Opinion
A151344
10-09-2019
THE PEOPLE, Plaintiff and Respondent, v. JERRY D. CROWE, Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING; NO CHANGE IN JUDGMENT THE COURT: It is ordered that the opinion filed herein on October 9, 2019, be modified to change the date as follows: On page 2, line 3, the year 2004 is changed to 2005 so that the clause reads:
Defendant was charged with 23 counts of committing a lewd act upon a child under 14 years (§ 288, subd. (a)) over the course of five time periods: September 13, 2003 to September 12, 2005 (counts 1 and 2) ....There is no change in judgment. The petition for rehearing is denied. Date:
/s/_________ P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-161076-5)
Defendant Jerry D. Crowe was convicted of 26 counts of molesting his girlfriend's daughter and sentenced to a total of 115 years 8 months in prison. On appeal, he challenges the sufficiency of the evidence, raises instructional errors with respect to the single aggravated count of commission of a lewd act on a child (Pen. Code, § 288, subd. (b)(1)), and contends the trial court erred in admitting evidence of his prior sexual offenses. He also requests a remand for resentencing in accordance with Senate Bill No. 1393, which now vests the court with discretion to strike the five-year enhancement imposed under section 667, subdivision (a)(1) for defendant's prior serious felony conviction. We find no prejudicial error and conclude that remand for resentencing is unwarranted based on the trial court's clear indication at sentencing that it would not have stricken the enhancement. Accordingly, we shall affirm the judgment.
All statutory references are to the Penal Code unless otherwise noted.
Factual and Procedural Background
Defendant was charged with 23 counts of committing a lewd act upon a child under 14 years (§ 288, subd. (a)) over the course of five time periods: September 13, 2003 to September 12, 2004 (counts 1 and 2); September 13, 2004 to September 12, 2005 (counts 4 through 6); September 13, 2005 to September 12, 2006 (counts 7 through 12); September 13, 2006 to September 12, 2007 (counts 13 through 18); September 13, 2007 to September 12, 2008 (counts 19 through 24). In addition, defendant was charged with having committed a forcible lewd act upon a child under 14 years on or between September 13, 2003 and September 12, 2005 (§ 288, subd. (b)(1), count 3), having committed a lewd act upon a child then 14 years old by a defendant who was at least 10 years older than the victim, on or between September 13, 2008 and September 12, 2009 (§ 288, subd. (c)(1), count 25); and having committed a lewd act upon a child then 15 years old by a defendant who was at least 10 years older than the victim, on or between September 13, 2009 and September 12, 2010 (§ 288, subd. (c)(1), count 26). The information alleged further that in the commission of counts 3 through 24 the defendant had substantial sexual conduct with the victim who was under 14 years of age (§ 1203.066, subd. (a)(8)); and as to all counts, that the prosecution was commenced prior to the victim's 28th birthday (§ 801.1, subd. (a)). Finally, the information alleged that defendant had a prior strike conviction (§§ 667, subds. (d) & (e), 1170.12, subds. (b) & (c)) and that defendant had a prior serious felony conviction (§ 667, subd. (a)(1).)
Evidence was presented that defendant began living with the victim's mother when the victim was seven years old. Defendant began molesting the minor when she was nine years old and the molestation continued until she went to college. The victim described the nature of the abuse and the estimated frequency of the abuse based on her age at the time. The abuse began with defendant lewdly touching the victim and escalated to sexual intercourse when she was 13 or 14 years old. When defendant first touched her, she felt "scared" and "frozen." She was "scared of what would happen where [she] couldn't stop it or go tell [her] mom or whatever. Just scared of the situation." Later, defendant told her not to tell anyone about the molestation and "talked about like how it would affect [her] mom, . . . and that if [she] did say anything, he would go away to a bad place." Beginning around age 13 or 14, she had discussions with defendant "about how it was wrong and . . . about forgiveness and making pacts that it wouldn't happen any longer." Defendant would also "say things like, 'You can't rape the willing,' " which would make her "feel guilty for . . . taking part in it." The "message[] he was giving [her] was telling [her] that [she] was just as guilty as he was."
After the victim reported the abuse to the police, the victim, guided by a police officer, made a pretext call to defendant. In the call, the victim repeatedly asks defendant to admit what he did to her and she expresses concern that he might molest someone else. Defendant does not admit to the abuse directly, but repeatedly apologizes for hurting the victim and promises that he would not abuse any other children.
