Opinion
F072954
05-18-2018
THE PEOPLE, Plaintiff and Respondent, v. MARGARET JEANETTE ALANIZ et al., Defendants and Appellants.
Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant Margaret Jeanette Alaniz. Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Gilbert Nunez. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F13908003)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Houry A. Sanderson, Judge. Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant Margaret Jeanette Alaniz. Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Gilbert Nunez. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Margaret Jeanette Alaniz and Anthony Gilbert Nunez were each convicted of the second degree murder of Oscar Seja and the torture of a victim referred to in the record as D. or Jane Doe. Both defendants now argue the trial court erred when it denied a defense request to allow D. to be referred to by her real name during the trial. They also argue they received incomplete advisements of their rights before the trial court accepted their admissions regarding prior offenses. Nunez further argues the evidence was insufficient to support his conviction of torture.
The People concede the trial court failed to advise defendants that by admitting to the prior offenses, they were giving up their rights to remain silent and confront witnesses. We agree with the People, however, that defendants were sufficiently made aware of these rights under the totality of the circumstances.
In the case of Alaniz, the court's advisement had a further deficiency: the court failed to inform her of the penal consequences of her admission. Although the People do not expressly address the point, we find this error also to be harmless.
The abstracts of judgment for both defendants contain clerical error, which we will order the trial court to correct. A further difficulty attends the judgment against Alaniz: The trial court stated her doubled second-strike sentence in an erroneous form at the sentencing hearing, in its minute order, and in the abstract of judgment. Alaniz has not requested a new sentencing hearing to correct this error, but we will grant her request to direct the trial court to issue a corrected minute order and abstract of judgment.
We reject defendants' arguments about the victim's name and the sufficiency of the evidence. With the amendments we will direct, we affirm the judgments.
FACTS AND PROCEDURAL HISTORY
The district attorney filed one information against both Alaniz and Nunez. It charged each defendant with one count of murder (Pen. Code, § 187) and one count of torture (§ 206). For sentence enhancement purposes, the information alleged both defendants had prior convictions.
Subsequent statutory references are to the Penal Code unless otherwise noted.
The evidence at trial showed defendants had been living at a house in Fresno frequented by methamphetamine users and occupied by several residents, some related. On August 14, 2013, the victim D. came to the house looking for someone named Eric, who had taken her bicycle and failed to return it. Alaniz, Nunez, and some others were home.
Eric was not there, and Alaniz was displeased with D. for asking about him. Alaniz considered this to be disrespectful. As D., Alaniz, and Nunez sat talking, Nunez held a machete in his lap and Alaniz produced a sword from beside her bed. D. left and returned with methamphetamine, hoping in this way to demonstrate her respect to Alaniz. After D., Alaniz, and Nunez smoked together, Alaniz became hostile. Alaniz began beating D.'s face with her hands. Alaniz then tied D.'s hands and feet with electrical cords. As Alaniz did these things, Nunez remained in the room holding the machete. Alaniz and Nunez next dragged D. into a closet and tied her hands and feet to a bar above her inside the closet, with her back resting on the floor. The restraints were painful and D. cried until she lost consciousness.
After leaving D. in the closet, Alaniz and Nunez reappeared several times and demanded to know why D. had come to the house and who had sent her. Once, Nunez came alone and D. begged him to loosen the restraints. He did so, leaving her tied in the closet.
Later, during the night, Alaniz and Nunez appeared together. Alaniz was angry the restraints had been loosened. She demanded to know who had done it, but D. did not tell. Alaniz proceeded to beat D.'s head and face with a 40-ounce beer bottle and cut D.'s arm and leg with the sword. Then Alaniz asked Nunez to pass her "the poison." Nunez handed Alaniz a plastic dropper bottle. Alaniz squeezed its contents, a caustic liquid, onto various parts of D.'s body. She put the liquid on the cuts she had made on D.'s arm and leg. She tried to put it on D.'s face, but D. was able to deflect some if it with her arm. The liquid went in D.'s left ear. As the liquid burned D., she saw a green vapor rising from her flesh. After Alaniz applied the liquid, the closet door was closed and Alaniz and Nunez left D. there for the rest of the night. D. permanently lost the hearing in her ear, required skin grafts on her arm and chest, and had permanent scarring.
