Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA0541119, Antonio Barreto Jr., Judge.
Robert C. Campbell III, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz and Roy C. Preminger, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
Edward W. Dingman appeals his convictions and sentences on multiple counts of sexual abuse involving his minor daughter K. and his now adult daughter M. Appellant claims the trial court erred in failing to: (1) dismiss all charges involving daughter K. under Penal Code section 1385 after the jury in the first trial was unable to reach verdicts on the counts involving K.; (2) sever the counts involving daughter K. from the charges involving daughter M.; and (3) erred in sentencing him under the “One Strike Law.” He further contends that cumulative error requires reversal of his convictions. Only appellant’s claim concerning his sentence has merit. As we shall explain, the court did not abuse its discretion when it refused to dismiss under section 1385; a review of the record indicates that at the section 1385 hearing the court engaged in the appropriate consideration of the evidence presented during the first trial, the evidence the prosecution sought to introduce in a retrial, and the charges. In addition, appellant has not demonstrated reversible error on his severance claim—the evidence on both the charges relating to the crimes against K. and M. was cross-admissible, equally inflammatory and both cases were of equal strength. Furthermore, the joint trial on these charges was not fundamentally unfair, nor did it run afoul of the principles announce in Kellett v. Superior Court (1966) 63 Cal.2d 822. Accordingly, we affirm the convictions, and remand only for resentencing.
Victim references in the body of this opinion are identified through the use of initials in keeping with the court’s protective nondisclosure policy concerning minors and victims of sex crimes.
All statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
Appellant has four children, daughter M. (born in 1981) from his first marriage and from his second marriage—a son S. (born in 1989), daughter K. (born in 1991), and daughter S. (born in 1993). M. lived with appellant and his second wife from the age of three until she was approximately 15 years old.
According to M., from the time she was very young appellant inappropriately touched and rubbed her breasts and genitals when appellant bathed her. When she was old enough to ask him to stop, appellant told her that he owned her until she was 18 and threatened to kill her mother, grandparents and younger siblings if she told anyone. M. was afraid of her father because he screamed and yelled, threw things and sometimes struck family members. Appellant continued to touch M. inappropriately at least once a week until she was 11 years old. Just before she turned 11, appellant began having sexual intercourse with her in the family home while her stepmother was out of the house. She asked him to stop, but he ignored her. M. stated that her father had sexual intercourse with her every week until she was about 13 years old when she had to have back surgery to correct the effects of scoliosis. She said that the last time he touched her in a sexual way was when she was about 14.
Appellant’s son S. told the jury that one time when he was about 5 years old he walked into M.’s room unannounced and saw appellant and M. having intercourse. It looked to son S. like M. was being hurt by his father, and the boy did not understand what was happening. Son S. never reported what he had witnessed because he was frightened and wanted to protect his father.
When M. was about 14 or 15 years old she moved out of the house and went to live with her mother. At the time, appellant promised he would not do to her younger sister K. and sister S. what he had done to her.
According to daughter K., appellant began touching her inappropriately on a regular basis when she was about 3 years old. He told her that if she disclosed what he did to her he would kill her mother, siblings, grandparents and all of her friends. She was afraid of her father because of the way he spoke to and treated the family members. Appellant’s inappropriate fondling and touching of her genitals continued, in private in his bedroom until she was about 10.
At some point K. told her best friend about what appellant had done to her, but made her friend promise not to tell anyone.
Appellant separated from his second wife in 2002 and he moved out of the family home and lived in a trailer at the back of his flower shop in Venice. K. and her brother and younger sister stayed with their mother but continued to visit appellant on alternate weekends. Shortly after her parents separated and K. was about 10 years old, appellant started having sexual intercourse with K. when she came to stay with him in the trailer. K. stated that her father would have intercourse with her at least twice during the weekends she and her siblings spent with him. On the occasions she refused, he would hit her or tell her mother that she had been acting up. K. estimated that her father had sexual intercourse with her more than 100 times during her weekend visits between February 2002 and August 2004. K. identified the type of condoms appellant used and described that he had ejaculated. The last time he forced her to have intercourse with him was in August 2004. She never told her mother about what appellant was doing because she was afraid he would hurt her and she did not want him to go to jail.
