Opinion
B290008
08-31-2020
THE PEOPLE, Plaintiff and Respondent, v. OSCAR CASTELLANOS, Defendant and Appellant.
Brad Kaiserman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Los Angeles County Super. Ct. No. LA081429 APPEAL from a judgment of the Superior Court of Los Angeles County, Eric P. Harmon, Judge. Judgment reversed in part, sentence vacated, and matter remanded for further proceedings. Brad Kaiserman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
A jury convicted Oscar Castellanos of 11 sex crimes he committed over 19 years. The victims were two young girls, the daughters of his wife and a woman he lived with. The trial court sentenced him to 11 consecutive terms of 15 years to life in prison. We reverse in part, vacate the sentence, and remand for resentencing on counts 1 and 12.
BACKGROUND
An information alleged 11 counts of sex crimes committed by Castellanos against Norma T. (counts 1-6) and Sharon Y. (counts 7, 8, 10, 12, and 13). 1. Norma T.
Count 1 alleged continuous sexual abuse of Norma T., a child under 14 years old, on or between December 1, 1996 and December 11, 2001, in violation of Penal Code section 288.5, subdivision (a). Count 2 alleged aggravated sexual assault on Norma, a child under 14, on or between December 11, 2001 and December 11, 2005, in violation of section 269, subdivision (a)(1) and section 261, subdivisions (a)(2) and (a)(6). Count 3 alleged forcible rape of Norma on or between December 12, 2005 and September 1, 2007, in violation of section 261, subdivision (a)(2). Count 4 alleged aggravated sexual assault/oral copulation of Norma, a child under 14, on or between December 11, 2001 and December 10, 2005, in violation of section 269, subdivision (a)(4) and former section 288a, subdivisions (c)(2), (c)(3), and (d). Count 5 alleged aggravated sexual assault/sexual penetration of Norma, a child under 14, on or between December 11, 2001 and December 10, 2005, in violation of section 269, subdivision (a)(5) and section 289, subdivision (a). Count 6 alleged sexual penetration of Norma by a foreign object on or between December 11, 2005 and December 11, 2006, in violation of section 289, subdivision (a)(2).
Subsequent references are to the Penal Code unless otherwise indicated.
Norma, born December 11, 1991, was 25 when she testified. Castellanos was not her biological father; Norma's mother married him when she was a baby. After Norma's mother won the lottery, she used the money to help Castellanos open an upholstery business.
On Halloween when Norma was 5 or 6, Castellanos brought her home after trick-or-treating, asked her if she wanted more candy or ice cream, took her into her bedroom, and touched the bare skin of her vagina. After that first time, about once a week he sent Norma's mother out on an errand, and while she was gone he touched Norma's vagina and grabbed his erect penis. If Norma moved or complained, Castellanos would hit her on her stomach or her arm, where no one could see a mark.
Norma was 10 when Norma's mother gave birth to Castellanos's son Oscar on July 2, 2002. Castellanos and Norma came home from visiting her mother in the hospital. They were sitting on the living room couch watching television. Suddenly, Castellanos got on top of Norma. He took off his jeans, removed her top, shorts, and underwear, and squeezed her breasts and her butt. She screamed, cried, and told him to stop, but he held her down by her arms, spread her legs apart, and put his fingers and then his penis inside her. He moved his penis in and out; it hurt. Castellanos told Norma: "I should get used to it because that's how my boyfriends were going to be treating me." When she screamed, he hit her on her stomach and her arms and put a sock in her mouth. The rape lasted for five minutes, and the marks on her arms lasted for a day. Castellanos then dragged her by the hair and made her take a cold shower while she cried. He told her to clean her vagina, and not to call him dad: "I'm not your father." In the shower, she noticed she was bleeding.
After Norma's mother and Oscar came home from the hospital, Castellanos raped Norma once a week and sometimes more often, sending her mother out on an errand so they would be alone at home. Norma had started her period when she was 10, and sometimes Castellanos used a condom he would take out of his pocket. He would ejaculate and clean himself with a tissue or a napkin, and sometimes he ejaculated on her stomach. The rapes usually took about five minutes, and always hurt. Castellanos told Norma that if she ever told anyone, the family would be separated, and Norma would be put into foster care or an orphanage.
Castellanos usually raped Norma in the afternoon on the bed in her bedroom. Once he raped her at his upholstery business, pushing her onto a piece of foam on a table and forcing his penis inside her vagina. Less often at night (because her mother was usually home), Norma would wake up and find him on top of her, and he would take off her pajamas and put his penis inside her. Sometimes he forced her to suck on his penis, and when she pushed him away he would hit her arm. After the first rape when she was 10 until when she was 15, the longest time Castellanos went without raping Norma was two weeks. She was afraid to tell her mother. She thought Castellanos would hurt her or her family, or that she would be taken away.
When Norma was 13 or 14, she noticed her friend's fathers treated them differently, and started to question what was going on. She became depressed and started to cut herself. Around her sophomore year of high school, she told her best friend that she was cutting herself because her stepfather had raped her. A day or two later, the police and the Department of Children and Family Services (DCFS) got involved.
Her mother asked her if anything was going on and Norma said no, because Castellanos had told her not to tell. Just before they drove to the DCFS office, Castellanos told Norma she had better not say anything. He and Norma's mother were in the room during Norma's interview at the DCFS office. Norma lied, and said it wasn't true and she hadn't told her friend anything. DCFS also came to the house two days later, which scared her.
Soon after the visit to DCFS, she was home alone with Castellanos. Angry, he came into her bedroom, pushed her down on the bed, took her underwear off, forced her legs apart, and pushed her small Dodgers baseball bat deep into her vagina, saying it was what she deserved. It hurt, and she bled. Castellanos then raped her with his penis, and ejaculated.
Most of the times he raped Norma, Castellanos would take photographs of her vagina, and his penis inside it, with his black Razr phone. She never saw the photographs. Once, when Castellanos left the phone on the table, she tried to delete the photographs out of embarrassment, but she couldn't find them.
The last time Castellanos raped Norma, he told her he was frustrated because her mother would not have sex with him, and so Norma had to be raped. He put his penis in her vagina, hit her, and told her she had better not tell anyone.
In 2007, when Norma was 15, her mother told her she was going to divorce Castellanos. Norma then told her mother what he had been doing to her. She gave a statement to the police, and she described the sexual abuse to a nurse at a rape trauma center. After that she and Oscar went into foster care for what seemed like a long time, and the family she once had was over.
A registered nurse practitioner and sexual assault examiner examined Norma on September 1, 2007. Norma said her stepfather's frequent sexual assaults began before she started her period and ended about two weeks ago. The rapes hurt, and although she did not bleed, afterward she felt irritation and burning when she urinated. She said Castellano's penis pointed straight upward, and drew a diagram. The physical examination showed Norma's hymen was estrogenized and could heal rapidly. The nurse saw no injuries, but that was not inconsistent with painful forcible sex over five years, if the last event had been two weeks earlier.