At dawn, D. was allowed out of the closet. Alaniz told her she was being moved to the garage. Nunez walked her there, where she went to sleep on a piece of carpet. She was awakened by Oscar Seja, a stranger to her. D. asked Seja to help her escape. He refused and said Alaniz had given him permission to have sex with her. D. said no, but he forced her to submit to intercourse by saying Alaniz would inflict additional harm on her if she refused.
Afterward, Alaniz came to the garage and Seja went into the house. When D. told Alaniz what Seja had done, Alaniz denied telling Seja to do it and became angry.
Seja was taken to a room and questioned about the rape. D., Alaniz, Nunez, and several other people who lived in the house were present. Seja said D. was lying. When a cell phone Alaniz and Nunez had stolen from D. fell from Seja's pocket, however, "they knew then that he had betrayed them and robbed that from them," according to D.'s testimony.
Alaniz began beating Seja with her fists. When he tried to escape, Nunez held him. A knife fell to the floor. Alaniz took it and stabbed Seja repeatedly as Seja screamed for help. After the stabbing, D. saw Seja stop breathing. An autopsy revealed Seja had been stabbed 22 times. The cause of death was penetration of both lungs.
Seja's body remained on the floor for three days, during which time D. was not allowed to leave the house. Nunez dug a grave in the basement. Alaniz said D. could not leave until after the body was buried, so she helped Nunez carry it to the grave and bury it. Then Alaniz said D. had to help clean up the blood. Two days after the burial, Alaniz finally allowed D. to leave.
The jury found both defendants guilty of second degree murder and torture.
Counsel for defendants informed the court defendants were prepared to admit their prior offenses. Alaniz had been convicted of robbery (§ 211) in 2010. Nunez had been convicted of willful infliction of corporal injury on a spouse or cohabitant (§ 273.5) in 2007 and being a felon in possession of a firearm (former § 12021) in 2008. After advising defendants they had the right to a jury trial or a bench trial on the priors, the court accepted their admissions. The court did not mention the right to remain silent or the right to confront witnesses. In addressing Nunez, the court referred to each of the priors as a "one year prison prior." The court referred to Alaniz's robbery as a strike, but did not give any intimation the effect of a prior strike would be to double Alaniz's sentence.
Alaniz was sentenced on the murder count to a prison term of 15 years to life (§ 190, subd. (a)), doubled for the prior strike (§ 667, subd. (e)(1)), plus one year for the prison prior (§ 667.5, subd. (b)). On the torture count, the court imposed a consecutive sentence of life (§ 206.1), also doubled for the prior strike (§ 667, subd. (e)(1)), and to include a minimum parole eligibility period of 14 years (i.e., double the seven-year period provided by § 3046, subd. (a)(1)). At the sentencing hearing, the court described Alaniz's sentence as follows: "The aggregate term for incarceration for [Alaniz] is one determinate year to be followed by two consecutive indeterminate life terms with a minimum parole eligibility of 14 years and followed by two consecutive indeterminate terms of 15 years to life." The abstract of judgment and the minute order for the sentencing hearing included similar descriptions.
Nunez was sentenced to 15 years to life on the murder count, plus two years for the enhancements under section 667.5, subdivision (b). On the torture count, he received a sentence of life with a minimum parole eligibility term of seven years.
DISCUSSION
I. Request to Refer to Surviving Victim by Her Real Name
Defendants contend the trial court violated their rights under the confrontation clause of the Sixth Amendment by denying their request to elicit D.'s real name at trial. We disagree.
The defense filed a motion in limine requesting D. not be allowed to testify under a fictitious name, arguing her anonymity would violate their rights under the confrontation clause and would improperly suggest to the jury she was in danger. At the hearing on motions in limine, the trial court denied this motion.
