Opinion
E072399
10-06-2020
THE PEOPLE, Plaintiff and Respondent, v. JAIR CABRERA, Defendant and Appellant.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB17000723) OPINION APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill, Judge. Affirmed in part; reversed in part with directions. Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant and appellant, Jair Cabrera, guilty as charged of committing sex offenses against two of his daughters, S.C. (counts 1, 4, & 5), and M.C. (counts 2 & 3). The jury also found multiple victim allegations true on counts 1, 2, and 4. (Pen. Code, § 667.61, subds. (b), (c), (e)(4).)
Unspecified statutory references are to the Penal Code.
In counts 1, 4, and 5, the counts involving S.C., defendant was convicted of the continuous sexual abuse of a child under age 14 (§ 288.5, count 1), a forcible lewd act with a child under age 14 (§ 288, subd. (b)(1), count 4), and sexual intercourse or sodomy with a child age 10 or younger (§ 288.7, subd. (a), count 5). In counts 2 and 3, the counts involving M.C., defendant was convicted of committing a lewd act with a child under age 14 (§ 288, subd. (a), count 2), and sexual intercourse or sodomy with a child age 10 or younger (§ 288.7, subd. (a), count 3).
Defendant was sentenced to 65 years to life: consecutive 25-year-to-life terms on counts 3 and 5, plus 15 years to life on count 4, based on the multiple victim finding on count 4. The court imposed, but stayed, 15-year-to-life terms on counts 1 and 2, imposed a $300 restitution fine, and $210 in court assessments on counts 3, 4, and 5 ($70 on each count).
The information alleged that defendant committed count 1, the continuous sexual abuse of S.C., from November 16, 2008, through February 13, 2017—the same period in which he allegedly committed count 4 (Feb. 13, 2017) and count 5 (Nov. 2012 to Nov. 2014), the specific sexual acts involving S.C. But counts 4 and 5 were not pleaded in the alternative to count 1 (§ 288.5, subd. (c).) Nor was the jury instructed that it could not convict defendant of both the continuous sexual abuse of a child under age 14 (count 1) and of committing specific sexual acts with the same child during the same time period (counts 4 & 5).
In this appeal, defendant claims, and the People agree, that defendant's conviction in count 1 cannot stand with his convictions in counts 4 and 5, and vice versa. (§ 288.5, subd. (c).) But the parties disagree on the appropriate remedy: defendant claims his convictions in counts 1, 4, and 5 must be vacated and the matter remanded for a new trial on these counts. Alternatively, he claims his convictions in counts 4 and 5 must be vacated. The People claim defendant's conviction in count 1 must be vacated. We agree with the People: the appropriate remedy is to vacate defendant's conviction in count 1.
Defendant further claims the court prejudicially erred and violated his federal due process right to a fair trial in admitting evidence that he committed prior uncharged forcible lewd acts with his stepdaughter, L., when L. was five or six years old. We conclude that L.'s testimony was properly admitted.
Lastly, defendant claims the court violated his due process rights and his right to be free of excessive fines in imposing a $300 restitution fine and in imposing, but staying, $210 in court assessments ($70 for each conviction ) on counts 3, 4, and 5, without determining if he was able to pay them. We conclude that any error in imposing the fine and assessments was harmless beyond a reasonable doubt. We modify the judgment to impose an additional $70 in court assessments on count 2, and to lift the stay on the $210 in court assessments that the court previously imposed on counts 3, 4, and 5.
II. FACTUAL BACKGROUND
A. The Family's Background
In February 2017, defendant and Y.C. had been in a relationship for 15 years. During that time, they shared several residences and had four children: twin daughters, M.C. and N.C., born in October 2002; a son, J.C., born in 2003; and another daughter, S.C., born in November 2004. Y.C. also had two older children: L. and A. L. was born in 1998. B. The Girls' Initial Disclosures and Interviews
In February 2017, M.C. and N.C. told a custodian at their middle school that one of them had been cutting herself. The matter was referred to the school counselor. The counselor spoke with the twins and their younger sister S.C.; all of the girls were crying and scared, and M.C. was the one who had been cutting herself. After speaking with the girls about things that had been happening in their home, the counselor reported the matter to social workers and met with law enforcement officers. Law enforcement officers then separately interviewed the girls.
1. S.C.'s Initial Interview
In her interview, S.C. said that defendant's sexual abuse of her was ongoing; he would make her have sexual intercourse, sodomized her, and have her orally copulate him (counts 1 & 5). The most recent incident involving S.C. occurred on Monday, February 13, 2017, after S.C. was home from school. Defendant took S.C. into a room, hit her on her arm, and put his penis into her mouth, after she repeatedly told him, "no" (count 4).
On February 16, 2017, a sexual assault response team (SART) nurse conducted a medical examination of 12-year-old S.C. S.C. complained of pain in her vaginal area and said defendant had penetrated her vagina and anus with his penis, orally copulated her vaginal and anal areas, and hit her on her arms. S.C. had no physical injuries, and the SART nurse could neither confirm, nor rule out that S.C. had been sexually penetrated.
