People v. Franco-Alvarez CA5

Filed 2/24/23 P. v. Franco-Alvarez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082345
Plaintiff and Respondent,
(Super. Ct. No. F19907870)
v.
VICTOR MANUEL FRANCO-ALVAREZ, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y.
Hamilton, Jr., Judge.
Derek K. Kowata, under appointment by the Court of Appeal, Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kari
Mueller, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant Victor Manuel Franco-Alvarez (Alvarez) was convicted by jury of
committing a lewd act upon a child under the age of 14 (Pen. Code,1 § 288, subd. (a),
count 1), sexual penetration by force or duress on a child under the age of 14 (§ 289,
subd. (a)(1)(B), count 3), and sexual penetration by force or duress (§ 289, subd.
(a)(1)(A), count 4). He was sentenced to an aggregate term of 16 years in state prison.
Alvarez raises the following issues on appeal: (1) his conviction on count 4 for
sexual penetration by force or duress (§ 289, subd. (a)(1)(A)) must be reversed because it
is a lesser included offense of the underlying conduct supporting his conviction on count
3; (2) he is entitled to resentencing following the enactment of Assembly Bill No. 518
(2021-2022 Reg. Sess.) (Assembly Bill No. 518), which amends section 654 to remove
the requirement that the trial court impose the longest potential term of imprisonment
(Stats. 2021, ch. 441, § 1); (3) there is insufficient evidence of duress to support his
conviction on counts 3 and 4; (4) the trial court erred in failing to instruct the jury, sua
sponte, on sexual penetration of a child under section 289, subdivision (j), as a lesser
included offense of his conviction on count 3 for sexual penetration of a child under the
age of 14 (§ 289, subd. (a)(1)(B)); (5) the trial court erred by instructing the jury on
CALCRIM No. 1191B, which pertains to Alvarez’s propensity to commit sexual
offenses; (6) the trial court erred by imposing a full consecutive term on count 3 because
the sentencing scheme set forth under section 667.6 does not apply under the
circumstances; (7) there is insufficient evidence to support the trial court’s order for
blood testing for antibodies to the acquired immunodeficiency virus (AIDS); (8) the trial
court’s post-judgment no-contact order imposed under section 1202.05 must be stricken.
The Attorney General concedes that Alvarez’s first, seventh, and eight claims have
merit and that resentencing is required as a result. In light of the fact that resentencing is
1 All undefined statutory citations are to the Penal Code unless otherwise indicated.
2.
required, the Attorney General submits that Alvarez’s claim that he is entitled to
resentencing under Assembly Bill No. 518 is moot. We accept the Attorney General’s
concessions. As to all other claims raised by Alvarez, the Attorney General contends
they are meritless, and as a result, the judgment of conviction should be affirmed. We
agree.
For the reasons discussed herein, we will order the trial court’s post-judgment no-
contact order stricken (§ 1202.05). We will also vacate Alvarez’s sentence. On remand,
Alvarez shall receive a full resentencing on all counts. (People v. Valenzuela (2019) 7
Cal.5th 415, 424-425.) On remand, the prosecutor may elect to proffer additional
evidence supporting an AIDS testing order (§ 1202.1). However, absent evidence that
would support a finding of probable cause (see id., subd. (5)(A)), the AIDS testing must
be stricken. In all other respects, the judgment is affirmed.
PROCEDURAL HISTORY
On October 5, 2020, the Fresno County District Attorney filed a first amended
information charging Alvarez with committing a lewd act upon a child under the age of
14 (§ 288, subd. (a), count 1); a lewd act upon a child, who was 14 or 15 years old by a
person at least 10 years older (§ 288, subd. (c)(1), count 2); sexual penetration by force or
duress on a child under the age of 14 (§ 289, subd. (a)(1)(B), count 3); sexual penetration
by force or duress (§ 289, subd. (a)(1)(A), count 4); oral copulation of a person under 16
years of age by a person over the age of 21 years (§ 287, subd. (b)(2), count 5); forcible
rape (§ 261, subd. (a)(2), count 6); and corporal injury to child (§ 273d, subd. (a), count
7).
On November 17, 2020, a jury found Alvarez guilty on counts 1, 3, and 4. The
jury found him not guilty on counts 2 and 6 and deadlocked on counts 5 and 7. The trial
court declared a mistrial on counts 5 and 7, and then dismissed both counts following a
motion by the prosecutor.
3.
On January 27, 2021, the trial court sentenced Alvarez to a determinate term of 16
years in state prison.
Alvarez filed a timely notice of appeal.
STATEMENT OF FACTS
The Prosecution’s Case
Between the ages of 12 or 13 and 14 years old, M.F. was sexually abused by
Alvarez, her father, on multiple occasions. At trial, she testified to the incidents as she
recalled them. She was unable to recall the details of some of the incidents that had
occurred. And, with respect to the incidents she was able to describe, she could not recall
specific dates or the precise chronological order in which the incidents had occurred.
M.F. did not immediately disclose the sexual abuse to anyone. Throughout her
testimony, she described her father as being physically and verbally abusive. M.F.
testified that she was afraid of her father because he would often raise his voice and he
had hit M.F. and her brothers.
In 2018, after her parents separated and M.F. had moved out of the house with her
mother and two of her brothers, she disclosed the sexual abuse to her mother. After the
incident was reported to the police, M.F. placed a tape-recorded pretextual phone call to
Alvarez. Although Alvarez never expressly apologized for the sexual abuse, he told her
that he went to get counseling for “[e]verything I’ve done.”
M.F.’s Testimony
The First Incident
M.F. was 12 or 13 years old, when she was in seventh grade. At that time, she
shared a room with two of her brothers, L.F. and J.F. M.F. slept on her own bed, while
L.F. and J.F. slept on a bunk bed. L.F. slept on the bottom bunk and J.F. slept on the top
bunk.
