s questioning of A., which produced testimony that defendant hit her multiple
times, that her mother was scared of defendant, and that the physical abuse did not stop
until they moved out. Defendant argues his counsel did not have a tactical purpose for
failing to object and admitted on the record she did not believe she had a legitimate basis
to object since she opened the door to the line of questioning. The People argue
defendant fails to demonstrate defense counsel did not have a reasonable tactical strategy
for not objecting to the questioning of A. about defendant hitting her. Counsel could
have determined she opened the door to the line of questioning or did not want to risk
painting a negative impression with the jury by objecting to the evidence she herself
raised.
“Whether to object to inadmissible evidence is a tactical decision; because trial
counsel’s tactical decisions are accorded substantial deference [citations], failure to
30.
object seldom establishes counsel’s incompetence.” (People v. Hayes (1990) 52 Cal.3d
577, 621; see People v. Williams (1997) 16 Cal.4th 153, 215.) “In order to prevail on [an
IAC] claim on direct appeal, the record must affirmatively disclose the lack of a rational
tactical purpose for the challenged act or omission.” (People v. Ray (1996) 13 Cal.4th
313, 349; accord, Williams, supra, at p. 215.) However, in some cases, defense counsel’s
decisions “may be so ill chosen that they may render counsel’s overall representation
constitutionally defective.” (United States v. Tucker (9th Cir. 1983) 716 F.2d 576, 586;
see Martin v. Rose (6th Cir. 1984) 744 F.2d 1245, 1249 [stating that “even deliberate trial
tactics may constitute [IAC] if they fall ‘outside the wide range of professionally
competent assistance’”].) The question is “whether any reasonably competent counsel
would have done as counsel did.” (In re Gay (2020) 8 Cal.5th 1059, 1073.)
In People v. Robertson (1982) 33 Cal.3d 21, 41 (Robertson), the defense attorney
explained he did not object to the defendant’s admission of two other murders “‘because
there was no basis for objection.’” However, the court concluded the defense attorney
was wrong and the testimony was objectionable on the ground that no independent
evidence of the corpus delicti of those crimes were introduced. (Ibid.) It was also
objectionable under Evidence Code section 352 as the obvious potential for prejudice that
the jury would consider the defendant’s statement as proof that he killed two other
women. (Robertson, supra, at p. 42.) Similarly here, defense counsel was not precluded
from objecting to potentially irrelevant or prejudicial evidence. (See id. at pp. 41–42.)
Here, the record contains defense counsel’s expressed reasons for her decision not
to initially object to the prosecutor’s questioning of A. Defense counsel believed that she
had opened up the line of questioning regarding physical abuse due to her direct
examination of A. Counsel also disclosed she believed the testimony was relevant as
related to the court’s ruling that Wendy was allowed to testify that defendant had been
physically abusive of her as to her reason for applying for a U visa. After the court asked
the attorneys to approach the bench and questioned defense counsel about why she was
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not objecting, defense counsel said she was going to object to any additional questions on
the matter as going beyond the scope of her direct examination. Defense counsel did end
up objecting to A.’s testimony that defendant was physically abusive to A. and
successfully moved to strike that portion of her testimony from the record.
We need not decide whether trial counsel’s strategy here was deficient since
defendant has failed to show that the challenged actions of counsel were prejudicial, as
discussed below. (See People v. Weaver (2001) 26 Cal.4th 876, 961 (Weaver) [reviewing
court may reject an IAC claim on lack of prejudice without determining whether
counsel’s performance was deficient].)
3. Defendant Fails to Demonstrate Prejudice Resulted From Trial
Counsel’s Direct Examination of A. or Her Failure to Object
Defendant argues evidence of irrelevant prior violence is inherently prejudicial
and would tend to cause the jury to conclude defendant is an abusive man. Defendant
contends the testimony regarding his prior abuse of A. was particularly inflammatory.
