Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, No. 1307613, Jed Beebe, Judge
Gilbert W. Lentz, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Yun K. Lee, Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
Javier Aguila appeals the judgment following his conviction for four counts of aggravated sexual assault of a child (counts 1-4) (Pen. Code, § 269, subds. (a)(3) & (a)(4)), 10 counts of lewd acts upon a child (counts 5-14) (§ 288, subd. (a)), and two counts of dissuading a witness from reporting a crime (counts 15-16) (§ 136.1, subd. (b)(1)). The jury found that the offenses alleged in counts 1 through 14 were committed against more than one victim for purposes of the one strike law. (§ 667.61, subds. (b), (c) & (e)(5).) The trial court sentenced Aguila to a determinate sentence of four years for the two counts of dissuading a witness from reporting a crime, and an indeterminate sentence of 210 years consisting of 15 years to life for each sex offense alleged in counts 1 through 14. Aguila contends the trial court erred in imposing a 15 years to life sentence as to counts 5 through 14 because the verdict forms for those counts did not include a request for, or express finding, that the offenses were committed against more than one victim. He also claims cruel and unusual punishment. We affirm.
All statutory references are to the Penal Code.
In 2011, after trial in this case, the Legislature amended section 667.61. As relevant to this case, the amendments renumbered certain subdivisions without substantive change. In this opinion, we will use the numbering in effect prior to the 2011 amendment.
Because the issue of Aguila's guilt is not contested in this appeal, the recitation of facts is abbreviated.
John Doe 1 and John Doe 2 were the sons of A.S. John Doe 1 was born in February 2004 and John Doe 2 was born in May 2006. The two children were under the age of 14 at the time of all the charged offenses. A.S. and Aguila were close friends. Aguila provided financial assistance for the family and bought food, clothing, and gifts for John Does 1 and 2.
Aguila managed the Ashley Vineyard and later the Estrella Vineyard. Over a period of several years, he would take John Does 1 and 2 to the vineyards on overnight weekend trips. John Doe 2 brought friends with him on many of the trips, including John Does 3, 4, and 5, who were also all under the age of 14. The aggravated sexual assaults against a child were committed against John Doe 2 as were three of the lewd acts upon a child. Three lewd act offenses were committed against John Doe 1, one against John Doe 3, two against John Doe 4, and one against John Doe 5. The offenses were all committed between January 2004 and September 2008.
Aguila exposed himself to and sodomized John Doe 2, and also forced John Doe 2 to masturbate and orally copulate him. These acts were committed when John Doe 2 was between the ages of six and ten. Aguila rubbed or touched John Doe 1's penis on several occasions starting when the child was eight years old and also rubbed his own penis against the boy's body. Aguila washed John Does 3, 4, and 5 in the shower and rubbed their penises with soap or cream. He masturbated John Doe 4 and photographed many of the boys with their penises exposed.
John Doe 2 reported Aguila's conduct to his mother in September 2008 and the mother called the police. After an investigation, Aguila was arrested. During pretext telephone calls monitored by the police shortly before his arrest, Aguila told John Doe 2 not to reveal his conduct to the police.
Each of the victims testified at trial and there was expert testimony regarding "Child Sexual Abuse Accommodation Syndrome." The expert testified that children often keep sexual abuse secret and allow an adult to sexually abuse them out of a sense of entrapment or accommodation. He also testified that many abused children continue to show affection for the person abusing them.
Aguila testified on his own behalf. He testified that he had taken the children on overnight trips and washed their genital areas in the shower. He also testified that the boys had seen his penis and that he examined the penis of John Doe 4 for medical reasons. He denied engaging in acts of sodomy or oral copulation, or any other sex act, and called other children who had been to the vineyards as witnesses who testified that they had never been molested by Aguila or seen inappropriate conduct.
DISCUSSION
Jury Verdicts and the One Strike Law
Aguila contends that his 15 years to life indeterminate sentences under the one strike law (§ 667.61) were unauthorized as to counts 5 through 14 because the multiple-victim circumstance required for such a sentence was not found to be true by the trier of fact. We disagree.
The one strike law provides for indeterminate terms of either 15 or 25 years to life when a defendant is convicted of certain listed sex offenses committed under one or more circumstances specified in the statute. (§ 667.61, subds. (a) & (b); People v. Jones (2001) 25 Cal.4th 98, 103.) The prosecution must prove one of the circumstances set forth in section 667.61, subdivision (e) of the statute to impose a sentence of 15 years to life, and two of the subdivision (e) circumstances to impose a sentence of 25 years to life. (§ 667.61, subds. (a) & (b).) One strike law sentences apply only if the circumstance or circumstances "is alleged in the accusatory pleading pursuant to this section, and is either admitted by the defendant in open court or found to be true by the trier of fact." (§ 667.61, subd. (j).)
