Opinion
2d Crim. B317247
01-18-2023
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ANTHONY BRIANS, Defendant and Appellant.
Mark R. Feeser, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo No. 19F-07233. Jacquelyn H. Duffy, Judge
Mark R. Feeser, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
BALTODANO, J.
Michael Anthony Brians appeals from the judgment after a jury convicted him of seven counts of committing lewd acts on a child under 14 years old (Pen. Code, § 288, subd. (a); counts 1-4 &6-8) and one count of sexually penetrating a child under 14 with a foreign object (§ 289, subd. (j); count 5). The jury also found true allegations that counts 1 through 7 involved substantial sexual contact (§ 1203.066, subd. (a)(8)), that the statute of limitations did not bar the prosecution of those counts (§ 803, subd. (f)), and that Brians committed counts 1, 2, 5, 6, 7, and 8 against multiple victims (§ 667.61, subd. (e)(4)). The trial court sentenced him to 90 years to life in state prison plus 10 years: consecutive terms of 15 years to life on counts 1, 2, 5, 6, 7, and 8; eight years on count 3; and two years on count 4.
Unlabeled statutory references are to the Penal Code.
In his opening brief, Brians contended: (1) his convictions on counts 1 through 7 should be reversed due to instructional error, and (2) the sentence imposed on count 3 did not comply with the provisions of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3). After briefing was complete, we requested supplemental briefing on: (3) whether the trial court correctly sentenced Brians on count 5. In response to our request, the Attorney General conceded Brians was erroneously sentenced on count 5, and additionally asserted: (4) the trial court erroneously sentenced Brians on counts 1, 2, 6, and 7. We vacate Brians's sentence and remand.
FACTUAL AND PROCEDURAL HISTORY
B.D.
Brians's daughter B.D. was born in August 1986. When she was a baby, Brians and his wife Dena moved the family to Santa Margarita. Shortly after the move, Brians began to molest B.D. during private outings around the family property. He rubbed her vagina with his fingers and penis. He made her touch his penis until he ejaculated.
When B.D. was six or seven years old, Brians forced her to perform oral sex on him. He entered her bedroom at night, performed oral sex on her, and forced her to touch his penis until he ejaculated. He would cover her mouth if she told him to stop.
When B.D. was between 10 and 12 years old, Brians touched and digitally penetrated her vagina while giving her driving lessons. He also forced her to touch his penis and perform oral sex on him. He would then perform oral sex on her. Brians threatened to end the driving lessons if B.D. complained about his abuse.
When B.D. was 12 years old, her grandfather, Samuel, was convicted of molesting her. B.D. initially did not know if Brians was aware that Samuel was molesting her, but on the night of Samuel's arrest Brians apologized to B.D. for his own molestation and promised never to do it again. That promise was short lived: Brians resumed his molestation two weeks later when he tried to force his penis into B.D.'s vagina. B.D. did not disclose Brians's sexual abuse when police arrested Samuel because Brians threatened to hurt her, her family, or himself if she told anyone.
When B.D. was 12 or 13 years old, she threatened to report Brians's abuse. Brians went to his bedroom and fired a gun out of a window. B.D. thought he had shot himself. Brians said that he was just shooting at a squirrel.
Brians also used other forms of force and manipulation to coerce B.D. into participating in his sexual abuse. He slapped her and pinned her down. He forbade her from visiting friends. He bought her gifts. After Brians bought B.D. one such gift he took it back. B.D. then told her mother that Brians was being "mean," but did not tell her about her father's sexual abuse.
Brians abused B.D less frequently as she grew older, but did not stop. When B.D. was in high school, for example, Brians told her that she would have to "earn" the right to go to prom after the two got into a fight. The next year, Brians performed oral sex on B.D.
J.D.
Brians's niece J.D. was born in July 1989. J.D. often spent the night at Brians's home when she was young, sharing a room with B.D.
When J.D. was between eight and 10 years old, she awoke to Brians touching her genital area. J.D. could not remember if Brians touched her over or under her underwear or how long the interaction lasted, but did remember that the incident scared her. Neither she nor Brians said anything, and they did not later discuss the incident.
J.D. was uncertain if Brians molested her on other occasions, but suspected that he did. As an adult, she avoided family gatherings if Brians was going to be present. She also tried to block out the memories of his sexual abuse.
K.D.