S.C. explained that when they would "finish," "gooey stuff comes out of their private parts," and defendant would tell S.C. to clean herself or take a shower. S.C. had tried to talk to Y.C. about the sexual abuse, but Y.C. did not believe S.C. S.C. knew that Y.C. had asked defendant about the abuse, but defendant had "sweet-talked" Y.C. and told Y.C. she did not know what she was talking about. The sexual abuse would happen when Y.C. was at work. S.C. believed that defendant was planning to molest her on the day the girls reported his sexual abuse to the school counselor because, earlier that day, defendant rubbed S.C.'s leg in the car, and Y.C. was going to be at work.
2. N.C.'s Initial Interview
During her interview, N.C. reported that, around one year earlier, she saw that the bathroom door was ajar and S.C. was sitting on the toilet. Defendant was standing directly in front of S.C. with his penis in her mouth. When N.C. interrupted defendant, he immediately pulled his shirt down to cover his penis. N.C. left and later heard defendant tell S.C. to put his penis in her mouth; S.C. said, "no," and later came out of the bathroom with $5, saying she got it from defendant. N.C. cried when she described what she had seen and said she could not get the image out of her head.
N.C. also said that defendant's sexual abuse of S.C. was ongoing, and that Y.C. was at work when the abuse occurred. S.C. would tell N.C. "in detail" about what defendant was doing to her. N.C. would hear S.C. "screaming" when S.C. was in the bathroom or bedroom with defendant. S.C. would scream for her siblings and her mother, and for defendant to "stop" or to leave her alone, and over time her screams got louder. N.C. once heard defendant tell S.C. to "shut up" and heard smacking noises. Another time, N.C. called Y.C. while defendant was secluded with S.C.; N.C. told defendant through a closed door that Y.C. wanted to talk to him, but defendant would not take Y.C.'s call. N.C. said she did not feel safe in the home with defendant.
3. M.C.'s Initial Interview
In her interview, M.C. reported that defendant had sexual intercourse with her when she was six years old (counts 2 & 3). The intercourse occurred in defendant and Y.C.'s bedroom at the family's home in San Bernardino; he removed M.C.'s pants and underwear and inserted his penis into her vagina (count 3).
M.C. also saw defendant sexually abuse S.C. One night, when M.C. was 10 or 11 years old, she woke up to use the bathroom, and when she returned to her room, she heard defendant walking around. While pretending to be asleep, she watched defendant approach S.C., who was sleeping on the living room couch, remove his and S.C.'s clothing, and have vaginal sex with S.C. Another time, M.C. heard S.C. crying after defendant had taken S.C. into the bathroom with him and had locked the door. When M.C. tried to open the door, defendant told her to go away. Defendant was frequently in the bathroom with S.C.
When M.C. confronted defendant about his molestations of M.C. and S.C., he threatened M.C. with violence or discipline if she did not stop talking about it. According to M.C., Y.C. believed defendant's denials over her daughters' claims of sexual abuse and did nothing to prevent the abuse.
4. The Twins' Pretext Call to Defendant
At the behest of their interviewer, M.C. and N.C. made a pretext telephone call to defendant. Y.C. answered the call, and defendant got on the line. During the call, N.C. confronted defendant "point blank" about his sexual abuse, and he repeatedly denied that he ever sexually molested any of the girls. After N.C. told him that she had seen the sexual abuse "with her own eyes," defendant told N.C. she had "broken his heart" and began to cry. The twins ended the call.
5. Y.C.'s Initial Interview
Investigators later interviewed Y.C. at the family's home, and a recording of the interview was played for the jury. During this interview, Y.C. said that N.C. told her that N.C. did not want to come home, and that L., who recently had lived with the family for several months, told Y.C. in January 2017 that defendant "touches" the girls. But Y.C. denied that M.C., N.C., or S.C. ever told her that defendant was sexually abusing any of the girls, denied she had talked to defendant about it, and denied that N.C. told her about defendant being in the bathroom with S.C. C. The Girls' Forensic Interviews
S.C., M.C., and N.C. were forensically interviewed in March 2017, and audio recordings of the interviews were played for the jury. The girl's forensic interview statements were generally consistent with and more detailed than their initial interview statements to law enforcement officers. In her forensic interview, M.C. described how defendant had sexual intercourse with her and would sodomize her (counts 2 & 3). D. Trial Testimony
1. L.'s Testimony
L. was 20 years old at the time of the trial. When she was five or six years old, she did not live with Y.C., defendant, and their four children (her younger half siblings); but she visited them and, when she did, defendant would touch her "inappropriately." Defendant would do this when Y.C. was not at home. L. said, "It just became [defendant's] little thing [when her] mom was never around."
