People v. Torres CA6 ( 2024 )

Filed 2/23/24 P. v. Torres CA6
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H048742
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1900581)
v. ORDER MODIFYING OPINION
AND DENYING PETITION FOR
SAMANTHA JENNIFER TORRES, REHEARING
Defendant and Appellant. NO CHANGE IN JUDGMENT
Defendant Samantha Jennifer Torres’s petition for rehearing is denied as moot.
There is no change in the judgment. The court orders that the opinion filed January 24,
2024, be modified as follows.
On page 13, the second full paragraph, immediately preceding the heading
“b. Burgos”, should be deleted and replaced with the following paragraph:
We therefore conclude that section 1050, subdivision (g) permits multiple
continuances in cases such as this one involving child abuse. In light of this
conclusion, we also reject Torres’ argument that the trial court violated her
statutory speedy trial rights under section 1382. As Torres acknowledges, the
“ ‘good cause’ ” showing required for a continuance under section 1050 “mirrors”
the “good cause” showing required for an exception to the 60-day speedy trial
deadline under subdivision (a) of section 1382. (See Burgos v. Superior Court,
supra, 206 Cal.App.4th at pp. 826-827.) Accordingly, the trial court’s findings of
good cause under section 1050 likewise satisfied the good cause exception to the
speedy trial deadline under section 1382, subdivision (a).
On page 24, in the first full paragraph, the sentence “But she did not present any of
this evidence in objecting to the delay in her trial, and the prosecution had no chance to
present responsive evidence on this issue.” shall be deleted and replaced with the
following sentence:
But in objecting to the delay in her trial, she presented only cursory evidence that
the delay was adversely affecting her mental state, and the prosecution was not
given adequate notice that it should present responsive evidence on this issue.
____________________________
Bromberg, J.
_______________________ ____________________________
Greenwood, P.J. Grover, J.
2
Filed 1/24/24 P. v. Torres CA6 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H048742
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1900581)
v.
SAMANTHA JENNIFER TORRES,
Defendant and Appellant.
In January 2016, Samantha Torres’s nearly three-year-old son Apollo was sexually
abused and killed. Torres’s boyfriend Manuel Lopez was charged with murdering
Apollo, and later Torres was charged with felony child abuse, being an accessory after
the fact to Apollo’s murder, and committing perjury in the proceedings against Lopez.
Although Lopez was eventually acquitted, Torres was found guilty of the child abuse,
accessory, and perjury charges.
Torres challenges her convictions on three grounds. She argues that the trial court
violated her right to a speedy trial by granting multiple continuances while the prosecutor
trying her case completed Lopez’s murder trial. She also argues that the trial court erred
in not giving unanimity instructions on the child abuse and accessory charges. Finally,
she argues that her trial counsel rendered ineffective assistance of counsel by not
requesting an instruction concerning the statute of limitations. As explained below, we
reject each of these arguments.
Torres also challenges her sentence on several grounds. As the Attorney General
concedes, several of these challenges have merit. In particular, Torres is entitled to a
reduction in the length of probation on the accessory and perjury charges, and the
probation supervision fee should be vacated. In addition, as Torres points out, the
abstract of judgment does not reflect the trial court’s oral pronouncement. However,
contrary to Torres’ contention, we conclude that the trial court intended to suspend
execution, not imposition, of her prison sentences.
Accordingly, we modify the judgment to reduce the terms of probation on the
accessory and perjury counts, to vacate any unpaid supervision fee, and to modify the
abstract of judgment to state that only execution of sentence is suspended. As thus
modified, the judgment is affirmed.1
I. Factual and Procedural Background
A. Apollo’s Death
Apollo Lopez was born in March 2013. On the morning of January 16, 2016, a
paramedic responded to an emergency call and found Apollo not breathing and with no
pulse. Apollo was ashen, and both rigor mortis and lividity (blood settling in the body)
already had set in. After an ambulance transported him to a hospital, Apollo was
pronounced dead.
The paramedic testified that Apollo’s face was bruised on both sides, and a nurse
who examined him at the hospital testified that there was blood in both ear drums, dried
blood and feces on both legs and hands, “torn skin on the child’s penis,” and “bloody
rectal trauma.”
1
Torres also filed a petition for a writ of habeas corpus (case number H051187),
which we ordered considered with this appeal. By separate order, we deny that petition.
2
Three days later, the medical examiner’s office performed an autopsy. The
pathologist who performed the autopsy testified that he had “never had a case of a child
with so many injuries” or, indeed, any case “with this constellation of extensive injuries.”
The pathologist found nearly two dozen scars from injuries sustained weeks or months
before as well as a skull fracture that had just begun to heal and therefore appeared to
have occurred two days or so before death. In addition, the pathologist found over 80
recent or “acute” injuries, including 48 contusions, 24 abrasions, and 10 lacerations.
These acute injuries included nearly three dozen lacerations, contusions, and abrasions to
Apollo’s genitals; two dozen injuries to the anus, rectum, and a related area; and injuries
to his neck, diaphragm, eyes, and brain indicative of asphyxiation.
The pathologist concluded that the injuries to Apollo’s genitals, anus, and rectum
were consistent with recent sexual assault and rape. He concluded, however, that the
cause of death was “homicidal violence,” and although the exact mechanism of death was
unknown, he said that the evidence pointed toward an “asphyxial event,” meaning Apollo
may have been smothered or choked.
B. Lopez’s Murder Prosecution
The police found sperm from Manuel Lopez, Torres’s boyfriend with whom she
had a son in August 2015, in rectal and penile swabs from Apollo as well as on Apollo’s
clothing, including a pajama top. On January 26, 2016, 10 days after Apollo’s death,
Manuel Lopez was charged with murdering Apollo.
The trial in Lopez’s case appears to have begun in October 2019. Although the
trial was initially expected to be completed in April 2020, due to the COVID-19
pandemic, it was not completed until July 2020. The jury acquitted Lopez of all charges.
C. Torres’ Case
1. The Charges
On January 10, 2019, nearly three years after Apollo’s death while Lopez’s trial
was in progress, the People filed a criminal complaint against Torres charging her with
3
three offenses: (1) felony child abuse, (2) harboring, concealing, or aiding Lopez in
Apollo’s murder (accessory to murder), and (3) perjury. On August 14, 2019, the Santa
Clara County District Attorney filed an information charging Torres with the same
offenses.
2. The Delay in Reaching Trial
Torres’ trial was delayed until July 2020. Although originally set for
October 7, 2019, the trial was initially continued to October 18, the last day for trial
under Penal Code section 1382.2 Shortly before that date, the prosecution moved for a
continuance because the prosecutor assigned to the case was involved in the Lopez
murder trial, which was then in progress. Over Torres’ objection, the trial court granted a
continuance under section 1050 of 10 days, the maximum authorized by the section. On
November 1, the prosecution requested a second 10-day continuance under section 1050
based on the assigned prosecutor’s involvement in the Lopez trial, which the trial court
again granted over Torres’s objection.
Torres subsequently moved to dismiss, arguing that the prosecution could not seek
multiple continuances under section 1050 and, in any event, multiple continuances would
violate her state and federal constitutional rights to a speedy trial. Relying on Burgos v.
Superior Court (2012) 206 Cal.App.4th 817, the trial court ruled that section 1050
permits multiple continuances in cases such as Torres’ and rejected her constitutional
challenges.
Between December 2019 and March 2020, the trial court granted eight additional
continuances under section 1050. Torres also filed a writ petition challenging the
continuances, which this court summarily denied. (Torres v. Superior Court (Mar. 24,
2020, H047956).) Subsequently, in light of emergency orders concerning the COVID-19
2
Subsequent undesignated statutory references are to the Penal Code.
4
pandemic, trial was continued several more times, and additional continuances under
section 1050 were granted as well.
As a result, the trial court did not begin to hear motions in limine for Torres’s trial
until July 22, 2020, and jury selection did not begin until August 12, 2020.