Brians's niece K.D. was born in September 2002. She lived in California when she was between 10 and 14 years old. When K.D. was 10 or 11, she and other family members were watching football at Brians's home. Brians watched one game in his bedroom; the rest of the family watched a different game in another room. At one point K.D. went into Brians's bedroom, and he coaxed her up onto his lap. He then moved his hand toward her crotch and touched her over the clothes. He had an erection and told her that she was being "so good." K.D. eventually left and rejoined the rest of the family.
When K.D. was 12 years old, Brians fondled her breasts. He also put his hand down her shorts.
When K.D. was 13 years old, Brians gave her a hickey. He continued to touch K.D. nearly every time she was at his house.
K.D.'s family moved to Arizona in 2016. The following year, K.D. was sexually harassed by a classmate. When she reported the classmate's behavior to her mother, she mentioned that Brians had previously touched her inappropriately. Police contacted her and K.D. reported what she remembered. She later drafted several written statements about Brians's abuse, which she used when speaking to police.
B.D. learned that K.D. had reported Brians's abuse to the police. She also learned that she had been identified as another of his victims. She subsequently agreed to speak to police.
Around the same time, J.D.'s mother asked if Brians had ever molested her. She said that her husband (J.D.'s stepfather) was going to contact the police. J.D. then agreed to give a statement.
Brians's arrest and jailhouse communications
Police arrested Brians in September 2019. Prosecutors charged him with committing four lewd acts on B.D. (counts 1-4) and sexually penetrating her with a foreign object (count 5) between 1992 and 2000, committing two lewd acts on J.D. between 1997 and 2001 (counts 6-7), and committing two lewd acts on K.D. between 2012 and 2016 (counts 8-9). They also alleged that the crimes committed against B.D. and J.D. involved substantial sexual contact, that the six-year statute of limitations set forth in section 800 did not bar the prosecution of those crimes, and that Brians committed all his crimes against multiple victims. The "multiple victims" allegations did not specify the victims' identities.
The statute of limitations for prosecutions of lewd acts on a child that involve substantial sexual contact has been eliminated for crimes committed on or after January 1, 2017. (§ 799, subd. (b).)
The day after his arrest, Brians spoke to Dena on the phone. She urged him to plead guilty so her daughter and nieces would not have to testify about Brians's abuse. Brians agreed to do so. He said that he "ha[d]n't had any issues for years" and hoped that Dena would not think of him as an "animal." She told him that that would be hard because they had "already been through this once." Brians replied, "I know and that's what makes it even harder."
Brians called Dena again a few days later. She asked how he had pleaded. Brians said that he had not yet entered a plea because he thought that if he dragged out the process some charges might be dropped. Dena told him that he needed to accept the consequences of his actions.
Brians and Dena spoke a third time in October. During this call Brians said that he wanted Dena, B.D., J.D., and K.D. to "support" him. Dena said that that would not happen. Brians replied that he did not know "what made [him] do it" and expressed frustration over Dena's lack of support.
When Brians and Dena spoke again a few days later, he said that he was frustrated that she had not been more supportive. He also indicated that he would not plead guilty unless the family was willing to support him. He said that he had an "illness" or "addiction" but thought that it was something that could be "controlled."
Brians called his sister in November. Brians said that he was ashamed of what he had done. When his sister noted how angry he had been when their father was charged with sexual molestation, he said that he "did this all [him]self" and was seeking forgiveness through religion.
Brians also wrote two letters to Dena from jail. In the first, Brians said that he was happy that B.D., J.D., and K.D. were strong enough to come forward with their allegations. He hoped that they would not be so angry at him in the future. He said that he took "full responsibility for [his] situation" and planned to "get all the help [he] need[ed]." He told Dena that he was "not sorry [that he] got arrested," but was "truly sorry for what [he had] done."
In the second, Brians asked Dena to tell B.D., J.D., and K.D. how much prison time he was facing. He also asked Dena to get them to write letters asking for leniency. Brians got this letter to Dena by smuggling it out of jail.
Je.D. and Kr.D.
At trial, Je.D. testified that in 1983 or 1984 Brians, her uncle, rubbed her vagina after she fell asleep on his lap in the car. She was nine or 10 years old at the time. Je.D. was scared and kept her distance from Brians after the incident.
B.D.'s older sister, Kr.D., testified that her memories of Brians's abuse resurfaced in 2012. She remembered that when she was five or six years old Brians put his finger in her vagina. On another occasion, Brians licked her vagina. Kr.D. was uncomfortable around her father, and tried not to leave B.D. alone with him.