Before the examination, Norma had been in counseling that taught her to try to forget things, so she had forgotten some of the detail she had given the officer two weeks earlier. Spanish was her first language, and some figures of speech meant different things in English.
Norma's mother testified she won $600,000 in the lottery a few weeks after she married Castellanos, and they used the money to buy a house and open his upholstery business, both in his name. She often ran errands for him, and sometimes Castellanos took Norma to the business. Castellanos was a very strict parent. Norma's mother had believed Norma when she recanted her initial claim that Castellanos was sexually abusing her. But a year later, when she told Norma she was planning to divorce Castellanos (in part because of financial problems), Norma again told her about the abuse, and she took Norma to the police. She felt terrible that she had not seen what was happening. Norma's mother left the house and then moved back in after she got a restraining order against Castellanos. Eventually the house was transferred in a short sale because of business loans taken out against it. She walked away from the business, although she did file for child support. Norma's mother never completed the divorce from Castellanos. She had not met Sharon Y. or her mother before the trial. 2. Sharon Y.
Counts 7 and 8 alleged Castellanos committed a lewd act on Sharon Y., a child under 14, on or between June 1, 2015 and June 30, 2015, in violation of section 288, subdivision (a). Count 10 alleged oral copulation or sexual penetration of Sharon, a child 10 years old or younger, on or between May 1, 2014 and August 30, 2014, in violation of section 288.7, subdivision (b). Count 12 alleged sexual intercourse or sodomy of Sharon, a child 10 years old or younger, on or between May 1, 2013 and August 30, 2013, in violation of section 288.7, subdivision (a). Count 13 alleged a lewd act on Sharon, a child under 14, on or between May 1, 2012 and August 30, 2012, in violation of section 288, subdivision (a). The information also alleged a multiple victim special circumstance under section 667.61, subdivisions (b) and (e) on all counts.
Sharon was born January 11, 2004, and she was 13 when she testified. Sharon met Castellanos in 2008 or 2009, when she was four or five. She lived with her biological father in Georgia, and spent winter breaks and two months each summer in Los Angeles with her mother, Mabel M. After Castellanos offered Mabel M. a job in his custom-made furniture business, they began to date, and then lived together at the shop. When Sharon visited Los Angeles, she shared a bedroom in the shop with her younger brother Gerson (by a different father). Eventually they moved to a townhouse.
Castellanos first touched Sharon the summer she was six, after Mabel M. went to pick Gerson up from school, leaving Sharon in the shop with Castellanos. Castellanos touched her thigh while they sat on the couch watching television, and then took her to his bed, but she could not remember what happened then. After that first time, when her mother was gone, he would take Sharon to his bedroom, remove her clothes and underwear, take off his pants and underwear, and get on top of her on the bed, touching her breasts, her butt, and the outside of her vagina with his bare hands and his penis. Sometimes his penis would get hard, and a "clear-ish" liquid came out and landed on her stomach. Castellanos would clean it up with toilet paper. Castellanos did this once or more a week, whenever there was an opportunity. Sometimes he would put her on her stomach and put his penis on her butt. "Because he was doing this to me," she was afraid to tell Mabel M., thinking Castellanos would hurt her mother and brother. She said nothing to Castellanos, afraid he would hurt her too. Because of the abuse, she couldn't really enjoy anything, although she loved her mother.
The same things happened the summer Sharon was seven, whenever Mabel M. left to pick up Gerson. Castellanos would kiss her on her neck and mouth, and put his mouth on her vagina. He made her put her mouth on his penis for about five seconds. He used lotion on his penis when he put her on her back on the bed. Castellanos used a phone to take photographs of her vagina with her legs open, her butt, and his penis on her vagina. When he sat next to her afterwards she saw the photographs on his phone. She was scared and embarrassed, afraid he would show the photographs to someone.
Once when she was on her stomach, Castellanos tried to put his penis in her butt. It hurt and she started to cry. Castellanos told her to stop crying, and he stopped.
The summers that Sharon was eight, nine, and 10, Castellanos did the same thing about once a week, or when he had the opportunity. Sharon was nervous and scared, but she could not see a way out of it. She still told no one, afraid Castellanos would hurt her family and her mother.
When Sharon was in fifth grade in Georgia, a counselor told the students people should not touch them, and if they felt uncomfortable, they should tell an adult. Sharon thought Castellanos might get in trouble. Still, she did not tell her father, even when he asked whether anyone did anything to her during the summer or winter break. She felt "weird" about telling her father, and even at the time of trial, she still had not told him or her mother everything. Her mother was not ready, and her father would feel hurt.
In June 2015, when Sharon was 11, she got her first period. Castellanos continued to touch her about once a week. Around his birthday at the end of June, Sharon wrote Castellanos a letter she intended to give him, hoping he would stop:
" 'Dear Dad, I need to tell you something and I know I'm not the bravest girl in the world but I'm brave to say this . . . but can you please stop doing that to me. I don't like it. When I was little I thought my life was going to be fun and that I was going to be safe, but actually thought a different way. In school a counselor visits us
each nine weeks and talks about not letting anyone do anything to you, and he showed us videos of kids being touched by family members. They were kids who talked about being child abused. When I heard about those kids being child abused I thought about what you do to me. Sorry I had to say this. Sincerely, Sharon.' "She wrote the beginning of another letter: " 'Dear Dad, I want to tell you something that has been bothering me. Dad, can you please stop doing that to me. I don't like what you're . . . .' "
The last time Castellanos touched her was in July 2015. Castellanos drove Sharon to a bakery, and he stopped at the upholstery shop. In the bedroom, he took her clothes off and with Sharon on her back, he got on top of her, rubbing his penis between her legs. Then Castellanos put her on her stomach and put his penis on her bottom. Sometimes Castellanos held his penis while he was touching her.
On July 11, 2015, Sharon argued with Mabel M. after she broke her promise to do Sharon's nails. Sharon went into the townhouse, locked the door, closed all the windows, hid in the closet in her brother's room, and started to cry, thinking about what was happening to her. When Mabel M. found her, it took Sharon a little while to tell her that Castellanos was touching her. Mabel M. wanted all the details, but Sharon wouldn't tell her.
Mabel M. took Sharon to the police station. Sharon talked to officers and to a detective. Sharon was embarrassed. She didn't know the word "penis," or "erection," but she answered their questions. She had another interview and a physical exam at a clinic. It was easier to talk about now that she was a little older, but she still didn't think she was ready to tell her father everything. When she was 11, she didn't know very much about sex, and her father still didn't talk about sex with her. She had not had any sex education.
