People v. Indalecio CA5 ( 2024 )

Filed 5/29/24 P. v. Indalecio CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F085528
Plaintiff and Respondent,
(Super. Ct. No. MCR072150)
v.
THOMAS INDALECIO, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Madera County. Ernest J.
LiCalsi, Judge.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and
Hannah Janigian Chavez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury found defendant Thomas Indalecio guilty of oral copulation of a child
10 years of age or younger, sexual penetration of a child 10 years of age or younger, a
forcible lewd act upon a child under the age of 14, continuous sexual abuse upon a child
under the age of 14, failure to update sex offender registration annually, and failure to
register as a sex offender after an address change. Defendant was sentenced to 10 years,
8 months, plus 45 years to life.
Defendant raises two issues on appeal. First, defendant claims that the trial court
erred in relying on Penal Code section 667.6, subdivision (d)(1)1 to impose mandatory
consecutive sentences on counts 1 through 3, requiring remand for the court to exercise
informed discretion and consider imposing concurrent sentences. The People disagree
that remand is required. Although the People concede that the court erroneously relied on
section 667.6, subdivision (d)(1), the People argue that the court was aware of, and
properly exercised its discretion when it sentenced defendant to consecutive terms.
Second, defendant argues that the court erred in imposing penalty assessments on
defendant’s section 294 restitution fine since it is not subject to penalty assessments. The
People agree.
We vacate defendant’s sentence and remand for resentencing in accordance with
this opinion. In all other respects, we affirm.
PROCEDURAL BACKGROUND
On June 1, 2022, the District Attorney of Madera County filed an amended
information charging defendant with three counts of oral copulation or sexual penetration
of a child 10 years of age or younger (§ 288.7, subd. (b); counts 1–3), a forcible lewd act
upon a child under the age of 14 (§ 288, subd. (b)(1); count 4), continuous sexual abuse
upon a child under the age of 14 (§ 288.5, subd. (a); count 5), failure to update sex
1 Undesignated statutory references are to the Penal Code.
2.
offender registration annually (§ 290.012, subd. (a); count 6), and failure to register as a
sex offender after an address change (§ 290, subd. (b); count 7). As to count 5, the
amended information also alleged that defendant had a prior sex offense conviction under
section 285 (§ 1203.066, subd. (a)(5)). As to counts 1 through 5, the amended
information further alleged that defendant took advantage of a position of trust or
confidence (Cal. Rules of Court, rule 4.421(a)(11)),2 the victim was particularly
vulnerable (rule 4.421(a)(3)), and defendant engaged in violent conduct that indicates a
serious danger to society (rule 4.421(b)(1)). As to each count, it was also alleged that
defendant served a prior prison term (rule 4.421(b)(3)).
A jury found defendant guilty as charged on all seven counts. In a court trial, the
trial court found true that defendant had a prior sex offense conviction under section 285
(§ 1203.066, subd. (a)(5)) and the following aggravating factors: the victim was
particularly vulnerable (rule 4.421(a)(3)); defendant engaged in violent conduct that
indicates a serious danger to society (rule 4.421(b)(1)); and defendant served a prior
prison term (rule 4.421(b)(3)).3 The court sentenced defendant to an aggregate term of
10 years, 8 months, plus 45 years to life as follows: on count 1, 15 years to life; on
count 2, 15 years to life, to run consecutively to the term on count 1; on count 3, 15 years
to life, to run consecutively to the term on count 2; on count 4, 10 years (the upper term);
on count 7, eight months (one-third the middle term), to run consecutively to the term on
count 4; on count 5, 10 years (the upper term), stayed pursuant to section 654; and on
count 6, eight months (one-third the middle term), stayed pursuant to section 654.4
2 All further rule references are to the California Rules of Court.
3 The parties stipulated to a bifurcated court trial on the aggravating factors.
4 Because concurrent terms are not part of the principal and subordinate term
computation under section 1170.1, subdivision (a), they are imposed at the full base term,
not according to the one-third middle term formula, even though they are served at the
same time. A concurrent term begins when it is imposed and runs together with the other
3.
FACTUAL BACKGROUND
G.D., born in 2009, lived with defendant, among others, from October 2018 to
June 2020 in Chowchilla. G.D. began to be touched by defendant in the “wrong places”
about two weeks into living with defendant. The first time, G.D. was coming back from
the bathroom. Defendant picked G.D. up, put her in a room on the floor, and “humped”
her with his clothes on. G.D. told him to “get off” and pushed him off. The incident
lasted about five minutes.