In August or July 2004, son S. walked into the trailer and saw appellant holding K. down and having sex with her. He was scared and nervous about what he had witnessed; he knew it was wrong, but did not know what to do about it. During this time, son S. was attending counseling sessions. After a group session son S. told the unlicensed counselor, Ms. Stettner, about what he had witnessed between his father and M. and his father and K. He asked the counselor to keep the disclosure confidential because he believed if she reported it, appellant would hurt or kill them. Ms. Stettner did not report what S. had told her, and she did not testify at the first trial.
Within a day or so of his disclosure to the counselor, son S. also told his sister M. what he had witnessed. Shortly thereafter M., son S., K. and their mother met with Ms. Stettner to discuss the situation and both M. and K. revealed to the counselor what appellant had done to them.
In September 2004, during a couple’s therapy session M. was having with her fiancé, she revealed to the therapist that she and her siblings had been sexually abused by their father. The couples’ counselor notified authorities.
A Department of Children and Family Services (DCFS) social worker interviewed son S. on September 17, 2004. S. told the social worker about witnessing the abuse of his sisters. The social worker also interviewed daughter K. who confirmed that appellant had been sexually abusing her for years, had intercourse with her after her parents had separated and confirmed that the last incident was in August of 2004. Daughter M. was also interviewed and she also related the abuse that she had suffered. Son, S., and daughters M. and K. gave substantially the same reports concerning the abuse when they were initially interviewed by an LAPD officer.
M. was less forthcoming with information during subsequent interviews with DCFS workers. When pressed for details about the sexual intercourse she stated that she “blanked it out” and had put it out of her mind.
A sexual assault examination was performed on K. in September 2004. During the exam, K. was reluctant to discuss all of the details of what had happened to her. According to the nurse practitioner who performed the examination, the trauma to K.’s hymen was consistent with the history K. had disclosed. The nurse’s report indicated that sexual abuse was “highly suspected.” K. was also examined by a doctor who is an expert in the field of child sexual assaults. In the doctor’s opinion, the examination results were consistent with a two and one-half year history of sexual abuse reported by K.
In December 2004, the district attorney filed a 39-count indictment against appellant alleging: (1) in counts 1-30 with a lewd and lascivious act upon his daughter K., a child under the age of 14, in violation of section 288, subdivision (a); (2) in counts 31 and 32 with committing a forcible lewd act upon K. in violation of section 288, subdivision (b)(1); (3) in count 33 criminal threats to K. in violation of section 422; (4) in count 34 with a lewd and lascivious act upon his daughter S., a child under the age of 14, in violation of section 288, subdivision (a); (5) counts 35-36 criminal threats to S. in violation of section 422; (6) count 37 misdemeanor cruelty to a child by inflicting injury to son S.; and (7) in counts 38 and 39 misdemeanor cruelty to animals in violation of section 597, subdivision (b).
During the first trial, in addition to the testimony of K., M. and son S., appellant testified in his own behalf. He denied all of the allegations of abuse and stated that he had never physically harmed any of his children. Appellant told the jury that he believed that M. had lied about the abuse because she was still mad at him for making her have back surgery when she was a teenager and because M. and his second wife had a plot to take over his flower shop. Appellant also told the jury that when his second marriage started to go poorly he became depressed and began taking anti-depressants. He said that the medicine killed his sexual drive and made him impotent, unable to get or maintain an erection. In his defense, appellant also put on evidence from his older brother, sister-in-law and the flower shop bookkeeper, who testified that none of the children acted as if they were unhappy, abused or that they were avoiding appellant. Appellant’s father also testified that when M. was a child, he had constant contact with her and that she never indicated that she was afraid of appellant or that anything inappropriate had occurred between them. Appellant’s father did testify, however, that after appellant was arrested M. approached him about renting the flower shop to her.
Appellant also presented his own medical expert, who testified that after observing the records and videotapes of the sexual assault exams of K., she was of the opinion that the results of the examinations were indeterminate, rather than abnormal and that she could not say to a medical certainty that K. had been sexually abused.
In rebuttal, the prosecution presented evidence from a board certified psychiatrist and psycho-pharmacologist, who testified that he was familiar with the antidepressants appellant had been taking. He testified that difficulty in getting and maintaining an erection was not a reported side-effect of these medications, and in fact that one of the medications appellant took was used to treat erectile dysfunction.
At the end of the first trial, the jury acquitted appellant on the counts (34-39) involving the family pets, son S. and daughter S. The jury was unable, however to reach verdicts on counts 1-33 involving daughter K. The court declared a mistrial on those counts.