One morning, at around 2:00 or 3:00 a.m., M.F. was asleep when she felt someone
touching her. She opened her eyes and recognized the figure in her room as her father,
4.
Alvarez. M.F. felt Alvarez’s hand caress her breasts over her clothing. Using two
fingers, Alvarez began touching and rubbing M.F.’s vagina under her clothing. He
touched her “clitoris area” located “inside the lips” with two fingers moving in a circular
motion. As he was touching her, Alvarez kissed M.F. on her lips. M.F. laid still and
acted like she was asleep. L.F. and J.F. were both asleep.
At some point, Alvarez stopped and left the room. M.F. did not tell anyone what
had occurred because she was afraid of her father. According to M.F., Alvarez would
raise his voice frequently and he would hit her and her brothers.
The Second Incident
On another occasion, Alvarez came into M.F.’s room at some point past midnight
and began touching her. L.F. and J.F. were asleep.
Alvarez kissed M.F. on her mouth and put his hands on or inside her pants. He
felt M.F.’s maxi pad. Alvarez said something in Spanish about M.F.’s period and left the
room. M.F. felt scared and disgusted. She told a friend that she was scared to go to sleep
at night because she did not want her father to come into her room. M.F.’s friend told her
that she did not “want to know that.” M.F. felt disgusted with herself. She did not tell
anyone else about the incident until 2018.
The Third Incident
One Saturday night, M.F.’s family had guests visiting from out of town. M.F.’s
mother and father were sleeping in M.F.’s room, while their guests slept in her parents’
room. At some point past midnight, when everyone was asleep, Alvarez began kissing
M.F. on her lips, waking her up. M.F. testified that he smelled like beer.
Alvarez tried to pick M.F. up by putting his hands under her body in a cradle hold.
Alvarez whispered something to her in Spanish, to the effect wanting to take her to the
restroom. M.F. tried to “make [her] body as heavy as [she could].” Alvarez was unable
to lift her. After a while, he gave up and went back to sleep. M.F. felt “gross.”
5.
The Fourth Incident
One summer day, M.F. was in her parents’ bedroom. She was sitting on a chair
with wheels. M.F.’s mother was massaging M.F.’s shoulders and neck because M.F. had
a headache. When her mother left the room to cook dinner, Alvarez began massaging
M.F. He kissed M.F.’s neck and shoulders and he started to touch her breasts on the
outside of her shirt.
Alvarez turned M.F.’s chair, lifted her shirt and her bra, and began sucking on her
breasts and nipples. M.F. tried to slide her chair away from him, but Alvarez would pull
her chair back closer to him. At some point, M.F. got up and left the room.
The Fifth Incident
On another occasion, during the summer, M.F. was in her parents’ bedroom, lying
down with her parents. Her stomach was hurting and she was trying to go to sleep.
Alvarez was laying down in between M.F. and M.F.’s mother. All three were
underneath a blanket. M.F. felt Alvarez’s hands on her vaginal area, over her jeans. He
stopped touching her when M.F.’s mother got up and discussed taking a shower.
Alvarez told M.F.’s mother that she should shower first, and he would shower
after her. When M.F.’s mother entered the shower in a bathroom unattached to the
bedroom, Alvarez went back to the bed and laid down next to M.F. He unbuckled her
belt and pulled her jeans and underwear down to her ankles.
M.F. was on her side and Alvarez was behind her. M.F. felt something hard in
between her butt cheeks, which she said felt like his penis. Alvarez began moving back
and forth. His stomach was touching M.F.’s lower back. Alvarez continued to do this
the entire time M.F.’s mother was in the shower, stopping only when the shower turned
off. M.F. pulled her jeans and underwear up, buckled her jeans, and left the room.
The Sixth Incident
The sixth incident M.F. recalled occurred in her bedroom, at nighttime when
everyone was asleep. M.F. testified that she had been asleep. She awoke to Alvarez
6.
removing her pajama bottoms and underwear. He tried to insert his penis into M.F.’s
vagina. M.F. explained that Alvarez had raised one of her legs up, putting it on top of his
shoulder. She felt something hard, round, and erect inside of her vagina, which “hurt[]
really bad.” In pain, she turned her body, which removed her leg from Alvarez’s
shoulder, causing Alvarez to stop.
The Seventh Incident
The seventh occurred in M.F.’s bedroom at nighttime. Alvarez stood with his
waist in front of her and then she felt what she suspected was his penis on her lips. M.F.
testified that Alvarez was attempting to insert his penis into her mouth. She kept her lips
shut to prevent him from doing so.
The Eighth Incident
M.F. recalled another incident when she was in her room, and Alvarez touched her
underneath her underwear while whispering, “[y]ou’re very beautiful” to her.
L.F.’s Testimony
When he was between the ages of nine and 12 years old, L.F. would awaken
between 2:00 a.m. and 4:00 a.m. to see Alvarez in the childrens’ shared bedroom. L.F.
observed Alvarez in the bed and underneath the blankets with M.F. on many occasions.
L.F. would pretend to be asleep during these incidents because he felt uncomfortable.
L.F. stated that Alvarez was touching M.F. inappropriately. Although he could
not see much because they were under the covers, he stated that M.F. was making sounds
“like … when people basically have sex.” L.F. added that on many occasions during the
daytime, he observed Alvarez touch M.F.’s breasts. L.F. recalled that on many
occasions, Alvarez would also joke that he was going to touch M.F.’s breasts.
On one occasion, Alvarez locked himself and M.F. inside the bathroom. M.F. told
L.F. that Alvarez was grabbing and pinching her and that he would not let her leave.
L.F. explained that he never confronted his father because he was afraid of him.
L.F. stated that Alvarez “would always just beat us up.”
7.