The defense was not deprived of pretrial knowledge of the victim's identity. She was identified by her real name in the original felony complaint, the information, and a request for immunity filed on her behalf by the prosecution.
At the opening of the trial, the court gave the jury a cautionary instruction about the victim's anonymity: "In this case a person is called Jane Doe, also known as D. This name is used only to protect her privacy as required by law. The fact that a person is identified in this way is not evidence. Do not consider this fact for any other purpose."
The primary case supporting defendants' position is Smith v. Illinois (1968) 390 U.S. 129. There, the primary witness at trial was a police informant who sold drugs to the defendant. Over objection, he was allowed to testify without disclosing to the jury his real name or his address. (Id. at pp. 131-132.) The United States Supreme Court held this procedure denied the defendant his rights under the confrontation clause:
"In the present case there was not, to be sure, a complete denial of all right of cross-examination. But the petitioner was denied the right to ask the principal prosecution witness either his name or where he lived, although the witness admitted that the name he had first given was false. Yet when the credibility of a witness is in issue, the very starting point in 'exposing falsehood and bringing out the truth' through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness' name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself." (Smith v. Illinois, supra, 390 U.S. at p. 131, fn. omitted.)
In Smith v. Illinois, no countervailing interests of the witness or the state were discussed that might have needed to be considered as a possible justification for limiting the defendant's confrontation clause rights. The high court has elsewhere acknowledged, however, that such interests exist in some contexts: "'Of course, the right to confront and cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.'" (Maryland v. Craig (1990) 497 U.S. 836, 849 [finding no confrontation clause violation where state law allowed child sexual abuse victim to be examined and cross-examined in separate room while proceeding was transmitted to courtroom by one-way television feed, thus avoiding face-to-face confrontation between victim and defendant].)
In People v. Ramirez (1997) 55 Cal.App.4th 47, the Court of Appeal considered whether the confrontation clause was violated by the application of section 293.5 to protect the identity of a rape victim who testified against the defendant. Section 293.5 provides that, in prosecutions for specified sex offenses, "the court, at the request of the alleged victim, may order the identity of the alleged victim in all records and during all proceedings to be either Jane Doe or John Doe, if the court finds that such an order is reasonably necessary to protect the privacy of the person and will not unduly prejudice the prosecution or the defense." (§ 293.5, subd. (a).) Where this procedure is used in a jury trial, "the court shall instruct the jury, at the beginning and at the end of the trial, that the alleged victim is being so identified only for the purpose of protecting his or her privacy pursuant to this section." (§ 293.5, subd. (b).)
Observing the trial court made the necessary findings, the Court of Appeal held there was no constitutional violation: "Providing for a balancing test that weighs the privacy interest of the victim of a sex offense and the resulting state interest in facilitating the reporting of sex offenses against the minimal intrusion on an accused's nonabsolute right of confrontation is not, in our view, constitutionally infirm, nor did its application in the instant case violate appellant's confrontation and cross-examination rights." (People v. Ramirez, supra, 55 Cal.App.4th at p. 57.) The court distinguished Smith v. Illinois on the ground that the defense in Ramirez received the witness's true name and address in discovery and therefore had the opportunity to do a background investigation and obtain any prior offenses for purposes of impeachment and other cross-examination tactics. (Ramirez, at pp. 55, 57.) The remaining burden—not being able to bring out the victim's name for the jury—did not violate the defendant's constitutional rights.
The California Supreme Court applied the doctrine of Smith v. Illinois in Alvarado v. Superior Court (2000) 23 Cal.4th 1121. The case involved the murder of a county jail inmate. Three inmate witnesses were in danger of retaliation by prison gang members if they testified. The prosecution obtained a protective order pursuant to section 1054.7, allowing it to withhold identifying information on the witnesses permanently, so that the defense did not know their identities before trial and could not compel them to state their names at trial. The defense would be allowed to interview the unnamed witnesses 30 days before trial, but the witnesses would not be compelled to answer any questions during these interviews. (Alvarado v. Superior Court, supra, at pp. 1130-1131.)
