Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. RIF133944, Thomas C. Hastings, Judge. (Retired judge of the Santa Clara Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia, and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
A jury found defendant Otto Rolando Delcid guilty of committing a lewd act with force upon Jane Doe 1 (Jane 1), a child under 14 years of age (Pen. Code, § 288, subd. (b)(1)) (count 1); committing a lewd act without force upon Jane 1 (§ 288, subd. (a)) (count 2); and committing a lewd act with force upon Jane Doe 2 (Jane 2), a child under 14 years of age (§ 288, subd. (b)(1)) (count 6). The jury also found true that defendant had committed these offenses against more than one victim within the meaning of section 667.61, subdivision (e). Defendant was sentenced to three consecutive terms of 15 years to life on counts 1, 2, and 6.
All future statutory references are to the Penal Code unless otherwise stated.
The jury was deadlocked on three additional counts of committing a lewd act upon Jane 1, a child under the age of 14 years, without force (§ 288, subd. (a)) (counts 3, 4, and 5), and one additional count of committing a lewd act upon Jane 3, a child under the age of 14 years (§ 288, subd. (a)) (count 7). After polling the jurors as to each of those four counts, the trial court declared a mistrial as to those counts. The People’s motion to dismiss counts 3, 4, 5, and 7 was later granted.
On appeal, defendant contends (1) the trial court erroneously believed it did not have discretion to impose a concurrent term on count 6; and (2) the matter must be remanded for resentencing on count 2 because the trial court erroneously concluded the acts underlying the convictions on counts 1 and 2 must have occurred on separate occasions. We agree that the matter must be remanded to allow the trial court to exercise its discretion on count 6; however, we reject defendant’s remaining contention and affirm the judgment.
I
FACTUAL BACKGROUND
At the time of trial in 2008, Jane 1 was 13 years old, Jane 2 was 10 years old, and Jane Doe 3 (Jane 3) was 12 years old. Janes 1 and 2 are defendant’s granddaughters and live in Las Vegas with their parents, a brother, and another sister. Jane 3 is defendant’s daughter.
In August 2004, Janes 1 and 2 and the rest of their family visited defendant in Riverside. Jane 1 testified that during this visit, defendant touched her vagina, as well as Jane 3’s vagina, several times while she slept with Jane 3.
In August 2005, Janes 1 and 2 and their family again visited defendant in Riverside. Jane 1 testified that during this visit, defendant touched her vagina several times, making her feel uncomfortable. The first time it occurred was while Jane 1 was unpacking her bag shortly after they had arrived at the house. She was in her pajamas in Jane 3’s room when defendant entered the room and started touching her vagina. The only thing defendant said to her at that time was, “Sh[h].” Later that same night, after Jane 1 went to sleep with Jane 3 in Jane 3’s room, defendant came in the room and touched her vagina underneath her pajamas. When Jane 1 awoke, Jane 3 was no longer in the room, and she yelled for Jane 3. Defendant left when Jane 1’s calls for Jane 3 became louder. When Jane 1 told Jane 3 what defendant had done to her, Jane 3 replied, “‘[T]hat’s how he plays.’” Jane 1 did not tell any adult about what had happened at that time because she was afraid of defendant.
On another occasion during the August 2005 visit, Jane 1 was sitting outside on a bench when defendant came up to her and sat down near her. When she tried to go inside, defendant grabbed her by her hand, pulled her onto his lap, and began rubbing her on top of her pants.
On at least two other occasions during the August 2005 visit, defendant touched Jane 1’s vagina while she was swimming in the pool. Specifically, on the first occasion, defendant approached Jane 1 while she was sitting on one of the steps in the swimming pool and placed his hand under her one-piece bathing suit through a leg opening and touched her vagina. The second time, Jane 1 was wearing shorts and a shirt; defendant approached her while she was swimming, grabbed her beneath the water, and touched her vagina skin to skin. Jane 1 kept telling defendant to stop, but he kept grabbing her and tried pulling her toward the deep end of the pool. Jane 1, who did not know how to swim, started running in the pool and made it to the stairs. As she grabbed the stair railing and tried to climb out of the pool, defendant grabbed her by her clothing and pulled her back. This caused Jane 1 to fall, hit her head, twist her foot, and hurt her leg. Later that night, her last evening in defendant’s home, as she was sleeping on the living room sofa, Jane 1 was awakened by defendant unbuckling her jeans, touching her vagina, and kissing her on the mouth. This went on for 20 minutes before Jane 1 “punched him and he took off through the back door.”