Defendant also argues this was a close case as evidenced by the jury’s request for
readback of A.’s testimony and no evidence corroborating V.’s allegations despite the
fact V.’s sisters slept in the same room. The People argue defendant cannot establish
prejudice since the court instructed the jury to disregard the evidence and the testimony
of physical abuse was not more harmful than the allegations of sexual abuse. Moreover,
the jury had already heard testimony from other witnesses that defendant had been
physically abusive. Defendant contends A.’s testimony regarding the physical abuse was
so prejudicial “it is probable that the information at least unconsciously affected their
verdicts” and had the probable effect of convincing the jurors that he must have sexually
abused V. as well.
In Robertson, as discussed above, defense counsel failed to object to the
defendant’s admission to committing two other murders, while facing charges of murder
and sexual assault. Counsel explained he did not object to the defendant’s admission
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because he believed “‘there was no basis for objection.’” (Robertson, supra, 33 Cal.3d at
p. 41.) The court concluded the IAC claim failed for lack of prejudice. (Id. at p. 42.)
Although the admissions were not minimal or insignificant, the court concluded the
evidence was so overwhelming as to guilt that it was not reasonably probable the trial
counsel’s errors affected the jury’s determination on guilt. (Ibid.) Here as well, the
evidence strongly supports defendant’s guilt. V.’s testimony was consistent with what
she told police and details of her testimony, such as where she slept, who she shared a
room with, and when Wendy was in the hospital, were corroborated by other witnesses.
In Weaver, the defendant claimed his attorney was constitutionally ineffective for
failing to object to two experts whose testimony was later deemed inadmissible.
(Weaver, supra, 26 Cal.4th at pp. 960–961.) The court concluded the defendant failed to
demonstrate prejudice since the experts’ opinion that the defendant was not insane was
not as inflammatory or negative as the defendant claimed it to be since other expert
witnesses also expressed the opinion that the defendant was not insane. (Id. at p. 961.)
Here as well, A.’s testimony about the physical abuse was not as inflammatory when
balanced against the evidence in the case. Evidence of defendant’s physical abuse was
already admitted at trial. V. testified defendant threw the warm tortilla at her face and
she believed they moved out of the Ivy house because defendant hit Wendy. V. testified
defendant threatened to kill her mother and hurt her siblings. Wendy believed defendant
intended to hit Blanca and she applied for a U visa based on domestic violence from
defendant. Therefore, A.’s statements that defendant hit her multiple times were not out
of line with evidence already admitted at trial and less likely to have been a shock or
unduly inflammatory under these circumstances.
After A. answered that defendant hurt her, defense counsel’s follow-up questions
helped minimize any potential confusion by having A. explain that defendant did not
sexually abuse her. We consider that evidence of physical abuse is less inflammatory
than evidence of sexual abuse. A. was clear that she did not suffer sexual abuse from
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defendant, nor did she see him commit any such abuse on V. or her siblings. The fact
that A. testified defendant physically hurt her shows her willingness to be completely
honest, which adds to her credibility that defendant did not sexually abuse her. As such,
A. likely provided strong testimony for the defense’s theory that the sexual abuse did not
occur and was impossible under the circumstances of the case.
Additionally, the trial court struck all testimony from the record relating to
defendant physically abusing A. and instructed the jury to disregard the evidence in its
entirety. The jury is presumed to follow the court’s admonition. (See People v. Leavel
(2012) 203 Cal.App.4th 823, 831.) Accordingly, we conclude it is not reasonably
probable the jury would have reached a different verdict if defense counsel had objected
to this evidence. (See Strickland v. Washington, supra, 466 U.S. at p. 694.)
We disagree with defendant that A.’s statements prejudiced defendant because the
jury’s request for readback of A.’s entire testimony indicated this was a close case.
“[T]he fact that the jury requested readback of testimony [does not] establish[] that his
case was close .…” (See People v. Mateo (2016) 243 Cal.App.4th 1063, 1075.) This is
not a case with mixed verdicts, which may indicate this was a close case. (See People v.
Epps (1981) 122 Cal.App.3d 691, 698.) Rather, the jury found defendant guilty of all the
charges.
We also disagree with defendant’s reliance on People v. Alcala (1984) 36 Cal.3d
604, 631 (Alcala), superseded by Evidence Code section 1108 as stated in People v.
