Opinion
H042918
05-02-2017
THE PEOPLE, Plaintiff and Respondent, v. JUAN MARIO HERNANDEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. C1229332, 213125)
A jury convicted defendant Juan Mario Hernandez of sexually molesting two of his nieces, M. and E., and his nephew's daughter, J., when the girls were under the age of 14. On appeal, defendant asserts evidentiary, instructional, and sentencing errors. We find no errors requiring reversal of defendant's convictions. However, we conclude defendant has established sentencing error, and therefore shall reverse and remand for resentencing.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Defendant is Charged
In 2012 and 2013, defendant was charged with 10 counts of child molestation against three victims in two separate cases. The cases were consolidated prior to trial. The charges were as follows: two counts of forcible lewd and lascivious conduct against J. (Pen. Code, § 288 subd. (b)(1), counts 1 and 2); two counts of lewd and lascivious conduct against J. (§ 288 subd. (a), counts 3 and 4); aggravated sexual assault of a child under 14 and 10 or more years younger than defendant against M. (§ 269, count 5); forcible rape of M. (§ 261 subd. (a)(2), count 6); two counts of forcible lewd and lascivious conduct against M. (§ 288 subd. (b)(1), counts 7 and 8); and two counts of lewd and lascivious conduct against E. (§ 288, subd. (a), counts 9 and 10). The counts involving J. were alleged to have occurred between 2005 and 2010, when the girl was between the ages of six and 10; those involving M. were alleged to have occurred between 2005 and 2008, when she was between 11 and 13 years old; and those involving E. were alleged to have occurred between 2001 and 2005, when she was between nine and 13 years old. Multiple victims were alleged for counts six through 10. (§ 667.61, subds. (b) & (e)).
All further statutory references are to the Penal Code unless otherwise noted.
We refer to the counts as they were renumbered in connection with the consolidation.
The case proceeded to a jury trial in July 2015.
B. Evidence Adduced at Trial
Defendant was born in Mexico in 1982 and came to the United States when he was 21 or 22 years old. He moved in with his brother Jesus, Jesus's then-wife El., and their three daughters and two sons. At that time, the family lived in a two-bedroom apartment on Poco Way in San Jose.
Jesus and El.'s oldest daughter, E., was 23 years old at the time of the trial. She testified that twice when she was under 14 years old defendant came up behind her while she was washing dishes, grabbed her waist, and rubbed his erect penis against her buttocks. On a third occasion, defendant had E. put her hands behind her head, purportedly so he could crack her back. Instead, he grabbed and squeezed her breasts. Once, in the middle of the night, defendant tried to pull the covers off E. while she slept. E. told her parents about that incident. Her father disbelieved her and got angry. Her mother did not go to the authorities, but required the girls to lock the bedroom door at night going forward. Defendant did not touch E. inappropriately again after she spoke with her parents.
M., Jesus and El.'s middle daughter, was 21 years old at the time of the trial. She testified that defendant first touched her inappropriately in the living room of the Poco Way apartment while they were watching a movie. Defendant touched her leg and her breast over her clothes. Later, when the family was living in a duplex on Clyda, M. was home alone with defendant. He threw her down on his bed, which was in the living room, kissed her, and tried to take her clothes off. She bit him and fought him off. A day or so later, defendant told M. it would "make it worse" if she told anyone, which she interpreted as a threat.
At the Clyda duplex, defendant slept in the living room. His girlfriend Floridalma and her young son often slept there as well. When they did so, Floridalma would drive defendant to work early in the morning and M., then a seventh grader, would watch Floridalma's son while she was gone. On one of those occasions, M. fell back to sleep in the living room after defendant woke her to watch the child. She awoke with her pants down and defendant raping her. He stopped when Floridalma, who had gone outside to start the car, unexpectedly returned to the duplex. Defendant attempted to prevent Floridalma from opening the door. She screamed at defendant, waking the entire family. As family members appeared in the living room, and Floridalma gained entry into the duplex, she shouted "they're doing it" and "how could you be with your niece." El. took M. into one of the bedrooms and blamed her for allowing defendant to touch her. When they emerged from the bedroom, M. was crying. M. was bleeding vaginally after the incident. Defendant moved out a few days later.
At the time, Floridalma, thought something sexual had happened between defendant and M. However, at trial, she testified for defendant that she had misinterpreted the situation because of her own prior molestation. She testified that all she saw was defendant holding M.'s hands and moving her. Defendant's pants were on but the fly was down. Defendant and Floridalma stayed together for years after the incident and had two children together, although they had broken up by the time of the trial.
