Opinion
H045675
11-25-2019
THE PEOPLE, Plaintiff and Respondent, v. JERONIMO ALFREDOBOCH BOCH, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. B1475156)
A jury convicted defendant Jeronimo Alfredoboch Boch of committing a forcible lewd act on a child under 14 (count one; Pen. Code, § 288, subd. (b)(1)) and committing a lewd on a child under 14 (count two; § 288 subd. (a)). The trial court selected the midterm for each count, eight years for count one and six years for count two, and imposed a full consecutive sentence for count one, for an aggregate term of 14 years in prison.
Subsequent statutory references are to the Penal Code unless otherwise noted.
On appeal, defendant contends: (1) the trial court prejudicially erred in admitting expert testimony on child sexual abuse accommodation syndrome (CSAAS); (2) the trial court prejudicially erred in instructing on the use of CSAAS testimony; and (3) the trial court erred by imposing a full consecutive sentence under section 667.6, subdivision (c). We reject these contentions and affirm the judgment.
Defendant has also filed a petition for writ of habeas corpus, which we will dispose of in a separate order.
I. Background
A. Prosecution's Case
In 2013, Erika D. lived in San Jose with her four children: E.D., J.D., B.D., and A.D. J.D., the victim, was born in May 2003. Erika identified defendant as a pastor of a local church that she and her children attended. In late 2013, defendant and his wife, Laura, babysat Erika's children at their apartment in Sunnyvale. Erika's children were last at defendant's and Laura's apartment on December 24, 2013.
Erika testified that, shortly after December 24, 2013, she stopped bringing her children to the apartment for babysitting because she noticed that her then 10-year-old daughter, J.D., "was different." She was "down," which was not typical. J.D. told Erika "she didn't want to go [there] anymore." Erika asked why, and J.D. told her, "[O]h, I just don't want to go." J.D. started crying. Erika told J.D., "when someone doesn't want to go somewhere, that person must have a reason." She told J.D. that "she could trust me." J.D. then revealed to Erika that defendant had touched her on her inner thigh and kissed her ear. J.D. explained to Erika what had happened. Defendant told J.D. and her siblings that they "were going to play a game to see who would go sleep with [defendant]." Defendant sat J.D. on his lap. He "put his hand inside her blouse" and moved it to her waistline, before touching her inner thigh "near her private part" and kissing her ear. J.D. told Erika that she "got up and . . . told him that she was going to the restroom." J.D. attempted to escape out of the bathroom window, but defendant "came up and asked her what she was doing," so she went back to the living room. J.D. did not want to report what happened because she was "scared" and "she believed that people were not going to believe her." J.D. and Erika reported defendant's actions to police about four to seven days later.
J.D., who was 13 years old at the time of trial, also testified at defendant's trial. After J.D. and her siblings, B.D. and A.D., were left at the apartment, Laura said "that her boss called her and he needed her, so she left," leaving the children alone with defendant. J.D. described "how it started." She and her siblings were on the couch when defendant said, "I want to choose one of you so you guys can sleep with me." Defendant told the children to "get in a line" by the side of the couch. After they lined up, defendant "chose [J.D.] to sleep with him." J.D. laid down on the couch. Defendant began "touching" and "rubbing" J.D.'s stomach. He then "started licking [her] ear and kissing [her] ear." He kissed and licked her ear four times. This made J.D. feel "uncomfortable" and "afraid." Defendant's hand then touched J.D.'s right inner thigh. As he moved his hand "towards [her] private part," J.D. "stopped him" by "grabb[ing] his hand" and "mov[ing] it." Defendant "moved [J.D.'s] hand" and "placed" his hand back on J.D.'s "inner thigh."
J.D. wanted him to stop touching her, so she got up and told defendant that she had to use the bathroom. J.D. planned to "get out through the window" in the bathroom. In the bathroom, she climbed onto the bathtub and looked out the window, which was on the second floor. As she was looking outside, she touched a bottle of shampoo and it fell, making a noise. Defendant asked J.D. what she was doing inside the bathroom. J.D. quickly flushed the toilet and returned to the living room.