Here, the pleading requirement of the statute was satisfied by the allegation that qualifying offenses were committed against "more than one victim." (§ 667.61, subd. (e)(5).) The requirement that the allegation must be "found to be true by the trier of fact" was satisfied by convictions for offenses against five victims.
Aguila does not dispute the sufficiency of the multiple-victim allegation or his convictions. He contends, however, that his 15 years to life sentences were unauthorized as to counts 5 through 14 because, as the result of an error by the prosecutor, the verdict forms for those counts did not include an express "true" finding of the multiple-victim circumstance. He argues that, without such a finding on the verdict forms, the circumstance was not "found to be true" by the jury. (§ 667.61, subd. (j).) Aguila's argument is unpersuasive.
The jury received verdict forms for counts 1 through 14 and returned guilty verdicts on all of those counts. The verdict forms for counts 1 through 4 also included the following request for a finding on the multiple victim circumstance:
"We find the allegation under PC §667.61(e)(5) that JAVIER AGUILA committed sex crimes against more than one victim:
__________ TRUE __________ NOT TRUE"
The jury checked the "true" box on the verdict forms for each of counts 1 through 4. The verdict forms for counts 5 through 14 did not include the request for the finding or space to indicate "true" or "not true." Those verdict forms simply ended after the language finding Aguila guilty of the offense.
We agree that the verdict forms should all have included a request for a finding on the multiple-victim circumstance but conclude that, despite the omission, the jury made the necessary factual finding of multiple victims and, therefore, the circumstance was "found to be true by the trier of fact" as to all 14 counts.
When the jury is fully instructed on the elements of an enhancement, technical defects in a verdict may be disregarded if the jury's intent to find a specified enhancement to be true is unmistakably clear, and the accused was not prejudiced. (People v. Webster (1991) 54 Cal.3d 411, 447; People v. Jones (1997) 58 Cal.App.4th 693, 710-711; see also People v. Lobato (2003) 109 Cal.App.4th 762, 765-766.) Here, the multiple victim circumstance was alleged in the accusatory pleading as to all relevant counts and the jury necessarily made a finding that Aguila committed offenses against five victims. Also, the "true" findings on verdict forms for counts 1 through 4 unmistakably showed the jury's factual finding regarding multiple victims which necessarily applied to the other counts. The inadvertent omission of a request for an express finding on some verdict forms cannot be reasonably construed as creating any doubt regarding the jury's verdict. Moreover, there was no prejudice by the omission because the accusatory pleading fully apprised Aguila of all the charges against him, and the jury was fully and properly instructed on the requirements of the one strike law.
Aguila relies on People v. Mancebo (2002) 27 Cal.4th 735, but that case addresses the effect of the pleading requirements of the one strike law, not the requirements of proof. (Id. at p. 738.) In Mancebo, two defendants were charged with multiple sex offenses and the prosecution sought a one strike law sentence of 25 years to life. To trigger application of the one strike law, the accusatory pleading alleged firearm use and kidnapping as to one victim and firearm use and tying and binding as to another victim. (§ 667.61, subds. (e)(1), (4) and (6); Mancebo, at pp. 740, 742-743.) The pleading also alleged firearm use as a separate enhancement pursuant to section 12022.5. (Mancebo, at p. 738.) Although there were two victims in the case, the prosecutor did not allege the multiple victim circumstance for purposes of imposing a one strike law sentence or otherwise mention that circumstance in the pleadings. (Id. at p. 740.)
The jury convicted Mancebo and found the firearm use, kidnapping and tying and binding circumstances to be true. (People v. Mancebo, supra, 27 Cal.4th at pp. 738-740.) At sentencing, the trial court understood that it could not impose a separate 10-year firearm enhancement pursuant to section 12022.5, subdivision (a) if firearm use was used as a basis for imposing a one strike law sentence. (Id. at p. 740.) Therefore, the trial court substituted a multiple victim circumstance that had not been alleged in place of firearm use as a one strike law circumstance permitting a 25 years to life sentence and used the firearm allegation as the basis for a separate firearm enhancement. (Ibid.)
A circumstance required for one strike law punishment cannot be "used to impose the punishment authorized under any other provision of law." (§ 667.61, subd. (f).)
Our Supreme Court held that the pleading and proof requirements of section 667.61, subdivisions (i) and (f) and the defendant's due process rights had been violated because he was not given notice in the accusatory pleading that a multiple victim circumstance would be used as a circumstance required to support a one strike law sentence. (People v. Mancebo, supra, 27 Cal.4th at p. 753.) The court stated that without an allegation of the multiple victim circumstance, the defendant was not adequately informed of the charges he would be required to defend against. (Id. at p. 745.) The instant case does not pose the notice problem present in Mancebo because the accusatory pleading alleged that a one strike law sentence would be sought against Aguila on the basis of the multiple victim circumstance.