One time, defendant came into the "kids' room" where L. was sleeping, got into the bed with L., slipped under the blankets, and touched L.'s vaginal area over her clothes. When defendant touched her this way, L. would tell him to stop and he would "just laugh." L. was unable to get out of the bed because defendant would force her down by grabbing her arms and pulling her back. He told L. not to tell Y.C. about the sexual abuse, or he would do something to L.
L. did not tell Y.C. what defendant was doing, but she told her aunt. After that, Y.C.'s aunt only allowed Y.C. to visit L. at the aunt's home, without defendant present.
Years later, when she was 17 years old, L. tried to reestablish her relationship with Y.C. She lived with Y.C., defendant, and their four children from around November 2015 to February 2016. During that time, defendant made comments to her about how she looked that made her uncomfortable, and he once grabbed her leg and laughed. During the same time, M.C. told L. that defendant would "do things to her," and that he would also take S.C. into his room or into the bathroom. L. confronted Y.C. in front of defendant about defendant's sexual abuse of M.C. and S.C. Y.C. told L. that she had talked to the girls about it, and they had denied it. Around a month later, L. moved out after defendant accused her of smoking marijuana inside the house. L. was only smoking marijuana outside the house, and she was accused of teaching, but did not teach, any of her younger half siblings to smoke marijuana.
2. Y.C.'s Testimony
Y.C. denied that any of her daughters had ever told her about any of defendant's sexual abuse and claimed she had never witnessed any such abuse. Y.C. admitted that, as part of the plea agreement she made on August 1, 2018, she had written and signed a plea allocution or statement admitting that M.C., N.C., and S.C. had told her numerous times about defendant's sexual abuse, and that she had not taken adequate steps to protect the girls from the abuse. Y.C testified that she lied in her plea statement in order to regain custody of her younger girls. Y.C. also denied she told the girls to lie in order to exculpate defendant.
Y.C. also claimed she had no recollection of telling the police that her older daughter, L., had confronted Y.C. about the molestations; that Y.C. and L. had fought about the issue; or that L. had moved out of Y.C.'s home as a result. Y.C. explained that in January 2017, she had an argument with L. because L. was smoking marijuana and teaching her younger girls to smoke it. Y.C. admitted she had a 2004 felony conviction for child cruelty, a 2009 misdemeanor conviction for welfare fraud, and a 2018 felony conviction for failing to protect her younger daughters.
3. Testimony of the Girls' Foster Mother
M.C., N.C., and S.C. were placed in foster care together after they initially disclosed defendant's sexual abuse to their school counselor and to law enforcement. S.C. was initially nervous in foster care and cried a lot, but over time her disposition improved, and she confided in her foster mother. S.C. told her foster mother that defendant had sexually abused her, and that she did not want to go back to him because she was afraid something would happen to her.
4. The Girls' Testimony
S.C.'s testimony was generally consistent with, but more reticent than, her earlier initial and forensic interview statements. But the twins, M.C. and N.C., recanted most of their earlier statements at the time of trial. For example, M.C. recalled telling someone that she saw defendant sexually abuse S.C. on the couch but, contrary to her earlier statements, she denied witnessing the incident and denied ever hearing S.C. cry when she was with defendant. M.C. did not recall telling anyone that defendant had touched her inappropriately or that he had sexual intercourse with her, and she claimed she did not have any memory of any such incidents.
N.C. also did not recall seeing defendant in the bathroom with S.C. with his penis in her mouth, hearing S.C. screaming for help when she was in a room with defendant, or witnessing defendant sexually abusing S.C. N.C. did recall S.C. saying that defendant had touched S.C. inappropriately. N.C. did not believe S.C. because S.C. hated defendant, and she wanted to separate her parents so that she could spend more time with Y.C. N.C. also recalled M.C. saying that defendant had touched M.C. inappropriately, but N.C. denied having witnessed defendant sexually abusing M.C. N.C. denied feeling pressured to testify a certain way after she communicated with Y.C. on social media, or after she lived with Y.C. for several months between foster homes. E. Defense Evidence
Defendant did not testify. The defense presented alibi evidence that defendant could not have molested S.C. on February 13, 2017, because he was having car trouble that day. A locksmith testified that he was contacted between 4:00 and 5:00 p.m. on February 13, and he was told that defendant was in Corona having trouble with the ignition switch on his car. The locksmith met defendant, who was with his young son, in Corona after 6:00 p.m., and it took the locksmith one hour to fix defendant's car. The locksmith then followed defendant to a fast food restaurant where Y.C. worked, and Y.C. paid the locksmith. The locksmith left the restaurant around 9:00 or 10:00 p.m., when defendant was still there.
J.C. testified that he never saw defendant inappropriately touch S.C., M.C., or L., and none of his sisters ever told him that defendant had sexually abused them. J.C. also never heard S.C. cry or saw S.C. or M.C. go into the bedroom or bathroom with defendant. Y.C.'s older son, A., similarly testified that he never saw or heard any indication that defendant was sexually abusing S.C., M.C., or L., and that none of his sisters ever told him that defendant had sexually abused any of the girls. According to A., L. often lied.
