Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC775731
Premo, J.
A jury convicted defendant Pioquinto Anzaloua Aguirre of 17 counts of aggravated sexual assault on a child less than 14 years of age (12 counts based on rape, 5 counts based on oral copulation) and 10 counts of forcible lewd acts on a child less than 14 years of age. Fifteen counts were committed against victim 1 (6 rape; 4 oral copulation; 5 lewd acts) and 12 counts were committed against victim 2 (6 rape; 1 oral copulation; 5 lewd acts). The jury also found true a special allegation that the lewd-act counts were committed against more than one victim for purposes of the One Strike law (15 years to life). The trial court sentenced defendant to 405 years to life consisting of 27 consecutive terms of 15 years to life. On appeal, defendant contends that the trial court erred by (1) admitting over objection evidence of his prior sex offenses (Evid. Code, § 1108), (2) admitting over objection evidence about Child Sexual Abuse Accommodation Syndrome (CSAAS), (3) imposing improper multiple punishment for the 10 lewd-act convictions (Pen. Code, § 654), and (4) imposing twenty-seven $30 criminal conviction fines (Gov. Code, § 70373). We disagree and affirm the judgment.
Further unspecified statutory references are to the Evidence Code.
BACKGROUND
The victims are twin sisters who were born in 1994. They are related to defendant’s ex-wife. They spent time in defendant’s home when they were between seven and 10 years old. During this time and when defendant was alone in the home with the girls, defendant would rape, orally copulate, and commit lewd acts upon the girls. Sometimes he would commit the acts upon one victim in the presence of the other victim. Sometimes he would videotape the sessions. In 2006, one of the victims responded in a school survey that she had been sexually abused and the ensuing investigation led to defendant’s arrest.
During in limine proceedings, defendant moved to exclude evidence of his prior sex offenses, which consisted of lewd acts committed upon his daughter 22 years previously when the daughter was five years old (approximately in 1986) and 18 years previously when the daughter was nine years old (approximately in 1990). The daughter did not reveal the acts until 2004. In 2006, defendant pleaded no contest to two counts of committing lewd acts upon his daughter. The People asserted that they would prove the prior offenses via an abstract of judgment rather than call the daughter as a witness. They offered to do so as an attempt to simplify the trial because defendant had indicated that he intended to relitigate the matter.
Defendant argued that “one of the main factors that favors excluding this evidence is the utter dissimilarity.... [¶] There is in this case allegations of forcible sex, disrobing, skin on skin contact, whereas in the other case there is none of it. [¶]... [¶] The basis of [the daughter’s] complaint was that as they were taking a nap he would either lay on the bed next to her or behind her, and that he would be rubbing against her and that’s it. They’re all fully clothed, no touching of any sensitive parts, no touching of breasts, no touching of the vaginal area, the anal area.” Defendant also urged that the prior was remote: “The events allegedly occurring with [the daughter] occurred as much as a decade--more than a decade earlier than anything that happened to... the two complaining witnesses in this case. [¶] We’re talking about a very long time. The fact that there is that much of a gap tends to break the rational and logical inference to be drawn that this is sort of like an escalation of behavior.” And defendant finally claimed that the People’s offer to prove the prior via an abstract of judgment was “much more prejudicial to the defense than if he called a witness.” He reasoned that the jury would “be deprived of evidence that... they should see as to the relatively speaking minimalist behavior that was involved before... that... it will hardly look much like a sex crime at all.” He emphasized that he had pleaded no contest despite disagreeing with his attorney’s advice to do so.
The People countered that both the prior and current incidents took place in defendant’s residence against girls of similar ages. They urged that any differences in the specific conduct could be construed as “an escalation of the defendant’s conduct.”
The trial court explained as follows: “This 1108 evidence is extremely probative and more probative than it is prejudicial, and it will be allowed to come in. [¶] The age of the prior victim... is very much in line similar to the age of the girls here in this case. The acts occurred in the same areas of the home. They were lewd acts on children, rubbing of penis from what I understand against the body of the victim in the prior case in the genital area, I should say the rear area, and certainly some of that occurred in this case where he went even further if this complaint is to be believed in this case.” It then added that the People could prove the prior via the abstract of judgment and either party could call the daughter as a witness. During trial, the People and defendant called the daughter as a witness.