Falsetta (1999) 21 Cal.4th 903, 911, and People v. Thompson (1988) 45 Cal.3d 86, 109
(Thompson) to argue that evidence of prior bad acts is especially prejudicial. Defendant
cites to Alcala to argue propensity evidence “‘give[s] excessive weight to the vicious
record of crime thus exhibited, and either to allow it to bear too strongly on the present
charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the
present charge.’” (Alcala, supra, at p. 631.) In Alcala, the issue was the identity of the
victim’s abductor and killer. The prosecution argued evidence of the defendant’s prior
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crimes was admissible on that issue due to the similarity of his earlier offenses to the
current ones, strongly suggesting the same person committed them all. The Supreme
Court disagreed and found the evidence did not establish intent, pattern or scheme and
was therefore admitted in error, and the error was prejudicial because, under the
circumstances, “the jury may well have been influenced by improper consideration of the
other crimes, which were highly prejudicial in their nature, in deciding that [the]
defendant was the” perpetrator. (Id. at pp. 632–636.) Alcala is distinguished from our
case in that defendant’s prior uncharged acts of hitting A. were not similar acts to V.’s
allegations of sexual abuse and were not admitted as pattern evidence to establish
identity.
In Thompson, the trial court allowed evidence that the defendant indicated he
would “kill anyone who got in the way of his plan.” (Thompson, supra, 45 Cal.3d at
p. 109.) Even though the evidence had the potential to portray the defendant as a
dangerous person more likely to commit his charged offense of first degree murder and
rape, this evidence was admissible to show motive and his state of mind since the
prosecution’s theory was that the defendant raped and then killed the victim to prevent
her from reporting the rape and possibly interfering with his plans. (Id. at pp. 109–110.)
The court concluded that even assuming error, it was not reasonably probable that a
different result would have occurred absent the evidence. (Id. at p. 111.) The Thompson
case is distinguishable in that the defendant challenged the court’s admission of prior
uncharged acts, which were upheld as proper to show motive. Here, A.’s statements were
not admitted by the court for evidentiary purposes. Defense counsel objected to the
statements, which were stricken from the record. Like in Thompson, as discussed above,
defendant fails to meet his burden of demonstrating it is reasonably probable that a
different result would have occurred absent the evidence. (See People v. Wash (1993) 6
Cal.4th 215, 271.) Accordingly, defendant’s claim of IAC fails.
35.
III. The Court Was Required to Impose Full, Consecutive Sentences Under
Section 667.6, Subdivision (d), But Erred in Designating the Principal Term
Defendant contends the court was without authority to impose full-term
consecutive sentences for counts 1 and 2 under section 667.6, subdivisions (c) or (d).
The People disagree, contending the consecutive terms were authorized by section 667.6,
subdivision (d). We conclude the court was required to impose full, consecutive
sentences under section 667.6, subdivision (b), but that it erred in designating count 2 as
the principal term.
A. Relevant Factual Background
During the sentencing hearing, the trial court stated that count 2, a violation of
section 288, subdivision (b), is “an offense for which fully consecutive sentences can be
imposed by the Court pursuant to 667.6[, subdivision ](c).” The court gave its tentative
intent to impose the midterm of eight years for count 2 and a fully consecutive term of six
years on count 1. The court noted that section 288, subdivision (a) (count 1) was not
listed in subdivision (e) of section 667.6, but stated, “I do believe the code says shall; a
full, separate and consecutive term shall be imposed for each violation of an offense
specified in [section 667.6,] subdivision (e). And I believe the Court is mandated to do
so. If the Court is not mandated to do so and I have the discretion to do so, I certainly
would exercise my discretion in this case to impose six years consecutive, and the six
years will be the mid term on Count 1.” The court also stated its intent to impose fully
consecutive indeterminate terms on counts 3, 4, and 5. Defense counsel asked that the
indeterminate terms be sentenced concurrently “to the extent that it is allowed” based on
defendant’s “negligible” prior criminal history. The prosecution asserted the Court had
discretion to impose a fully consecutive term on the section 288, subdivision (a)
violation. Regarding counts 3, 4, and 5, the prosecutor asserted the court was required to
impose consecutive terms, and, even if the court was not bound to impose consecutive
terms, it should do so based on the seriousness of each offense.