Defendant's grandmother lived with defendant and his family for around one month, beginning in January 2017. She returned to Mexico on February 9, 2017. Most days of the week, she and defendant would bake pies and would sell them between 5:00 and 10:00 p.m. She never saw defendant sexually abuse any of the girls, never saw any signs of any such abuse, and none of the girls ever told her that defendant had sexually abused them.
A defense investigator interviewed S.C., in Y.C.'s presence, on May 17, 2018. S.C. said she got along very well with defendant, she really liked him, and she denied that defendant had ever touched her inappropriately. She said she was sorry for having told other people that defendant had touched her inappropriately because it was not true.
The same defense investigator interviewed M.C., in Y.C.'s presence, on April 17, 2018. M.C. told the investigator that S.C. was very jealous, was close to Y.C., and liked to create conflict. M.C. also said she was angry with defendant when she claimed that he had inappropriately touched her; she had lied, and it did not happen. On April 10, 2018, the investigator interviewed N.C. in Y.C.'s presence. N.C. said she no longer believed S.C.'s earlier claims that defendant had sexually abused S.C., and she denied having witnessed defendant sexually abuse S.C. According to N.C., S.C. was close to Y.C., wanted Y.C.'s attention, did not like it when defendant gave Y.C. attention or told S.C. what to do, tried to separate her parents, and liked it when her parents argued.
III. DISCUSSION
A. L.'s Testimony Was Properly Admitted (Evid . Code, §§ 1101, subd. (b), 1108)
Defendant claims the trial court prejudicially erred and violated his due process right to a fair trial in allowing the prosecution to adduce L.'s testimony that he sexually molested her when she was five or six years old, around 2003 to 2004. We conclude that L.'s testimony was properly admitted.
1. Relevant Background
Before trial, the prosecution filed a notice of its intent to introduce L.'s testimony that defendant committed a lewd act on her when she was five or six years old, pursuant to Evidence Code sections 1108 and 1101, subdivision (b). The defense filed a motion in limine to exclude L.'s testimony.
At a pretrial hearing, defense counsel argued that L.'s proffered testimony was more prejudicial than probative for several reasons. (Evid. Code, § 352.) Among other things, defense counsel argued that defendant's alleged conduct with L. was "moderate" compared to the conduct of the underlying charged offenses, and the jury was likely to convict defendant of the charged offenses only because he was not convicted of any offenses involving L. Counsel also argued that defendant was unable to effectively defend himself against L.'s claims, given that his alleged conduct with L. occurred 15 to 16 years before trial, and there were no court records, police reports, or information to corroborate L.'s claims.
The prosecutor countered, and the court agreed, that defendant's conduct with L. was "minor" in comparison to the charged offenses, but defendant's means or approach to molesting each of the girls was "very substantially similar." For example, defendant began molesting the girls when they were five or six years old, and he would access them at night or when Y.C. was away from the home. The court also found that L.'s proffered testimony was "highly relevant," given the similarities in the way defendant molested each of the girls, and that its probative value outweighed its prejudicial effect. (Evid. Code, § 352.) The court thus concluded that L.'s proffered testimony was admissible under Evidence Code sections 1108 and 1101, subdivision (b).
L. proceeded to testify as detailed ante. The jury was instructed, pursuant to CALCRIM No. 1191A, that it could consider L.'s testimony only if the People proved by a preponderance of the evidence that defendant committed a lewd act with L. when she was under age 14 (§ 288, subd. (a)); if the People did prove that such conduct occurred, the jury could conclude defendant was disposed or inclined to commit sex offenses and, based on that decision, conclude defendant was likely to commit, and did commit, the charged offenses.
The jury was also instructed, pursuant to CALCRIM No. 375, that if it found that defendant committed a lewd act against L., it could consider that evidence for the limited purposes of determining whether: (1) defendant acted with the specific intent required to prove the lewd acts charged in counts 2 and 4; and (2) defendant had a motive, plan, or scheme to commit the charged offenses.
2. Applicable Legal Principles
In a criminal trial, evidence that the defendant committed a prior act or offense is inadmissible to prove the defendant's conduct on a specific occasion. (Evid. Code, § 1101, subd. (a); see People v. Falsetta (1999) 21 Cal.4th 903, 911.) But this exclusionary rule does not apply to evidence that the defendant committed a prior sexual offense if the defendant is currently charged with committing a sexual offense. (Evid. Code, § 1108, subd. (a).) Rather, evidence that such a defendant committed a prior sexual offense is admissible to show that the defendant has a disposition or propensity to commit sexual offenses, unless the evidence is inadmissible under Evidence Code section 352. (Evid. Code, § 1108, subd. (a); People v. Falsetta, at p. 911; People v. Villatoro (2012) 54 Cal.4th 1152, 1159.)