3. The Evidence Presented at Trial
At trial, the prosecution presented evidence that Apollo suffered repeated injuries
for months preceding his death, but Torres concealed that he was being abused by Lopez
and continued to protect Lopez even after Lopez was arrested and charged with
murdering Apollo.
a. Apollo’s Injuries
In February 2015, shortly after Torres became pregnant with Apollo’s younger
brother, Lopez moved into the home that Torres shared with Apollo, his older sister, and
Torres’s brother. Two months later, Apollo began to suffer a series of disturbing injuries.
In May 2015, during a routine wellness check, Apollo’s primary care physician
noted a bruise and a laceration on Apollo’s penis. Twelve days later, Torres brought
Apollo to the emergency room for a bleeding abrasion to the foreskin of his penis. In
addition, around this time, Apollo’s left femur was fractured. This sort of fracture is
uncommon, and often the result of child abuse, because significant force is required to
break the femur. A broken femur is also usually quite painful and difficult to walk on.
There is no record, however, that Apollo was ever treated for this fracture.
In July 2015, Apollo suffered fractures in both his elbows. On July 2, 2015,
Torres took Apollo to the emergency room for an injury to his right arm. The following
day, Apollo returned to the hospital, this time with an injury to his left arm. Because the
physician who treated Apollo on July 2 had not found any injury to his left arm, Apollo
was given a “battered child” series of x-rays to look for additional fractures. These x-
rays showed the earlier fracture to Apollo’s femur.
5
As noted above, the pathologist who performed Apollo’s autopsy also found
evidence of a skull fracture two days or so before Apollo’s death. In addition, the
pathologist found over 20 scars from injuries weeks or months before.
Apollo suffered numerous smaller injuries in the months preceding his death.
Starting in 2014, Apollo stayed with Cindy Reynolds, his paternal grandmother, almost
every weekend. After Lopez moved into Torres’s home in early 2015, Reynolds began
noticing injuries such as broken blood vessels in Apollo’s eyes, scrapes on his legs, and
cuts on his tongue. One time Apollo even had what “appeared to be a cigarette burn on
his chin.”
Others also noticed injuries. Justin Reynolds, Cindy Reynolds’ son and Apollo’s
father, saw burst blood vessels in Apollo’s eyes and a burn mark on his penis. Regie
Palmer, who often helped Cindy Reynolds care for Apollo and frequently gave him baths
on the weekend, saw bruises on Apollo’s arms, wrist, forehead, lip, chin, knee, and legs.
In addition, one time Palmer saw that Apollo had burns on his wrist that were “two
perfectly cylindrical shapes like a cigarette.”
Erica Ransom, whose daughter often played with Apollo’s older sister, also
noticed that Apollo had bloodshot eyes. In addition, on the day before Apollo died,
Torres texted Ransom to ask “how [to] treat a hematoma.”
b. Concealment of Apollo’s Injuries
Based on Apollo’s many injuries, both Cindy Reynolds and Regie Palmer were
concerned that someone might be abusing Apollo, but Torres deflected such concerns by
offering innocent (though often contradictory) explanations for Apollo’s injuries to them
and to others.
In particular, Torres attributed many of Apollo’s injuries to accidents. For
example, she told Cindy Reynolds that Apollo broke his elbows at the playground and
later said that he slipped while running on a wet kitchen floor. Torres similarly told
Justin Reynolds that Apollo had fallen from a jungle gym. In July, when she took Apollo
6
to the emergency room, she told the treating physician that Apollo probably had injured
his elbows when he fell backwards while chasing his older sister. The hospital’s child
abuse experts found this explanation plausible and decided not to report them to Child
Protective Services (though they were later fired for that decision).
Torres also offered multiple explanations for Apollo’s bloodshot eyes. She told
Cindy Reynolds that Apollo hurt his eyes one time when he ran into a metal object on the
playground. Another time she told Ransom that Apollo’s eyes were bloodshot because
he had fallen on his face, an explanation that did not makes sense to Ransom because
Apollo had no marks or abrasions on his face.
Torres attributed other injuries to Apollo falling and playing with his older sister.
And in May 2015, when Apollo’s primary care physician found injuries to his penis,
Torres said that Apollo had fallen down, and she attributed the hemorrhage in his eye to
excessive crying. She told another doctor that a bruise on Apollo’s forehead was from
jumping on a couch and falling. And she explained away the burns on Apollo’s penis
that Justin Reynolds noted by saying that someone accidently had dropped a lighter.
c. Concealment of Evidence
Torres also concealed evidence after Apollo died. Especially in light of the
lacerations to Apollo’s anus, the pathologist expected bleeding from the injuries suffered
on the day of the murder. However, the paramedic who arrived at Torres’ home did not
find Apollo covered in blood. Instead, the paramedic found him lying naked on a
blanket, with only blood in his ear drums and dried blood on his legs and hands. When
the police interviewed Torres later that day, she told them that she had taken off Apollo’s
clothes and given him a shower in attempting to revive him.
Evidence also indicated that someone had attempted to wash the clothes worn by
Apollo and then thrown them out. When Torres went to bed the night before his death,
he was wearing a Toy Story t-shirt and brown shorts. By the time the paramedics arrived
the next morning, both had been removed and were not in the house. Instead, the police
7
found them, along with other clothing, in a trash can outside the house. From the staining
patterns on the clothes, it appeared that someone had attempted to clean the clothes.
Nonetheless, DNA analysis conducted on the clothing and the t-shirt in particular showed
blood from Apollo and sperm from Lopez.
d. Statements to Investigators
After Apollo’s death, when the police asked Torres about the bruises on his face,
she replied said that Apollo was “accident prone” and the bruise had come from an
accident on his bike. She also told the police that Apollo had a tendency to bite himself,
he pinched his penis, and he sometimes “pooped a little bit of blood” because he pushed
too hard.
Torres also denied that either she or Lopez ever hit Apollo. In fact, even after
being told that Lopez’ semen had been found on Apollo, Torres continued to deny that
Lopez hit Apollo or did anything suspicious.
e. Testimony at the Preliminary Examination
At Lopez’s preliminary examination, Torres testified that Lopez had a good
relationship with Apollo. She said that Lopez never hit Apollo and was with her the
entire night of January 15, the night before Apollo was found dead. She also said that,
when they discovered Apollo the next morning, there was no blood, and Lopez tried to
give him CPR. Finally, Torres said it was her idea to try to wake up Apollo by putting
water on him and in particular on his genitals.
Torres also continued to blame Apollo for his injuries. She testified that Apollo
was “clumsy” and injury prone. She said that in May 2015 Apollo hurt his penis when a
toilet seat fell on it, Apollo broke his arms in July 2015 when he fell running into the
kitchen, and in January 2016 Apollo hurt his face and his groin when he fell off a bike.
Although Torres admitted that Apollo had bruising around his genitals as a result
of the last incident, she testified that she decided not to go to the doctor because she was
afraid that they would suspect child abuse.
8
4. Verdict
The prosecutor argued that Torres was guilty of child abuse because she concealed
Lopez’s abuse of Apollo and prevented others from protecting Apollo by providing
innocent explanations for Apollo’s injuries. The prosecutor also argued that Torres was
an accessory after the fact to Apollo’s murder because she sought to conceal Lopez’s
guilt by destroying physical evidence, by giving the police innocent explanations for
Apollo’s injuries, and by providing false testimony under oath at Lopez’ his preliminary
examination. Finally, the prosecutor argued that Torres committed perjury by providing
that false testimony.
The jury convicted Torres on all three counts.
5. Sentencing
The trial court sentenced Torres on November 2, 2020. The court sentenced her to
“seven years and eight months” in prison, but then suspended the sentence and granted
formal probation for five years. The court stated that “[t]he imposition of sentence is
suspended,” but then, somewhat contradictorily, explained that “[i]t would be the Court’s
intention to make sure that there is enough balance of a suspended state prison sentence
that if Ms. Torres does not comply with the terms and conditions of her probation, that
she will go to state prison.” The abstract of judgment indicated that both the execution
and the imposition of sentence were suspended.
6. The Appeal
On December 10, 2020, Torres filed a timely notice of appeal.
II. Discussion
A. Speedy Trial
Although Torres was arrested in January 2019 and arraigned in August 2019, her
trial did not begin until July 2020. Torres argues that this delay violated her statutory and
constitutional rights to a speedy trial. We disagree.