During in limine proceedings, defendant also sought to preclude testimony by Carl Lewis, the People’s expert witness concerning CSAAS. According to Lewis, CSAAS is essentially “background information to point out that many conditions or behaviors that still a large number of people expect about these types of cases may not necessarily hold true and should not be used to automatically rule out the possibility of sexual abuse. Certainly, not to rule in the possibility of sexual abuse either. It’s not diagnostic, but it’s information that helps to explain some other possibilities for why children may act the way they’re acting or may disclose the way they’re disclosing.” Defendant argued that “if one peruses the literature upon which the entire theory is based, that it is not genuinely a reliable source of information from which an expert can give an opinion.”
The trial court explained: “I am going to allow it. I find it relevant, and the jury can weigh the evidence and decide how helpful it is in reaching their decision.” Asked by the trial court to clarify how the People intended to use the evidence, the prosecutor offered: “Mr. Lewis will be called as a witness to testify as to the categories of CSAAS. It will be on a--he’ll explain the categories. He will not relate them in any way to this case. He has no knowledge of this case. He’s not aware of the facts of this case. He’ll only speak generally as to the factors laid out in the CSAAS, and it will be for the jury to decide whether or not any of those factors are relevant in this case or relevant to the victim[s’] demeanor or why they did or did not disclose the abuse.” During trial, Lewis testified consistently with the prosecutor’s outline. After his direct testimony, the trial court instructed the jury as follows: “I just want to let you know that you’re hearing testimony from Carl Lewis regarding Child Sexual Abuse Accommodation Syndrome, testimony about CSAAS, and it’s not evidence that the defendant committed any of the crimes charged against him. You may consider this evidence, however, only in deciding whether or not [the daughter’s or the victims’] conduct was not inconsistent with the conduct of someone who has been molested in evaluating the believability of their testimony.” And it gave the jury a substantially similar instruction at the trial’s conclusion.
At trial, defendant testified and denied ever behaving or touching the victims or his daughter inappropriately. He asserted that he had pleaded no contest in the daughter’s case because his “attorney said plead no contest and I’ll get probation.” He explained away certain admissions that he had made to investigators as resulting from the investigator “mixing [him] up.” And he introduced expert testimony on interrogation practices designed to elicit confessions.
Defendant served an unspecified jail term for the conviction.
PRIOR SEX OFFENSE
Section 1108, subdivision (a), provides: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101 [generally prohibiting character evidence such as past conduct to prove that defendant committed the offense in question], if the evidence is not inadmissible pursuant to Section 352.” Under section 352, “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
Section 1108 creates an exception in sex-offense cases to the prohibition in section 1101 against the use of character evidence to prove the defendant has a predisposition or propensity to commit the types of crime with which he is charged. (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) “By their very nature, sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations.” (Id. at p. 915.) Consequently, section 1108 permits the trier of fact to consider uncharged sexual offenses “ ‘ “as evidence of the defendant’s disposition to commit such crimes, and for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense.” ’ ” (Falsetta, supra, at p. 912.) “With the enactment of section 1108, the Legislature ‘declared that the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the [complaining] witness.’ ” (People v. Soto (1998) 64 Cal.App.4th 966, 983.) Indeed, “the reason for excluding evidence of prior sexual offenses in such cases is not because that evidence lacks probative value; rather, it is because ‘ “it has too much.” ’ ” (People v. Branch (2001) 91 Cal.App.4th 274, 283.)
“By reason of section 1108, trial courts may no longer deem ‘propensity’ evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.] [¶]... [T]he probative value of ‘other crimes’ evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each offense. [Citation.]... [T]he prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term.” (Falsetta, supra, 21 Cal.4th at pp. 916-917.)
Ultimately all of the relevant factors can be classified into two competing categories of effects. One is the tendency of the evidence to show that the defendant possessed a proclivity to engage in conduct of the same type as that involved in the charged offense, thus supporting an inference that he did in fact engage in the conduct alleged in the information. The other is prejudice, i.e., the tendency of evidence of wrongdoing to generate a sense of antagonism toward the defendant, ranging from distaste to indignation to outrage to shock, which in and of itself inclines the jury to convict the defendant regardless whether the actual charges are borne out by the evidence.