Defendant, who testified on his own behalf, acknowledged preventing Floridalma from entering the duplex. But he claimed he did so to protect M., who was lying in front of the door and would have been hit by it.
J. is the daughter of defendant's nephew. When defendant and Jesus's family lived in the Poco Way apartment complex, J. and her family lived in another apartment in the same complex. J. would go over to Jesus and El.'s apartment to play with their daughters. During one visit, when J. was 6 or 7 years old, the kids were in the living room with defendant watching a movie. Defendant was sitting beside J. under a blanket. He grabbed J.'s hand and made her touch his penis. She pulled her hand away and went to the bathroom. About a year later, J. was at defendant's home when he pushed her down onto the bed and tried to touch her breasts. She pushed him off and got away. He also touched her butt on a number of occasions. Eventually, she reported the touchings to her middle school counselor.
Miriam Wolf, a licensed clinical social worker, testified for the prosecution as an expert on child abuse and child sexual abuse accommodation syndrome (CSAAS). She explained that CSAAS first was discussed in a 1983 article by psychiatrist Roland Summit. Dr. Summit identified five common patterns of behavior in the child sexual abuse victims he treated: secrecy; helplessness; entrapment and accommodation; delayed and unconvincing disclosure; and retraction. Wolf testified that Dr. Summit intended to address the myth that children would report sexual abuse promptly. Based on research studies, she testified that most children are molested by someone they know and that 50 to 75 percent of children wait a year or longer to report the abuse. Wolf testified that there is no way to determine, clinically, whether sexual abuse occurred and making that determination is for courts, not clinicians. She also explained that inconsistencies in reports of child sexual abuse are so common that they should not result in the out-of-hand dismissal of such reports.
Defendant denied the girls' accusations and said he had never been alone with any of them. He believed El., who had split up with his brother Jesus, had invented the accusations and forced the girls to lie.
C. Verdict , Sentencing , and Appeal
On July 30, 2015, the jury returned its verdicts. It convicted defendant of two counts of forcible lewd and lascivious conduct against J. (§ 288 subd. (b)(1), counts 1 and 2); aggravated sexual assault of a child against M. (§ 269, count 5); forcible rape of M. (§ 261 subd. (a)(2), count 6), forcible lewd and lascivious conduct against M. (§ 288 subd. (b)(1), count 7); lewd and lascivious conduct against M. (§ 288, subd. (a), lesser included count 8); and two counts of lewd and lascivious conduct against E. (§ 288, subd. (a), counts 9 and 10). The jury found true that defendant had committed the offenses charged in counts 1, 2, 7, 8, 9, and 10 against multiple victims. (§ 667.61, subds. (b) and (e).) The jury found defendant not guilty of counts 3 and 4.
The trial court sentenced defendant to a term of 90 years to life on September 25, 2015. It imposed six consecutive terms of 15 years to life on counts 1, 2, 5, 7, 8, and 9 and a concurrent term of 15 years to life on count 10. The terms for counts 1, 2, 7, 8, 9, and 10 were imposed pursuant to section 667.61, subdivisions (b) and (e). The court dismissed count 6 on the prosecutor's motion as a lesser included offense to count 5.
Defendant timely appealed.
II. DISCUSSION
A. Admissibility of CSAAS Evidence
Defendant argues that CSAAS evidence should be held inadmissible for any purpose. As he acknowledges, current California law permits the admission of such evidence " ' "to rehabilitate [the molestation victim's] credibility when the defendant suggests that the child's conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming molestation. [Citations.]" ' " (People v. Perez (2010) 182 Cal.App.4th 231, 245 (Perez).) In that circumstance, CSAAS evidence is admissible to "disabus[e] a jury of misconceptions it might hold about how a child reacts to a molestation" (People v. Patino (1994) 26 Cal.App.4th 1737, 1744 (Patino)) and to show "that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested." (People v. Bowker (1988) 203 Cal.App.3d 385, 394 (Bowker).) Defendant does not contend that the admission of CSAAS evidence here was inconsistent with the foregoing precedent, but rather urges us to depart from that precedent.
We decline that invitation because our Supreme Court has approved the admissibility of CSAAS evidence to rebut misconceptions about the behavior of child sexual abuse victims. (People v. McAlpin (1991) 53 Cal.3d 1289, 1301 [affirming admission of expert testimony by analogizing to CSAAS cases]; People v. Brown (2004) 33 Cal.4th 892, 905-908 [affirming admission of expert testimony on battered women's syndrome, relying on the rationale supporting the admissibility of CSAAS evidence].) We are required to follow the foregoing precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales).)