When J.D. returned to the living room, she saw defendant in the kitchen. Defendant then went to the bedroom. J.D.'s sister, B.D., was watching television. A.D., her brother, was "playing on a phone." Upon returning to the living room, defendant directed J.D. to lay down on the couch with him again. J.D. refused. Defendant then threatened to "tell [her] mom," which J.D. took to mean that he would tell her mother "lies." When J.D. sat "back on the couch, [defendant] started rubbing [her] stomach again, but [she] moved his hand." Defendant "was pushing [her] back to lay down." J.D. resisted and used her arm to push herself back up. J.D.'s "little brother turned around" to look, but defendant "pushed" A.D.'s head back around. Her sister, B.D., also "turned her head around,"and defendant "did the same thing to [her] sister." Her brother told defendant to "stop it," causing defendant to stop, get up, and go to his bedroom. J.D. told her siblings that defendant "was touching [her]." After some time had passed, defendant came back and took the children to the park. J.D.'s father later picked up J.D. and her siblings. She did not tell her father what had happened because she "felt weird," and "didn't feel comfortable telling [her] dad." J.D. reported subsequently becoming afraid of the dark and having difficulty sleeping. About a week later, her mother asked her "why she was . . . acting weird," and "[J.D.] told her [she] didn't . . . want to go to [defendant's] house anymore." J.D. explained it was because defendant had "touch[ed]" her.
A.D., who was eight years old at the time of trial, also testified. He recalled, "around Christmas," that defendant and Laura babysat him and his sisters, J.D. and B.D. At some point, Laura "was in her room." He saw defendant touch J.D.'s thigh. A.D. remembered telling "him to stop." A.D. also remembered, at one point, defendant "touch[ed] [his] face," and "pushed it away . . . but [A.D.] turned it back." A.D. testified that it was "hard" to remember the events of that day.
B. Defense Case
In 2013, Laura Lainez was married to defendant. They have one daughter together. Lainez testified that she last babysat for Erika's children in October 2013. She said that she never left the apartment "at any time" on the last day she babysat for Erika's children. She also said that she never saw defendant "do anything" with any of the children.
At the time of trial, Laura was divorced from defendant and no longer shared his last name.
Defendant's nephew, who was 24 years old at the time of trial, testified that in October 2013 he was staying in defendant's apartment and sleeping on the couch. He recalled Erika's children stayed at the apartment once. He recalled that they came over a second time, but that time "they just came by to say hello." He testified that when the children were there, he was there, defendant was "in his bedroom" looking after his daughter, and defendant's wife was looking after the children. He did not see anything that corroborated J.D.'s or A.D.'s testimony.
Defendant, who was 37 years old at the time of trial, recalled that Erika's children came over to his apartment on two occasions. He testified that he had no interaction with the children, he did not speak with them, and he never sat down or laid down with them. Instead, he "read the Bible and . . . [took] care of [his] daughter." He specifically denied each of J.D.'s and A.D.'s allegations.
II. Discussion
A. CSAAS Evidence
Defendant contends that the trial court erred by admitting CSAAS evidence. He asserts its admission violated his due process rights and it was inadmissible under Evidence Code section 352.
1. Background
Prior to trial, the prosecution sought admission of CSAAS expert testimony to dispel "common myths and misconceptions" about a child's reaction to sexual abuse. The prosecutor stated that she intended to introduce evidence of three CSAAS factors: secrecy, helplessness, and delayed and unconvincing disclosure. Defendant argued that such evidence was "unreliable," lacked foundation, and was otherwise speculative. The trial court reserved ruling on the proffered CSAAS expert testimony until after the victim and other percipient witnesses had testified. The court later found the CSAAS evidence admissible as to the three identified factors.
Dr. Anthony Urquiza testified as an expert on CSAAS. Prior to his testimony, the court instructed the jury pursuant to CALCRIM No. 1193: "You are going to hear testimony from Anthony Urquiza regarding [CSAAS]. Mr. Urquiza's testimony about [CSAAS] is not evidence that the defendant committed any of the crimes charged against him. You may consider this evidence only in deciding whether or not the conduct of [J.D.] was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of her testimony."
