People v. West CA5

Filed 12/11/20 P. v. West 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F077999
Plaintiff and Respondent,
(Super. Ct. No. F15904838)
v.
KENNETH JAMES WEST, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. F. Brian
Alvarez, Judge.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H.
Smith, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant Kenneth James West repeatedly committed lewd acts against three boys
from his large group of extended family and friends over the course of approximately 20
years.
A jury found defendant guilty of two counts of committing a lewd act against R.1
while R. was under the age of 14 (Pen. Code, § 288, subd. (a);2 counts 1-2); six counts of
committing a lewd act against T. while T. was under the age of 14 (§ 288, subd. (a);
counts 4-9); three counts of committing a lewd act against C. while C. was under the age
of 14 (§ 288, subd. (a); counts 10-12); and two counts of committing a lewd act against
C. while C. was 14 or 15 years of age and defendant was at least 10 years older than him
(§ 288, subd. (c)(1); counts 15-16).3 As to counts 1, 2, and 4 through 12, the jury found
defendant committed the offenses against multiple victims. (Former § 667.61, subd. (e).)
The court imposed sentences of 15 years to life on each of counts 1, 2, and 4
through 12, to be served consecutively, and concurrent terms of one year each on counts
15 and 16. Defendant was sentenced to an aggregate term of 165 years to life.
On appeal, defendant contends his sentences of 15 years to life on counts 1 and 2,
imposed pursuant to the “One Strike Law,” violate the ex post facto clauses of the United
States and California Constitutions because there was some evidence to suggest the
offenses may have been committed in the five months before the One Strike Law went
into effect. He also contends the trial court failed to recognize it had discretion to impose
1 Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their
first names or initials. No disrespect is intended.
2 Subsequent statutory references are to the Penal Code.
3 As to counts 1, 2, and 4 through 9, the jury found an exception to the statute of
limitations. (§ 803, subd. (f).)
The charges in counts 3, 13 and 14 were dismissed on motion by the People.
2.
concurrent sentences on count 2 and counts 4 through 12, and thus the matter must be
remanded to permit the court to exercise its informed discretion.
We find the evidence establishes the offenses alleged in counts 1 and 2 occurred
after the effective date of the One Strike Law. We accordingly find no ex post facto
violation. We further find that the court understood its discretionary sentencing authority
and, even if it did not, its sentencing findings clearly indicate it would not have imposed
concurrent sentences on count 2 or counts 4 through 12. Accordingly, we affirm.
FACTS
Around the mid- to late-1990’s, defendant lived off-and-on in a house in Squaw
Valley with two brothers, Darrell and George. Sometime between 1994 and 1996,
defendant’s girlfriend Gina moved into the house with her three children, including R. In
approximately 1997, Darrell’s girlfriend Ethel moved into the house with her two
children, Melissa and T.4 Soon thereafter, Gina and her children moved out and left the
area, and defendant began dating, and eventually married, Ethel’s sister Charlene. The
families later moved into separate households but regularly spent time together. In 1999,
Melissa’s son C. was born.
On March 14 or 15, 2015, the families held a gathering at Ethel’s house. While
there, T. noticed that defendant and C. were absent for approximately 30 minutes. T.
eventually saw defendant and C. walking up to the house from a camper parked at the
end of the property’s long driveway. Because T. himself had been sexually abused by
defendant under similar circumstances, he grew suspicious that defendant also was
abusing C. A few days later, T. revealed his own history of abuse to his mother and his
sister Melissa, although he did not disclose any details. Melissa then confronted her son
C., who also acknowledged being abused by defendant, again without disclosing any
4 Darrell and Ethel eventually married and had another child. They remained
married at the time of trial.
3.
details. Family members eventually contacted Gina, who confronted R. R.
acknowledged he too was abused, but did not disclose details to Gina.
Each of the victims testified that, prior to these revelations, they had not discussed
the abuse with anyone, and they only provided details of the encounters to sheriff’s
deputies and in their trial testimony.
I. R.’s Testimony
When R. was around eight years old,5 his mother began dating defendant. At that
time, R.’s father was in prison, and R. had not seen his father for six or seven years.