B. The Court Did Not Err in Instructing the Jury with CALCRIM No. 1193
Defendant contends the trial court erred in instructing the jury with CALCRIM No. 1193, which he says improperly authorizes jurors to rely on expert CSAAS testimony to evaluate the credibility of a complaining witness. We disagree.
1. Factual Background
The trial court instructed the jury with CALCRIM No. 1193 as follows: "You have heard testimony from Miriam Wolf about Child Sexual Abuse Accommodation Syndrome. Miriam Wolf's testimony about Child Sexual Abuse Accommodation Syndrome is not evidence the defendant committed any of the crimes charged against him. You may consider this evidence only in deciding whether or not [M., E., and J.'s] conduct was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of their testimony." (Italics added.) On appeal, defendant takes issue with the final, italicized phrase.
2. Standard of Review
"We determine whether a jury instruction correctly states the law under the independent or de novo standard of review." (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) The pertinent inquiry is whether the instructions as a whole fully and fairly set forth the applicable law. (Ibid.) Where jury instructions are ambiguous or internally inconsistent, and therefore subject to an erroneous interpretation, we assess whether there is a " 'reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." (Estelle v. McGuire (1991) 502 U.S. 62, 72.) If there is such a reasonable likelihood, then we consider whether the instructional ambiguity was prejudicial. (People v. Williams (2000) 79 Cal.App.4th 1157, 1171.)
3. Analysis
Defendant argues that using CSAAS evidence to "evaluat[e] the believability of [the victim's] testimony" is equivalent to using the evidence "to determine whether the victim's molestation claim is true," something case law prohibits. (Bowker, supra, 203 Cal.App.3d at p. 394 ["the jury must be instructed simply and directly that the expert's [CSAAS] testimony is not intended and should not be used to determine whether the victim's molestation claim is true"].) We are not persuaded.
As discussed above, CSAAS evidence "is not admissible to prove that the complaining witness has in fact been sexually abused[. But] it is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming molestation." (McAlpin, supra, 53 Cal.3d at p. 1300.) Here, there was evidence that the victims engaged in conduct that might appear inconsistent with molestation (and thus undermine their credibility), including delayed disclosure of the abuse. Wolf testified that CSAAS is designed to dispel myths and misperceptions about child sexual abuse, such as that an abused child will immediately tell somebody about the abuse. She testified that CSAAS is not used by clinicians to determine whether sexual abuse actually occurred and she offered no opinion as to the veracity of the allegations in this case. CALCRIM No. 1193 specifically informed the jury that Wolf's testimony "is not evidence that the defendant committed any of the crimes charged against him."
In view of the foregoing evidence and CALCRIM No. 1193 as a whole, there is no reasonable likelihood that the jury understood CALCRIM No. 1193 as allowing it to use the CSAAS evidence to determine that defendant sexually abused the victims. Rather, it is likely the jury properly understood CALCRIM No. 1193 as permitting it to use the CSAAS evidence in evaluating the believability of the victims' testimony that the molestations occurred, in light of the evidence that they engaged in conduct seemingly inconsistent with the conduct of a child who had been molested. Therefore, we reject defendant's claim.
C. The Court Did Not Err in Failing to Instruct on the Offense of Attempted Forcible Lewd Conduct
Defendant argues the trial court erred by not instructing the jury on attempted forcible lewd conduct, a lesser-included offense of forcible lewd conduct.
1. Factual Background
J. testified that defendant pushed her down onto the bed and tried to touch her breasts, but she fought him off. That conduct was the basis for one count of forcible lewd and lascivious conduct (§ 288 subd. (b)(1)), as charged in count 2. M. likewise testified to an incident during which defendant threw her onto a bed and tried but failed to remove her clothes. She testified that he kissed her but was unable to take off her clothes because she bit him. That conduct apparently was the basis for the count 7 forcible lewd and lascivious conduct charge (§ 288 subd. (b)(1)).
Defense counsel did not request that the jury be instructed on attempted forcible lewd conduct.
2. Governing Legal Principles
Section 288 makes it a crime to "willfully and lewdly commit[] any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child . . . ." " '[A]ny touching' of an underage child accomplished with the intent of arousing the sexual desires of either the perpetrator or the child" violates section 288. (People v. Martinez (1995) 11 Cal.4th 434, 452 (Martinez).) "[S]exual gratification must be presently intended at the time [the requisite] 'touching' occurs[,] . . . [but] the form, manner, or nature of the offending act is not otherwise restricted. Conviction under the statute has never depended upon contact with the bare skin or 'private parts' of the defendant or the victim." (Id. at p. 444.)