Brians's testimony
Brians testified in his own defense. He said that he would never molest anyone because he was also a victim: When he was a child, a cousin had sexually abused him. He did not report the abuse, but the cousin did go to prison after other family members reported that he had abused them.
Brians said that he had not sexually abused B.D., J.D., K.D., Je.D., or Kr.D. He admitted that he had given B.D. driving lessons, but denied touching her. He said he had not coerced her into sexual activity. He admitted he had fired a gun out the window but said that he was shooting at "varmints," not pretending to shoot himself. He also admitted that he and B.D. had gotten into a fight about her prom.
Brians confirmed that J.D. sometimes spent the night at his home. He did not have a significant relationship with her, however. He sometimes went into the bedroom where she was staying, but only if she was not asleep or if he heard rats.
Brians said that K.D. came to his home to watch football. She went into his bedroom and sat on his lap, but he did not touch her vagina. He never touched her breasts or buttocks.
Brians recalled that Je.D. once fell asleep on his lap in the car, but he did not touch her genitals.
To the extent he appeared to apologize for abusing B.D., J.D., and K.D. in his jailhouse communications, Brians was just saying what he thought Dena wanted to hear. He was willing to say anything to stay married. For example, when he said that he knew "how it happened" and that he was "stupid," he was referring to putting himself in a situation where he could be falsely accused. When he said that he had an "illness," he meant anxiety and depression. When he said that he had not had any issues for years, he meant that he had overcome that illness.
Brians acknowledged writing two letters to Dena while he was in custody. When he wrote about getting help in one letter, it was to placate Dena. So, too, when he apologized for what he had done.
Brians said that he called his sister because Dena would not take his calls. When he talked about forgiveness and feeling ashamed, he was referring to the fact that he was in jail and that his sister believed he was guilty of the charged offenses.
Jury instructions
At the conclusion of testimony, the trial court instructed jurors pursuant to CALCRIM Nos. 301 (testimony from a single witness can prove any fact) and 1190 (a defendant may be convicted of a sex crime based on the victim's testimony alone). Brians did not object. The court also provided CALCRIM Nos. 1191A and 1191B, which told jurors how they could consider evidence of uncharged and charged sex offenses. Brians did not object. Finally, the court gave CALCRIM No. 3410, defining the statute of limitations. Brians again did not object, nor did he request the addition of any clarifying language.
Before deliberations began, a juror sent the trial court a note: "Could you define the law for the statute of limitations as to, when it starts, for an adult and minor? When does the clock start? When a defndant [sic] knew they were illegally touched? Or when they first told law enforcement?" After discussing the matter with the parties, the court added relevant language from section 803, subdivision (f), to CALCRIM No. 3410 and reinstructed the jury:
"A defendant may not be convicted of the crimes charged in [counts 1 though 7] unless the prosecution began within one year of the date the crimes were discovered. The present prosecution began on September 23, 2019. "A criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that the person, while under 18 years of age, was the victim of a crime described in Penal Code section[] 288 or 289.
"[Prosecutors] have the burden of proving by a preponderance of the evidence that prosecution of this case began within the required time. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, [prosecutors] must prove that it is more likely than not that prosecution of this case began within the required time. If [prosecutors] have not met this burden, you must find [Brians] not guilty of the crimes charged in [counts 1 through 7]."
Brians did not object to the amended instruction, nor did he request that the court tell jurors that, to toll the statute of limitations, independent evidence had to corroborate B.D.'s and J.D.'s allegations. He also did not argue that such corroboration was lacking.
Sentencing
The jury convicted Brians of counts 1 through 8, and found true the allegations that counts 1 through 7 involved substantial sexual contact, that prosecutors brought those charges within the applicable statute of limitations, and that Brians committed counts 1, 2, 5, 6, 7, and 8 against multiple victims. It acquitted him of count 9, and found not true the allegations that counts 3 and 4 were committed against multiple victims. The trial court sentenced Brians to 90 years to life in state prison plus 10 years: consecutive terms of 15 years to life on counts 1, 2, 5, 6, 7, and 8; a consecutive eight years (the upper term) on count 3; and a consecutive two years (one-third the middle term) on count 4.
The abstract of judgment erroneously lists count 5 as a conviction for lewd acts on a child.
