Opinion
A165797
04-30-2024
THE PEOPLE, Plaintiff and Respondent, v. BERNABE LARA-URIBE, Defendant and Appellant.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. 1-92507-2)
STREETER, J.
Bernabe Lara-Uribe appeals from a judgment of conviction issued after a jury trial on 14 counts for various sex crimes he committed against five of his granddaughters, for which he was sentenced to a total of 310 years to life. He argues the trial court committed prejudicial error by (1) admitting certain evidence and instructing the jury it could consider the evidence underlying the charged offenses as propensity evidence; (2) sentencing him to eight 25-year-to-life terms, rather than 15-year-to-life terms, in violation of the federal and state constitutional prohibitions against ex post facto laws; (3) imposing multiple life sentences on him rather than just one, in violation of Penal Code section 667.61; and (4) orally pronouncing a count 3 sentence that is different than that stated in the abstract of judgment, requiring its modification. He further contends cumulative error violated his due process right to a fair trial.
Undesignated statutory references are to the Penal Code.
We affirm the judgment, except we vacate the eight 25-year-to-life sentences as violative of the constitutional prohibitions against ex post facto laws and remand with the directive that the trial court impose the correct terms of 15 years to life for those eight counts and prepare a modified abstract of judgment reflecting those corrections, also modify the abstract of judgment regarding count 3 to reflect the court's previous imposition of a term of 15 years to life, and transmit a copy of this modified abstract of judgment to the Department of Corrections and Rehabilitation.
I. BACKGROUND
In April 2021, the Contra Costa County District Attorney's office charged Lara-Uribe by information with fifteen felony sex offenses against five of his granddaughters (Jane Does 1, 2, 3, 4, and 5), as follows:
- One count of committing a lewd and lascivious act upon Doe 1, a child under the age of 14 (§ 288, subd. (a); count 1);
- Two counts of committing a forcible lewd and lascivious act upon Doe 4, a child under the age of 14 (§ 288, subd. (b); counts 2, 4) and one count of committing aggravated sexual assault, i.e., oral copulation, on a child under the age of 14 who was seven or more years younger than Lara-Uribe (§§ 269, subd. (a)(4), former 288a, subds. (c)(2) & (c)(3), 288a, subd. (d)); count 3);
This statute was renumbered with minor amendments of no consequence to Lara-Uribe's case as section 287 sometime before the People filed their information in this case. (Stats 2018, ch. 423, § 49.)
- Four counts of committing a forcible lewd and lascivious act upon Doe 5, a child under the age of 14 (§ 288, subd. (b); counts 5, 9-11) and three counts of committing aggravated sexual assault, i.e., forcible rape, on Doe 5, a child under the age of 14 who was seven or more years younger than Lara-Uribe (§§ 269, subd. (a)(1), 261, subd. (a)(2), (6)); counts 6-8);
- One count of committing penetration by a foreign object upon Doe 2, a child under the age 14 who was more than 10 years younger than Lara-Uribe (§ 289, subd. (j); count 12) and one count of committing a lewd and lascivious act upon Doe 2, a child under the age of 14 (§ 288, subd. (a); count 13); and
- Two counts of committing a lewd and lascivious act upon Doe 3, a child under the age of 14 (§ 288, subd. (a); counts 14-15).
For each and all counts, the district attorney alleged that Lara-Uribe committed each offense against more than one victim (§§ 667.61, subds. (b), (e) &(j)(2), 1203.066, subd. (a)(7)). And in an addendum, the district attorney alleged five circumstances in aggravation. (Cal. Rules of Court, rule 4.421).
Jane Does 1, 2, and 3 were the daughters of E.P., who was Lara-Uribe's daughter. Jane Does 4 and 5 were the daughters of Lara-Uribe's son. All of the Jane Does, in their teens or older at the time of trial, testified for the prosecution. Their testimony indicates that, as children, they lived in Concord, California, were often cared for by Lara-Uribe and his wife, their grandmother (grandparents), when their parents were working or were otherwise engaged, were subject to the grandparents' directions and discipline, and often spent time alone with Lara-Uribe. They all testified that Lara-Uribe sexually assaulted them, including when they were under 14 years of age.
A. Jane Doe 1's Testimony
Jane Doe 1 was 27 years old at the time of trial. She testified that one day, when she was seven or eight years old and in second or third grade, she got into bed with Lara-Uribe in his bedroom to watch something on television. As they watched, partially covered with blankets, Lara-Uribe put his hand inside her underwear and cupped her genital area. He moved his hands in a way that Jane Doe 1 thought was meant to separate her legs, but it did not. She was shocked, confused, scared to speak up, and did not say anything. The touching lasted for less than 15 minutes, ending when her grandmother called her name and she quickly got up and ran out of the room. Lara-Uribe tried to reach for her unsuccessfully and told her," 'Don't say anything.' "
Jane Doe 1 was afraid to tell anyone what Lara-Uribe had done because he was like a father figure to her. She "was very confused about it" and "wanted to believe it was a nightmare that happened." She also wanted to protect her family. Lara-Uribe did not touch her inappropriately at any other time.
When Jane Doe 1 was in fifth or sixth grade, she told one of her older sisters what Lara-Uribe had done to her. Some months to a year later, she also told her younger sister, Jane Doe 2. During high school, she told her cousin, Jane Doe 5. She also spoke with a cousin who lived with Lara-Uribe about the incident.
In December 2019, Jane Doe 1 learned her sister had also been victimized by Lara-Uribe and that "more victims" had come forward. She also wanted to speak up. She reported to the police what Lara-Uribe had done to her.
B. Jane Doe 4's Testimony
Jane Doe 4 was 24 years old at the time of trial. She testified that Lara-Uribe first touched her inappropriately when she was about six years old and in kindergarten. That day, they went behind his house to an enclosed chicken coop, which was like a barn, to feed his chickens. Inside the chicken coop, he instructed her to stand on top of a bucket, pulled down her pants and underwear, and told her to do as he told her. He then unzipped his pants, masturbated with his penis erect in front of her, put her hands on her vagina, told her to touch herself, touched the area of her vagina, forced her to touch his penis, and ejaculated while she touched him.
Lara-Uribe continued to take these actions with Jane Doe 4 in the chicken coop about twice a week until she was eight years old; the incidents totaled more than 20. When she refused to go to the chicken coop, tried to run away or leave, or did not comply with his instructions during the incidents, Lara-Uribe spanked or slapped her for disobeying. After each incident, he told her, "Keep your mouth quiet and don't say anything. No one will believe you anyway."
Lara-Uribe then "progressed into other things." Many times, he would take care of Jane Doe 4, her sister, and her younger brother after they were done with school, while their grandmother went next door to E.P.'s home to watch Jane Doe 4's cousins. One day, when Jane Doe 4 was about eight and a half, her sister also went next door. As her brother napped, Lara-Uribe took Jane Doe 4 into his bedroom, laid her down on the bed, and pulled her pants down. He proceeded to touch her with his hands and "perform[ed] oral" on her, meaning he put his mouth or tongue on her vagina.