If the touching is accomplished "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person," it is punishable by imprisonment in the state prison for 5, 8, or 10 years. (§ 288, subd. (b)(1).)
Attempted violation of section 288 requires the intent to commit a lewd and lascivious act with a child under 14 years of age and a direct but ineffectual step toward committing that act. (People v. Singh (2011) 198 Cal.App.4th 364, 368.) Attempted forcible lewd act is a lesser included offense of the crime of a forcible lewd act on a minor. (People v. Ngo (2014) 225 Cal.App.4th 126, 156 ["As a general matter, an attempt to commit a crime is a lesser included offense of the completed crime"].)
"A trial court must [sua sponte] instruct on a lesser included offense if substantial evidence exists indicating that the defendant is guilty only of the lesser offense." (People v. Manriquez (2005) 37 Cal.4th 547, 584 (Manriquez).) "Substantial evidence in this context is evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense." (People v. Shockley (2013) 58 Cal.4th 400, 403.)
"An appellate court applies the independent or de novo standard of review to the failure by a trial court to instruct on an uncharged offense that was assertedly lesser than, and included, in a charged offense." (People v. Waidla (2000) 22 Cal.4th 690, 733.)
3. Analysis
Defendant argues that jurors reasonably could have concluded that he did not intend the acts of pushing J. and M. down and trying to remove their clothing to arouse anyone sexually. Instead, he says, those acts could be viewed as nonsexual actions taken only to give him access to the girls' naked bodies, which he intended to touch for his sexual gratification. Because he did not ultimately accomplish such naked touching, he maintains jurors reasonably could have concluded that he committed only an attempted violation of section 288. That argument is meritless.
No reasonable juror who believed J. and M.'s testimony about the incidents at issue—which the jury here plainly did—could have concluded that defendant lacked the requisite "intent to sexually exploit" the girls when he shoved them to the bed and tried to remove their clothes. (Martinez, supra, 11 Cal.4th at p. 444.) There was no evidence of any other intent; defendant testified to no other intent, instead denying the incidents entirely. Contrary to defendant's suggestion, whether he actually "experienced sexual arousal at the moment" of the touchings is not dispositive. (People v. Lopez (2010) 185 Cal.App.4th 1220, 1233.) Even under his own theory, his sole motivation for attacking the girls was sexual. The removal of the girls' clothes "was an integral part of defendant's lewd scheme" to touch them sexually. (Ibid.) Accordingly, we find no error in the trial court's failure to sua sponte instruct the jury on attempted forcible lewd conduct.
D. The Court Did Not Err in Failing to Instruct on the Offense of Unlawful Sexual Intercourse With a Minor as a Lesser Included Offense of Aggravated Sexual Assault
Defendant was charged with and convicted of aggravated sexual assault of a child, M., by rape. (§ 269.) He argues the jury should have been instructed as to unlawful sexual intercourse with a minor (§ 261.5, subd. (c)), which he says is a lesser-included offense.
" 'A criminal defendant is entitled to an instruction on a lesser included offense only if . . . "there is evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense" . . . but not the lesser.' " (People v. Lopez (1998) 19 Cal.4th 282, 288 (Lopez).) Both aggravated sexual assault of a child by rape and unlawful sexual intercourse with a minor involve an act of sexual intercourse with a minor, but only the former must be accomplished against the child's will by use of force, violence, duress, menace, fear, or threat. (Compare § 261.5, subd. (c) with §§ 269, subd. (a)(1) and 261, subds. (a)(2) and (a)(6).) Assuming unlawful sexual intercourse with a minor is a lesser included offense of aggravated sexual assault of a child by rape, defendant was entitled to an instruction on the former only if there was evidence from which a reasonable jury could conclude sexual intercourse occurred but was not accomplished by force, violence, duress, menace, fear, or threat. Such evidence would absolve him from guilt of aggravated sexual assault of a child by rape but not unlawful sexual intercourse with a minor. (Lopez, supra, at p. 288.)
