Opinion
A145667
05-26-2017
PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. GILBERTO MONTALVAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51419175)
Defendant Gilberto Montalvan was convicted of forcible lewd act on a child under 14, five counts of lewd act on a child under 14, and witness dissuasion. He was sentenced to 14 years in state prison. On appeal, he asserts instructional error, ineffective assistance of counsel, insufficient evidence, multiple sentencing errors, and an improper restitution fine. Most of defendant's arguments lack merit. We agree, however, that multiple sentencing orders were improper, specifically an order prohibiting contact with all minors, an order prohibiting defendant from owning and possessing firearms, and a $2,100 restitution fine. We thus affirm in part and reverse in part.
BACKGROUND
An information filed on September 4, 2014 charged defendant with one count of forcible lewd act on a child under 14 (Pen. Code, § 288, subd. (b)(1)), with an allegation of substantial sexual contact (§ 1203.066, subd. (a)(8)), five counts of lewd act on a child under 14 (§ 288, subd. (a)), and one count of witness dissuasion (§ 136.1, subd. (b)).
All statutory references are to the Penal Code except as otherwise noted.
On April 8, 2015, a jury found defendant guilty as charged and found true the substantial sexual contact allegation. He was sentenced to 14 years in state prison.
This timely appeal followed.
EVIDENCE AT TRIAL
Testimony of Rosa A., Mother of Victim Jane Doe
Rosa A. is the mother of five children. At the time of the April 2015 trial, two were teenagers and one an adult. Jane Doe, the victim here, was nine years old. The youngest, who was two years old, was Rosa's only child with defendant.
Rosa testified through an interpreter.
In August 2014, Rosa and her children lived in a three-bedroom apartment with defendant. Rosa and defendant had known each other for three years and had been living together for one. On Friday, August 8, Rosa and her children were at home. Defendant came home around 4:30 p.m. with a 12- or 18-pack of beer, which he began drinking as soon as he walked in. Rosa had prepared food for the grill, and defendant began cooking outside on the barbeque. Defendant drank beer all night long, consuming, in Rosa's estimation, eight or nine beers between 4:30 and 9:00 or 10:00 p.m.
They ate dinner around 7:00 or 7:30 p.m., after which Rosa, defendant, Jane, and the baby went into the master bedroom, where defendant continued to drink more beer. There were two beds in the room, a small bed for the baby and a larger bed for Rosa and defendant.
Sometime between 10:30 and 11:00 p.m., Rosa left the bedroom and went into the bathroom to take a shower, leaving the door between the bedroom and bathroom open. When she left, the baby was asleep on the large bed, and defendant and Jane were sitting on the bed, looking at defendant's tablet. Defendant closed the door to the bedroom.
Rosa was in the shower when she heard someone come in and turn on the sink faucet. About five minutes into her shower, Rosa called out to defendant to ask if he was going to take a shower. He said she should finish showering and then he would come in. She did not hear the toilet flush while she was in the shower.
When Rosa got out of the shower, she left the water running, wrapped herself in a towel, and left the bathroom. She walked into the bedroom, where she saw Jane on the baby's bed. She was leaning back on the pillows with her legs bent, her feet in the air, and her pajama bottoms pulled down to her thighs. Defendant was crouched on the floor in front of her, touching her vagina with his right hand. Rosa did not notice whether Jane's panties were up or down, and she denied having testified at the preliminary hearing that she never actually saw defendant touch Jane.
Rosa immediately started crying and asked defendant why he was doing that. As soon as defendant saw her, he got up, walked over to hug her, and said he did not know what was happening. He asked for her forgiveness, claiming he did not know what he was doing. She asked why he was doing this to her when she had treated him well and had loved and taken care of him. He again responded that he did not know what was happening and did not realize what he was doing.
Rosa sat down on the big bed, and Jane got up from the baby's bed, pulled up her pajama bottoms, climbed onto the bed next to her mother, who was still crying, and continued to play on the tablet. Rosa and defendant argued about what he had been doing. Defendant wanted them to talk and did not want Rosa to tell anybody about what had happened. According to Rosa, although defendant had a lot to drink that evening, he was not drunk. She did not recall telling a police officer that he was extremely intoxicated that night.
While Jane was next to her mother on the big bed, Rosa asked her what had happened and if defendant had ever done anything else to her. Jane did not remember if defendant had tried to do anything to her on any other occasion. Rosa asked if he had tried to show her his penis, but Jane did not know what a penis was. While she was talking to Jane, defendant kept interrupting and denying he had done anything. This went on for about 15 minutes, during which time defendant went into the bathroom, grabbed a pair of scissors, and said he might as well kill himself. Rosa talked to Jane for about 20 minutes, after which Jane fell asleep.
While arguing with defendant during the hour following the incident, Rosa wanted to call the police but defendant kept hugging her and would not let her use the telephone. She told him that "it was really going to hurt [her] where he was going to have to wind up, but [she] was going to have to do what [she] had to do." She picked up her cell phone during that hour but did not call the police because defendant hugged her and took her phone away, returning it to her after about 40 minutes.
About an hour after the incident, Rosa wanted to call a friend, but by that point it was "pretty late to call" so she decided to wait until the morning to take Jane to the hospital. Around 2:30 a.m., defendant fell asleep at the foot of the bed, and the other three remained in the bed.
Rosa's testimony on the timing of the call was somewhat confusing, as she also testified that she first tried to call her friend and then defendant took her phone away.
Around 5:00 a.m. the next morning, Rosa called her friend and asked her to take her and Jane to the hospital. As she and Jane were preparing to leave, defendant woke up. He told her to wait and not go anywhere. She responded that she had to have Jane checked out to make sure he had not done anything to her. She also told him he should take his belongings and leave the house.
On the ride to the hospital, Rosa told her friend what she had seen. They continued to talk about the incident for another half an hour in the parking lot. Jane was in the back, playing on a tablet. Once at the hospital, she told a nurse they were there because Jane had been touched by someone, and Jane was seen right away. Rosa also spoke to a police officer and social workers.
Pittsburg Police Officer Michael Schubert's Trial Testimony
Pittsburg Police Officer Michael Schubert spoke with Jane and Rosa at the hospital on the morning of August 9. He spent over an hour with them, mostly speaking with Jane but going back and forth between her and Rosa when Rosa had information to add.