J.F.’s Testimony
J.F. testified that he never saw Alvarez touch M.F. inappropriately.
The Defense’s Case
Alvarez denied the accusations against him.
DISCUSSION
I. Alvarez’s Conviction on Count 4 Must be Reversed
Alvarez contends that his conviction on count 4 for forcible sexual penetration
(§ 289, subd. (a)(1)(A)) must be reversed because it is a lesser included offense of his
conviction on count 3 for forcible sexual penetration of a child under 14 (§ 289, subd.
(a)(1)(B)). The Attorney General agrees, as do we.
A. Background
The prosecutor charged count 3 and 4 in the alternative based on a single incident
where Alvarez digitally penetrated M.F.’s vagina. At trial, M.F. could not recall the
specific dates of any of the incidents of sexual abuse that she described, so it was unclear
how old she was when some of the incidents described had occurred.
During closing argument, the prosecutor told the jury that counts 3 and 4 were
based upon “the … very same conduct,” the only distinction being that count 3 applied to
children under the age of 14; whereas, count 4 had no age restriction. The underlying
forcible act of penetration supporting both counts was Alvarez’s act of inserting his
fingers into M.F.’s external genital organs, including, her clitoris and labia. Based upon
M.F.’s testimony that the incident occurred when she was in the seventh grade, when she
was likely 12 years old.
The jury returned a verdict of guilty on both counts. At sentencing, the trial court
recognized that count 4 stemmed from the same act as count 3 and stayed sentencing on
count 4 pursuant to section 654. 2 According to the court, M.F. had only testified about
2 The court did not select a term to impose on count 4. The abstract of judgment
shows that count 4 was stayed pursuant to section 654, but no term was selected. (People
8.
one act of sexual penetration which would support a conviction under section 289, and
there was substantial evidence to support a finding that M.F. was under the age of 14
when the act occurred. As such, the court selected count 3 as the principal term, and
stayed count 4.
B. Relevant Legal Principles
A defendant “cannot be convicted of both an offense and a lesser offense
necessarily included within that offense, based upon his or her commission of the
identical act.” (People v. Sanchez (2001) 24 Cal.4th 983, 987; People v. Pearson (1986)
42 Cal.3d 351, 355 [“[M]ultiple convictions may not be based on necessarily included
offenses”].)
“To determine if an offense is lesser and necessarily included in another offense
for this purpose, we apply either the elements test or the accusatory pleading test. ‘Under
the elements test, if the statutory elements of the greater offense include all of the
statutory elements of the lesser offense, the latter is necessarily included in the former.
Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading
include all of the elements of the lesser offense, the latter is necessarily included in the
former.’ ” (People v. Shockley (2013) 58 Cal.4th 400, 404.)
C. Analysis
In count 3, Alvarez was convicted of violating section 289, subdivision (a)(1)(B),
which provides the following: “Any person who commits an act of sexual penetration
upon a child who is under 14 years of age, when the act is accomplished against the
victim’s will by means of force, violence, duress, menace, or fear of immediate and
v. Duff (2010) 50 Cal.4th 787, 795-796 “when a court determines that a conviction falls
within the meaning of section 654, it is necessary to impose sentence [and] to stay the
execution of the duplicative sentence”].) The error, while not necessarily a basis for
reversal (see People v. Alford (2010) 180 Cal.App.4th 1463, 1473) is ultimately irrelevant
in light of our conclusion that Alvarez’s conviction on count 4 must be reversed.
9.
unlawful bodily injury on the victim or another person, shall be punished by
imprisonment in the state prison for 8, 10, or 12 years.”
In count 4, Alvarez was convicted of violating section 289, subdivision (a)(1)(A),
which provides the following: “Any person who commits an act of sexual penetration
when the act is accomplished against the victim’s will by means of force, violence,
duress, menace, or fear of immediate and unlawful bodily injury on the victim or another
person shall be punished by imprisonment in the state prison for three, six, or eight
years.”
Counts 3 and 4 contain identical elements with one exception: count 3 contains
the additional element of the victim being under the age of 14 years old. By definition, a
defendant cannot commit count 3 without also violating count 4. Count 4 is therefore a
lesser included offense of count 3. (People v. Lopez (1998) 19 Cal.4th 282, 288 [“[I]f a
crime cannot be committed without also necessarily committing a lesser offense, the
latter is a lesser included offense within the former”].)
“When a defendant is convicted of a greater and a lesser included offense, reversal
of the conviction for the lesser included offense is required.” (People v. Dowdell (2014)
227 Cal.App.4th 1388, 1416.) Because count 4 is a lesser included offense of count 3,
the trial court erred by staying count 4 under section 654, rather than reversing it. We
will therefore reverse Alvarez’s conviction on count 4 and remand the matter back to the
lower court for resentencing.
II. The Application of Assembly Bill No. 518
Alvarez contends that resentencing is required in light of newly enacted legislation
that retroactively applies to his nonfinal judgment of conviction. During the pendency of
this appeal, Governor Newsom signed Assembly Bill No. 518 into law. Assembly Bill
No. 518 changes existing law regarding the trial court’s discretion to stay a sentence
under section 654 (Stats. 2022, ch. 441, § 1). Here, although the trial court stayed
10.
execution of Alvarez’s sentence on count 4 pursuant to section 654, it failed to select a
term to stay the execution thereof.
Although Assembly Bill No. 518 is retroactive to nonfinal judgments of
conviction (see People v. Sek (2022) 74 Cal.App.5th 657, 673) the Attorney General
contends that we need not reach the merits of Alvarez’s claim because it is moot. We
agree.
In Part I, ante, we concluded that Alvarez’s sentence on count 4 must be reversed.