Evidence was presented that defendant had also sexually abused his three stepdaughters from a prior relationship. The stepdaughters, all of whom were in their 40s at the time of trial, testified that defendant molested them when they were between 8 and 12 years old. The stepdaughters testified that defendant was also physically violent with them and one testified that she did not report the abuse because she was afraid defendant would beat her mother, who would in turn beat her. After one of the girls disclosed the abuse at school, defendant was arrested and convicted of sexual battery in Tennessee.
Defendant called only one witness to rebut the victim's testimony that he had two small scars from a hernia surgery and relied primarily on testimony elicited from the victim on cross-examination suggesting a possible motive to fabricate the abuse.
The jury found defendant guilty of all charges and found all allegations true. Thereafter, the trial court found true the prior conviction allegation. The court denied the defense motion to strike the prior conviction allegation under section 1385, finding that the defendant is not a person who is outside the spirit of the three strikes law, citing, in part, the high risk of sex offenders' reoffense and the public's need for protection from reoffenders. The court imposed an aggregate prison term of 115 years 8 months.
Discussion
1. Count 3: Aggravated Lewd Act (§ 288 , subd. (b))
a. Substantial evidence supports defendant's conviction.
Section 288, subdivision (a) makes criminal any lewd and lascivious act with a child under the age of 14, "with the intent of arousing, appealing to, or gratifying the lust, passion, or sexual desires" of the child or the perpetrator. Section 288, subdivision (b)(1), prescribes heightened penalties for a lewd act committed "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." As set forth above, defendant was charged with 23 counts of violating section 288, subdivision (a) and one count of violating section 288, subdivision (b). The aggravated lewd act was alleged to have occurred when the victim was 10 years old.
Defendant contends there is no substantial evidence to support the jury's finding he committed an aggravated lewd act on the victim. He argues that the victim repeatedly testified that there was never any physical abuse or threat of physical abuse. The Attorney General asserts the conviction is amply supported by evidence of both force and duress. Because we conclude that defendant's conviction is amply supported by evidence of duress, we need not rely on the additional evidence of force.
The victim's testimony that the "first few times" defendant "pull[ed]" her hand towards his penis and "guided" her hand to show her what to do, likely constitutes substantial evidence of the force component of an aggravated lewd act. (See People v. Pitmon (1985) 170 Cal.App.3d 38, 48, disapproved on other grounds in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12 ["There can be little doubt that defendant's manipulation of [the victim's] hand as a tool to rub his genitals was a use of physical force beyond that necessary to accomplish the lewd act."]; Soto, supra, 51 Cal.4th at p. 242 [The force required to support aggravated lewd acts under section 288, subdivision (b)(1), is force " 'substantially different from or substantially greater than that necessary to accomplish the lewd act itself.' "].)
As used in section 288, subdivision (b)(1), duress means " ' "a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted." ' " (Soto, supra, 51 Cal.4th at p. 246, italics omitted.) "The total circumstances, including the age of the victim, and [her] relationship to defendant are factors to be considered in appraising the existence of duress." (People v. Pitmon, supra, 170 Cal.App.3d at p. 51; accord, People v. Cochran (2002) 103 Cal.App.4th 8, 13-14, disapproved on other grounds in People v. Soto, supra, 51 Cal.4th at p. 248, fn. 12.)
Here, in closing argument, the prosecutor argued that the first two counts, when the victim was 9 or 10, involved defendant touching the victim. Count 3 occurs as the sexual abuse "really escalates" after the victim turned 10. By "grabbing" her hand and "putting" it on his penis, "he's having her submit to something she would not otherwise submit to unless she was being manipulated by him because of his position of authority in her life. Again, he didn't have to do that every time. She learned what to do, as a child would, a child who is trying to make him happy and trying to do what he wants, so then she starts doing it without him taking her hands, and that's where we get to count four." The victim testified that she felt "scared" and "frozen" when defendant began touching her sexually. She saw defendant as a father, loved him, and wanted to protect him. As the court stated in People v. Cochran, supra, 103 Cal.App.4th at page 16, footnote 6, "when the victim is as young as this victim and is molested by her father in the family home, in all but the rarest cases duress will be present." (See also People v. Superior Court (Kneip) (1990) 219 Cal.App.3d 235, 239 ["Where the defendant is a family member and the victim is young, . . . the position of dominance and authority of the defendant and his continuous exploitation of the victim" is relevant to the existence of duress.].)