After the conclusion of appellant's first trial, the trial court denied appellant's motion requesting that the court dismiss counts 1 through 33 of the information pursuant to section 1385. Thereafter, on motion of the prosecution, counts 3 through 32 of the information were dismissed.
The District Attorney subsequently filed an amended information which consolidated the charges in the instant case with charges that had been filed against appellant in another case in which daughter M. was the alleged victim. In this amended information, appellant was charged as follows: in counts 1, 2 and 40 with committing a lewd and lascivious act on the body of K., a child under the age of 14, in violation of section 288, subdivision (a); in count 33 with making criminal threats to K., in violation of section 422; in count 41 with continuous sexual abuse of K., a child under the age of 14, in violation of section 288.5, subdivision (a); in counts 42 and 43 with committing a lewd and lascivious act upon the body of M., a child under the age of 14, in violation of section 288, subdivision (a); in count 44 with continuous sexual abuse of M., a child under the age of 14, in violation of section 288.5, subdivision (a); and in count 45, with the misdemeanor of attempting to dissuade a witness, i.e., M., from giving testimony at a trial, in violation of section 136.1, subdivision (a)(2). It was further alleged as to Counts 42 and 44, pursuant to section 803, that the statute of limitations for the crimes charged therein had been extended. The amended information additionally alleged as to counts 1, 2, and 40 through 44 that the charges involved multiple victims within the meaning of section 667.61, subdivision (b).
In 2005 appellant was retried by a jury. During the course of appellant's second trial, counts 40 and 43 of the amended information were dismissed on the prosecution’s request.
The evidence presented during the first trial was again presented to the jury. In addition, the prosecution presented evidence from Ms. Stettner concerning her conversations with son S., and testimony from appellant’s nephew who told the jury that while appellant was in custody appellant called him from the jail and asked the nephew to convey a threat to M. that appellant would show a compromising photograph of her if she testified.
The jury found appellant guilty of committing a lewd and lascivious act on K. as charged in counts 1 and 2, guilty of making criminal threats to K. as charged in count 33, guilty of continuous sexual abuse of K. as charged in count 41, guilty of committing a lewd and lascivious act on M. as charged in count 42, guilty of continuous sexual abuse of M. as charged in count 44, and guilty of attempting to dissuade a witness from testifying as charged in count 45.
Probation was denied and appellant was sentenced to two consecutive terms of life in prison, with a minimum parole eligibility of 15 years on each term, plus a concurrent term of one year in county jail. Appellant was ordered to pay a restitution fine of $10,000 and a parole revocation fine of $10,000. The latter fine was stayed, said stay to become permanent upon appellant’s successful completion of parole. Appellant also was ordered to pay a mandatory habitual sex offender fee of $200. Appellant received credit for time spent in presentence custody.
Appellant appeals.
DISCUSSION
Appellant claims the trial court erred in failing to: (1) dismiss all charges involving daughter K. under section 1385 after the jury in the first trial was unable to reach verdicts on those counts; (2) sever the counts involving daughter K. from the charges involving daughter M.; and (3) erred in sentencing him under the “One Strike Law.” He further contends that cumulative error requires reversal of his convictions. We examine these claims below.
1. The Trial Court Did Not Err in Failing to Dismiss Under Section 1385.
The jury in the first trial deadlocked on counts 1 through 33 alleged in the original complaint. Thereafter, appellant requested the trial court to exercise its discretion to dismiss those charges in the interests of justice. The court denied the request.
Appellant filed a motion under section 1385 and the prosecutor filed an opposition. After acknowledging that only the prosecutor (or the court sua sponte) could move to dismiss charges under section 1385, the court indicated that it would consider appellant’s request as an invitation for the court to exercise its discretion to dismiss the charges.
Pursuant to section 1385, subdivision (a) “the judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. . . .” A trial court’s decision not to dismiss allegations or charges under section 1385 is reviewed on appeal for abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at p. 376.) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the [the court’s decision] to show that the . . . decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate . . . objectives, and its discretionary determination . . . will not be set aside on review.”’ [Citation.] Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at pp. 376-377, quoting People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
The defendant has the right to appeal a trial court’s decision not to dismiss an allegation under section 1385 even though the defendant cannot make a motion to dismiss in the trial court. (People v. Carmony (2004) 33 Cal.4th 367, 376.)