Sharon believed Castellanos favored his own son, Oscar, and was too strict with Gerson, who had ADHD. Although Castellanos was the family provider, and her mother was better off financially after she married him, Sharon wanted him out of the home, and wanted her mother to leave him.
Mabel M. testified she worked for Castellanos in his shop, and then dated him and moved in with him. She wasn't sure if she ever married him. Until the summer of 2015 when Sharon told her Castellanos was abusing her, he was the sole provider. Castellanos put the business in her name to avoid paying child support to Norma's mother.
The day Sharon told her that Castellanos had been touching her since she was five, Mabel M. went looking for him at the shop. She showed him a photograph of his son Oscar and said: "In the name of your son, tell me the truth, that you have not touched my daughter." His color changed, he grabbed his head, and said "my daughter was a temptation to him," although he also denied it. She told him she believed Sharon. He offered to go to therapy with her and said she could keep the shop, if she didn't tell anyone and kept it in the family.
Later that day, Mabel M. told a police officer Castellanos said: " 'The temptation was there,' " which she interpreted as admitting he did it. She remembered that when she was with Castellanos at shopping malls, he would say that young girls around 12 were staring at him, "they were guilty because of the way they were dressing," and they were provoking him. He called the girls whores.
Officer Toni Wolfe testified she interviewed Sharon in July 2015 after she reported the abuse. Sharon did not use sophisticated words for body parts. She told Detective Wolfe that Castellanos began touching her during her summer visits when she was around six, both at home and at the business. More recently, Castellanos had been putting his penis "on top of her vagina." She had not told anyone, "afraid that he would . . . do something badder to her than what he was already doing." She described how Castellanos asked her to touch his penis, made her kiss it and put it inside her mouth, and how he would use a tissue to wipe up the clear liquid that came out. Sharon said the photographs he took bothered her the most. She described being on her stomach once when he tried to put his penis in her anus. It hurt and she had started to cry.
The sexual assault nurse examiner who saw Sharon in July 2015 testified Sharon told her Castellanos put his penis on or in her vagina. Sharon described the recent abuse in detail, with no mention of attempted sodomy. The nurse examiner was unable to confirm or negate Sharon's descriptions from the physical exam.
Castellanos was arrested at his office on July 21, 2017.
3. Defense evidence
Two days after Sharon reported the abuse, police searched Castellanos's shop and recovered three cell phones and an iPad. Examination of the devices, including a review of deleted photographs, recovered no photographs of minors involved in sexual activity.
An officer who took a statement from Norma in 2007 testified she said Castellanos abused her when she was 10, while her mother was in the hospital giving birth to her brother, and continued to rape her for five years.
Castellanos testified he was born in Guatemala. His mother and father raised him until he was seven, when his father died and he was sent to live with a family friend. The friend was very strict and physically abusive, punching Castellanos on the arms if he made mistakes. He taught Castellanos the furniture and upholstery business, and Castellanos lived in the shop.
Castellanos married in Guatemala and had two daughters. He divorced his wife a year after he came to the United States. When he met Norma's mother, he worked as an upholsterer for someone else. She did not work, and he was the sole provider, working two jobs.
Norma was only eight months old when he met her mother, and he raised Norma as his daughter. He had been raised strictly by a demanding man who pushed him a lot, so he did the same to Norma. After Norma's mother won the lottery, they used the money to buy a house and start his business. When the business lost money, he borrowed on the house. They refinanced the house in Norma's mother's name because she had better credit. He put in long hours six days a week, constantly worrying about money and arguing with Norma's mother. He was under a lot of stress, and could not talk about his feelings or be in a good mood with the kids. He expected perfection from Norma. She pushed back, complaining she couldn't do what her friends did.
Castellanos denied he was in the room when Norma was questioned at the DCFS office. He never abused Norma with a baseball bat. After the first allegation of abuse, he and Norma's mother fought over her suspicions he was having an affair with his secretary.
When he married Mabel M., he believed his divorce from Norma's mother was final. He put the business in Mabel M.'s name a few months after he met her. Norma's mother was furious about this relationship and started limiting his time with his son Oscar. She filed a restraining order against him in November 2010. He told Mabel M. about the restraining order, and about the false allegations that he sexually abused Norma.
Mabel M. repeatedly cheated on Castellanos. She expected him to discipline Gerson, who had something wrong with him and was wild and hard to handle. Sharon got upset when he disciplined Gerson, and Mabel M. spoiled Sharon by giving her anything she asked for. He was paying child support to Norma's father in Georgia, and he was the sole provider.
Castellanos denied being home alone with either Norma or Sharon during the week. He never abused Norma or Sharon. When Mabel M. accused him of abusing Sharon, he had denied it and said he never touched Sharon. He never said Sharon was a temptation, and never took inappropriate photographs of Sharon or Norma. He thought Norma's mother falsely alleged that he abused Norma because they were getting divorced, and she wanted to sell the house and the business.
The jury convicted Castellanos on all 11 counts, as detailed below in our sentencing discussion. The trial court sentenced him to consecutive terms of 15 years to life in prison on each count.
DISCUSSION
1. TRIAL ISSUES
A. Exclusion of the U-visa evidence was not an abuse of discretion
Before opening statements, defense counsel stated he had just seen a letter from Sharon's father, Salvador G., indicating that he needed a U-Visa. Sharon therefore had a motive to testify that Castellanos sexually abused her, to make her father eligible for a U-Visa and allow him to stay in the United States. The prosecutor responded that after the preliminary hearing, Salvador G. told her he might apply for a U-Visa so he could remain in the country because of Sharon's counseling as a crime victim. The prosecutor had exchanged messages with, but not spoken to, Salvador G.'s lawyer, and her office had a formal procedure for U-Visa requests. Sharon had heard about a U-Visa, but she did not know what it was or its effect. Defense counsel explained that if Salvador G. had told Sharon about the U-Visa, he wanted to introduce evidence that Sharon's testimony was motivated by her desire to help her father get the visa.
The trial court held a hearing. Sharon testified she had truthfully reported Castellanos's crimes because she could not handle it anymore, and she did not feel safe. She did not know what a U-Visa was. Her father had mentioned it after she told her mother about the abuse, but before she spoke to the nurse. She knew it had something to do with "papers for the United States," although she did not know what effect those papers would have. She did not know whether her father was in the country legally, although he had said he didn't have papers. She knew he was more likely to get those papers if Castellanos was convicted of the charged crimes. The papers would not influence her testimony.
The trial court excluded the evidence, seeing no possibility that Sharon's testimony against Castellanos would be influenced by a desire to help her father get a U-Visa. She was unsophisticated and knew nothing about her father's immigration status, and it was unreasonable to conclude she had a motive to fabricate the allegations. Complicated evidence about U-Visas would confuse the jury and had only remote probative value. Sharon's hearing testimony was credible, and given the timing, her age, and the confusion inherent in the visa evidence, the court concluded there was no link between the U-Visa and Sharon's allegations against Castellanos.
