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People v. Gonzalez

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Jan 29, 2020
B295976 (Cal. Ct. App. Jan. 29, 2020)

Opinion

B295976

01-29-2020

THE PEOPLE, Plaintiff and Respondent, v. CESAR AUGUSTO ESCOBAR GONZALEZ, Defendant and Appellant.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters and Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Pamela C. Hamanaka, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA070168) APPEAL from a judgment of the Superior Court of Los Angeles County. Kathleen Blanchard, Judge. Affirmed. Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters and Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Pamela C. Hamanaka, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Cesar Augusto Escobar Gonzalez (defendant) appeals from the judgment entered upon his conviction of 10 counts of sex crimes against minors. He challenges only the "One Strike" sentence imposed as to count 4, contending that the trial court's imposition of two life sentences for offenses against the same victim on multiple occasions was not authorized by the One Strike statute, Penal Code section 667.61. As we find no merit to defendant's contention, we affirm the judgment.

All further statutory references are to the Penal Code, unless otherwise indicated.

BACKGROUND

In a 10-count information, defendant was charged in count 1 with a lewd act upon N.I., a child under the age of 14 years, in violation of section 288, subdivision (a). Defendant was charged in counts 2, 5, and 8 with oral copulation or sexual penetration of A.J., a child 10 years old or younger, in violation of section 288.7, subdivision (b), and in counts 3, 4, 6, 7, 9, and 10, with lewd acts upon A.J., a child under the age of 14 years, in violation of section 288, subdivision (a). Regarding counts 1, 3, 4, 6, 7, 9 and 10, the information alleged the special circumstance that defendant committed the offenses against more than one victim, within the meaning of section 667.61, subdivisions (b) and (e).

A jury convicted defendant as charged, and found true the multiple victim allegations as to counts 1, 3, 4, 6, 7, 9 and 10. On February 1, 2019, the trial court sentenced defendant to consecutive terms of 25 years to life on each of counts 1, 3, and 4. The court imposed concurrent terms of 15 years to life as to counts 2, 5, and 8; and concurrent terms of 25 years to life as to each of counts 6, 7, 9 and 10. Presentence custody credit was calculated as 780 actual days of credit, plus 117 days of conduct credit, for a total of 897 days. The trial court imposed various fines, fees, and a surcharge. Defendant filed a timely notice of appeal from the judgment.

Relevant prosecution evidence

N.I. was 10 years old at the time of the 2018 trial. In September 2016, there had been a birthday party for N.I.'s father at their home. During the party N.I. walked down the hall of her home and encountered defendant, who took her into the dark bathroom. Defendant closed the door, prevented N.I. from opening it, put his hand on her buttocks under her shorts, and pushed her toward him. He pulled on her underwear and tried to get his hand into them as he attempted to distract her with comments about color and how the room looked. A friend of the family opened the door to use the bathroom, but could not open it all the way as it was blocked. The lights were off and the friend saw only N.I., so closed the door thinking she was in there with other little girls. About 30 seconds after the friend closed the door, N.I. fled the bathroom and reported the incident to her mother.

Defendant, who was a long-time friend of A.J.'s father, lived in A.J.'s family home from early 2012 until March or April 2013. A.J. was 15 years old at the time of trial. She testified that she was nine years old and in the fourth grade when defendant moved into her family's home. At that time she shared a bedroom with her younger brother, though each sibling slept in a separate single bed. At some point defendant began entering her bedroom at night when the family was asleep. The first time he came in, she was asleep, wearing her Disney princess dress pajamas. Defendant pulled her underwear down to her ankles, touched her chest, and inserted his fingers into her vagina. Defendant told her not to tell her parents. A.J.'s brother did not wake up.

After that first incident, defendant came to her room two or three times per week, and stayed about 15 to 20 minutes. He would insert his fingers into her vagina and a few times, he told her to touch his penis. Sometimes he would lick her vagina. This routine continued for more than three months, but less than six months.

DISCUSSION

Defendant contends that the consecutive life sentence as to count 4 must be reversed because, "one cannot be a 'multiple victim' to oneself." He argues that the alternate penalty scheme in section 667.61, mandating life sentences when the defendant is convicted of specified sex offenses against multiple victims, does not authorize more than one life sentence for offenses against same victim on multiple occasions, as imposed here for the offenses committed against A.J. as alleged in counts 3 and 4.

