Opinion
D074201
12-12-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ALAN HUBBARD, Defendant and Appellant.
Alissa Bjerkhoel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF150555) APPEAL from a judgment of the Superior Court of Riverside County, Jean Pfeiffer Leonard, Judge. (Retired judge of the Riverside Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part and remanded for resentencing. Alissa Bjerkhoel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Robert Alan Hubbard was convicted by jury of six offenses, all of a sexual nature, against minors. He was sentenced to a term of 85 years to life. On appeal, he challenges the entirety of his convictions based on the purported erroneous admission of evidence pursuant to Evidence Code section 1108. However, assuming error occurred, we nevertheless find no basis for reversal given the lack of potential prejudice. Next, Hubbard contends that one count in particular was not supported by sufficient evidence. Again, we disagree.
Hubbard's remaining claims on appeal all concern alleged sentencing and related errors. The bulk of them we reject. We remand, however, for consideration of the appropriate imposition of fines, as well as to order a minor correction of the abstract of judgment. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Hubbard was charged and convicted by jury of six offenses. Five counts, all based on conduct in early 2009, related to Jane Doe 1 (JD1): aggravated sexual assault—rape (Pen. Code, §§ 269, subd. (a)(1), 261, subd. (a)(2), count 1); aggravated sexual assault—sodomy (§§ 269, subd. (a)(3), 286, subd. (c)(2), count 2); aggravated sexual assault—oral copulation (§§ 269, subd. (a)(4), 288a, subd. (c)(2), count 3); sexual intercourse or sodomy on a child age 10 or younger (§ 288.7, subd. (a), count 4); and oral copulation or sexual penetration on a child age 10 or younger (§ 288.7, subd. (b), count 5). Count 6, lewd and lascivious act on a child under age 14 (§ 288, subd. (a)), related to Jane Doe 2 (JD2) and was alleged to have occurred in the first half of 2006. In addition to convicting Hubbard on all six counts, the jury found true that Hubbard committed an offense against more than one victim within the meaning of section 667.61, former subdivision (e)(5). A. Jane Doe 1
Further statutory references are to the Penal Code unless otherwise indicated.
JD1, Hubbard's niece, was five years old at the time of trial. Her interactions with Hubbard were established both by her testimony and a video recording of a prior forensic interview (the RCAT interview) when she was age four. Her foster mother also testified regarding statements JD1 made disclosing Hubbard's conduct.
JD1 testified that when she thought of Hubbard, she recalled "bad things." She elaborated that those "bad things" emanated from a particular day in early 2009 when she, at age three, was alone with Hubbard in the living room of her grandmother's apartment. There, Hubbard forced her to watch pornographic movies. While the movies were playing, Hubbard pulled down her shorts and underwear and then pushed her down. Once JD1 was lying down, Hubbard fully undressed. He proceeded to touch JD1's butt and genitalia with his hands. Hubbard put his penis in and on both her butt and genital area. She felt "his private area" "inside of [her] private area." JD1 protested repeatedly, saying "no, no, no[,] 30 times." Hubbard ejaculated on top of her vagina and then wiped off the semen using his hands and a wash cloth. Hubbard also, at some point, held JD1's mouth open with one hand and put his penis inside of it with the other. He also licked her butt.
JD1 was unable to identify Hubbard in court. It was later established, however, that she had positively identified Hubbard in a photographic lineup.
Hubbard took the stand and denied JD1's rendition of events. At first, he said he had no contact with JD1. But then he testified that he had been in the same room as JD1 and her brother—just never alone with the two children. Hubbard further denied ever seeing JD1 naked, undressing in front of her, or touching her private parts.
Later, however, a detective testified that in a prior interview, Hubbard "said occasionally he would watch the kids when his mom had to run an errand." In that same interview, Hubbard also recounted an instance when he "was home alone with [JD1]." She came out of the bathroom with her pants and underwear pulled down, and asked Hubbard for help. He said "his hand might have slipped and accidentally touched her vagina." In a pretrial interview, he said it "was a definite possibility that [JD1] may have walked in while he was watching pornography."
