Opinion
D058144
01-20-2012
THE PEOPLE, Plaintiff and Respondent, v. WALTER BLANCO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 253060)
APPEAL from a judgment of the Superior Court of San Diego County, Runston G. Maino, Judge. Affirmed.
Walter Blanco appeals from a judgment convicting him of two counts of a lewd act upon a child under the age of 14. (Pen. Code, § 288, subd. (a).) He argues the trial court erred in imposing consecutive sentences. We reject his contention and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Blanco was charged with three counts of lewd acts on a child under age 14 based on his molestation of his niece, J. The information specified that count 1 involved a "penis to body" touching; count 2 involved a "crotch" touching; and count 3 involved a "breasts" touching.
At trial, J described three instances when she was molested by Blanco while she was visiting her grandparents during the summer when she was about 11 years old. The first incident occurred in the evening while J and Blanco were in the living room watching television. They were lying together on the floor with a blanket over them; J was lying on her side and Blanco was behind her lying on his side. Blanco pulled down her pajama bottoms, rubbed his penis on her buttocks, and then put his penis in her buttocks.
The second incident occurred in the bedroom where J was sleeping at her grandparents' home. J testified that one morning Blanco came into the room, lay down next to her, and rubbed his fingers on her vagina over her pajamas. Additionally, a detective testified that when J was interviewed by the authorities, she said that Blanco also touched her breasts when he came into her bedroom.
The third incident occurred at a beach near her grandparents' home. J testified that her uncle was acting as if he was playing around by throwing her in the water. While doing this he touched her "chest" and rubbed his fingers on her vagina over her swimming suit.
Jury Verdict and Sentence
The jury found Blanco guilty of counts 1 and 2. The jury was deadlocked on count 3 and on an allegation of substantial sexual conduct for count 1; these charges were subsequently dismissed. The court sentenced Blanco to eight years in prison, consisting of six years for count 1 and a consecutive two-year sentence (one-third the midterm) for count 2. The court chose consecutive sentences based on a finding that the molestations for counts 1 and 2 occurred at different places and times. (See Cal. Rules of Court, rule 4.425(a)(3) [consecutive sentence may be based on finding that "crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior"].)
DISCUSSION
Blanco argues the trial court's finding to support its consecutive sentence choice— i.e., that the two counts involved touchings that occurred at different places and times— was based on a speculative assumption about the basis for the jury's verdicts on the two counts. He asserts that it is just as, or more, likely the jury's verdicts for the two counts were based on two touchings occurring during a single incident.
In making this contention, Blanco fails to recognize the principle that when selecting consecutive sentences the trial court is permitted to make its own factual findings, and thus it is not necessary for the court to know the precise factual basis underlying the jury's verdict on each count. (See People v. Black (2007) 41 Cal.4th 799,
821-823 [Apprendi jury trial right not applicable to facts supporting consecutive sentence choice]; People v. Towne (2008) 44 Cal.4th 63, 84-89 [trial court's selection of sentence within the statutory maximum may be based on a fact found true by the court by a preponderance of the evidence, even though the jury concluded the fact was not proven beyond a reasonable doubt]; see also People v. Salvato (1991) 234 Cal.App.3d 872, 879-882 [jury must be instructed to unanimously agree which act supports a count; however, absent request by defense for notice purposes, prosecution need not select which act underlies the count]; People v. Mardian (1975) 47 Cal.App.3d 16, 47, disapproved on other grounds in People v. Anderson (1987) 43 Cal.3d 1104, 1123, fn. 1 [special verdicts not required in criminal cases].) As long as the trial court's reasons for selecting consecutive sentences are supported by the evidence, a reviewing court will not disturb this sentencing choice. (See People v. Black, supra, 41 Cal.4th at p. 818, fn. 7, 822; People v. Calderon (1993) 20 Cal.App.4th 82, 87; People v. Levitt (1984) 156 Cal.App.3d 500, 515.)
Apprendi v. New Jersey (2000) 530 U.S. 466.
Alternatively, even assuming arguendo the trial court could only premise a consecutive sentence choice on a finding that necessarily underlay the jury's verdicts, the record shows the jury made the required finding. At sentencing, defense counsel argued the trial court could not base a consecutive sentence choice on a finding of molestations on separate occasions because there was no special verdict reflecting this finding and the jury could have found the conduct underlying the two counts occurred during the same incident. Rejecting this assertion, the trial court concluded that various matters in the record (including the allegations in the information, the prosecutor's closing argument, and the court's response to a jury question) showed the jury found the lewd conduct in counts 1 and 2 occurred at different places and times. We agree with the court's conclusion.