“[A]ppellate courts have shown considerable opposition to the granting of dismissals under section 1385 in instances where the People are thereby prevented from prosecuting defendants for offenses of which there is probable cause to believe they are guilty as charged.” (People v. Orin (1975) 13 Cal.3d 937, 946-947.) Indeed the California Supreme Court has recognized that “society . . . has a legitimate interest in the ‘fair prosecution of crimes properly alleged’ [citation] and ‘a dismissal which arbitrarily cuts those rights without a showing of detriment to the defendant is an abuse of discretion.’ [Citations].” (Ibid.)
In People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 505, in upholding a dismissal of an information after a guilty verdict, the Supreme Court concluded: “A determination whether to dismiss in the interests of justice after a verdict involves a balancing of many factors, including the weighing of the evidence indicative of guilt or innocence, the nature of the crime involved, the fact that the defendant has or has not been incarcerated in prison awaiting trial and the length of such incarceration, the possible harassment and burdens imposed upon the defendant by a retrial, and the likelihood, if any, that additional evidence will be presented upon a retrial.” In deciding whether to grant a section 1385 motion after a declaration of a mistrial based on the deadlock of a jury, the judge may also consider how many jurors voted for conviction and how many voted for acquittal. (See People v. Borousk, Jr. (1972) 24 Cal.App.3d 147, 159, fn. 18.)
Here appellant claims the trial court abused its discretion in refusing to dismiss all of the charges involving daughter K. after the first trial. In appellant’s view, in considering the request for dismissal the trial court focused only on the testimony of K. and supplanted its view of her credibility and the strength of her testimony for that of the jury. Appellant argues the jury in the first trial obviously rejected K.’s testimony and found her incredible based on the jury’s vote 7-4 in favor of acquittal. Appellant also points out that the court’s decision was arbitrary and irrational because two days after the court ruled against dismissal of the charges, the prosecutor successfully dismissed all but a few of the counts concerning K.
In our view the court did not err. In opposing the request to dismiss the charges, the prosecutor argued that the weight of the evidence in the first trial, specifically the testimony of K., the testimony of M. concerning her sexual abuse by appellant, the evidence provided by K.’s friend, the police and nurses demonstrating the consistency of K.’s claims, and the expert testimony concerning K.’s sexual assault examination, indicated guilt. The prosecution also described additional evidence it would seek to present at a retrial, including: (1) a DCFS report concerning a battery and assault allegedly committed by appellant upon daughter M. to be used to undermine appellant’s credibility and contention that he never used physical force against his children; (2) testimony of son S.’s therapist to bolster S.’s testimony that he had disclosed incidents of sexual abuse he had witnessed to a third party; (3) the testimony of the DCFS worker and an LAPD officer to whom K. and M. had first reported the abuse to show a consistency in the victims’ statements; (4) the testimony of an expert in post-traumatic stress disorder to explain to the jury M.’s extreme emotional reactions during her testimony concerning the abuse she suffered; and (5) new evidence from the nephew of appellant who after the first trial disclosed to authorities that appellant had called him from jail and asked that he convey a threat to M. if she testified against him during the trial.
Appellant apparently told his nephew to tell M. that appellant had a sexually compromising photograph of her that appellant intended to bring out during the trial if she testified against him.
At the hearing on the section 1385 request the court stated that it had read and considered all of the briefing on the issue. The court and the parties also discussed in detail the various pieces of additional and/or new evidence the prosecutor had raised in its papers. The prosecutor indicated that much of the additional evidence, especially the testimony from S.’s therapist, the DCFS and LAPD officers, would clear up the confusion the jury expressed about when and how the claims of abuse were disclosed to authorities.
Thereafter, the court commented at some length about the various aspects of the case and specific pieces of evidence. The court stated its belief that the case, as originally charged, had been “over-filed” noting that misdemeanor allegations involving the family pets and the son were essentially “deadwood.” In the court’s view the most compelling witness in the first trial was daughter K., however, the court believed her testimony ended up being overshadowed, observing that the trial ended up being more about daughter M. and her relationship to her father. The court noted that M.’s intense emotional reaction during her testimony was confusing to the jury and ultimately undermined the credibility of all of the charges. In addition, the court observed that testimony from the appropriate LAPD officer, and son S.’s therapist concerning the initial reports of abuse would have been helpful to the jury. The court further discussed the impact of new testimony from appellant’s nephew and the importance of reducing the number of charges at any retrial. In fact, the court indicated that the claims and evidence in the case would have better lent themselves to a charge of continuous sexual abuse under section 288.5 rather than individual charges for each alleged incident. At one point the court in summarizing the matter stated: “When all these things are said and done we all come back to one thing, at least I do, and that is, I’m sitting her listening to [K.] testify. I listened to that little girl testify and I just found her to be a very compelling witness. She’s just a very compelling young lady, and I cannot find it would be in the interests of justice to say that another trial should not occur.”