As for the genesis of the accusations against him, Hubbard indicated that they arose based on "bad blood" between him and JD1's mother. The two had apparently had an affair while JD1's mother was still in a relationship with Hubbard's brother. Hubbard told his brother, which angered JD1's mother. According to Hubbard, he was arrested just days after the Riverside County Department of Public Social Services (DPSS) received a report about JD1's mother. Hubbard claimed that in response to a DPSS home visit, the mother started making accusations about him, thinking he had reported her. Yet testimony was later introduced indicating there was no record of any such DPSS visit during that time period. B. Jane Doe 2
JD2 was 12 years old at the time of trial. Her mother previously dated Hubbard. She testified regarding an incident when she was age six or eight years of age. Alone with Hubbard in the living room of her mother's apartment, JD2 laid down beside him on the couch with their heads facing the same direction. Both were clothed. Hubbard "told [her] to move over, and then . . . he scooted [her] down," such that her butt was on top of his genital area. He started moving his hips. After a few moments, JD2 got up and went to find her mother in the apartment bedroom. She did not tell her what had happened.
Hubbard testified that he was never alone in a room with JD2. He did, however, recall her coming to lie on the couch beside him. With respect to the inception of this accusation, Hubbard initially said he first heard about it at the time of his most recent arrest. But on cross-examination, he admitted to being first accused in 2006. As to why he initially answered differently, Hubbard explained, "Uh, I made a mistake, I guess." A detective later testified that when he questioned Hubbard about dating JD2's mother, Hubbard responded, "Oh, shit, yes, same thing. It didn't stick." He further acknowledged discussing the allegations with JD2's mother.
DISCUSSION
1. Evidence Code Section 1108 Claim
a. Additional Background
At trial, the prosecution sought to introduce the factual background of Hubbard's prior conviction for assault with a deadly weapon. (See § 245.) While it was not disputed that the fact of the conviction could come in if Hubbard took the stand (see Evid. Code, § 788; People v. Elwell (1988) 206 Cal.App.3d 171, 175 ["assault with a deadly weapon is a crime of moral turpitude"]), the details of the underlying story presented a different issue. Defense counsel argued that the factual background should be excluded.
The conviction itself was from a 2004 fight during which Hubbard stabbed his younger brother. Outside the presence of the jury, the prosecutor represented that the genesis of the altercation was a 15-year-old prostitute named Bridgette: Hubbard apparently brought the runaway prostitute back to a motel room where his brother and brother's girlfriend were staying. They objected based on her age and the fight ensued. The court initially ruled in favor of Hubbard, prohibiting discussion of the factual background so long as defense counsel did not open the door to related character evidence.
But the court reconsidered its ruling during a break in Hubbard's testimony. According to the court, "things ha[d] changed somewhat" given the numerous credibility issues that surfaced during his testimony:
"He has testified that he was never left alone with the kids. And then he's also testified that he did have some contact with the children. He has testified that he didn't know anything about the incident with [JD2], yet, under cross-examination, he's changed his testimony in that regard. And so now we really have an issue of credibility."It ultimately concluded that the 2004 encounter was "a similar type of incident" since "it was all over a juvenile female." It also reasoned that the 2004 conduct was "rather benign as compared to the charges before the Court today." Thus, the court considered the details of the incident admissible under Evidence Code section 1108.
As to the defense objection based on Evidence Code section 352, the court "f[ound] that . . . the probative value is not outweighed by undue prejudice based on the fact that [it] [didn't] believe there[ was] going to be an undue consumption of time; that the incident that occurred in 2004 [was] not more inflammatory than the current charge, and it [was] not so remote to make it unbelievable . . . . "
Accordingly, the court decided to permit questioning of Hubbard regarding the fight that led to his 2004 conviction. When Hubbard's testimony resumed, the prosecutor inquired whether it was "correct" that "the reason you cut your brother's hand . . . [was] because you brought a 15-year-old girl back to the motel where your brother and [his girlfriend were] at." Hubbard said, "No. . . . She told me she was 18." But he agreed that his brother had accused him of having a "15-year-old runaway female" with him. Hubbard did not know why his brother had thought she was 15.
On redirect, Hubbard's counsel elicited a lengthier rendition of the incident: Hubbard had met the female—Bridgette—at the mall when she and her boyfriend were "living on the streets." She "asked [him] for some money [so] she could get a hotel or something [and] . . . she and her boyfriend could wash up." Hubbard invited them back to his motel room; only Bridgette joined him. When they got to the room, he and his brother had a disagreement "[o]ver Bridgette" since the "brother thought that she was 15 years old." Before the fight escalated, Bridgette had already left: "She went across the way to some other guy's hotel room." Hubbard never saw Bridgette again, nor did he even know her last name. He denied having any kind of sexual relationship with her.