During a break in Sharon's trial testimony, defense counsel told the court he wanted to call Sharon's father as a witness, in part to elicit testimony that he had an interest in making sure Castellanos was convicted to improve his chances of getting a U-Visa. A February 2017 letter to the prosecutor from Salvador G. enclosed forms for the U-Visa. The prosecutor stated she learned he was considering a request for a U-Visa after the preliminary hearing in February 2017, although someone from her office may have suggested the visa to him around the time of filing in July 2015. The court noted that was two years earlier, and stated: "I think the U-Visa issue is confusing and it's excludable under 352. I'm incorporating the same analysis." Defense counsel wanted to call Salvador G. to impeach him with the U-Visa, but the court considered that too confusing for the jury, "especially given the minimal impact, if any, that it had on the person who's making the accusations."
After Sharon testified, defense counsel again said he wanted to undermine her credibility with evidence about the U-visa. The court complimented counsel on his advocacy but stated: "My ruling remains undisturbed."
After the jury convicted Castellanos, his new trial motion raised the U-Visa issue anew. At argument on the motion, the prosecutor stated she had learned Salvador G. had been stopped for driving without a license in late 2012, and in January 2013, immigration officers told him that despite this offense they would not deport him because they did not want to separate him from Sharon.
The trial court reaffirmed its ruling as within its discretion under Evidence Code section 352. The probative value would be outweighed by prejudice and confusion: "[E]specially in the climate that we live in now politically, . . . the issues of immigration are inflammatory and . . . they have the tendency to distract the jurors from their decisions. . . . [T]o cross-examine a 13-year-old regarding her very limited knowledge regarding her father's U-Visa immigration status, that would just open up a can of worms that would distract the jury from addressing her credibility as it related to sexual assault." The court also found the exclusion of the evidence did not violate Castellanos's Sixth Amendment right to cross-examination and confrontation.
The trial court has considerable discretion to determine whether evidence is relevant, and whether its probative value would be substantially outweighed by undue consumption of the court's time, or by confusing the issues and misleading the jury. (Evid. Code, § 352.) We reverse only if the court's exercise of discretion was arbitrary, capricious, or absurd, and if the result was a "manifest miscarriage of justice." (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)
A U-Visa is "a temporary nonimmigrant visa created by Congress to provide legal status for noncitizens who assist in the investigation of serious crimes in which they have been victimized." (People v. Morales (2018) 25 Cal.App.5th 502, 506; 8 U.S.C. § 1101(a)(15)(U); 8 C.F.R. § 214.14 (2020).) Under some circumstances, a parent of a child victim may be eligible for a U-Visa if the parent cooperates with law enforcement officials on the victim's behalf. (8 C.F.R. 214.14(a)(14)(i) (2020).)
Other state courts have held a witness may be impeached with evidence of an application for a U-Visa. The South Carolina Supreme Court noted: "[c]onsidering the significance of obtaining a U-Visa and the manner in which the visa is acquired, a jury could see the U-Visa applications as a means of establishing bias." (State v. Perez (2018) 816 S.E.2d 550, 555.) In State v. Del Real-Galvez (2015) 346 P.3d 1289, a jury convicted the defendant of sexual abuse and coercion, after the trial court excluded evidence that the minor victim's undocumented mother had applied for a U-Visa based on her daughter's allegations. (Id. at pp. 1290-1291.) A defense witness testified she overheard the mother tell the victim (a few years before the disclosure of the abuse) that they could claim sexual abuse so the mother could get her visa, and nothing would happen to the victim because she was born in the United States. (Id. at p. 1292.) The Oregon Court of Appeals concluded the evidence was relevant ("a jury could reasonably infer that [the victim], out of a desire to help her mother obtain a U-Visa, had a personal interest in testifying against defendant") and excluding the evidence was not harmless, as the prosecution had argued the victim had no motive to fabricate allegations against the defendant. (Id. at p. 1294.)
Castellanos argues the evidence that Sharon's father sought a U-Visa was relevant to show Sharon had an ulterior motive to lie when she testified. We think any relevance was slight. Sharon testified at the hearing that her father first mentioned a U-Visa after she reported the sexual abuse to her mother. She did not know what the visa was and did not know whether her father was in the country legally. She did know he didn't have "papers," and was more likely to get them if Castellanos was convicted, but the "papers" would not influence her testimony. We agree with the trial court's reasonable conclusion that at 13, Sharon was unsophisticated, ignorant of her father's immigration status, and unlikely to have a motive to lie at trial. She told her mother about the sexual abuse when she was 11, before she even had heard of a U-Visa, so the excluded evidence would not show a motive to invent false allegations in the first place. The impeachment value of the evidence was minimal.
The trial court also reasonably decided that introducing complicated evidence about federal immigration law would consume undue time, confuse the issues, and mislead the jury. Castellanos would have needed to introduce expert testimony about the U-Visa program and the nature of temporary protected status. Additional testimony would be necessary to establish Salvador G.'s immigration status, whether his U-Visa eligibility would be affected by his 2012 offense, and what he told Sharon and when. The prosecution would have been entitled to rebut Castellanos's evidence with its own expert. Taking such a long and winding detour makes even less sense given Sharon's testimony at the hearing that she did not know her father's immigration status.
Castellanos does not separately argue that the trial court abused its discretion when it did not allow him to call Salvador G. as a witness.
And we cannot ignore that admitting testimony about Salvador G.'s right to be in the country (and his interactions with immigration officials) would have significant potential to prejudice the jury. After Castellanos was convicted in 2017, Evidence Code section 351.4 went into effect on May 17, 2018, providing: "In a criminal action, evidence of a person's immigration status shall not be disclosed in open court by a party or his or her attorney unless the judge presiding over the matter first determines that the evidence is admissible in an in camera hearing requested by the party seeking disclosure of the person's immigration status." (Evid. Code, § 351.4, subd.(a), added by Stats. 2018, ch. 12, § 2.) When the statute was enacted, the Legislature found it should take effect immediately, to protect undocumented residents and their ability to participate in the justice system. (Stats. 2018, ch. 12, § 3.) The prejudice inherent in evidence that Salvador G. was an illegal immigrant in need of a U-Visa would far outweigh its marginal probative value.