Defendant contends that the trial court abused its discretion in admitting the evidence of prior convictions. He urges that “Most critical here was ‘the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, ’ as evidenced most notably by the significant consumption of time in presenting [his daughter’s] claim.” He points out that testimony about his daughter’s claim consumed 483 pages of transcript while the testimony about the victims’ claims consumed, at most, 468 pages. He adds that the People used the claims to emphasize his propensity to commit sex offenses resulting “in an undue consumption of time, and served to confuse, mislead, and distract the jurors from what should have been their main inquiry, determining whether [he] molested [the victims in this case].” He concludes that “Having to devote so much of the case to fighting claims for which he was not even on trial prejudiced [him].” Defendant also repeats that the prior was remote given that it concerned conduct that took place 11 or 12 years before the current incidents. And he adds that there was no certainty that he committed the prior given that he pleaded no contest “while maintaining his innocence of the charges.” Defendant finally asserts that the admission of the prior was highly prejudicial to him “because it very likely contributed to the jury’s verdicts.” According to defendant, “given the time devoted to [his] alleged conduct with [his daughter], the inconsistencies in [the victims’] testimony and the questions regarding their credibility, and the stress the prosecution placed on the corroborative value of [the daughter’s] testimony, her allegations likely affected the jury’s views on the very generic evidence presented on the charges on which [he] was convicted, and caused the jury to believe [the victims].”
Defendant’s analysis is erroneous.
It is the exclusive province of the trial court to determine whether the probative value of evidence outweighs its possible prejudicial effect. (People v. Sassounian (1986) 182 Cal.App.3d 361, 402.) And the trial court’s exercise of discretion on this issue will not be disturbed on appeal absent a clear showing of abuse. (Ibid.) “When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge.” (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) “[D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered.” (Ibid.) This rule requires that the reviewing court engage in all intendments and presumptions in support of the decision and consider the evidence in a light most favorable to the prevailing party. (People v. Condley (1977) 69 Cal.App.3d 999, 1015.) It also requires that the party claiming abuse of discretion affirmatively establish the point. (Smith v. Smith (1969) 1 Cal.App.3d 952, 958.)
Defendant simply fails to carry his burden on appeal. He merely reargues his position by relying on factors that arguably support his position (time consumption; remoteness; guilt uncertainty; prejudice of propensity evidence) instead of focusing on the factors supporting the trial court’s decision and explaining why it was irrational to rely on those factors (e.g., time consumption was made necessary by defendant’s insistence upon testimonial proof of the underlying facts to the exclusion of documentary proof of the bare conviction; propensity evidence is highly probative; evidence in question is not remote; defendant suffered a conviction; evidence in question is relatively benign). (See People v. Wesson (2006) 138 Cal.App.4th 959, 970.)
We add that section 1108 contains no predicate requirement that there be an unusually high degree of similarity between the prior and current offenses as defendant suggested below. “It is enough the charged and uncharged offenses are sex offenses as defined in section 1108.” (People v. Frazier (2001) 89 Cal.App.4th 30, 41.) The Legislature deliberately chose not to add a similarity requirement to section 1108 because doing so would tend to reintroduce the strictures of prior law which the statute was designed to overcome “ ‘ “and could often prevent the admission and consideration of evidence of other sexual offenses in circumstances where it is rationally probative. Many sex offenders are not ‘specialists, ’ and commit a variety of offenses which differ in specific character.” ’ ” (People v. Soto, supra, 64 Cal.App.4th at p. 984, quoting Historical Note, 29B pt. 3, West’s Ann. Evid. Code (1998 pocket supp.) foll. § 1108, pp. 31-32.) Thus, similarity of the crimes is a consideration in the section 352 analysis required by section 1108, inasmuch as it is one of many factors for the trial court to consider when the evidence is offered pursuant to that section.