Lara-Uribe did these acts to Jane Doe 4 a few times a week at his home in Concord and, after the grandparents moved, at his home about 45 minutes north of Concord until she was 10 years old. These types of incidents totaled more than 10. One time, Lara-Uribe forced her to perform oral sex on him. Immediately afterward, she threw up and ran to her grandmother, who had called her name, "freaking out" Lara-Uribe.
There were other incidents as well. Sometimes, when everyone was hanging out in the grandparents' living room, Jane Doe 4 would fall asleep in one of Lara-Uribe's recliners. A couple of times, Lara-Uribe sat in another recliner, put blankets over the two of them, and proceeded to touch her under her underwear in the vicinity of her vagina. He last did this when Jane Doe 4 was around 16 years old, and it was the last time he abused her.
If Jane Doe 4 did not comply with what Lara-Uribe wanted her to do during these incidents, he sometimes would spank or slap her. Also, Lara-Uribe kept firearms in the house for hunting and said he would use them on her brother if she ever told her family what he had done to her. He also said he would hurt her siblings or her parents if she ever told them.
The abuse stopped as the children increasingly played sports, which they used as an excuse to stay away from their grandparents. All told, Lara-Uribe sexually abused Jane Doe 4 for about ten years, when she was six to 16 years old. There were many incidents and she could not "put a number" on how many.
Jane Doe 4's younger brother was the first person she told about Lara-Uribe's abuse of her. She told Jane Doe 5, her older sister, around the time of the last incident, when she, Jane Doe 4, was 16 or 17 years old. She told Jane Doe 5 generally what had occurred in response to something Jane Doe 5 told her.
Jane Doe 4 reported to the police what Lara-Uribe had done after a family gathering one Thanksgiving. She and other family members were watching Lara-Uribe play with one of her cousin's children, and, Jane Doe 4 testified, it "brought back flashbacks of what happened when I was around that age and it horrified me to think that would happen with them." She went with her siblings, her mother, and her boyfriend to her aunt, E.P., and spoke privately with E.P. and her sister. Jane Doe 4 then went with E.P. and "the girls" to the police. She did not discuss the specifics of what Lara-Uribe had done to her with Jane Doe 5 or her cousins.
On cross-examination, Jane Doe 4 acknowledged that when she reported what Lara-Uribe had done to her to the police in December 2019 and to the district attorney in April 2022, she did not report that he had made her orally copulate him, testifying that she did not remember it until later. Also, her grandfather had threatened to use his firearms on her family members, but she did not tell the police in December 2019 that he had done so because, she testified, "there were a lot of suppressed memories that I had not wanted to remember until recently." On redirect, she testified that certain things had become clearer in her mind since she first reported Lara-Uribe's abuse of her to the police.
C. Jane Doe 5's Testimony
Jane Doe 5 was 27 years old at the time of trial. She testified that, when she was a child, she and Lara-Uribe would do things together on his property like build the chicken coop, feed the animals, and clean and maintain the pool. He first touched her in a way that made her uncomfortable when she was about 10 years old. At the time, they would feed the chickens every day. One day, as they entered the chicken coop, he told her to grab some eggs and, as she hunched down to get them, started massaging her buttocks. He then grinded against them with his groin, his penis erect. Afterward, he told her to "keep it quiet."
Lara-Uribe continued to touch Jane Doe 5 inappropriately in the chicken coop as she went "from age 10 to 11." His abuse went from once a week to two times a week, to almost every day. Jane Doe 5 testified that he "would finger me a lot," meaning that he would put his finger in her vagina, and told her "to keep my mouth shut."
Lara-Uribe kept horses in stalls on his property that were about a 15-minute walk from his house. When Jane Doe 5 was about 11, they would go every day to the stalls. She would get horse feed from a little storage shed. Lara-Uribe sometimes would lock them both inside the shed, remove her clothes, and sexually assault her. Specifically, she said, "[h]e would stick his penis in my vagina." He continued to do this increasingly until he was penetrating her vagina with his penis "almost every day" except on weekends, when her parents were home. He stopped when she was almost 16 years old, after her Quinceanera, when her mother stopped forcing her to visit her grandparents.
Jane Doe 5 testified that during the time these assaults occurred, Lara-Uribe "would tell me that if I wouldn't keep my mouth shut, he would go after my sister." He also threatened to harm her brother and her father. She also knew he was a hunter and kept guns in his house, and came to fear him.
Eventually, Jane Doe 5 told her cousin, Jane Doe 1, that something had happened, then told her sister, Jane Doe 4, and her mother around Thanksgiving of 2019 without going into specifics. Something had "triggered" Jane Doe 4, who spoke to Jane Doe 5 and their mother and felt that they needed to speak up for the sake of their cousin's daughters. They spoke to their aunt, E.P., on the Saturday after Thanksgiving. Shortly after that, Jane Doe 5 made a report to police about what Lara-Uribe had done to her.
On cross-examination, Jane Doe 5 acknowledged that in December 2019, she did not tell the police that Lara-Uribe had put his finger in her vagina; told the police he would have sex with her daily rather than every other day; told the police that Lara-Uribe would have sex with her in the horse stall furthest from the house rather than inside the storage shed, which was next to the stalls; and told the police that Lara-Uribe had made threats against her father but did not say anything about his threats against her sister and brother. She also acknowledged that she did not tell police that Lara-Uribe specifically said he would use his guns on her father, testifying, "Because I didn't remember. Over time after the interview, a lot of things triggered and a lot of memories came back." On redirect, she also testified that certain things became clearer in her mind as time passed.
Jane Doe 5 also acknowledged that when she went to talk with E.P. in 2019, she did not intend to disclose Lara-Uribe's abuse of her because she did not want to bring up her past, but when her family did not believe her sister, Jane Doe 4, she had to speak up. She also testified that she only spoke to E.P. about what Lara-Uribe had done to her in general; the first time she spoke of details was during her trial testimony.
D. Jane Doe 2's Testimony
Jane Doe 2, Jane Doe 1's and Jane Doe 3's sister, was 24 years old at the time of trial. She testified that when she was nine or 10, she woke up from sleeping on a living room couch in her home to find Lara-Uribe had put his hands in her pants and underwear. He was rubbing her vagina on the outside, but his fingers did not go inside her vagina. She was in shock; she knew it was wrong and felt uncomfortable. She excused herself to get some water, got up, and started walking to her room. As she walked, Lara-Uribe told her not to say anything to anybody.
Shortly after that incident, Lara-Uribe sat down next to Jane Doe 2 in the same living room, put his hand in her shirt and touched her bare breast. She "got up pretty quickly."
At the time, Jane Doe 2 did not tell anyone about these incidents because she was in shock and embarrassed. She first told her older sister, Jane Doe 1, after Jane Doe 1 told her "about her incident." After that, and after learning that her cousins had come forward, she felt the strength to make a statement to the police about what Lara-Uribe had done to her. She did not speak to her cousins about what he had done.
E. Jane Doe 3's Testimony
Jane Doe 3, the younger sister of Jane Does 1 and 3, was 16 years old when she testified. She said she saw her grandparents every week when she was in kindergarten, when they came to her house in Concord and watched her and her sisters.