Castellanos also argues the exclusion violated his Sixth Amendment right to cross-examine Sharon. The trial court must afford a criminal defendant the opportunity for effective cross-examination of adverse witnesses. (People v. Carter (2005) 36 Cal.4th 1114, 1172.) A defendant's confrontation clause rights are violated if he is prohibited from conducting an appropriate cross-examination to show that a witness is biased, so that the jury can draw legitimate inferences about the witness's reliability. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680.) But a trial court's ruling under Evidence Code section 352 excluding evidence with only marginal impeachment value does not infringe on those rights. (People v. Blacksher (2011) 52 Cal.4th 769, 821.) The trial court retains wide latitude to impose reasonable limits on cross-examination "based on concerns about, among other things, . . . prejudice, confusion of the issues, . . . or interrogation that is repetitive or only marginally relevant." (Van Arsdall, at p. 679.)
Given the strong evidence of Castellanos's guilt provided by Sharon's detailed and extensive testimony, it is not reasonably likely the outcome would have been more favorable if the trial court had admitted the marginally relevant U-Visa evidence. (People v. Humphrey (1996) 13 Cal.4th 1073, 1089.) Nor did the exclusion of the evidence make Castellanos's trial fundamentally unfair, as it did not have significant probative value to aid in his defense. (People v. Cornejo (2016) 3 Cal.App.5th 36, 58-59.)
B. Admission of Castellanos's statements about 12-year-old girls was not an abuse of discretion
Defense counsel objected to the introduction of Mabel M.'s testimony that Castellanos said 12-year-old girls at malls dressed provocatively and seemed interested in him. The prosecutor argued the evidence was relevant to show his sexual interest in young girls. The court admitted the statement as relevant to Castellanos's state of mind and attraction to young girls, finding its probative value was not substantially outweighed by any prejudicial effect.
The probative value of the testimony is clear. Evidence that Castellanos believed 12-year-old girls dressed provocatively and were attracted to him tends to show that he viewed young girls as sexually aware and capable of being sexually attracted to him, and that he in turn was attracted to them. The testimony also was consistent with Mabel M.'s statement that Castellanos said Sharon was a temptation to him. The testimony tended to show his state of mind.
Castellanos argues the evidence was unduly prejudicial because jurors might perceive him as judgmental about "perceived sexual impropriety" in 12-year-old girls, and so conclude he had bad character. This sort of prejudice is unlikely, and certainly outweighed by the testimony's probative value. We dismiss Castellanos's illogical argument that the testimony allowed the jury to overlook inconsistencies in Sharon's and Norma's testimony. The testimony had no bearing on their credibility.
C. No prosecutorial misconduct occurred
Castellanos argues that several instances of prosecutorial misconduct made his trial fundamentally unfair. We disagree. A prosecutor's behavior violates the federal constitution when it is " ' " ' "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process," ' " ' " and it is misconduct under state law if the prosecutor used deceptive or reprehensible methods to try to sway the court or the jury. (People v. Hill (1998) 17 Cal.4th 800, 819.) The instances of alleged misconduct, considered separately or cumulatively, do not cast doubt on the integrity of the guilty verdict, or show deceptive or reprehensible behavior by the prosecutor.
D. The restraining order violation
Before trial began, at defense counsel's request, the court instructed the prosecutor not to present evidence of any uncharged acts related to domestic violence or other uncharged crimes (except for sex crimes remembered by an alleged victim). In her opening statement, after describing Norma's decision to report Castellanos's sexual abuse to the police, the prosecutor added: "There was a restraining order in place and the defendant later violated it." The next day, prior to Sharon's testimony, defense counsel objected, pointing out the court had ruled that the prosecutor could not reference other conduct without prior notice to the defense. Defense counsel explained Norma's mother had obtained a civil restraining order in 2010, after Castellanos became very upset during a custody dispute over Oscar. On November 9, 2013, Castellanos unwittingly entered a Sears store where Norma happened to work, and they saw each other. The prosecutor responded she did not think a civil restraining order violation was the type of other crime evidence prohibited by the court. Defense counsel worried the jury might believe the restraining order was based on domestic violence.
The court ruled the prosecutor's statement had "minimal effect, if any" because it was so unclear, and a hearing would be necessary before the introduction of any related evidence. If the prosecutor introduced evidence, at that time the court would address its relevance and effect.
At trial, Norma's mother testified she obtained a restraining order against Castellanos after Norma reported the sexual abuse in 2007. She had continually renewed the restraining order. She did not testify that Castellanos violated the order. One of the investigating officers testified his search did not locate a 2007 restraining order against Castellanos, but he only searched domestic violence restraining orders, and that did not mean another type of restraining order did not exist.
Near the end of rebuttal evidence, defense counsel argued the prosecutor committed misconduct in oral argument by mentioning the restraining order violation. He asked the court to tell the jury the prosecutor had committed misconduct, and to caution them not to consider the statement. The court declined to tell the jury she had committed misconduct but agreed to tell them they should not consider the statement. Counsel then requested a hearing on the violation. The court denied the request.
The court instructed the jury: "In her opening statement, the prosecutor mentioned an alleged violation of a restraining order. During the trial, you heard no evidence that the defendant violated a restraining order; therefore, you are not to consider, for any reason, any suggestion of a violation of a restraining order." The court also instructed: "Nothing that the attorneys say is evidence in their opening statements and closing arguments."
In closing argument, defense counsel argued the prosecutor was trying to inflame the jury against Castellanos. Unlike the prosecutor, defense counsel would never "say things that weren't true . . . to tell you in opening statement he violated a restraining order when I know there is no evidence he violated a restraining order." The prosecutor objected to this mischaracterization of the evidence, and the court allowed defense counsel to proceed.
Castellanos's new trial motion argued that the reference to a restraining order violation was egregious prosecutorial misconduct. The prosecutor's objection during his closing argument was also misconduct because it implied there was evidence of a violation. At argument on the new trial motion, the court pointed out that no evidence of a restraining order had been introduced, and the jury was instructed that what attorneys say is not evidence. Given that a restraining order violation was not inflammatory compared to the serious sex crimes charged against Castellanos, the jury would be able to put the prosecutor's reference in proper perspective. The prosecutor stated she thought defense counsel was concerned about prior sexual misconduct, and he had not moved to exclude evidence of a restraining order, although the exhibits included a 2013 police report in which officers indicated there was a 2010 restraining order and described a violation.
The trial court denied the new trial motion. The prosecutor's mention of the restraining order in her opening statement required a timely objection and could be cured by instruction. The jury had been instructed more than once that counsel's statements were not evidence, the reference to the restraining order did not require an automatic mistrial, and the court did not see a pattern of misconduct.
When a claim of misconduct is based on a prosecutor's comments before the jury, we ask "whether there is a reasonable likelihood the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Hamilton (2009) 45 Cal.4th 863, 952.) The prosecutor's single, isolated remark about a restraining order violation lacked any context or description of the order. The remark was not inflammatory, especially given the officer's testimony he searched 2007 domestic violence restraining orders and found none against Castellanos. The court instructed the jury to disregard the prosecutor's remark and statements by attorneys were not evidence. We presume the jury followed the court's instructions, and it is not reasonably likely the jury construed the remark in an objectionable way.