We also observe that, though the remoteness of a prior offense is an appropriate factor in weighing probative value against potential prejudice, there is no bright-line rule for determining when remoteness eliminates the probative value of a prior offense. (See, e.g., People v. Branch, supra, 91 Cal.App.4th at p. 285 [30 years]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [20 years]; People v. Soto, supra, 64 Cal.App.4th at pp. 991-992 [more than 20 years]; but see People v. Harris (1998) 60 Cal.App.4th 727, 739 [remote--23 years--inflammatory, nearly irrelevant, likely to confuse and distract the jury].) And defendant provides no support for, and we question, his implicit view that one’s criminal conduct has no relevance in revealing one’s propensities 11-12 years later, especially in the area of sexual conduct. Although the court in Harris found that the trial court had abused its discretion in admitting evidence of a 23-year-old burglary conviction that involved a sexual assault, the remoteness of the prior was not the only reason for the holding.
Moreover, defendant fails to mention that the trial court could have rationally concluded that the potential jury impact of the evidence was relatively benign when compared to the charged offenses given that the prior concerned lewd acts and this case concerned rape and the like. Stated another way, whether the prior was prejudicial--so outrageous so as to shock the emotions of the jury into using the evidence improperly--is a highly subjective determination and necessarily dependent on other factors. In the ordinary case as here, the question provokes a difference of opinion rather than exposes irrationality. Defendant had the opportunity to point out the evidence’s weakness and argue its significance in light of that weakness.
In short, the admissibility of prior-sex-offense evidence is a highly subjective, fact-specific question. Defendant’s points are arguments for inadmissibility as a matter of discretion rather than inadmissibility as a matter of law.
The record demonstrates that the trial court applied factors outlined by the Falsetta court in determining the admissibility of the evidence. The trial court’s balancing of those factors is not open to reexamination simply because a factor could be construed to favor defendant. In summary, we do not entertain rearguments as to a trial court’s discretionary determinations.
Defendant suggests that the errors in admitting the evidence violated his constitutional right to due process. But, as we have pointed out, defendant has failed to demonstrate any error.
In any event, “the Due Process Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state evidentiary rules.” (Marshall v. Lonberger (1983) 459 U.S. 422, 438, fn. 6.) Accordingly, federal courts generally have rejected the blanket assertion that admission of uncharged misconduct evidence violates the due process clause (see, e.g., Dowling v. United States (1990) 493 U.S. 342, 352; Marshall v. Lonberger, supra, at p. 438; Spencer v. Texas (1967) 385 U.S. 554, 568-569; Ciucci v. Illinois (1958) 356 U.S. 571, 572; Watkins v. Meloy (7th Cir. 1996) 95 F.3d 4, 7), unless the state rule of evidence “ ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” (Patterson v. New York (1977) 432 U.S. 197, 202.) Defendant makes no argument along these lines. And he concedes that we are bound to reject this claim under Falsetta, and he raises the claim simply to preserve it “for potential future review in the federal courts.”
CSAAS
CSAAS, which was developed as a therapeutic tool to assist mental health professionals, describes five stages or behaviors commonly found in or experienced by children who have been sexually abused, including secrecy, helplessness, entrapment and accommodation, delayed disclosure, and retraction. (People v. Bowker (1988) 203 Cal.App.3d 385, 389, fn. 3, 392, fn. 8 (Bowker).) Evidence regarding CSAAS “ ‘ “is admissible solely for the purpose of showing that the victim’s reactions as demonstrated by the evidence are not inconsistent with having been molested.” ’ ” (People v. Housley (1992) 6 Cal.App.4th 947, 955 (Housley), quoting Bowker, supra, at p. 394.) Such evidence, however, “is not admissible to prove that the complaining witness has in fact been sexually abused; it is admissible to rehabilitate such witness’s credibility when the defendant suggests that the child’s conduct after the incident--e.g., a delay in reporting--is inconsistent with his or her testimony claiming molestation.” (People v. McAlpin (1991) 53 Cal.3d 1289, 1300 (McAlpin).) The expert testimony is “admissible for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation.” (People v. Patino (1994) 26 Cal.App.4th 1737, 1744 (Patino).)