In rebuttal, the prosecution introduced further testimony from Hubbard's brother regarding the 2004 incident. The brother explained that, at the time, both he and Hubbard were on drugs. When asked whether it was "true that the argument was over the fact that [Hubbard] showed up at that motel with . . . what you believed to be a 15-year-old female," the brother at first answered, "A 15-year-old? No." But after his recollection was refreshed by his statements as recorded in the relevant police report, the brother agreed that he had said she was 15. The girl was hitting on him—not Hubbard—which irritated his girlfriend, so he told Hubbard "to get her out," thus spurring the fight. On cross-examination, he testified that he didn't know the girl and didn't actually know how old she was. During redirect examination, he clarified that he thought she was 15 because "[t]hat's what [Hubbard] told [him]."
In the ensuing discussions regarding jury instructions, the court inquired whether defense counsel would be requesting an instruction on the limited purpose of Evidence Code section 1108 evidence. (See CALCRIM No. 1191A.) Defense counsel made clear that he wanted no such instruction because he believed they had "stretched Evidence Code section 1108, beyond the breaking point." Because "the defense [was] so adamantly against [CALCRIM No.] 1191," the court ultimately did not provide the instruction.
b. Analysis
"Section 1101 of the Evidence Code limits the admissibility of so-called 'propensity' or 'disposition' evidence offered to prove a person's conduct on a particular occasion." (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 822-823.) "Evidence Code section 1108 . . . carves out an exception to [Evidence Code] section 1101. It provides that '[i]n a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] [s]ection 1101, if the evidence is not inadmissible pursuant to [Evidence Code] [s]ection 352.' [Citations.] Section 352 [of the Evidence Code], in turn, sets out the general rule that '[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' [Citation.] It follows that if evidence satisfies the requirements of [Evidence Code] section 1108, including that it is not inadmissible under [Evidence Code] section 352, then the admission of the evidence does not violate section 1101 [of the Evidence Code]. [Citations.]" (Daveggio and Michaud, at p. 823.)
The trial court relied on Evidence Code section 1108 to admit testimony regarding the ostensibly 15-year-old Bridgette. Hubbard claims this amounted to prejudicial error violative of either or both Evidence Code sections 1108 and 352. Yet even if we assume that admission of the testimony was error, we would nevertheless find no basis to reverse given that any such error was not prejudicial.
As Hubbard recognizes, the prejudicial effect of erroneously admitted Evidence Code section 1108 evidence is reviewed under the standard set forth in People v. Watson (1956) 46 Cal.2d 818 (Watson). Under Watson, we will not reverse a conviction unless a different result was reasonably probable absent the error. (Id. at p. 836.) No such different result was reasonably probable here.
Hubbard acknowledges that the Supreme Court has rejected a due process challenge to Evidence Code section 1108 (People v. Falsetta (1999) 21 Cal.4th 903, 916) and that we are bound by that decision (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). Nevertheless, "for the purposes of preserving the issue for federal review," he argues Evidence Code section 1108 is unconstitutional. As Hubbard appears to expect, we reject that challenge and instead adhere to our high court's prior ruling—as we must. (See Falsetta, at p. 916; see also Auto Equity Sales, at p. 455.)
With respect to count 6, JD2's testimony was internally consistent, as well as consistent with Hubbard's recollection of her joining him on the couch. Moreover, Hubbard testified incredibly about the event, at first emphatically stating he had never heard of the accusation until he was most recently arrested, before recanting and admitting to knowledge of it in 2006. With respect to the incident in general, Hubbard testified, "I don't hardly remember none of that."
As to the offenses against JD1, she too made relatively consistent statements regarding the events, unlike Hubbard's vacillating testimony. JD1 told her foster mother, the RCAT interviewer, and the jury essentially the same story. Hubbard, on the other hand, was heavily impeached based on his inconsistent statements both from a prior interview and within his testimony at trial. Whatever scant impeachment value might have come from this evidence regarding Bridgette paled in comparison to that already elicited.
Moreover, with respect to prejudice, we simply cannot ignore the different level of offensiveness between the charges involving JD1 in this case and the alleged incident with the ostensibly 15-year-old Bridgette. The challenged testimony established, at best, that Hubbard brought a perhaps 15-year-old girl back to a motel room where others were present. That stands in stark contrast to charges of raping and sodomizing a three-year-old child. Thus, while the evidence regarding Bridgette might be somewhat inflammatory in a different context, the relative impact in this case was necessarily minimal.