When Jane Doe 3 was in kindergarten or first grade, Lara-Uribe started to pat her butt, grab her thigh, and hug her in an "odd" way. When he grabbed her thigh, he would place his hand on the upper part of it. His actions made her uncomfortable and she knew they were wrong. She could not recall how many times he did these things. When he touched Jane Doe 3 on her thigh or her bottom, he told her not to tell anyone.
Starting when Jane Doe 3 was in late first grade or the beginning of second grade, Lara-Uribe started touching her in other places. He would regularly put his hand under her shirt and grab her bare chest, and started putting his hands under her pants and underwear and rubbing her vagina. He touched her bare chest and her vagina more than 10 times each. He touched her in these ways until she completed elementary school or began middle school.
Jane Doe 3 was not sure how many times Lara-Uribe touched her in ways that made her feel uncomfortable, testifying, "It was a year's worth. Could have been well over 50 times." When she was seven or eight years old, she was hospitalized for one or two weeks with abdominal migraines caused by stress. She thought these migraines were related to Lara-Uribe's molestation of her.
Jane Doe 3 told one of her friends in elementary school about Lara-Uribe's actions, but did not tell anyone in her family at that time. She felt it was wrong to talk about, and she did not know what would happen if she told anyone; she worried that if she told, Lara-Uribe would do something or hurt her nieces, who were very young at the time. Jane Doe 3 testified that he did not say anything about hurting family members, but when her nieces were around, "he would hug me tightly, and he would look at me in a way that was almost threatening, saying like if you say anything they're next or I'll hurt them."
Jane Doe 3 eventually told her family about what had happened to her two or three years later, a few days after Thanksgiving in 2019, when she was 13 years old. Her cousins had come over to talk with her mother a few days before. On the day she spoke up, her sisters went into a room with her mother. They called her into the room and asked her if Lara-Uribe had ever done anything inappropriate to her. She said he had, and talked about what he had done to her in a general way.
F. E.P.'s Testimony
E.P., Lara-Uribe's daughter, the mother of Does 1, 2, and 3, and the aunt of Does 4 and 5, also testified for the prosecution. She said she invited her nieces, Jane Does 4 and 5, over around Thanksgiving 2019 for a family gathering and noticed that Jane Doe 4 left without letting anyone know. That Saturday, the two nieces came to talk to her. Jane Doe 4 told her that she loved the family but could not come to family events because Lara-Uribe had molested her. Jane Doe 5 told her "it happened to her too."
E.P. worried that Lara-Uribe might have also touched her daughters inappropriately because they had been around him regularly growing up. She spoke to her siblings by phone, and four of them, including E.P., went the next day, Sunday, to speak to Lara-Uribe at his home (one of the siblings speaking by Facetime). They told him Jane Doe 4 and Jane Doe 5 had said he molested them, "[a]nd that if they take action that he was going to have a hard time because there [sic] were going to arrest him, and he would have to prove his innocence." Lara-Uribe responded by saying, "[W]ell, they have no proof. The only thing that they could say is that I would grab them from their ass to put them up on the horse." His reaction surprised E.P. because he did not deny the accusations.
That same day, E.P. had her children come to her house and spoke to them in her bedroom. Jane Doe 1 told her, "[M]y cousins are not liars. It happened to me too." Jane Doe 2 "confirmed it." E.P. was told "it never happened" to her two oldest daughters, who were twins. She then brought in Jane Doe 3, who started crying and "said it happened to her too." E.P. had previously noticed changes in Jane Doe 3's behavior-she had had abdominal pain and really bad scabs on her skin-that had made her think something was going on in her life.
On December 3, 2019, the same day that police and paramedics went to Lara-Uribe's house as we will soon discuss, E.P. listened to a message Lara-Uribe had left for her sister. She could not hear all of the message because he was covering the microphone, but "he did say that he was a good father, but as he got older, he gained bad habits."
After Lara-Uribe's arrest, E.P. received a letter from him that was written in Spanish, and a copy of it was admitted into evidence. E.P. translated the letter as stating, "I don't deserve forgiveness. I failed. Oh, well. But your mom say [sic] that you don't curse me. But you do what you have to do. I failed. Oh, well. But ask God for me to do [sic] die soon. You rest your anger and put your heart in peace, Bernabe Lara." The prosecutor asked E.P. what she understood the letter to mean, to which E.P. responded, "That he admitted it." Defense counsel objected to this testimony as improper opinion, and the trial court overruled the objection.
On cross-examination, E.P. testified that the first line of Lara-Uribe's letter to her also could be translated, "I know I don't have forgiveness." She also said the letter contained "a lot of misspelled words" and improper grammar, but that she knew Lara-Uribe's writing. On redirect, she indicated that she had "a lifetime of deciphering his writing and speaking to him orally," and that she interpreted the letter taking into account her familiarity with him.
G. Evidence of Lara-Uribe's Suicide Attempt
A detective with the Oakley Police Department testified that he was dispatched to an Oakley residence on December 3, 2019. He found Lara-Uribe sitting in a bedroom bleeding profusely from his "upper region . . ., torso, neck area" and "covered in blood." A kitchen knife was on the ground nearby. The detective later saw that Lara-Uribe had "a pretty good laceration to the neck."
H. Verdict, Sentence, and Appeal
At the conclusion of the prosecution's case, the defense moved for judgment under section 1118.1. The court granted the motion as to count 12 (committing penetration with a foreign object upon Jane Doe 2 in violation of § 289, subd. (j)) and denied it as to the rest. The defense then rested.
The jury found Lara-Uribe guilty on all 14 counts. It found true the multiple victim allegations under section 667.61, subdivisions (b), (e) and (j)(2) and the aggravating factors allegations.
The trial court sentenced Lara-Uribe to 25 years to life on the lewd and lascivious act and forcible lewd and lascivious act counts (counts 1, 2, 4, 5, 9, 10, 11, 13, 14 and 15) and 15 years to life on each of the aggravated sexual assault convictions (counts 3, 6-8), all to be served consecutively. The total sentence was 310 years to life.
Lara-Uribe filed a timely notice of appeal.
II. DISCUSSION
A. The Trial Court Did Not Err by Admitting Evidence of Lara-Uribe's Suicide Attempt
Lara-Uribe first argues the trial court committed prejudicial error by denying his motion in limine to exclude evidence of his December 3, 2019 suicide attempt. He contends the trial court, by admitting this evidence, abused its discretion under Evidence Code section 352 and violated his federal constitutional rights to due process.
1. Relevant Proceedings Below
Before trial, Lara-Uribe filed a motion in limine to exclude evidence of his suicide attempt under Evidence Code section 352 as unduly prejudicial and likely to cause an undue consumption of time.
The prosecution filed an opposition to the motion, arguing the evidence should be admitted to show Lara-Uribe had a consciousness of guilt. The prosecution contended the evidence was highly probative of his consciousness of guilt, including because, when asked by police about his suicide attempt, Lara-Uribe "stated, in Spanish, that after [E.P.] confronted him with the abuse, his wife told him she didn't love him and that all his children loathed him. He thought it was best if he was dead. However, the knife wouldn't cut his neck sufficiently. He stated, in essence, that his wife should have left him there to die instead of calling for help."