Defendant took R. fishing, shooting, and camping. One day, while defendant and R.
were together in defendant’s vehicle, defendant offered to pay R. $100 if R. would take
off his clothes and run through an orchard. R. thought this was a joke and did not do it.
R. and his mother and sisters eventually moved into the house defendant shared
with Darrell and George in Squaw Valley. On one occasion thereafter, defendant and R.
went on a hike. When they stopped on the trail and sat down, defendant asked R. if he
knew how to masturbate and whether he could ejaculate. R. explained that “it was
worded . . . kind of like . . . that’s what dads showed their boys was how to pleasure
themselves.” Defendant touched R.’s penis and said, “This is how you do it.” Defendant
eventually stopped and told R., “What goes on between us, you know, you can’t tell your
mom or anybody.” The incident lasted 10 to 15 minutes.
Another incident occurred one to two weeks later. By that time, defendant and
R.’s family had moved together to another home in Squaw Valley. R. and defendant
were home by themselves when defendant came into R.’s room wearing only a shirt and
underwear and told R. he wanted to show him “how to do some more stuff.” Defendant
sat down on R.’s bed and started touching R. under his clothes, and had R. touch him
5 R. was born in June of 1986. He was 31 years old at the time of trial.
4.
under his clothes. Defendant then orally copulated R. and had R. orally copulate him.
Eventually, defendant stopped and told R. not to tell.
R. testified generally that at least 10 additional incidents of masturbation or oral
copulation occurred over the course of one to two years. In one incident, defendant took
R. and his older cousin fishing and, on the trip, masturbated the boys and had them
masturbate themselves. Incidents involving R.’s cousin occurred on two or three
occasions. Defendant also smoked marijuana with R. on one occasion and regularly gave
R. beer at times when sexual incidents occurred.
Eventually, defendant and R.’s mother split up and R. and his family moved out of
California.
II. T.’s Testimony
T. was nine years old when his parents divorced and he, his mother Ethel, and his
sister Melissa moved in with Darrell in Squaw Valley.6 Also living in the home were
Darrell’s brother George, defendant, defendant’s girlfriend Gina, and Gina’s children,
including R. Eventually, however, George moved out, as did Gina and her children.
Defendant began dating T.’s aunt Charlene, who also moved into the house.
When T. and his family first moved in with Darrell, T. did not know Darrell and
his mother were dating. When T. found out about the relationship, he was upset and
defendant talked T. into going for a walk to calm down. Defendant then said something
that made T. uncomfortable and touched T.’s thigh. On that occasion, nothing further
occurred. Thereafter, T.’s relationship with Darrell was “a little closed off” and T. had
animosity toward Darrell for being with his mother.7 T. had a relationship with his father
but did not see him often. Defendant would regularly intervene when something was
6 T. was born in May of 1988. He was 30 years old at the time of trial.
7 By the time of trial, however, T. acknowledged that Darrell was good to him and
was a good guy.
5.
bothering T. and would suggest they take a walk. Often, this behavior was encouraged
by other adults in the household.
As defendant continued to take T. on outings, the touching progressed. On the
next two to three outings, defendant touched only T.’s thigh. On the third or fourth
encounter, defendant touched T.’s penis over his clothes and asked whether he liked it.
In future encounters, defendant touched T. under his clothes. On approximately five to
10 subsequent occasions, defendant only touched T.’s penis with his hand. Defendant
would masturbate T. until he ejaculated. Eventually, defendant asked T. to masturbate
him. This occurred on 50 to 75 separate occasions. Later, when T. was 10 years old,
defendant orally copulated him, and eventually had T. orally copulate defendant as well.
During the period that T. lived with defendant, the sexual acts described by T.
occurred a few times each week amounting to hundreds of times. T. testified in specific
detail regarding incidents on a trail behind the home and behind a rock on that trail,
incidents in defendant’s bedroom and bathroom, and an incident that occurred while
pulled over on the roadway.