The court also noted that while a number of jurors voted to acquit, almost half of the jury did not have reasonable doubt about K.’s testimony.
We do not agree with appellant that the court’s remarks about K.’s testimony indicate the court ignored other matters, relevant to the consideration whether to dismiss under section 1385. On the contrary, when read in the full context of the section 1385 hearing, it is clear the court’s decision was influenced not only by the testimony and credibility of K. but also other relevant matters including the strength of the other evidence from the first trial, new evidence and witnesses, the effect of reducing the number of charges, and the jury’s reaction to the evidence at the first trial and potential reaction at retrial. The court’s comments reflect careful consideration rather than whimsical or arbitrary thinking.
Moreover, the subsequent dismissal of charges and re-filing of others including charges under section 288.5 demonstrates the prosecutor took to heart the court’s view that the matter had been over-filed and/or was as originally pled confusing to the jury. The prosecutor’s action in amending and reducing the number of charges, does not however, undermine the court’s refusal to dismiss all of the charges against appellant at the section 1385 hearing. In view of all of the foregoing, we do not find that the court abused its discretion in ruling on this issue.
2. The Trial Court Did Not Err in Failing To Sever The Counts Involving Daughter K. From The Charges Involving Daughter M.
Prior to the second trial the prosecutor filed a motion to consolidate the charges against appellant involving daughter K. and those involving daughter M. In arguing for joinder the prosecutor asserted that consolidation was appropriate under section 954 because the offenses were connected in their commission and were of the same class of crime. The prosecutor maintained the facts and witnesses in both cases were intertwined, noting son S. witnessed appellant’s sexual abuse of both victims, and daughter M.’s testimony concerning the abuse she suffered was admitted in the first trial under section 1108. The prosecutor pointed out appellant used the same modus operandi in abusing his daughters—“groomed them from an early age, and then began sexual intercourse when they reached age ten” and that appellant threatened both girls in the same manner to dissuade them from disclosing the abuse. Below, appellant did not object to consolidation (nor at any point did he move to sever the charges) and the court ordered the charges joined for trial.
Before this court appellant contends that the trial court abused its discretion by failing to sever the charges involving daughter K. from those concerning daughter M.
Preliminarily, the Attorney General responds that this matter is waived as appellant did not oppose the motion to consolidate or move to sever. We agree. It is settled that where a defendant fails to move for severance, the issue is waived on appeal. (People v. Maury (2003)30 Cal.4th 342, 392 [§ 954 imposes no sua sponte duty to sever on trial courts, and the failure to make the motion waives the issue on appeal]; People v. Pinholster (1992) 1 Cal.4th 865, 931 [waiver].) We note that in finding waiver, any claim appellant raises of a denial of federal due process based on the trial court’s failure to sever sua sponte is also waived by his failure to raise the issue in the trial court. (People v. Maury, supra, 30 Cal.4th at p. 392.)
To avoid the forfeiture, appellant posits two arguments. First he argues that even where a waiver is found, the appellate courts may reverse a conviction when “because of consolidation, ‘gross unfairness’ had deprived the defendant of a fair trial.” (People v. Ervin (2000) 22 Cal.4th 48, 68-69, quoting People v. Pinholster, supra, 1 Cal.4th at p. 933.) Second, belatedly in his reply brief he argues ineffective trial counsel. As we explain neither of these arguments is meritorious.
Turning first to the claim appellant’s counsel was ineffective for failing to object to consolidation or for failing to move to sever, general legal principles governing consolidation and severance guide us.
“‘The law prefers consolidation of charges.” (People v. Ochoa (1998) 19 Cal.4th 353, 409.) Section 954 contains the statutory rules governing “joinder” and “severance” of criminal counts. Section 954 provides, in pertinent part: “An accusatory pleading may charge two or more different offenses connected together in their commission, or . . . two or more different offenses of the same class of crimes or offenses, under separate counts, . . . [provided,] that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately.” (§ 954; italics added.)