The trial court cited five aggravating factors supporting an upper-term sentence on count 3: (1) Brians's crimes involved a high degree of cruelty and callousness, (2) his victims were particularly vulnerable, (3) he dissuaded witnesses from testifying, (4) he carried out his crimes in a planned, sophisticated manner, and (5) he took advantage of a position of trust to commit his crimes. (Cal. Rules of Court, rules 4.421(a)(1), 4.421(a)(3), 4.421(a)(6), 4.421(a)(8), &4.421(a)(11).) The only mitigating factor was that Brians had no prior criminal record. (Id., rule 4.423(b)(1).)
DISCUSSION
Jury instructions
Brians contends his convictions on counts 1 through 7 should be reversed because the trial court's instructions on the applicable statute of limitations omitted the requirement that B.D.'s and J.D.'s allegations had to be corroborated by clear and convincing evidence. But Brians did not ask the court to correct that omission during the discussion on jury instructions. Nor did he ask the court to do so in response to the jury's question on the statute of limitations. The contention is forfeited. (People v. Smith (2011) 198 Cal.App.4th 415, 425 (Smith).)
It also lacks merit. When an alleged victim of childhood sexual molestation does not report the abuse until after the statute of limitations in section 800 has expired, prosecutors may still bring charges if: (1) the alleged crimes involved "substantial sexual conduct," and (2) "[t]here is independent evidence that corroborates the victim's allegation." (§ 803, subd. (f)(2)(B) &(C).) Where "the victim was 21 years of age or older at the time of [their] report, the independent evidence shall clearly and convincingly corroborate the victim's allegation." (Ibid.)
The trial court's instructions failed to inform jurors of these corroboration requirements. (Cf. People v. Posey (2004) 32 Cal.4th 193, 218 [appellate court independently reviews whether trial court properly instructed jurors].) But an erroneous jury instruction requires reversal only if there is a reasonable probability the defendant would have obtained a more favorable result were the instruction correct and complete. (People v. Whisenhunt (2008) 44 Cal.4th 174, 214; see People v. Watson (1956) 46 Cal.2d 818, 836-837.) That was not the case here because overwhelming evidence corroborated B.D.'s and J.D.'s allegations.
Evidence of other similar crimes indicating a defendant's propensity to commit sexual abuse can satisfy the corroboration requirements of section 803. (See People v. Zandrino (2002) 100 Cal.App.4th 74, 85 [collecting cases].) "[S]uch evidence, if credited by the trier of fact, may standing alone constitute independent evidence that clearly and convincingly corroborates [a] victim's allegation." (People v. Mabini (2001) 92 Cal.App.4th 654, 659.)
Here, B.D., J.D., and K.D. each testified about how Brians had molested them. Because the jury convicted Brians of the charges involving each of those victims, it necessarily credited their testimony. And given that a conviction must be proven beyond a reasonable doubt, there is no question that the jury found the testimony clear and convincing. Section 803's corroboration requirements were thus easily met based on the testimony from the victims alone: J.D.'s and K.D.'s testimony corroborated B.D.'s allegations, while B.D.'s and K.D.'s testimony corroborated J.D.'s.
But there was additional evidence to corroborate B.D.'s and J.D.'s allegations. Je.D. and Kr.D. each testified about how Brians abused them. Brians himself corroborated some portions of B.D.'s and J.D.'s allegations in his statements to police. He corroborated other portions in his jailhouse communications with Dena and his sister. He corroborated still more portions with his testimony at trial. There was thus no reasonable probability that the jurors would not have convicted Brians of counts 1 though 7 even if the trial court's instruction on section 803's corroboration requirements had been more complete. (See, e.g., Smith, supra, 198 Cal.App.4th at p. 428 [defendant's admissions in a pretext phone call plus evidence of uncharged sexual abuse corroborated victim's allegations].)
Any instructional error was also harmless beyond a reasonable doubt. (Cf. People v. Stanfill (1999) 76 Cal.App.4th 1137, 1153-1154 [applying standard set forth in Chapman v. California (1967) 386 U.S. 18, 24, to statute-of-limitations instructional error].)