Our Supreme Court granted the defendant's petition for a writ of mandate. It held the trial court reasonably exercised its discretion in denying pretrial access to the witnesses' identifying information, but the trial court erred in ruling the witnesses could testify without disclosing their names at trial. (Alvarado v. Superior Court, supra, 23 Cal.4th 1148-1149.) After an exhaustive examination of the relevant authorities, the Supreme Court summarized its application of the constitutional doctrine as follows:
"In the present case, the defense argues that the witnesses whose identities are at issue clearly are crucial witnesses whose veracity and credibility are likely to be central to the prosecution's case. As noted, the witnesses' grand jury testimony suggests they were in close proximity to the murder and witnessed events related to the charged offenses. Thus, under the cases discussed above, should the witnesses provide such crucial testimony at trial, the confrontation clause would prohibit the prosecution from relying upon this testimony while refusing to disclose the identities of the witnesses under circumstances in which such nondisclosure would significantly impair the defense's ability to investigate or effectively cross-examine them." (Alvarado v. Superior Court, supra, 23 Cal.4th at pp. 1146-1147.)
Among the many cases the court discussed was Ramirez. It did not disapprove of that case, but instead distinguished it, stating: "[N]ondisclosure [in Ramirez] was limited to events occurring in open court and did not preclude defense efforts to investigate the witness for the purpose of obtaining material that might be useful in cross-examination." (Alvarado v. Superior Court, supra, 23 Cal.4th at p. 1144.)
In light of these authorities, we conclude the confrontation clause did not require the trial court to allow the jury to hear the victim's name in this case. As in Ramirez, it was reasonable for the trial court to conclude the victim's privacy interest outweighed defendants' interest in communicating her name to the jury. Also as in Ramirez, the victim's identity was known to the defense far in advance of the trial, giving the defense ample opportunity to conduct a background investigation and uncover any facts that could have been used for impeachment or otherwise in cross-examination. Based on the record before us, we see no way in which the "nondisclosure would significantly impair the defense's ability to investigate or effectively cross-examine" her. (Alvarado v. Superior Court, supra, 23 Cal.4th at p. 1147.)
Defendants assert not being able to use the victim's name during the trial prejudiced them because it somehow diminished the impact on the jury of her testimony about being raped. This, they say, in turn undermined their argument that they killed Seja as a passionate reaction to his having raped D. This makes little sense under the circumstances. The jury heard defendants beat, bound, imprisoned, cut, and poured acid on the victim before she was raped. There was no likelihood the jury would be swayed by the notion defendants killed Seja due to their concern for the victim's feelings. And certainly there could be no appreciable diminution in the already insignificant impact of this argument based on not hearing the victim's name.
Defendants argue the victim's anonymity prejudiced them by suggesting to the jury she was in danger. But the court instructed the jury that the purpose of using the fictitious name was only to protect the victim's privacy. We presume juries can follow the court's instructions. (People v. Yeoman (2003) 31 Cal.4th 93, 139.)
Defendants maintain the court's action here did not conform to the requirements of section 293.5. The decision to keep the victim's name from the jury was made not "at the request of the alleged victim" (§ 293.5, subd. (a)), but at the request of the prosecution. Further, although D. was "the alleged victim of a sex offense" (ibid.) in that she testified Seja raped her, she was not alleged to be a victim of a specific enumerated sex offense charged against a defendant in the current case. Defendants contend section 293.5 should be understood to apply only to victims of currently charged offenses.