Although the prosecutor misspoke by saying defendant grabbed her hand rather than pulled her hand, we see no meaningful difference between the prosecutor's argument and the victim's testimony.
Defendant understandably relies heavily on two cases in which a father's molestation of his daughter was held to have been committed without the use of duress. In People v. Hecker (1990) 219 Cal.App.3d 1238, disapproved on other grounds in People v. Soto, supra, 51 Cal.4th at page 248, footnote 12, the court found that there was insufficient evidence of duress where there was no evidence that the defendant expressly or implicitly threatened the victim. The victim admitted she was never consciously afraid defendant would harm her and testified that with the exception of defendant's pushing her head down during the act of oral copulation, he never used physical force. Although the victim stated she felt "pressured psychologically" and was "subconsciously afraid," there was no evidence defendant was aware of and sought to take advantage of such fear. (Id. at p. 1250.) The Hecker court observed, " 'Psychological coercion' without more does not establish duress. At a minimum there must be an implied threat of 'force, violence, danger, hardship or retribution.' " (Id. at pp. 1250-1251.) People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321 relied heavily on Hecker in finding that there was insufficient evidence of duress. The court concluded that the "mere fact" the defendant was the victim's father and larger than her did not constitute evidence of duress, even though the victim had limited intellectual abilities and feared the defendant. (Ibid.)
Despite the similarity to the facts in this case, a critical distinction is that the victims in Hecker and Espinoza were 12 or 13 years of age when molested, while the molestation in this case began when the victim was only nine years of age, when she undoubtedly was more susceptible to coercion through acceptance of defendant's position of authority in the family. More importantly, the language and reasoning in both cases have been questioned and undermined by subsequent decisions. (See People v. Cochran, supra, 103 Cal.App.4th at p. 15 ["We believe th[e] language in Hecker is overly broad. The very nature of duress is psychological coercion."]; accord, People v. Veale (2008) 160 Cal.App.4th 40, 48-50.) Accordingly, there is no basis to disturb the jury's finding that the victim was molested by defendant under duress.
b. The trial court did not err in failing to instruct on the lesser included offense of a nonforcible lewd act.
Defendant contends the court erred by failing sua sponte to instruct the jury that a nonforcible lewd act under section 288, subdivision (a) is a lesser included offense of a forcible lewd act under section 288, subdivision (b)(1). He argues, "The evidence in the instant case permitted the jury to conclude that a non-forcible, rather than a forcible, lewd act occurred. The jury could find the masturbation of appellant was accomplished without appellant using force or duress. Therefore, the trial court erred in failing to instruct the jury on this lesser included offense."
" ' "It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence." ' " (People v. Breverman (1998) 19 Cal.4th 142, 154.) That obligation includes instructing on lesser included offenses. (Ibid.) But, "[a] trial court need not . . . instruct on lesser included offenses when the evidence shows that the defendant is either guilty of the crime charged or not guilty of any crime." (People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5.) The court's failure to instruct on a lesser included offense warrants reversal where an examination of the entire cause, including the evidence, discloses that "it appears 'reasonably probable' the defendant would have achieved a more favorable result had the error not occurred." (Breverman, supra, 19 Cal.4th at p. 149, citing People v. Watson (1956) 46 Cal.2d 818, 836.)
Section 288, subdivision (a) is a lesser included offense of section 288, subdivision (b). (People v. Ward (1986) 188 Cal.App.3d 459, 472.) Thus, proof of only nonforcible lewd acts in violation of section 288, subdivision (a) would support conviction of a lesser included offense of the charged forcible lewd acts. (§ 288, subd. (b); Ward, supra, at p. 472.)
Here, defendant was charged with having committed one forcible lewd act between September 2003 and September 2005 and one nonforcible lewd act during the same time period and the jury convicted him of both. The relevant conduct that formed the basis for the forcible act was as discussed above, the first few times that defendant pulled the victim's hand and guided it on his penis. The victim was then a child of only 9 or 10 years of age and defendant was a parental figure. Defendant denied committing the acts described by the victim. If the jury accepted the victim's testimony, as it obviously did, there was no substantial evidence on which it reasonably could find that defendant committed his acts without the express or implied threat of force, discipline or retribution sufficient to coerce the victim to perform acts which she otherwise would not have performed. Based on the entire record, there is no evidence on which a reasonable jury could have found defendant's conduct was less than the offense charged.