There was no evidence from which the jury reasonably could have concluded that the sexual encounter occurred but was not accomplished, against M.'s will, by force, violence, duress, menace, fear, or threat. M. testified that she awoke when defendant put his penis inside her, which hurt. There was testimony that M. was crying after the incident. M. testified that she resisted and evaded defendant's prior advances, including by biting him. She also testified that defendant had implicitly threatened to hurt her or her family if she told anyone about a prior attempt to remove her clothes. From her testimony, it could only be inferred that she would have not submitted to defendant's sexual molestation of her but for his coercion. Defendant denied the sexual encounter, as well as ever being alone with, let alone touching, M. Thus, the trial court did not err by not instructing the jury on unlawful sexual intercourse with a minor.
E. Sentencing
Defendant was convicted of three violations of section 288, subdivision (b)(1) (counts 1, 2, and 7); two of those violations were against J., the third was against M. Defendant also was convicted of three violations of section 288, subdivision (a) (counts 8, 9, and 10); two of those violations were against E., the third was against M. With respect to counts 1, 2, 7, 8, 9, and 10, the jury found true section 667.61 multiple victim allegations. On each of those counts, the trial court sentenced appellant to a term of 15 years to life pursuant to section 667.61. Defendant contends that imposing multiple terms of 15 years to life was error for three reasons. We address each in turn.
1. Section 667.61 Authorizes Multiple Indeterminate One Strike Sentences Where the Jury Finds True More Than One Multiple Victim Allegation
Defendant maintains section 667.61 authorizes the imposition of only one indeterminate term based on a multiple victims finding in any particular case. Like numerous other courts of appeal, we reject defendant's construction.
a. Statutory Language and Rules of Construction
Section 667.61 is "commonly known as the 'One Strike' law." (People v. Andrade (2015) 238 Cal.App.4th 1274, 1304 (Andrade).) It sets forth an "alternative and harsher sentencing scheme for certain sex crimes." (People v. Anderson (2009) 47 Cal.4th 92, 102, 107.) "In general, it requires the trial court to sentence a defendant found guilty of committing a specified sexual offense under specified aggravating circumstances to an extremely lengthy indeterminate term . . . ." (People v. Jones (1997) 58 Cal.App.4th 693, 703.)
Section 667.61 has been amended a number of times. However, at all times, subdivision (b) has called for the imposition of a One Strike indeterminate sentence on persons "convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) . . . ," subject to certain exceptions not applicable here. The offenses specified in subdivision (c) always have included violations of subdivisions (a) and (b) of Section 288. One of the circumstances specified in subdivision (e) always has been "[t]he defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim." (Former § 667.61, subd. (e)(5); current § 667.61, subd. (e)(4).) Finally, at all times, subdivision (f) has provided that (i) where the minimum number of circumstances required to trigger a One Strike sentence have been pleaded and proved, they must be used to trigger a One Strike sentence, rather than to impose some other punishment under a different provision of law, unless that other provision of law provides for a greater penalty and (ii) if any additional circumstances have been pleaded and proved, the sentencing court must use the minimum number of circumstances necessary to impose the highest One Strike law sentence and use the remaining circumstances to impose additional punishment under any other applicable law.
As originally enacted, section 667.61, subdivision (b) mandated a life sentence. (Stats. 1993-1994, 1st Ex. Sess., ch. 14, § 1.) Since September 20, 2006, it has called for an indeterminate sentence of 15 years to life. (Stats. 2006, ch. 337, § 33; current § 667.61, subd. (b).)
Prior to September 2006, a violation of section 288, subdivision (a) was a specified offense unless the defendant qualified for probation under subdivision (c) of Section 1203.066. (See Stats.1993-1994, 1st Ex .Sess., ch. 14, § 1; Stats. 2006, ch. 337, § 33.)
We shall refer to this circumstance as the multiple victim circumstance and to subdivision (e)(5), because the circumstance was listed under that provision in the versions of the law applicable to this case. As noted, it is now set forth in section 667.61, subdivision (e)(4).
" 'As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature's intent so as to effectuate the law's purpose.' [Citation.] 'We begin with the plain language of the statute, affording the words of the provision their ordinary and usual meaning and viewing them in their statutory context, because the language employed in the Legislature's enactment generally is the most reliable indicator of legislative intent.' [Citations.] The plain meaning controls if there is no ambiguity in the statutory language. [Citation.]" (People v. Cornett (2012) 53 Cal.4th 1261, 1265.) "A statutory provision is ambiguous if it is susceptible of two reasonable interpretations." (People v. Dieck (2009) 46 Cal.4th 934, 940.) "[I]f the language allows more than one reasonable construction, we may look to such aids as the legislative history of the measure and maxims of statutory construction." (Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1190.) But "[w]hen statutory language is clear and unambiguous, there is no need for construction and courts should not indulge in it. [Citations.]" (People v. Overstreet (1986) 42 Cal.3d 891, 895.)