We do not think the situation in this case differs materially, for constitutional purposes, from the situation explicitly contemplated by section 293.5. The privacy interest of the victim is the same. Privacy "is described in our state Constitution as one of our 'inalienable rights.' (Cal. Const., art. I, § 1.) In the context of the victim of a sex offense, our Legislature, through the enactment of section 293.5, has likewise determined that the privacy interest of such a victim is significant." (People v. Ramirez, supra, 55 Cal.App.4th at p. 56.) Further, "many victims are reluctant to report sex offenses 'because of fear they will be publicly identified and humiliated.' (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 296 (1991-1992 Reg. Sess.) June 16, 1992, p. 1.)" (Ramirez, at p. 56.) Although defendants were not alleged to have committed the rape, the rape took place amidst the torture defendants inflicted on her, and she had the same grounds for reluctance to report the entire transaction as any other rape victim. At the same time, the interest of the defense in using the victim's name at trial was no greater than in a case like Ramirez. If Ramirez decided the confrontation clause issue correctly—and we think it did—then there was no confrontation clause violation in this case either, even if the situation is not squarely covered by section 293.5.
Further, to the extent the letter of section 293.5 might not have authorized the court's order in this case, the court could still issue it pursuant to its inherent authority. Courts have inherent authority to control the proceedings before them, so long as their actions are not barred by applicable legal authority. (McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 117.)
It is true the record submitted to us does not reveal any express findings that the order protecting D.'s identity was "reasonably necessary to protect the privacy of the person and [would] not unduly prejudice the prosecution or the defense." (§ 293.5, subd. (a).) On appeal, however, a party challenging a judgment must affirmatively show error, and "'"[a]ll intendments and presumptions are indulged to support [the judgment] on matters as to which the record is silent."'" (People v. Giordano (2007) 42 Cal.4th 644, 666.) Where findings in support of a determination were not requested or made, we may assume the trial court found the facts necessary to support it. (Aantex Pest Control Co. v. Structural Pest Control Bd. (1980) 108 Cal.App.3d 696, 701.) Further, as we have already indicated, the record would have supported such findings had they been expressly made. The victim had an important privacy interest, the defense had pretrial access to her identity, and there is nothing to indicate any prejudice to the defense.
Finally, it also is true the jury was instructed at the beginning but not the end of the trial on the significance of the use of a fictitious name for the victim, while section 293.5 calls for both. We do not think this affects the constitutionality of the procedure, however. As state law error (if such it was), it was harmless, since there is no reasonable probability defendants would have obtained a better outcome without it. (People v. Watson (1956) 46 Cal.2d 818, 836.)
II. Advisements Preceding Acceptance of Admissions of Prior Offenses
Defendants argue that when the court accepted their admissions of their prior offenses, it erred by failing to inform them they were giving up their rights to remain silent and to confront witnesses. Alaniz further argues the court erred by failing to advise her of the penal consequences of her admission. We agree the court erred, but its errors were harmless.
During a proceeding following the conclusion of the parties' presentation of evidence, the court conducted colloquies with both defendants regarding the prior offenses alleged for sentence enhancement purposes:
"THE COURT: I'll start with [Nunez] first. [F]irst of all, you have a right to a jury trial of the priors that have been alleged against you, assuming that there is any conviction in either of these counts as felonies or any convictions of either Count One or Count Two as they are. By entering an admission that means you are giving up your right to have a jury trial. You also have a right to have a court trial, meaning instead of the jury listening to the priors and [deciding] whether or not you have suffered these prior convictions, the Court—myself will listen to that evidence and make a decision if, in fact, these are correct and accurate priors in your criminal history. You also have the right to give up either one of those rights, meaning court trial, jury trial, and enter admissions which will then be set aside if there is no conviction at all and vacated if there's no conviction of either of these counts or any felony lessers if they apply. Do you understand that, sir?
"DEFENDANT NUNEZ: Yes.
"THE COURT: And have you had enough time to talk it over with [defense counsel]?
"DEFENDANT NUNEZ: Yes.
"THE COURT: And [defense counsel], are you at this time comfortable that your client is voluntarily agreeing to waive his right to a court trial and a jury trial?
"[DEFENSE COUNSEL FOR NUNEZ]: I am, Your Honor."