Another time, defendant picked G.D. up and put her in a room on the floor and
again humped her with his clothes on. G.D. could feel defendant’s “private” on hers.
She could not push defendant off because she had previously injured her elbow. When
G.D. threatened to yell, defendant got off. The incident lasted about three minutes. Still
another time, G.D. was in the bathroom and defendant told her to “[c]ome out.” G.D.
refused and locked the door. Defendant used a butter knife to unlock the bathroom door.
When G.D. called for her aunt, defendant left.
About three weeks later, defendant told G.D. to go to his room. When she did, he
put her on the floor and began “humping” her with his clothes on. G.D. could feel
defendant’s “private” on hers. G.D. was able to push him off in less than two minutes.
Two weeks after that, defendant tried again to get into the bathroom while G.D. was in
the shower. When G.D. called for her aunt, defendant left.
terms, with the latest expiring term controlling. (§§ 669, 1170.1, subd. (a); see People v.
Bruner (1995) 9 Cal.4th 1178, 1182, fn. 3; People v. Matthews (1999) 70 Cal.App.4th
164, 169, fn. 4.) Such an unauthorized sentence is subject to correction on review.
(People v. Menius (1994) 25 Cal.App.4th 1290, 1295.) However, because we must
vacate the sentence and remand for resentencing on another ground, we note rather than
correct the error.
4.
On another occasion when G.D. was sleeping at night, she woke up to find her
pants off and defendant licking her in the “wrong places.” Defendant told G.D. to “roll
over” so that he could lick her “butt.” G.D. pushed him off and told him to leave.
While G.D. was inside cleaning dishes and her family was outside, defendant
picked her up and put her on the floor where he put his finger in G.D.’s “private area”
with her pants on. Defendant put his knee on G.D.’s stomach so she could not get up.
Defendant’s fingernails were long, and it hurt G.D. very badly. Defendant stopped when
someone walked into the room. Defendant stuck his finger inside her “private area” on
another occasion thereafter.
Another time, defendant picked her up, put her on the floor in a guest room and
began “humping” her and touching her private area over her clothes. Defendant held her
down with his knee and stopped only when G.D.’s aunt heard G.D. yelling.
From October 2019 to May 2020, defendant attempted to touch G.D.
inappropriately five more times.
DISCUSSION
I. Imposition of Consecutive Indeterminate Sentences Under Section 667.6,
Subdivision (d)(1)
Defendant argues that the trial court erred when it imposed consecutive sentences
on counts 1 through 3. Defendant claims the court erroneously relied on section 667.6,
subdivision (d)(1), which makes consecutive sentences mandatory when a defendant is
convicted of certain sex offenses specified in section 667.6, subdivision (e) if the crimes
involve separate victims or involve the same victim on separate occasions. (§ 667.6,
subd. (d)(1).) Defendant claims the sex offense that he was convicted of in counts 1
through 3 under section 288.7, subdivision (b), oral copulation or sexual penetration of a
child 10 years of age or younger, is not a specified sex offense listed in section 667.6,
subdivision (e). As such, defendant argues that consecutive sentences were not
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mandatory, but rather discretionary, and that the court should have used its discretion to
determine whether to impose consecutive or concurrent sentences on counts 1 through 3
pursuant to section 669, subdivision (a). The People agree that the court erroneously
relied on section 667.6, subdivision (d)(1) and that defendant’s conviction under
section 288.7, subdivision (b) is not a sex offense listed in section 667.6, subdivision (e).
However, the People respond that the court was still aware of and properly exercised its
discretion when it sentenced defendant to consecutive terms. We agree with defendant.
We vacate defendant’s sentence and remand for resentencing.
A. Additional Background
In defendant’s sentencing memorandum before the sentencing hearing, defendant
argued that concurrent sentences should be imposed under section 667.6, subdivision (c).
Defendant claimed the sexual misconduct was not specific enough for it to be determined
a “separate act” under section 667.6, subdivision (d)(1) and (2).5 Defendant maintained
that it was “unclear” whether there were “separate occasions” of sexual misconduct and
argued that defendant did not have a “reasonable opportunity to reflect” between one sex
crime and another, requesting the court to use its discretion and impose concurrent
sentences pursuant to section 667.6, subdivision (c).6 Although the People offered a
sentencing memorandum, it did not make a sentencing argument for counts 1 through 3.
