People v. Rocha CA5 ( 2024 )

Filed 2/13/24 P. v. Rocha 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F084384
Plaintiff and Respondent,
(Super. Ct. No. LF013328A)
v.
JESUS ROCHA, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Gregory A.
Pulskamp, Judge.
Aaron J. Schechter, 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, Ivan P. Marrs and Edrina Anderson for
Plaintiff and Respondent.
-ooOoo-
On March 26, 2021, defendant Jesus Rocha sexually assaulted his 12-year-old
niece. On April 12, 2022, defendant was convicted by a jury of five felonies based on the
sexual assault. Defendant was sentenced to an aggregate term of 30 years to life. On
appeal, defendant argues that (1) running his two 15-year-to-life sentences consecutively
instead of concurrently violates the equal protection clause of the California and United
States Constitutions; (2) his trial counsel provided ineffective assistance of counsel (IAC)
by failing to ask the trial court to consider his ability to pay the fines, fees, and
assessments; and (3) the $40 court operations assessment for count 6 should be stricken
from the minute order and abstract of judgment because the clerk erroneously
supplemented the court’s judgment by including it. The People disagree. We modify the
judgment to incorporate the $40 court operations assessment and otherwise affirm.
PROCEDURAL HISTORY
On March 28, 2022, the Kern County District Attorney filed an amended
information charging defendant with a lewd or lascivious act upon a child under 14 years
of age using force or fear (Pen. Code, § 288, subd. (b)(1); count 1);1 forcible sexual
penetration of a child under 14 years of age with a foreign object (§ 289, subd. (a)(1)(B);
count 2); lewd or lascivious act upon a child under 14 years of age (§ 288, subd. (a);
count 3); forcible rape (§ 261, subd. (a)(2); count 4); forcible rape of a child under
14 years of age who was more than seven years younger than defendant (§ 269,
subd. (a)(1); count 5); and forcible sexual penetration of a child under 14 years of age
who was more than seven years younger than defendant with a foreign object (§ 269,
subd. (a)(5); count 6). The amended information also alleged three aggravating factors
for each count. As to count 4, the amended information was subsequently amended to
allege that the victim was under 14 years of age (§ 264, subd. (c)(1)).
1 All further undesignated statutory references are to the Penal Code.
2.
On April 12, 2022, defendant was found guilty by a jury on counts 1, 2, 4, 5, and
6. The jury also found true all alleged aggravating factors for each of these counts and
that the victim was under 14 years old. The jury was instructed that count 3 was a lesser
included offense to count 1, and as the jury found defendant guilty of count 1, it did not
reach a verdict on count 3. Count 3 was subsequently dismissed.
Defendant was sentenced on May 9, 2022. The trial court imposed an aggregate
term of 30 years to life. As to count 5, defendant was sentenced to 15 years to life. As to
count 6, defendant was sentenced to 15 years to life, to be served consecutively to the
sentence on count 5 pursuant to section 667.6, subdivision (d). The court also sentenced
defendant to 10 years on count 1, 12 years on count 2, and 13 years on count 4, but stayed
these sentences pursuant to section 654. The court also imposed fines, fees, and
assessments totaling $3,070. In the abstract of judgment, entered on May 12, 2022, the
fines, fees, and assessments totaled $3,110. The abstract of judgment included a $40
court operations assessment on count 6 that was not orally pronounced by the court.
On May 23, 2022, defendant filed a notice of appeal.
FACTUAL SUMMARY
On March 26, 2021, defendant’s 12-year-old niece, N.O., was in the living room of
the home where she and defendant lived. N.O. was sitting on a chair and defendant was
sitting on a mattress.
Defendant came up to N.O. and showed her a game on his phone. Defendant then
began touching N.O.’s breasts. He also touched her vagina. N.O. tried to push defendant
away, but he grabbed her and started hitting her. Defendant threw N.O. onto the mattress,
grabbed her hands, and took off her shorts and underwear. Defendant inserted his finger
or fingers and his penis inside N.O.’s vagina. Defendant covered N.O.’s mouth to
prevent her from talking or screaming. N.O. tried to push and kick defendant off of her,
but she could not. The sexual assault stopped after N.O.’s sister came into the room.
3.