We acknowledge that the jury sent out seven notes during deliberations and deliberated over 15 hours. Yet given the scant value of the evidence regarding Bridgette, these considerations fail to convince us that prejudice appears on this record.
For this reason—among others—we find unavailing Hubbard's reliance on People v. Jandres (2014) 226 Cal.App.4th 340. There, the Sixth Appellate District concluded the trial court prejudicially erred in admitting evidence of an uncharged kidnapping in a rape case. (Id. at p. 343.) In finding prejudice, the court remarked that the erroneously admitted "evidence—particularly the supposed (but, in fact, nonexistent) evidence of defendant's DNA inside her mouth—was extremely harmful to defendant's credibility." (Id. at p. 360.) Conversely here, any harm from the Evidence Code section 1108 evidence would have been far from extreme. We further observe that Hubbard's reliance on Jandres suffers additional flaws—among them, that the court's prejudice determination was based on "the combined impact" of multiple errors and that the jury's verdicts indicated it rejected some of the victim's testimony. (Jandres, at pp. 360-361.)
In sum, we see no reasonable probability that the jury would have reached a different result here without the Evidence Code section 1108 evidence. (See Watson, supra, 46 Cal.2d at p. 836.) Accordingly, no basis for reversal on this ground appears.
2. Sufficiency of the Evidence Claim
Hubbard challenges the sufficiency of the evidence underlying his conviction in count 1 for aggravated rape of JD1. To assess that claim, "we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] . . . We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.] [Citation.] A reversal for insufficient evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the jury's verdict." (People v. Penunuri (2018) 5 Cal.5th 126, 142 (Penunuri), internal quotation marks omitted.)
With respect to count one, Hubbard contends the evidence was insufficient to prove genital penetration of JD1 as required for a conviction under section 261. Subdivision (a)(2) of that section defines rape as including "an act of sexual intercourse" "[w]here it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of another." Section 263 makes clear that "[a]ny sexual penetration, however slight, is sufficient to complete the crime."
Hubbard argues that "[a] close examination of [JD1's] statements reveal that [he] did not penetrate [her] vagina or genitalia." He emphasizes JD1's repeated assertions in her RCAT interview that he put his penis "over [her] pee pee," which is how she referred to her vagina, and "in [her] butt." (Italics added.) He also highlights the fact that she at times said Hubbard did not put his penis in her vagina, only her butt.
Yet as the People point out, the problem with Hubbard's argument is that it disregards other evidence elicited during JD1's testimony. While JD1—who was respectively ages four and five at the time of her RCAT interview and at trial—did not testify with perfect consistency regarding the event, she indicated that Hubbard's penis penetrated her genitalia. When asked whether Hubbard put his penis in her mouth, JD1 said "No, he put it," and motioned to her "pee pee." The interview continued:
"[Interviewer:] Pee pee. He put it in the pee pee.Likewise, at trial, JD1 testified, "[H]e put his personal area in the front and the back." (Italics added.)
"[JD1:] Yeah. . . .
"[Interviewer:] Did he put it in your pee pee? You're shaking your head up and down. What can you tell me that he put it in your pee pee?
"[JD1:] Yeah."
As already noted, in addressing an argument of this nature "[w]e resolve neither credibility issues nor evidentiary conflicts." (Penunuri, supra, 5 Cal.5th at p. 126, internal quotation marks omitted.) "[I]t is not for us to say on appeal whether she was worthy of the jury's belief. Nothing to which she testified was physically impossible or even implausible." (People v. Jones (2013) 57 Cal.4th 899, 963.)
The People also persuasively posit that "the jury could have reasonably inferred that [Hubbard's] penis breached [JD1's] external genitalia when he pushed his penis against her genitalia many, many times until he ejaculated." JD1 stated multiple times that after Hubbard's "front went on [her] front," semen went on top of and into her genitalia. At trial, she testified he "put white stuff in the front." (Italics added.) During her RCAT interview, she said "white candy" came out of Hubbard's penis and went "in" her "pee pee." (Italics added.) She told her foster mother the same thing. Moreover, at trial, when asked "how many times . . . [Hubbard's] private area touch[ed] [her] front personal area," JD1 responded, "A ton." Given JD1's statements regarding the placement of Hubbard's penis on her front private area and his ejaculation "in" her genitalia, the jury could have reasonably drawn an inference of sufficient penetration here. (See § 263 ["[a]ny sexual penetration, however slight" suffices (italics added)]; see also Penunuri, supra, 5 Cal.5th at p. 126 ["we . . . presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence"].)