At the sentencing hearing, the trial court first acknowledged that it received the
initial probation report and recommendation, the sentencing memorandums of both
5 Section 667.6, subdivision (d)(2) sets forth that “[i]n 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).)
6 Defendant erroneously sought application of section 667.6, subdivision (c). This
statute is inapplicable to defendant’s conviction for counts 1 through 3 because
section 288.7 is not an enumerated sex offense listed in section 667.6, subdivision (e).
6.
parties, and the probation report’s supplemental information regarding sentencing. The
court said that it “read and considered” the probation report’s supplemental information.
The probation report’s sentencing recommendation in both the initial report and
supplemental information as to counts 1 through 3 stated that each count was to be
imposed full and consecutive to all other counts, pursuant to section 667.6,
subdivision (d)(1), as the offenses occurred with the same victim on multiple occasions.
The trial court responded to defendant’s argument in his sentencing memorandum
regarding application of section 667.6 and whether the acts were separate enough for the
court to impose the mandatory consecutive sentencing provision under section 667.6,
subdivision (d)(1). In considering whether the sexual misconduct was separate enough
for it to be determined a “separate act” under section 667.6, subdivision (d)(1) and (2),
the court and defense counsel engaged in the following dialogue:
“[Trial Court]: Okay. [¶] [Defense counsel], in your sentencing
memorandum your argument was that … the counts weren’t adequately
described for the jury to differentiate acts; is that right?”
“[Defense Counsel]: Yes, Your Honor. It was kind of fuzzy as to
dates and times.
“[Trial Court]: Well, I reviewed the Information, and the
Information, I think, was specific enough to give notice for the jury to
figure that out, so I wanted to point that out.”
Thereafter, the trial court imposed consecutive sentences on counts 1 through 3 as
follows:
“As to Count 1, a felony violation of Section 288.7, subdivision (b),
the Court imposes 15 years to life state prison.
“As to Count 2, a felony violation of Section 288.7, subdivision (b)
… the Court imposes 15 years to life in state prison, imposed full and
consecutive to all other counts, pursuant to … Section 667.6,
subdivision (d)(1).
7.
“As to Count 3, a felony violation of [section] 288.7, subdivision (b)
… the Court imposes 15 years to life in state prison, imposed full and
consecutive to all other counts, pursuant to … Section 667.6,
subdivision (d)(1).
“The aggregate indeterminate term is 45 years to life in state prison.”
At no point did the trial court purport to exercise sentencing discretion in imposing
the sentences consecutively or indicate that it would have reached the same outcome if it
had discretion.
B. Analysis
The parties agree the trial court was not bound to impose mandatory consecutive
sentences for counts 1 through 3. Therefore, we turn to whether the court still properly
exercised its discretion in imposing consecutive terms for counts 1 through 3, despite
erroneously relying on the mandatory sentencing provision under section 667.6. (People
v. Withers (1946) 73 Cal.App.2d 58, 60 [whether sentences are to run concurrently or
consecutively is a question addressed to the judgment of the court, the exercise of which
will not be disturbed in the absence of a showing of abuse of discretion].)
Under section 669, a trial court has discretion to impose either concurrent or
consecutive sentences for multiple convictions of indeterminate terms. (§ 669, subd. (a);
People v. Leon (2016) 243 Cal.App.4th 1003, 1025; People v. Rodriguez (2005)
130 Cal.App.4th 1257, 1262.) In exercising its discretion whether to impose concurrent
or consecutive terms, a court should consider the factors set forth in rule 4.425. Facts
relating to the crime include: (1) the crimes and their objectives were predominantly
independent of each other; (2) the crimes involved separate acts of violence or threats of
violence; or (3) the crimes were committed at different times or separate places, rather
than being committed so closely in time and place as to indicate a single period of
aberrant behavior. (Rule 4.425(a)(1)–(3).) Any circumstances in aggravation or
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mitigation may also be considered except for a fact used to impose the upper term.
(Rule 4.425(b)(1).)
Defendants are entitled to “sentencing decisions made in the exercise of the
‘informed discretion’ of the sentencing court,” and a court that is unaware of its
discretionary authority cannot exercise its informed discretion. (People v. Belmontes
(1983) 34 Cal.3d 335, 348, fn. 8.) In such a circumstance, remand is required unless the
record reveals a clear indication that the court would not have reduced the sentence even
if at the time of sentencing it had the discretion to do so. (People v. Almanza (2018)
24 Cal.App.5th 1104, 1110.) Without such a clear indication of a court’s intent, remand is
required when the court is unaware of its sentencing choices. (Ibid.)