DISCUSSION
I. Defendant’s Sentence Does Not Violate the Equal Protection Clause
A. Applicable Law
“[T]he requirement of equal protection ensures that the government does not treat
a group of people unequally without some justification.” (People v. Chatman (2018) 4
Cal.5th 277, 288 (Chatman).) “Where, as here, a statute involves neither a suspect class
nor a fundamental right, it need only meet minimum equal protection standards, and
survive ‘rational basis review.’” (People v. Turnage (2012) 55 Cal.4th 62, 74.)2
“In order to decide whether a statutory distinction is so devoid of even minimal
rationality that it is unconstitutional as a matter of equal protection, we typically ask two
questions. We first ask whether the state adopted a classification affecting two or more
groups that are similarly situated in an unequal manner. [Citation.] If we deem the
groups at issue similarly situated in all material respects, we consider whether the
challenged classification ultimately bears a rational relationship to a legitimate state
purpose.” (Chatman, supra, 4 Cal.5th at p. 289.)
“A classification in a statute is presumed rational until the challenger shows that
no rational basis for the unequal treatment is reasonably conceivable. [Citations.] The
underlying rationale for a statutory classification need not have been ‘“ever actually
articulated”’ by lawmakers, and it does not need to ‘“be empirically substantiated.”’
[Citation.] Nor does the logic behind a potential justification need to be persuasive or
sensible—rather than simply rational.” (Chatman, supra, 4 Cal.5th at p. 289.) “This core
feature of equal protection sets a high bar before a law is deemed to lack even the
minimal rationality necessary for it to survive constitutional scrutiny. Coupled with a
rebuttable presumption that legislation is constitutional, this high bar helps ensure that
2 The parties agree that rational basis review is appropriate here.
4.
democratically enacted laws are not invalidated merely based on a court’s cursory
conclusion that a statute’s tradeoffs seem unwise or unfair.” (Ibid.)3
B. Analysis
Defendant argues that running his two 15-year-to-life sentences consecutively
violates the equal protection clause of the Fourteenth Amendment to the United States
Constitution and the California Constitution. According to defendant, there are two
classes at issue: (1) those who have sexual intercourse with the victim; and (2) those
who, like defendant, have sexual intercourse with the victim and insert another object
into the victim’s vagina. Defendant argues that “it is irrational for [defendant] to be
doubly punished—twice the punishment for simply raping [N.O.]—because he happened
to also insert a finger into [N.O.’s] vagina.”
Defendant did not raise this claim below. The failure to object in the trial court
generally forfeits a claim on appeal, and this principle is applicable to constitutional
claims. (People v. McCullough (2013) 56 Cal.4th 589, 593; In re Sheena K. (2007) 40
Cal.4th 875, 880–881.) However, even if this claim was forfeited, we exercise our
discretion to consider it on the merits. (People v. Williams (1998) 17 Cal.4th 148, 161–
162, fn. 6 [“An appellate court is generally not prohibited from reaching a question that
has not been preserved for review by a party.”].)
Addressing the merits, defendant’s consecutive sentences on counts 5 and 6 do not
violate the equal protection clause. To begin, defendant has not accurately defined the
classes at issue. In this case, the trial court found that consecutive sentences were
3 “The California equal protection clause offers substantially similar protection to the
federal equal protection clause.” (People v. Laird (2018) 27 Cal.App.5th 458, 469; Chatman,
supra, 4 Cal.5th at p, 287 [“Though [our Supreme Court’s] analysis of state constitutional
requirements sometimes deviates from how comparable federal requirements are analyzed, [its]
precedent has not distinguished the state and federal guarantees of equal protection for claims
arising from allegedly unequal consequences associated with different types of criminal
offenses.”].)
5.
mandatory pursuant to section 667.6, subdivision (d).4 Pursuant to this section,
mandatory consecutive sentences are required where the crimes at issue “involve the
same victim on separate occasions.” (§§ 667.6, subd. (d)(1), 269, subd. (c).) “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.…” (§ 667.6, subd. (d)(2).) The court made these findings here, and defendant
does not challenge them.
Thus, the appropriate definition of the class to which defendant belongs is those
who commit two separate crimes involving penetration5 and who had a reasonable
opportunity to reflect in between committing the crimes. Those who commit two
separate crimes involving penetration and who have a reasonable opportunity to reflect in
between committing them are not similarly situated with those who commit one crime
involving one act of penetration. (People v. Morales (2019) 33 Cal.App.5th 800, 808
[“Generally, offenders who commit different crimes are not similarly situated.”]; People
v. Ordonez (1991) 226 Cal.App.3d 1207, 1237 [“Persons convicted of different crimes are
not similarly situated for equal protection purposes.”].)