The trial court discussed the motion at two different hearings. At the first hearing, the court, apparently focused on Lara-Uribe's statements to police that the People cited in its opposition, said it found it hard to determine from the parties' arguments whether Lara-Uribe cut his neck "because his wife doesn't love him anymore and is leaving him, or because he doesn't want to be held responsible for this crime." The court did not rule on the motion at that time.
At the subsequent hearing, the court, just before ruling on Lara-Uribe's motion in limine, excluded the evidence of Lara-Uribe's statements to police under Miranda v. Arizona (1966) 384 U.S. 436. When the prosecutor then brought up the suicide attempt evidence, the court stated, "So again, . . . my thing about the suicide is I don't know if he's just upset because the wife says I don't love you anymore and your kids loathe you." Then the court, after checking something that cannot be determined from the record, referred to "evidence from the wife" that Lara-Uribe had made his suicide attempt because of "the kids saying that," and ruled that "if there's evidence from the wife that that's what he said to her that can come in." After the prosecutor said, "I don't know if I don't have evidence," the court said, "Well, she can say: I said in there. And the officers can say I went in and he had this." The court continued, "It can come in. I do find it relevant. I do find that at least from this notation it was related to the accusations, but it can't come in through this Miranda statement. It can come in through other evidence." Lara-Uribe's counsel was entirely silent during this discussion.
As we have discussed, at trial, an Oakley police detective testified that he was dispatched to Lara-Uribe's residence on December 3, 2019, and found him there in a bedroom, bloodied and with a significant laceration in his neck, a kitchen knife on the ground nearby.
2. Legal Standards
Evidence Code section 352 provides, "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." "Prejudice for purposes of Evidence Code section 352 means evidence that tends to evoke an emotional bias against the defendant with very little effect on issues, not evidence that is probative of a defendant's guilt." (People v. Crew (2003) 31 Cal.4th 822, 842.) Evidence may also be unduly prejudicial if it is likely to be used by the jury" 'in some manner unrelated to the issue on which it was admissible.'" (People v. Cudjo (1993) 6 Cal.4th 585, 610.)"' "Unless the dangers of undue prejudice, confusion, or time consumption' "substantially outweigh"' the probative value of relevant evidence, a section 352 objection should fail." '" (People v. Thomas (2023) 14 Cal.5th 327, 363.)
"Evidence showing consciousness of guilt . . . is generally admissible within the trial court's discretion." (People v. Anderson (2018) 5 Cal.5th 372, 391.) "While physical flight to evade capture or escape from custody are two obvious examples of relevant conduct, the courts have long held' "[a]ny conduct of a defendant subsequent to the commission of the crime tending to show consciousness of guilt is relevant and admissible ...."' [Citation.]
'[T]here need only be some evidence in the record that, if believed by the jury, would sufficiently support the suggested inference [of consciousness of guilt].'" (People v. Pettigrew (2021) 62 Cal.App.5th 477, 497-498 [suicide attempt can be circumstantial evidence of guilt] (Pettigrew).)
We review a trial court's admission or exclusion of "consciousness of guilt" evidence for abuse of discretion. (People v. Anderson, supra, 5 Cal.5th at p. 391.)
3. Analysis
Lara-Uribe argues that there is a lack of controlling authority regarding whether a post-crime suicide attempt is admissible to show consciousness of guilt under Evidence Code section 352 and, further, that the probative value of the challenged evidence here was relatively weak as compared to its unduly prejudicial impact because of the inherently ambiguous and complex nature of Lara-Uribe's motivation for his suicide attempt. Neither argument is persuasive.
First, although neither the parties nor we have found any California cases in which an appellate court has ruled on the admissibility of a suicide attempt under Evidence Code section 352 to show consciousness of guilt, California courts have repeatedly discussed the issue in similar contexts, even if in dicta.
For example, as Lara-Uribe notes, the defendant in Pettigrew did not challenge on appeal the admissibility of evidence of his two suicide attempts to show consciousness of guilt, evidence that the trial court had admitted under Evidence Code section 352. (Pettigrew, supra, 62 Cal.App.5th at pp. 495, 498.) Nonetheless, the appellate court extensively discussed the subject in the course of reaching its holding. Pettigrew argued on appeal that the trial court committed prejudicial error by instructing the jury with the standard flight instruction, CALCRIM No. 372, telling the jury that it could consider evidence of his two suicide attempts while in jail as consciousness of his guilt. (Pettigrew, at p. 495.) The appellate court concluded the trial court had erred in giving this instruction because there was no substantial evidence of post-crime flight. (Id. at pp. 499-500.) In reaching this conclusion, the court indicated that evidence of a post-crime suicide attempt was admissible to show consciousness of guilt and, further, that the trial court, rather than "shoehorn defendant's suicide attempts into the category of flight, . . . should have drafted its own instruction or directed the prosecutor to draft her own ...." (Id. at pp. 500, 497-498.) The court went on to find the trial court's instructional error was harmless because the court's instruction "expressly informed the jury that, if it found defendant tried to kill himself while in custody, it was the sole judge of 'the meaning and importance' of defendant's suicide attempts," and, further, because "the overwhelming evidence of defendant's guilt-including relevant evidence of defendant's consciousness of his guilt when he tried to kill himself" made it "not reasonably probable he would have fared any better had the trial court not given the flight instruction." (Id. at p. 502.)
Thus, as Pettigrew indicates, a post-crime suicide attempt is potentially admissible as evidence of consciousness of guilt at the trial court's discretion. Other courts have similarly indicated this to be the case. For example, in a discussion about the relevance of certain post-crime evidence of flight in People v. James (1976) 56 Cal.App.3d 876, cited in Pettigrew, supra, 62 Cal.App.5th at p. 498, the court stated, "In terms of relevancy, the question is whether evidence of the conduct of defendant after the alleged commission of a crime, whether it be labeled flight, evasion of apprehension, or consists of other conduct such as attempted suicide or escape from custody [citation], can be said to constitute circumstantial evidence of guilt, by the circumstantial-evidence-reasoning process of first, a reasonable inference of consciousness of guilt from such conduct, and second, an inference from the state-of-mind fact of consciousness of guilt to the fact of commission of the offense in conformity with such state of mind." (James, at p. 890, italics added.)
The Pettigrew court also noted that "[o]ther courts have also recognized that evidence of a defendant's attempted suicide after the commission of a crime constitutes relevant circumstantial evidence of guilt if the evidence supports an inference that the suicide attempt was an effort to evade prosecution. (People v. Sorrentino (1956) 146 Cal.App.2d 149, 161 ['There was also evidence of consciousness of guilt on the part of appellant, since he stated that he would have committed suicide if the officers had not taken his gun.']; Hall v. Scribner (N.D.Cal. 2008) 619 F.Supp.2d 823, 845 [on federal habeas corpus, finding persuasive state appellate court's holding that error in prosecutor's closing argument, if any, was harmless beyond a reasonable doubt considering evidence from which the jury was' "virtually certain"' to draw inferences of consciousness of guilt,' "[t]he first and most dramatic of these [being] defendant's attempted suicide the day before [his] interview [with police]" ']; see generally 1 Witkin, Cal. Evidence (5th ed. 2012) Hearsay, § 119, p. 951 ['Evidence that the defendant attempted suicide after committing the alleged crime or being arrested may be admitted to show consciousness of guilt.'].)" (Pettigrew, supra, 62 Cal.App.5th at p. 498.)