Urquiza explained that there are five categories of CSAAS: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed or unconvincing disclosure; and (5) retraction or recantation. Urquiza emphasized that CSAAS is not a diagnostic tool to determine whether a child has been sexually abused, but rather is designed to "educate people about the dynamics of child sexual abuse, like what happens to a child who has been in a sexually abusive relationship, and how do they respond after that." Urquiza did not interview witnesses or read any reports related to the underlying case.
Urquiza elaborated on three factors: secrecy, helplessness, and delayed disclosures. As to secrecy, he explained that children are often abused by "somebody they know and have some type of ongoing relationship [with]." The perpetrator is often in a position of authority, which is used to "keep kids quiet." This may include the use of threats, intimidation, or coercion. Shame may also prevent some children from disclosing abuse. As to helplessness, Urquiza explained that children who are abused may not see any other option but to submit to the abuse if the abuser has physical, mental, or authoritative control over the child. Finally, as to delayed disclosure, Urquiza explained that there is often "a significant delay" in the disclosure of abuse. The initial disclosure may be "vague," and may also contain mistakes or inconsistencies because children have difficulty speaking about sexual acts.
In instructing the jury prior to closing arguments, the trial court again instructed the jury pursuant to CALCRIM No. 1193 in the same manner as it did prior to Urquiza's testimony.
2. Analysis
"The governing rules are well settled. First, the decision of a trial court to admit expert testimony 'will not be disturbed on appeal unless a manifest abuse of discretion is shown.' [Citations.] Second, 'the admissibility of expert opinion is a question of degree. The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission; if that were the test, little expert opinion testimony would ever be heard. . . . [E]ven if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would "assist" the jury. It will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when "the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness"' [citation]." (People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300 (McAlpin).)
"'[CSAAS] expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children's seemingly self-impeaching behavior.'" (McAlpin, supra, 53 Cal.3d at p. 1301.) There are, of course, limitations on the use of CSAAS evidence. "First, the CSAAS evidence must be addressed to a specific 'myth' or 'misconception' suggested by the evidence. [Citation.] Second, 'if requested 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. . . . The evidence 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))
In this case, the trial court could have reasonably concluded in its discretion that expert testimony about CSAAS evidence would be helpful to assist the jury by disabusing the jurors of commonly held misconceptions about child sexual abuse victims. Expert testimony is admissible if it will add to the jury's knowledge about a subject. As a result of Urquiza's experience in the field, he had considerably more knowledge than jurors had about the behavior of alleged child sexual abuse victims. Thus, Urquiza's testimony on this subject would assist the jurors in understanding such behavior. The evidence raised issues concerning three of the five categories of behaviors addressed by the CSAAS testimony: J.D.'s report of abuse did not occur until about a week after the alleged abuse; she reluctantly complied with some of defendant's requests; and her description of the abuse was at times inconsistent or unconvincing. Urquiza's testimony gave the jury important background information about how child sexual abuse victims may react to the abuse so that the jury could understand "'the emotional antecedents of abused children's seemingly self-impeaching behavior.'" (McAlpin, supra, 53 Cal.3d at p. 1301.) We reject defendant's claim that the trial court abused its discretion in admitting the expert testimony on CSAAS.
We also reject defendant's contention that the CSAAS evidence should have been excluded as more prejudicial than probative. Evidence Code section 352 provides that "[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." A trial court's ruling on the admission or exclusion of evidence under Evidence Code section 352 is reviewed for abuse of discretion. (People v. Fuiava (2012) 53 Cal.4th 622, 667-668.)
Here, the evidence was probative for its limited purpose. It was used "'to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children's seemingly self-impeaching behavior.'" (McAlpin, supra, 53 Cal.3d at p. 1301.) Such evidence was "addressed to a specific 'myth' or 'misconception' suggested by the evidence." (Housley, supra, 6 Cal.App.4th at p. 955.) Thus, Urquiza's testimony about CSAAS was highly probative of specific issues raised by the evidence at trial. To minimize prejudice, the trial court twice instructed the jury on the limited use it could make of the CSAAS evidence. Whatever prejudice the testimony might have caused was not undue and certainly did not outweigh, much less substantially outweigh, the testimony's probative value.