Our Supreme Court has held “that when part of a sentence is stricken on review, on
remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial
court can exercise its sentencing discretion in light of the changed circumstances.’ ”
(People v. Buycks (2018) 5 Cal.5th 857, 893.) This principle is called “the ‘full
sentencing rule.’ ” (Ibid.) Because Alvarez is entitled to a full resentencing on all
counts, the trial court will have the opportunity to consider the application of Assembly
Bill No. 518 to Alvarez’s sentence in the first instance below. We therefore do not reach
the merits of Alvarez’s claim as it is moot.
III. Substantial Evidence Supports Alvarez’s Convictions for Forcible Sexual
Penetration on Count 3 & 4
Alvarez asserts that there is insufficient evidence of duress to support his
conviction for forcible sexual penetration, which pertains to counts 3 and 4. We are not
persuaded. Following our independent review of the record, we conclude there is
substantial evidence of duress.
A. Relevant Legal Principles
In reviewing a conviction for substantial evidence, “ ‘ “we review the entire record
in the light most favorable to the judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” ’ ”
(People v. McCurdy (2014) 59 Cal.4th 1063, 1104; People v. Salazar (2016) 63 Cal.4th
11.
214, 242.) We must view the evidence in the light most favorable to the judgment below,
indulging in all presumptions and every logical inference the trier of fact could draw from
the evidence. (People v. Carter (2005) 36 Cal.4th 1114, 1156; People v. Maury (2003)
30 Cal.4th 342, 396.)
The test is whether substantial evidence supports the jury’s conclusion (People v.
Johnson (1980) 26 Cal.3d 557, 576-578), not whether the reviewing court would reach
the same conclusion. (People v. Crittenden (1994) 9 Cal.4th 83, 139.) Thus, reversal is
not warranted “unless it appears ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th
297, 331.) “ ‘The uncorroborated testimony of a single witness is sufficient to sustain a
conviction, unless the testimony is physically impossible or inherently improbable.’ ”
(People v. Panah (2005) 35 Cal.4th 395, 489; People v. Scott (1978) 21 Cal.3d 284, 296.)
If the verdict is supported by substantial evidence, the appellate court must accord
due deference to the trier of fact and not substitute their evaluations of a witness’s
credibility for that of the fact finder. (People v. Koontz (2002) 27 Cal.4th 1041, 1078;
People v. Smith (2005) 37 Cal.4th 733, 739 [“ ‘ “it is the exclusive province of the ... jury
to determine the credibility of a witness and the truth or falsity of the facts on which that
determination depends” ’ ”].) Because an appellate court must “give due deference to the
trier of fact and not retry the case ourselves,” an appellant challenging the sufficiency of
the evidence “bears an enormous burden.” (People v. Sanchez (2003) 113 Cal.App.4th
325, 330.)
B. Analysis
Alvarez was convicted of forcible sexual penetration on counts 3 and 4. “The
gravamen of the crime … is a sexual penetration accomplished against the victim’s will
by means of force, violence, duress, menace, or fear of immediate and unlawful bodily
injury.” (People v. Griffin (2004) 33 Cal.4th 1015, 1027, italics omitted.) Here, the
prosecutor told the jury that Alvarez had accomplished counts 3 and 4 by duress.
12.
The court instructed the jury that to find Alvarez guilty by duress on counts 3 and
4, it had to find beyond a reasonable doubt, “a direct or implied threat of force, violence,
danger, or retribution that would cause a reasonable person to do or submit to something
that she would not do or submit to otherwise. When deciding whether the act was
accomplished by duress, consider all the circumstances, including the woman’s age and
her relationship to the defendant.” (CALCRIM Nos. 1015, 1045.)
“The totality of the circumstances includes the victim’s age, her relationship to the
perpetrator, threats to harm the victim, physically controlling the victim when the victim
attempts to resist, warnings to the victim that revealing the molestation would result in
jeopardizing the family, and the relative physical vulnerability of the child. [Citations.]
The fact that the victim testifies the defendant did not use force or threats does not
preclude a finding of duress. [Citation] When the victim is young and is molested by her
father in the family home, duress will be present in all but the rarest cases.” (People v.
Thomas (2017) 15 Cal.App.5th 1063, 1072-1073.)
Here, the acts supporting counts 3 and 4 were based on M.F.’s testimony that
Alvarez came into her room in the middle of the night, kissed her on the mouth, and
fondled her genitalia. At the time of the incident, M.F. was 12 or 13 years old. M.F.
testified that she was too scared to say anything or to call for help because she was afraid
that her father would hurt her. She explained that Alvarez was a very angry person. M.F.
and L.F. both testified that Alvarez would often hit them and yell at them. This caused
M.F. to become fearful of her father.
M.F.’s testimony amply supports the conclusion that counts 3 and 4 were
committed by duress. M.F. was only 12 or 13 years old at the time of the incident, which
occurred inside of the family home, and the act was perpetrated by her father, whom she
feared. Based upon these facts, the jury could reasonably conclude that Alvarez’s prior
acts of violence against the children constituted an implied threat of violence if M.F.
resisted her father’s sexual advances.
13.
IV. The Trial Court Did Not Err by Failing to Instruct on Section 289,
Subdivision (j)
Alvarez asserts that the trial court had a sua sponte duty to instruct on the offense
stated in section 289, subdivision (j). According to Alvarez, section 289, subdivision (j)
is a lesser included offense of section 289, subdivision (a)(1)(B), for which he was
convicted on count 3. Because it is theoretically possible to violate section 289,
subdivision (a)(1)(B) (the alleged greater offense) without also violating section 289,
subdivision (j) (the alleged lesser included offense), the latter crime is not a lesser
included offense of the former. We therefore reject Alvarez’s assertion that the trial court
erred by failing to instruct the jury on section 289, subdivision (j) sua sponte.