Further, the Pettigrew court noted in a footnote accompanying the above passage, "Our Supreme Court has similarly recognized, albeit indirectly, that a postoffense suicide attempt is relevant to prove the defendant's consciousness of guilt. (People v. Panah (2005) 35 Cal.4th 395, 482 [Trial court properly excluded evidence of defendant's suicide attempt four years before the alleged crime, despite defendant's assertion it was relevant to 'negate any inference of consciousness of guilt from his suicide attempt . . . the morning after the crime.' (italics added)]; People v. Carter (1957) 48 Cal.2d 737, 748 [Where '[t]he prosecution relied on defendant's attempted suicide as evidence of a guilty mind, and thus as indirect evidence that defendant had administered the beating to [the victim],' the trial court erred by excluding rebuttal evidence of defendant's statements to a doctor explaining why he tried to kill himself.].)" (Pettigrew, supra, 62 Cal.App.5th at p. 498, fn. 5.)
This case law persuasively indicates that post-crime suicide attempt may be admissible to show consciousness of guilt under Evidence Code section 352. Lara-Uribe does not seriously disagree with this; rather, he contends that "in recent years several state Supreme Courts have concluded that suicide attempt evidence is not automatically admissible and that it must be subject to a balancing of probative value versus undue prejudice." (Italics added.) But no one contended below, and the trial court did not rule, that evidence of Lara-Uribe's suicide attempt was automatically admissible. Lara-Uribe goes on to discuss two cases from other states in which high courts emphasized the importance of engaging in such a balancing, State v. Mann (1993) 132 N.J. 410 and State v. Martin (2020) 146 Hawai'i 365 . Of course, nothing in those cases is binding on a California court. (US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 905.) To the extent they are persuasive, nothing in them suggests the trial court in this case was obligated to do anything more than it did in deciding to admit the evidence of Lara-Uribe's suicide attempt.
The real crux of Lara-Uribe's argument is his view that "the trial court's evaluation of the probative value against prejudice was cursory at best." We do not agree. There is no question that the trial court considered the admission of the suicide attempt evidence under Evidence Code section 352. That statute was the basis for Lara-Uribe's written motion in limine, which the court indicated it had read. Further, the court delayed ruling on Lara-Uribe's motion in limine because of what it viewed as the uncertain nature of the evidence as presented to it, indicating the evidence could be viewed as the result of his wife's statement to him that she did not love him anymore or that he did not want to be held responsible for his crime. It was only at the next hearing, after the court focused on an unidentified notation and certain unidentified statements by "the kids" and Lara-Uribe's wife-for which Lara-Uribe's counsel sought no clarification and which we cannot determine from the record-that the court determined the suicide attempt evidence was admissible.
Under these circumstances, we conclude the trial court did not abuse its discretion by denying Lara-Uribe's motion and admitting the suicide attempt evidence. The very timing of Lara-Uribe's suicide attempt, which he made very soon after his own children confronted him about the accusations of the Jane Does, makes the evidence highly probative of his consciousness of guilt, particularly when it is reasonable to infer that any expressions by family members of a lack of love for or anger towards him were related to these accusations. The court could reasonably conclude from these circumstances that the relevance of the suicide attempt evidence outweighed the danger of any undue prejudice that might be caused by its admission. Again, the standard for admission is not clear and irrefutable proof that a defendant attempted suicide to avoid being held accountable for the commission of a crime;" 'there need only be some evidence in the record that, if believed by the jury, would sufficiently support the suggested inference [of consciousness of guilt].'" (Pettigrew, supra, 62 Cal.App.5th at pp. 497-498.) That evidence existed here when the trial court ruled.
Further, the trial court, in ruling that the suicide attempt evidence was admissible, appears to have relied on a notation and statements by Lara-Uribe's family members that cannot be identified from the record. Lara-Uribe's trial counsel did nothing at the hearing to clarify these matters, nor does Lara-Uribe clarify these matters in his appeal. In that respect, Lara-Uribe has failed to meet his burden as appellant of affirmatively showing the court erred in admitting the suicide attempt evidence. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573 ["Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error."].)
Finally, assuming for the sake of argument that the trial court erred, it was undoubtedly harmless in light of the other, strong evidence of Lara-Uribe's consciousness of guilt and of his guilt, which we discuss further in section B, post.
For these reasons, we reject Lara-Uribe's abuse of discretion and constitutional due process arguments regarding the trial court's denial of his motion in limine and its admission of the suicide attempt evidence.
B. The Trial Court's Admission of E.P.'s Lay Opinion Testimony Is Not a Basis for Reversal
Lara-Uribe next argues the trial court abused its discretion by overruling his trial counsel's objection to E.P.'s testimony that the contents of the letter she received from Lara-Uribe meant, as she put it, "That he admitted it." Lara-Uribe argues the court's admission of this testimony was an abuse of discretion that violated Evidence Code section 800 and related case law, as well as his federal and state constitutional rights to due process and trial by jury, because it was improper lay opinion testimony that amounted to the court directing the jury to find Lara-Uribe guilty. He further contends its admission was prejudicial, particularly under the federal standard for constitutional violations established by Chapman v. California (1967) 386 U.S. 18, which requires reversal unless it is proven beyond a reasonable doubt that the error did not contribute to the verdict obtained (id. at p. 24).
Evidence Code section 800 states, "If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [¶] (a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony."
Lara-Uribe also argues his trial counsel's failure to object to this challenged testimony on the additional ground that it lacked relevance constitutes ineffective assistance of counsel.
The People argue the court did not err in admitting the challenged testimony because it was admissible lay opinion testimony, defense counsel's performance was not deficient because the testimony was relevant, and, in any event, any error by the court or deficient performance by defense counsel was not prejudicial.
We have no need to address the merits of Lara-Uribe's claims. Assuming solely for the sake of argument that the trial court erred in admitting the challenged testimony and trial counsel's performance was deficient for failure to object on relevance grounds, the effect was undoubtedly harmless, whether evaluated under the federal standard articulated in Chapman, the state "reasonable probability" standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836, or the "reasonable probability" standard for prejudice applied to ineffective assistance of counsel claims as articulated in Strickland v. Washington (1984) 466 U.S. 668, 694 and state cases such as People v. Jackson (1996) 13 Cal.4th 1164, 1217.
We reach this conclusion for three reasons. First is the content and context of the challenged testimony itself.
E.P.'s opinion that the contents of Lara-Uribe's letter, as translated by her (to which there was no objection), meant, "That he admitted it," is very brief, unexplained, and ambiguous as to what "it" is, making it far from definitive testimony regarding the numerous charges brought against Lara-Uribe. The context suggests "it" refers generally to the sexual abuse of Lara-Uribe's granddaughters.