b. Analysis
Defendant relies on subdivisions (b), (e)(5), and (f) of section 667.61 for his position that the One Strike law permits the multiple victim circumstance to be used only once in a case, regardless of the number of victims or offenses at issue. But those provisions do not support his construction. Subdivision (b) mandates a One Strike term for anyone "convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) . . . ." It places no limit on the number of One Strike terms imposed in a case involving multiple offenses against multiple victims. Likewise, former "subdivision (e)(5) . . . does not include any language which specifically provides that . . . it may be used only once in a particular case." (People v. DeSimone (1998) 62 Cal.App.4th 693, 697-698 (DeSimone) [view that "[former] section 667.61, subdivision (e)(5) permits only one life sentence per case based on a finding of multiple victims . . . is not supported by the plain language of that subdivision, and we are not persuaded to engraft [such a] limitation . . . onto the words of the Legislature"].) Finally, "[n]othing in [subdivision (f)] even hints at an intent to limit imposition of the subdivision (b) one strike life term, based on the multiple-victim circumstance. Rather, it evinces the intent to ensure the greatest possible punishment under that sentencing scheme." (People v. Valdez (2011) 193 Cal.App.4th 1515, 1523 (Valdez).)
Defendant contends his construction of the statute finds support in differences between the multiple victim circumstance and the other One Strike term-triggering circumstances. As he notes, most of the other circumstances relate to the manner in which the defendant carried out an offense (e.g., "during the commission of a burglary (§ 667.61, subd. (e)(2)) or with "a dangerous or deadly weapon or a firearm" (§ 667.61, subd. (e)(3)). By contrast, the multiple victim circumstance refers to "the present case or cases." Defendant does not explain how this distinction advances his argument. In our view, it does not. The reason for the distinction is clear: "rarely, if ever," will a single sex offense be committed against two victims. (People v. Stewart (2004) 119 Cal.App.4th 163, 171.) That is, cases involving multiple victims almost by definition involve multiple offenses. It is for that reason that the multiple victim circumstance refers to "the present case or cases," while most of the other circumstances refer to "the present offense," not because of any implicit legislative intent to limit the number of One Strike sentences triggered by the multiple victim circumstance in a single case.
Defendant also argues the statute is ambiguous, such that the rule of lenity should apply. But he identifies no ambiguity and we find none. Accordingly, we reject that undeveloped argument. (People v. Murphy (1998) 65 Cal.App.4th 35, 39 (Murphy) ["there is no ambiguity in the provisions of section 667.61 with respect to sentencing a defendant convicted of violent sex offenses against different victims on different occasions . . ."]; People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4 [perfunctory arguments are waived].)
In rejecting defendant's construction of the One Strike law, we are in good company. A number of appellate court decisions have rejected similar arguments. (Valdez, supra, 193 Cal.App.4th at pp. 1521-1522 [rejecting argument that the 1998 version of section 667.61 permitted the multiple victim circumstance to be imposed only once for each victim]; Andrade, supra, 238 Cal.App.4th at pp. 1305-1308 [rejecting argument that former section 667.61, subdivision (e)(5), authorized only one life term per victim]; Murphy, supra, 65 Cal.App.4th at p. 40 [rejecting argument that section 667.61 does not permit the imposition of multiple One Strike terms based on the multiple victim circumstance].)
Defendant also advances an alternative argument: that a section 228, subdivision (a) conviction for non-forcible lewd conduct on a child under the age of 14 years "should be recognized as a distinct offense for which multiple indeterminate terms are inappropriate under section 667.61, subdivision (e)(5) due to the non-violent nature of that offense . . . ." He contends that the One Strike law has, throughout its existence, accorded special treatment to violations of section 288, subdivision (a). For example, prior to the 2006 amendments, a section 288, subdivision (a) violation was not a specified offense if the defendant qualified for probation under subdivision (c) of former section 1203.066. Currently, the One Strike law requires consecutive sentencing for certain specified sex offenses, but not for violations of section 288, subdivision (a). (§ 667.61, subd. (i).) These provisions demonstrate that the Legislature knows how to single out section 288, subdivision (a) violations for special treatment under the One Strike law. The fact the Legislature has not done so with respect to the application of the multiple victim circumstance leads us to conclude that it intends no such special treatment. Accordingly, we reject defendant's argument that only a single One Strike law sentence is permissible where a defendant is convicted of section 288, subdivision (a) violations against multiple victims.