9
1. Section 1050
The trial court granted 18 successive continuances under subdivision (g) of
section 1050 because the prosecutor assigned to this case was involved in the murder trial
of Manuel Lopez then in progress. Torres argues that the trial court violated
subdivision (g) in granting these continuances because the subdivision permits only one
continuance per case. However, the plain language of subdivision (g), the leading case
construing it, and the legislative history all show that multiple continuances are allowed
in cases such as this one involving child abuse.
a. The Text of Section 1050
While subdivision (g) of section 1050 expressly prohibits multiple continuances in
cases involving some types of offenses, child abuse is not one of those offenses, and the
subdivision is therefore naturally read to permit multiple continuances in cases such as
this one involving child abuse.
In interpreting statutes, our primary objective is to “ ‘ascertain the intent of the
lawmakers so as to effectuate the purpose of the statute.’ ” (Carmack v. Reynolds (2017)
2 Cal.5th 844, 849, quoting Day v. City of Fontana (2001) 25 Cal.4th 268, 272.) To
determine that intent, “[w]e look first to ‘ “the language of the statute, affording the
words their ordinary and usual meaning and viewing them in their statutory context.” ’ ”
(People v. Jimenez (2020) 9 Cal.5th 53, 61.) In addition, “ ‘[w]e do not examine that
language in isolation, but in the context of the statutory framework as a whole in order to
determine its scope and purpose and to harmonize the various parts of the enactment.’ ”
(Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724 (Bruns).) Indeed, in
interpreting particular provisions in a statute, “it is a cardinal rule that the entire
substance of the statute or that portion under review should be examined . . . .” (West
Pico Furniture Co. v. Pacific Finance Loans (1970) 2 Cal.3d 594, 608.) Finally, if after
applying these tools, a statute’s meaning remains unclear, “ ‘courts may consider other
aids,’ ” such as legislative history. (Bruns, supra, 51 Cal.5th at p. 724.)
10
Here, the plain language of subdivision (g)(2) of section 1050, read in light of the
following subdivision (g)(3), plainly indicates that subdivision (g) permits multiple
continuances in some cases. Subdivision (g)(2) provides that there is “ ‘good cause’ ” for
a continuance in “cases involving” six types of offenses if “the prosecuting attorney
assigned to the case has another trial, preliminary hearing, or motion to suppress in
progress in that court or another court.” (§ 1050, subd. (g)(2).3) In addition, although
subdivision (g)(2) states that “[a] continuance under this paragraph shall be limited to a
maximum of 10 additional court days” (ibid., italics added), it says nothing about whether
multiple continuances are permitted. Subdivision (g)(3), by contrast, states that “[o]nly
one continuance per case may be granted to the people under this subdivision for cases
involving” three of the six offenses listed in subdivision (g)(2).4
By prohibiting multiple continuances only in cases involving three of the six
offenses listed in subdivision (g)(2) of section 1050, subdivision (g)(3) plainly indicates
that multiple continuances are permitted in cases involving the three offenses listed in
subdivision (g)(2) but not in subdivision (g)(3). As the Supreme Court has observed, “the
3
Section 1050, subdivision (g)(2) provides in full: “For purposes of this section,
‘good cause’ includes, but is not limited to, those cases involving murder, as defined in
subdivision (a) of Section 187, allegations that stalking, as defined in Section 646.9, a
violation of one or more of the sections specified in subdivision (a) of Section 11165.1 or
Section 11165.6, or domestic violence as defined in Section 13700, or a case being
handled in the Career Criminal Prosecution Program pursuant to Sections 999b through
999h, or a hate crime, as defined in Title 11.6 (commencing with Section 422.6) of Part
1, has occurred and the prosecuting attorney assigned to the case has another trial,
preliminary hearing, or motion to suppress in progress in that court or another court. A
continuance under this paragraph shall be limited to a maximum of 10 additional court
days.”
4
Section 1050, subdivision (g)(3) provides in full: “Only one continuance per
case may be granted to the people under this subdivision for cases involving stalking,
hate crimes, or cases handled under the Career Criminal Prosecution Program. Any
continuance granted to the people in a case involving stalking or handled under the
Career Criminal Prosecution Program shall be for the shortest time possible, not to
exceed 10 court days.”
11
explicit mention of some things in a text may imply other matters not similarly addressed
are excluded.” (Howard Jarvis Taxpayers Assn. v. Padilla (2016) 62 Cal.4th 486, 514.)
This is particularly true where, as in subdivision (g)(3) of section 1050, the Legislature
has included an item in one list in a statute but excluded it from a closely related list.
(Barron v. Superior Court (2023) 90 Cal.App.5th 628, 638; see also People v. Buycks
(2018) 5 Cal.5th 857, 880 [“ ‘When the Legislature “has employed a term or phrase in
one place and excluded it in another, it should not be implied where excluded.” ’ ”].) As
a consequence, subdivision (g) of section 1050 is naturally read to prohibit multiple
continuances in cases involving offenses listed in subdivision (g)(3) but to permit them in
cases involving offenses included only in subdivision (g)(2).
Indeed, as the Attorney General points out, any other interpretation would render
section 1050, subdivision (g)(3)’s list of offenses superfluous. If multiple continuances
were implicitly prohibited in all cases involving offenses listed in subdivision (g)(2),
there would be no need for subdivision (g)(3) to expressly prohibit multiple continuances
in cases involving only some of those offenses. Such an interpretation should be
avoided: “Well-established canons of statutory construction preclude a construction
which renders a part of a statute meaningless or inoperative.” (Manufacturers Life Ins.
Co. v. Superior Court (1995) 10 Cal.4th 257, 274.) As a consequence, subdivision (g) of
section 1050 should be interpreted to permit multiple continuances in cases involving
offenses that are listed in subdivision (g)(2) but not listed in subdivision (g)(3).
This case involves such an offense. Subdivision (g)(2) lists six offenses. One is
“murder, as defined in subdivision (a) of Section 187.” (§ 1050, subd. (g)(2).) The other
five are “[1] stalking, as defined in Section 646.9, [2] a violation of one or more of the
sections specified in subdivision (a) of Section 11165.1 or Section 11165.6, or
[3] domestic violence as defined in Section 13700, or [4] a case being handled under the
Career Criminal Prosecution Program pursuant to Sections 999b through 999h, or [5] a
hate crime, as defined in Title 11.6 (commencing with Section 422.6 of Part 1.” (Ibid.)
12
Subdivision (g)(3) applies only to “stalking, hate crimes, or cases under the Career
Criminal Prosecution Program.” (Id., subd. (g)(3).) This case involves an offense listed
only in subdivision (g)(2): “a violation . . . Section 11165.6,” which address “ ‘child
abuse or neglect,’ ” including “the endangering of the person or health of a child.” (§
11165.6.) As a consequence, subdivision (g) permits multiple continuances in cases
involving child abuse, the offense alleged here.
Nor does Torres offer any plausible alternative reading of the language of
subdivision (g) of section 1050. She makes no attempt to explain how subdivision (g)(2)
can be interpreted to prohibit multiple continuances in cases involving child abuse or
other offenses not listed in subdivision (g)(3). In addition, while Torres assert that her
proposed construction of section 1050 would “[n]ot necessarily” render subdivision
(g)(3) a nullity, she fails to explain how subdivision (g)(3)’s list of offenses would have
any meaningful operation under her interpretation. She merely asserts that subdivision
(g)(3)’s express prohibition against multiple continuances might have been the product of
“awkward draftsmanship,” been inserted “for emphasis,” or reflected a “slight narrowing
of the understanding given the statute.” But Torres fails to offer any precedent or other
justification for interpreting a statutory provision to be meaningless on such grounds.