Further, E.P.'s opinion about what Lara-Uribe meant by his letter is insignificant in light of the other unchallenged evidence of Lara-Uribe's consciousness of guilt. As translated by E.P., the letter twice stated that he had "failed," indicated that he was not entitled to forgiveness, and told E.P. to ask God to allow him to die soon. These contents plainly indicate Lara-Uribe knew he had done something wrong-E.P.'s stated lay opinion amounted to nothing more than that, making it hardly prejudicial. And as we have discussed, there was undisputed evidence that shortly after his family confronted him about his sexual assaults, Lara-Uribe both left a message for E.P.'s sister in which he confessed to gaining "bad habits" as he got older and attempted suicide. The significance of Lara-Uribe's opinion testimony pales in comparison to the cumulative weight of these actions in evaluating his consciousness of guilt after the Jane Does came forward.
Lara-Uribe emphasizes that E.P. not only testified that Lara-Uribe wrote in the first sentence of the letter that he did not "deserve forgiveness," but that the relevant phrase could also be translated as that he knew he did not "have forgiveness." This distinction is meaningless in light of the remainder of the letter. Lara-Uribe referred to his own failures, his wish to die, and E.P.'s anger with him. In that context, the only reasonable interpretation of the letter's first sentence is that Lara-Uribe thought he was not entitled to forgiveness.
Second, the court's instructions to the jury made clear the jury was free to disregard E.P.'s opinion altogether. Specifically, the court instructed the jury, consistent with CALCRIM No. 333, "Witnesses gave their opinion during the trial. You may but are not required to accept those opinions as true or correct. You may give the opinions whatever weight you think appropriate. Consider the extent of the witness's opportunity to perceive the matters on which his or her opinion is based, the reasons the witness gave for any opinion, and the facts or information on which the witness relied in forming that opinion. You must decide whether information on which the witness relied was true and accurate. You may disregard all or any part of an opinion that you find unbelievable, unreasonable, or unsupported by the evidence." The jury's understanding that it was free to disregard E.P.'s brief, vaguely stated opinion further diminished the impact, if any, of that testimony on the jury's evaluation of Lara-Uribe's guilt.
Third is the testimony of the Jane Does. Each of them gave accounts that were detailed and compelling, making them particularly credible. A number of them also testified that they did not tell each other the details of Lara-Uribe's sexual abuse of them, testimony that went unchallenged by the defense, making it even more unlikely that they together planned or manufactured their accounts.
Lara-Uribe points out that the testimony of the Jane Does was not corroborated by any forensic or medical evidence, but this is hardly surprising given the significant time that passed between the incidents reported and the reports themselves. It does not diminish the power of their accounts, particularly when considered with the consciousness of guilt evidence that we have just discussed.
Lara-Uribe also makes much of what he characterizes as some "inconsistencies" between the pretrial accounts of Jane Doe 4 and Jane Doe 5 to the authorities and their trial testimony, which we have discussed in our summaries of their testimony, ante. None of these differences were contradictions-rather, the women's different accounts were consistent overall-and the explanations given by Jane Doe 4 and Jane Doe 5- essentially, that initially they had not recalled everything Lara-Uribe had done or said to them-was understandable in light of the fact that their accounts to the police were about events that had occurred years earlier and were the first they made to any authorities. In other words, the differences do little, if anything, to diminish the credibility and power of their testimony.
Further, Lara-Uribe mostly points to inconsistencies regarding evidence that was not essential to his convictions or demonstrative of a lack of credibility. For example, he points to evidence that he contends shows that Jane Doe 4 did not initially disclose to police that Lara-Uribe had orally copulated her, which was the basis for his count 3 conviction. In fact, Jane Doe 4 testified that she did not at first disclose to police that Lara-Uribe had made her orally copulate him, evidence that was not necessary for his count 3 conviction. There is no indication in the record that she was inconsistent in her disclosure that he orally copulated her.
Also, Lara-Uribe points out that Jane Doe 5 testified that he eventually penetrated her vagina "almost every day" for years, but that she told police that he did so "every day." This difference is so minor as to be insignificant to the relevant charges against Lara-Uribe, which were four counts of committing a forcible lewd and lascivious act upon a child under the age of 14 (§ 288, subd. (b); counts 5, 9-11) and three counts of committing aggravated sexual assault, i.e., forcible rape, on a child under the age of 14 who was seven or more years younger than Lara-Uribe (§§ 269, subd. (a)(1), 261, subd. (a)(2), (6)); counts 6-8).
Similarly, Lara-Uribe points out that Jane Doe 5 testified that she did not at first disclose to police that Lara-Uribe at one point started to put his fingers in her vagina. This is of no consequence in light of Jane Doe 5's testimony that he raped her by vaginal penetration for years, which provided more than enough evidentiary support for all of the relevant charges against him.
The other differences identified by Lara-Uribe are similarly of small consequence, such as Jane Doe 5's testimony that Lara-Uribe raped her in a shed next to the stalls when she first told police that he raped her in the stalls, or her failure to initially tell police all of the family members that Lara-Uribe threatened to harm if she told anyone what he had done to her. As for his contention that Jane Doe 5 fabricated her allegations to bolster her sister's claims because Jane Doe 5 did not make them until after the family doubted her sister, Jane Doe 5 testified that she previously had told a cousin that "something had happened," and the detailed account she gave of Lara-Uribe's crimes against her further belies his contention.
In short, Lara-Uribe's claim that error by the trial court and deficient performance by his trial counsel were prejudicial is without merit. His claims of court error and ineffective assistance of counsel fail for at least that reason.
C. The Trial Court Did Not Err in Instructing the Jury Regarding Propensity Evidence
Lara-Uribe next argues the trial court violated his constitutional right to have his guilt determined beyond a reasonable doubt by giving the jury an instruction based on CALCRIM No. 1191B that it could consider the evidence underlying the charged offenses as propensity evidence. The People argue Lara-Uribe has forfeited this claim, and that it is meritless under People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016 (Reliford) and People v. Villatoro (2012) 54 Cal.4th 1152, 1167-1168 (Villatoro). Lara-Uribe acknowledges that we may decide Reliford applies here and be required to follow it under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 (Auto Equity); nonetheless, he argues Reliford was wrongly decided in order to preserve his claim for later review.
Lara-Uribe further argues the trial court improperly gave the propensity evidence instruction without first considering whether it would be unduly prejudicial to do so under Evidence Code section 352, which he contends the trial court was required to do under Villatoro. The People do not respond to this argument.
1. The Challenged Instruction
The trial court instructed:
"The People presented evidence that the defendant committed the crimes of Lewd act upon a child, forcible lewd act upon a child, aggravated sexual assault of a child charged in Counts 1-11 and 13-15.
"If the People have proved beyond a reasonable doubt that the defendant committed one or more of these crimes, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit the other sex offenses charged in this case.
"If you find that the defendant committed one or more of these crimes, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of another crime. The People must still prove each charge and allegation beyond a reasonable doubt."
2. Analysis
We do not need to determine the merit of the People's forfeiture argument because, even if Lara-Uribe did not forfeit his claim, it lacks merit.