A. Relevant Legal Principles
“ ‘A trial court has a sua sponte duty to “instruct on a lesser offense necessarily
included in the charged offense if there is substantial evidence the defendant is guilty
only of the lesser.” [Citation.] Substantial evidence in this context is evidence from
which a reasonable jury could conclude that the defendant committed the lesser, but not
the greater, offense. “The rule’s purpose is ... to assure, in the interest of justice, the most
accurate possible verdict encompassed by the charge and supported by the evidence.”
[Citation.] In light of this purpose, the court need instruct the jury on a lesser included
offense only “[w]hen there is substantial evidence that an element of the charged offense
is missing, but that the accused is guilty of” the lesser offense.’ ” (People v. Landry
(2016) 2 Cal.5th 52, 96, italics omitted.)
B. Analysis
Section 289, subdivision (j) provides: “Any person who participates in an act of
sexual penetration with another person who is under 14 years of age and who is more
than 10 years younger than he or she shall be punished by imprisonment in the state
prison for three, six, or eight years.” (Italics added.)
14.
In contrast, section 289, subdivision (a)(1)(B) provides: “Any person who
commits an act of sexual penetration upon a child who is under 14 years of age, when the
act is accomplished against the victim’s will by means of force, violence, duress, menace,
or fear of immediate and unlawful bodily injury on the victim or another person, shall be
punished by imprisonment in the state prison for 8, 10, or 12 years.”
It is possible to violate section 289, subdivision (a)(1)(B) without also violating
section 289, subdivision (j). The example provided by the Attorney General is apropos:
“a 21-year-old person who commits an act of sexual penetration upon a 13-year-old child
by means of force or duress would violate section 289, subdivision (a)(1)(B), but not
section 289, subdivision (j).” This is because section 289, subdivision (j) has the added
requirement that the victim must be “more than 10 years younger” than the offender. We
therefore reject Alvarez’s assertion that the trial court erred by failing to instruct the jury
on section 289, subdivision (j), sua sponte.
V. The Trial Court Did Not Reversibly Err by Instructing the Jury on
CALCRIM No. 1191B
Alvarez contends that the trial court erred by instructing the jury with a modified
version of CALCRIM No. 1191B, which instructed the jury as follows:
“The People presented evidence that the defendant committed the crimes of
Lewd Acts Upon a Child Under 14 and between 14-15 years old charged in
Counts 1 through 6.
“If the People have proved beyond a reasonable doubt that the defendant
committed one or more of these crimes, you may, but are not required to, conclude
from that evidence that the defendant was disposed or inclined to commit sexual
offenses, and based on that decision, also conclude that the defendant was likely to
commit and did commit the other sex offenses charged in this case.
According to Alvarez, the trial court’s instruction on CALCRIM No. 1191B
allowed the jury to improperly infer from the evidence supporting one charged offense
that he had the propensity to commit the other charged offenses. Alvarez acknowledges
that trial counsel did not object to the instruction below, but he contends the alleged error
15.
potentially affects his substantial rights (§ 1259). We will therefore reach the merits of
his claim regardless of forfeiture. The question is whether the alleged error resulted in a
miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818 (Watson). (People v.
Arredondo (1975) 52 Cal.App.3d 973, 978.)
Alvarez acknowledges that his argument was rejected by our Supreme Court in
People v. Villatoro (2012) 54 Cal.4th 1152, 1159 (Villatoro). He raises this issue only to
preserve it for further review.
We agree that Villatoro, which we are bound to follow, generally forecloses his
claim. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; People v.
Letner and Tobin (2010) 50 Cal.4th 99, 197 [“ ‘Courts exercising inferior jurisdiction
must accept the law declared by courts of superior jurisdiction. It is not their function to
attempt to overrule decisions of a higher court.’ ”]; People v. Meneses (2019) 41
Cal.App.5th 63, 67-68 [finding CALCRIM No. 1191B proper under Villatoro].)
In Villatoro, the defendant was charged with the commission of multiple sex
crimes against five women. (Villatoro, supra, 54 Cal.4th at p. 1156.) The trial court
instructed the jury it could conclude that Villatoro was inclined to commit the charged
sex crimes if it decided he had committed other charged sexual offenses. (Id. at pp.
1166-1167.) The instruction given, a modified version of CALCRIM No. 1191,
“permitted the jury to use evidence of [Villatoro’s] guilt of one of the charged sexual
offenses as evidence of his propensity to commit the other charged sexual offenses.”
(Villatoro, at p. 1158.) Our Supreme Court rejected Villatoro’s challenge to the
instruction. (Id. at p. 1169.)
The majority opinion acknowledged the “general concern against allowing a jury
to consider propensity evidence in a criminal case” nevertheless, the court concluded,
“the Legislature has made the careful determination that evidence the defendant
committed one or more sex offenses may be properly considered.” (Villatoro, supra, 54
Cal.4th at p. 1165.) The majority opinion further observed that the challenged instruction
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told the jury that the defendant’s prior commission of a sex offense “ ‘is not sufficient by
itself to prove the defendant is guilty’ ” of a pending charged offense. (Id. at p. 1165.)
Although not addressed by the parties, the instruction given here was similar but
not identical to the instruction in Villatoro. Unlike the instruction in Villatoro (see supra,
54 Cal.4th at p. 1167), the instruction here omitted the following language:
“If you find that the defendant committed one or more of these crimes, that
conclusion is only one factor to consider along with all the other evidence. It is
not sufficient by itself to prove that the defendant is guilty of another crime. The
People must still prove (the/each) (charge/ [and] allegation) beyond a reasonable
doubt.” (CALCRIM No. 1191B.)