Apart from a number of out-of-state cases, defendant's challenge to the CSAAS evidence largely relies on People v. Bowker (1988) 203 Cal.App.3d 385 (Bowker). In Bowker, the issue was whether the CSAAS evidence had been improperly used to show that the child had been abused rather than properly utilized to dispel misconceptions. "It is one thing to say that child abuse victims often exhibit a certain characteristic or that a particular behavior is not inconsistent with a child having been molested. It is quite another to conclude that where a child meets certain criteria, we can predict with a reasonable degree of certainty that he or she has been abused. The former may be appropriate in some circumstances; the latter—given the current state of scientific knowledge—clearly is not." (Id. at p. 393.)
Since CSAAS testimony is plainly admissible in California, we need not address defendant's reliance on out-of-state authority.
The Bowker court concluded that CSAAS evidence is properly utilized when it is limited to relevant misconceptions and does not delve into whether the molestation actually occurred, and the jury is "instructed simply and directly that the expert's testimony is not intended and should not be used to determine whether the victim's molestation claim is true." (Bowker, supra, 203 Cal.App.3d at p. 394.) The use of the CSAAS evidence in Bowker did not comply with these limitations. Portions of the expert's testimony in Bowker suggested that CSAAS evidence could be used to determine whether a molestation occurred. (Id. at p. 395.) In addition, the limiting instruction stated only that the expert "'will not be testifying as to whether the children in this case were molested or not.'" (Id. at p. 389.) The Bowker court concluded that the nature of the testimony exceeded proper bounds, although the error was deemed harmless. (Id. at p. 395.)
The admission of Urquiza's testimony did not exceed the limitations set forth in Bowker. Urquiza's testimony was largely limited to relevant misconceptions and did not suggest that CSAAS evidence could be used to determine whether a molestation occurred. In fact, he explicitly stated that CSAAS is not a diagnostic tool to determine whether a child has been sexually abused, but rather is designed to "educate people about the dynamics of sexual abuse, like what happens to a child who has been in a sexually abusive relationship, and how do they respond after that." And the trial court's limiting instruction told the jury "simply and directly" (Bowker, supra, 203 Cal.App.3d at p. 394) that CSAAS evidence "is not evidence that the defendant committed any of the crimes charged against him" and could be considered "only in deciding whether or not the conduct of [J.D.] was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony." We conclude that the CSAAS evidence was kept within proper bounds, and the jury's consideration of this evidence was properly limited. Hence, we find no error under Bowker in the admission of Urquiza's testimony.
Finally, defendant asserts that the CSAAS evidence violated his due process rights because, in practice, "the victim's behavior will always fit the CSAAS rubric." Defendant contends that the limiting instruction did not mitigate the danger of misuse. We disagree. As explained, the trial court twice instructed the jurors that the CSAAS testimony was not evidence that J.D. had been abused. Since "[j]urors are presumed to understand and follow the court's instructions" (People v. Holt (1997) 15 Cal.4th 619, 662), we reject defendant's claim that the jurors were likely to use the CSAAS evidence for improper purposes and that his due process rights were violated.
B. CALCRIM No. 1193
Defendant contends the trial court prejudicially erred in instructing the jury with CALCRIM No. 1193 because this instruction impermissibly permitted the jury to use CSAAS testimony as evidence that the complaining witness's testimony was true, which in turn allowed the jury to use the CSAAS testimony as evidence of defendant's guilt. This, he asserts, lowered the prosecution's burden of proof.