We note that in People v. Coelho (2001) 89 Cal.App.4th 861, 864-865, 885, the court concluded that when deciding whether consecutive sentences were mandatory under the Three Strikes law for offenses committed on separate occasions, the court should give the defendant the benefit of the doubt by finding a single occasion when it cannot determine whether the jury's verdicts were based on the same or separate occasions. Coelho's rationale was premised on constitutional jury trial right concerns. (Id. at pp. 874-876, 878.) Subsequent to Coelho, the United States and California Supreme Courts held constitutional jury trial rights are not implicated when a trial court decides whether to impose consecutive or concurrent sentences. (Oregon v. Ice (2009) 555 U.S. 160, 163-164; People v. Black, supra, 41 Cal.4th at p. 821.) We need not further evaluate the viability of Coelho's holding, or consider its applicability here, because in any event the record shows the jury's verdicts were based on molestations occurring on distinct occasions.
Prior to jury deliberations, defense counsel had requested that the verdict forms specify the act underlying each count; for example, at a minimum by identifying the act set forth in the information for each count. The trial court declined the request.
Preliminarily, Blanco's contention that the trial court may not properly seek to ascertain the factual basis for the jury's verdicts by considering such matters as closing arguments and court responses to jury questions is unavailing. These types of matters are routinely relied on by the courts when evaluating the conclusions reached by the jury. (See, e.g., People v. Cain (1995) 10 Cal.4th 1, 36-37; People v. Eid (2010) 187 Cal.App.4th 859, 883; People v. Coelho, supra, 89 Cal.App.4th at p. 879; People v. Lucas (1997) 55 Cal.App.4th 721, 740-741.)
The information described the touching as follows: (1) count 1: "penis to body"; (2) count 2: "touched crotch"; (3) count 3: "touched breasts." In closing arguments, the prosecutor stated that count 1 consisted of the penis touching of the buttocks in the living room; count 2 consisted of the crotch (i.e., vaginal) touching which occurred both in the bedroom and at the beach; and count 3 consisted of the breast touching which occurred both in the bedroom and at the beach. During deliberations, the jury sent the court a note asking, "Do each of the 3 counts (acts) have to occur at different times and places or could all 3 counts (acts) have occurred during a single incident?" In response, the court wrote to the jury: "Each count charges different acts at different places and at different times." (Italics added.) The jury also requested that the court confirm that count 1 involved a penis to body touching, count 2 involved a crotch touching, and count 3 involved a breast touching, and asked for a copy of the information. In response, the court provided the jury a copy of the information delineating the three alleged touchings. The verdict form for each count stated that the count was based on the act as charged in that particular count in the information.
When providing this response to the jury's question, the court rejected the prosecutor's assertion that (as stated by the prosecutor in closing argument) counts 2 and 3 could be based on two touchings during a single incident (i.e., count 2 crotch touching in the bedroom or at the beach, and count 3 breast touching in the bedroom or at the beach). The court reasoned that the case was tried in a manner that focused on three molestation incidents at three different times and locations.
The court's response to the jury's question clearly stated that each count was based on acts at different places and times. We presume the jury followed the instruction in the court's response. (See People v. Gray (2005) 37 Cal.4th 168, 231.) Based on this directive from the court, the jury necessarily found that count 1 and count 2 occurred at separate locations and times.
Further, the jury's verdict forms tied each count to the allegations in the information. The information alleged a "penis to body" touching in count 1 and a "crotch" touching in count 2. Based on J's testimony and the prosecutor's closing argument, the jury knew that the penile touching referred to Blanco's touching of J's buttocks with his penis and the crotch touching referred to Blanco's touching of her vagina with his fingers. The evidence showed that the count 1 penile/buttocks touching occurred in the living room, whereas the count 2 vaginal touching occurred in the bedroom and/or at the beach. Thus, the jury's guilty verdicts on counts 1 and 2 reflected a penile touching at one location and a vaginal touching at another location.
As noted by Blanco on appeal, the defense presented evidence that during an initial interview with the authorities, J stated that Blanco inserted his penis into her vagina in the living room and in the bedroom. During later interviews, and at trial, J stated this did not occur. This penile/vaginal evidence was not presented to establish that an additional touching occurred, but to support the defense theory that J's inconsistent statements showed she was fabricating the molestation claims. Under these circumstances, there is no reasonable possibility the jury's verdicts on counts 1 or 2 were based on this penile/vaginal evidence presented by the defense.
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Assuming arguendo the court was required to base its consecutive sentence choice on the jury's factual findings underlying each count, the record supports the court's conclusion that the jury found that count 1 and count 2 were committed at different times and places.
There was no error in the trial court's selection of consecutive sentences.
DISPOSITION
The judgment is affirmed.
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HALLER, J.
WE CONCUR:
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HUFFMAN, Acting P. J.
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AARON, J.