Jane 2 testified that during her visits to Riverside, defendant also touched her vagina on several occasions while she was swimming in his pool. Jane 2 further stated that defendant had also touched her vagina during his visits to Las Vegas. Jane 2 also saw defendant touch Jane 3’s vagina while they were in Riverside.
Jane 1 did not immediately tell her mother what defendant had done to her. Sometime after the August 2005 visit, Jane 2 told their brother about defendant touching her and Jane 1, and he told their mother. Jane 1 later confirmed to her mother that defendant had indeed touched her. Her mother thereafter called the police. Recordings of Las Vegas police interviews from December 2005, in which Janes 1 and 2 described the molestations by defendant, were played for the jury. Recordings of Riverside police interviews from January 2007, in which Janes 1 and 2 again describe the molestations by defendant, were also played for the jury.
Jane 3, defendant’s daughter, testified that defendant had never touched her sexually and that she never saw him touching Janes 1 and 2. Jane 3 admitted that her mother had said that she did not believe the allegations being made by Janes 1 and 2; she admitted that she did not want her father to go to jail.
Defendant’s daughters, Susan D. and Flor P., testified about how defendant had sexually molested them while they were growing up.
II
DISCUSSION
A. Sentence Imposed on Count 6
Defendant contends the trial court imposed consecutive sentences under the misapprehension that the one strike law (§ 667.61) mandated full, consecutive sentencing. Defendant is correct to the extent he argues that at the time he committed the underlying offenses, the one strike law did not explicitly mandate either consecutive or concurrent sentencing, leaving that decision to the trial court’s discretion. (People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262 (Rodriguez).) The Rodriguez court explained that section 669 sets forth the general rule that sentencing courts have discretion to impose consecutive or concurrent sentences; however, it noted the presumption in favor of discretion applies “[a]bsent an express statutory provision to the contrary....” (Ibid.)
Section 288, subdivision (a) has long provided that nonforcible lewd act offenses shall be punished by terms of three, six, or eight years. (People v. Hammer (2003) 30 Cal.4th 756, 765.) In 1994, however, the Legislature enacted section 667.61, otherwise known as the one strike law. Section 667.61 provides for indeterminate terms of either 15 years to life or 25 years to life for violation of section 288, subdivision (a) and certain other sex offenses if certain circumstances apply, regardless of whether the defendant has prior convictions. (Stats.1993-1994, 1st Ex. Sess., ch. 14, § 1, p. 8570; People v. Wutzke (2002) 28 Cal.4th 923, 929-930.) Under the one strike law as it existed at the time of the commission of the instant offenses, section 667.61, subdivision (g) required imposition of the indeterminate term once for each separate victim.
The statute was amended in 2006. The language of section 667.61, subdivision (g), no longer provides that a defendant shall be sentenced to one life term per victim per occasion. However, the current version of section 667.61, subdivision (i) requires imposition of “a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6.”
Former section 667.61, subdivision (g) was in effect in 2004 and 2005, at the time of these offenses, and provided for imposition of one term for any offense committed against a single victim during a single occasion. However, if there were multiple victims during a single occasion, multiple terms could be imposed, one for each separate victim.
As noted previously, the current version of section 667.61 now allows, in subdivision (i) for consecutive sentencing for separate victims or the same victim on separate occasions, pursuant to section 667.6, subdivision (d). However, we apply the previous version of the statute, together with related provisions.
As applicable to the instant case, and as both parties agree, the trial court clearly retained discretion to impose either consecutive or concurrent one strike indeterminate terms. (Rodriguez, supra, 130 Cal.App.4th at pp. 1262-1263.) If a court is unaware of its sentencing discretion, the matter must be remanded except where remand would be “an idle act and unnecessary, if not pointless, judicial exercise.” (People v. Coelho (2001) 89 Cal.App.4th 861, 889; People v. Deloza (1998) 18 Cal.4th 585, 599-600.) Defendant contends that because the trial court erroneously believed a consecutive sentence was mandatory under the one strike law, reversal is mandatory to allow the court to exercise its sentencing discretion. We are inclined to agree with defendant. The record shows that the court mistakenly believed it had “no discretion as to what the sentence should be” and was obliged to impose consecutive terms. There is no indication in this record that remand would be an idle act.