Here, the crimes were all of the same class -- they were similar sexual offenses. Where, as here, the threshold statutory requirements for joinder are met, the defendant may nonetheless be entitled to severance of charges in the interests of justice. (§ 954; People v. Sapp (2004) 31 Cal.4th 240, 257-258; People v. Williams (1984) 36 Cal.3d 441, 447 [“The determination that offenses are ‘joinable’ under section 954 is only the first stage of the analysis because section 954 explicitly gives the trial court discretion to sever offenses or counts in the ‘interests of justice and for good cause shown’ . . . . Refusal of severance may be prejudicial if discretion is abused,” superseded as recognized in Price v. Superior Court (1981) 25 Cal.4th 1046.) Accordingly, defendant can only predicate error in the denial of severance on a clear showing of potential prejudice. (People v. Stanely (2006) 39 Cal.4th 913, 934; People v. Manriquez (2005) 37 Cal.4th 547, 574.)
Determination of the issue is a “highly individualized exercise, necessarily dependent upon the particular circumstances of each individual case.” (People v. Williams, supra, 36 Cal.3d at p. 452.) This court examines a pretrial ruling on consolidation on the record before the court at the time of the motion. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1244.)
Several criteria have emerged to assist the courts in evaluating whether refusal to sever the charges constitutes error. These “severance” criteria include whether: (1) evidence on the crimes to be jointly tried would be cross-admissible in separate trials; (2) certain charges or evidence are unusually likely to inflame the jury against the defendant; (3) a “weak” case has been joined with a “strong” case or with another “weak” case so the “spillover” effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. (People v. Kraft (2001) 24 Cal.4th 1003, 1030.)
There is no question that the evidence presented on the charges was cross-admissible. Indeed, much of the evidence supporting the charges involving daughter M. was admitted under Evidence Code section 1108 in the first trial. In addition, neither the charges nor the evidence presented concerning daughter M. was any more inflammatory or prejudicial than that involving K.—both were victims of similar sexual abuse by their father and both were threatened by him at various times. As for coupling a weak case with a strong case or two weak cases, in our view the evidence demonstrating appellant’s culpability for each charge was substantially equal and of sufficient strength to support the verdicts. Son S. was a witness to abuse by appellant upon both his sisters; both cases relied upon the victims’ testimony about the abuse and evidence of victims’ statements to the police and others in which they disclosed the sexual abuse. Appellant’s defenses—his purported physical inability to have sexual intercourse and a claim that the victims had motives to fabricate the claims—was identical on each set of charges. As such there was no substantial disparity in the strength of the evidence between the two cases to indicate a “spillover” had occurred. Appellant has not carried his burden to prove a clear showing of potential prejudice. As appellant was unlikely to have prevailed on a motion to sever or in opposing consolidation, counsel’s failure to seek the severance was a reasonable trial tactic. (People v. Stitely (2005) 35 Cal.4th 514, 531-533; People v. Maury, supra, 30 Cal.4th at pp. 392-394; People v. Jenkins (2000) 22 Cal.4th 900, 947-948.)
Turning then to appellant’s other response to the argument that he forfeited his claims concerning severance and consolidation, appellant asserts even if the trial court’s ruling is correct on severance/consolidation at the time when made, this court will reverse the judgment if the defendant shows consolidation actually resulted in a “gross unfairness” amounting to a denial of due process under federal law. (See People v. Mendoza (2000) 24 Cal.4th 130, 162.) Our review of the record convinces us the failure to sever these charges did not result in gross unfairness. Indeed, the jury was told to consider each incident individually and to decide each charge separately and that appellant could be found guilty or not guilty of any or all of the crimes charged. There is no indication in the record that the jury at the second trial expressed any confusion about crimes or charges.
This circumstance serves to distinguish this situation from that in Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073, 1083-1084, cited by Dingman. Bean involved trial in which in two separate murder cases where tried together, the evidence as to each was not cross-admissible and there was a significant disparity in the evidence. (Id. at pp. 1084, 1087.) Moreover, during the trial the prosecutor repeatedly urged the jury to consider the two groups of charges in concert. The Ninth Circuit found the jury would not likely have compartmentalized the evidence as to each and thus the court found the defendant suffered a prejudicial violation of his constitutional rights. Here, however, we can fairly assume that because the jury was properly instructed as to the consideration of the sets of charges, the jury properly compartmentalized the evidence as to each. (Id. at p. 1085 [“[I]f properly instructed, [the court can assume] jury can compartmentalize the evidence rather than considering it cumulatively].”)