We therefore conclude that subdivision (g) should be interpreted according to its
plain language to permit multiple continuances for prosecutorial scheduling conflicts in
cases involving offenses such as child abuse that are listed in section 1050,
subdivision (g)(2) but not subdivision (g)(3).
b. Burgos
The First District, Division Five, reached a similar conclusion in the leading case
interpreting subdivision (g) of section 1050, Burgos v. Superior Court (2012) 206
Cal.App.4th 817 (Burgos). In that case, the First District considered whether multiple
continuances may be granted in a case involving murder (id. at p. 821), one of the
offenses listed in section 1050, subdivision (g)(2) but not subdivision (g)(3). The Court
13
of Appeal began by observing that “[s]ection 1050(g)(2) must be construed in light of
section 1050(g)(3).” (Burgos, at p. 837.) Then, treating subdivision (g)(3) of
section 1050 as effectively creating an exception for cases involving certain offenses
listed in subdivision (g)(2), Burgos applied the “well-established maxim of statutory
interpretation that ‘the presence of express exceptions ordinarily implies that additional
exceptions are not contemplated.’ ” (Burgos, at p. 837, quoting People v. Standish
(2006) 38 Cal.4th 858, 870.) “[T]he clear implication from subdivision (g)(3).” Burgos
observed, “is that, except in the three types of cases identified therein (stalking, hate
crimes, and Career Criminal Prosecution Program cases), the People may obtain more
than one continuance per case under section 1050(g)(2).” (Ibid.) In addition, noting that
the legislative history of the 2002 amendment to section 1050, subdivision (g)(3) is
“[c]onsistent with this plain language interpretation of the statute” (Burgos, at p. 837,
fn. 16), Burgos concluded that “the enactment of section 1050(g)(3) demonstrates that the
Legislature considered whether multiple section 1050(g)(2) continuances should be
permitted and chose to permit multiple continuances in murder and domestic violence
cases but not in the other three types of cases specified in section 1050(g)(2).” (Id. at
p. 837.)
Although Burgos did not mention child abuse, its reasoning applies equally to
cases involving this offense. In addition to offenses involving murder and domestic
violence, subdivision (g)(2) of section 1050 applies to cases involving allegations of a
“violation of one or more of the sections specified in subdivision (a) of Section 11165.1
or Section 11165.6.” (§ 1050, subd. (g)(2).) Those sections deal, respectively, with
“ ‘[s]exual assault’ ” (§ 11165.1, subd. (a)) and “ ‘child abuse or neglect,’ ” which is
defined to mean “physical injury or death inflicted by other than accidental means upon a
child by another person” (§ 11165.6)—exactly what Torres was charged with allowing
Apollo to suffer. Moreover, none of these offenses is among the offenses listed in
subdivision (g)(3) of section 1050. Consequently, under Burgos’ reasoning, subdivision
14
(g)(2) should be interpreted to permit multiple continuances in cases involving child
abuse and sexual assault, as well as murder and domestic violence.
c. Legislative History
Torres argues that Burgos was wrongly decided and should be rejected because its
interpretation of subdivision (g) of section 1050 is “entirely at odds” with the
subdivision’s legislative history. We disagree.
First, legislative history does not take precedence over plain language. “Although
legislative history often can help interpret an ambiguous statute, it cannot change the
plain meaning of clear language.” (In re Steele (2004) 32 Cal.4th 682, 694.) “Only when
the language of a statute is susceptible to more than one reasonable construction is it
appropriate to turn to extrinsic aids, including the legislative history of the measure, to
ascertain its meaning.” (Diamond Multimedia Systems, Inc. v. Superior Court (1999) 19
Cal.4th 1036, 1055.) Here, as shown above, Torres has failed to offer a reasonable
alternative construction of the text of subdivision (g)(2) of section 1050. As a
consequence, in this case, we must follow the text of the statute and should not resort to
legislative history. (See, e.g., Esberg v. Union Oil Co. (2002) 28 Cal.4th 262, 269.)
Second, even if we were to consider the legislative history, it would not help
Torres. To the contrary, as Burgos recognized, the legislative history contradicts her
interpretation. (See Burgos, supra, 206 Cal.App.4th at p. 837, fn. 16.)
In 2002, an Assembly Committee noted that section 1050, subdivision (g)
permitted continuances due to prosecutorial scheduling conflicts in cases involving the
four offenses then listed in subdivision (g)(2). (Assem. Com. on Public Safety, Rep. on
A.B. 2653 (2001-2002 Reg. Sess.), as introduced Feb. 22, 2002, p. 4 [“the court shall
continue a court date in a case involving murder, stalking, physical or sexual child abuse,
or a case handled under the Career Criminal Prosecution Program if the prosecutor for
the case has been assigned to another court on another matter” (italics added)].) The
report also noted that existing law permitted only one continuance in cases involving the
15
two offenses then listed in section 1050, subdivision (g)(3). (Ibid. [“only one
continuance may be granted to the people in stalking cases or cases under the Career
Criminal Prosecution Program” (italics added)].) Thus, the 2002 report implicitly
recognized that the prohibition against multiple continuances applies only in cases
involving the two offenses listed in subdivision (g)(3) of section 1050 and that multiple
continuances are permitted in cases involving the offenses listed in subdivision(g)(2) but
not subdivision (g)(3).
Torres does not mention the 2002 Assembly Committee report. Instead, she relies
on earlier materials. For example, she points to 1987 Legislative Counsel’s digest for the
legislation adding what is now subdivision (g)(2) of section 1050, which stated that “[t]he
bill would limit continuance in these specific cases to a maximum of 10 additional court
days.” (Legis. Counsel’s Dig., Assem. Bill. No. 2452 (1987-1988 Sess.), 4 Stats. 1987, p.
137.) She also points to a 1998 Assembly Committee report stating that subdivision (g)
“only allows for a brief continuance which cannot exceed 10 court days” and that there
would be “little prejudice to the defendant from a delay of 10 additional court days.”
(Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1754 (1997-1998 Reg.
Sess.), as introduced Feb. 4, 1998, p. 2.) A 1999 committee report quoted by Torres
contains similar language. (Assem. Com. on Public Safety, Analysis of Assem. Bill No.
501 (1999-2000 Reg. Sess.), as introduced Feb. 18, 1999, pp. 2-3 [“Penal Code Section
1050(g) . . . allows a brief continuance which cannot exceed 1 court days,” and “[t]here is
little prejudice from to the defendant from a delay of 10 additional court days”].)
None of these materials, however, directly addresses whether multiple
continuances are permitted, and all were issued before the Legislature added
subdivision (g)(3)’s express prohibition against multiple continuances. That prohibition
was enacted in 1999, after the 1987 and 1998 legislative histories cited by Torres. (Stats.
1999, ch. 382, § 2, p. 266; Stats. 1999, ch. 580, § 2, p. 4110.) In addition, the 1999
committee report quoted by Torres concerns Assembly Bill No. 501 (Assem Bill
16
No. 501) as it was introduced in February 1999. (See Assem. Com. on Public Safety,
Rep. on A.B. 501 (1999-2000 Reg. Sess.), as introduced Feb. 18, 1999, p. 1 [noting
Mar. 23, 1999 hearing].) The provision prohibiting multiple continuances that became
subdivision (g)(3) was not added to Assem Bill No. 501 until June 1999, roughly three
months later. (Assem. Bill No. 501 (1999-2000 Reg. Sess.) § 2, as amended in Senate
June 15, 1995; see Burgos, supra, 206 Cal.App.4th at p. 836, fn. 14.) Consequently, as
Burgos recognized, while read in isolation the material cited by Torres might be
construed to suggest subdivision (g)(2) of section 1050 permits only one 10-day
continuance, it sheds no light on how subdivision (g)(s) should be interpreted in light of
the express but limited prohibition against multiple continuances in subdivision (g)(3).