Jane told Officer Schubert that around 10:30 p.m. the prior evening, she went into her mother's and defendant's bedroom and stretched out on the bed while her mother was showering. A couple of minutes later, she saw defendant standing in the doorway. He closed the door behind him and walked over to the bed, sitting down about two feet away from her. He said, " 'I want to kiss you,' " and he leaned in and kissed her for a couple of seconds, sticking his tongue in her mouth as he did so. He tasted like beer, which was disgusting. She told him, "no," and tried to push him away.
Jane went into the adjoining bathroom, spit into the toilet, rinsed her mouth out at the sink, and returned to the large bed. Defendant kissed her a second time, and she again went into the bathroom and spit into the toilet to get rid of the beer taste. This time, when she returned to the bedroom, she laid down on the baby's bed. Defendant moved over, knelt in front her, and kissed her again with his tongue in her mouth. He pulled her pajama bottoms down to her thighs, put his left hand on top of her panties in her genital area, and rubbed in a circular motion on the top of her "private part" for approximately 30 seconds. Jane was telling him, " 'No, no, get away from me.' " He had his chest against her chest, pinning her to the bed, and she tried pushing him away but he was too strong. While defendant was touching Jane, he told her she could not tell anyone about what he was doing because they would get in a lot of trouble with her mother. Just then, Rosa came out of the bathroom, and defendant stopped what he was doing.
Jane also told Officer Schubert that on two other occasions, once in March and once in April, defendant had kissed her after consuming a large amount of beer, again while they were on the bed in her mother's room. Each time, he stuck his tongue in her mouth, and she told him to stop and pushed him away. He told her not to say anything to her mother because she would get into a lot of trouble. Officer Schubert testified that Jane was crying during her description of the abuse.
Officer Schubert also spoke with Rosa, who told him she had showered for 30 minutes that night, defendant had used his left hand to touch Jane, he was highly intoxicated when she spoke with him after she walked out of the bathroom, and he had fallen asleep on the bedroom floor.
Officer Schubert testified that after he spoke with Jane and Rosa, he stepped out of the hospital room to speak with a social worker. When he went back into the room, Rosa told him defendant had called and wanted to speak to the police. Officer Schubert made arrangements to meet defendant at the police department. Around 1:00 p.m. that day, Officer Schubert and another officer met with defendant and subsequently arrested him.
Jane's Interview at the Children's Interview Center
On August 12 (four days after the assault), Jane was interviewed at the Children's Interview Center (CIC). A video recording of the interview was played for the jury, the substance of which was as follows:
Jane knew she was at the CIC because defendant "did bad things that weren't supposed to happen" to her, like he "grabbed [her] private." The night it happened, Jane was in her mother's room. She was lying on her mother's bed when defendant came into the room, closed the door behind him, and sat down on the bed. He told her to kiss him and she said no, but he said he would give her a dollar. She sat down next to him, and he kissed her and gave her a dollar. Defendant kissed her three times that night. When he kissed her the first time, he put his tongue inside her mouth and said, " 'Kiss me good,' " but she said, " 'No' " and pushed him away because she did not like his kisses. Her mother was washing the dishes when this happened, and he stopped when her mother came into the bedroom.
Her mother then got into the shower, and defendant kissed Jane two more times. Those times, he bit her lip and she pushed him away because it hurt. After each time, she went into the bathroom where her mother was showering to spit into the toilet because defendant tasted like beer and she did not like it.
Jane told the interviewer that although her mother was showering, she probably did not see Jane come into the bathroom because she probably had shampoo in her hair and it might have gotten in her eyes. The shower curtain was closed and Jane said she was going to scare her mother, but then she saw an eye sticking out and her mother had seen her.
After the third time defendant kissed her, Jane lay down on her baby brother's bed, and defendant knelt in front of her and started "rubbing [her] private." As Jane described it to the interviewer: "Oh, he started going in my private, but I had my legs closed. He opened my leg. I tried closing them again, but he put his elbow just like this to keep them open." He rubbed her "private" over her pajamas with one hand, stopping after 30 seconds because Rosa walked into the room and saw him rubbing her private parts.
Rosa started crying, asking why he was doing that to her daughter. Jane went to her mother and sat next to her. Her mother was going to call the police and she stood up to get the phone, but defendant grabbed it from her, threw it on the other side of the bed, and told her to talk to him so he could explain what happened.
After Jane's mother held her for a long time, Jane got up, went into the bathroom, and then into the living room. When she returned to the bedroom, her mother was still crying and arguing with defendant, although Jane was not listening to what they said. Her mother held her tightly some more, and she fell asleep on the bed. Defendant fell asleep on the floor and left around 5:00 a.m. the next morning. Her mother did not say anything to her.
Jane told the interviewer defendant had kissed her on two previous occasions, once about three or four months before that night and a second time about a month earlier. Both incidents happened in her mother's bedroom, and defendant put his tongue in her mouth on both occasions. She estimated defendant had kissed her six or seven times. She never told her mother about the other times defendant kissed her because he told her not to and she thought she would get into trouble.
Jane Doe's Trial Testimony
Jane testified at trial that defendant used to be her mother's boyfriend and lived with them for a while. When defendant lived in the family's apartment, he did some things to her that "he wasn't supposed to do," like kissing her "not in a good way." She recounted that the last time he did this was the day the family had a barbeque. Around 9:00 p.m. that night, after they had eaten dinner, Jane's mother went into the bedroom to take a shower. About five seconds later, as her mother was getting into the shower, Jane followed her into the bedroom. Defendant came into the bedroom about 30 seconds after that and closed the bedroom door, which was usually left open. Jane was lying on her baby brother's bed, waiting for her mother to get out of the shower so they could go to sleep on the big bed. Defendant first went over to the big bed, but he then moved over to the little bed and "started doing bad things" to her, "[l]ike sexual things [she] wasn't supposed to be able to do." At first, he started kissing her "in a bad way," putting his tongue in her mouth when he did it. He tasted like beer, which Jane did not like, so she got up, went into the bathroom where her mother was showering, and washed out her mouth with water from the sink. She returned to the small bed, and defendant kissed her a second time in the same way, telling her not to tell her mother. She again went into the bathroom to wash out her mouth. During her trips into the bathroom, she did not go in there to scare her mother, never saw her mother in the shower or peek out with one eye, and did not hear her mother say anything.