Defendant forfeited the claim of instructional error by failing to object to the instruction in the trial court. (People v. Catlin (2001) 26 Cal.4th 84, 149.) Nevertheless, we review the claim on its merits because appellant contends the instruction also affected his substantial rights. (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)
Defendant's claim that CALCRIM No. 1193 permitted the jury to use CSAAS testimony as evidence of his guilt is belied by the language of the instruction. CALCRIM No. 1193 told the jury that the CSAAS evidence "is not evidence that the defendant committed any of the crimes charged against him." (Italics added.) It also told the jury that the they could "consider this evidence only in deciding whether or not the conduct of [J.D.] was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of her testimony." No reasonable juror could have concluded from this language that he or she could properly use the CSAAS evidence as a basis for determining whether the charged offenses occurred. While it is true that evaluating an alleged sexual abuse victim's "believability" may ultimately assist the jury in determining whether to credit the victim's testimony that the abuse occurred, the same may be said of any evidence that is admitted solely on the issue of a witness's credibility. (See People v. Brackins (2019) 37 Cal.App.5th 56, 70-72 [expert testimony about intimate partner violence "could properly be used by the jury to evaluate" the believability of victim's abuse claims].) As CSAAS evidence may properly be used to determine whether a child-victim's conduct was inconsistent with that of a person who has been abused, it is properly used to evaluate a child-victim's credibility. The trial court did not err in giving CALCRIM No. 1193 because the instruction properly advised the jury of the limited purpose to which it could put CSAAS evidence. Read as a whole, the instructions did not lower the prosecution's burden of proof or allow the jury to use CSAAS testimony for an improper purpose.
C. Full Consecutive Term
Defendant contends that the trial court erred in imposing a full consecutive term for count one pursuant to section 667.6, subdivision (c). He argues, based on the court's explicit findings at sentencing, that the statute does not apply to his case, and thus the sentence was unauthorized.
1. Background
At sentencing, defendant's trial counsel argued that the court should not impose a full consecutive sentence for count one because there was "no separation" and the offenses occurred on the "same occasion." Thus, counsel contended that the trial court should exercise its discretion under section 667.6, subdivision (c). The prosecutor argued that a full consecutive term was appropriate because defendant took advantage of his position of authority as a babysitter and pastor. She also asserted that the evidence showed "separate acts" for purposes of imposing a consecutive term.
At the outset, the trial court acknowledged that section 667.6, subdivision (d) did not apply here because defendant had been convicted of only one qualifying offense, count one. (People v. Jones (1988) 46 Cal.3d 585, 596-597.) However, the court understood that it had authority to consider whether to impose a discretionary full consecutive sentence for count one under section 667.6, subdivision (c).
The court stated its "tentative sentence" was to sentence defendant to a full consecutive term for count one under section 667.6, subdivision (c). The court first explained its reasons for selecting the midterm of six years for count two, the section 288, subdivision (a) offense (to which section 667.6, subdivision (c) did not apply). The court stated it considered mitigating factors, and it highlighted the following aggravating factors: the victim's vulnerability, defendant's false testimony at trial, and taking advantage of a position of trust or confidence.
The court then turned to discuss its decision to impose a full consecutive term for count one. It began by discussing, in general, the possible factual bases that supported the jury's verdict. "The victim testified that the defendant had her and her siblings line up next to the couch. He chose her and instructed her to lie down on the couch with him. He then began licking and kissing her ear. He began rubbing his thumb under her belly button on her bare skin, and he used his left hand to touch her inner thigh going up towards what the victim described as her private parts. [¶] Those were three separate acts. And the [prosecution] argued that jury could [rely on] any of those three acts to find [defendant] guilty of the Count 2, the lewd or lascivious act that did not involve force. And [the prosecutor] properly instructed the jury, as I did, that they would have to unanimously agree on which of those three acts were committed, if any. But if they were unanimous on one of those three acts, that would satisfy Count 2."
For count one, the violation of section 288, subdivision (b)(1), the forcible lewd act, the court explained that there were "two alternative acts on which" the prosecution argued in closing that the jury could unanimously find. "[A]s I described earlier, [defendant] was touching [J.D.'s] inner thigh, going up towards the victim's private part, the victim stopped him. She grabbed the defendant's hand and moved it. The defendant then moved the victim's hand and placed his hand back again on her inner thigh. After that . . . the victim was able to get up, and she fled to the bathroom. As the testimony disclosed, she was going to try to escape through the bathroom window on the second floor of the building. But she had made a noise, and the defendant asked her what she was doing, so she flushed the toilet and came out." J.D. then came back to the living room, where she saw defendant go to the kitchen and then the bedroom before coming back to the living room. Only after all that did defendant tell her to "lay back down again." "The victim actually told him no. But then he told the victim that he was going to tell her mother. So she did lay down with him. She testified, he started rubbing her stomach again, side to side like the first time. And then she said he pushed her back while rubbing her stomach as she was sitting down, and he pushed her back to lay back down."