In a lengthy footnote, Hubbard argues that "[i]t should also be noted that the prosecution misstated the law" regarding penetration in describing its underlying rationale. We agree, however, with the People's response that "[t]he reason for the law . . . was irrelevant," and so "[t]here's no reasonable claim that the prosecutor's statement of reason for the law had any impact on the jury's finding."
3. Sentencing Issues
a. Additional Background
At the outset of the sentencing hearing, the court tentatively explained:
"Now, as to Counts 1, 2, and 3, based on the filing and the additional allegations pursuant to 667.61[, subdivision ](b), the Court is mandated to sentence Mr. Hubbard as to each count as follows:
"That would be 15 years to life. And the Court would indicate that pursuant to Penal Code Section 667.61[, subdivision ](i), the Court has a mandatory requirement to run those sentences consecutively.
"Let me then skip down to . . . Count 6, that is the violation of Penal Code Section 288[, subdivision ](a), and that is also to run 15 years to life pursuant to the additional allegation. And the Court would be inclined to run Count 6 consecutive to Counts 1, 2, and 3. . . . "
Turning then to counts 4 and 5, both of which were under section 288.7, the court noted that the substantive statute mandated terms of respectively, 25 years to life and 15 years to life. (See § 288.7, subds. (a), (b).) In the court's view, "the real question as to those counts [was], do they run consecutively and if they do, what is the basis for that?" It noted that the People had raised the fact that count 4 (sexual intercourse or sodomy with a child age 10 or younger) was predicated on the same act as either count 1 (rape) or count 2 (sodomy), given that JD1 articulated one instance of sexual intercourse and one instance of sodomy. The People had accordingly recommended that the court stay the term on count 1. Considering this issue, the court remarked, "Since it appears there was one incident, it may not be appropriate to sentence Mr. Hubbard twice as to the sexual intercourse and the sodomy." It indicated its inclination to follow the People's recommendation and stay the term on count 1 pursuant to section 654.
The court next highlighted "another issue that [had been] concerning [it] in trying to come to a decision in this case[:]"
"And that is, we were dealing with a very young child. And so it was . . . sometimes hard to understand if this happened many times or if it happened one time. And I think it's pretty clear that under Penal Code Section 667.6[, subdivision ](d), if there's the same victim but separate occasions, the Court can and is mandated to sentence consecutively. But . . . based on the testimony in this case, I don't know that I can make that finding. I thought that what she did testify to was very straightforward and I believe the victim in this case. I think she was telling what she remembered. But it certainly wasn't clear as to how many times this happened. It certainly wasn't clear that it happened more than once."
Ultimately, the court selected count 4 as the principal term with a sentence of 25 years to life. It imposed indeterminate terms of 15 years to life upon counts 1, 2, and 3, pursuant to section 667.61, former subdivision (b), and ran those terms "consecutive pursuant to Penal Code section 667.61[, former subdivision ](i)." Additional 15-years-to-life terms were imposed on counts 5 and 6. (See § 288.7, subd. (b); see also § 667.61, former subd. (b).) The court, however, stayed execution of the sentence in count 1 pursuant to section 654 since "it does appear that the defendant, as to Counts 1 and 4, would be sentenced twice, in fact, for the same act."
The court ordered "that these be consecutive sentences" for the following reasons:
"The defendant had a reasonable opportunity to reflect upon his actions and nevertheless resumed sexually assaultive behavior on various occasions throughout this entire process. The victim was particularly vulnerable. She was three years old and his niece. The defendant took advantage of a position of trust, and the Court is also considering the findings in the Static-99 report.In all, Hubbard was sentenced to a term of 85 years to life.