Evidence Code section 1108, subdivision (a), provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352."
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
In determining whether to admit evidence of a prior sexual offense under Evidence Code section 1108, the trial court "must engage in a careful weighing process under [Evidence Code] section 352." (People v. Falsetta, supra, 21 Cal.4th at p. 917.) "Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (Ibid.)
Additionally, evidence that a criminal defendant committed a prior sexual offense is admissible if relevant to prove "some fact" other than the defendant's criminal disposition, such as intent, motive, preparation, or a common design or plan. (Evid. Code, § 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 393-394.) "[T]o be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." ' " (People v. Ewoldt, at p. 402.) "To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual." (Id. at p. 403.)
"In contrast, motive 'may be established by evidence of "prior dissimilar crimes." ' " (People v. Walker (2006) 139 Cal.App.4th 782, 804.) But "a nexus or direct link must still exist between the prior crime and the charged offense. [Citation.] In some instances, the commission of the prior offense is itself not the incentive for commission of the charged crime but '[t]he presence of the same motive in both instances may be a contributing factor in finding a common plan or design.' [Citation.] In such cases, the offenses must 'share common features.' " (Ibid.)
We review a trial court's admission of prior sexual offense evidence, whether under Evidence Code sections 1108 or 1101, subdivision (b), for an abuse of discretion. (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 824.) We uphold the court's ruling admitting the prior sexual offense evidence, unless the court exercised its discretion " ' "in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." ' " (People v. Lewis (2009) 46 Cal.4th 1255, 1286.)
3. Analysis
As stated, L. testified that, when she was five or six years old and staying in Y.C. and defendant's home, defendant would touch L. inappropriately. L. described one night when defendant had come into the room where L. was sleeping, had gotten into the bed and under the blankets with L., and had touched L.'s vaginal area over her clothes. L. also testified that, years later, when L. was 17 years old and living with Y.C. and defendant, defendant had made comments to L. about how she looked and had once grabbed her leg and laughed.
Defendant claims the trial court abused its discretion in admitting L.'s testimony because "all of the relevant factors weighed against" its admission. He argues his alleged uncharged prior lewd acts with L. "were inherently inflammatory, were remote in time, were dissimilar from the charged offenses, and were not charged or proven in any prior court proceedings, such that they had minimal legitimate probative value and carried an extreme risk of causing undue prejudice and confusion."
We find no abuse of discretion in the trial court's decision to admit L.'s testimony under Evidence Code sections 1108 and 1101, subdivision (b). The court's comments at the pretrial hearing show that it carefully considered "all of the relevant factors" in admitting L.'s testimony (People v. Falsetta, supra, 21 Cal.4th at p. 917) and reasonably concluded that the probative value of L.'s testimony substantially outweighed its potential for undue prejudice (Evid. Code, § 352).
Defendant argues that L.'s testimony should have been excluded because it was "extremely inflammatory." We disagree. Although L.'s testimony showed that defendant repeatedly and forcibly committed lewd acts with L. when she was five or six years old, L.'s testimony was, as the court said, "of a minor character" compared to the evidence that directly supported the charged offenses. That evidence, which included the trial testimony of S.C. and the pretrial interview statements of S.C., M.C., and N.C., showed that defendant committed continuous and forcible acts of sexual intercourse and sodomy with S.C., beginning when S.C. was five or six years old (counts 1, 4, & 5), and that defendant also committed nonforcible sexual intercourse and sodomy with M.C., when she was five or six years old (counts 2 & 3). We agree with the trial court that defendant's alleged acts with L. were substantially less inflammatory than the acts charged in this case.
L.'s testimony also shared significant similarities and common features with the evidence that directly supported the charged offenses. All of the evidence showed that defendant sexually molested L., S.C., and M.C., when, and in the case of S.C. beginning when, the girls were five or six years old, and that all of the molestations occurred in rooms or areas of defendant's home when Y.C. was asleep or not at home. These common features rendered L.'s testimony highly probative of whether defendant had a propensity to sexually molest young girls (Evid. Code, § 1108); whether he had a motive to sexually molest young girls to satisfy his sexual desire for them (Evid. Code, § 1101, subd. (b)); whether he used a common design or plan in molesting L., S.C., and M.C. (ibid.); and whether, in committing the charged lewd acts with S.C. and M.C. (counts 2 & 4), he acted with the specific intent of gratifying his sexual desire for young girls (Evid. Code, § 1101, subd. (b); Pen. Code, § 288, subds. (a), (b); CALCRIM Nos. 1110, 1111.)
Defendant claims his alleged lewd acts with L. were remote because they occurred in 2003 to 2004, around 15 years before trial. He claims this remoteness reduced the probative value of L.'s testimony. Again, we disagree. The significant similarities and common features between the alleged lewd acts involving L. and the alleged conduct underlying the charged offenses enhanced, rather than reduced, the probative value of L.'s testimony. (People v. Hernandez (2011) 200 Cal.App.4th 953, 968 [" 'significant similarities between the prior and the charged offenses may "balance out the remoteness" ' " of the prior offenses by enhancing their probative value].)