T. and his family moved out of the house when T. was 12 or 13 years old. T.
testified that the sexual touching continued to occur thereafter. He testified in specific
detail to an incident of masturbation and oral copulation that occurred when defendant
visited the family’s new home and took T. out to ride three-wheelers on a mountain
behind the house. Approximately 100 to 200 incidents occurred on the mountain.
The sexual touching stopped when T. was 14 years old and defendant moved to
Nevada. T. visited defendant after the move, but refused to engage in further sexual acts.
Defendant returned to Squaw Valley when T. was almost 18 years old but no further
sexual touching occurred. T. and defendant pretended that nothing had ever happened
and their relationship thereafter was “[p]retty normal.”
6.
Around 2015, T. began to suspect defendant was sexually touching his nephew C.
He noticed on a few occasions when family was gathered that C. and defendant could not
be found. The third time this occurred was on March 14 or 15, 2015, when the family
was gathered at T.’s mother’s house in Squaw Valley. On that occasion, defendant and
C. were missing for approximately 30 minutes and people began calling out for them. T.
saw C. and defendant returning from a camper trailer at the end of the driveway. T. was
upset and drank until he passed out. He felt he needed to reveal what defendant had done
to him so it would not continue.
A few days later, T. drove to his mother’s house, where his family was gathered.
T. asked his mother and sister Melissa to go with him for a drive, and told them in
general terms what had occurred between himself and defendant. Melissa immediately
began “flipping out” about C. When they returned to the house, Melissa immediately left
with C. Later, Melissa called T. and confirmed in general terms that C. also had been
abused by defendant. T. did not discuss any details of the abuse with C.
III. C.’s Testimony
C. had known defendant all his life.8 Defendant would take C. to ride “quads” and
they built things, such as a doghouse, together. C. was close with defendant.9
C. estimated that defendant touched him sexually around 30 times, from the time
C. was eight years old until he was 14 to 16 years old. C. testified in specific detail
regarding several incidents, including an incident of oral copulation and masturbation that
occurred when C. was eight years old and was out riding quads with defendant, an
incident of masturbation that occurred when C. and defendant were riding quads at C.’s
grandmother Ethel’s house, an incident of oral copulation and masturbation that occurred
8 C. was born in June of 1999. He was 18 years old at the time of trial.
9 C.’s father left when C. was 18 months old and C. thereafter only saw his father
three times, the last time being when he was seven years old.
7.
in a camper trailer at Ethel’s house, an incident of masturbation in a tool shed at
defendant’s house, and an incident of masturbation and oral copulation that occurred
when C. was staying with defendant for a summer. C. testified that multiple incidents
occurred while out riding quads and while in the tool shed at defendant’s house. The
touching stopped when C. was 14 or 15 and told defendant he did not like the touching.
IV. Defendant’s Admission to His Brother-in-Law
One day in 2015, Ethel called her brother James hysterical and crying and told him
that defendant had molested T. and C.10 James told Ethel to call their sister Charlene,
who was also defendant’s wife, to tell her what was going on. Charlene then called
James and stated that Ethel had reported defendant to the police. Charlene stated, “I can’t
believe it,” and “my life’s ruined.” James met Charlene in a neighborhood near her
house, and she told him that defendant had denied everything. However, while they were
talking, Charlene received a phone call from defendant and told James, “He said he did it.
He said he did it.”
Moments later, defendant called again and James answered. Defendant told James
“I molested them boys. I’m sick and I need help.” Defendant also told James “I’ve been
doing it for a long time. I’m sick and I need help.” James told defendant to turn himself
in.
Later that night, defendant texted Charlene and told her he was “getting out of
there” because the “cops were coming.” James spoke with defendant and told him he
needed to come back. A couple of hours later, James and Charlene met defendant in a
nearby park. Defendant said he was sick and needed help. Defendant asked how much
time James thought defendant would get. After this conversation, Charlene told James
she was going to leave defendant but needed to go home to retrieve her belongings.
10 These facts were presented through James’s testimony. James also testified that
he suffered a prior conviction for attempted murder and served four years in state prison.
8.
Later, she texted James to tell him she was going to stay with defendant to get him help.