E. The act of hugging Sharon
While Sharon read the letters she wrote to Castellanos, she began to cry and could not continue. The prosecutor asked her if she needed a break and she nodded. The court announced a 10-minute recess.
After Sharon and the jury left the courtroom, defense counsel stated that after the court excused the jury and while all the jurors were still in the jury box, the prosecutor approached Sharon and, a few steps from the witness stand and five feet from the jury box, embraced her for seven seconds. As the jury continued to file out, she embraced Sharon again for three seconds. Counsel moved for a mistrial, claiming the prosecutor "was trying to provoke the child into crying" and then hugged her in front of the jury while some of the jurors were looking. The court responded that the prosecutor did embrace and comfort Sharon, but it did not rise to the level of mistrial. Defense counsel persisted "that is beyond the pale," the prosecutor was experienced and knew better, and the damage was done. The court admonished the prosecutor the hug was inappropriate "in front of the jury, not to comfort to that degree." The prosecutor responded she was new to sex crimes prosecutions and rarely had child witnesses. The court acknowledged the hug might seem improper vouching, but declined to make "a big deal" of it now. Defense counsel requested an instruction, and when the jury returned, the court told them: "[A]s we broke, you may have seen the district attorney give a hug to the witness. You're not to infer anything at all from that."
The new trial motion argued the prosecutor committed misconduct when she hugged Sharon, implicitly vouching for her and trying to engender sympathy from the jury. At the hearing, defense counsel argued the prosecutor knew the jurors were watching.
The trial court found no misconduct by the prosecutor. A lawyer's show of emotion always risks inflaming the emotions of the jury, but the prosecutor's brief and isolated embrace of Sharon was not vouching. In any event, the court had given a curative instruction, and none of the instances of alleged misconduct, separately or cumulatively, cast doubt on the integrity of the verdict.
While hugging Sharon in front of the jury was inappropriate, it did not constitute vouching. It is not reasonably probable the jury would have reached a different result if the prosecutor had not hugged Sharon. The jury heard the court's instruction "not to infer anything at all" from the hug, and we assume they followed that instruction.
F. Calling Castellanos a "monster"
In closing argument, the prosecutor suggested that Castellanos's childhood "created the monster he's become." Castellanos was obviously intelligent, he had significant work skills, "and he's a monster, and an absolute monster." The defense argued in closing that Norma's mother did not treat Castellanos as if he were a monster. In her rebuttal, the prosecutor expressed sadness about Castellanos's childhood, adding: "I regret even more, though, that he turned into the monster he turned into."
Defense counsel did not object to these statements or request admonishment of the prosecutor. This forfeits the argument on appeal that the statements were misconduct. (People v. Farnam (2002) 28 Cal.4th 107, 200.) In addition, the word "monster" was a fair comment on the evidence that Castellanos preyed on the two young daughters of women he lived with, sexually assaulting them for years beginning when they were five or six. (Ibid.) "The use . . . of these kinds of terms can constitute permissible comment regarding egregious conduct on defendant's part. That was the case here. Even if the use of these characterizations could be viewed as misconduct, defendant suffered no prejudice. An objection and admonition would have cured any error; defendant made no objection. Moreover, the prosecutor's exaggerated expressions were brief and isolated instances, and emanated from the heinous details of defendant's crimes . . . ." (People v. Sully (1991) 53 Cal.3d 1195, 1249-1250.) The absence of prejudice also defeats Castellanos's argument that counsel's failure to object was ineffective assistance. (People v. Osband (1996) 13 Cal.4th 622, 700-701.)
G. The failure to instruct on sexual penetration with a foreign object in count 6 was not harmless error
Castellanos also argues that the trial court failed to give a specific jury instruction on sexual penetration with a foreign object (count 6), and this failure to instruct is structural error requiring reversal. We agree the failure to give an instruction was error and the error was not harmless, and we reverse Castellanos's conviction on count 6.
Count 6 charged Castellanos with sexual penetration of Norma by a foreign object (the Dodgers baseball bat) on or between December 11, 2005 (when Norma turned 14) and December 11, 2006 (when Norma turned 15), "by threatening to retaliate in the future against Norma T. and another person and there was a reasonable possibility that the threat would be executed," in violation of section 289, subdivision (a)(2). Count 6 was the only charge under subdivision (a)(2), which punishes "[a]ny person who commits an act of sexual penetration when the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat." "As used in subdivision (a), 'threatening to retaliate' means a threat to kidnap or falsely imprison, or inflict extreme pain, serious bodily injury or death." (§ 289, subd. (l).) The court instructed the jury that count 6 required specific intent, but gave the jury no separate instruction on the elements of sexual penetration with a foreign object accomplished by threatening future retaliation under section 289, subdivision (a)(2).
We review claims of instructional error de novo. (People v. Rivera (2019) 7 Cal.5th 306, 326). The trial court has a sua sponte duty to instruct the jury on all the essential elements of each charged offense, and the failure to do so is a serious constitutional error that threatens the right to jury trial under the state and federal constitutions. (Id. at p. 333.) Each criminal defendant has a right to have a jury determination that he is guilty beyond a reasonable doubt of every element of the charged crime. When the jury has not been instructed on one of those elements, "[t]he error is reversible unless 'it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error.' " (Ibid.) "[T]he omission of an element of a charged offense . . . is harmless when 'the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error . . . .' " (People v. Mil (2012) 53 Cal.4th 400, 410.) We must " 'conduct a thorough examination of the record. If, at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error—for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding—it should not find the error harmless.' " (Id. at p. 417.)
As the jury would have learned from a proper instruction, a violation of section 289, subdivision (a)(2) requires proof of the following elements: (1) Castellanos committed an act of sexual penetration with another person; (2) the penetration was accomplished by using a foreign object; (3) the other person did not consent to the act; and (4) Castellanos accomplished the act "by threatening to retaliate against someone when there was a reasonable possibility that the defendant would carry out the threat. A threat to retaliate is a threat to kidnap, unlawfully restrain or confine, or inflict extreme pain, serious bodily injury, or death." (CALCRIM No. 1045.) The court instructed the jury on sexual penetration for count 5, which alleged aggravated sexual abuse of Norma based on sexual penetration in violation of sections 289, subdivision (a) and 269, subdivision (a)(5): "Sexual penetration means penetration, however slight, of the genital or anal opening of the other person for the purpose of sexual abuse, arousal, or gratification." The jury also was instructed on the definition of a foreign object, and that consent by a child under 16 was no defense. But the People and Castellanos agree the jury received no instruction at all on the last element, that Castellanos must have threatened to retaliate against Norma or someone else in the future, with a reasonable probability that he would carry out the threat to retaliate, meaning a threat to kidnap, falsely imprison, or inflict extreme pain, serious bodily injury, or death.