The court then questioned Nunez on two prior offenses, a conviction for domestic violence in 2007 and a conviction for being a felon in possession of a firearm in 2008. The court described each of these as a "one year prison prior," i.e., a prior felony for which Nunez served a prison term and which subjected him to a one-year sentence enhancement under section 667.5. Nunez admitted each of these. The prosecutor mentioned two additional prior offenses. The court took Nunez's admission of these as well, but noted its intention to strike them, as they were subject to reclassification as misdemeanors pursuant to Proposition 47.
The court then turned to Alaniz's case:
"THE COURT: [A]s to [Alaniz] I believe in her situation there's a single strike, and the same strike is alleged as a prison prior. And in that, ... you also have the right, ma'am, to have a court trial or a jury trial. You
have the right to have a jury trial with the same jury if they were to convict you on either of these counts or any other felony in relation to this case. You have the right to have the same jury decide if this ... alleged prior is true and accurate against you. Do you understand that?
"DEFENDANT ALANIZ: Yes.
"THE COURT: And at this time, [defense counsel], is your client prepared to admit or request something different.
"[DEFENSE COUNSEL FOR ALANIZ]: Admit."
The court then questioned Alaniz on a 2010 robbery conviction both as a prior strike and as a prison prior under section 667.5. Alaniz admitted the prior. The court cited the three strikes law, but did not describe the penal consequences of admitting to a prior strike, i.e., the doubling of the underlying sentence for each of the current offenses.
Before a trial court may accept a defendant's plea of guilty to an offense, the court is required to advise the defendant, and obtain the defendant's voluntary and intelligent waivers, of his or her rights to be tried by jury, to remain silent, and to confront adverse witnesses. This must be done on the record. (Boykin v. Alabama (1969) 395 U.S. 238, 242-244 (Boykin); In re Tahl (1969) 1 Cal.3d 122, 132 (Tahl).) The California Supreme Court has held the same requirements apply to a defendant's admission of a prior conviction. (In re Yurko (1974) 10 Cal.3d 857, 863 (Yurko); see People v. Mosby (2004) 33 Cal.4th 353, 360 [court assumes Boykin/Tahl requirements apply to prior conviction admissions where defendant has right to jury trial under state law, despite holding of no federal constitutional right to jury trial for prior conviction allegation in Apprendi v. New Jersey (2000) 530 U.S. 466, 490].) Yurko further held that, before the trial court may accept a defendant's admission of a prior conviction, the defendant must be advised of "the precise increase in the term or terms which might be imposed" because of the prior conviction as well as "the effect of any increased term or terms of imprisonment on the accused's eligibility for parole." (Yurko, supra, at p. 864.) Failure to give these advisements requires reversal "if prejudice appears." (Ibid.) All these principles were reaffirmed recently in People v. Cross (2015) 61 Cal.4th 164, 170-171.
The trial court committed Yurko error by failing to advise either defendant of the right to remain silent and the right to confront witnesses. The People do not argue otherwise.
In People v. Mosby, supra, 33 Cal.4th 353, our Supreme Court considered whether Yurko error committed by the trial court was harmless. In that case, as here, the defendant was not advised he had a right to remain silent and confront witnesses, but the court did inform him of and ask him to waive his right to a jury trial on the prior. Examining the totality of the circumstances as reflected in the record, the Supreme Court noted the defendant had just undergone a jury trial in which he exercised his rights, and he had pleaded guilty and received Boykin/Tahl advisements in a previous case. The Supreme Court concluded the defendant was adequately informed under these circumstances and the trial court's omissions were not reversible. (Mosby, at pp. 364-365.)
We agree with the People's contention that, with respect to the right to remain silent and the right to confront witnesses, the error was harmless. At the time of the admissions, Alaniz and Nunez had just undergone a trial in which each exercised the right to remain silent, and each was present while their counsel cross-examined the witnesses against them. Thus, as in Mosby, they were informed of their right to a trial and had experienced for themselves the exercise of the rights attendant upon a trial. Here there is no record showing defendants received Boykin/Tahl advisements in their previous cases, but we think the circumstances are sufficiently similar to those in Mosby in spite of this.