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After counsel submitted, the court commented on the credible nature of
defendant’s threats toward V. that made her very vulnerable, his infliction of physical and
emotional injury to V., the criminal sophistication exhibited by the crimes, his minimal
criminal history, the significant impact incarceration would have on defendant, and
defendant’s apparent lack of remorse. The trial court stated each crime was separate and
distinct, and it intended to impose consecutive sentences. The court stated it would
impose the aggravated terms on counts 1 and 2 if it had the power to do so. The court
again stated it was imposing fully consecutive terms.
B. Applicable Law
Section 667.6, subdivision (c) states that “a full, separate, and consecutive term
may be imposed for each violation of an offense specified in subdivision (e) if the crimes
involve the same victim on the same occasion. A term may be imposed consecutively
pursuant to this subdivision if a person is convicted of at least one offense specified in
subdivision (e).…”
Section 667.6, subdivision (d)(1)–(3) states that “(1) A full, separate, and
consecutive term shall be imposed for each violation of an offense specified in
subdivision (e) if the crimes involve separate victims or involve the same victim on
separate occasions. [¶] (2) In determining whether crimes against a single victim were
committed on separate occasions under this subdivision, the court shall consider whether,
between the commission of one sex crime and another, the defendant had a reasonable
opportunity to reflect upon the defendant’s actions and nevertheless resumed sexually
assaultive behavior. Neither the duration of time between crimes, nor whether or not the
defendant lost or abandoned the opportunity to attack, shall be, in and of itself,
determinative on the issue of whether the crimes in question occurred on separate
occasions. [¶] (3) The term shall be served consecutively to any other term of
imprisonment and shall commence from the time the person otherwise would have been
released from imprisonment. The term shall not be included in any determination
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pursuant to Section 1170.1. Any other term imposed subsequent to that term shall not be
merged therein but shall commence at the time the person otherwise would have been
released from prison.”
Section 667.6, subdivision (e)(1)–(5) states that “This section shall apply to the
following offenses: [¶] (1) Rape, in violation of paragraph (2), (3), (6), or (7) of
subdivision (a) of Section 261. [¶] (2) Rape, in violation of paragraph (1), (4), or (5) of
subdivision (a) of former Section 262. [¶] (3) Rape or sexual penetration, in concert, in
violation of Section 264.1. [¶] (4) Sodomy, in violation of paragraph (2) or (3) of
subdivision (c), or subdivision (d) or (k), of Section 286. [¶] (5) Lewd or lascivious act,
in violation of subdivision (b) of Section 288.”
C. Analysis
Defendant contends the court was without authority to impose full-term,
consecutive sentences for counts 1 and 2 under section 667.6, subdivisions (c) or (d).
Defendant contends that because count 1 and count 2 were not committed on the same
occasion, they are ineligible for full-term consecutive sentencing under section 667.6,
subdivision (c). Defendant also contends that he was ineligible for full-term consecutive
sentencing under section 667.6, subdivision (d) because he was not convicted of two or
more offenses listed under subdivision (e) of section 667.6. Defendant concedes that a
section 288, subdivision (b) conviction is listed under subdivision (e) of section 667.6,
but asserts that he cannot be sentenced under subdivision (d) of section 667.6 because his
section 288, subdivision (a) conviction is not listed under subdivision (e) of section 667.6
and his section 269 convictions were not part of defendant’s determinate sentence. The
People disagree, arguing the full-term, consecutive sentences were authorized and
mandated under section 667.6, subdivision (d).
We agree that section 667.6, subdivision (c) does not apply to counts 1 and 2 since
the crimes did not involve the same victim on the same occasion. (See People v.
Goodliffe (2009) 177 Cal.App.4th 723, 732.) Count 1, the lewd act upon a child in
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violation of section 288, subdivision (a), was for the first incident, which occurred when
defendant touched V.’s chest when she had gotten up in the middle of the night to get
water and happened sometime in 2016. Count 2, forcible lewd act upon a child in
violation of section 288, subdivision (b)(1), was for touching V. under her shirt, which
happened when Wendy was in the hospital in 2017 and defendant used threats to kill
Wendy in order to get V. to let him touch her chest under her shirt. Although these
crimes are against the same victim, they occurred on separate occasions and fall outside
subdivision (c) of section 667.6.