Moreover, even if there was error in failing to instruct the jury on nonforcible lewd conduct, the error was harmless. Given the victim's age and relationship to defendant, there simply is no reasonable probability that the jury would have found that the acts of sexual abuse were not the product of duress.
2. CALCRIM No. 3501
The California Constitution guarantees a criminal defendant the right to a unanimous jury verdict. (Cal. Const., art. I, § 16.) A unanimity instruction is given to avert the possibility "the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed." (People v. Sutherland (1993) 17 Cal.App.4th 602, 612.)
In People v. Jones (1990) 51 Cal.3d 294, 321 (Jones), the Supreme Court held a child victim's "generic testimony" of sexual abuse may be sufficient to sustain convictions on multiple counts, so long as the victim "describe[s] the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy)[;] . . . the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., 'twice a month' or 'every time we went camping')[; and] . . . the general time period in which these acts occurred (e.g., 'the summer before my fourth grade,' or 'during each Sunday morning after he came to live with us'), to assure the acts were committed within the applicable limitation period." (Id. at p. 316, italics omitted.) With respect to unanimity, the court observed that in such cases, "the jury may not be able to readily distinguish between the various acts, [but] it is certainly capable of unanimously agreeing that they took place in the number and manner described." (Id. at p. 321.) The court advised, "In a case in which the evidence indicates the jurors might disagree as to the particular act defendant committed, the standard unanimity instruction [(CALCRIM No. 3500)] should be given. [Citation.] But when there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction [(CALCRIM No. 3501)] which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim." (Jones, 51 Cal.3d at pp. 321-322.)
Defendant acknowledges that Jones is binding on this court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), but "submits that it is ripe for reconsideration." Defendant's arguments are noted and preserved for the record.
CALCRIM No. 3501, as given in this case, reads "The defendant is charged in Counts 1-2 and 4-24 with lewd acts upon a child under the age of 14 during the time period of September 2003 to September 2008. [¶] The defendant is charged in Count 3 with forcible lewd act upon a child under the age of 14 during the time period of September 2004 to September 2005. [¶] The defendant is charged in Counts 25-26 with lewd act upon a child over 14 during the time period of September 2008 to September 2010. [¶] The People have presented evidence of more than one act to prove that the defendant committed these offenses. You must not find the defendant guilty unless: [¶] 1. You all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed for each offense; [¶] OR 2. You all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period and have proved that the defendant committed at least the number of offenses charged."
CALCRIM No. 3500, which defendant argues should have been given, requires the jury to find unanimity under the first prong: "The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed. Defendant argues, "CALCRIM No. 3500 should have been given in this case because the evidence shows a jury could well disagree regarding the Count 3 charge that force or duress were used to commit masturbation. Unanimity, therefore, was required to assure appellant's rights were protected as jurors deliberated on that count. As a result of failing to instruct with CALCRIM 3500 there was no unanimous verdict on Count 3. Moreover the sloppiness in failing to protect appellant's rights on this count raises doubt that jurors actually achieved unanimity on the other 25 counts." We disagree.
Contrary to defendant's argument, there was a unanimous verdict on count 3. The jury was instructed that it must either "all agree" that defendant committed at least one aggravated lewd act in the relevant time period, or "all agree" that defendant committed all the aggravated lewd acts "alleged to have occurred during this time period." Thus, the jury either all agreed that on one specific occasion defendant used force or duress to make the victim touch his penis or they all agreed that the "first few times" defendant made the victim touch his penis he used force or duress. Either way, the instructions required the jury to reach a unanimous verdict.