As guidance to the trial court on remand, we point out that the one strike law is not an enhancement, because it is not an additional term of imprisonment added to the base term; instead, it is an alternative sentencing scheme. (People v. Acosta (2002) 29 Cal.4th 105, 118-119.) This separate sentencing scheme applies when a defendant commits an enumerated sex crime under specified circumstances. (Id. at p. 118.)
The allegation does not apply to a specific count, although one indeterminate term must be applied for each separate victim. Nevertheless, the court retains discretion to impose concurrent sentences under the one strike law. (Rodriguez, supra, 130 Cal.App.4th at p. 1263.) Therefore, the matter must be remanded for the court to exercise its discretion and impose either a consecutive or concurrent one-strike term of 15 years to life for count 6.
To the extent defendant argues the court misunderstood its sentencing discretion to either impose a consecutive or concurrent term for count 2 pursuant to section 667.6 or section 667.61, we reject this contention. The record shows that the court was aware of its sentencing discretion on counts 1 and 2.
B. Sentence Imposed on Counts 1 and 2
Defendant also contends the case must be remanded for resentencing on count 2 because the trial court erroneously concluded the acts underlying the convictions on counts 1 and 2 must have occurred on separate occasions. We disagree.
In count 1, defendant was charged with committing a lewd act with force upon Jane 1 between August 2004 and August 2005 (§ 288, subd. (b)(1)). In count 2, defendant was charged with committing a nonforcible lewd act upon Jane 1 between August 2004 and August 2005 (§ 288, subd. (a)), as a “further and separate cause of action, being a different offense from but connected in its commission with the charge set forth in count 1 hereof....” Defendant was also charged with committing a nonforcible lewd act upon Jane 1 in counts 3, 4, and 5.
In her closing argument to the jury, the prosecutor explained that the only difference between the crime of committing a lewd act upon a minor (§ 288, subd. (a)) and the crime of committing a lewd act upon a minor with force (§ 288, subd. (b)) was that the touching was “done by the use of force, violence or duress.” The prosecutor argued the forcible lewd act occurred when defendant joined Jane 1 when she was sitting outside on a bench, then, when she tried to go into the house, grabbed her and pulled her onto his lap and began touching her.
The prosecutor further argued that the nonforcible lewd act with a minor as charged in count 2 was supported by Jane 1’s testimony about being awakened by defendant touching her underneath her pajamas during her first night in defendant’s home. The prosecutor clarified that the offense charged in count 3 occurred when defendant touched Jane 1 underneath her one piece suit when she was in the pool; the crime charged in count 4 occurred the second time Jane 1 was in the pool when defendant touched her underneath her clothes, then pulled her back into the pool by her clothing when she tried to climb out; and that the offense charged in count 5 happened during Jane Doe’s last night in the house when she awoke on the sofa to find defendant foundling her underneath her jeans and underwear.
During deliberations, the jurors sent the trial court two notes. In the first note, the jury asked for a read back of the testimony of defendant’s daughters, Susan and Flor, and for “[Jane 1’s] test[imony] on ‘Bench incident,’ or any other evidence.” After the read back of the requested testimony was completed, the jurors sent the second note which read, “Does each count have to match w/ the DA example in closing arguments[?] [¶] Ex. Count #1 was the force on the bench[.] [¶] Specifically — could the force have occurred in another incident like in bedroom or pool?”
After discussing the question with counsel, the trial court said it was going to advise the jurors that they were not bound by the prosecutor’s argument and that it was also going to refer the jurors to Judicial Council of California Criminal Jury Instruction No. 4.71.5 [when proof must show specific act or acts within time alleged]. The trial court then responded to the jury’s inquiry by telling them they were “the sole judges of the facts” and that anything said by the attorneys during their closing arguments was not evidence.
As to the charges in which Jane 1 was the named victim, the jurors found defendant guilty on count 1 (§ 288, subd. (b)) and count 2 (§ 288, subd. (a)) but were deadlocked on counts 3, 4, and 5.