"Further, as to Count 6 . . . this was a separate victim as Counts 1 through 5 involved [JD1]. And Count 6 involved [JD2]. For all those reasons, the Court feels that it does have the discretion to run all counts consecutively. But as I said, I will stay Count 1 pursuant to Penal Code Section 654 in that based on the testimony, it appears that there was one act of sexual intercourse and one act of sodomy. And . . . it would not be right to sentence the defendant . . . twice for either of those acts."
b. Consecutive sentencing on counts 1, 2, and 3
Hubbard contends that the trial court erred in sentencing him to consecutive terms on counts 1, 2, and 3. The basis for consecutive terms was section 667.61, which specified that for certain offenses—including those at issue here—"the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6." (§ 667.61, former subd. (i), Stats. 2006, ch. 337, § 33, eff. Sept. 20, 2006; see also id., former subds. (c)(1), (6), (7).) Because counts 1, 2, and 3 all involved the same victim, the only question was whether the three offenses were committed "on separate occasions as defined in subdivision (d) of Section 667.6." (§ 667.61, former subd. (i).) Subdivision (d) of section 667.6, in part, provides:
The People contend Hubbard forfeited this challenge by failing to object in the trial court. Hubbard responds by pointing out that a court can correct an unauthorized sentence at any time. (See People v. Garza (2003) 107 Cal.App.4th 1081, 1091.) Assuming Hubbard is correct, we nevertheless reject his claim on alternative grounds.
"In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions."Moreover, "[a] finding that the defendant committed the sex crimes on separate occasions 'does not require a change in location or an obvious break in the perpetrator's behavior.' " (People v. King (2010) 183 Cal.App.4th 1281, 1325 (King).)
Once a trial court finds that a defendant has committed the sex crimes on separate occasions, our role as an appellate court is limited. "[W]e may reverse only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior." (People v. Garza (2003) 107 Cal.App.4th 1081, 1092.)
Here, the trial court imposed consecutive sentences on counts 1, 2, and 3 based on its express finding that Hubbard "had a reasonable opportunity to reflect upon his actions and nevertheless resumed sexually assaultive behavior on various occasions throughout this entire process." Hubbard attacks this finding in several respects. He first attempts to suggest that the court did not intend this finding to apply to counts 1-3. According to Hubbard, "it appears the trial court may have been commenting on the fact that there were two victims in the case and not that the assaults on [JD1] took place on 'separate occasions.' " Yet fairly read in context, this clearly is not what "appears." Immediately following the quoted statement, the trial court continued by referring to a single victim—specifically, three-year-old JD1—and later emphasized that count 6 involved a different victim.
We observe that Hubbard phrases the ultimate question as whether "only one life term should have been imposed because the counts did not occur on . . . 'separate occasions.' " (Italics added.) He posits that, if so, "two of the life sentences imposed under section 667.71 must be stricken." (Italics added; the intended citation is to section 667.61, not section 667.71.) But given that the "separate occasion" criteria from section 667.61, former subdivision (i) relates only to whether the sentences must be imposed consecutively, it appears to us that even if Hubbard were correct, the remedy would at best be a concurrent term.
Next, analogizing this case to People v. Irvin (1996) 43 Cal.App.4th 1063 (Irvin), Hubbard challenges the trial court's finding as insufficiently specific. In Irvin, the Fifth Appellate District found inadequate the trial court's statement explaining why it imposed consecutive terms pursuant to section 667.6, subdivision (d). (Irvin, at p. 1070.) The trial court had explained,
" 'I am making the determination that, based upon the facts of this case, again after hearing the prelim and after hearing the jury trial, that there was opportunity for a reflection on behalf of the defendant. This went over a duration of time these various acts were committed, then there was a brief interval. As [the prosecutor] indicated, he would stop, have a brief conversation, catch his breath, go back and commit other acts. There was some moving around within the house when these acts were committed. In other words, at one point in
time several of the acts were in one room, they went on into another room when the acts continued there. [¶] Accordingly, I find that under those dictates that a consecutive sentence would be in order.' " (Id. at pp. 1069-1070.)In finding this statement insufficient, the appellate court observed that the trial court did not "provide a sufficient analysis of the facts to allow this court to determine why it concluded all 20 sex offense acts must have occurred on 'separate occasions' within the meaning of subdivision (d)." (Id. at p. 1071, italics added.) Unlike Irvin, we are not dealing with 20 offenses committed as part of a single incident, but rather three.
As to the three crimes against JD1 charged in counts 1-3, the People rely primarily on two factors in arguing that the evidence was sufficient to support a conclusion that the offenses occurred on "separate occasions." They note that Hubbard "sexually penetrated three separate orifices of [JD1]," which necessarily would have taken time and required changes of position. At the same time, JD1 was repeatedly telling him "no"—30 times—while he was committing the acts, which would have given him reason and opportunity to reconsider his actions. (See People v. Garza, supra, 107 Cal.App.4th at p. 1092; King, supra, 183 Cal.App.4th at p. 1325.) Viewing that evidence in the light most favorable to the prosecution, we cannot say that " 'no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior,' " as would be required for reversal. (King, at p. 1325.)