Defendant further argues that the remoteness of L.'s allegations "made it difficult, if not impossible" for him to defend against L.'s allegations. (People v. Falsetta, supra, 21 Cal.4th at p. 917 [relevant factors to consider in determining whether to exclude prior sex offense evidence include "the burden on the defendant in defending against the uncharged offense"].) He complains there was "no way" he could "fairly be expected to account for his whereabouts at some unspecified time in the years 2003 or 2004," when he allegedly committed lewd acts with L. He compares L.'s allegations to count 4, in which he was charged with committing a forcible lewd act on S.C. on a precise and more recent date, February 13, 2017. He points out that, regarding count 4, he adduced an alibi defense that he was in Corona with a locksmith on February 13 and, thus, could not have molested S.C. that day.
The trial court did not abuse its discretion in failing to exclude L.'s testimony on the ground L. did not recall the specific dates that defendant molested her. L. testified that the molestations occurred when she was visiting Y.C., defendant, and her younger half siblings in their home when she was five or six years old, around 2003 to 2004. Thus, defendant could not have reasonably adduced a specific date alibi defense to L.'s allegations, but he was able to cross-examine L., and did cross-examine L., concerning the specifics of her lewd act allegations.
L.'s testimony also did not present a substantial danger of undue prejudice. The phrase "undue prejudice," as used in Evidence Code section 352, refers to evidence " 'which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.' " (People v. Karis (1988) 46 Cal.3d 612, 638.) "The primary factors affecting the prejudicial effect of uncharged acts are whether the uncharged acts resulted in criminal convictions, thus minimizing the risk the jury would be motivated to punish the defendant for the uncharged offense, and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses." (People v. Walker, supra, 139 Cal.App.4th at p. 806.)
As discussed, L.'s allegations were far less inflammatory and egregious than the evidence that directly supported the charged offenses. Thus, although defendant was not convicted of any crimes based on his alleged lewd acts with L., it is highly unlikely that the jury was motivated to convict defendant of any of the charged offenses in order to punish him for his uncharged lewd acts against L.
Nor do we discern any risk of prejudice to defendant based on the unproven nature of L.'s allegations, or any risk that L.'s allegations would distract the jury from its "main inquiry" of determining defendant's guilt of the charged offenses. (People v. Falsetta, supra, 21 Cal.4th at p. 917.) L.'s testimony was uncomplicated and straightforward, and the jury was properly instructed on how, and for what purposes, it could use L.'s testimony. (CALCRIM Nos. 375, 1191A.) On this record, there was no substantial risk that L.'s testimony confused or distracted the jury from its main inquiry of determining defendant's guilt of the charged offenses.
Defendant argues he was unduly prejudiced by L.'s testimony because it was stronger than the evidence supporting the charged offenses. (People v. Jandres (2014) 226 Cal.App.4th 340, 356 [The relative strength of the evidence of uncharged and charged conduct is relevant to assessing the potentially prejudicial impact of the uncharged conduct.].) He argues that evidence supporting the charged offenses was "far from compelling," given that S.C., M.C., and N.C., to varying degrees, recanted their pretrial interview statements in which they described how, where, and under what circumstances defendant had molested S.C. and M.C. But, the girls' pretrial interview statements, which implicated defendant in the charged offenses, were powerful, detailed, and compelling. Thus, on this record, L.'s testimony did not "bolster a comparatively weak case on the charged offense[s]."
Lastly, defendant claims that the admission of L.'s testimony rendered his trial fundamentally unfair, in violation of his federal due process right to a fair trial. We disagree. The admission of evidence violates a defendant's federal due process rights, " '[o]nly if there are no permissible inferences the jury may draw from the evidence . . . [and] [e]ven then, the evidence must "be of such quality as necessarily prevents a fair trial." [Citations.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.' " (People v. Albarran (2007) 149 Cal.App.4th 214, 229.) Here, there is no reason to infer that the jury used L.'s testimony for any improper purpose. As noted, the jury was properly instructed on how, and for what purposes, it could use L.'s testimony. B. Defendant's Conviction in Count 1 Must Be Vacated (§ 288 .5, subd. (c))
Defendant claims his convictions in counts 1, 4, and 5 must be vacated and the matter remanded for a new trial on these counts because the convictions were not pled in the alternative, in violation of the alternative pleading requirement of section 288.5, subdivision (c). Alternatively, he claims his convictions in counts 4 and 5 must be vacated in favor of upholding his conviction in count 1. The People concede the alternative pleading error but argue the appropriate remedy is to vacate defendant's conviction in count 1. We agree with the People.
1. Applicable Legal Principles
Section 288.5 defines the crime of continuous sexual abuse of a child: "Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child . . . ." (§ 288.5, subd. (a).)