The problem in Mancebo "was not in the lack of proof but in the lack of notice. The trial court could not wait until the time of sentencing to decide what enhancements were necessarily established by the jury's verdicts." (People v. Riva (2003) 112 Cal.App.4th 981, 1002.) "[A] defendant has a cognizable due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes." (People v. Mancebo, supra, 27 Cal.4th at p. 747.)
The treatment of the guilty verdicts in Mancebo further shows that the Supreme Court was concerned only with the pleading requirement of section 667.61, subdivision (j). The court concluded that convictions against multiple victims was not a substitute for the required allegation, but stated that the convictions standing alone "can be deemed an implied factual determination that defendant was convicted of 'an offense specified in subdivision (c) against more than one victim.' (§ 667.61, subd. (e)(5).)" (People v. Mancebo, supra, 27 Cal.4th at p. 746.) In the instant case, the required allegation was included in the accusatory pleading, and the convictions qualified as a factual determination that Aguila was convicted of offenses against more than one victim.
Aguila's reliance on cases following Mancebo is similarly misplaced. Those cases also concern uncharged offenses or unpled allegations. The cases did not address the issue of proof in situations where there was no deficiency in the accusatory pleading. (See People v. Botello (2010) 183 Cal.App.4th 1014; People v. Arias (2010) 182 Cal.App.4th 1009.)
Aguila also argues that the prosecution waived application of the multiple victim circumstance as to counts 5 through 14 by failing to have the jury verdict forms corrected before the jury was discharged. Citing Mancebo, he asserts that the prosecutor's choice not to correct the verdict forms was a "discretionary charging decision" and that the prosecutor is estopped from arguing otherwise on appeal. (People v. Mancebo, supra, 27 Cal.4th at p. 749.) We disagree. Here, the multiple victim circumstance was alleged as the one strike law circumstance. Unlike in Mancebo, reliance on that circumstance was the "discretionary charging decision" made by the prosecution. A 15 years to life sentence was properly imposed based solely on the accusatory pleading and jury verdicts. There was no legal error in the trial court that required correction.
Although we find no legal error, we must emphasize that there was a mistake by the prosecutor. The record shows that the prosecution requested a finding of "true" or "not true" as to whether the offenses were committed against more than one victim to be included in all verdict forms. When the omission came to the court and counsel's attention before jury deliberation began, the court requested that the prosecutor submit new verdict forms. The prosecutor stated that he would make the necessary changes to the verdict forms but failed to do so, and the incomplete verdict forms were submitted to the jury during its deliberation. During deliberations, the jury requested instructions on the matter but new verdict forms were not prepared. Even after the omission was rediscovered after the verdicts were returned, no effort was made to clarify the verdicts before the jury was discharged.
More careful preparation would have assured that the verdict forms were consistent and more careful advocacy might have resulted in the trial court taking action to clarify the matter before the jury was discharged. (See People v. Kimbell (2008) 168 Cal.App.4th 904, 907 [trial court can direct the jury to consider a discrepancy or ambiguity in a verdict until it is discharged].) Although there is no question the jury found the offenses were committed against multiple victims and Aguila had notice of the allegation, corrective action in the trial court could have avoided a lengthy and time-consuming appeal on the issue.
No Cruel or Unusual Punishment
Aguila contends his sentence of 210 years to life in prison violates the federal and California prohibition against cruel and unusual punishment. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) He asserts that he is raising the constitutional claim to preserve it for federal review, and makes no substantive argument in his appellate brief.
A punishment violates the Eighth Amendment if it is grossly out of proportion to the severity of the crime, and violates article I, section 17 of the California Constitution if "it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted; People v. Mantanez (2002) 98 Cal.App.4th 354, 358.) Under federal law, a sentence will be overturned only in "exceedingly rare" and "extreme" cases. (Lockyer v. Andrade (2003) 538 U.S. 63, 73.)
Under California law, courts consider the nature of the offense and the offender, the sentence compared with those for other more serious offenses under California law, and with sentences in other states for the same offense. (People v. Sullivan (2007) 151 Cal.App.4th 524, 569.) Here, because Aguila does not address these considerations, he has not satisfied his burden to establish an unconstitutional sentence. (People v. Crooks (1997) 55 Cal.App.4th 797, 808.)
In any event, a sentence that is the functional equivalent of life without possibility of parole is not unconstitutional as a matter of law. (People v. Ayon (1996) 46 Cal.App.4th 385, 399 [term of 240 years], disapproved on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.) California courts have upheld lengthy prison sentences for sex crimes. (People v. Retanan (2007) 154 Cal.App.4th 1219, 1230-1231; People v. Wallace (1993) 14 Cal.App.4th 651, 666–667; People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 531–532.) Here, given the number and seriousness of Aguila's offenses, his sentence does not violate either federal or California law.
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.