The primary case cited by Hubbard as mandating a contrary result—People v. Fuller (2006) 135 Cal.App.4th 1336—is inapposite, as it used an earlier version of section 667.61 with different language defining the operative test. The version of section 667.61 in effect then turned on whether the offenses against a single victim were committed "during a single occasion." (§ 667.61, former subd. (g), Stats. 1998, ch. 936, § 9, eff. Sept. 28, 1998.) The version relevant here mandated consecutive sentences for offenses against the same victim if they were committed on "separate occasions," as defined in section 667.6, subdivision (d). (§ 667.61, former subd. (i), Stats. 2006, ch. 337, § 33, eff. Sept. 20, 1006.) In light of the Supreme Court's prior ruling in People v. Jones (2001) 25 Cal.4th 98, 105, this distinction is significant.
We also find unpersuasive Hubbard's reliance on People v. Pena (1992) 7 Cal.App.4th 1294 and People v. Corona (1988) 206 Cal.App.3d 13. As the People point out, each case in this area is heavily factdependent. While both Pena and Corona involve multiple sex acts that required some change of position, neither includes incessant protests from the victim of the nature present in this case. Given the deferential standard of review here, neither of these cases convinces us reversal is required. (See King, supra, 183 Cal.App.4th at p. 1325.)
c. Consecutive sentencing on count 6
Hubbard also claims that the trial court erred in imposing a consecutive sentence on count 6 since it was not then required by law and "because it appears the trial court did not understand its discretion." The People agree that consecutive sentencing on count 6 was not mandatory under the version of section 667.61 in effect. (See § 667.61, Stats. 1998, ch. 936, § 9, eff. Sept. 28, 1998.) But they contend that the court indeed exercised its discretion in choosing to run the sentence on count 6 consecutively. We agree with the People. The court explicitly stated it "[felt] that it [did] have the discretion to run all counts consecutively," and explained at length why it chose to do so.
In arguing that the court thought a consecutive sentence on count 6 was mandatory, Hubbard quotes selectively from the court's initial statements at the sentencing hearing. At that juncture, the court said the term for count 6 "is also to run 15 years to life pursuant to the additional allegation. And the Court would be inclined to run Count 6 consecutive to Counts 1, 2, and 3." Hubbard contends that in referencing the "additional allegation," the court was referring both to the 15-year-to-life term required per section 667.61, former subdivision (b) and the consecutive sentencing requirements in section 667.61, former subdivision (i). Not much else can be said but that we read the record differently. To us, it appears the trial court was well aware of its discretion with respect to consecutive sentencing on count 6 and exercised that discretion.
4. Multiple Victim Findings on Counts 4 & 5
Hubbard contends it was error for the jury to render section 667.61, former subdivision (e)(5) multiple victim findings on counts 4 and 5 since that version of the statute did not apply to the offenses alleged in those counts. (See § 667.61, former subd. (c); Stats. 2006, ch. 337, § 33.) We agree this appears to have been error. The finding should not apply to counts 4 and 5. But as the People point out, the finding had no effect on this record because, as to those counts, Hubbard was not sentenced per section 667.61. Thus, although there may have been theoretical error, there is no functional basis for us to order anything stricken from the judgment.
5. Imposition of Fines
At sentencing, the court imposed a restitution fine for each count pursuant to section 290.3. Hubbard argues the court erred in not staying the fine imposed on count 1 when the court stayed that sentence pursuant to section 654. The People appropriately concede that point. (See People v. Pearson (1986) 42 Cal.3d 351, 361 ["section 654 prohibits the use of a conviction for any punitive purpose if the sentence on that conviction is stayed"]; People v. Sharret (2011) 191 Cal.App.4th 859, 870 [punitive fines cannot be imposed on a sentence stayed pursuant to section 654].) They nevertheless raise additional challenges to the fines and fees imposed. We address one challenge and leave the remainder for remand.