Defendant’s sentencing memorandum argued for concurrent sentences on all
counts and sought application of section 667.6, subdivision (c), which provides that a
“full, separate, and consecutive term may be imposed for each violation of an offense
specified in [section 667.6,] subdivision (e) if the crimes involve the same victim on the
same occasion.” (§ 667.6, subd. (c), italics added.) As stated above, section 667.6 is
inapplicable. However, the discussion surrounding application of section 667.6,
subdivision (c) provides guidance as to whether the court in this case exercised some
discretion, despite applying the wrong law, since the mandatory language is removed.
After noting receipt of defendant’s sentencing memorandum where defendant
argued that section 667.6, subdivision (c) should be used rather than section 667.6,
subdivision (d)(1), the court addressed defense counsel and stated, “in your sentencing
memorandum your argument … that … it was insufficient as the counts weren’t
adequately described for the jury to differentiate acts .… [¶] … [¶] … Well, I reviewed
the Information, and the Information … was specific enough to give notice for the jury to
figure that out, so I wanted to point that out.” Thereafter, the court imposed mandatory
consecutive sentences pursuant to section 667.6, subdivision (d)(1) without any further
9.
findings or statements. The court did not address subdivision (c) of section 667.6 or its
discretion.
The People argue that the trial court’s determination that the acts were “specific
enough to give notice to the jury” was adequate in indicating the court exercised
discretion since rule 4.425 sets forth a similar finding.7 However, the court’s statement
that defendant’s acts were “specific enough to give notice for the jury” does not show it
exercised discretion under rule 4.425.
The trial court did not consider section 669 or rule 4.425 on the record despite
imposing mandatory consecutive sentences pursuant to section 667.6, subdivision (d)(1).
The court also did not state additional reasons for imposition of consecutive sentences.
(Cf. People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [declining to remand where
although the court was unaware of its sentencing discretion, the court still indicated its
discretion on the record and stated that the defendant was “ ‘the kind of individual the
law was intended to keep off the street as long as possible’ ”].) Considering the court’s
comments at the sentencing hearing in response to defendant’s sentencing memorandum
and the application of section 667.6, it is unclear whether the court understood its
sentencing discretion. When the record shows that the court proceeded with sentencing
on the erroneous assumption it lacked discretion, remand is necessary so that the court
may have the opportunity to exercise its sentencing discretion at a new sentencing
hearing. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13; People
v. Brown (2007) 147 Cal.App.4th 1213, 1228.)
The People further argue the trial court exercised discretion because it adopted the
probation officer’s report and recommendations. This argument fails for at least two
7 As previously noted, rule 4.425 states that if the “crimes involved separate acts of
violence or threats of violence” or if the “crimes were committed at different times or
separate places,” consecutive sentences may be imposed. (Rule 4.425(a)(2)–(3).)
10.
reasons. First, the probation report and supplemental information regarding sentencing
relied on the same inapplicable statute—section 667.6, subdivision (d)(1)—when it
recommended sentencing defendant to mandatory consecutive sentences for counts 1
through 3. Although the initial probation report set forth “criteria affecting
concurrent/consecutive sentences [capitalization, boldface, and underlining omitted]”
under rule 4.425, this criterion was not part of the probation report’s sentencing
recommendations or supplemental information. Also, contrary to the People’s assertion,
the court never adopted the finding. Based on the record before us, there is nothing to
show that the court exercised its discretion or considered the criteria listed under
rule 4.425 when it sentenced defendant.
With respect to the aggravating factors found to be true in this case, the People
argue that the trial court properly imposed consecutive sentences on counts 1 through 3
because only one factor in aggravation is necessary to support a consecutive sentence.
(See People v. Davis (1995) 10 Cal.4th 463, 552 [only one criterion or factor in
aggravation is necessary to support a consecutive sentence].) Here, the court found true
three aggravating factors.8 However, the court used the aggravating factors to support the
upper term for count 4. Defendant correctly argues that an aggravating factor that is used
by the court to impose the upper term cannot also be used to impose consecutive
sentences. (Rule 4.425(b)(1) [any circumstances in aggravation or mitigation, whether or
not the factors have been stipulated to by the defendant or found true beyond a reasonable
doubt at trial by a jury or the judge in a court trial, may be considered in deciding
whether to impose consecutive rather than concurrent sentences, except: a fact used to
8 The aggravating factors found true in a bifurcated court trial are as follows: the
victim was particularly vulnerable as she was 10 years old, living in the house when the
crime was committed; defendant engaged in violent conduct that poses a serious danger
to society; and defendant has served a prior prison term.