Given the victim's "general testimony" and the defense presented at trial, the court properly instructed the jury with CALCRIM No. 3501. People v. Fernandez (2013) 216 Cal.App.4th 540 is instructive. In that case, two victims "testified about numerous, repetitive molestations which took place over a defined period of time. Each described the distinct types of abuse to which she had been subjected in sufficient detail, was able to identify the locations where it took place, and was able to give a general estimate of the frequency of events. Appellant offered no evidence in his defense that might focus doubt as to any specific act of abuse as distinguished from any other act of molestation. Rather, his defense was simply that no molestation ever occurred." (Id. at pp. 557-558.) On that record, the court concluded that the court properly instructed the jury with CALCRIM No. 3501 because it was "unlikely that the jury would have a reasonable disagreement with respect to any particular act or instance of abuse, or could reasonably conclude that some of the victims' testimony was true but other parts were not. [¶] The jurors either believed all the acts occurred, or they disbelieved the girls' stories completely." (Fernandez, at p. 558.) As in Fernandez, defendant here presented no basis on which a juror might differentiate between the "first few times" he made the victim touch his penis. For the same reason, the jury was property instructed with CALCRIM No. 3501 in this case.
3. Defendant's Prior Conviction and Bad Acts
A. Evidence of Prior Sexual Abuse
The trial court admitted under Evidence Code sections 1101, subdivision (b) and 1108, subdivision (a), the testimony of the three stepdaughters that defendant had molested them when they were children. The jury was instructed regarding the use of that evidence, pursuant to CALCRIM No. 375, as follows: "The People presented evidence that the defendant committed other sexual offenses that were not charged in this case. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses. . . . [¶] If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offenses, you may, but are not required to, consider that evidence for the limited purpose of deciding whether: [¶] The defendant acted with the intent to arouse, appeal or gratify the lust, passion, or sexual desires of defendant of Jane doe; or [¶] The defendant had a plan or scheme to commit the offenses alleged in this case.[¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offenses and the charged offenses. [¶] Do not consider this evidence for any other purpose. [¶] If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of these charges. The People must still prove each charge beyond a reasonable doubt." Pursuant to CALCRIM No. 1191 the jury was instructed, "If you decide that the defendant committed the uncharged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit those offenses as charged here." On appeal, defendant contends the court abused its discretion by failing to exclude the stepdaughters' testimony of sexual abuse under Evidence Code section 352.
Evidence Code section 1101, subdivision (b) reads: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act." Evidence Code section 1108, subdivision (a) reads: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352."
Evidence Code section 352 vests a trial court with broad discretion to weigh the prejudicial effect of proffered evidence against its probative value. The trial court has discretion to exclude relevant evidence only "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." (Evid. Code, § 352; People v. Cordova (2015) 62 Cal.4th 104, 132 [Evidence of the defendant's commission of other sex offenses is "presumed admissible" under Evidence Code section 1108 "and is to be excluded only if its prejudicial effect substantially outweighs its probative value in showing the defendant's disposition to commit the charged sex offense or other relevant matters."].)
Here, the probative value of this evidence was obvious. In both instances, defendant established a romantic relationship with the victims' mothers before sexually abusing the daughters. Defendant's sexual conduct was substantially similar in each instance. All victims testified the abuse began with inappropriate massages and then escalated. Although defendant's abuse of the stepdaughters occurred many years before the abuse of the victim in this case, the gap in time did not substantially reduce the probative value of the evidence. (People v. Cordova, supra, 62 Cal.4th at p. 133 ["time gap alone does not compel exclusion of the evidence"].) There was no abuse of discretion in the admission of the other sexual offenses testimony.
In People v. Falsetta (1999) 21 Cal.4th 903, our Supreme Court held that the trial court's ability under Evidence Code section 352 to exclude unduly prejudicial evidence provides a safeguard that supports the constitutionality of Evidence Code section 1108. Defendant acknowledges that we are bound by Falsetta (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455), but seeks reconsideration "on the ground that the history of the 28 years of case law postFalsetta vividly demonstrates that the experiment of using Evidence Code section 352 to preserve and protect the accused's due process right to be tried for the current offense has failed." Defendant's argument is noted and preserved for the record.
Defendant also contends the court erred in admitting a certified copy of his "sexual battery" conviction from Tennessee. Any possible error in that regard was undoubtedly harmless in light of the properly admitted testimony by the stepdaughters.
B. Evidence of Prior Nonsexual Abuse
Defendant contends that the court erred in admitting testimony by the stepdaughters that he had nonsexually, physically abused the girls and their mother. He argues that this improper propensity evidence "directly prejudiced jurors in their ability to fairly and in an unbiased fashion determine whether as charged in count 3, aggravated lewd act, appellant committed a lewd act involving masturbation by the use of force and/or duress." He also argues that because the court instructed the jury regarding the proper use of the evidence of prior sexual abuse, the court erred in not sua sponte instructing the jury that it was not permitted to use the evidence of physical violence to conclude that defendant was likely to commit and did commit the aggravated lewd act charged here.