This conclusion does not end the inquiry into the matter, however. Appellant asserts one final argument with respect to consolidation of the cases. He argues that the charges involving daughter K. and those involving M. should not have been joined in the second trial because the prosecutor was aware of the alleged crimes against M. before the first trial and both sets of charges involved the “same course of conduct” and thus the charges should have been tried together, if at all, in the first trial. He argues that under Kellett v. Superior Court (1966) 63 Cal.2d 822, 827, the failure to unite these counts in the first trial bars subsequent prosecution of the offenses omitted from the first proceeding. As we shall explain, the Kellett bar does not apply in this case.
The Attorney General asserts appellant waived any claim of error under Kellett by failing to assert it below. In view of appellant’s ineffective assistance of counsel claim, we assess the merits.
In Kellett, the defendant was arrested for standing on a public sidewalk with a pistol in his hand. He was first charged with a misdemeanor possession of a firearm and later charged with a felony possession when it was discovered that he had previously been convicted of a felony. The defendant pleaded guilty to the misdemeanor and moved to dismiss the felony on the ground that it was barred by section 654. The Supreme Court held: “If only a single act or an indivisible course of criminal conduct is charged as the basis for a conviction, the defendant can be punished only once although he may have violated more than one statute. Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. [Citation.]” (Kellett, supra, 63 Cal.2d at pp. 824-825.) The Kellett court further explained that section 654’s preclusion of multiple prosecution is separate and distinct from its preclusion of multiple punishment and that double prosecution may be prohibited even when double punishment is permitted. (Id. at p. 825.) The court also observed that the Legislature, in a series of amendments to section 954, had expressed its intent that related offenses be joined in a single prosecution. (Id. at p. 826.)
Section 654 provides in pertinent part: “(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.” (Italics added.)
The Kellett court concluded: “When, as here, the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.” (Kellett, supra, 63 Cal.2d at p. 827.) “Thus, if an act or course of criminal conduct can be punished only once under section 654, either an acquittal or conviction and sentence under one penal statute will preclude subsequent prosecution in a separate proceeding under any other penal statute. [Citation.]” (Id. at p. 828.)
Turning to appellant’s argument on its merits, we reject it for two reasons. First, the charges involving daughter K. and daughter M. do not involve the “same course of conduct” as the phrase is used in Kellett. The “same course of conduct” language in Kellett is construed in the context of section 654’s definition of “course of conduct” which is far narrower than appellant posits. Under section 654, the same course of conduct is limited to conduct which is “indivisible” involving a series of actions motivated by the same intent and objective. (See Neal v. State of California (1960) 55 Cal.2d 11, 21.) In appellant’s view the Kellett bar should apply because both sets of charges involved molestation of related victims in the same manner. However the fact that appellant sexually abused his daughters in a similar way does not demonstrate he engaged in the “same course of conduct” under Kellett. While appellant’s offenses show a pattern of sexual abuse, that pattern does not show the same “intent and objective” under section 654 or Kellett.
The cases applying Kellett delineate the parameters of the course of conduct language. The existence of a single course of conduct as required by Kellett has been found where two prosecutions involved possession of the same gun (Kellett, supra), thefts were committed at the same time (Sanders v. Superior Court (1999) 76 Cal.App.4th 609), the defendant committed and aided and abetted the same robbery (In re Benny G. (1972) 24 Cal.App.3d 371, 374-375), and the defendant drove under the influence in a vehicle that he was charged with having stolen (People v. Flint (1975) 51 Cal.App.3d 333, 335-336). In contrast, Kellett's bar of multiple prosecution has been found not to apply to the kidnap-rapes where the first victim was driven from her residence to an isolated location and the defendant later returned to the residence and kidnapped the second victim, driving her to a different isolated location (People v. Ward (1973) 30 Cal.App.3d 130, 132-133), to separate cocaine transactions undertaken on separate days (People v. Cuevas (1996) 51 Cal.App.4th 620, 623-624, cited with approval in People v. Carpenter (1999) 21 Cal.4th 1016, 1038), and where the defendant was prosecuted for possessing a sawed-off shotgun that had been taken in a burglary and later prosecuted for the burglary itself (People v. Martin (1980) 111 Cal.App.3d 973, 977-978). In other words, as most succinctly stated in People v. Cuevas, supra, 51 Cal.App.4th at page 624: “ Kellett does not require, nor do the cases construing it, that offenses committed at different times and at different places must be prosecuted in a single proceeding.”