As for his argument that the court should not have given the propensity evidence instruction at all, in Reliford, the California Supreme Court approved the CALJIC predecessor to CALCRIM No. 1191A, CALJIC No. 2.50.01, which instructed jurors that the prosecutor needed to prove a defendant's uncharged sex offenses by a preponderance of the evidence. (Reliford, supra, 29 Cal.4th at pp. 1013-1016; see Villatoro, supra, 54 Cal.4th at p. 1160 [quoting with approval a case that found" 'no material difference'" between CALJIC No. 2.50.01 and CALCRIM No. 1191].) Then, in Villatoro, the court upheld a special instruction, which is virtually identical to the instruction given in the present case, regarding the jury's consideration of Evidence Code section 1108 evidence of charged offenses. (Villatoro, at pp. 1167-1168.) That instruction was the precursor to CALCRIM No. 1191B. (See People v. Meneses (2019) 41 Cal.App.5th 63, 67-68 [rejecting a very similar challenge to CALCRIM No. 1191B based on Villatoro and Auto Equity].) Therefore, Lara-Uribe's claim is foreclosed by Reliford and Villatoro under Auto Equity, supra, 57 Cal.2d at p. 455.
The instruction provided," 'The People presented evidence that the defendant committed the crime of rape as alleged in counts 2, 4, 7, 9, 12 and 15 and the crime of sodomy as alleged in count 14. These crimes are defined for you in the instructions for these crimes. [¶] If you decide that the defendant committed one of these charged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit the other charged crimes of rape or sodomy, and based on that decision also conclude that the defendant was likely to and did commit the other offenses of rape and sodomy charged. If you conclude that the defendant committed a charged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove the defendant is guilty of another charged offense. The People must still prove each element of every charge beyond a reasonable doubt and prove it beyond a reasonable doubt before you may consider one charge as proof of another charge.'" (Villatoro, supra, 54 Cal.4th at p. 1167.)
Lara-Uribe's argument that Villatoro required the trial court to consider whether the instruction would be unduly prejudicial under Evidence Code section 352 also lacks merit. The trial court did not expressly engage in a section 352 analysis on the record, but nothing in Villatoro requires it to have done so. (Villatoro, supra, 54 Cal.4th at p. 1168 ["an express statement is not required" by the trial court regarding section 352, and an implicit weighing may be inferred "on the basis of record indications well short of an express statement" (original italics)].) Instead, the court stated, "1191(B) is also requested by the People and I believe that should and will be given as well." We infer from court's reference to "should" that it did in fact consider whether the instruction was appropriate under a section 352 analysis.
Further, even if the trial court had not engaged in such an analysis, its failure to do so would have undoubtedly been harmless because of the striking similarities between the propensity evidence. Each of the Jane Does was Lara-Uribe's granddaughter; he watched them when they were children while the parents were engaged elsewhere; he isolated himself with them when he watched them; he sexually assaulted them when they were at similar ages; and he threatened them in similar ways in order to obtain their silence. Under these circumstances, the propensity evidence was highly probative of Lara-Uribe's propensity to commit such crimes, and its value substantially outweighed any prejudice. (Villatoro, supra, 54 Cal.4th at pp. 1168-1169 [any failure by the trial court to conduct a section 352 analysis was harmless in light of the "strikingly similar" attacks by the defendant].)
D. The Trial Court Violated the Constitutional Prohibitions Against Ex Post Facto Laws by Imposing Certain 25-Year-to-Life Sentences
Lara-Uribe next argues the trial court, in violation of federal and state constitutional prohibitions against ex post facto laws, imposed eight of his 25-year-to-life sentences for offenses he committed before section 667.61 was amended to increase the applicable penalty from 15 years to life to 25 years to life. The People agree. The parties are correct.
Specifically, the trial court imposed 25-year-to-life sentences on Lara-Uribe for his conviction on the 10 lewd and lascivious act and forcible lewd and lascivious act counts alleged in the information. Lara-Uribe asserts eight of these sentences violated ex post facto laws, they being for count 1 (a lewd and lascivious act upon a child under the age of 14, Jane Doe 1, in violation of § 288, subd. (a)); counts 2 and 4 (forcible lewd and lascivious acts against a child under the age of 14, Jane Doe 4, in violation of § 288, subd. (b)); counts 5, 9, 10, and 11 (forcible lewd and lascivious acts against a child under the age of 14, Jane Doe 5, in violation of § 288, subd. (b)); and count 13 (a lewd and lascivious act upon a child under the age of 14, Jane Doe 2, in violation of § 288, subd. (a).) The People agree.
The parties contend that count 5 of the information alleged that Lara-Uribe committed a forcible lewd and lascivious act upon Jane Doe 4, but it actually alleged he committed this act upon Jane Doe 5. Their error does not affect our analysis.
Lara-Uribe does not challenge the 25-year-to-life sentences that the court imposed on him for the two lewd and lascivious act counts regarding Jane Doe 3, the youngest of the Jane Does.
Before September 9, 2010, section 667.61 provided that the punishment applicable to the eight counts at issue here was 15 years to life. (Stats. 2010, ch. 219, § 16 [see former subds. (b), (c)(4) &(8), (e)(5)]; Stats. 2006, ch. 337, § 33 [same].) The Legislature amended section 667.61, effective September 9, 2010, adding subdivision (j)(2) so as to increase the punishment applicable to convictions for crimes such as those delineated in these eight counts from 15 years to life to 25 years to life. (Stats. 2010, ch. 219, § 16 [renumbering subd. (e)(5) as (e)(4) and adding subd. (j)(2)].) Subdivision (j)(2) continues to be included in section 667.61 , and appears to have been the basis for the trial court's imposition of 25-year-to-life sentences for these eight counts.
Section 667.61, subdivision (j)(2) states, "A person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e), upon a victim who is a child under 14 years of age, shall be punished by imprisonment in the state prison for 25 years to life."
"Our state and federal Constitutions prohibit ex post facto laws. (U.S. Const., art. 1, § 10; Cal. Const., art. I, § 9; [citation].) Any law that applies to events occurring before its enactment and which disadvantages the offender either by altering the definition of criminal conduct or increasing the punishment for the crime is prohibited as ex post facto." (People v. Rojas (2015) 237 Cal.App.4th 1298, 1306 (Rojas).)
"[I]t is the prosecution's responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant's punishment." (People v. Hiscox (2006) 136 Cal.App.4th 253, 256; accord, Rojas, supra, 237 Cal.App.4th at p. 1306.) When "the jury [is] not asked to make a finding that [an offense] occurred after the effective date" of a sentencing statute, "its verdict 'cannot be deemed sufficient to establish the date of the offense[] unless the evidence leaves no reasonable doubt' that the conviction was based on an incident that occurred on or after" that effective date. (Rojas, at p. 1306, quoting Hiscox, at p. 261.)
Here, the jury was not asked to make any findings regarding when Lara-Uribe committed his sexual assaults, and Jane Does 1, 4, 5, and 2 did not refer to specific dates. Nonetheless, a brief review of their testimony shows the People did not establish beyond a reasonable doubt that Lara-Uribe engaged in the sexual assaults underlying the eight counts at issue on or after September 9, 2010.
Jane Doe 1 (count 1) was born on April 4, 1995. Her testimony indicates Lara-Uribe's lewd and lascivious acts upon her occurred when she was seven or eight years old; in other words, they occurred sometime between 2002 and 2004.