Thus, the jury here was not told that Alvarez’s commission of a sex offense on a
prior occasion was “ ‘not sufficient by itself to prove [he was] guilty.’ ” (Villatoro,
supra, 54 Cal.4th at p. 1165.) While the omission of the forgoing language lends support
to Alvarez’s assertion that the instruction, as given, was problematic, we are not
persuaded that Alvarez was prejudiced. That is, Alvarez has not shown that it is
reasonably probable that he would have obtained a more favorable result had the
challenged instruction not been given. (People v. Watson, supra, 46 Cal.2d at p. 837.)
Here, as in Villatoro, the jury was instructed with CALCRIM No. 220, which
defines reasonable doubt and the presumption of innocence. (Villatoro, supra, 54 Cal.4th
at pp. 1167-1168.) This was the only burden of proof identified in the jury instructions.
Thus, there is no risk that the jury convicted Alvarez by applying a lower standard of
proof. (See, e.g., People v. Cruz (2016) 2 Cal.App.5th 1178.)
Further, the jury’s verdict supports the conclusion that the verdicts were not
bootstrapped together based upon propensity evidence (see, Villatoro, supra, 54 Cal.4th
at pp. 1169-1182 (conc. & dis. opn. of Corrigan, J.). Following deliberations, the jury
deadlocked on counts 5 and 6, which charged Alvarez with oral copulation (§ 287, subd.
(b)(2)) and rape (§ 261, subd. (b)(2)), respectively. Based on the jury’s verdicts, the jury
understood the evidence supporting each offense must support a finding of guilt beyond a
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reasonable doubt, and that propensity evidence alone would not be sufficient to support
such a finding. Consequently, we find that any error from the instruction given here was
harmless.
VI. The Trial Court Erred by Imposing a Full Consecutive Term on Count 3
The trial court sentenced Alvarez to the middle term of six years on count 1, and a
consecutive term of 10 years on count 3, which represented the full middle term of the
applicable sentencing triad. The court stated that it was imposing a consecutive full term
on count 3 based upon its discretion under section 667.6, subdivision (c).
Alvarez contends that the trial court erred by imposing a consecutive term on
count 3. According to Alvarez, a full consecutive term cannot be discretionarily imposed
on count 3 because counts 1 and 3 did not involve the same victim on the same occasion
(see, § 667.6, subd. (c)). Further, because Alvarez was only convicted of one crime
under subdivision (e) of section 667.6 (see, id. subd. (d)), he was not subject to the full
mandatory consecutive term provision set forth in subdivisions (c) and (d). The Attorney
General agrees.
We agree that the trial court erred by imposing a consecutive full-term sentence of
10 years on count 3. Although this issue is technically rendered moot in light of our
conclusion in Part I, ante, finding that resentencing is required, we address Alvarez’s
claim to avoid the possibility that the error will occur again at the resentencing hearing.
A. Background
The jury found Alvarez guilty on count 1 (§ 288, subd. (a)), count 3 (§ 289, subd.
(a)(1)(B)), and count 4 (§ 289, subd. (a)(1)(A)). Alvarez was sentenced to an aggregate
determinate term of 16 years in state prison, consisting of the middle term of six years on
count 1 (§ 288, subd. (a)), plus a full consecutive middle term of 10 years on count 3
(§ 289, subd. (a)(1)(B)).
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The court stated it was selecting the six-year term on count 1 as the principal term
and imposing a full consecutive term on count 3 “pursuant to [section] 667.6.” Count 4
was stayed pursuant to section 654, although a term was not selected on this count.
B. Relevant Legal Principles
Section 667.6 is a more severe consecutive sentencing alternative to the section
1170.1 scheme set forth for multiple felony convictions. (People v. Jones (1988) 46
Cal.3d 585, 592.) Section 667.6, subdivision (c), relates to discretionary consecutive
sentencing of convictions for certain enumerated sex offenses, whereas subdivision (d)
relates to mandatory consecutive sentencing for such crimes. These sections provide the
following, in relevant part:
“(c) In lieu of the term provided in Section 1170.1, a full, separate, and
consecutive term may be imposed for each violation of an offense specified in
subdivision (e) if the crimes involve the same victim on the same occasion. A
term may be imposed consecutively pursuant to this subdivision if a person is
convicted of at least one offense specified in subdivision (e). If the term is
imposed consecutively pursuant to this subdivision, it shall be served
consecutively to any other term of imprisonment, and shall commence from the
time the person otherwise would have been released from imprisonment. The
term shall not be included in any determination pursuant to Section 1170.1. Any
other term imposed subsequent to that term shall not be merged therein but shall
commence at the time the person otherwise would have been released from prison.
“(d)(1) A full, separate, and consecutive term shall be imposed for each violation
of an offense specified in subdivision (e) if the crimes involve separate victims or
involve the same victim on separate occasions.
“[¶…¶]
“(2) The term shall be served consecutively to any other term of imprisonment
and shall commence from the time the person otherwise would have been released
from imprisonment. The term shall not be included in any determination pursuant
to Section 1170.1. Any other term imposed subsequent to that term shall not be
merged therein but shall commence at the time the person otherwise would have
been released from prison.” (§ 667.6, subds. (c)(1),(2), (d).)
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Subdivision (c) of section 667.6 vests the trial court with discretion to impose a
full consecutive term for each conviction of an offense set forth in subdivision (e) of
section 667.61 “if the crimes involve the same victim on the same occasion.” (§ 667.6,
subd. (c), emphasis added.)
By contrast, under subdivision (d)(1) of section 667.6, a full consecutive term
must be imposed for each conviction of an offense enumerated under subdivision (e) of
section 667.61, “if the crimes involve separate victims or involve the same victim on
separate occasions.” (§ 667.61, subd. (d)(1).) Section 667.6, subdivision (d)(1), “applies
only when a defendant stands convicted of more than one offense specified in subdivision
(e).” (People v. Goodliffe (2009) 177 Cal.App.4th 723, 727, fn. 10; People v. Jones,
supra, 46 Cal.3d at p. 594, fn. 5.)