Here the offenses involving K. prosecuted in the first trial and those involving M. in the second case were committed upon different victims, at different times and in different places.
Appellant’s Kellett argument fails for an additional reason, namely that the charges involving K. in the first case did not result in convictions or acquittals on those charges. We reject appellant’s suggestion that the “conviction or acquittal” is irrelevant to the application of Kellett. He has failed to cite to any authority in which the Kellett bar has been applied in a similar context, namely, where the second trial involved charges upon which the first jury deadlocked and included wholly new charges. As discussed elsewhere the rule announced in Kellett emanates from section 654’s prohibition on multiple prosecutions, and nothing in Kellett would anticipate a departure from that limitation in the statute. As the Kellett court observed: “if any act or course of criminal conduct can be punished only once under section 654, either an acquittal or conviction and sentence under one penal statute will preclude subsequent prosecution in a separate proceeding under any other penal statute.” (Kellett, supra, 63 Cal.2d at p. 828.)
Accordingly, had appellant’s trial lawyer brought a motion to dismiss under Kellett, it would have been properly denied, and thus his counsel was not ineffective for failing to bring it.
In view of all of the foregoing, appellant has failed to demonstrate reversible error for the failure to sever the charges involving K. from those involving M. Nor has appellant demonstrated prejudice or gross unfairness actually resulted in denying him due process or a fair trial as to the joined counts.
3. Sentencing Error
Appellant contends the court erred in sentencing him under the “One Strike Law” (§ 667.61) for his conviction on count 42 in the amended information which alleged that he committed a lewd and lascivious act on M. in violation of section 288, subdivision (a). He claims his sentence violated the ex post facto clauses of the United States and California Constitutions because the jury did not make a finding that he committed the crime after the date section 667.61 took effect. He is correct.
In his opening brief, appellant claimed his sentence on his conviction for continuous sexual abuse of M. alleged in count 44, also violated the ex post facto laws. However, in his reply brief he concedes that upon further review of the record the court did not sentence him on count 44 pursuant to the One Strike Law.
Section 667.61 (the “One Strike Law”) which became operative on November 30, 1994, provides for the indeterminate terms of life imprisonment for certain sex crimes, including a violation of section 288, subdivision (a). The sentences prescribed by section 667.61 exceed the determinate sentences previously available for violations of section 288. Here it appears appellant was sentenced on his conviction for count 42 under section 667.61; he received a term of life in prison, with a minimum parole eligibility of 15 years. In addition, as appellant also points out, there was no finding by the jury that the violation alleged in count 42 occurred after the effective date of section 667.61. In fact, the verdict indicates the offense occurred “on or about March 1, 1992.”
A court may not sentence a convicted defendant under section 667.61 for offenses committed before the effective date of the statute. As appellant contends, and the Attorney General properly concedes, such a sentence would violate the ex post facto clauses of the federal and state constitutions. (People v. Alvarez (2002) 100 Cal.App.4th 1170, 1178; People v. Riskin (2006) 143 Cal.App.4th 234, 244-245.) Here because the sentence on count 42 reflects the imposition of the One Strike Law to an offense which was not shown to have occurred after the operative date of section 667.61, appellant’s sentence on count 42 violates the ex post facto clauses of the United States and California Constitutions and cannot stand. Consequently, we must remand this matter to the trial court for resentencing on count 42 for the imposition of a term authorized by law prior to November 30, 1994. (See People v. Riskin, supra, 43 Cal.App.4th at p. 245.)
4. Cumulative Error
Appellant argues his convictions should be reversed based on the cumulative effect of the trial court’s failure to dismiss the counts concerning K. under section 1385 and failure to sever the counts involving K. from those concerning M. We do not agree. As the foregoing analysis demonstrates the trial court did not commit any reversible or prejudicial error with respect to either of these claims. Consequently, appellant has no basis upon which to assert cumulative error.
DISPOSITION
The sentence on the conviction for count 42 is vacated and matter is remanded for resentencing on count 42 in accord with the views expressed in this opinion. The judgment is affirmed in all other respects.
We concur: PERLUSS, P.J. ZELON, J.