Even more important, when the legislative history of Assembly Bill No. 501
addressed that question, it recognized that the prohibition applies only to the offenses
included in subdivision (g)(3) of section 1050. After Assembly Bill No. 501 was
amended to add the provision expressly prohibiting multiple continuances now in
section 1050, subdivision (g)(3), the Senate report discussing the amended bill implicitly
recognized that multiple continuances were prohibited only for the offense expressly
included in the added provision. The report noted that “[e]xisting law provides” that in
murder, sexual assault, child abuse, and domestic violence cases, a court “may find ‘good
cause’ to continue the trial or hearing for up to ten days” where the prosecutor is
unavailable due to another trial or similar matter in progress (Sen. Rules Com., Off. of
Sen. Floor Analysis, 3d reading analysis of Assem. Bill No. 501 (1999-2000 Reg. Sess.),
as amended June 15, 1999, p. 2) and that the proposed bill would allow courts similarly
to find good cause to continue cases involving career criminal prosecution “for up to
10 court days.” (Id. at p. 3.) The report then adds that “[o]nly one continuance per case
may be granted for cases handled under the Career Criminal Prosecution Program,”
without any mention of a similar limitation on murder, assault, child abuse, and domestic
17
violence cases (ibid.), thereby implying that multiple continuances are permitted in cases
involving the latter types of offenses.
In short, even if legislative history could be consulted despite the plain language of
section 1050, it would not support Torres’ interpretation.
d. Absurdity
Finally, Torres argues that subdivision (g)(2) of section 1050 cannot be interpreted
to permit multiple continuances in cases involving offenses omitted from subdivision
(g)(3)’s list because such an interpretation would be absurd. Burgos already has
answered this argument. Burgos reasoned that “applying the clear language of the statute
does not produce absurd results” because the Legislature may have concluded that
murder cases are of “sufficient importance and complexity” that multiple continuances
should be permitted to allow the prosecutor originally assigned to a case to try the case
“even if it requires multiple continuances under section 1050(g)(2) to do so.” (Burgos,
supra, 206 Cal.App.4th at p. 840.)
The same is true in sexual assault and child abuse cases. Like murder cases,
sexual assault and child abuse cases are important and often complex. In addition, in
sexual assault and child abuse cases, a forced change of attorney may be traumatic for the
victim because in such cases prosecutors often build a rapport on the express or implied
assurance that the victim will have to deal with only one prosecutor. (Assem. Com. on
Public Safety, Assem. Bill No. 2452 (1987-1988 Reg. Sess.), as introduced Mar. 6, 1987,
p. 3.) Because a change in attorney violates that assurance, “[o]ften the victim will refuse
to deal with a new attorney, forcing a dismissal of the case which is harmful to the victim
and to society.” (Id. at p. 2.) As a consequence, there are compelling reasons to allow
multiple continuances in sexual assault and child abuse cases. Torres points out that the
Legislature’s concerns about maintaining the rapport between victim and prosecuting
attorney are absent in this case (because the victim, Apollo, is dead.) But that makes no
18
difference to the interpretation of section 1050, subdivision (g) because that provision
applies on a categorical, rather than a case-by-case, basis.
We therefore conclude that section 1050, subdivision (g) permits multiple
continuances in cases such as this one involving child abuse.
2. The Sixth Amendment
Torres argues that, even if subdivision (g)(2) permits multiple continuances, the
delay resulting from the 18 continuances in this case violated her right to a speedy trial
under the Sixth Amendment (as applied though the Fourteenth Amendment) to the United
States Constitution.5 Here again, we disagree.
Although the Sixth Amendment states that “the accused shall enjoy the right to a
speedy . . . trial,” this guarantee has not been interpreted to prevent all delay. (Doggett v.
United States (1992) 505 U.S. 647, 651 (Doggett).) Instead, in Barker v. Wingo (1972)
407 U.S. 514, 530 (Barker), the United States Supreme Court adopted a balancing test that
requires consideration of four factors: “the length of the delay, the reason for the delay, the
defendant’s assertion of the right, and prejudice to the defense caused by the delay.”
(People v. Martinez (2000) 22 Cal.4th 750, 755.) To trigger the Barker balancing test, “an
accused must allege that the interval between accusation and trial has crossed the threshold
dividing ordinary from ‘presumptively prejudicial” delay . . . .” (Doggett, supra, 505 U.S.
at pp. 651-652.)
While Torres satisfies this threshold burden and triggers the Barker balancing test,
she fails to demonstrate any violation under that test because the delay in this case was not
excessively long, the prosecutor had strong justifications for it, and Torres suffered no
prejudice to her ability to defend herself.
5
Torres does not assert a violation of her right to a speedy trial under the
California Constitution.
19
b. Length of Delay
As the Attorney General acknowledges, the delay in this case crossed the
threshold between ordinary and presumptively prejudicial delay. The Sixth
Amendment’s speedy trial guarantee attaches when, among other things, a suspect “has
been arrested and held to answer.” (United States v. Marion (1971) 404 U.S. 307, 321.)
In this case, that occurred on January 11, 2019 when Torres was arraigned and detained
without bail. As trial did not begin until July 22, 2020, the delay in trial was over
eighteen months. “[P]ostaccusation delay is considered presumptively prejudicial ‘at
least as it approaches one year.’ ” (People v. Horning (2004) 34 Cal.4th 871, 892
(Horning), quoting Doggett, supra, 505 U.S. at p. 652, fn. 1.) The delay in this case was
therefore long enough to create a presumption of prejudice and trigger the Barker
balancing test.
Torres asserts that the delay in this case also was “extraordinar[] by any measure”
and “weighs heavily against the government. We disagree. Courts have held delays of
eight years “ ‘extraordinary’ ” and five years “great.” (Doggett, supra, 505 U.S. at
p. 658; United States v. Shell (9th Cir. 1992) 974 F.2d 1035, 1036.) However, where the
delay was less than two years, they have held that the delay was “not excessive” and
“does not seriously weigh in [defendant’s] favor.” (United States v. King (2007) 483
F.3d 969, 976; see also United States v. Gregory (9th Cir. 2003) 322 F.3d 1157, 1162
[22-month delay “not excessively long”]; United States v. Clark (11th Cir. 1996) 83 F.3d
1350, 1354 [17-month delay “not very great”]; United States v. Beamon (1993) 992 F.2d
1009, 1014 [delays of 17 and 20 months “ ‘not great’ ”].) Indeed, even a three-year
delay is “not at the high end of the range where Speedy Trial Clause violations typically
lie.” (United States v. Lonich (9th Cir. 2022) 23 F.4th 881, 894.)
Thus, while the 18-month delay in this case is enough to trigger the Barker
balancing test, it does not weigh heavily in favor of dismissal.
20
b. Reasons for Delay
The second Barker factor, the reasons for delay, has long been recognized as the
“focal inquiry” of the Barker balancing test. (United States v. Sears, Roebuck and Co.,
Inc., (9th Cir. 1989) 877 F.2d 734, 739, citing United States v. Loud Hawk (1986) 474
U.S. 302, 315.) This factor weighs against dismissal. There is no evidence that the
prosecution “intentionally held back in its prosecution of [Torres] to gain impermissible
advantage at trial” or otherwise delayed Torres’s trial for an improper purpose. (Doggett,
supra, 505 U.S. at p. 656.) Nor is there any suggestion that the prosecution acted
negligently or dilatorily. Instead, the People delayed Torres’ trial for three legitimate
reasons.
First, as shown above, the People sought continuances because this is a
complicated and sensitive case, and the prosecutor assigned it was unavailable due to a
trial in another case. As the Legislature recognized in enacting subdivision (g)(2) of
section 1050, there is a public interest in ensuring “that prosecutors assigned to certain
sensitive or complicated cases remain on those cases, notwithstanding scheduling
conflicts that would otherwise force a replacement prosecutor to assume responsibility
for the case.” (Burgos, supra, 206 Cal.App.4th at p. 829.) Subdivision (g)(2) of
section 1050 deals with cases involving murder, child neglect or abuse, sexual assault,
and hate crimes, matters that are “among the most serious of all offenses.” (Assem. Com.
on Public Safety, Rep. on Assem. Bill No. 1754 (1997-1998 Reg. Sess.), as introduced
Feb. 4, 1998, p. 2.) If the People were forced to reassign such important and complicated
cases to prosecutors unfamiliar with them, many of those cases may be lost. (Burgos, at
p. 829.) As a consequence, allowing continuances in those cases not only avoids the
inefficiency and waste of having multiple prosecutors prepare complicated cases; it also
supports the public interest in bringing to justice individuals who commit murder, child
abuse, sexual assault, and hate crimes.