Jane returned to the small bed. Defendant kissed her a third time and then started "humping" her, moving his private part toward her private part for 30 seconds. She had her pajamas on, and his private part never touched her private part. Jane was playing on a tablet while defendant was "humping" her. She did not remember if defendant was doing anything with his hands while he was "humping" her.
Defendant stopped when her mother walked into the bedroom. He sat down on the bed, and her mother was crying about what he had done to Jane. Jane went to her mother and sat on her lap while her mother and defendant were talking, but she did not hear what they were saying. She got up and turned the shower off at some point and stayed awake until her mother and defendant stopped arguing. After her mother and defendant talked, no one called the police. She did not know if anyone tried to call the police, and she did not see a telephone after her mother came out of the bathroom.
At this point in Jane's testimony, she broke down and began to cry, so the court took a recess.
Jane fell asleep around 11:00 p.m. and then woke up early to go to the hospital with her mother and her mother's friend. They went to the hospital in a truck, and she sat by herself in the middle seat. Asked if her mother and her mother's friend were talking on the way to the hospital, Jane answered, "Not a lot," adding that she was not paying attention to them. Jane's baby brother did not go with them to the hospital because he had not yet been born. Jane did not talk to her mother during the night and only talked to her in the morning to ask where they were going.
At least two months before this incident, defendant had kissed her on "[p]robably" more than two occasions. Those other kisses also occurred at night in her mother's bedroom.
Asked by the prosecutor what she thought would happen with her mother if her mother found out that someone had touched her, Jane answered, "She would have gotten me in trouble." Asked why she thought that, Jane answered, "Because I usually don't tell her what things happen."
Defendant's Expert Witness on Child Forensic Interviewing and Suggestibility
Professor Bradley McAuliff, an expert on child memory and suggestibility, testified on behalf of defendant. According to McAuliff, suggestibility has to do with factors that influence the accuracy of reporting. Such factors include an individual's developmental maturity; social components, such as the presence of other people; the manner in which a person is questioned, such as a neutral question compared to a leading question; interviewer authority; and repeated questioning. As the person's age increases, suggestibility decreases. Witnesses, and particularly younger children, are easily influenced by an authority figure that is perceived to be high in status. According to McAuliff, at nine years old, Jane was in "the middle suggestibility group"—not "as malleable as or suggestible as a preschooler, but certainly more easily influenced by misleading information than an adult."
Cross-contamination can occur when an interviewer is questioning multiple witnesses at the same time. One witness may incorporate details from the answers of the other witness into their own reports, an issue that can be particularly problematic when a child is being interviewed with an adult.
Protocols have been developed that are designed to minimize the influence of the interviewer on a child and maximize the accuracy of information obtained from the child. McAuliff believed that the CIC interviewer did "a very good job" following the protocol for interviewing children.
Asked about issues prior to the CIC interview that may have influenced Jane's reporting, McAuliff identified "the confrontation that happened between Rosa and [defendant] and the questioning of" Jane by her mother. Then Rosa and her friend were talking about the incident on the way to the hospital. At the hospital, Jane was questioned by a physician's assistant, a social worker, and then a child and family services worker. She was then interviewed by Officer Schubert, and then again at CIC. While McAuliff believed the CIC interviewer had done a good job, "the damage has already been done by these earlier interviews by people that aren't trained and are asking leading questions." Asked what he meant by "damage," McAuliff conceded he "could have chosen [his] words better" and said instead that the fact that the forensic interviewer did a good job did not "void the concerns [he had] based on the other factors [he] discussed."
McAuliff acknowledged that in a situation involving a child victim of sexual abuse, the victim may be reluctant to discuss the abuse because it is embarrassing and the subject is taboo. The child might also want to protect the abuser, who may be a family member or a close friend. Because there are a number of reasons the victim might not want to disclose what happened, repeated questioning can be helpful to draw out the information. McAuliff was aware that victims of child sexual abuse might disclose the abuse in inconsistent ways or in a piecemeal fashion, delay disclosure, or be reluctant to discuss details of the abuse.
Defendant's Character Witnesses
Defendant presented testimony from a niece, a daughter, and his ex-wife, all of whom testified that defendant had never behaved inappropriately around them or their children.
Defendant's theory at trial was that no touching had ever occurred.
DISCUSSION
The Trial Court Did Not Err by Failing to Instruct on Simple Lewd Act as a Lesser Included Offense of Lewd Act by Force
Background
During a break in the defense's presentation of its case, the court raised the issue of lesser included offenses. The court noted "[t]here are a number of possible lessers—well, two, simple assault and battery as well as attempt . . . ." It then observed: "I don't see that the facts show either an attempt, a battery or a simple assault. Either you believe the facts or not. But I wanted to just open the door to you, Mr. Dengel [defense counsel]. I know you hadn't asked for them, but I wanted to let you know I don't anticipate that they would be given, but if you wanted to argue about it and, you know, maybe I'm not seeing something, I just wanted to open it up to you." Defense counsel responded, "I would tend to agree with the Court's assessment. I don't think the lessers are going to be an issue."
Analysis
Defendant was convicted in count 1 of lewd act by force. (§ 288, subd. (b).) Simple lewd act on a child under 14 (§ 288, subd. (a)) is a lesser included offense of lewd act by force, consisting of the same elements as the subdivision (b) offense without the element of force. (People v. Martinez (1995) 11 Cal.4th 434, 440; People v. Ward (1986) 188 Cal.App.3d 459, 472.) Defendant contends that the trial court erred in failing to instruct on the lesser included offense because "there was reasonable doubt of force . . . ." We review the issue de novo (People v. Licas (2007) 41 Cal.4th 362, 366; People v. Cole (2004) 33 Cal.4th 1158, 1218), and conclude defendant's argument lacks merit.
We briefly touch on the reviewability of defendant's argument. As a general rule, a claim that the trial court failed to instruct on a lesser included offense is reviewable even where defendant failed to request the instruction. (§ 1259; People v. Graham (1969) 71 Cal.2d 303, 319; People v. Smith (1992) 9 Cal.App.4th 196, 207, fn. 20.) The above-quoted exchange between the court and defense counsel, however, raises the question whether defense counsel invited the purported instructional error such that the claim is not reviewable, as the People assert. (See, e.g., People v. Bradford (1997) 14 Cal.4th 1005, 1057; People v. Eilers (1991) 231 Cal.App.3d 288, 295-296.) We need not answer this question since defendant's argument fails on the merits.