There was further Yurko error in the trial court's failure to advise Alaniz of the penal consequences of her admission. (Nunez does not make a similar argument.) Our Supreme Court described the harmless error analysis for this type of error in In re Ronald E. (1977) 19 Cal.3d 315, overruled on other grounds by People v. Mosby, supra, 33 Cal.4th at page 360. As will be seen, it is distinct from the harmless error analysis applicable to the failure to advise a defendant of his or her rights to a trial, to remain silent, and to confront witnesses.
In Ronald E., the juvenile court failed to mention the consequences of the minor's admission of the truth of a juvenile delinquency petition. The admission led to the minor's commitment to the Youth Authority. The requirements of Yurko applied, and the juvenile court's omission was error. (In re Ronald E., supra, 19 Cal.3d at p. 325.) Turning to the question of reversibility, the Supreme Court stated: "The determinative question on the issue of prejudice is as follows: Is it reasonably probable that petitioner might not have been committed to the Youth Authority had the court advised him, prior to his admission of the truth of the allegations, that he might be so committed?" (Ibid., citing People v. Watson, supra, 46 Cal.2d at p. 836.) In answering this question, the court first acknowledged it had no way of knowing whether the minor would have refrained from admitting the truth of the allegations had he been properly admonished. In spite of this, it considered two factors to be decisive in supporting the conclusion the error was harmless. First, the minor provided "no basis for a belief that had he been properly admonished he would have entered a different response to the allegations ...." (Ronald E., at p. 326.) Second, he did not "claim even now that he was not aware that his admission of the truth of the allegations ... would most likely result in his detention in a Youth Authority facility." (Ibid.)
The same considerations support a finding of harmlessness here. Alaniz points to nothing in the record indicating she would have refrained from admitting to her prior strike robbery had she been told by the trial court this would expose her to the doubling of her sentences under the three strikes law. And she does not claim even on appeal that she was unaware of this consequence.
Finally, defendants also point out that, instead of expressly asking them whether they were waiving their right to a trial, the court simply stated they had that right and then elicited their admissions. They contend this requires reversal. They cite no authority for that view, however. We think the admissions plainly implied a waiver of the right the court mentioned, and although obtaining express waivers is the proper practice, we find no reversible error on that point in this case.
III. Sufficiency of Evidence for Nunez's Torture Conviction
Nunez argues the evidence was insufficient to prove the charge of torture against him. He is mistaken.
When considering a challenge to the sufficiency of the evidence to support a judgment, we review the record in the light most favorable to the judgment and decide whether it contains substantial evidence from which a reasonable finder of fact could make the necessary finding beyond a reasonable doubt. The evidence must be reasonable, credible and of solid value. We presume every inference in support of the judgment that the finder of fact could reasonably have made. We do not reweigh the evidence or reevaluate witness credibility. We cannot reverse the judgment merely because the evidence could be reconciled with a contrary finding. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)
To establish the crime of torture as defined by section 206, the prosecution must prove two elements: "(1) a person inflicted great bodily injury upon the person of another, and (2) the person inflicting the injury did so with specific intent to cause cruel and extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose." (People v. Baker (2002) 98 Cal.App.4th 1217, 1223.)
A defendant can be proved guilty of aiding and abetting a perpetrator by a showing that the defendant aided or encouraged the perpetrator in committing the perpetrator's crime, and did so with knowledge of the criminal purpose of the perpetrator and with an intent to commit, encourage, or facilitate commission of that crime. (People v. McCoy (2001) 25 Cal.4th 1111, 1118; People v. Beeman (1984) 35 Cal.3d 547, 560.) Aiding and abetting as proved in this way is referred to as direct aiding and abetting. Aiding and abetting can alternatively be proved by a showing that the perpetrator's offense was a natural and probable consequence of the aider and abettor's intentional act encouraging or facilitating a different offense (McCoy, supra, at p. 1117), but the jury was not instructed on that theory here.