Moreover, even if these groups are similarly situated, there is a rational basis to
impose significantly longer sentences on those who commit multiple acts of penetration
4 Alternatively, the trial court found that even if the acts did not occur on separate
occasions, it would have exercised its discretion to impose consecutive sentences pursuant to
section 667.6, subdivision (c). However, defendant does not challenge the court’s finding that
mandatory sentences were required pursuant to section 667.6, subdivision (d), so we need not
consider the trial court’s alternative basis for imposition of consecutive sentences.
5 Defendant was convicted of forcible rape of a child under 14 years of age who was more
than seven years younger than defendant (§ 269, subd. (a)(1)) and forcible sexual penetration of
a child under 14 years of age who was more than seven years younger than defendant with a
foreign object (§ 269, subd. (a)(5)).
6.
with time to reflect in between “because a defendant who commits ‘a number of base
criminal acts on his victim is substantially more culpable than a defendant who commits
only one such act.’” (People v. Hicks (1993) 6 Cal.4th 784, 796, italics added; accord,
People v. Harrison (1989) 48 Cal.3d 321, 330 [“[t]he Legislature, by devising a distinctly
harsh sentencing scheme, has emphasized the seriousness with which society views each
separate unconsented sexual act”].)
Given the above, defendant’s claim that his sentence violates the equal protection
clause fails.
II. Defendant’s IAC Claim Fails
A. Applicable Law and Standard of Review
Defendant has the burden of proving IAC. (People v. Pope (1979) 23 Cal.3d 412,
425, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081,
fn. 10.) To establish such a claim, a defendant must show (1) his counsel’s performance
fell below an objective standard of reasonableness and (2) prejudice, that is, but for
counsel’s unprofessional error a different result would have been reasonably probable.
(Strickland v. Washington (1984) 466 U.S. 668, 687–688, 694 (Strickland); People v.
Ledesma (1987) 43 Cal.3d 171, 216–218.) “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” (Strickland, supra, at p. 694.)
“Because of the difficulties inherent in making the evaluation [of counsel’s performance],
a court must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be considered
sound trial strategy.’” (Id. at p. 689.)
“It is … particularly difficult to establish [IAC] on direct appeal, where we are
limited to evaluating the appellate record. If the record does not shed light on why
counsel acted or failed to act in the challenged manner, we must reject the claim on
appeal unless counsel was asked for and failed to provide a satisfactory explanation, or
7.
there simply can be no satisfactory explanation.” (People v. Scott (1997) 15 Cal.4th
1188, 1212.)
B. Analysis
At sentencing, the trial court imposed fines, fees, and assessments totaling
$3,070.6 Defendant argues that his trial counsel provided IAC by failing to ask the court
to consider his ability to pay these fines, fees, and assessments.7
Defendant was appointed counsel in the underlying proceeding and this appeal,
and the probation report contains some information suggesting that defendant had no
assets or income. Thus, there is some information in the record suggesting that defendant
could not afford to pay the fines, fees, and assessments.
However, the record is silent as to why defendant’s trial counsel did not ask the
trial court to consider defendant’s ability to pay. Additionally, the record is not fully
developed regarding defendant’s assets and sources of income, and it does not
affirmatively establish defendant’s inability to pay. Given the record before us, there is at
least one satisfactory explanation for trial counsel’s omission. That is, trial counsel may
have chosen not to raise the issue because he had reason to believe that defendant had the
ability to pay. (People v. Ramirez (2023) 98 Cal.App.5th 175, 226 [“Here, the record does
not affirmatively demonstrate [the] defendant’s trial counsel had no rational tactical
purpose for failing to object to the imposition of the challenged fines and fees. Defense
counsel may have had access to information about [the] defendant’s financial status,
including the possibility of his earnings while in prison, that would make such an
objection unsuccessful.” (Fn. omitted.)].)
6 An additional $40 assessment was included in the minute order and the abstract of
judgment. This $40 assessment is addressed below.
7 Notably, defendant does not cite to any authority that his trial counsel failed to raise
before the trial court.
8.
Accordingly, defendant has failed to meet his burden to establish that trial
counsel’s performance fell below an objective standard of reasonableness.
