Opinion
D057759 Super. Ct. No. RIF143290
08-25-2011
THE PEOPLE, Plaintiff and Respondent, v. RICHARD ANGULO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Riverside County, Mac R. Fisher, Judge. Affirmed in part, vacated in part and remanded for resentencing.
Richard Angulo challenges his sentence (but not convictions) under Penal Codesection 667.61 on ex post facto grounds. He claims the prosecutor did not prove beyond a reasonable doubt he committed the crimes after section 667.61 went into effect.
All further statutory references are to the Penal Code.
As we explain, because there is evidence in the record Angulo committed some of the lewd acts against Victim 1 before section 667.61 became effective and because the prosecution failed to establish the time of the offenses at trial, we vacate Angulo's sentence (but not convictions) on counts 2 through 6 and remand for resentencing under the law as it existed before section 667.61 went into effect.
However, with respect to Angulo's convictions on counts 13 through 17 relating to Victim 2, we conclude on this record there is no evidence he committed any lewd acts against Victim 2 before section 667.61 became effective. We thus affirm his sentence (and convictions) on counts 13 through 17.
Additionally, Angulo claims his convictions for the lesser included offenses of misdemeanor assault and battery were barred based on the applicable statute of limitations. The People concede this point. As such, Angulo's misdemeanor convictions in counts 7 through 11 and 18 through 23 are vacated.
Specifically, counts 7 through 11 were for misdemeanor assault on Victim 1; counts 18 through 22 were for misdemeanor assault on Victim 2; and count 23 was for misdemeanor battery on Victim 3. Angulo inappropriately touched Victim 3 during the same time period as Victim 1 and Victim 2. However, because Angulo's conviction in count 23 did not involve section 667.61 sentencing, we deem it unnecessary in this appeal to discuss the facts related to Victim 3.
FACTUAL AND PROCEDURAL BACKGROUND
Angulo's appeal involves only his sentencing under section 667.61. As such, only those facts that determine the earliest dates for his offenses are relevant in this appeal.
A jury convicted Angulo in counts 2 through 6 of lewd acts, within the meaning of section 288, subdivision (a), on Victim 1. The jury also convicted Angulo in counts 13 through 17 of committing lewd acts, also within the meaning of section 288, subdivision (a), against Victim 2. The jury also found Angulo committed lewd acts against more than one victim within the meaning of section 667.61, subdivision (i). Angulo was also convicted of misdemeanor assaults and/or batteries (§ 240) as lesser included offenses of section 288 with respect to Victim 1, Victim 2 and Victim 3, as discussed ante in footnote 2.
Applying section 667.61 for the 10 convictions under section 288, subdivision (a), the court imposed 10 consecutive 15 years-to-life sentences, totaling 150 years to life. The trial court ran Angulo's six-month sentences for misdemeanor assaults and batteries concurrent to his indeterminate sentence.
A. Victim 1
Angulo knew Victim 1 (born in June 1982) from church, where Angulo became close to Victim 1's mother. Angulo moved into Victim 1's house sometime in 1994 or 1995. Soon after Angulo moved in, he left a pornographic magazine on his bed. Victim 1 found the magazine, and while flipping through it, Victim 1's penis became erect. Angulo came into the room and proceeded to "teach" Victim 1 how to masturbate, during which Angulo rubbed Victim 1's penis. Victim 1 said this event began a series of mutual masturbation molestations that totaled in excess of 500 separate acts before he turned 14 years old, and said often such acts would occur more than once a day. In addition, Victim 1 testified these molests sometimes involved other children, including Victim 2 and Victim 3.
Victim 1 testified Angulo possibly moved into Victim 1's house in April 1994, he was "not sure" of the "exact time when [Angulo] moved in," but believed it was sometime after Victim 1's family moved into the house. Victim 1's sister testified the family moved into that house in 1995.
B. Victim 2
Victim 2 (born in October 1983) testified he met Angulo when he was 10 years old at a biannual Christian camp where Angulo served as a camp counselor. When Victim 2 returned to the camp at age 11, Angulo confiscated a Playboy magazine from a camper. Victim 2 was curious about the magazine and retrieved it from Angulo's bag. Angulo came into the barracks from the showers wrapped in a towel to find Victim 2 looking at the magazine. There is no evidence Angulo touched Victim 2 during that interaction.
After Angulo moved into Victim 1's home, Victim 2 watched a pornographic film with Victim 1 and Angulo. Victim 2 testified he saw the hands of Victim 1 and Angulo in each other's laps. However, there is no evidence in the record Angulo touched Victim 2 at this time.
Beginning sometime after Victim 2 turned 12 years old in October 1995, he masturbated with Victim 1 and Angulo allegedly over 50 times. Victim 2 testified these masturbation sessions took place every weekend until Victim 2 moved to Georgia at age 14. Victim 2 and Victim 1 alleged other misconduct relating to Victim 2, as did other witnesses.
C. Jury Instructions and Verdict
At trial, the court instructed the jury each conviction must be based on a unanimously agreed upon event. That is, the court instructed the jury it must agree on a specific incident to constitute a material element of a conviction. The jury found Angulo guilty of molesting Victim 1 as set forth in counts 2 through 6 of the information (§ 288, subd. (a)) and of molesting Victim 2 as provided in counts 13 through 17 of the information (ibid.). Each of these counts alleged the lewd acts occurred between 1994 and 1995.
Additionally, the jury found between 1994 and 1996 Angulo assaulted Victim 1, Victim 2 and Victim 3 within the meaning of section 240. The statute of limitations for misdemeanor assault and misdemeanor battery is one year.