Next, we reject defendant’s argument that he is ineligible for full-term,
consecutive sentencing under section 667.6, subdivision (d) because he was not convicted
of two or more offenses listed under subdivision (e) of section 667.6. Subdivision (d) of
section 667.6 mandates full, separate, and consecutive sentencing since defendant was
convicted of multiple offenses listed under subdivision (e) of section 667.6 against the
same victim, V., on separate occasions. The Supreme Court explained that the original
language of section 667.6, subdivision (d) “‘if such crimes involve separate victims or
involve the same victim on separate occasions,’” indicates that the Legislature intended
the word “‘crimes’” in that provision to refer back to the immediately preceding list of
enumerated sex offenses. (People v. Jones (1988) 46 Cal.3d 585, 595–596 (Jones).) “In
this way the Legislature indicated that subdivision (d), the mandatory consecutive
sentencing provision, was intended to cover only the multiple [enumerated sex offense]
situation.” (Ibid.; accord, People v. Rojas (1988) 205 Cal.App.3d 795, 799.) Defendant
was convicted of multiple sex offenses listed under section 667.6, subdivision (e): one
count of section 288, subdivision (b) and three counts of section 269, which are included
in subdivision (e) of section 667.6 under section 261, subdivision (a). (§ 667.6,
subd (e)(1), (e)(5).)
According to defendant, only the section 288, subdivision (b) conviction counts
under subdivision (e) of section 667.6 because the section 269 convictions were subject
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to indeterminate sentencing. We reject defendant’s argument as unpersuasive and
unsupported. There are numerous cases where appellate courts have applied full,
consecutive sentences under section 667.6, subdivision (d) based on convictions listed in
subdivision (e) of section 667.6 with indeterminate terms. (See People v. Figueroa
(2008) 162 Cal.App.4th 95, 99 (Figueroa); People v. Jones (2001) 25 Cal.4th 98, 102–
103 [the defendant was sentenced to three consecutive terms of 25 years to life pursuant
to § 667.61, subds. (a), (c), and (d)(2), plus full, separate and consecutive terms on the
same counts pursuant to § 667.6, subd. (d)]; People v. Glass (2004) 114 Cal.App.4th
1032, 1037 (Glass) [§ 269 offenses are subject to sentencing requirements of § 667.6];
People v. Jimenez (2000) 80 Cal.App.4th 286, 291–292 [mandatory consecutive
sentencing provision of § 667.6, subd. (d) applied to § 269 convictions].)
Our court observed in Glass that when a person is convicted of multiple forcible
sex offenses against the same victim on different occasions, the court is required to
sentence the defendant to full-term consecutive sentences under section 667.6,
subdivision (d). “‘Under [section 269], as it might interact with … section 667.6, a
person convicted of six counts of child molestation, could receive … six consecutive life
sentences.’” (Glass, supra, 114 Cal.App.4th at p. 1037, fn. 10; accord, Figueroa, supra,
162 Cal.App.4th at p. 99.) Additionally, in People v. Maharaj (2012) 204 Cal.App.4th
641 (Maharaj), the defendant was convicted of three counts of section 269, subdivision
(a) and one count of section 288, subdivision (b). (Maharaj, supra, at p. 649.) The
Maharaj court concluded each of the defendant’s section 269 offenses were included in
section 667.6, subdivision (e) and section 667.6, subdivision (d) required full separate
consecutive sentences for his four convictions. (Maharaj, supra, at p. 650.) Here as
well, defendant was convicted of three counts of section 269, subdivision (a)(1) and one
count of section 288, subdivision (b)(1). Therefore, the court was required to impose full
and separate consecutive sentences under section 667.6, subdivision (d).
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Without any authority in support of his position, defendant claims Maharaj was
wrongly decided and argues the section 269 convictions cannot be used under
section 667.6, subdivision (d) because they are subject to indeterminate sentencing.
