Opinion
F086481
03-19-2024
THE PEOPLE, Plaintiff and Respondent, v. MARTIN ARELLANO HUERTA, Defendant and Appellant.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. No. 22CMS-1660, Robert S. Burns, Judge.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
Before Pena, Acting P.J., Meehan, J. and DeSantos, J.
OPINION
THE COURT[*]
Defendant Martin Arellano Huerta contends on appeal that his sentence must be vacated and the case remanded for resentencing because (1) the trial court was unaware of its discretion to impose concurrent or consecutive sentences pursuant to Penal Code section 667.61, subdivision (c)(8); and (2) either count 3 or count 4 must be stayed pursuant to section 654. The People agree the sentence must be vacated and the case remanded for resentencing because the trial court was unaware of its discretion to impose concurrent or consecutive sentences pursuant to section 667.61, but argue section 654 is not applicable to counts 3 and 4 because" '[e]ach individual act that meets the requirements of section 288 can result in a "new and separate" statutory violation ...'" We vacate the sentence and remand the case for resentencing. In all other respects, we affirm the judgment.
All statutory references are to the Penal Code.
PROCEDURAL SUMMARY
On September 29, 2022, the Kings County District Attorney filed an information in case No. 22CMS-1660, charging defendant with committing a lewd act on a child under the age of 14 years against J.F. (§ 288, subd. (a); count 1); committing a lewd act on a child under the age of 14 years against I.O. (§ 288, subd. (a); count 2); and two counts of committing a lewd act on a child under the age of 14 years against N.C. (§ 288, subd. (a); counts 3 &4). It was further alleged that defendant committed the sexual offenses against multiple victims, for purposes of section 667.61, subdivision (e)(4).
On February 15, 2023, defendant waived his right to a jury trial. On April 14, 2023, the trial court found defendant guilty on all counts and found the multiple victim allegation to be true pursuant to section 667.61, subdivision (e)(4).
On May 26, 2023, defendant was sentenced to four consecutive terms of 25 years to life, for a total of 100 years to life in state prison.
On June 23, 2023, defendant filed a notice of appeal.
FACTUAL SUMMARY
J.F., I.O., and N.C. are all cousins. Defendant is their grandfather.
J.F.
J.F. was born in 2009.
In approximately 2013, when J.F. was about four years old, she was changing clothes in her grandparents' bedroom. When her grandmother stepped out to get something from the laundry room, defendant approached J.F. and placed his hands on her shoulders, then moved them down to her waist and stomach area.
In approximately 2016, when J.F. was about seven years old, defendant sat next to her in the kitchen as she ate cereal and rubbed his hand back and forth on her leg. When she got up to put her bowl in the sink, he called her back to him and told her not to tell anyone what he had done.
In 2022, he again rubbed her leg and waist.
J.F. testified that each time he touched her it made her feel scared and uncomfortable because she was not sure what was going on, but knew it was not right for him to touch her the way he did. She also stated he would kiss her on the cheeks randomly throughout the day, which made her uncomfortable.
I.O.
I.O. was born in 2003. She lived with her grandparents for a period of time during childhood. Sometime before she was 10 years old, defendant would tell her to lie in bed with him and he would put his hand in her underwear. Defendant would rub her vaginal area "a lot," and would touch her breasts. He would also try to get I.O. to lay on top of him or touch him, undress her, and grab her hand to get her to touch his penis.
N.C.
N.C. was born in 2000. When she was approximately 10 years old, in about 2010, defendant had her in his bedroom, where he kissed her "with passion" on the lips. He then removed her underwear and licked her vulva. Afterwards, he told her not to tell her grandmother.
DISCUSSION
Defendant contends his sentence must be vacated and the case remanded for resentencing so the trial court may exercise its discretion about whether to impose consecutive or concurrent terms. The People agree, as do we.
A. Background
Defendant was charged with four counts of violations of section 288, subdivision (a), lewd and lascivious acts on a child under 14 years of age, against multiple victims J.F., I.O., and N.C. (§ 667.61, subd. (e)(4)).
Defendant was found guilty on each count, and the multiple victim allegation pursuant to section 667.61, subdivision (e)(4) was found true. Because the trial court found true the multiple victim allegation (§ 667.61, subd. (e)(4)), the statutorily mandated punishment was "imprisonment in the state prison for 25 years to life." (§ 667.61, subd. (j)(2).)