DISCUSSION
I
A. Governing Law
Section 288, subdivision (a) reads in part: "Except as provided in subdivision (i), any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years." (Italics added.) Based on the italicized language in the statute, a touching between the defendant and victim is a material element of the actus reas required by section 288, subdivision (a).
Substantial evidence is required for a valid conviction and all material elements of a crime must be proved beyond a reasonable doubt. (See In re Winship (1970) 397 U.S. 358, 361-363 .) A complaining witness's uncorroborated testimony is substantial evidence proving a crime within the meaning of section 288, subdivision (a). (People v. Harlan (1990) 222 Cal.App.3d 439, 454; People v. Rios (1992) 9 Cal.App.4th 692, 705, fn. 3.)
"Generic testimony" (e.g. act of intercourse "every other day") supports a conviction for each separate act if the jury believes the testimony. (See People v. Mejia (2007) 155 Cal.App.4th 86, 97.) However, "[a] prosecutor who relies on generic testimony to support a child molestation charge must establish a time frame for the offenses sufficient to bring them within the scope of any statutory or constitutional limitation on punishment." (People v. Hiscox (2006) 136 Cal.App.4th 253, 260 (Hiscox).)Judicial factfinding during the sentencing phase must not replace this essential jury function. (See ibid.)That said, if reasonable minds cannot differ on a fact, the court can take notice of the fact as a matter of law. (See People v. Pedercine (1967) 256 Cal.App.2d 328, 336.)
The ex post facto clauses of our state and federal Constitutions preclude sentencing under section 667.61 for crimes committed before November 30, 1994. (See Hiscox, supra, at p. 257.) In Hiscox, evidence at trial did not limit the date range of the charged offenses beyond the initial pleading that alleged the crimes took place " 'on or about the years of 1992 through 1996.' " (Id. at pp. 257-258 ["The prosecutor did not ask the victims to identify when they were molested with any specificity. The evidence did not reliably connect the various charges to any time frame other than the period between 1992 and 1996."].) However, the jury must have made factual findings regarding the specific dates of the offenses because the court instructed the jurors they " 'must unanimously agree upon the commission of the same specific act or acts constituting the crime or all of the acts described by the alleged victim[s] within the period alleged. It is not necessary that a particular act or acts committed so agreed upon be stated in the verdict.' " (Id. at p. 258.)
B. Analysis
1. Victim 1
Victim 1's testimony does not rule out the possibility the jury believed Victim 1 was molested within the meaning of section 288, subdivision (a) before November 30, 1994, when section 667.61 became effective. That is, the jury could have found Angulo moved into Victim 1's house sometime either before or after November 30, 1994.
Further, the evidence showed Angulo began molesting Victim 1 soon after he moved into Victim 1's home. Because the jury was not asked to specify the dates of the molests in a special verdict and the pleading alleged the crimes took place on or about 1994 (without further specifying they must have taken place on or after November 30, 1994), this court cannot say the prosecution succeeded in establishing any particular offense was committed when section 667.61 was in effect. (See Hiscox, supra, 136 Cal.App.4th at p. 262.)
Because it is a constitutional violation to impose a sentence greater than the one statutorily in place when the defendant committed the crime, we vacate Victim 1's sentence (but not convictions) in counts 2 through 6 and remand for resentencing under the law as it existed before section 667.61 went into effect.
2. Victim 2
Unlike the situation with respect to Victim 1, there is no evidence Victim 2 was less than 12 years old when he was molested. Although Victim 2 alleged two improper interactions with Angulo may have occurred when he was 11—one involving a Playboy magazine at camp and the other involving a pornographic movie at Victim 1's house— there is no evidence Angulo touched Victim 2 during either incident. Angulo also does not point to any evidence in his briefing of inappropriate touching between Angulo and Victim 2 before Victim 2 turned 12. Because physical contact is a material element of a crime under section 288, subdivision (a), as a matter of law the jury could not have found either incident constituted a violation of this statute.
All other alleged misconduct Angulo inflicted on Victim 2 took place when Victim 2 was at least 12 years old. Additionally, Victim 2 said he was masturbated by Angulo multiple times, starting when he was 12 years old. Consequently, the jury necessarily found Victim 2 was at least 12 when Angulo committed the charged section 288, subdivision (a) acts against him. Because Victim 2 turned 12 in October,1995, this court finds as a matter of law Angulo molested Victim 2 after section 667.61 went into effect. As a result, we uphold the trial court's sentencing under section 667.61 on counts 13 through 17.
II
This court has previously held "even if [] misdemeanor offenses could properly be considered lesser included offenses of [] felony charges,[the] prosecution would be barred because the statute of limitations on the misdemeanors had expired by the day the defendant was indicted." (People v. Gerold(2009) 174 Cal.App.4th, 781, 792, citing People v. McCann (2006) 141 Cal.App.4th 347, 357-358. ) Following that logic, convictions for misdemeanor assaults and/or batteries necessarily included in the charged felonies should be overturned if the misdemeanors' statute of limitations has run, even if the pleaded felony's statute of limitations still provided jurisdiction to charge the felony. (See People v. Gerold, supra, 174 Cal.App.4th at p. 792.)
Here, in light of this law and the concession of the People, we conclude the following misdemeanor convictions should be vacated: counts 7 through 11 (Victim 1); counts 18 through 22 (Victim 2); and count 23 (Victim 3).
DISPOSITION
We reverse and vacate the sentence imposed on Angulo in counts 2 through 6 relating to Victim 1 and remand for resentencing only, consistent with the law before section 667.61 went into effect. We also vacate the misdemeanor convictions in counts 7 through 11 and in counts 18 through 23. In all other respects we affirm the judgment of convictions.
BENKE, Acting P. J. WE CONCUR:
AARON, J.
IRION, J.