The law governing the trial court's duty to instruct on lesser included offenses is well established: " ' "It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] . . . . That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]' [Citation.]." (People v. Wickersham (1982) 32 Cal.3d 307, 323-324, overruled on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200.) Put another way, the court must instruct on a lesser included offense where there is substantial evidence the defendant is guilty of the lesser crime but not the greater. (People v. Breverman (1998) 19 Cal.4th 142, 162; accord, People v. Campbell (2015) 233 Cal.App.4th 148, 157-158 [" ' "California law has long provided that even absent a request, and over any party's objection, a trial court must instruct a criminal jury on any lesser offense 'necessarily included' in the charged offense, if there is substantial evidence that only the lesser crime was committed." ' "].)
As to what constitutes substantial evidence in this context, the Supreme Court has described it as " ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed. [Citations.]" (People v. Breverman, supra, 19 Cal.4th at p. 162.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.]" (Ibid.; see also People v. Wickersham, supra, 32 Cal.3d at p. 324 [instructions on lesser included offenses need only be given "if the accused proffers evidence sufficient to 'deserve consideration by the jury, i.e., "evidence from which a jury composed of reasonable men could have concluded" ' that the particular facts underlying the instruction did exist."].)
Reviewing the evidence most favorably to a claim that the court failed to properly instruct the jury (People v. King (1978) 22 Cal.3d 12, 15-16), we turn first to whether there was evidence from which a reasonable juror could conclude that defendant did not commit a lewd act by force. (People v. Breverman, supra, 19 Cal.4th at p. 162.) We conclude there was not.
Jane described two different instances in which defendant used force to accomplish his sexual assault. She told Officer Schubert that defendant knelt in front of her on the smaller bed, kissed her with his tongue in her mouth, pulled her pajama bottoms down to her thighs, and rubbed in a circular motion on the top of her "private part" for approximately 30 seconds. Jane was telling him, " 'No, no, get away from me,' " but he had his chest against her chest, pinning her to the bed, and he was too strong for her to push away. In her CIC interview, Jane described how when she was lying on the baby's bed, defendant knelt in front of her. She had her legs closed so he pulled her legs apart, used his elbow to prevent her from closing them, and rubbed her private parts until Rosa walked in to the room. These accounts were given in close proximity to the assault—the account to Officer Schubert the morning after the assault and the CIC interview four days later—when Jane's recollection was fresh. Given this evidence, we cannot agree there existed reasonable doubt whether defendant committed a forcible lewd act. (See People v. Sedeno (1974) 10 Cal.3d 703, 719 ["instructions must be given sua sponte if there is any possibility that the jury might have a reasonable doubt whether all of the elements of the greater offense have been proven"], overruled on other grounds in People v. Brevermen, supra, 19 Cal.4th at p. 149.)
Jane's trial testimony—eight months after the assault—does not change our conclusion. She did not describe any use of force by defendant, having recounted how defendant had "hump[ed]" her and moved his privates towards her privates. This was not, however, substantial evidence that a reasonable jury could find persuasive that defendant did not use force when he sexually assaulted her. Jane was not asked about force used by defendant, and she did not testify that defendant did not pin her down with his chest or did not pry her legs apart with his elbow. In other words, her trial testimony was not inconsistent with her versions in which she described the force used by defendant; the jury could believe this version but also her accounts detailing his use of force.
A similar analysis applies to Rosa's testimony. Rosa testified that when she walked into the bedroom, she saw Jane leaning back on a pillow on the baby's bed, with her legs bent, her feet in the air, her pajama bottoms pulled down to her thighs, and defendant crouched on the floor in front of her, touching her vagina. Even if the jury accepted her testimony, that would not create a reasonable doubt on the force element because her testimony did not preclude the use of such force. She had not witnessed the entire assault, and she did not testify that defendant had not used force when he touched Jane.
This point is illustrated by People v. Ngo (2014) 225 Cal.App.4th 126 (Ngo), a case defendant erroneously labels as "similar." In Ngo, defendant was found guilty on four counts, including one for sexual penetration of a child aged 10 years or younger, arising out of his sexual assault of a seven year old. (Id. at pp. 130-131.) On appeal, he asserted multiple instructional errors, including that the trial court erred in failing to instruct on attempted sexual penetration as a lesser included offense of the penetration charge. (Id. at p. 155.) The Court of Appeal agreed the trial court had a duty to instruct on the lesser included offense. It rejected the Attorney General's argument that the evidence did not support attempted penetration, summarizing the supporting evidence as follows: "In her initial statements to police, B.T. was consistent in stating that defendant touched her during the 2010 incident, but she was equivocal as to whether defendant actually penetrated her. In Mother's statements to police and in her trial testimony, she stated that she interrupted defendant's touching of B.T. when she walked into the living room. Mother testified that she saw defendant's hand in B.T.'s pants, but she did not see whether defendant penetrated B.T. Mother told police she did not believe defendant had penetrated B.T. Defendant admitted touching B.T., as corroborated by the scratch on her stomach, but he consistently denied that he penetrated her." (Id. at p. 157.) Given that there was a legitimate question as to the critical element of the charge (whether penetration had actually occurred), the court concluded there was substantial evidence of attempted sexual penetration such that the trial court had a sua sponte duty to instruct the jury accordingly. (Ibid.) That is not the case here, where there was no evidence that defendant did not use force when he touched Jane. Jane never contradicted herself on defendant's use of force, and Rosa did not witness the entire assault and was never asked whether she saw defendant use force to overcome Jane's will.
In support of his argument, defendant exhaustively details the most minute inconsistencies in the four versions of the assault (those being Rosa's trial testimony, Officer Schubert's account of the hospital interview, Jane's CIC interview, and Jane's trial testimony). He posits that because of these inconsistencies, "there was significant basis for doubt that each of these four versions corresponded to the actual events" and that "the major variations between the four main versions left all four in doubt . . . ." We disagree with this assertion. Inconsistencies between multiple versions of an event by no means indicate that the event did not happen per any of the versions, or combination of the versions, as defendant suggests. The question before us is whether there is evidence that, if believed by the jury, would support a finding that defendant did not use force when he sexually abused Jane. (People v. Breverman, supra, 19 Cal.4th at p. 162.) The inconsistencies defendant outlines, the vast majority of which relate to immaterial details, do not persuade us that a reasonable juror could have found an absence of force.