In summation, the court explained, with respect to the forcible lewd act, the jury could have found defendant "guilty based . . . on that second act," when he pushed "her down while forcing her to lay down and while touching her again, while rubbing her stomach again." Alternatively, the jury could have found defendant guilty based "on the first time," prior to when the victim went to the bathroom, when she "moved his hand for the first time and he moved her hand and placed his hand again on her inner thigh."
The court then explained that it "considered those two alternative bases for the jury's finding" on the forcible lewd act count "and decided on either basis, a full consecutive term would be appropriate." Referencing California Rules of Court, rule 4.425, the court "considered that if the jury based [its] verdict on the second act after the victim had returned from the bathroom," then "[t]he conduct obviously was committed after a break," when defendant went to the kitchen and the bedroom before returning to the living room. The court explained: "[Defendant] obviously had time to reflect. The victim obviously was scared at that point. She had already escaped to the bathroom and tried to flee out a second story window. And in that second incident, as she testified, he pushed, not only he pushed the brother's head away, but he tried to push her down. It would be appropriate to impose a consecutive sentence."
Subsequent references to rules are to the California Rules of Court.
The court also considered, if the jury had based its verdict for the forcible lewd act on the events prior to J.D. going to the bathroom, that defendant had still moved "the victim's hand away and again continu[ed] to touch her on the thigh" after the "first set of acts, the licking, the kissing of the ear." Because J.D. had "stopped his hand from doing that," it "was a separate choice to then move her hand away and again place his hand on her inner thigh." J.D. described feeling "scared," and defendant's behavior "further increased her alarm" enough that she sought to escape. The court also considered J.D.'s testimony that she "had trouble sleeping" and "was in counseling."
Thus, for either of the acts on which the jury could have based its verdict for count one, the trial court believed "it would be appropriate to impose a separate consecutive sentence." The court recognized that a discretionary full consecutive sentence was "reserved for more serious sex offenses." The court characterized count one as "one of those more serious sex offenses." "Again, if the jury found [defendant] guilty based on the lewd act of force after the escape to the bathroom, he . . . had plenty of time to reflect. And it was after the victim had already been terrified enough to try and escape out of a second story window. [¶] Second, even if the jury based it on the use of force before the victim fled to the bathroom, again, that act contributed to her fear." The court made clear that it understood it "may use the same reasons for imposing [a] consecutive sentence as imposing a fully consecutive sentence as long as [it] underst[ood] that they are separate choices." The court then explained that it selected the midterm of eight years for count one, the section 288, subdivision (b)(1) offense, based on the same mitigating and aggravating factors that applied to count two.
2. Analysis
"Section 1170.1 sets forth the general sentencing scheme for multiple convictions." (People v. Belmontes (1983) 34 Cal.3d 335, 343-344 (Belmontes).) Under subdivision (a) of section 1170.1, when any person is convicted of two or more felonies and a consecutive term of imprisonment is imposed, the aggregate term of imprisonment for all such convictions is "the sum of the principal term, the subordinate term and any additional term imposed . . . . The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes . . . . The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed . . . ." (§ 1170.1, subd. (a).)
"Section 667.6, subdivision (c) is . . . a much harsher sentencing measure than section 1170.1," and applies to certain specified sex offenses, including forcible lewd acts under section 288, subdivision (b)(1). (Belmontes, supra, 34 Cal.3d at p. 344.) Section 667.6, subdivision (c) states in pertinent part: "In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involved the same victim on the same occasion. A term may be imposed consecutively pursuant to this subdivision if a person is convicted of at least one offense specified in subdivision (e)." (§ 667.6, subd. (c).)
"[T]he decision to sentence under section 667.6, subdivision (c) is a 'sentence choice' for which reasons must be stated." (Belmontes, supra, 34 Cal.3d at p. 347.) "What is required is an identification of the criteria which justify use of the drastically harsher provisions of section 667.6, subdivision (c). [Citation.] The crucial factor, in our view, is that the record reflect recognition on the part of the trial court that it is making a separate and additional choice in sentencing under section 667.6, subdivision (c)." (Id. at p. 348.) "The ideal method of proceeding would be for the trial court first to decide generally between concurrent and consecutive terms, following the criteria listed in rule [4.425]. Once the court has decided to sentence a defendant to consecutive terms and has stated its reasons therefor, it then must decide whether the consecutive terms should be under the principal/subordinate scheme of section 1170.1 or under the full and separate term scheme of section 667.6, subdivision (c). If the latter is chosen, the reasons therefor should be stated for the record." (Ibid.)