During the sentencing hearing, defense counsel argued the jurors had “issues” concerning the prosecution’s theory of the case and that it was not at all clear that the crimes in counts 1 and 2 had been committed on separate occasions. Therefore, counsel argued, “at most what the Court can do is two consecutive life [sentences] in this case, one for each victim, and one additional, one needs to be run concurrent.” Counsel also argued that from the jury’s verdicts, there was no way to know which evidence supported a particular conviction and that the forcible and nonforcible lewd act could arise out of the same occasion, “if it began as a 288 (a) and graduated to a 288(b).”
The trial court rejected counsel’s argument, noting, “I’m not sure that would necessarily follow, especially when you’re talking about the same victim. When you’re talking about multiple counts of 288(a) conduct, and you’re talking about what appears to be a much limited and less type of conduct where there was the possibility of force, fear, duress, menace. But there’s no way for the Court to say definitively, with respect to the verdict, which count was the count involving the force, fear, and duress and which was the count of the 288(a). I don’t think anybody can do that, based upon the verdict form. But I think again logic would dictate that it’s a separate occasion, same victim, separate occasion because of the fact the elements are different. But I can’t, again, tell you definitely from the verdict as to which count would be the force count and what count would be the 288 count. But... I have to really infer from the elements of these two events that they are different, and being different that they pertain to different occasions.”
The trial court then imposed a sentence of 15 years to life on count 1 and a consecutive 15 years to life on count 2 “[i]n the exercise of the Court’s discretion, and based upon the facts of this case and based upon the fact that the Court finds that this was in fact a separate occasion, because of the testimony of the victim and the fact that the elements of the offense in 288 are different from 288(b)....”
Citing People v. Jones (2001) 25 Cal.4th 98 (Jones), defendant claims the trial court erred factually and legally in finding counts 1 and 2 occurred on separate occasions.
In Jones the defendant was convicted of forcible rape, three counts of forcible sodomy, and forcible oral copulation. (Jones, supra, 25 Cal.4th at p. 102.) All five sex crimes were committed in the backseat of an automobile over an estimated hour and a half. (Id. at p. 101.) The three sodomy offenses took place over a period of approximately one hour. (Ibid.)
The court analyzed the meaning of “single occasion” under subdivision (g) of section 667.61, contrasting it with the “separate occasion” language of section 667.6. (Jones, supra, 25 Cal.4th at p. 105.) The Jones court explained that section 667.6 “mandates full, separate and consecutive sentences for certain sex offenses ‘if the crimes involve separate victims or involve the same victim on separate occasions.’” (Jones, supra, 25 Cal.4th at p. 104.) Section 667.6 instructs the trial court on making that determination: “In determining whether crimes against a single victim were committed on separate occasions..., the court shall 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. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative....” (§ 667.6, subd. (d).) Section 667.61, in contrast, provides no guidance in determining whether the offenses were committed on a “single occasion.”
Jones concluded that, while the phrases “separate occasion” (§ 667.6) and “single occasion” (§ 667.61) are similar, “they are not identical.” (Jones, supra, 25 Cal.4th at p. 105.) Consequently, the court held that “for the purposes of Penal Code section 667.61, subdivision (g), sex offenses occurred on a ‘single occasion’ if they were committed in close temporal and spatial proximity.” (Id. at p. 107.) The court concluded that “the rule we adopt should result in a single life sentence, rather than three consecutive life sentences, for a sequence of sexual assaults by defendant against one victim that occurred during an uninterrupted time frame and in a single location.” (Ibid., last italics added.)
Based on the jury’s question, the court’s response thereto, and the generic verdict form used herein, defendant asserts that the evidence supports the conclusion that the offenses here occurred in close temporal proximity, because by his calculation, the two offenses took place within seconds of each other whether it was the bench incident or the pool incident wherein a physical struggle ensued. However, defendant’s reliance on Jones is misplaced. The record here does not show that the jury convicted defendant of both counts 1 and 2 based upon acts that rose during a single occasion. Moreover, Jones is concerned with and limits only the number of life sentences imposed under section 667.61.
Section 667.61, or the one strike law (People v. Stewart (2004) 119 Cal.App.4th 163, 169), provides that a person convicted of forcible oral copulation under specified circumstances “shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 25 years....” (Former § 667.61, subds. (a), (c)(6).) For example, the specified circumstances include forcible oral copulation during, among others, the burglary of a building closed to the public, while personally using a firearm. (§ 667.61, subds. (e)(2), (e)(4).)