The Trial Court Did Not Err by Failing to Instruct on Attempted Lewd Act as a Lesser Included Offense of Lewd Act with Force
Defendant's second argument also claims instructional error, this time failure to instruct on attempted lewd act as a lesser included offense of forcible lewd act. His argument is premised on Rosa's preliminary hearing testimony in which she twice stated that she did not see him touch Jane. This argument fares no better than his first instructional error claim.
Rosa's Preliminary Hearing Testimony Was Before the Jury
As a preliminary matter, defendant raises what he labels a "Record-Based Problem" pertaining to this argument. That is, he notes there is "no doubt" Rosa twice testified at the preliminary hearing that she did not see defendant touch Jane, but as he reads the record, Rosa's testimony to that effect was not before the jury. A plain reading of the record confirms that the substance of Rosa's preliminary hearing testimony was in fact before the jury.
In the event we were to conclude Rosa's preliminary hearing testimony was not before the jury, defendant alternatively contends that his counsel provided ineffective assistance for failing to introduce the testimony during Rosa's cross-examination (third argument) and for discussing the inconsistencies in Rosa's testimony during closing argument "as if they were in evidence—when they weren't" (fourth argument). Because we conclude the testimony was before the jury, these arguments are moot.
As noted, Rosa testified at trial that after she came out of the bathroom, she saw defendant crouched in front of Jane, touching her vagina with his hand. On cross-examination, defense counsel asked her, "Do you remember testifying at the preliminary hearing that you never actually saw [defendant] touch your daughter in any way?" Rosa answered, "Prior to that, no. But at that moment, I did." That answer was followed by this exchange:
"MR. DENGEL [counsel for defendant]: And if I may approach the witness, . . . it's page 15 and that is—I'm sorry. Page 24. I'm sorry.
"MR. ADODOADJI [the prosecutor]: And may we approach?
"THE COURT: Yes, you may.
"(An unreported sidebar conference held.)
"MR. DENGEL: This is going to be 11 through 14. [¶] The interpreter is going to read you a few lines . . . page 24, lines 11 through 14.
"MR. ADODOADJI: Your Honor, if we could have the interpreter move the mic away since it should be—it's not in evidence.
"THE COURT: It's not in evidence, correct.
"(Interpreter reading to witness.)
"INTERPRETER FOR WITNESS: Finished reading, Your Honor.
"MR. DENGEL: Does that refresh your recollection as to whether at preliminary hearing you testified that you never saw [defendant] touch your daughter in any way?
"ROSA: No, I don't know why they wrote that. What I did see—what I did see was that he was touching the girl and that he immediately got up.
"MR. DENGEL: So you're saying that the transcript is incorrect?
"ROSA: Exactly.
"MR. DENGEL: You never said that? [¶] . . . [¶]
"ROSA: No.
"MR. DENGEL: And if we could go to the following lines. [¶] . . . [¶] And this is going to be again page 24 and lines 13 through 14. [¶] . . . [¶]
"INTERPRETER FOR WITNESS: I've read lines 13 and 14.
"MR. DENGEL: Okay. [¶] Ma'am, are you denying that you answered—in response to the question about [defendant] touching your daughter, are you denying that you answered, 'No, I only saw him get up quickly and I saw the girl in the position she was'?
"ROSA: I—yes, I did see him touch her girl [sic], but then I saw him get up quickly. What I said is whether—I did say that. What I had not seen clearly is whether the girl had panties on or not.
"MR. DENGEL: Okay. But that wasn't the question that was asked you right there."
Defense counsel later moved to withdraw the preliminary hearing transcript as a formal exhibit, which motion the court granted.
Pursuant to Evidence Code section 1235, if a witness's trial testimony is inconsistent with a previous statement by the witness, and the witness is given an opportunity to explain or deny the prior statement and still testifies inconsistently with the prior statement or denies having made it, evidence of the prior inconsistent statement may be presented. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 414.) When a prior inconsistent statement was made in preliminary hearing testimony, evidence of the inconsistency may be presented by reading the relevant preliminary hearing passages into the record. (See, e.g., People v. Ervin (2000) 22 Cal.4th 48, 93; People v. Ford (1981) 30 Cal.3d 209, 214.) While defense counsel here never actually read the questions and answers into the record, the exchange between him and Rosa clearly conveyed to the jury that, in contrast to her trial testimony, she testified at the preliminary hearing she did not see defendant touch Jane. Rosa's inconsistent preliminary hearing testimony was further driven home to the jury during closing argument, where both the prosecutor and defense counsel presented arguments that repeated Rosa's testimony at the preliminary hearing that she did not see defendant touch Jane. In light of this, we conclude that Rosa's inconsistent prior statements were before the jury, and we thus turn to the merits of defendant's second instructional error claim.
Analysis
Attempted lewd act is a lesser included offense of forcible lewd act because a perpetrator who completes forcible lewd touching with the requisite specific intent also necessarily completes an attempt to commit the crime. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1381 ["a defendant may be found guilty of an attempt to commit an offense necessarily included in that with which he or she has been charged and is on trial"].) Defendant contends the trial court erred by failing to instruct on attempted lewd act as a lesser included offense of forcible lewd act, a claim that rests on Rosa's preliminary hearing testimony. As he would have it, that testimony "would have provided a foundation for jurors to have reasonable doubt that [defendant] touched Jane's vaginal area at all . . . ." As noted, while Rosa testified at trial that she saw defendant touch Jane, she testified at the preliminary hearing that she did not actually see defendant touch her. This, however, was not evidence from which the jury could conclude that defendant did not commit a forcible lewd act. Defendant confuses Rosa's testimony that she did not see defendant touch Jane's vaginal area with testimony that Rosa saw the entire incident and defendant did not touch Jane's vaginal area—which testimony did not exist. This critical distinction undermines defendant's argument. In Jane's descriptions of the assault, the force occurred, and the touching was initiated, before Rosa entered the bedroom. Thus, even if the jury believed Rosa's preliminary hearing testimony, that testimony was not "evidence that would absolve the defendant from guilt of the charged offense but would support a finding of guilt of attempt to commit the charged offense . . . ." (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1454.)