In order to convict a defendant of the continuous sexual abuse of a child under age 14 (§ 288.5, subd. (a)), the trier of fact is required to "unanimously agree only that the requisite number of acts [that] occurred" during the time period alleged, not "on which acts constitute the requisite number." (§ 288.5, subd. (b).)
Section 288.5 "imposes certain limits on the prosecution's power to charge both continuous sexual abuse and specific sexual offenses in the same proceeding." (People v. Johnson (2002) 28 Cal.4th 240, 243 (Johnson).) Section 288.5, subdivision (c), provides, in relevant part, "[n]o other act of substantial sexual conduct, as defined in subdivision (b) of Section 1203.066, with a child under 14 years of age at the time of the commission of the offenses, or lewd and lascivious acts, as defined in Section 288, involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative . . . ."
In this case, defendant was convicted of three sex offenses involving S.C.: the continuous sexual abuse of a child under age 14 (§ 288.5, count 1), a forcible lewd act with a child under age 14 (§ 288, subd. (b)(1), count 4), and sexual intercourse or sodomy with a child age 10 or younger (§ 288.7, subd. (a), count 5). The information alleged that defendant committed count 1 between November 16, 2008, and February 13, 2017; count 4 on February 13, 2017; and count 5 between November 2012 and November 2014.
Thus, counts 4 and 5 were alleged to have occurred during the same period as count 1, but were not pleaded in the alternative to count 1. (§ 288.5, subd. (c).) Nor was the jury instructed that, if it convicted defendant in counts 4 and 5, it could not also convict defendant in count 1 based on any lewd act underlying count 4 or any act of sexual intercourse or sodomy underlying count 5, or vice versa. (See People v. Garza (2005) 35 Cal.4th 866, 881 [where multiple convictions are prohibited, the trial court must so instruct the jury sua sponte].)
As the parties agree, defendant's convictions in counts 1, 4, and 5 violate the alternative pleading requirement of section 288.5, subdivision (c). We must determine the appropriate remedy for this violation. In Johnson, our Supreme Court interpreted section 288.5, subdivision (c), as prohibiting a defendant from being convicted of the continuous sexual abuse of a child and of specific sexual offenses against the same child during the same period, if the specific sex counts were not alleged in the alternative to the continuous abuse count. (Johnson, supra, 28 Cal.4th at p. 245.) In such cases, the court held, "either the continuous abuse conviction or the convictions on the specific offenses must be vacated." (Ibid., italics added.)
The Johnson court affirmed the decision of the Court of Appeal, which upheld the defendant's continuous abuse conviction and vacated his six specific offense convictions during the same period. (Johnson, supra, 28 Cal.4th at pp. 243-244, 248.) But the Johnson court was not presented with the question of when, and under what circumstances, a defendant's specific sex offense convictions should be vacated in favor of upholding the defendant's continuous abuse conviction, when a violation of section 288.5, subdivision (c), has occurred. (See People v. Torres (2002) 102 Cal.App.4th 1053, 1057 (Torres).) In Torres, the Court of Appeal addressed this question. (Id. at pp. 1057-1060.) Based on the legislative intent of section 288.5, the Torres court concluded that the defendant should be left standing convicted of the offense or offenses that are "most commensurate" with the defendant's "culpability." (Torres, at p. 1059.)
The defendant in Torres was convicted of the continuous sexual abuse of a child and of 10 specific sex offenses against the same child during the same period. (Torres, supra, 102 Cal.App.4th at pp. 1059-1060.) Due to the number and severity of his specific offense convictions, the defendant in Torres "faced a greater maximum aggregate penalty" for his specific offense convictions than for his continuous abuse conviction, leading the court to conclude that "the appropriate remedy" was to reverse the continuous abuse conviction and uphold the specific offense convictions. (Id. at p. 1060.)
More recently, in People v. Wilson (2019) 33 Cal.App.5th 559, the court followed Torres and concluded, "Torres supplies the correct remedy for a violation of section 288.5, subdivision (c)." (Id. at p. 575.) We agree. As another court has noted, the Torres court's prescription "will ordinarily translate to upholding whichever conviction resulted in the greater aggregate penalty and vacating the less serious count." (People v. Rojas (2015) 237 Cal.App.4th 1298, 1309; see People v. Bautista (2005) 129 Cal.App.4th 1431, 1435, 1437-1438 [upholding § 288.5 conviction as more commensurate with the defendant's culpability and vacating four overlapping convictions for procuring a child for lewd acts (§ 266)].)
Here, the appropriate remedy for the alternative pleading violation in counts 1, 4, and 5 (§ 288.5, subd. (c)) is to vacate defendant's continuous sex abuse conviction in count 1 and to uphold his specific sex offense convictions in counts 4 and 5. Defendant's count 5 conviction is his most serious in that it carries a 25-year-to-life term. (§ 288.7, subd. (a).) In counts 1 and 4, the jury found multiple victim allegations true (§ 667.61 subds. (b), (c), (e)(4)), which required the court to impose 15-year-to-life terms on counts 1 and 4. (§ 667.61, subd. (b).)