Defendant asserts that all of the offenses specified in section 667.61, subdivision (c) other than violation of section 228, subdivision (a) involve the use of force. That was the case at one time. (People v. Mancebo (2002) 27 Cal.4th 735, 741-742 and fn. 3 (Mancebo); Stats. 1993-1994, 1st Ex. Sess., ch. 14, § 1.) However, since 2006, section 667.61, subdivision (c) has included "[c]ontinuous sexual abuse of a child, in violation of Section 288.5 (§ 667.61, subd. (c)(9)), which "can be committed without the use of force, violence, menace, duress, or fear." (People v. Black (2007) 41 Cal.4th 799, 817.)
2. Section 654
Defendant next argues that the imposition of multiple One Strike law indeterminate sentences based on the multiple victim circumstance violated section 654's proscription against multiple punishment.
a. Legal Principles
Section 654, subdivision (a) provides in relevant part, "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." "[I]t is well settled that section 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.] Whether a course of conduct is indivisible depends upon the intent and objective of the actor." (People v. Perez (1979) 23 Cal.3d 545, 551.) The purpose of the protection against multiple punishments is to insure that the defendant's punishment will be commensurate with his criminal culpability. (Id. at p. 551, fn. 4.)
Our Supreme Court has held that section 654 does not apply to sentence enhancements that go to the nature of the offender, but does apply to those that go to the nature of the offense. (People v. Ahmed (2011) 53 Cal.4th 156, 162-164 (Ahmed).) With respect to the latter, "section 654 bars multiple punishment for the same aspect of a criminal act." (Id. at p. 164.)
b. Analysis
Defendant says he is being punished more than once for "the . . . act" of "committing sexual offenses against more than one victim." But of course, committing multiple sexual offenses on separate occasions is not a single act or indivisible course of conduct. (Andrade, supra, 238 Cal.App.4th at pp. 1308-1309.)
Defendant also analogizes the One Strike sentencing scheme to sentence enhancements and maintains he is being punished multiple times for one "aspect" of his criminal conduct: molesting multiple victims. We are unconvinced. Only sentence enhancements that go to the nature of the offense, as opposed to the offender, are subject to section 654. (Ahmed, supra, 53 Cal.4th at pp. 162-164.) Enhancements based on the nature of the offense "typically focus on what the defendant did when the current offense was committed." (People v. Coronado (1995) 12 Cal.4th 145, 157.) The multiple victim circumstance has nothing to do with the manner in which defendant committed any particular offense. Rather, it amplifies the magnitude of the penalty for a particular offense based on the defendant's status as a repeat offender, like "other habitual offender provisions." (DeSimone, supra, 62 Cal.App.4th at p. 700.) Thus, we follow DeSimone in concluding that the multiple victim circumstance is akin to a nature-of-the-offender enhancement, to which section 654 does not apply.
3. Pleading Error as to Counts 1 and 2
The People's motion to augment the record is granted.
Finally, defendant argues that the One Strike law sentences on counts 1 and 2 must be vacated because the People did not allege any One Strike circumstances with respect to those counts.
a. Legal Principles and Factual Background
Section 667.61 provides that its penalties apply only if the accusatory pleading alleges the facts or circumstances required by subdivisions (d) and (e). The "circumstances specified in subdivision (d) or (e) [also must be] pled and proved . . . ." (Current and former § 667.61, subd. (f).) Our Supreme Court has held that these provisions, "read together, require that an information afford a One Strike defendant fair notice of the qualifying statutory circumstance or circumstances that are being pled, proved, and invoked in support of One Strike sentencing." (Mancebo, supra, 27 Cal.4th at pp. 753-754.)