Because particular aspects of CSAAS are as consistent with false testimony as true testimony, and there is a possibility that a jury could use the expert evidence to improperly infer that the abuse occurred, the admission of such evidence is subject to certain limitations. (Housley, supra, 6 Cal.App.4th at p. 955; Bowker, supra, 203 Cal.App.3d at pp. 393-394; Patino, supra, 26 Cal.App.4th at p. 1744.) First, the CSAAS evidence must be addressed or tailored to some specific myth or misconception suggested by the evidence. (Housley, supra, at p. 955.) “Identifying a ‘myth’ or ‘misconception’ has not been interpreted as requiring the prosecution to expressly state on the record the evidence which is inconsistent with the finding of molestation. It is sufficient if the victim’s credibility is placed in issue due to... paradoxical behavior, including a delay in reporting a molestation.” (Patino, supra, at pp. 1744-1745.) CSAAS testimony “is admissible to rehabilitate [the complaining] witness’s credibility when the defendant suggests that the child’s conduct after the incident--e.g., a delay in reporting--is inconsistent with his or her testimony claiming molestation.” (McAlpin, supra, 53 Cal.3d at p. 1300.) Second, the jury must be admonished that the expert’s testimony is not intended and should not be used to determine whether the victim’s molestation claim is true, but is admissible solely to show that the victim’s reactions are not inconsistent with having been molested. (Housley, supra, at pp. 955, 958-959.)
A trial court’s decision “to admit expert testimony ‘will not be disturbed on appeal unless a manifest abuse of discretion is shown.’ ” (McAlpin, supra, 53 Cal.3d at p. 1299.)
Defendant argues that the trial court erred in admitting the CSAAS evidence because “the prosecution never identified a specific misconception that the jury might have.” There is no merit to the point. The victims’ and daughter’s credibility were directly in issue. And defendant exploited the misconceptions during argument. For example, he attacked the victims’ credibility because of the delay in reporting: “We know about 2004 in early July there was no report made.”
Defendant also complains that “nothing in the record establishes whether jurors today even have misconceptions, or whether the claim they do is itself a misconception.” This claim--that the public has become so well informed about the behavior of child abuse victims as to obviate CSAAS evidence--is speculative and contrary to the controlling authority in this state. (See People v. Brown (2004) 33 Cal.4th 892, 906-907 [reaffirming earlier reasoning for admitting CSAAS evidence].) To the extent that our Supreme Court has recognized that such evidence may be relevant, useful, and admissible in a given case, as an intermediate appellate court, we are in no position to rule otherwise. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In any event, Lewis’s testimony concerning CSAAS was helpful in explaining the different stages of reaction that some victims progress through. (See Patino, supra, 26 Cal.App.4th at p. 1744 [CSAAS evidence admissible to disabuse misconceptions about how a child reacts to molestation].) Jurors may have an understanding that victims of abuse are reluctant to report the offense, but they may not understand the reasons for the delayed reporting, or why the victims did not retaliate. Accordingly, the trial court could have reasonably found that the expert testimony would add to the jurors’ common fund of information regarding the reactions of abuse victims.
To the extent that defendant relies on several out-of-state cases that have excluded CSAAS evidence in its entirety on a variety of grounds to argue both that California should exclude this type of evidence in all cases and that, in the instant case, the evidence was improperly admitted (see, e.g., Com. v. Dunkle (Pa. 1992) 602 A.2d 830 [testimony about uniformity of behaviors of abused children not sufficiently established to have gained general acceptance in its particular field]), we reject the argument. Defendant has not produced any evidence or authority that CSAAS evidence is no longer accepted in the scientific community or that California courts are prepared to reconsider their opinions accepting such evidence. Again, the California Supreme Court has referred to the admissibility of CSAAS evidence in a variety of factual contexts to support various rulings.
Defendant urges that the admission of the evidence transgressed his due process rights because the evidence was irrelevant and prejudicial. But we have pointed out that the evidence was highly probative because it helped the jurors to understand that children who are molested sometimes act in ways that are counterintuitive. The evidence was not unduly prejudicial because it was not geared toward the facts of this case specifically, but was provided as a general explanation of how children who are abused sometimes act. And the trial court twice specifically instructed the jury on the proper use of the evidence.
Therefore, we conclude the trial court did not abuse its discretion in admitting the CSAAS evidence.