Defendant is wrong. The same issue was raised by the defendant in Figueroa, who
“point[ed] out that the terms addressed in section 667.6, subdivision (d) are determinate,
while the ones provided in section 269, for the same crimes against children, are 15 years
to life.” (Figueroa, supra, 162 Cal.App.4th at p. 99.) The court rejected this argument
and upheld Glass. (Figueroa, supra, at p. 99.) So do we. As the Supreme Court in
Jones explained, section 667.6, subdivision (d) is not a sentencing alternative, but
constitutes a mandatory consecutive sentencing scheme applicable when a defendant has
been convicted of two or more convictions under subdivision (e) of section 667.6.
(Jones, supra, 46 Cal.3d at p. 595; see People v. Fitch (1985) 171 Cal.App.3d 211, 214.)
Here, defendant was convicted of multiple offenses specified in subdivision (e) of
section 667.6: count 2, section 288, subdivision (b)(1) and counts 3, 4 and 5, section 269,
subdivision (a)(1). Therefore, the court was required to impose “A full, separate, and
consecutive term” for each violation of the offenses. (See § 667.6, subd. (d).)
However, the trial court erred when it designated count 2, an enumerated offense
under section 667.6, subdivision (e), as the principal term and added the remaining terms,
including the term for the nonenumerated section 288, subdivision (a) offense, fully
consecutive under section 667.6, subdivision (d). “[W]hen a defendant is convicted of
both violent sex offenses and crimes to which section 1170.1 applies, the sentences for
the violent sex offenses must be calculated separately and then added to the terms for the
other offenses as calculated under section 1170.1.” (People v. Pelayo (1999) 69
Cal.App.4th 115, 124 (Pelayo).) Section 667.6, subdivision (d) does not permit
discretion in sentencing, and when applicable, a defendant “must be sentenced in a
manner that does not dilute the impact of full, consecutive terms of imprisonment.”
(Pelayo, supra, at p. 125.) As stated, the statute “requires that the prison term imposed
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‘shall not be included in any determination pursuant to Section 1170.1.’” (Ibid.) Pelayo
explained that any “computations under sections 1170.1 and 667.6, subdivision (d) must
always be done separately and the total of the section 667.6, subdivision (d) sentences
added to any sentence computed independently under section 1170.1.” (Ibid.) Here,
defendant’s section 288, subdivision (a) conviction under count 1 is not listed in
section 667.6, subdivision (e) and therefore governed by section 1170.1. (See Pelayo,
supra, at p. 125.) Because defendant’s convictions in counts 2 through 5 are governed by
section 667.6, subdivision (d), “they may not be used as components of a term calculated
under section 1170.1, either as a principal term or as a subordinate term.” (Pelayo, supra,
at p. 125.)
Consequently, the sentence designating count 2 as the principal term is not
authorized. Instead, the trial court had to designate count 1, the nonenumerated offense,
as the principal term and impose full, separate and consecutive terms for counts 2 through
5. Although the parties did not raise this specific issue on appeal, an unauthorized
sentence may be corrected at any time. (Pelayo, supra, 69 Cal.App.4th at p. 122; People
v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6; People v. Crooks (1997) 55 Cal.App.4th 797,
810–811.) “[A] sentence is generally ‘unauthorized’ where it could not lawfully be
imposed under any circumstance in the particular case.” (People v. Scott (1994) 9
Cal.4th 331, 354.) Where an unauthorized sentence exists, the appellate court may take
action on its own motion to correct it, even where the parties have failed to raise the
issue. (People v. Smith (2001) 24 Cal.4th 849, 852; accord Dotson, supra, at p. 554,
fn. 6.) Therefore, on our own motion, we vacate the sentence and remand for
resentencing. On resentencing, the trial court should calculate the appropriate term for
count 1 under section 1170.1 separately, as the principal term, and add the full-term,
consecutive sentences for counts 2 through 5 separately. (See Pelayo, supra, at p. 125.)
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DISPOSITION
Defendant’s sentence is vacated. The matter is remanded for resentencing for the
trial court to designate count 1 as the principal term, and to add the full term and
consecutive sentences for counts 2 through 5 separately. In all other respects, the
judgment is affirmed.
MEEHAN, J.
WE CONCUR:
DETJEN, Acting P. J.
SMITH, J.
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