The Trial Court Did Not Err in Sentencing Defendant to a Full Consecutive Term on Count 2
Background
In his sentencing memorandum, the prosecutor urged the court to sentence defendant to a total term of 16 years under section 667.6, subdivision (c), comprised of the 10-year upper term on count 1 (lewd act by force), and a full, consecutive, six-year term on count 2 (lewd act). The memorandum described defendant's offenses as follows: "The defendant in this case committed multiple acts of molestation against the victim. The defendant kissed the victim in March and April. Both acts involved use of his tongue. On August 8th he kissed the victim three times. On the first two occasions the victim went to the bathroom to spit out the taste of beer. All these kisses constitute separate acts at separate times. After the third kiss the victim remained in her location, but the defendant then forced her legs open and rubbed her vagina for thirty seconds. These two acts constituted separate crimes. (See People v. Perez (1979) 23 Cal.3d 545 [Penal Code 654 does not preclude punishment for different sexual acts committed on one occasion.] The defendant's acts of kissing the victim and then forcibly rubbing her vagina were two separate acts for which he should be punished."
In defendant's sentencing memorandum, he asked the court to exercise its discretion to sentence him "to a mitigated term of five years state prison on the Penal Code section 288(b)(1), with mitigated terms of one year each for the violations of Penal Code section 288(a), as well as a mitigated term of 8 months for the violation of Penal Code section 136.1(b), all of which to be run concurrently to the five year term, for an aggregate term of five years state prison." He did not expressly address whether two offenses occurred on the same occasion within the meaning of section 667.6, subdivision (c).
At the sentencing hearing, the prosecutor incorporated by reference the argument in his brief that the final kiss and forcible lewd act were committed against the same victim on the same occasion. Defense counsel conceded that section 667.6, subdivision (c) "could potentially apply if it's found it's the same victim, same occasion, and that the full-term consecutive sentence would apply only to the [section] 288(b)(1)."
After expressing its opinion on the mitigating and aggravating factors, the court imposed the midterm of eight years on count 1. As to count 2, it agreed with the prosecutor and imposed a full, consecutive six-year term on that count. On counts 3 through 6 (lewd act), it imposed a concurrent midterm of six years on each count, and on count 7 a concurrent midterm of two years, for a total term of 14 years.
Analysis
Section 667.6, subdivision (c) authorizes a trial court, in its discretion, to impose "a full, separate, and consecutive term . . . for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion." Forcible lewd act under section 288, subdivision (b) is among the offenses listed in section 667.6, subdivision (e). (§ 667.6, subd. (e)(5).) The trial court thus had the discretion to impose a full, consecutive sentence for one of defendant's lewd acts, provided it occurred on the "same occasion" as the forcible lewd act. Defendant contends that no two offenses occurred on the same occasion, rendering the sentence unauthorized. We conclude substantial evidence supports a finding that defendant's third kiss of Jane and his touching of her private parts occurred on the same occasion.
The People argue defendant forfeited this argument by failing to object below, citing People v. Neal (1993) 19 Cal.App.4th 1114, 1124, in which the court held "that any issue concerning the failure to state reasons for imposing consecutive sentences has been waived." That is not the issue raised by defendant. Rather, he argues that the court imposed an unauthorized sentence, and as defendant correctly notes, such an issue is reviewable absent an objection below. (People v. Maharaj (2012) 204 Cal.App.4th 641, 648 ["a claim of unauthorized sentence . . . is reviewable even in the absence of an objection in the trial court"]; People v. Goodliffe (2009) 177 Cal.App.4th 723, 732.)
Section 667.6, subdivision (c) does not define "same occasion." We are guided by subdivision (d), however, which mandates that a trial court impose a "full, separate, and consecutive term . . . for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions." As to what constitutes separate occasions, the subdivision goes on to say: "[T]he 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." Conversely, then, it stands to reason that where defendant did not, between the commission of one sex crime and another, have a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior, the two sex crimes occurred on the same occasion. (See People v. Solis (2012) 206 Cal.App.4th 1210, 1220 ["Although this language does not make [reasonable opportunity to reflect between the crimes] a litmus test for determining the issue, the courts have nevertheless done so."].) The record here supports the trial court's finding that there was no intervening opportunity for defendant to reflect on his behavior between his third kiss of Jane followed by his forcible touching of her private parts.
Unlike subdivision (c), this mandatory sentencing scheme applies only when a defendant stands convicted of more than one offense specified in subdivision (e). (People v. Jones (1988) 46 Cal.3d 585, 594, fn. 5, 595-596; People v. Goodliffe, supra, 177 Cal.App.4th at p. 727, fn. 10.) Defendant here was convicted only of one subdivision (e) offense.
In his sentencing memorandum, the prosecutor described the third kiss having led directly to the forcible touching, with no break between the two crimes. This was consistent with Jane's trial testimony and Officer Schubert's. Jane testified that after going into the bathroom following the second kiss, she returned to the bedroom and laid down on the small bed, where defendant kissed her again. That led directly into the assault on the bed. Her account to Officer Schubert was similar: after defendant's second kiss and Jane's second trip to the bathroom, she laid down on the baby's bed; defendant moved over, knelt in front of her, kissed her again, pinned her against the bed with his chest, pulled down her pajama bottoms, and rubbed her vaginal area. Because there was no break, temporally or physically, between the third and final kiss and the rubbing of Jane's private area, the court's implied finding that these two offenses involved "the same victim on the same occasion" was supported by substantial evidence.
Defendant's disagreement with the same-occasion finding is premised on his belief that the prosecution requested, and the trial court imposed, the full consecutive term based on Jane's description during the CIC interview of the assault. In that interview, Jane related that defendant kissed her three times on the big bed. After each kiss, she got up and went into the bathroom. After she returned from the third trip to the bathroom, she laid down on the small bed and defendant then came over, knelt in front of her, forced her legs open with his elbow, and rubbed her vagina. As defendant would have it, this version "was the only account in which Jane said [defendant] did what the prosecutor argued in his sentencing memorandum . . . ." And that account, defendant contends, was an inadequate basis for subdivision (c) full consecutive sentence, because he had a reasonable opportunity to reflect on his actions between the third kiss and when he resumed his sexually assaultive behavior. The flaw in defendant's argument is that he selects one version of the assault—Jane's CIC interview—as the basis for the trial court's sentencing decision because that version most closely corresponds to the version of events described in the prosecutor's sentencing memorandum. But neither the prosecution nor the court nor the jury had to select one source of evidence to the exclusion of all others. (See, e.g., People v. Wader (1993) 5 Cal.4th 610, 641.) The question is not whether there is one complete version of the assault that supports the sentence, but whether there is any substantial evidence that supports the full, consecutive term. And we conclude, as detailed above, there was.