MULTIPLE PUNISHMENT
Defendant contends that the 10 consecutive terms for his forcible lewd act convictions violate Penal Code section 654’s ban on multiple punishment for a single act, and must therefore be stayed. He urges that “the only lewd acts which entailed any use of force were those that supported [his] convictions for aggravated assault.”
Preliminarily, defendant claims: “The issue is whether or not it can be clearly determined that [his] convictions on the charges of forcible lewd acts were based on acts other than those that supported his convictions for aggravated sexual assault. If it is not clear that is the case, the Court must stay the sentences on the convictions for forcible lewd acts.” This analysis is erroneous.
The Supreme Court has cursorily rejected application of Penal Code section 654 where the record does not conclusively require application: “Defendant also claims that the trial court imposed sentence for the offense of lewd conduct in violation of Penal Code section 654. He relies on People v. Siko (1988) 45 Cal.3d 820, but to no avail. In that case, we held that the defendant, who had been convicted of rape, sodomy, and lewd conduct, could not be punished for all three offenses. There, we were able to conclude that the lewd conduct consisted solely of the rape and the sodomy: ‘the charging instrument and the verdict both identify the lewd conduct as consisting of the rape and the sodomy rather than any other act.’ [Citation.] Here, we are unable to come to a similar conclusion.” (People v. Ashmus (1991) 54 Cal.3d 932, 1011, overruled on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117.)
Penal Code section 654, subdivision (a), provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
By its terms, the section applies where a person suffers from multiple punishments for a single criminal act or omission. (People v. Beamon (1973) 8 Cal.3d 625, 637-638.) This provision also applies “when there is a course of conduct which violates more than one statute but constitutes an indivisible transaction.” (People v. Saffle (1992) 4 Cal.App.4th 434, 438.)
Here, the information charged defendant with 10 counts of aggravated assault upon victim 1 and seven counts of aggravated assault upon victim 2. And the jury convicted defendant as charged. But victim 1 testified that defendant orally copulated her more than 10 times and raped her more than 10 times. And victim 2 testified that defendant orally copulated her more than 10 times and raped her more than 10 times. Thus, the evidence shows that defendant was convicted of aggravated assault for only 17 of 40 acts. In this circumstance, the jury had ample acts upon which to rest 10 verdicts for forcible lewd acts in the event it accepted defendant’s proposition that no evidence of force accompanied the ordinary lewd acts.
In short, the evidence supports that defendant committed forcible lewd acts distinct from the acts of aggravated assault. Thus, Penal Code section 654 does not preclude multiple punishment.
CRIMINAL CONVICTION FINES
The trial court imposed a $30 assessment pursuant to Government Code section 70373 on each of defendant’s 27 convictions. Government Code section 70373 was enacted in 2008 and became effective on January 1, 2009. (Gov. Code, § 70373, added by Stats. 2008, ch. 311, § 6.5, p. 2113.) This code section in pertinent part provides:
“To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463 of the Penal Code, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony....” (Gov. Code, § 70373, subd. (a)(1).)
Defendant committed the offenses underlying his convictions before the effective date of Government Code section 70373. He contends that this section operates prospectively only because the statute does not contain a declaration of retroactivity and there is no evidence the legislature intended a retroactive application. Thus, according to defendant, the assessment pursuant to this section was unauthorized because it may not be applied retroactively to his offense.
Defendant’s position that the statute was intended to operate prospectively has been rejected by numerous courts. (People v. Lopez (2010) 188 Cal.App.4th 474; People v. Phillips (2010) 186 Cal.App.4th 475; People v. Davis (2010) 185 Cal.App.4th 998; People v. Castillo (2010) 182 Cal.App.4th 1410.) All of these courts have concluded that application of Government Code section 70373 does not “offend the rule that new laws are presumed to operate prospectively, ” because the event triggering its imposition is a conviction, not the commission of the offense. (People v. Davis, supra, at p. 1000.) And as the Davis court pointed out, “It has been settled law for over 250 years that a person stands ‘convicted’ upon the return of a guilty verdict by the jury or by the entry of a plea admitting guilt.” (Id. at p. 1001.) This general rule is applicable in the present case. Because the date of defendant’s conviction is March 19, 2009, the date on which the jury returned its verdict, the criminal conviction fines could legally be applied to this case.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.