The Attorney General argues that defense counsel, not the prosecution, elicited much of the testimony regarding his prior physical violence on cross-examination, that there was no sua sponte obligation to instruct on the use of the evidence of physical violence, and that any potential error in admitting the challenged evidence was harmless in light of the overwhelming evidence of defendant's guilt.
Our review of the record confirms that almost all of the testimony regarding physical violence was elicited on cross-examination. Defendant argues, without citation to the record, that the prosecutor "on direct examination . . . asked the sisters why they failed to report molest, and was given the response that they did not want to incur more of the physical violence being inflicted on them by appellant and their mother." The sole potential reference to violence in the stepdaughters' direct testimony, however, is the statement by one of the stepdaughters that the sisters did not tell their mother about the abuse because they "were fearful of Jerry. There was more than just sexual abuse. We were fearful." Prior to that statement, the same witness had testified that as children, "[t]here was physical punishment if [their chores were] not completed" and that defendant "harmed" them. No objection was made to this testimony.
Defendant argues that his attorney's failure to object constituted ineffective assistance of counsel. Regardless, there is no reasonable probability that the challenged evidence affected the verdict. (People v. Watson, supra, 46 Cal.2d at p. 836.) The victim repeatedly acknowledged that defendant had not threatened her with physical violence and testified that she did not report the abuse because she loved defendant and wanted to protect him. The only count involving the use of force is count 3 and as discussed above, the only force was "pulling" and "guiding" the victim's hand. Any improper suggestion that defendant had a propensity for violence was of little consequence in the face of the overwhelming evidence of defendant's guilt, none of which required a finding that defendant committed physical violence against the victim.
4. The Prior Conviction Enhancement
Defendant was sentenced as follows: The court imposed the upper term of eight years on the section 288, subdivision (b) conviction, consecutive one-third sentences (two years each) on the 23 counts for violations of section 288, subdivision (a) and consecutive one-third sentences (eight months each) on the remaining two counts. These terms were doubled pursuant to the Three Strikes Law (§§ 667, subds. (d) & (e), 1170.12, subds. (b) & (c)) and an additional five-year term was imposed for the prior serious felony conviction under section 667, subdivision (a)(1).
Under the law that applied at the time of defendant's sentencing, trial courts had no authority to strike a prior serious felony conviction under section 667, subdivision (a)(1). (Former § 1385, subd. (b), as amended by Stats. 2014, ch. 137, § 1 ["This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667."]; People v. Valencia (1989) 207 Cal.App.3d 1042, 1045-1047.) As of January 1, 2019, Senate Bill No. 1393 (2017-2018 Reg. Sess.) removed the prohibition by deleting section 1385, subdivision (b). The Attorney General agrees that the amendment applies retroactively to defendant's case, but asserts that remand for resentencing is not required because the trial court made unmistakably clear at sentencing that it would not have dismissed the enhancement in any event. (See People v. McDaniels (2018) 22 Cal.App.5th 420, 424-425 [A change in the law that applies retroactively to nonfinal judgments requires remand for the exercise of the court's discretion "unless the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] enhancement."].) The Attorney General argues, "The court found a number of aggravating circumstances, but no mitigating circumstances. The court chose to impose fully consecutive terms. The court declined to strike appellant's prior strike conviction. The court explained that the prior strike conviction was for 'an assault based on the attempted rape of two women' and demonstrated appellant's 'pattern of violent conduct that indicates a serious danger to society.' The court also noted its concern that appellant would offend again, citing section 290.03, subdivision (a)(1), for the proposition that 'sex offenders pose a potentially high risk of reoffending by committing more sex offenses after release.' If the court had believed appellant's sentence was not commensurate with his culpability, the court could have altered several discretionary choices to reduce his sentence by any number of years. Instead, the court repeatedly chose to punish appellant to the fullest extent of the law. The record therefore demonstrates that remand for consideration of newly acquired sentencing discretion would be an idle act." We share the Attorney General's assessment and conclude that remand for resentencing would be pointless and is not warranted.
Disposition
The judgment is affirmed.
POLLAK, P. J. WE CONCUR: STREETER, J.
BROWN, J.