After reviewing the entire record, we cannot conclude beyond a reasonable doubt that the jury verdict would have been the same if the court had instructed the jury that to convict Castellanos on count 6, the jury must find that when he raped Norma with the baseball bat, he threatened her with future retaliation such as kidnapping, false imprisonment, the infliction of extreme pain, bodily injury, or death (to Norma or someone else), and there was a reasonable probability he would carry out the threat. Norma testified that in general, Castellanos would tell her he would hurt her or her family, or she would be taken away from her family, and she believed him, scared of what he might do. The People argue "[s]uch fear, when the evidence is considered in its entirety, could reasonably have arisen from appellant's express or implied threats to inflict extreme pain as he in fact did." But we apply a much higher standard than whether a jury could reasonably conclude that Norma's fear arose from Castellanos's threats to retaliate. Instead, it must be clear to us beyond a reasonable doubt that a rational jury would have so concluded. (People v. Merritt (2017) 2 Cal.5th 819, 831.) An instructional error omitting an element of the offense "will be deemed harmless only in unusual circumstances, such as where each element was undisputed, the defense was not prevented from contesting any [or all] of the omitted elements, and overwhelming evidence supports the omitted element." (Id. at p. 828, italics added.) " 'Our task, then, is to determine "whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element." ' " (People v. McCloud (2017) 15 Cal.App.5th 948, 957.)
Here, the record contains evidence that could rationally lead to a finding that when Castellanos penetrated Norma with the baseball bat, he did not overcome Norma's will by threatening to retaliate by kidnapping, restraining, or inflicting extreme pain on Norma or someone else in the future. Although the alleged act was unspeakable, we cannot ignore the specific language of section 289, subsection (a)(2). It follows that failing to instruct at all on the element of future retaliation was not harmless error and requires reversal of Castellanos's conviction on count 6.
We also conclude there was insufficient evidence to allow a jury to find beyond a reasonable doubt that Castellanos threatened to retaliate by kidnapping, restraining or confining, or inflicting extreme pain, serious bodily injury, or death on Norma or someone else in the future. The record contains no evidence that Castellanos made threats of that kind when he penetrated Norma with the Dodgers baseball bat. Because there was insufficient evidence to support a jury finding of guilt on the element omitted from the jury instructions, double jeopardy principles do not allow Castellanos to be retried on count 6. (People v. Hayes (1990) 52 Cal.3d 577, 631.)
H. The trial court correctly instructed the jury with CALCRIM No. 3501
Castellanos argues the court erred when it instructed the jury with CALCRIM No. 3501, because that instruction allowed the jury to find him guilty of the continuous sexual abuse of Norma and additional individual sex crimes against Norma that occurred during the period of continuous sexual abuse.
Count 1 of the information charged Castellanos with the continuous sexual abuse of Norma on or between December 1, 1996 and December 11, 2001, in violation of section 288.5, subdivision (a). The other counts charged individual sex crimes against Norma on dates outside the period of alleged continuous sexual abuse. Counts 2, 4, and 5 charged acts occurring on or between December 11, 2001 and December 10, 2005, and count 3 charged an act occurring on or between December 12, 2005 and September 1, 2007.
Because we reverse the conviction on count 6 on other grounds, we do not include that count in this discussion. --------
Section 288.5, subdivision (a), punishes any person who lives in the same home with a minor child and who, over a period of at least three months, engages in three or more sex crimes with a child under 14. Subdivision (b) states a jury "need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number." To avoid multiple convictions, subdivision (c) states: "No other act of substantial sexual conduct . . . with a child under 14 years of age at the time of the commission of the offenses . . . 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." (See People v. Johnson (2002) 28 Cal.4th 240, 248.)
Castellanos agrees the information did not charge individual crimes against Norma within the period of continuous sexual abuse, but he argues the jury instruction allowed the jury to find him guilty of individual crimes within the period. We disagree.
As given, the jury instruction stated:
"The defendant is charged in counts 1, 2, 3, 4, 5, and 6, with conduct that occurred sometime during the period of December 1, 1996 to December 11, 2006 (Norma T.) . . . . [¶] The People have presented evidence of more than one act to prove that the defendant committed these offenses. You must not find the defendant guilty unless: [¶] 1. You all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed for each offense; [¶] OR [¶] 2. You all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period and have proved that the defendant committed at least the number of offenses charged."The jury found Castellanos guilty "as charged in [the relevant count] of the Information."
During the conference on jury instructions, the court pointed out that all the counts of individual sexual offenses against Norma alleged dates outside the period of continuous sexual abuse alleged in count 1. As there was no reason to explain that a jury could not convict Castellanos of an individual offense that was one of the three acts required for a conviction of continuous sexual abuse, the court would not instruct the jury that duplicate convictions were not allowed. Castellanos did not object to the instruction as given, so he has forfeited any claim that the trial court should have clarified or amplified the instruction. (People v. Covarrubias (2016) 1 Cal.5th 838, 901.) In any event, any error was harmless.
The trial court must give a unanimity instruction when the prosecution presents evidence of multiple acts to prove a single count. (People v. Riel (2000) 22 Cal.4th 1153, 1199.) CALCRIM No. 3500 is the standard unanimity instruction, requiring all the jurors to agree on the act constituting the offense charged ("You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed."). But when (as here and as in many child sexual abuse cases) a victim testifies that repeated, but undifferentiated, acts of sexual abuse happened during a particular time frame, and "when there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim." (People v. Jones (1990) 51 Cal.3d 294, 322.) A jury will either believe or disbelieve a child's testimony that the acts occurred repeatedly, " 'for if the jury believes the defendant committed all the acts it necessarily believes he committed each specific act.' " (Ibid.) CALCRIM No. 3501 is consistent with these principles.
Castellanos does not argue the court should not have given the instruction. He claims the language of the instruction combined the time periods for the continuous sexual abuse count and the individual crime counts, and so it allowed the jury to rely on the individual crimes occurring outside the time period in count 1 to support his conviction for continuous sexual abuse.
But even if this were error, the error was harmless beyond a reasonable doubt. Norma's testimony regarding count 1, continuous sexual abuse on or between December 1, 1996 and December 11, 2001, was generic rather than specific about individual acts of abuse (she testified Castellanos touched her vagina and grabbed his penis about once a week from when she was five or six to until she was 10). She testified specifically about the other alleged acts of abuse outside the period of continuous abuse. The jury was presented with a simple choice: believe Norma, or believe she was falsely accusing Castellanos. When the jury convicted Castellanos, it rejected his sole defense that Norma and her mother made up all the testimony about his abuse, and determined he committed both the continuous sexual abuse alleged in count 1, and the individual acts alleged outside that period in counts 2, 3, 4, and 5.