Sentencing issues
Brians contends, and the Attorney General concedes, that Senate Bill No. 567 applies here because his case is not yet final. We agree. (People v. Salazar (2022) 80 Cal.App.5th 453, 462, review granted Oct. 12, 2022, S275788; People v. Flores (2022) 73 Cal.App.5th 1032, 1038.) The parties disagree on the proper remedy, however: Brians argues we should remand the matter for resentencing, while the Attorney General argues remand is unnecessary since any error in failing to apply Senate Bill No. 567's provisions to the sentence imposed on count 3 was harmless. We do not decide whether any Senate Bill No. 567 error was harmless here because remand is required to correct the illegal sentence imposed on count 5, Brians's conviction for sexual penetration of a child with a foreign object. (Cf. People v. Scott (1994) 9 Cal.4th 331, 354 [unauthorized sentence may be corrected at any time, regardless of whether defendant objects in trial court].)
The "One Strike" law, codified at section 667.61, mandates indeterminate sentences for defendants convicted of committing specified sexual offenses under certain conditions. But sexual penetration of a child with a foreign object (§ 289, subd. (j)) is not an offense listed in the law (see § 667.61, subds. (c) &(n)). The trial court thus erred when it sentenced Brians on count 5 pursuant to the One Strike law's provisions.
In his supplemental briefing, the Attorney General concedes that the court imposed an illegal sentence on count 5. He then additionally asserts the court erred when sentencing Brians on counts 1, 2, 6, and 7 because it did so pursuant to the wrong provisions of the One Strike law. The Attorney General is mistaken.
The Attorney General does not make a similar assertion as to count 8.
Subdivision (b) of the One Strike law mandates terms of 15 years to life for defendants convicted of committing lewd acts on a child if their crimes involved multiple victims. (See § 667.61, subds. (c)(8) &(e)(4).) We have explained previously, however, that subdivision (j)(2) contains an exception to subdivision (b)'s mandate, requiring prison terms of 25 years to life for defendants convicted of committing lewd acts on a child if their crimes involved multiple victims under 14 years of age. (See People v. Betts (2020) 55 Cal.App.5th 294, 299-303.) And our colleagues in the Fourth District have explained that subdivision (j)(2)'s provisions are mandatory. (In re Vaquera (2019) 39 Cal.App.5th 233, 245, review granted Nov. 26, 2019, S258376.) The Attorney General thus asserts the trial court should have sentenced Brians to terms of 25 years to life in state prison on counts 1, 2, 6, and 7 instead of terms of 15 years to life.
But the Legislature did not add subdivision (j)(2) to the One Strike law until 2010. (See Assem. Bill No. 1844 (2009-2010 Reg. Sess.) Stats. 2010, ch. 219, § 16, eff. Sept. 9, 2010.) Brians committed counts 1, 2, 6, and 7 between 1992 and 2001. And the true findings on the multiple victim allegations attached to those convictions that would now permit sentencing Brians pursuant to subdivision (j)(2) may have also occurred between 1992 and 2001: The jury did not specify whether those findings were based only on the crimes committed against B.D. and J.D. or whether they also included the crimes committed against K.D. Sentencing Brians pursuant to subdivision (j)(2) on counts 1, 2, 6, and 7 would thus violate the constitutional prohibition on the ex post facto application of laws. (People v. Hiscox (2006) 136 Cal.App.4th 253, 257-262.)
People v. Alvarez (2002) 100 Cal.App.4th 1170 is not to the contrary. In Alvarez, the defendant argued that sentencing him pursuant to the One Strike law's "multiple victims" provision violated the prohibition against ex post facto laws because he committed the offenses against one of his two victims before the law's enactment. (Alvarez, at p. 1179.) Our colleagues in Division 2 disagreed, explaining that the dates of the defendant's offenses against his first victim were irrelevant since he committed the offenses against his second after the Legislature enacted the One Strike law. (Alvarez, at p. 1179.) Its "multiple victims" provision was thus not triggered until that time and was "not applied to conduct occurring before its adoption." (Ibid.) Here, in contrast, it is not clear when the acts involving multiple victims potentially triggering subdivision (j)(2) of the One Strike law occurred. We thus cannot say that the trial court erred when it sentenced Brians pursuant to subdivision (b) on counts 1, 2, 6, and 7.
DISPOSITION
Brians's sentence is vacated, and the matter is remanded to the trial court for resentencing. At resentencing the court may reconsider all its sentencing choices, including which determinate terms to impose on counts 3, 4, and 5. (People v. Buycks (2018) 5 Cal.5th 857, 893.) Such terms must be imposed in a manner consistent with current laws, including section 1170, subdivision (b)(2) and (b)(6). We express no opinion as to how the court should exercise its discretion on remand. After resentencing, the trial court shall prepare an amended abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: GILBERT, P. J., YEGAN, J.