On all of defendant's convictions, including counts 2 and 3 (his convictions involving M.C.) the court sentenced defendant to an aggregate term of 65 years to life: 25 years to life on counts 3 and 5, plus 15 years to life on count 4. The court imposed, but stayed, 15-year-to-life terms on counts 1 and 2 (§ 654) because it was imposing the "maximum" term on count 4.
The court expressly stated that it intended to sentence defendant to the maximum possible punishment. Thus, it would be futile to remand the matter for resentencing on counts 2, 3, 4, and 5, given that defendant has already been sentenced to the maximum possible terms on these counts. (See People v. Jones (2019) 32 Cal.App.5th 267, 274.) By vacating his conviction in count 1 and affirming his convictions in counts 4 and 5, defendant will remain sentenced to 65 years to life, his maximum possible punishment in counts 2, 3, 4, and 5. C. Any Error in Imposing the $300 Restitution Fine and $210 in Court Assessments Was Harmless Beyond a Reasonable Doubt, but the Judgment Must Be Modified to Lift the Stay on the Assessments and Impose $70 in Additional Assessments
At sentencing in February 2019, the trial court found that defendant was unable to pay for his appointed counsel fees (Pen. Code, § 987.8), as well as the cost of preparing the presentence investigation and probation reports. (Pen. Code, § 1203.1, subd. (b).) The court imposed the minimum statutory $300 restitution fine (Pen. Code, § 1202.4) and $70 in court assessments (Pen. Code, § 1465.8; Gov. Code, § 70373) on counts 3, 4, and 5 only, and ordered the $210 in total assessments stayed, stating: "The court will impose $210 as the fee for the court construction and operations. That is $70 [on] the three counts I'm going to sentence him on stayed."
The People point out, and we are compelled to agree, that the court erred in failing to impose $70 in court assessments on each conviction (Pen. Code, § 1465.8; Gov. Code, § 70373; People v. Crittle (2007) 154 Cal.App.4th 368, 371) and in ordering the $210 in court assessments stayed (People v. Woods (2010) 191 Cal.App.4th 269, 272-273). We are authorized to modify the judgment to correct these errors. (See People v. Turner (2002) 96 Cal.App.4th 1409, 1413-1414.) This means that the judgment must be modified to lift the stay on the previously imposed $210 in court assessments and further modified to impose $70 in court assessments on count 2.
Defendant claims the court violated his federal due process rights and his right to be free of excessive fines in imposing the restitution fine and court assessments without determining if he was able to pay them. (People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168, 1171, fn. 8 (Dueñas).) We conclude that any error in imposing the restitution fine and assessments was harmless beyond a reasonable doubt.
In People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, our Supreme Court is currently reviewing whether a court is required to consider a defendant's ability to pay before it may impose or execute fines, fees, and assessments and, if so, which party bears the burden of proof regarding the defendant's "inability to pay." (People v. Kopp (Nov. 13, 2019, S257844) 2019 Cal. Lexis 8371.) A number of appellate courts have concluded that Dueñas was "wrongly decided." (E.g., People v. Hicks (2019) 40 Cal.App.5th 320 [Second Dist., Div. Two], review granted November 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1068 [Fifth Dist.]; People v. Adams (2020) 44 Cal.App.5th 828, 831 [Sixth Dist.].)
On appeal, Dueñas error is not prejudicial if the record shows it is harmless beyond a reasonable doubt. (People v. Jones (2019) 36 Cal.App.5th 1028, 1035.) Any assessment of defendant's ability to pay the fine and assessments would consider his future earning capacity, including his ability to earn wages while incarcerated (ibid.) and following his release on parole. (See People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837.)
Defendant's probation report unequivocally shows that his future earning capacity is more than sufficient to pay the $300 restitution fine and the $280 in court assessments on his four remaining convictions in counts 2, 3, 4, and 5, notwithstanding the court's finding that he was unable to pay the costs of his appointed counsel and his presentence investigation and probation reports. The record shows that, at the time of sentencing, defendant was 38 years old, had no debts, was in "good" health, and had been self-employed as a baker for many years. Given his age and good health, there is no reasonable doubt he will be able to pay the $300 restitution fine and $280 in assessments over time. (See People v. Aviles, supra, 39 Cal.4th at pp. 1075-1077.)
IV. DISPOSITION
The judgment is modified to vacate defendant's conviction in count 1, impose a $40 court operations assessment and a $30 court facilities assessment on count 2, and lift the unauthorized stay on the $210 in court operations and facilities assessments that the court previously imposed on counts 3, 4, and 5. The matter is remanded to the court with directions to prepare a supplemental sentencing minute order and an amended abstract of judgment reflecting these modifications to the judgment, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: McKINSTER
Acting P. J. RAPHAEL
J.