C. Analysis
Here, the trial court did not have discretion to impose a full consecutive term on
count 3 (§ 667.6, subd. (c)) because the underlying conduct supporting counts 1 and 3
occurred on separate occasions. Count 3 was based upon Alvarez’s act of kissing M.F.
and fondling her genitalia. Count 4 could be based upon several other acts occurring on
separate occasions, including: Alvarez’s act of touching M.F.’s vagina over her clothes,
when Alvarez kissed and sucked on M.F.’s breasts and nipples, or when he inserted his
penis in between her butt cheeks. The discretionary full consecutive term in subdivision
(c) only applies where the defendant “is convicted of at least one offense specified in
subdivision (e),” and the defendant’s “crimes involve the same victim on the same
occasion.” (Italics added.)
Further, Alvarez was convicted of only one offense specified in subdivision (e) of
section 667.6: forcible sexual penetration. (See, § 667.6, subd. (e)(5).) His conviction
on count 1 for committing a lewd or lascivious act with a child under the age of 14
(§ 288, subd. (c)(1)) is not an offense specified in subdivision (e) of section 667.6.
Alvarez was therefore not subject to the mandatory full consecutive term provision in
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subdivision (d) of section 667.61. (People v. Goodliffe, supra, 177 Cal.App.4th at p.
727, fn. 10 [“[the] mandatory sentencing scheme applies only when a defendant stands
convicted of more than one offense specified in subdivision (e)”].) We therefore agree
with the parties’ assertion that the trial court erred by imposing a consecutive full term on
count 3. Because this matter must already be remanded back to the lower court for a full
resentencing, we simply observe this error to avoid its repetition.
VII. The Trial Court’s Order Requiring Testing for AIDS Antibodies
Alvarez contends that remand is required so that the lower court can determine
whether there is probable cause to require Alvarez to submit to an AIDS antibody test.
We agree that there is insufficient evidence to support the trial court’s order, and will
therefore remand the matter back to the lower court for a probable cause hearing, at the
election of the prosecutor.
A. Background
The jury convicted Alvarez of violating section 289, subdivision (a)(1)(A), and
section 289, subdivision (a)(1)(B). At sentencing, the trial court ordered Alvarez to
submit to a blood test for AIDS blood testing under section 1202.1. Trial counsel did not
object to the trial court’s order, nor was there an explicit finding of probable cause by the
trial court preceding the order.
B. Section 1202.1
Generally, a person may not be compelled to submit to a test for the presence of
AIDS antibodies. (See Health & Saf. Code, § 120975.) However, a defendant convicted
of a specified sexual offense must “submit to a blood or oral mucosal transudate saliva
test for evidence of antibodies to the probable causative agent of acquired
immunodeficiency syndrome (AIDS) within 180 days of the date of conviction.”
(§ 1202.1, subd. (a).)
Section 1202.1 mandates testing for specific sex offenses which are not relevant
here. AIDS testing may also be ordered “if the court finds that there is probable cause to
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believe that blood, semen, or any other bodily fluid capable of transmitting HIV has been
transferred from the defendant to the victim,” and where the defendant has committed
one of the following offenses:
“(i) Sexual penetration in violation of Section 264.1, 266c, or 289.
“(ii) Aggravated sexual assault of a child in violation of Section 269.
“(iii) Lewd or lascivious conduct with a child in violation of Section 288.
“(iv) Continuous sexual abuse of a child in violation of Section 288.5.
“(v) The attempt to commit any offense described in clauses (i) to (iv), inclusive.”
(§ 1202.1, subd. (e)(5)(A).)
In the absence of an objection in the lower court, a defendant forfeits the right to
challenge the trial court’s failure to make statutorily-required factual findings supporting
an AIDS test order pursuant to section 1202.1, subdivision (e)(5). (People v. Stowell
(2003) 31 Cal.4th 1107, 1117.) However, the defendant may challenge the trial court’s
testing order on the ground of insufficiency of the evidence to support a finding of
probable cause. (People v. Butler (2003) 31 Cal.4th 1119, 1123.)
“Probable cause is an objective legal standard—in this case, whether the facts
known would lead a person of ordinary care and prudence to entertain an honest and
strong belief that blood, semen, or any other bodily fluid capable of transmitting HIV has
been transferred from the defendant to the victim.” (People v. Butler, supra, 31 Cal.4th
at p. 1127.) If a trial court orders AIDS testing without articulating its required reasons
on the record, an appellate court will presume an implied finding of probable cause, but
“the appellate court can sustain the order only if it finds evidentiary support, which it can
do simply from examining the record.” (Ibid.)
An appellate court reviews the evidence de novo to determine whether the record
reveals probable cause sufficient to support the testing order. (People v. Butler, supra, 31
Cal.4th at p. 1127.) If probable cause is lacking based on the appellate record, the
appropriate remedy is to remand the matter for further proceedings to provide the
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prosecution with the opportunity to present additional evidence that may establish the
necessary probable cause. (Id. at p. 1129.)
C. Analysis
Alvarez was convicted of committing a lewd or lascivious act on a child under the
age of 14 (§ 288, subd. (a)), and forcible sexual penetration (§ 289, subd. (a)). Section
1202.1 requires HIV antibodies testing for convictions under sections 288 and 289 where
“the court finds that there is probable cause to believe that blood, semen, or any other
bodily fluid capable of transmitting HIV has been transferred from the defendant to the
victim.” (§ 1202.1, subd. (e)(5).) The trial court did not make an explicit determination
of probable cause, and Alvarez did not object below, which would have required the trial
court to articulate explicit factual findings in support of its order. We conclude that the
record does not contain sufficient evidence supporting the trial court’s implied finding of
probable cause.