Former Section 667.61 further provides that the 25-year-to-life term “shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion.” The statute does not further define “single occasion,” nor does it give criteria for determining whether multiple counts were committed on a single occasion.
Once a court has determined under former section 667.61, subdivision (g) that separate terms may be imposed, it must then determine whether the terms should be consecutive or concurrent under section 667.6. As relevant here, that section provides that a person who is found guilty of more than one count of forcible oral copulation shall serve a “full, separate, and consecutive term” for each violation “if the crimes involve separate victims or involve the same victim on separate occasions.” (§ 667.6, subd. (d), italics added.)
Section 667.6, subdivision (d) goes on to state the criteria for determining whether crimes were committed on separate occasions: “In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall 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. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions.”
Defendant contends the court’s comments show that it erroneously equated the standard for imposing separate terms under former section 667.61, subdivision (g) — the “single occasion” standard — with the standard for imposing consecutive terms under section 667.6, subdivision (d) — the “separate occasions” standard, in violation of Jones. We do not interpret the court’s comments as defendant does. While the court’s reasoning may appear flawed, the court impliedly found defendant had time to reflect between the acts of touching, presumably making a finding in connection with its decision to impose consecutive terms under section 667.6, subdivision (d). The court’s finding here directly addressed the factors the Jones court held were to be considered under former section 667.61, subdivision (g) — whether the crimes occurred “during an uninterrupted time frame and in a single location.” (Jones, supra, 25 Cal.4th at p. 107.)
As explained above, the court’s findings were fully supported by the evidence. Count 1 alleged defendant committed a lewd act with force upon Jane 1 between August 2004 and August 2005 (§ 288, subd. (b)(1)). Count 2 alleged defendant committed a nonforcible lewd act upon Jane 1 between August 2004 and August 2005 (§ 288, subd. (a)), as a “further and separate cause of action, being a different offense from but connected in its commission with the charge set forth in Count 1 hereof.” Jane 1 testified at trial about the numerous instances in which defendant touched her at defendant’s home and at her home in Las Vegas when defendant visited beginning in August 2004. Jane 1 claimed that defendant touched her vagina while she slept in Jane 3’s room, while she was sitting on a bench outside defendant’s home, while she swam in defendant’s pool, and while she slept on the living room couch. These acts occurred during at least a two week period, while Jane 1 visited defendant during August 2005 or while defendant visited Jane 1 in Las Vegas.
These facts readily distinguish this case from Jones. In Jones, as far as the opinion indicates, the sexual assaults occurred seriatim, without any appreciable break in time between them. Neither the defendant nor the victim left the car during the one and one-half hours the sexual activity consumed. There was no conduct that was unrelated to the sexual activity between the assaults, or even a break during the assaults in Jones. Hence, the offenses in Jones occurred within an “uninterrupted time frame and in a single location” and therefore were committed on a “single occasion.” (Jones, supra, 25 Cal.4th at p. 107.)
The post-Jones Court of Appeal decisions finding a single occasion are distinguishable from this case on the same basis. In People v. Stewart, supra, 119 Cal.App.4th 163, also relied upon by defendant, the defendant told the minor victim to disrobe and lie down and began rubbing lotion on her. Later, he licked her vagina for two or three minutes. (Id. at p. 167.) He was convicted of one count of aggravated sexual assault, three counts of lewd and lascivious conduct, and one count of aggravated lewd and lascivious conduct. (Id. at p. 166.) The court held, under Jones, that the three offenses occurred on a “single occasion.” (Stewart, at p. 174.) Unlike this case, there was no indication in Stewart that there was any time lapse between the defendant’s sexual acts or that he or the victim ever went to a different location between the acts.
We reverse the trial court’s finding that the offenses occurred on separate occasions “only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior.” (People v. Garza (2003) 107 Cal.App.4th 1081, 1092.) Applying this standard, under the circumstances of this case, we conclude a reasonable trier of fact could have decided that the forcible lewd act upon Jane 1 (count 1) and nonforcible lewd action upon Jane 1 (count 2) occurred on separate occasions. Accordingly, we conclude the court properly imposed separate terms on counts 1 and 2.
III
DISPOSITION
Sentence on count 6 is reversed, and the matter is remanded for the court to exercise its discretion to impose either a consecutive or a concurrent indeterminate term for that count. In all other respects, the judgment is affirmed.
We concur: RAMIREZ P.J., McKINSTER J.