Jane Doe 4 (counts 2 and 4) was born on August 13, 1997. Her testimony indicates that Lara-Uribe committed his crimes against her when she was between the ages of six and ten; in other words, between 2003 and 2008.
Jane Doe 5 (counts 5, 9, 10, and 11) was born on October 14, 1994. Her testimony indicates Lara-Uribe committed his crimes against her when she was between the ages of 10 and almost 16; in other words, between 2004 and sometime in 2010. Thus, there is no clear indication that any of Lara-Uribe's crimes against her occurred after the relevant effective date for the change in section 667.61, September 9, 2010.
Jane Doe 2 was born on October 15, 1997. Her testimony was that Lara-Uribe's crimes against her occurred in 2008, when she was about nine or 10 years old.
Therefore, the trial court should have imposed a term of 15 years to life for the eight counts (counts 1, 2, 4, 5, 9, 10, 11, and 13), the sentence called for by section 667.61 before its 2010 amendment. (See People v. Hiscox, supra, 136 Cal.App.4th at pp. 260-261 [sentence imposed under section 667.61 was invalid where defendant did not necessarily commit offenses "on or after the statute's effective date"]; see also Rojas, supra, 237 Cal.App.4th at p. 1307 [reversing conviction where offenses "could have happened" before effective date].) We shall vacate the subject sentences and remand with a directive that the trial court impose the correct terms of 15 years to life for the eight counts and prepare a modified abstract of judgment reflecting those corrections.
E. The Trial Court Did Not Err by Imposing Multiple Life Sentences
Lara-Uribe next argues the trial court erred by imposing 10 consecutive life sentences under section 667.61 because it was only authorized under that statute to impose one life sentence in the case.
Specifically, the jury found Lara-Uribe guilty of four counts of committing a lewd and lascivious act on a child under the age of 14 (§ 288, subd. (a); counts 1, 13-15) and six counts of committing a forcible lewd and lascivious act upon a child under the age of 14 (§ 288, subd. (b); counts 2, 4, 5, 9-11), and that he committed these acts against multiple victims in violation of section 667.61, subdivisions (b), (e), and (j)(2). The court imposed consecutive sentences of 25 years to life for each of these 10 counts.
As we have discussed ante, the court's imposition of this 25-year-to-life term for eight of the counts violated the constitutional prohibitions against ex post facto laws.
Section 667.61, also known as the One Strike law (People v. Anderson (2020) 9 Cal.5th 946, 954), allows a court to impose a life sentence when a defendant has been convicted of enumerated sex crimes under specified conditions. Section 667.61, subdivisions (b), (c), (e)(4), and (j)(2) together provide that if a defendant has been convicted of committing certain offenses for which Lara-Uribe was convicted (lewd and lascivious acts on a child under age 14 and forcible lewd and lascivious acts on a child under the age of 14) (§ 667.61, subd. (c)(4) &(8)) against multiple victims (id., subd. (e)(4)), the punishment shall be a sentence of 25 years to life (id., subd. (j)(2)). As previously noted, prior to a 2010 amendment of section 667.61, the statute provided for a sentence of 15 years to life for these offenses. (Stats. 2010, ch. 219, § 16 [see former subds. (b), (c)(4) &(8), (e)(5)]; Stats. 2006, ch. 337, § 33 [same].)
Lara-Uribe argues the trial court could have imposed only one life sentence in the case under the multiple victim provisions in section 667.61, based on his reading of section 667.61. However, the courts, including our own, have consistently held that a trial court can impose multiple life sentences. For example, in People v. Andrade (2015) 238 Cal.App.4th 1274, a panel of this Division affirmed a sentence of 195 years to life for a defendant who had committed 13 eligible offenses against five victims, rejecting a claim that the number of life sentences was limited by the number of victims. (Id. at pp. 1281, 1304-1305.) In the course of its discussion, the panel acknowledged as settled the argument that only one life sentence may be imposed per case. We still regard it as a settled point that multiple life terms may be imposed in a single case under section 667.61, subdivision (e)(4). (Andrade, at pp. 1304-1305; People v. DeSimone (1998) 62 Cal.App.4th 693, 697-699; People v. Murphy (1998) 65 Cal.App.4th 35, 40-41; People v. Valdez (2011) 193 Cal.App.4th 1515, 1521-1524; People v. Morales (2018) 29 Cal.App.5th 471, 482-483; People v. Zaldana (2019) 43 Cal.App.5th 527, 531, review granted Mar. 18, 2020, S259731, disapproved in part on other grounds in In re Vaquera (2024) 15 Cal.5th 706, 724.) Nothing Lara-Uribe argues affects our conclusion.
F. The Abstract of Judgment Should Be Modified Regarding the Sentence Imposed for Count 3
Finally, Lara-Uribe argues that his abstract of judgment should be amended to reflect the court's order that his sentence for his count 3 conviction be a 15-year-to-life sentence as opposed to a 25-year-to-life sentence. The People agree. The parties are again correct.
The trial court imposed a consecutive term of 15 years to life on count 3 for Lara-Uribe's aggravated sexual assault, i.e., oral copulation, of Jane Doe 4 in violation of section 269, subdivision (a)(4). However, the abstract of judgment erroneously lists count 3 as one of the counts for which Lara-Uribe was sentenced to 25 years to life.
Our Supreme Court has instructed that the" '[r]endition of judgment is an oral pronouncement.'" (People v. Mesa (1975) 14 Cal.3d 466, 471.)" 'The abstract of judgment is not the judgment of conviction. By its very nature, definition and terms [citation] it cannot add to or modify the judgment which it purports to digest or summarize.'" (Ibid.)
Therefore, when there is a discrepancy between the orally pronounced judgment and the abstract of judgment, the orally pronounced judgment controls. (People v. Hartsell (1973) 34 Cal.App.3d 8, 13; see People v. Mesa, supra, 14 Cal.3d at p. 471 ["a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error"], quoted approvingly in People v. Henson (2022) 13 Cal.5th 574, 582, fn. 6.) Where the judgment entered in the abstract fails to accurately replicate the judgment pronounced by the court, the error is clerical in nature and can be corrected at any time. (In re Candelario (1970) 3 Cal.3d 702, 705; People v. Hartsell, at p. 13.)
Here, the trial court's oral pronouncement that it was imposing a 15-year-to-life sentence for Lara-Uribe's count 3 conviction controls, and it was the actual judgment of the court. Therefore, we shall order modification of the abstract of judgment upon remand to show imposition of a 15-year-to-life sentence for count 3.
We also reject Lara-Uribe's claim that cumulative error denied him his due process right to a fair trial. This claim is without merit because, as we have discussed, the only errors made below were at sentencing.
III. DISPOSITION
The judgment is affirmed, except that we vacate the 25-year-to-life sentences that the court imposed for counts 1, 2, 4, 5, 9, 10, 11, and 13 and remand with the directive that the trial court impose the correct terms of 15 years to life for those eight counts and prepare a modified abstract of judgment reflecting those corrections, also modify the abstract of judgment regarding count 3 to reflect the court's previous imposition of a sentence of 15 years to life, and transmit a copy of this modified abstract of judgment to the California Department of Corrections and Rehabilitation.
WE CONCUR
BROWN, P. J. GOLDMAN, J.