James did not talk to defendant or Charlene again after that day.
V. Expert Testimony
An expert on Child Sexual Abuse Accommodation Syndrome testified that
children who have been sexually abused may keep the abuse a secret and may delay
reporting.
VI. Defense Case
Three of defendant’s neighbors testified that they knew defendant to be honest and
truthful.
Defendant testified on his own behalf. He testified that when Charlene called him
in March 2015 and told him of the accusations, he drove home and saw her driving away.
He then drove to Reno to try to speak with one of Charlene’s sisters, but she was not
home. He spent the night in his car. He spoke with his wife again the next day, then
returned home and found her there. He denied having any contact with James, by
telephone or in person, in relation to the allegations of molestation in this case. He
denied meeting with James in a park.
Defendant acknowledged that he took C. and other children to ride on quads in
Squaw Valley. He denied having any sexual contact, including physical touching or oral
copulation, with R., T., or C.
Defendant testified that he had an altercation with Melissa on March 14, 2015.
DISCUSSION
I. Ex Post Facto Challenge
Defendant contends his sentences of 15 years to life on counts 1 and 2, imposed
pursuant to section 667.61 (the One Strike Law) violate the ex post facto clauses of the
United States and California Constitutions because there was some evidence that could
indicate the offenses occurred in the five months before the One Strike Law became
effective. We conclude the evidence establishes beyond a reasonable doubt that the
9.
offenses alleged in counts 1 and 2 occurred after the effective date of section 667.61, and
so find no ex post facto violation.11
A. Applicable Law
“Both the California and United States Constitutions proscribe ex post facto laws.
(U.S. Const., art. I, § 10; Cal. Const., art. I, § 9.)” (People v. Alvarez (2002) 100
Cal.App.4th 1170, 1178 (Alvarez).) “A statute violates the prohibition against ex post
facto laws if it punishes as a crime an act that was innocent when done or increases the
punishment for a crime after it is committed.” (People v. White (2017) 2 Cal.5th 349,
360; accord, Collins v. Youngblood (1990) 497 U.S. 37, 41-42.)
Section 667.61 became effective on November 30, 1994 (Alvarez, supra, 100
Cal.App.4th at p. 1178) and, at the time relevant here, mandated a sentence of 15 years to
life for violations of section 288, subdivision (a), where the defendant was convicted of
committing such offenses against more than one victim. (Former § 667.61, subds. (b),
(c)(7), (e)(5); see Stats. 1993-1994, 1st Ex. Sess., ch.14, § 1.) “The sentences prescribed
by section 667.61 greatly exceed the determinate sentences previously available for
violations of section 288.” (People v. Hiscox (2006) 136 Cal.App.4th 253, 257 (Hiscox).)
Thus, application of section 667.61 to offenses committed before November 30, 1994,
violates the ex post facto clauses of both the California and United States Constitutions.
(Hiscox, at p. 257; Alvarez, at p. 1178.)
To avoid an ex post facto violation, the People must prove to the jury that the
defendant committed the offenses on or after November 30, 1994, the effective date of
section 667.61. (Hiscox, supra, 136 Cal.App.4th at p. 260.) Where the jury is not asked
“to make findings on the time frame within which the offenses were committed, the
11 The statute has since been amended to require a sentence of 25-years-to-life under
such circumstances. (§ 667.61, subd. (j)(2); Stats. 2010, ch. 219, § 16.)
When we refer to section 667.61, we are referring to the pre-amendment version.
10.
verdicts cannot be deemed sufficient to establish the date of the offenses unless the
evidence leaves no reasonable doubt that the underlying charges pertained to events
occurring on or after November 30, 1994.” (Id. at p. 261.) A reviewing court may not
“infer that certain acts probably occurred after that date,” or “hypothesize . . . what dates
might be attached to certain acts based on ambiguous evidence.” (Ibid.)
B. Analysis
R. was born on June 29, 1986. He therefore turned eight years old on June 29,
1994, approximately five months prior to the effective date of section 667.61. He
testified that defendant first touched him sexually when he was “[a]bout nine years old.