Defendant contends that the trial court's findings precluded imposition of a full consecutive sentence under section 667.6, subdivision (c). Defendant notes, as to the first potential basis for the forcible lewd act conviction—"the act of moving [J.D.'s] hand in order to touch her thigh a second time"— that "the court stated [this] conduct occurred 'after the first set of acts . . . . It was a separate choice to then move her hand away and against place his hand on her inner thigh.'" As for the second potential basis for the forcible lewd act conviction—"the conduct that occurred after [J.D.] went to the bathroom—the court stated that it 'obviously was committed after a break . . . . He obviously had time to reflect.'" Thus, defendant asserts that although the trial court "did not explicitly use the words 'separate occasion,' it plainly found [defendant] had time to reflect between the relevant acts, which in the context of [section 667.6,] subdivision (d) is the "equivalent to a finding that the acts occurred on 'separate occasions.'" Section 667.6, subdivision (c) allows imposition of a full consecutive term if "the crimes involved the same victim on the same occasion." (Italics added.)
Section 667.6, subdivision (d) is similar to subdivision (c), except that it applies only when multiple offenses specified in subdivision (e) have occurred. In addition, unlike subdivision (c), subdivision (d) applies only "if the crimes involve separate victims or involve the same victim on separate occasions." (§ 667.6, subdivisions (d), italics added; Belmontes, supra, 34 Cal.3d at p. 343.) Under section 667.6, subdivision (d), to determine whether the crimes occurred on separate occasions, the court must "consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior." (§ 667.6, subd. (d), italics added.)
We find no error in the trial court's imposition of a full consecutive sentence under section 667.6, subdivision (c). Although the concept of "time to reflect" is used in the "separate occasions" analysis under section 667.6, subdivision (d), the trial court's use of the phrase in the context of section 667.6, subdivision (c) does not amount to a finding that the crimes occurred on separate occasions. In determining whether a sentence should be concurrent or consecutive, rule 4.425 sets forth some of the criteria the court may consider. Relevant here, a trial court may consider whether: "(1) The crimes and their objectives were predominantly independent of each other; [¶] (2) The crimes involved separate acts of violence or threats of violence; or [¶] (3) The 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." (Rule 4.425.)
Here, the trial court's findings in support of a full consecutive sentence reflect the factors described in rule 4.425. In noting that defendant's conduct was a "separate choice" that was "committed after a break," meaning he had "time to reflect," the court was plainly referencing the factors enumerated in rule 4.425. Indeed, the court stated as much when it explicitly affirmed that its decision to impose a consecutive sentence was based on the criteria set forth in rule 4.425. Thus, the court found that defendant's conduct "involved separate acts" and that they "were committed at different times . . . rather than being committed so closely in time and place as to indicate a single period of aberrant behavior." (Rule 4.425.) The trial court explicitly recognized it had no authority to sentence defendant to full consecutive terms under section 667.6, subdivision (d). The "separate occasions" analysis under section 667.6, subdivision (d) is therefore inapplicable.
Read as a whole, the trial court was clearly aware that it was exercising its sentencing discretion under section 667.6, subdivision (c). The court indicated it was aware it was "making a separate and additional choice in sentencing under section 667.6, subdivision (c)." (Belmontes, supra, 34 Cal.3d at p. 348.) It then noted the reasons it was imposing a full-term consecutive sentence under section 667.6, subdivision (c), rather than under section 1170.1. Implicit in its sentencing decision was a finding that the crimes occurred on the same occasion. Accordingly, the trial court did not err in imposing a full consecutive sentence for count one.
Because we conclude the trial court did not misapply section 667.6, subdivision (c), we do not address defendant's argument that the misapplication of that section violated defendant's due process rights.
III. Disposition
The judgment is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.