21
Second, as the trial court recognized, even if another prosecutor had taken over
this case, it would have been difficult to conduct Torres’ trial and Manuel Lopez’s
murder trial simultaneously because the two cases overlap significantly. In particular,
though Torres did not contest the point, to prove her an accessory after the fact to
Apollo’s murder, the prosecution still had to establish that Lopez murdered Apollo.
Consequently, if Torres’ trial had been conducted at the same time as Lopez’s murder
trial, it would have been necessary to coordinate the testimony of many witnesses, and
counsel in each case would have had to monitor testimony in the other case. As the
federal courts have recognized in the context of overlapping state and federal
prosecutions, avoiding such burdens is a legitimate reason for delay. (See, e.g., United
States v. Myers (9th Cir. 2019) 930 F.3d 1113, 1121 [“when the state’s charges factually
overlap with the federal charges, such that trying the defendant concurrently would
present administrative hurdles and safety concerns, a delay may be justified”].)
Third, a significant portion of the delay in Torres’s trial was attributable to the
COVID-19 pandemic. Starting in March 2020, the trial court granted continuances
because of emergency orders limiting the use of courtrooms. These delays were not “the
fault of the prosecution or [trial] court,” but rather of the pandemic (Hernandez-
Valenzuela v. Superior Court (2022) 75 Cal.App.5th 1108, 1128) and were
“unquestionably . . . justified” by the risks to the health and safety of court personnel,
jurors, attorneys, and the defendant. (Stanley v. Superior Court (2020) 50 Cal.App.5th
164, 170.)
Torres does not dispute that the delay attributable to the COVID-19 pandemic was
justified. Instead, she contends that, absent the continuances due to Lopez’s trial, her trial
would have been completed before the pandemic. Torres also contends that the Attorney
General has exaggerated the difficulties in reassigning this case to another prosecutor and
that the only complicated evidence presented at her trial, the DNA evidence, was
uncontested. In fact, however, this was far from a simple case. In addition to concerning
22
a highly sensitive subject, it involved thirty proposed witnesses, including not only a
DNA expert, but also the medical examiner, eight doctors, six police officers, social
workers, a paramedic, friends and relatives of the defendant, and at least one child. It
took three full days to select the jury, and another thirteen days to present the testimony.
Contrary to Torres’ assertions, this was the sort of complicated and sensitive case in
which the People should not be forced to hand the trial to a prosecutor with no prior
involvement in the case.
In short, there were multiple justifications for the delay in Torres’s trial, and the
second Barker factor weighs strongly against dismissal.
c. Assertion of the Right to a Speed Trial
The third Barker factor is the defendant’s assertion of the right to a speedy trial.
This factor weighs in favor of dismissal because Torres first asserted her right to a speedy
trial in October 2019 just before expiration of the 60-day period for trial under
section 1382 and repeatedly renewed that objection over the next nine months.
d. Prejudice
The fourth Barker factor, prejudice, weighs against finding a speedy trial
violation. Prejudice under the Sixth Amendment includes “ ‘oppressive pretrial
incarceration,’ ‘anxiety and concern of the accused’ and ‘the possibility that the
[accused’s] defense will be impaired’ by dimming memories and loss of exculpatory
evidence.” (Doggett, supra, 505 U.S. at p. 654.) “Of these forms of prejudice, ‘the most
serious is the last, because the inability of a defendant to adequately prepare his case
skews the fairness of the entire system.’ ” (Ibid.) Torres has failed to show this sort of
prejudice, and the other forms of prejudice that she asserts do not justify dismissal.
Torres has not identified any “particularized prejudice.” (Horning, supra, 34
Cal.4th at p. 894.) While the 18-month delay in this case is enough to satisfy the Barker
test’s threshold requirement and create a presumption of prejudice, even a 22-month
delay “is not long enough to excuse [a defendant] from demonstrating actual prejudice to
23
prevail” on a speedy trial claim. (Gregory, supra, 322 F.3d at p. 1163; see also Beamon,
supra, 992 F.2d at p. 1014 [17- and 20-month delay insufficient].) In addition, Torres has
not shown that any relevant documents were lost, any witnesses died, or evidence
otherwise became unavailable. As a consequence, Torres has not shown any impairment
of her ability to defend herself and therefore has failed to show the most serious type of
prejudice.
Torres instead points to the fact that she was incarcerated for the 18 months prior
to her trial and to the resulting anxiety and uncertainty that she suffered. Courts,
however, repeatedly have found only minimal prejudice from incarceration or delay for
such a period. (See, e.g., Barker, supra, 407 U.S. at p. 534 [finding “prejudice was
minimal” from “spend[ing] 10 months in jail before trial”]; United States v. Brown (9th
Cir. 2020) 828 F.Appx. 366, 371 [finding only “minimal prejudice from the 14-month
incarceration”].) Pointing to evidence attached to various motions submitted at trial and
to her probation report, Torres asserts that she was especially vulnerable to anxiety and
stress based on her mental health. But she did not present any of this evidence in
objecting to the delay in her trial, and the prosecution had no chance to present
responsive evidence on this issue. We therefore decline to consider it.
Accordingly, we find no evidence that Torres suffered significant prejudice from
the delay before trial, and the fourth Barker factor weighs against dismissal.
***
In sum, although Torres promptly and vigorously asserted her speedy trial rights,
the delay in her trial was not excessively long, there were legitimate and reasonable
justifications for the delay, Torres’ ability to defend herself was not impaired, and the
other prejudice that she suffered was not severe. We therefore conclude that the Barker
factors weigh against finding a violation and there was no constitutional violation.
24
B. The Unanimity Instruction
Torres requested a unanimity instruction on count 1, the child abuse charge, which
would have required that all jurors agree on the acts establishing the offense. The trial
court denied this request because the People prosecuted this count on a continuing course
of conduct theory for which unanimous agreement on particular actions is not required,
but decided sua sponte to give a unanimity instruction on count 3, the perjury charge. On
appeal, Torres argues that the trial court erred in denying a unanimity instruction on
count 1 and in not sua sponte giving a unanimity instruction on count 2, the accessory-to-
murder charge. The Attorney General responds that the trial court correctly denied a
unanimity instruction concerning the child abuse count and that its failure to give an
instruction on the accessory-to-murder count was harmless. As explained below, we
agree on both points.
1. The Unanimity Requirement
The right to a jury trial guaranteed by the California Constitution requires that
guilty verdicts “be unanimous.” (People v. Collins (1976) 17 Cal.3d 687, 693.)
Consequently, “when the evidence suggests more than one discrete crime, either the
prosecution must elect among the crimes or the court must require the jury to agree on the
same criminal act. [Citations.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).)
Accordingly, when the prosecution presents evidence of multiple acts that each constitute
a discrete crime, the jury should be instructed that all jurors must agree on what acts
occurred. (See 2 CALCRIM No. 3500 (2022 ed.) [“The People have presented evidence
of more than one act to prove that the defendant committed this offense. You must not
find the defendant guilty unless you agree that the People have proved that the defendant
committed at least one of these acts and you all agree on which act (he/she)
committed.”].)
However, jurors are not required to agree on every fact concerning a crime (see,
e.g., People v. Jenkins (2000) 22 Cal.4th 900, 1024-1026), and “there is no unanimity
25
requirement as to the theory of guilt.” (People v. Santamaria (1994) 8 Cal.4th 903, 919.)
A jury need only “agree unanimously the defendant is guilty of a specific crime.
[Citation].” (Russo, supra, 25 Cal.4th at p. 1132.) In particular, jurors are not required to
agree on every fact concerning an offense that “consists of a continuous course of
conduct.” (People v. Diedrich (1982) 31 Cal.3d 263, 282 (Diedrich).) To the contrary,
“where the evidence shows only a single discrete crime but leaves room for disagreement
as to exactly how that crime was committed or what the defendant’s precise role was, the
jury need not unanimously agree on the basis or, as the cases often put it, the ‘theory’
whereby the defendant is guilty.” (Russo, supra, 25 Cal.4th at p. 1132.)