11.
impose the upper term].) It is possible the court could have used a single aggravating
factor to impose the upper term and another aggravating factor to impose consecutive
sentences on counts 1 through 3. (See Davis, at p. 552; People v. Black (2007) 41 Cal.4th
799, 815 [a single aggravating factor is sufficient to permit a court to impose the upper
term].) However, the court did not state its intention to use one of the aggravating factors
for imposition of consecutive sentences. It is not clear from the record whether the court
would have imposed consecutive sentences on counts 1 through 3 had it understood its
discretion. (See People v. Superior Court (Romero), supra, 13 Cal.4th at p. 530, fn. 13
[unless the court clearly indicates that it would not have done differently even if it applied
the correct law, remand is necessary].)
Lastly, defendant asserts that while the trial court sentenced defendant to
consecutive sentences on counts 4 and 7, the imposition of consecutive sentences on
these counts do not show that the court used discretion when it imposed consecutive
sentences on counts 1 through 3. We agree. Defendant was convicted of a violation of
section 288, subdivision (b)(1) on count 4. A violation of subdivision (b) of section 288
is an enumerated sex offense under section 667.6, subdivision (e). (§ 667.6, subd. (e)(5).)
The court applied the mandatory consecutive sentence under section 667.6,
subdivision (d)(1) appropriately for count 4, to run consecutively to count 7. (See People
v. Leon, supra, 243 Cal.App.4th at p. 1025 [the court’s discretion is removed for certain
sex crimes committed under § 667.6, subd. (d)].) We cannot determine the court
exercised its discretion just because it appropriately applied a consecutive sentence for
count 4 that was subject to the mandatory sentencing provisions under section 667.6 that
counts 1 through 3 were not.
We express no opinion on how the trial court should exercise its discretion on
remand.
12.
II. Penalty Assessments on a Section 294 Restitution Fine
Defendant argues the trial court erred in imposing penalty assessments on his
section 294 restitution fine since it is considered a restitution fine not subject to penalty
assessments. The People agree, as do we.
The trial court imposed an $820 restitution fine pursuant to section 294,
subdivision (a). In imposing the fine, the court further stated:
“[The fine] includes a $200 base fine, plus penalties, assessments,
surcharges and fees, which are listed in the probation report and will be
listed on the minute order and Abstract of Judgment.”
The abstract of judgment and sentencing minute order indicate the $820 restitution
fine (§ 294, subd. (a)) consists of a $200 base fine and the following penalties,
assessments, surcharges, and fees: a $340 state and local penalty assessment (Pen. Code,
§ 1464; Gov. Code, § 76000); a $40 criminal surcharge (§ 1465.7); a $100 state court
construction penalty (Gov. Code, § 70372, subd. (a)); a $100 DNA penalty assessment
(Gov. Code, §§ 76104.6, 76104.7); and a $40 emergency medical services penalty (Gov.
Code, § 76000.5).
Upon conviction of any person for a violation of section 288.5 and other specified
offenses, the court may order the defendant to pay a restitution fine to be “deposited in
the Restitution Fund to be transferred to the county children’s trust fund for the purposes
of child abuse prevention.” (§ 294, subd. (a).) Restitution fines, collected in cases of
sexual offenses against children for purposes of child abuse prevention, are exempt from
additional penalties and surcharges. (People v. Knightbent (2010) 186 Cal.App.4th 1105,
1109–1110.)
The penalties, assessments, surcharges, and fees included in the section 294
restitution fine are unauthorized. (See, e.g., People v. Scott (1994) 9 Cal.4th 331, 354.)
Upon remand, the trial court shall not impose penalty assessments in relation to the
section 294 restitution fine.
13.
DISPOSITION
Defendant’s sentence is vacated, and the matter is remanded to the trial court for
resentencing consistent with this opinion. Upon resentencing, the trial court shall prepare
an amended abstract of judgment and forward a certified copy to the Department of
Corrections and Rehabilitation.
LEVY, Acting P. J.
WE CONCUR:
DETJEN, J.
SMITH, J.
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