Between September 28, 1998 and September 19, 2006, subdivision (i) provided: "For the penalties provided in this section to apply, the existence of any fact required under subdivision (d) or (e) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact." (Stats. 1998, ch. 936, § 9.) Between September 20, 2006 and September 8, 2010, subdivision (j) provided: "The penalties provided in this section shall apply only if the existence of any circumstance specified in subdivision (d) or (e) is alleged in the accusatory pleading pursuant to this section and either admitted by the defendant in open court or found to be true by the trier of fact." (Stats. 2006, ch. 337, § 33.) Currently, section 667.61, subdivision (o) provides: "The penalties provided in this section shall apply only if the existence of any circumstance specified in subdivision (d) or (e) is alleged in the accusatory pleading pursuant to this section, and is either admitted by the defendant in open court or found to be true by the trier of fact." --------
Defendant was charged by indictment with the offenses against J., including counts 1 and 2. The indictment contained no multiple victim allegations, nor did it reference section 667.61, subdivision (e). By contrast, the information charging defendant with the offenses involving E. and M. did allege multiple victims and invoke section 667.61, subdivision (e) in connection with the relevant counts. The two cases were consolidated. Prior to trial, the People sought to file a consolidated information alleging all of the counts and "alleging PC 667.61 multiple victim allegations as to the four counts in the indictment" related to J. According to a stipulation between the parties, the trial court denied the People's request "principally on logistical grounds because the court clerk stated the CJIC computer system would not accept an amended information after consolidation which included counts from a separately filed indictment. Consequently, the People filed an amended information which simply re-numbered counts 1-6 [against E. and M. as] counts 5-10 so as to avoid confusing the jury with duplicative counts. The People and the Defense discussed this issue repeatedly and the defense conceded that the multiple victim allegation applied to all three victims. . . . Defense Counsel for Mr. Hernandez did not object to the J[.] multiple victim verdict forms because the defense was properly on notice that this allegation applied to all three victims."
b. Analysis
The People do not dispute that a violation of the statutory pleading requirement occurred. Rather, they contend defendant forfeited any pleading defect by conceding that the multiple victim allegation applied to all three victims and failing to object the jury instructions to that effect. The People also assert a harmless error argument, contending that "no miscarriage of justice occurred" because defendant received the requisite notice that the multiple victim circumstance would be used to support a One Strike sentence on counts 1 and 2. Defendant responds that the One Strike sentences on counts 1 and 2 were unauthorized, such that his claim is reviewable despite the lack of objection below. He further maintains that harmless error analysis is inapplicable to violations of the One Strike law's pleading requirement.
We begin with the forfeiture argument. "Ordinarily, a criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal." (In re Sheena K. (2007) 40 Cal.4th 875, 880.) The forfeiture rule applies to claims the trial court failed "to properly make or articulate its discretionary sentencing choices" (People v. Scott (1994) 9 Cal.4th 331, 353) but not to an " 'unauthorized' " sentence, meaning one that "could not lawfully be imposed under any circumstance in the particular case." (Id. at p. 354.)
Defendant relies on Mancebo for his contention that the One Strike sentences on counts 1 and 2 are unauthorized. There, the information alleged, and the jury found true, two "One Strike" circumstances as to each of two sex crimes against different victims. (Mancebo, supra, 27 Cal.4th at p.742.) One of the circumstances that was pleaded and proved for each offense was gun use. The jury also found true a gun use enhancement allegation as to each crime. The One Strike statute precluded gun use from being used as the basis for an enhancement and the basis for a One Strike sentence. To circumvent that issue, the sentencing court substituted a multiple victim circumstance (which had not been alleged or found by the jury) for the gun use circumstance and imposed both a One Strike sentence and the gun use enhancement. (Id. at pp. 738-739.) Our supreme court held that approach violated the pleading and proof requirements of section 667.61 and the defendant's due process rights "because it failed to put defendant on notice that the People, for the first time at sentencing, would seek to use the multiple victim circumstance to secure indeterminate One Strike terms under section 667.61, subdivision (a) and use the circumstance of gun use to secure additional enhancements under section 12022.5(a)." (Mancebo, supra, at pp. 745, 753.) As the court noted, the additional enhancements could "not have been imposed but for the purported substitution" of an unpled circumstance for a pled one. (Id. at p. 753.) Thus, the defendant was not on notice as to the severity of his potential sentence. The Mancebo court rejected the argument that the defendant had waived his claim of sentencing error by failing to object below. (Id. at p. 749, fn. 7.) It reasoned that because the trial court lacked the discretion, under subdivision (f) of section 667.61, to strike the gun-use circumstances and employ gun use as a basis for imposing lesser enhancement terms, the error was nonwaivable under Scott. (Mancebo, supra, at p. 749, fn. 7.)
Under Mancebo, the One Strike sentences on counts 1 and 2 are unauthorized, as the trial court lacked the discretion to impose them, given the manner in which those counts were pleaded. Accordingly, we conclude defendant's challenge is cognizable on appeal. Unauthorized sentences are " 'not subject to a harmless error analysis.' " (People v. Soto (2016) 245 Cal.App.4th 1219, 1235.) Therefore, resentencing on counts 1 and 2 is required.
III. DISPOSITION
The judgment is reversed and the matter is remanded for resentencing.
/s/_________
ELIA, J. WE CONCUR: /s/_________
PREMO, Acting P. J. /s/_________
GROVER, J.