III. We Modify the Judgment to Incorporate the $40 Court Operations Assessment
A. Standard of Review
On review, we may add to the judgment omitted fines, fees, or assessments that
are mandatory, rather than the product of a discretionary sentencing choice, and
traditional forfeiture rules do not apply. (People v. Talibdeen (2002) 27 Cal.4th 1151,
1157 [appellate courts may correct omission of mandatory penalties even if not objected
to at sentencing]; People v. Smith (2001) 24 Cal.4th 849, 852 [“obvious legal errors at
sentencing that are correctable without referring to factual findings in the record or
remanding for further findings are not waivable”]; People v. Rodriguez (2012) 207
Cal.App.4th 1540, 1543, fn. 2 [the assessment in § 1465.8 may be added to the judgment
on review when not imposed].)
B. Analysis
In his supplemental brief, defendant argues that the $40 court operations
assessment (§ 1465.8) for count 6 should be stricken because the trial court did not
impose it during the oral pronouncement of judgment and “People v. Dueñas (2019) 30
Cal.App.5th 1157, 1172 holds that this assessment is not mandatory, as due process
requires that it only be imposed on defendants who have the ability to pay it.”
Defendant is correct that the trial court did not impose a court operations
assessment for count 6. Defendant is also correct that, as a general rule, when a
discrepancy exists between a court’s oral pronouncement and the minute order or the
abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26
Cal.4th 181, 185.)
However, in this case, imposition of the $40 assessment was statutorily mandated.
(§ 1465.8, subd. (a)(1) [“To assist in funding court operations, an assessment of forty
dollars ($40) shall be imposed on every conviction for a criminal offense”]; People v.
9.
Rodriguez, supra, 207 Cal.App.4th at p. 1543, fn. 2 [the assessment in § 1465.8 is
mandatory]; People v. El (2021) 65 Cal.App.5th 963, 967 [“[t]he trial court was required
to impose … a $40 court operations assessment under … section 1465.8”].) Additionally,
the record shows that defendant did not ask the trial court to exercise any discretion it
may have had to waive or stay any fines, fees, and assessments.8 Finally, given that
defendant made no such request, as well as the fact that the court imposed $3,070 of
fines, fees, and assessments, including a court operations assessment on four out of five
counts, the record shows that the court did not purposefully exercise any discretion it may
have had when it did not impose the assessment on count 6. Instead, it was an oversight.
Accordingly, in this case the $40 assessment was mandatory.9 In accordance with
the above authorities, we will modify the judgment to incorporate the $40 court
operations assessment.10
8 Because defendant’s potential inability to pay was not raised before the trial court, this
case does not require us to determine the discretion the trial court may have had to not impose
mandatory fines, fees, and assessments. (See, e.g., People v. Montes (2021) 59 Cal.App.5th
1107, 1116 [“Courts of Appeal are … split regarding if and under what circumstances the
constitutional concerns underpinning the decision in Dueñas apply.”].)
9 We emphasize that defendant never asked the trial court to consider whether, and to what
extent, it had discretion to stay or strike fines, fees, and assessments, and there is nothing in the
record suggesting that it made any such determination. In this situation, all mandatory fines,
fees, and assessments should have been imposed, and we correct the failure to impose one
mandatory assessment.
10 As the trial court did not impose the $40 assessment at the sentencing hearing, defendant
did not have a chance to object to the assessment based on an inability to pay. However, as a
practical matter, if defendant chose not to object to fines, fees, and assessments totaling $3,070,
we see no reason why he would have objected to this additional $40 fee. (People v. Gutierrez
(2019) 35 Cal.App.5th 1027, 1033 [“As a practical matter, if [the defendant] chose not to object
to a $10,000 restitution fine based on an inability to pay, he surely would not complain on similar
grounds regarding an additional $1,300 in fees.”]; People v. Montelongo (2020) 55 Cal.App.5th
1016, 1034 [“By failing to object to the $10,000 restitution fine, however, [the defendant] left no
doubt he would not have challenged the much lower assessments even if he knew he had a right
under Dueñas to request a hearing on his ability to pay.”].)
10.
DISPOSITION
The judgment is modified to incorporate the $40 court operations assessment
pursuant to section 1465.8. As modified, the judgment is affirmed.11
MEEHAN, J.
WE CONCUR:
POOCHIGIAN, Acting P. J.
DeSANTOS, J.
11 Because this mandatory fee was included in the sentencing minutes and abstract of
judgment, no correction to the abstract or minutes is needed.
11.