Eight, nine years old.” The second incident occurred a week or two later. This
testimony, standing alone, would leave some doubt as to whether the offenses could have
been committed prior to November 30, 1994. However, this is not the only evidence
regarding the timing of the incidents.
R. also testified that his mother and defendant were in a relationship for two or
three years beginning when R. was “around eight” years old.12 He explained he was
eight or nine when he met defendant at a wedding reception, at which point his mother
12 Defendant repeatedly refers to R.’s estimation that his mother and defendant dated
for two to three years, ending when R. was 10, to argue the abuse may have begun when
R. was seven. R. clearly testified that defendant and his mother began dating when he
was eight years old, and his testimony does not permit an inference that the dating
relationship or the abuse occurred when R. was seven years old:
“Q How long were they a couple?
“A About two, three years.
“Q Okay. So, beginning when you were around eight?
“A Yeah.
“Q Or seven, what would you say?
“A I’d say around eight, I think. About that time.” (Boldface omitted.)
11.
and defendant were beginning to date. They started officially dating shortly thereafter,
and R. and his family moved in with defendant approximately three to four months later.
“[A] little bit before” the family moved into defendant’s house, when R. was “[p]robably
about eight, nine years old,” defendant offered R. $100 to run naked through an orchard.
The first incident of abuse occurred four to five months later, while R. and his family
were living with defendant, and while R. was “[a]bout nine years old. Eight, nine years
old.” The second incident occurred one to two weeks later. R. and his family moved out
of defendant’s home when R. was nine or 10 years old.
Even if defendant and R.’s mother began dating on R.’s eighth birthday, the
testimony set forth above would not permit an inference that the abuse occurred before
November 30, 1994. R. and his family moved in with defendant three to four months
after his mother and defendant began dating. The earliest date this could have occurred is
September 29, 1994, three months after R.’s eighth birthday. The first incident of abuse
occurred four to five months after the incident in which defendant offered R. money to
run naked through a field. That incident occurred “a little before” the family moved into
the house, making the earliest date of abuse sometime around January 1995, well after the
November 30, 1994, effective date of section 667.61.
Other evidence confirms the abuse could not have occurred prior to November 30,
1994. Defendant testified that R. lived with him from 1996 into 1997, and indeed that he
himself did not live in that house until 1996 or 1997. Defendant also testified that R. was
nine years old at the time they lived together. Defendant’s own testimony therefore
establishes that the abuse alleged in counts 1 and 2 could not have occurred prior to
November 30, 1994. The testimony does not permit any plausible contrary inference.
Finally, we note that count 1 was alleged to have been committed between
January 1, 1995, and December 31, 1996. Count 2 was alleged to have been committed
between January 1, 1995, and June 28, 1996. The verdict forms likewise asked the jury
to determine defendant’s guilt based on these dates, and the prosecutor argued the
12.
offenses against R. occurred “as early as 1995.” We recognize these facts are not
dispositive in light of the jury instruction advising the jury the People were not required
to prove the crimes took place within that time frame. Nonetheless, the charges and the
verdict forms, along with the state of the evidence, distinguish this case from others in
which the Courts of Appeal have been unable to determine beyond a reasonable doubt
that particular acts alleged by the People were committed after the effective date of
section 667.61. (People v. Riskin (2006) 143 Cal.App.4th 234, 244-245 [finding ex post
facto violation where the offense was alleged to have occurred between June 15, 1994,
and June 14, 1998, and the victim’s testimony was inconsistent as to her age at the time
the offense was committed]; Hiscox, supra, 136 Cal.App.4th at pp. 260-262 [finding ex
post facto violation where the offenses were alleged to have been committed from 1992
through 1996 and the “generic” witness testimony did not establish the dates the abuse
may have occurred].)
Here, the evidence leaves no reasonable doubt the offenses were committed after
section 667.61 became effective. (Hiscox, supra, 136 Cal.App.4th at p. 261.)
Accordingly, we find no ex post facto violation.