Prior to July 12, 2006, section 290.3, former subdivision (a) mandated a $200 fine for the "first conviction" of a specified sex offense and $300 for each subsequent conviction. (§ 290.3, former subd. (a), amended by Stats. 1995, ch. 91, § 121.) Effective September 20, 2006, the fine increased to $300 for the "first conviction" and $500 for each subsequent conviction. (§ 290.3, former subd. (a), amended by Stats. 2006, ch. 337, § 18.) Under both versions, the court was required to impose a fine for each conviction unless it determined the defendant lacked the ability to pay.
The court imposed a $200 fine on count 6, which involved conduct between January and June 2006. This was proper given ex post facto considerations. (People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248.) The question is whether the court properly imposed an "initial conviction" fine of $300 on count 1, the first of the 2009 convictions. The parties do not challenge the $500 fines imposed on counts 2 through 5.
The People argue the fine for count 1 should have been $500, not $300, as it was imposed for a conviction "subsequent" to the "initial" 2006 conviction. (§ 290.3, subd. (a).) Doing so results in a total base fine of $2,700, $200 more than the court imposed. Hubbard responds that the "amount calculated by the trial court was proper and should stand."
The plain language of the statute supports the People's view, ending our inquiry. (People v. Johnson (2002) 28 Cal.4th 240, 244 ["[i]f the plain language of the statute is clear and unambiguous, our inquiry ends, and we need not embark on judicial construction"].) As to Hubbard's 2009 offenses, section 290.3, subdivision (a) provides:
"Every person who is convicted of any offense specified in subdivision (c) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for commission of the underlying offense, be punished by a fine of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine." (Ibid.)The statute imposes fines increasing in magnitude for subsequent sex offense convictions. It refers to the "first conviction" and "second and each subsequent conviction" without any indication of wiping the slate clean for each set of convictions in a given case or year. Based on the plain language, we agree that the restitution fine imposed on count 1 should have been $500, not $300. Count 6, involving the 2006 rape of JD2, was the "first conviction," and count 1 through 5, involving 2009 conduct against JD1, were all "subsequent" to it. (§ 290.3, subd. (a).) "Resort to the legislative history is unnecessary when, as here, the statutory language is clear and unambiguous." (Johnson, at p. 247.)
But our inquiry does not end there. The section 290.3 fine is mandatory "unless the court determines that the defendant does not have the ability to pay the fine." (§ 290.3, subd. (a), italics added.) The trial court never evaluated whether Hubbard had the ability to pay the increased $500 amount. The appropriate course is to remand the matter for the trial court to conduct a hearing on Hubbard's ability to pay. (People v. Walz (2008) 160 Cal.App.4th 1364, 1369 [where fine imposed was lower than mandated, remand was appropriate for trial court to evaluate defendant's ability to pay the higher, statutorily mandated amount].) In evaluating Hubbard's ability to pay the increased section 290.3 fine, the court should consider the impact of any mandatory penalty assessments. (Valenzuela, supra, 172 Cal.App.4th at pp. 1249-1250 [remand was necessary for trial court to determine whether defendant had the ability to pay a lower base fine under section 290.3 that would amount to a higher total obligation after mandatory penalty assessments were imposed].) On remand, the court should also assess any mandated booking fee under section 29550.1 of the Government Code.
The People argue the trial court failed to impose "mandatory penalty assessments on the sex offender fines" without identifying what those penalty assessments are. Hubbard identifies "seven penalty assessments applicable in this case," which are enumerated in sections 1464, subdivision (a)(1) and 1465.7 of the Penal Code and in sections 76000, subdivision (a)(1), 70372, 76000.5, 76104.6, subdivision (a)(1), and 76104.7 of the Government Code. --------
6. Corrected Abstract of Judgment
The parties agree that the abstract of judgment must be corrected to reflect that as to count 6, the year the crime was committed should be 2006 rather than 2009. There is no need to correct the abstract to reflect that sentence was "imposed" on count 1. The fact that sentence was stayed pursuant to section 654 necessarily implies that sentence was first imposed and then stayed.
DISPOSITION
The section 290.3 fine imposed as to count 1 is vacated. On remand for resentencing, the trial court shall determine whether Hubbard has the ability to pay the fine of $500, as prescribed by section 290.3, subdivision (a). At that hearing, the court must consider any mandatory penalty assessments and booking fee. Any punitive fines imposed on count 1 shall be stayed pursuant to section 654.
The abstract of judgment should be corrected to reflect that crime referenced in count 6 was committed in 2006 and a certified copy of the same be forwarded to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
DATO, J. WE CONCUR: McCONNELL, P. J. GUERRERO, J.