Nunez maintains the evidence was insufficient to prove he knew Alaniz's purpose was to commit torture and he had an intent to aid her in committing that offense. We disagree. The victim's testimony indicated that when Alaniz asked Nunez to pass her the "poison," Nunez responded as expected by handing Alaniz the bottle of acid. He then stood or sat by as Alaniz burned the victim's skin with the acid. Nunez did this after helping Alaniz confine the victim in the closet for the night and watching Alaniz beat the victim with a bottle and cut her with a sword as she lay bound and confined. Afterward, he left her where she lay for the remainder of the night. This was adequate evidence to support the jury's inference that Nunez acted with knowledge of Alaniz's sadistic purpose and intended to assist her in carrying out that purpose. Nunez argues the jury could reach its conclusion only through the natural-and-probable-consequences doctrine, but that is not so. The evidence was sufficient to prove he directly aided and abetted Alaniz in the commission of torture.
IV. Clerical Error in Abstracts of Judgment
In both defendants' abstracts of judgment, the total amount of presentence custody credit is shown as 847 days. Neither abstract shows how this figure was calculated, however, both documents show "0" actual custody credits and "0" conduct credits. The parties agree the total figure is correct and is based on 847 days of actual credit for each defendant. We will direct the trial court to amend the abstracts.
V. The Form in Which Alaniz's Second-Strike Sentence Was Stated
When the trial court orally pronounced sentence for Alaniz, it stated it was imposing the following sentences: on count 1, "two consecutive indeterminate terms of 15 years to life"; and on count 2, "two consecutive indeterminate life terms with a minimum parole eligibility of 14 years," plus one determinate year.
In the abstract of judgment, the sentence was shown in paragraph No. 6.c of Judicial Council form PCR-292 as 30 years to life on count 1 and in paragraph No. 5 as life with the possibility of parole on count 2, plus in paragraph No. 3, the one-year enhancement under section 667.5, subdivision (b). Another part of the form, paragraph No. 12, however, had a description similar to the court's oral pronouncement, referring to two consecutive life terms for each count. The minute order from the sentencing hearing had the same description.
Alaniz now argues the court's formulation was "awkward and confusing" and also subjected her to double jeopardy.
We agree with Alaniz the court's formulation was incorrect, as it indicates Alaniz will be serving a total of four consecutive sentences for the two counts. The proper method of doubling a sentence in a second-strike case was explained by our Supreme Court in People v. Jefferson (1999) 21 Cal.4th 86. The court expressly stated it is error to try to comply with the sentence-doubling provision by imposing two life sentences on a single count. (Id. at p. 99.) Instead, if the sentence to be doubled is an indeterminate sentence with a minimum term (e.g., 15 years to life), then the doubled sentence is twice the minimum term to life (e.g., 30 years to life). (Id. at pp. 90, 101.) If the sentence to be doubled is an indeterminate term with no stated minimum (i.e., life), then the sentencing court must determine the minimum parole eligibility period and double it. Thus, if the sentence to be doubled is life and the minimum parole eligibility period is seven years (as here), then the doubled sentence is life with a minimum parole eligibility period of 14 years. (Id. at pp. 90, 93, 96.)
Alaniz has not requested a new sentencing hearing and we will not order one. The trial court must, however, issue a new minute order and an amended abstract of judgment applying the sentence-doubling formula described in People v. Jefferson. We need not discuss Alaniz's double-jeopardy argument.
DISPOSITION
For Alaniz, the trial court is directed to issue a new sentencing minute order and an amended abstract of judgment showing Alaniz's sentence with the correct second-strike formulation as described in part V above. For both defendants, the trial court is directed to amend the abstracts of judgment to show 847 days of actual custody credit. The trial court is directed to forward the amended abstracts of judgment to the appropriate correctional authorities. As amended, the judgments are affirmed.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
SMITH, J.