II. Imposition of Consecutive Life Sentences
Defendant contends the court was unaware it had discretion to impose concurrent,
rather than consecutive life sentences on count 2 and counts 4 through 12. The People do
not dispute the trial court had discretion to impose concurrent sentences, but argue the
court was aware of that discretion and chose to exercise its discretion to impose
consecutive sentences.13 We conclude the trial court understood its discretionary
13 The People also contend the issue is forfeited. In light of defendant’s claim of
ineffective assistance of counsel, we dispose of this issue on the merits. (People v.
Thompson (2010) 49 Cal.4th 79, 121, fn. 14 [rejecting claim of ineffective assistance
where claim fails on the merits].)
13.
authority and, in any event, that remand for resentencing would be futile under the facts
presented here.
A. Additional Factual Background
At sentencing, the court stated, “So, the position by the Probation Department is
that this is a 168-year-to-life term with requirements of mandatory consecutive terms
with each of the offenses . . . .”14 The People stated:
“And, Your Honor, the People agree with that recommendation. I think
that it’s appropriate and believe that [defendant] is exactly the type of
defendant [section] 667.61[, subdivision ](j) was intending to punish more
severely by being a serial predator, by basically looking for multiple
victims and by committing these crimes over a span of several decades.
The People believe that the recommendation by Probation is appropriate.”
When asked if he had any argument in response, defense counsel replied, “No.”
The court noted:
“There’s evidence from three different complaining witnesses, C[.], R[.]
and T[.] There’s also evidence potentially that the Court heard during the
course of the trial of yet another young man out there. Maybe he was not
contacted who may have been victimized also. I understand that
[defendant] maintains his innocence in this case and that’s with -- well
within his rights to do as to fight the charges and maintain that all the way
through. But having said that, I just don’t see how and why C[.], R[.] and
T[.] would come forward and make this up. I don’t understand that.
Probably more telling to the Court is that R[.], somebody who was a child
in 1990s and apparently had not much, if any, contact with [defendant] in
this case, came forward to testify and corroborated much of what C[.] and
T[.] had said and apparently done so without much communication with
these individuals. And it was eery [sic] to the Court to hear how it is that
he was essentially groomed and approached by [defendant] to become
involved in the sexual conduct here. Also, the evidence was is that the
circumstances really wasn’t discussed between C[.] and R[.] In other
words -- strike that, T[.] In other words, there weren’t any of the details
that were shared, but yet the testimony of each when they testified, the
details were eerily similar, such that the Court can only surmise that this is
14 The probation department recommended consecutive terms, but did not state
consecutive terms were mandatory.
14.
the modus operandi or the way that [defendant] operates in grooming
children. A very sad case because [defendant], in the Court’s estimation,
violated a position of trust. [Defendant] doesn’t have much criminal
history, if any, and I’m mindful of that also. But these offenses as they are
charged and as the jury found require imposition of life terms in each of
them.”
The court went on to note the following factors under rule 4.425(a)(3) of the
California Rules of Court as relevant to its decision:
“The Court would note that these offenses were committed at
different times or separate places rather than being committed so closely in
time so as to indicate a single period of aberrant behavior. Indeed the
behavior here, as the Court noted, occurred over the course of some two
decades at least. The offenses were alleged and found to have been
committed over the period of nearly two decades, as the Court would note
and find. And trial evidence supports this finding. The offenses occurred
at different locations and at different properties, according to the testimony.
And trial evidence supports this finding by the Court, likewise. Under
California Rule of Court[,] rule 4.425(b), circumstances in mitigation or
aggravation can also be considered in imposing concurrent or consecutive
terms. And the Court finds the following aggravating circumstances to
impose the consecutive terms. The manner in which the offense occurred
involved planning. Indeed the evidence shows a grooming of these
children to render them compliant for the deviant sexual acts that were
committed on them. The Defendant . . . took advantage of a position of
trust and confidence to commit the offenses. The trial evidence showed the
Defendant took what appeared to be, to outside observers anyway, a
fatherly interest in the children. These boys may not have had a strong
father figure in their lives, otherwise, and the Defendant sought to fill that
void. He took them to places, he rode quads with them and otherwise
befriended them. But this essentially was the manner in which he was able
to get access to the children and groom them for purposes of the offenses.”