Consequently, under the “continuous conduct” exception, no unanimity instruction
is required for offenses such as conspiracy, torture, harboring a felon, pandering, spousal
abuse, and, most pertinently, child abuse that are prosecuted on a continuous course of
conduct theory. (See People v. Jennings (2010) 50 Cal.4th 616, 680 (Jennings) [torture];
Russo, supra, 25 Cal.4th at pp. 1133-1136 [conspiracy]; People v. Napoles (2002) 104
Cal.App.4th 108, 115-119 [child abuse] (Napoles); People v. Gunn (1987) 197
Cal.App.3d 408, 414-416 (Gunn) [harboring felon]; People v. Thompson (1984) 160
Cal.App.3d 220, 224-226 [spousal abuse]; People v. White (1979) 89 Cal.App.3d 143,
151 [pandering].)
2. The Child Abuse Count
The child abuse count in this case falls squarely within the “continuous conduct”
exception. Although a single act may constitute child abuse, child abuse charges under
§ 273a—the provision charged—“more commonly . . . cover[] repetitive or continuous
conduct.” (People v. Ewing (1977) 72 Cal.App.3d 714, 717 (Ewing).) Consequently,
courts have long recognized that unanimity instructions are not required in a child abuse
case prosecuted on a continuous course of conduct theory. (Napoles, supra, 104
Cal.App.4th at pp. 114-117; People v. Vargas (1988) 204 Cal.App.3d 1455, 1460-1467;
Ewing, supra, 72 Cal.App.3d at p. 717; see also Diedrich, supra, 31 Cal.3d at p. 282
26
[noting unanimity instruction not required in child abuse cases alleging a continuous
course of conduct].)
Here, far from being charged with discrete instances of abuse, Torres was charged
with willfully causing or permitting harm to Apollo over a period of nearly one year,
“between February 1, 2015 and January 16, 2016.” In addition, during closing argument,
the prosecutor did not ask the jury to convict Torres based on any specific act of abuse.
To the contrary, the prosecutor told the jury that “I’m not talking about one event” and,
indeed, admitted that he did not know “what role the defendant actually played in the
abuse” of Apollo. The prosecutor argued that Torres engaged in a “systematic[,]
continuous course of conduct” designed “to hide what was taking place with her son” by
offering innocent explanations for his injuries, neglecting to seek treatment for injuries,
taking him to different doctors, and failing to return follow-up requests so that no one
would have a full picture of the abuse that he was suffering. This is exactly the sort of
continuous course of conduct in which no one act constitutes the crime and an instruction
requiring unanimous agreement on particular acts is inappropriate.
Torres argues that the evidence presented at trial “disclosed several discrete and
disparate episodes (or courses of conduct)” and that the trial court should have given the
jury a unanimity instruction to ensure that they agreed on the same course of conduct. In
the trial court, however, Torres did not argue that there were distinct and separate courses
of conduct at trial, and she is unable to point to anything in the closing arguments
suggesting any courses of conduct besides the one asserted by the prosecutor. Instead,
Torres asserts that individual jurors might have found her grossly negligent “in
connection with the two arm and leg fractures that Apollo suffered” in the summer of
2015 or with the “signs of sexual abuse leading up” to Apollo’s death in January 2016.
Absent evidence that jurors were asked to find such distinct courses of conduct, or
explanation why they would have done so on their own initiative, this argument provides
no basis for requiring a unanimity instruction.
27
Torres also tries to distinguish decisions applying the continuous conduct
exception on the ground that the acts of abuse in those cases took place over a shorter
period of time. While that is true, the events at issue in this case took place from
May 2015 to January 2016, which is a period of only eight months, and the evidence
presented by the prosecution showed that Apollo suffered a succession of injuries, major
as well as minor, during this period. Moreover, Torres fails to explain why the length of
the course of conduct is material here. While courts have recognized that no unanimity
instruction is required “ ‘when the acts are so closely connected in time as to form part of
one transaction’ ” (Jennings, supra, 50 Cal.4th at p. 679), they also have held that no
instruction is required when a statute “ ‘contemplates a continuous course of conduct
over a period of time.’ ” (Ibid., italics added.) Under this latter theory, which is the one
applicable here, it is not necessary that the conduct occur over a short time frame.
Finally, Torres contends that the evidence of abuse in this case is more
“equivocal” than the evidence in prior cases applying the continuous conduct exception.
Torres, however, fails to explain how this distinction makes any difference. In deciding
whether to give a unanimity instruction, a trial court does not ask whether the evidence is
ambiguous and the jury is likely to disagree on particular facts. It asks whether there is a
risk that the jury may “divide on two discrete crimes and not agree on any particular
crime.” (Russo, supra, 25 Cal.4th at p. 1135.) Torres has not shown any risk here that
the jury would divide on two discrete crimes and therefore has not shown need for a
unanimity instruction on the child abuse charge.
3. The Accessory-to-Murder Count
Torres also argues that the trial court “erred by refusing to give a unanimity
instruction as to the accessory charge” (boldface & capitalization omitted) because the
“prosecutor cited several distinct and disparate actions by [Torres] as proof that she
intentionally tried to help Manual Lopez avoid prosecution for the murder of Apollo.”
28
The Attorney General concedes error on this point but argues that the error was harmless.
We agree in both respects.
In general, “being an accessory after the fact is not the kind of offense which, in
itself, consists of a continuous course of conduct.” (People v. Metheney (1984) 154
Cal.App.3d 555, 562.) This is especially so where acts, “separated by several months,
were not committed so closely together that they formed part of one and the same
transaction.” (Gunn, supra, 197 Cal.App.3d at p. 413.) Here, Torres was charged as an
accessory to murder because she helped Lopez avoid conviction for murdering Apollo by
cleaning him up and thereby destroying physical evidence before the police arrived on
the day of his death, by providing false and misleading information to the police during
the subsequent investigation, and by giving false testimony at Lopez’s preliminary
examination in March 2018. As Torres could have been found an accessory for any of
these actions, there was “a risk the jury may divide on two discrete crimes and not agree
on any particular crime,” and a unanimity instruction should have been given. (Russo,
supra, 25 Cal.4th at p. 1135.)
However, Torres was not prejudiced by the trial court’s failure to give a unanimity
instruction. Although there is a split over the harmless error standard in unanimity
instruction cases (see People v. Hernandez (2013) 217 Cal.App.4th 559, 576; People v.
Matute (2002) 1003 Cal.App.4th 1437, 1448), we need not take a position on this split
because the error in his case was harmless under the more stringent test under Chapman
v. California (1967) 386 U.S. 18. As defense counsel acknowledged in closing, the
accessory-to-murder count overlaps with the perjury count because the prosecutor argued
that Torres made false statements under oath during the preliminary examination in
Lopez’s case to help Lopez avoid responsibility for Apollo’s murder, and the perjury
charge was based the same false testimony. As the jury received a unanimity instruction
on the perjury count and found her guilty on that count, it is clear beyond a reasonable
doubt that the jury also would have found Torres guilty on the accessory count based on
29
her false statements during the preliminary examination even if it had received a
unanimity instruction on that count. As a consequence, the failure to give the unanimity
instruction for the accessory count was harmless. (In re Ferrell (2023) 14 Cal.5th 593,
602 (Ferrell) [“Harmlessness can be shown ‘ “if the jury verdict on other points effective
embraces” ’ the valid theory. . . .”].)
Torres tries to posit a scenario in which the jury could have convicted her of
perjury during Lopez’s preliminary examination without finding that she intended to help
him escape punishment and was guilty on the accessory count. While Torres concedes
that five of the ten false statements that she made at the preliminary examination
exculpated Lopez, she contends that the other five statements might have been intended
merely to minimize her responsibility for Apollo’s injuries and “make herself seem less
negligent as a parent.” At trial however, Torres did not argue that some of her statements
at the preliminary examination were intended to make herself, not Lopez, look better; she
simply denied that she intended to help Lopez. Moreover, in convicting Torres of
perjury, the jury necessarily found that Torres’ false statements at the preliminary
examination were material and, thus, might have exonerated Lopez. We do not see how a
reasonable jury could have found that Torres, under oath and subject to penalty of
perjury, knowingly made false statements exonerating Lopez without also finding that
she intended the statements to help him. Accordingly, Torres’ argument does not affect
our conclusion that the failure to give a unanimity instruction on the accessory count was
harmless. (See Ferrell, supra, 14 Cal.5th at p. 603; In re Lopez (2023) 14 Cal.5th 562,
591.)