I. Cumulative prejudice does not require reversal
Castellanos argues cumulative prejudice requires reversal of the entire judgment. We find no trial error except for the failure to instruct on count 6, and we reverse his conviction on that count. Castellanos was not deprived of due process by the cumulative effect of multiple errors. (Taylor v. Kentucky (1978) 436 U.S. 478, 488, fn. 15; People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)
2. SENTENCING ISSUES
A. The trial court must resentence Castellanos on count 1
Castellanos argues, and the People concede, that the court erred when it applied the multiple victim special circumstance allegation to the continuous sexual abuse alleged in count 1, because the alleged period of sexual abuse occurred before the effective date of the amendment adding section 288.5 to the list of sex offenses in section 667.61 (the One Strike law). Counsel raised this issue at the sentencing hearing.
The One Strike law requires indeterminate life sentences for listed sex offenses committed under certain aggravating circumstances. (§ 667.61, subd. (b); People v. Valenti (2016) 243 Cal.App.4th 1140, 1174 (Valenti).) Effective September 20, 2006, the law was amended to apply to defendants convicted of continuous sexual abuse of a child in violation of section 288.5. (Stats. 2006, ch. 337, § 33.) Before 2006, section 288.5 was not a One Strike offense. (Valenti, at p. 1174.) Because the indeterminate life sentences not prescribed by section 667.61 greatly exceed the determinate sentences previously imposed for violations of section 288.5, "the ex post facto clause prohibits sentencing defendants under the One Strike law for section 288.5 violations committed before September 20, 2006." (Valenti, at p. 1174.)
Count 1 alleges Castellanos committed continuous sexual abuse of Norma on or between December 1, 1996 and December 11, 2001. Because that period precedes the effective date of the amendment adding section 288.5 to the list of offenses under the One Strike law, we vacate the indeterminate sentence imposed for count 1, and remand for the imposition of an authorized determinate term. (Valenti, supra, 243 Cal.App.4th at p. 1175.)
B. The sentences on counts 2 , 4 , and 5 are proper
Castellanos argues that his convictions in counts 2, 4, and 5 were for aggravated sexual assault of a child (Norma) under section 269, which also is not listed in the multiple victim provision of section 667.61. He acknowledges that the same sentence would be imposed under section 269, and requests the record be corrected to reflect that section 269 is the basis for his sentence on those counts. However, no correction is necessary. Each of Castellanos's section 269 convictions was based on a crime expressly mentioned in section 667.61, subdivision (c) (in count 2, rape in violation of section 261, subdivisions (a)(2) and (a)(6); in count 4, oral copulation under former section 288a, subdivisions (c)(2), (c)(3), and (d); and in count 5, sexual penetration under section 289, subdivision (a)). When the jury found Castellanos guilty on counts 2, 4, and 5, it necessarily found beyond a reasonable doubt that he was guilty of the predicate offenses, all of which appear in section 667.61, subdivision (c). (People v. Jimenez (2000) 80 Cal.App.4th 286, 290-292; People v. Figueroa (2008) 162 Cal.App.4th 95, 98-100.)
C. The trial court stated it would exercise its discretion to impose consecutive sentences on counts 1 , 10 , and 12
The prosecutor recommended Castellanos receive 15 years to life on each count, to be served consecutively. The trial court explained counts 1, 10, and 12 "are all mandatory consecutive. Even if I were not required to sentence him to mandatory consecutive sentences, I would still impose them consecutively, particularly the ones prior to the 2006 amendment [count 1]. Even if I were not required to, I would exercise my discretion and do so for the reasons I'm about to explain." (Italics added.) Given Castellanos's "horrific actions against two totally innocent little girls," the court imposed consecutive terms of 15 years to life on each count.
Section 667.6, subdivision (d), requires the trial court to impose a consecutive term for each offense specified in subdivision (e) "if the crimes involve separate victims or involve the same victim on separate occasions." Castellanos argues the trial court was not required to impose consecutive sentences on counts 1, 10, and 12, and we must remand for the trial court to exercise that discretion.
On count 1, the People concede that the sentence was not mandatorily consecutive, because the period during which Castellanos continuously sexually abused Norma as alleged in that count (on or between December 1, 1996 and December 11, 2001) predated the 2006 addition of section 288.5 to section 667.6 in subdivision (e)(6).
On count 10, the jury found Castellanos guilty of oral copulation or sexual penetration of Sharon, a child 10 years old or younger, on or between May 1, 2014 and August 30, 2014, in violation of section 288.7, subdivision (b). On count 12, the jury found him guilty of sexual intercourse or sodomy of Sharon, a child 10 years old or younger, on or between May 1, 2013 and August 30, 2013, in violation of section 288.7, subdivision (a). Neither subdivision (a) nor (b) of section 288.7 appears in subdivision (e) of section 667.6 as in effect in 2013 and 2014, and therefore consecutive sentences were not mandatory for counts 10 and 12.
But the trial court explicitly stated it would impose a consecutive sentence on each of counts 1, 10, and 12, even if it had the discretion to make the sentence concurrent. As required, the trial court gave its reasons for imposing consecutive sentences, describing Castellanos's "horrific" sexual abuse of Norma and Sharon. (Cal. Rules of Court, rule 4.406 (a), (b)(5); People v. Powell (1980) 101 Cal.App.3d 513, 518.) It would be an empty exercise to remand for an exercise of discretion, after the court has made it abundantly clear it would not exercise that discretion to impose a concurrent sentence. (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) We therefore affirm the consecutive sentences.
D. The sentence on count 12 must be corrected to 25 years to life
As the People point out, a defendant convicted under section 288.7, subdivision (a) "shall be punished by imprisonment in the state prison for a term of 25 years to life." On remand for resentencing on count 12, the trial court shall correct the sentence on count 12 to 25 years to life.
E. Castellanos should raise any challenge to the fines and fees on resentencing
The trial court imposed a restitution fine of $10,000 (§ 1202.4, subd. (b)), $440 in court security fees (§ 1465.8), and $330 in criminal conviction assessments (Gov. Code, § 70373). Castellanos argues the court should have held a hearing to determine his ability to pay, citing People v. Dueñas (2019) 30 Cal.App.5th 1157. The California Supreme Court is currently considering whether a court must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments. (People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.) Because we remand for resentencing, we need not decide whether Castellanos is entitled to an ability to pay hearing. Castellanos should raise any challenge to the fees or fines at the sentencing hearing.
DISPOSITION
The conviction on count 6 is reversed. The sentence is vacated and the matter is remanded for resentencing on count 1 and count 12. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J. We concur:
EDMON, P. J.
LAVIN, J.