At sentencing, the trial court imposed four consecutive terms of 25 years to life, for a total of 100 years to life. It stated:
"The plain reading of the statute[, section 667.61,] seems to indicate ... it is 25-to-life on each of the four counts, and that is the finding reached by the Appellate Court[] in People v. Betts [(2020)] 56 Cal.App.5th 294, [298-303], which has held that the one circumstance 25-to-life contained in [section] 667.61[, subdivision] (j)(2) is fully applicable, including to convictions of . section 288[, subdivision] (a), so it doesn't appear to me that as to each of the four counts the sentence mandated by law is non discretionary [sic], and [is] 25-to-life for each count. Three of the counts involve separate victims. Two of the counts involve the same victim that is separate conduct. So it appears to the Court the consecutive sentencing is appropriate under traditional analysis, but it also appears to be mandated by the statute. So I am going to impose 25-to-life on each of the counts consecutive with each other." (Emphasis added.)
B. Law
Pursuant to section 667.61, known as the "One Strike" law, violations of section 288, subdivision (a) are punishable by a term of 25 years to life in prison when the offense is committed against more than one victim. (§ 667.61, subds. (c)(8), (e)(4), (j)(2); People v. Betts, supra, 55 Cal.App.5th at p. 300.)
Section 667.61, subdivision (i), mandates consecutive sentencing for each offense "specified in paragraphs (1) to (7) ... of subdivision (c), or in paragraphs (1) to (6) ... of subdivision (n) . . . 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, subd. (i).)
Section 667.61, subdivision (c), states in pertinent part:
"(1) Rape, in violation of paragraph (2) or (6) of subdivision (a) of Section 261.
"(2) Rape, in violation of paragraph (1) or (4) of subdivision (a) of former Section 262.
"(3) Rape or sexual penetration, in concert, in violation of Section 264.1.
"(4) Lewd or lascivious act, in violation of subdivision (b) of Section 288.
"(5) Sexual penetration, in violation of subdivision (a) of Section 289.
"(6) Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 286.
"(7) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 287 or former Section 288a." (§ 667.61, subd. (c).)
Section 667.61, subdivision (n), states in pertinent part:
"(1) Rape, in violation of paragraph (2) of subdivision (a) of Section 261.
"(2) Rape, in violation of paragraph (1) of subdivision (a) of former Section 262.
"(3) Rape or sexual penetration, in concert, in violation of Section 264.1.
"(4) Sexual penetration, in violation of paragraph (1) of subdivision (a) of Section 289.
"(5) Sodomy, in violation of paragraph (2) of subdivision (c) of Section 286, or in violation of subdivision (d) of Section 286.
"(6) Oral copulation, in violation of paragraph (2) of subdivision (c) of Section 287 or former Section 288a, or in violation of subdivision (d) of Section 287 or former Section 288a." (§ 667.61, subd. (n).)
" 'Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to "sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court," and a court that is unaware of its discretionary authority cannot exercise its informed discretion.'" (People v. Woodworth (2016) 245 Cal.App.4th 1473, 1480.)
C. Analysis
Section 667.61 does not mandate consecutive sentences for violations of section 288, subdivision (a), as section 288, subdivision (a) is not listed in section 667.61, subdivision (c), paragraphs (1) to (7), or subdivision (n), paragraphs (1) to (6).
Rather, section 288, subdivision (a) is specified in paragraph (8) of section 667.61, subdivision (c), which does not mandate full and consecutive sentences.
As there is no statute mandating full and consecutive sentences for violations of section 288, subdivision (a) against separate victims or against the same victim on separate occasions, the trial court had discretion to impose concurrent or consecutive terms on counts 1 through 4. (See People v. Zaldana (2019) 43 Cal.App.5th 527, 536, disapproved on other grounds in In re Vaquera (2024) 15 Cal.5th 706, 724, fn. 10.)
Here, the trial court first stated that it "appear[ed] to the Court the consecutive sentencing is appropriate under traditional analysis." However, it also stated that consecutive sentencing "appears to be mandated by the statute[, section 667.61]." As the parties agree, while the court's first statement may indicate it believes consecutive sentencing is appropriate regardless of section 667.61, its second statement shows the court was not aware it had any discretion in the matter. "Relief from a trial court's misunderstanding of its sentencing discretion is available on direct appeal when such misapprehension is affirmatively demonstrated by the record." (People v. Leon (2016) 243 Cal.App.4th 1003, 1026.) Accordingly, we agree with the parties that the court was unaware of its discretion whether to impose concurrent or consecutive sentences.
Defendant further argues his sentence on either count 3 or 4 should be stayed under section 654 because no substantial evidence showed the acts underlying the conduct in those counts were committed during separate courses of conduct with independent objectives. The People disagree, arguing "[e]ach individual act that meets the requirements of section 288 can result in a 'new and separate' statutory violation." (People v Scott (1994) 9 Cal.4th 331, 346-347.) Because we have determined that the matter must be remanded for resentencing, we need not address that argument. Defendant may assert arguments consistent with current law on remand.
DISPOSITION
We vacate the sentence and remand for resentencing. In all other respects, the judgment is affirmed.