The Witness Dissuasion Conviction Was Supported by Substantial Evidence
Background
On March 5, 2015, defense counsel filed a section 995 motion to dismiss the witness dissuasion charge on the ground there was insufficient evidence presented at the preliminary hearing that Rosa was going to call the police when defendant took the phone away from her. The trial court denied the motion, finding "there are sufficient facts here to establish that the defendant was attempting to dissuade or prevent [Rosa] from calling the police. And that due to the nature of his relationship and his sway over her, it wasn't pronounced or hostile, such as grabbing the phone from her hand and throwing it, but the coercion of telling her to wait, telling her to hold on, telling her to hold off and then taking the telephone from her. I think, in the hopes that he could change things. And, obviously, not have the police called."
After the prosecution closed its case-in-chief, defense counsel moved under section 1118 for acquittal on that same charge, arguing there was insufficient evidence of defendant's intent to deter Rosa from reporting a crime to the police. The prosecutor pointed to Rosa's testimony and Jane's CIC interview as evidence that Rosa "was attempting to call the police but she was stopped from doing so by the defendant's pleading, hugging her, handling the phone for about 45 minutes before he gave it back to her." The court denied the motion because "there's ample evidence to convict as to all charges should they believe certain testimony or not other testimony. [¶] As well as regarding Count 7, not only did the mother testify to the defendant taking the phone away from her, but the CIC tape was quite clear as to Mother intending to call the police and the defendant preventing her from doing [so]."
Analysis
Count 7 charged defendant with dissuading a witness from reporting a crime in violation of section 136.1, subdivision (b), which makes it a crime "to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime" from "[m]aking any report of that victimization to any peace officer or state or local law enforcement officer," among others. The offense requires that defendant intend to prevent the person from reporting the crime. (People v. Ford (1983) 145 Cal.App.3d 985, 989-990; People v. Dollar (1991) 228 Cal.App.3d 1335, 1342.) A mere attempt to dissuade a witness is sufficient to constitute a violation of section 136.1, subdivision (b). (In re Smith (1970) 3 Cal.3d 192, 200.) Defendant contends his conviction on this count was unsupported by substantial evidence because "[t]here is no evidence [he] knew [Rosa] was intending to call or thinking of calling the police. There is no evidence anyone told him that, nor evidence he thought about it." The record contains substantial evidence to the contrary.
Jane's CIC interview and Rosa's trial testimony established that Rosa wanted to call the police in the immediate aftermath of the sexual assault. Jane told the CIC interviewer that her mother "was going to call the police, but [defendant] grabbed the phone, told her to talk to him." She also told the interviewer that her mother stood up "to grab the phone, but she couldn't—you know, she did get it, but . . . [defendant] took it away and threw it on the other side."
Rosa testified that she wanted to call the police and she picked up her phone to do so. She warned defendant that "it was really going to hurt me where he was going to have to wind up, but I was going to have to do what I had to do." Rosa further testified that she picked up her cell phone to call the police, but defendant hugged her and took her phone away. Given that Rosa had just walked in on defendant sexually assaulting her young daughter, it can easily be inferred that she was telling defendant she was going to call the police to report him, he understood what she intended to do, and he took away her phone to prevent her from making the call. (See People v. Young (2005) 34 Cal.4th 1149, 1212 [defendant's intent to dissuade witness "readily inferred"]; People v. Nelson (2015) 240 Cal.App.4th 488, 498 ["intent may be inferred from the circumstances"]; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344-1345 [evidence supported reasonable inferences from which a rational juror could have found defendant attempted to prevent witness from testifying].)
In a case involving a conviction for a violation of section 136.1, subdivision (c)(1) (dissuading a witness from testifying in a legal proceeding), a court recognized that "[t]here is, of course, no talismanic requirement that a defendant must say 'Don't testify' or words tantamount thereto, in order to commit the charged offenses. As long as his words or actions support the inference that he . . . attempted by threat of force to induce a person to withhold testimony [citation], a defendant is properly" convicted of a violation of section 136.1, subdivision (c)(1). (People v. Thomas (1978) 83 Cal.App.3d 511, 514.) The same rationale applies here. Based on reasonable inferences from the evidence presented at trial, a rational juror could have concluded that defendant knew Rosa intended to call the police to report what she had witnessed and he took her phone away to prevent her from doing so.
The Trial Court Erred in Ordering that Defendant Stay Away from All Minors and Surrender Any Firearms
Background
At sentencing, the trial court imposed a series of sentencing conditions and stay-away orders. As relevant here, defendant was ordered to not have "contact with minors under the age of 18 pursuant to PC 1202.05" and "stay away from the victim as well as her mother for the next ten years." He was also "prohibited from carrying a firearm for his entire life." The "no firearm" and "no contact [with] minors" orders are documented on the clerk's minutes for June 26, 2015. The stay-away orders for Jane and Rosa were memorialized in a "Criminal Protective Order—Domestic Violence" (Judicial Council form CR-160). The words "Domestic Violence" were crossed out, and a handwritten note identified "PC 1203.1(a)" as the statutory authority for the orders. That form also ordered defendant to "surrender to local law enforcement or sell to a licensed gun dealer any firearm owned or subject to his or her immediate possession or control within 24 hours after service of this order and must file a receipt with the court showing compliance with this order within 48 hours of receiving this order."
Analysis
Defendant challenges all four of the above-noted orders. First, he contends there was no authority for the court's order that he have no contact with all minors. He concedes that section 1202.05, the authority cited by the court, requires the court to "prohibit all visitation between the defendant and the child victim," but he argues it does not permit the court to prohibit visitation between defendant and all minors. Section 1202.05 provides in pertinent part that when a defendant is sentenced to prison for violating, among other provisions, section 288 and the victim is a child under the age of 18 years, the court shall "prohibit all visitation between the defendant and the child victim." Given this, and as the People rightly agree, the order barring visitation with all minors was overbroad. It must be modified to prohibit visitation only between defendant and Jane, until her eighteenth birthday.