On that basis, the court ordered consecutive terms of 15-years-to-life on counts 1 and 2,
and counts 4 through 12. The court continued: “The Court will nonetheless order
concurrent low terms of one year for Counts 15 and 16. The concurrent low terms are
selected after a consideration of the sole mitigating circumstance in that [defendant] has
an insignificant record of criminal conduct.”
15.
B. Analysis
Subdivision (i) of section 667.61 currently mandates consecutive sentences for
certain offenses. Offenses committed under subdivision (a) of section 288 are not
included in this mandatory sentencing provision. (§ 667.61, subd. (i); see § 667.61,
subd. (c)(8); People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262.) Moreover, the
version of section 667.61 in effect at the time the offenses at issue here were committed
contains no consecutive sentencing mandate. (Former § 667.61.) Nonetheless, the
imposition of consecutive terms for offenses committed under subdivision (a) of section
288 remains within the court’s discretionary authority. (People v. Valdez (2011) 193
Cal.App.4th 1515, 1524.) Generally, absent evidence to the contrary, a reviewing court
will presume that the trial court “ ‘ “knows and applies the correct statutory and case
law.” ’ ” (People v. Jones (2017) 3 Cal.5th 583, 616.) “A court is ‘presumed to have
been aware of and followed the applicable law’ when imposing a sentence.” (People v.
Reyes (2016) 246 Cal.App.4th 62, 82; accord, People v. Gutierrez (2009) 174
Cal.App.4th 515, 527 [“[I]n light of the presumption on a silent record that the trial court
is aware of the applicable law, including statutory discretion at sentencing, we cannot
presume error where the record does not establish on its face that the trial court
misunderstood the scope of that discretion.”].)
Here, the trial court initially stated “the position by the Probation Department is
that this is a 168-year-to-life term with requirements of mandatory consecutive terms
with each of the offenses . . . .” However, nothing in the probation report suggests
consecutive terms were mandatory. To the contrary, the probation report set forth criteria
relevant to the court’s discretionary determination of concurrent or consecutive sentences
and, based on those criteria, recommended consecutive sentences. Furthermore, the
court’s oral imposition of sentence does not suggest the court believed consecutive terms
to be mandatory, as the court discussed aggravating factors that supported the imposition
of consecutive sentences. (Cal. Rules of Court, rule 4.425(a)(3).) The court also
16.
imposed concurrent sentences on counts 15 and 16, and thus clearly understood there was
no “requirement[] of mandatory consecutive terms with each of the offenses,” despite its
earlier statement to the contrary. We therefore are not convinced the court believed
consecutive terms were mandatory.
Furthermore, where the court has exercised its sentencing authority without being
aware of the scope of its discretionary powers, our Supreme Court has held that “the
appropriate remedy is to remand for resentencing unless the record ‘clearly indicate[s]’
that the trial court would have reached the same conclusion ‘even if it had been aware
that it had such discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; see
People v. Almanza (2018) 24 Cal.App.5th 1104, 1110 [“Remand is required unless the
record reveals a clear indication that the trial court would not have reduced the sentence
even if at the time of sentencing it had the discretion to do so.”]; People v. McDaniels
(2018) 22 Cal.App.5th 420, 425 [same].) Here, even if the court misunderstood the scope
of its discretionary sentencing authority, remand for resentencing in this case would be
futile because the court clearly would have imposed the same sentence. The court’s
discretionary sentencing findings in support of consecutive sentencing eliminate the need
for a remand in this case. (People v. Jones (2019) 32 Cal.App.5th 267, 274 [remand
unnecessary where record is clear the trial court would not exercise discretion to strike
enhancement under Sen. Bill No. 1393]; People v. McVey (2018) 24 Cal.App.5th 405,
419 [record clear trial court would not exercise discretion to strike enhancement under
Sen. Bill No. 620].)
17.
DISPOSITION
The judgment is affirmed.
DETJEN, J.
WE CONCUR:
POOCHIGIAN, Acting P.J.
SMITH, J.
18.