C. The Statute of Limitations Instruction
Torres argues that her defense counsel rendered ineffective assistance of counsel
by failing to request an instruction concerning the statute of limitations on the child abuse
count. This argument is somewhat extended. According to Torres, because the relevant
limitations period is three years and she was not prosecuted until an arrest warrant issued
30
on January 10, 2019, the People had to show that she committed child abuse in the brief
window between January 10, 2016 and January 16, 2016, when Apollo died. Torres
therefore contends that her trial counsel should have requested an instruction requiring
the jury to unanimously agree that some act or omission constituting child abuse occurred
during this window. We are not persuaded.
To establish ineffective assistance of counsel, a defendant “must show that
counsel’s performance was deficient, and that the deficiency prejudiced the defendant.”
(Wiggins v. Smith (2003) 539 U.S. 510, 521; Strickland v. Washington (1984) 466 U.S.
668, 687 (Strickland).) “To establish deficient performance, a person challenging a
conviction must show that ‘counsel’s representation fell below an objective standard of
reasonableness.’ ” (Harrington v. Richter (2011) 562 U.S. 86, 104.) Moreover, in
evaluating whether counsel’s performance was deficient, a court “must apply a ‘strong
presumption’ that counsel’s performance was within the ‘wide range’ of reasonable
professional assistance.” (Ibid.) Finally, to establish prejudice, a defendant must show
“a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” (Strickland, supra, 466 U.S. at p. 694.)
Torres has not established that trial counsel was deficient in not requesting an
instruction concerning the statute of limitations. Indeed, Torres’ ineffectiveness
argument fails for much the same reason as her unanimity argument concerning the child
abuse count fails: That count was based on a continuing course of conduct. Where a
continuing failure to perform a duty is charged, “ ‘[t]he offense continues as long as the
duty persists, and there is a failure to perform that duty.’ ” (Wright v. Superior Court
(1997) 15 Cal.4th 521, 525-526), and “the limitations period does not commence as to
continuing offenses until the entire course of conduct is complete.” (People v. Keehley
(1987) 193 Cal.App.3d 1381, 1385.) As a consequence, the statute of limitations on the
child abuse count did not begin to run until concealment of Lopez’s abuse of Apollo
ceased, which did not occur until Apollo’s death on January 16, 2016 at the earliest.
31
Indeed, during Lopez’s preliminary examination Torres admitted that only days before
Apollo’s death she decided not to take him to the doctor to treat bruising in his genital
area because she was afraid that the doctor would suspect child abuse. As a consequence,
Torres’ continuous course of child abuse plainly continued past January 10, 2016, and the
child abuse charge against her was not barred by the statute of limitations.
As “[t]he Sixth Amendment does not require counsel to ‘ “waste time with
frivolous or futile motions” ’ ” (People v. Memro (1995) 11 Cal.4th 786, 834), Torres’
trial counsel was not deficient in failing to seek a unanimity instruction concerning the
statute of limitations.
D. The Length of Probation
Torres argues that the five years of probation given for her accessory and perjury
convictions should be reduced to two years. The Attorney General concedes that these
terms should be reduced, and we accept that concession. Effective January 1, 2021, the
Legislature amended section 1203.1, subdivision (a) to limit the maximum duration of
probation in most felony cases to two years. (Stats. 2020, ch. 328, § 2.) None of the
exceptions to this general rule apply to the accessory and perjury counts. (See § 1203.1,
subd. (l).6) Moreover, courts have been unanimous in holding that amended section
1203.1, subdivision (a) “applies retroactively to defendants who were serving a term of
probation when the legislation became effective on January 1, 2021 . . . .” (People v.
Faial (2022) 75 Cal.App.5th 738, 743 [collecting cases], review granted May 18, 2022,
S273840; accord People v. Czirban (2021) 67 Cal.App.5th 1073, 1095.) Accordingly,
the probation terms on counts 2 and 3 should be reduced from five years to two years.
6
By contrast, Torres’ child abuse conviction is subject to the exception for
offenses “that include specific probation lengths” (§ 1203.1, subd. (l)(1)) because
section 273a requires a minimum of 48 months’ probation. (§ 273a, subd. (c)(1).)
32
E. Probation Costs
Torres argues that the order requiring her to pay for the costs of probation should
be vacated. Here again, the Attorney General concedes that Torres is correct, and we
accept the concession. The Legislature has rendered “unenforceable and uncollectible”
any portion of certain enumerated fees, including the probation supervision fee, unpaid as
of July 1, 2021. (§ 1465.9, subd. (a).) We therefore vacate any portion of the criminal
justice administration fee that remained unpaid as of July 1, 2021. (See People v.
Greeley (2021) 70 Cal.App.5th 609, 626-627.)
F. Suspension of Sentence
Finally, Torres contends that the abstract of judgment should be amended to
reflect the trial court’s oral pronouncement at sentencing. Specifically, Torres argues that
the trial court stated, on the record, “that imposition of sentence was suspended while
[Torres] was on probation,” whereas the abstract of judgment “show[s] that the court
suspended imposition and suspended execution of judgment.” Torres is correct that the
abstract of judgment needs to be corrected. However, the record shows that the trial
court intended to suspend execution, not imposition, of Torres’ sentence.
At sentencing, the trial court did not just suspend imposition of sentence. It
sentenced Torres to “seven years and eight months” in state prison and awarded
presentence credits. Then, the court stated that “imposition of sentence is suspended”
and granted formal probation for five years. The court, however, also stated that “[i]t
would be the Court’s intention to make sure that there is enough balance of a suspended
state prison sentence that if Ms. Torres does not comply with the terms and conditions of
her probation, that she will go to state prison.” These two statements are contradictory.
The versions of the abstract of judgment in the record—there are three—do not resolve
this contradiction. Instead, they indicate that the court suspended execution and
imposition of sentence.
33
The rendition of judgment is an oral pronouncement. (People v. Mesa (1975) 14
Cal.3d 466, 471.) As a consequence, “[w]here there is a discrepancy between the oral
pronouncement of judgment and the minute order or the abstract of judgment, the oral
pronouncement controls” (People v. Zackery (2007) 147 Cal.App.4th 380, 385), and
appellate courts may “order[] correction of abstracts of judgment that did not accurately
reflect the oral judgments of sentencing courts.” (People v. Mitchell (2001) 26 Cal.4th
181, 185.) In addition, appellate courts may correct a sentence if a trial court’s oral
pronouncement does not accurately state its intention. (People v. Menius (1994) 25
Cal.App.4th 1290, 1294 [obvious inadvertent misstatement by trial court in referring to
wrong subdivision of statute corrected]; People v. Schultz (1965) 238 Cal.App.2d 804,
808 [clerical error corrected where trial court misspoke].)
Here, although the trial court stated that imposition of sentence was suspended, its
clear intention was to suspend execution of the sentence. The court expressly stated that
its intention that Torres would go to prison for the balance of her sentence if she violated
the conditions of her probation, which would occur only if the sentence was imposed and
its execution suspended. (See People v. Howard (1997) 16 Cal.4th 1081, 1094
[discussing differences between suspended imposition and suspended execution types of
probation].) As a consequence, we conclude that the trial court intended to suspend the
execution of Torres’ sentence and that the abstract of judgment should be modified to
state that execution, not imposition, of the sentence is suspended.
III. Disposition
The terms of probation for the accessory-to-murder and perjury convictions are
reduced to two years. Any portion of the probation supervision fee that remained unpaid
as of July 1, 2021, is vacated. In addition, the abstract of judgment is modified to reflect
that execution, not imposition, of sentence is suspended. As thus modified, the judgment
is affirmed.
34
____________________________
BROMBERG, J.
WE CONCUR:
____________________________
GREENWOOD, P.J.
_____________________________
GROVER, J.
The People v. Torres
H048742