Second, defendant challenges the stay-away order as to both Rosa and Jane. At sentencing, the prosecutor requested such an order as to Jane, citing section 1203.1, as authority for the order. The court ordered defendant to stay away from Jane and Rosa for 10 years. The court's written "Criminal Protective Order" also cited section 1203.1, subdivision (a) as the authority for the order. As defendant notes, section 1203.1 is a probation statute that has no applicability here. He thus reasons that since neither that statute, nor any other statute, authorizes the stay-away orders, the orders must be stricken.
As the People point out, the prosecutor's citation to section 1203.1 was likely a "slip-of-the-tongue" in which he merely transposed two numbers. While section 1203.1 is an inapplicable probation statute, section 1201.3 authorizes the court, upon defendant's conviction for a sexual offense involving a minor victim, "to issue orders that would prohibit the defendant . . . for a period up to 10 years, from harassing, intimidating, or threatening the victim or the victim's family members . . . ." (§ 1201.3, subd. (a).) This provision authorizes the stay-away order as to both Jane and Rosa. (See People v. Robertson (2012) 208 Cal.App.4th 965, 996 [" 'It is not the content or format of the Judicial Council form that determines the propriety of the challenged protective order, but the authorizing statute.' "].) As the reference to section 1203.1 in the court's written order was in essence a scrivener's error, the criminal protective order must be amended to reflect the proper statutory authorization (section 1201.3, subd. (a)) for the orders. Defendant objects that section 1203.1's mandatory notice requirements were not followed, but his counsel made no objection below to the stay-away orders regardless of their statutory basis, and he thus forfeited such objection.
Finally, defendant challenges the firearm sale or surrender order. We agree this order was unauthorized. The People cite two different statutory bases for the order, but neither is applicable. First, they contend that the stay-away order as to Rosa was authorized under section 136.2 (as an alternative to section 1201.3), and Code of Civil Procedure section 527.9 makes the sale or surrender of firearms a mandatory condition for protective orders authorized under section 136.2. The order was not authorized by section 136.2, however. That statute states that "Upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, a court with jurisdiction over a criminal matter may," among other things, order that defendant have no communication with the witness or victim. (§ 136.2, subd. (a)(1)(D).) While on its face that language may appear to apply to Rosa in light of defendant's conviction for witness dissuasion, it has been held that restraining orders authorized under section 136.2 "are limited to the pendency of the criminal action in which they are issued" because the only purpose of section 136.2, subdivision (a) "is to protect victims and witnesses in connection with the criminal proceeding in which the restraining order is issued in order to allow participation without fear of reprisal." (People v. Stone (2004) 123 Cal.App.4th 153, 159; accord, People v. Ponce (2009) 173 Cal.App.4th 378, 383; People v. Robertson, supra, 208 Cal.App.4th at p. 996 ["section 136.2, subdivision (a) authorizes issuance of a protective order during the duration of criminal proceedings"].)
The People also suggest the firearm sale and surrender order was authorized under Family Code section 6389, subdivision (a). Not so. Under that statute, "A person subject to a protective order, as defined in Section 6218, shall not own, possess, purchase, or receive a firearm or ammunition while that protective order is in effect." Family Code section 6218, in turn, defines "Protective Order" as an order that includes a restraining order described "in Section 6320 enjoining specific acts of abuse," "in Section 6321 excluding a person from a dwelling," or "in Section 6322 enjoining other specified behavior." None of those statutes apply here.
This is, of course, an academic exercise since the order has no real world application. As a felon, defendant is prohibited from owning or possessing any firearm. (§ 29800, subd. (a)(1).) Further, the duration of the order is 10 years, during which time defendant will be incarcerated in state prison, where he lacks access to firearms. Nevertheless, the order was unauthorized and must be stricken.
The Trial Court Erred in Imposing a $2,100 Restitution Fine
Background
At sentencing, the trial court initially stated that defendant's restitution fine would be $300. When asked for clarification, the following exchange occurred:
"THE COURT: I'm mistaken about that. That's $2,100. It's multiplied per count, and that's the minimum.
"MR. DENGEL [defense counsel]: Your Honor, I hate to interrupt, but I would just raise an inability to pay based on the Court's sentence that
"THE COURT: I will note that . . . . [¶] . . . [¶] [T]he defendant has a long time in custody. Right now he's chosen to be in PC, but I believe that there is some ability for him to earn while he is in prison. [¶] . . . . I know he doesn't have much ability to pay, but this restitution fine is the minimum. So I am finding an ability to pay."
Analysis
Defendant challenges the $2,100 restitution fine, arguing that the trial court mistakenly believed that to be the statutory minimum. Defendant's argument is well taken.
Section 1202.4 governs restitution fines. Subdivision (b)(1) states that in the case of a felony conviction, the minimum restitution fine is $300. Subdivision (b)(2) then provides a formula to aid the court, in its discretion, in calculating the fine: "In setting a felony restitution fine, the court may determine the amount of the fine as the product of the minimum fine pursuant to paragraph (1) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted." Here, the court twice expressed its understanding that the minimum restitution fine was $300 multiplied by the number of counts (here, seven). This was an error of law: the statute clearly states that the minimum fine is $300. In light of the court's misunderstanding, defendant asks that we reduce the restitution fine to the $300 statutory minimum. On the record before us, however, we cannot confidently say that the court would have ordered a $300 restitution fine had it correctly understood the statutory scheme. The matter must therefore be remanded for the court to exercise its discretion in setting the restitution fine.
Because the court made an error of law, defendant did not forfeit this argument by failing to object below. (People v. Smith (2001) 24 Cal.4th 849, 852.)
DISPOSITION
The order prohibiting visitation between defendant and all minors is modified to apply only to Jane Doe until she reaches the age of 18 years. The order prohibiting defendant from owning firearms is reversed. The order imposing a $2,100 restitution fine is reversed and the matter remanded for reconsideration of the restitution fine in a manner consistent with this opinion. In all other regards, the judgment of conviction is affirmed.
/s/_________
Richman, J.
We concur:
/s/_________
Kline, P.J.
/s/_________
Stewart, J.