M.F. recounted multiple acts of sexual abuse perpetrated by her father, any one of
which would have supported Alvarez’s conviction on count 1. In her closing argument,
the prosecutor discussed the following acts: (1) Alvarez’s act of kissing M.F. and
touching her vagina over her clothes; (2) Alvarez kissing her breasts and nipples while
she was sitting in a rolling chair; (3) Alvarez’s act of inserting his penis into her butt
cheeks, but not into her anus; and (4) other occasions where Alvarez would kiss her,
touch her breasts, or fondle her vagina. The act relied upon by the prosecutor to support
both counts 3 and 4 was Alvarez’s act of kissing M.F., and fondling her clitoris and
labia.3
The record does not support the conclusion that bodily fluid capable of
transmitting the HIV virus was transferred during any of these offenses. Thus, a
3 Counts 3 and 4 were charged in the alternative. The only distinction between the
two counts depended upon the jury’s finding of how old M.A. was at the time of the
offense.
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reasonable person would not “entertain an honest and strong belief that blood, semen, or
any other bodily fluid capable of transmitting HIV ha[d] been transferred from the
defendant to the victim.” (Butler, supra, 31 Cal.4th at p. 1127.)
The Attorney General contends that there is evidence supporting the conclusion
that Alvarez kissed M.F. on the lips. He directs this court to Johnetta J. v. Municipal
Court (1990) 218 Cal.App.3d 1255 (Johnetta J.) for the proposition that saliva is capable
of transmitting HIV. We find Johnetta J. factually distinguishable from the instant case.
In Johnetta J., the petitioner sought a writ of prohibition against the enforcement
of an order that she submit to a blood test after she bit a sheriff’s deputy. The blood test
was authorized by Health and Safety Code section 199.95 et seq. (Johnetta J., supra, 218
Cal.App.3d at p. 1261.) Under the statute, HIV testing is authorized where a person was
charged by criminal complaint with having “interfered with the official duties of a peace
officer ... by biting ... or transferring blood or other bodily fluids on, upon, or through the
skin or membranes of a peace officer [¶] ... [¶] ... [and] the court finds that probable cause
exists to believe that a possible transfer of blood, saliva, semen, or other bodily fluid took
place between the defendant ... and the peace officer.” (Former Health & Saf. Code,
§ 199.97.)
Former Health and Safety Code section 199.97 did not explicitly require a finding
of “good cause” to believe that the bodily fluid at issue, saliva, was capable of
transmitting HIV. The statute only required a finding that there had been a possible
transfer of bodily fluid. Johnetta J. does not stand for the proposition that the trial court
may order AIDS testing under section 1202.1 upon the mere showing that there is
probable cause to believe that saliva was transferred from the defendant to the victim.
The National Center for Disease Control and Prevention (CDC) has found “[n]o
documented cases of HIV being transmitted through spitting as HIV is not transmitted
through saliva.” (https://search.cdc.gov/search/?query=HIV%20transmission&dpage=1
[as of Feb. 24, 2023].) The CDC’s website further provides that, “[t]he small number of
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documented cases have involved severe trauma with extensive tissue damage and the
presence of blood.” (Ibid.) And, while touching can transmit HIV, “[t]he only possible
risk would be if bodily fluids from a person with HIV touch the mucous membranes or
damaged tissue of someone without HIV.” (Ibid.) Here, the existing record does not
support the conclusion that Alvarez’s bodily fluids came into contact with M.F.; much
less her mucous membranes or any damaged tissue she may have had. There simply was
no testimony about any bodily fluids Alvarez may have expelled.
Following our review of the record, we are unable to conclude that substantial
evidence supports the trial court’s implied finding of probable cause. We will therefore
remand this matter to give the prosecution the opportunity to present additional evidence
on this issue, should the prosecutor elect to do so. (See People v. Butler, supra, 31
Cal.4th at p. 1127 [it is improper to simply strike an HIV order under the statute “without
remanding for further proceedings to determine whether the prosecution has additional
evidence that may establish the requisite probable cause”].) If the prosecutor declines to
do so, the trial court must strike the order.
VIII. The Section 1202.05 No-Contact Order Must be Stricken
At sentencing, the court ordered that “[i]n compliance with Penal Code section
1202.05, the defendant is to have no visitation with the victim or the victim’s family
members unless further ordered otherwise by the Court.” The prosecutor requested that
the no-visitation order be amended to a “no contact” order based upon the fact that
Alvarez would be incarcerated until sometime after the expiration of the criminal
protective order.
Alvarez contends, and the Attorney General concedes, that the no-contact order
must be stricken. We agree as well.
While section 136.2, subdivision (i) vests the court with discretion to issue a post-
judgment protective order, the order here was explicitly issued under section 1202.05.
Because M.F. was over the age of 18 at the time of sentencing, the restrictions on
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visitation under section 1202.05 do not apply to her. (People v. Scott (2012) 203
Cal.App.4th 1303, 1323 [“Nothing in the legislative history suggests any intention or
expectation that [section 1202.05] would affect visitation between adult victims and their
childhood abusers”].) We will therefore strike the trial court’s no-contact order. At
resentencing, the prosecutor may ask the trial court to consider whether a post-judgment
protective order is warranted under another statute, and if so, for what duration.
DISPOSITION
Alvarez’s conviction on count 3 is reversed. The trial court’s no-contact order
imposed under section 1202.05 is stricken. Alvarez’s sentence is vacated. The matter is
remanded back to the trial court for a full resentencing on all counts. Should the
prosecutor elect to proffer additional evidence concerning the need for an AIDS testing
order, the trial court must conduct a hearing in accordance with section 1202.1,
subdivision (e)(5)(a). Otherwise, the trial court’s testing order must be stricken. In all
other respects, the judgment of conviction is affirmed.
SMITH, J.
WE CONCUR:
FRANSON, Acting P. J.
PEÑA, J.
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