Defendant acknowledges that every appellate court considering the issue has rejected such a contention (see, e.g., People v. Morales (2018) 29 Cal.App.5th 471, 482-484; People v. Andrade (2015) 238 Cal.App.4th 1274, 1305-1306; People v. Valdez (2011) 193 Cal.App.4th 1515, 1522 (Valdez); People v. Stewart (2004) 119 Cal.App.4th 163, 171-172; People v. Jones (1997) 58 Cal.App.4th 693, 719), and he has not cited one published opinion holding the opposite view. Instead defendant asserts that Valdez was wrongly decided, and points out that we are not bound by the decisions of other courts of appeal. We do not agree that these authorities were wrongly decided, and join with the reasoning of the other courts in rejecting defendant's argument.

As relevant here, the One Strike law provides: "Any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e), upon a victim who is a child under 14 years of age, shall be punished by imprisonment in the state prison for 25 years to life. (§ 667.61, subd. (j)(2).) Subdivision (c)(4) specifies a lewd or lascivious act upon a child in violation of section 288, subdivision (b). The relevant circumstance specified in subdivision (e) is found in subparagraph (4), as follows: "The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim." (§ 667.61. subd. (e)(4).)

Defendant repeatedly refers to section 667.61, subdivision (e)(5) as the multiple victims provision. At the time defendant committed the offenses (and now), subdivision (e)(5) read: "The defendant engaged in the tying or binding of the victim or another person in the commission of the present offense." (§ 667.61, subd. (e)(5).) Subdivision (e)(4) was and is the multiple victims provision. (See Stats. 2011, ch. 361, § 5, eff. Sept. 29, 2011.) We assume that these references to section 667.61, subdivision (e)(5) are typographical errors as defendant correctly refers to subdivision (e)(4) in other parts of his argument.

Defendant explains his argument as follows: "Where the only One Strike allegation pled and proved pursuant to section 667.61 is the 'multiple victim' provision of subdivision (e)(4), imposition of multiple 25-to-life terms for each offense committed against the same victim in the absence of other enumerated qualifying One Strike circumstances should be foreclosed pursuant to the provisions of subdivision (f), as well as the statute as a whole. Such a construction serves to implement the Legislature's intent to punish predatory behavior while avoiding an unreasonable application of the multiple-victim provision to each and every qualifying offense committed against the same victim. Again, one cannot be a multiple victim to oneself."

Section 667.61, subdivision (f) provides in relevant part: "If only the minimum number of circumstances specified in subdivision . . . (e) . . . have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision . . . (b) [or] (j) . . . whichever is greater, rather than being used to impose the punishment authorized under any other provision of law, unless another provision of law provides for a greater penalty . . . ." Defendant emphasizes the second paragraph of subdivision (f), which reads: "However, if any additional circumstance or circumstances specified in subdivision (d) or (e) have been pled and proved, the minimum number of circumstances shall be used as the basis for imposing the term provided in subdivision (a), (j), or (l) and any other additional circumstance or circumstances shall be used to impose any punishment or enhancement authorized under any other provision of law."

Defendant's interpretation of subdivision (f) is untenable. Subdivision (f) does not foreclose two life sentences relating to one victim pursuant to the multiple victim allegation. Instead it provides that if only one circumstance that could be used either to trigger a heightened One Strike sentence for a crime or to trigger some other non-One Strike enhancement is alleged and proven, the sentencing court must use that circumstance in whichever manner will result in the longer sentence. Subdivision (f) further provides that if more than one circumstance that could be used to trigger a heightened One Strike sentence for a crime is alleged and proven, the sentencing court must use the minimum number of circumstances necessary to impose the highest One Strike sentence and use the remaining circumstances to impose additional punishment under any other applicable laws. (§ 667.61, subd. (f).) Like the 1998 version of subdivision (f) at issue in Valdez, supra, 193 Cal.App.4th 1515, "[n]othing in that provision even hints at an intent to limit imposition of [a] one strike life term, based on the multiple-victim circumstance. Rather, it evinces the intent to ensure the greatest possible punishment under that sentencing scheme." (Id. at p. 1523.) The current version of subdivision (f) likewise gives no hint of an intent to limit imposition of a one strike life term based on the multiple-victim circumstance.

Defendant's argument is not entirely clear, but he seems to suggest that a prior version of subdivision (g) of section 667.61 and caselaw interpreting it somehow supports his interpretation that the subdivision limited the imposition of a life term to only "once for any offense or offenses committed against a single victim during a single occasion," or once for each victim for offenses against "multiple victims during a single occasion." (See Stats. 1997, ch. 817, § 6; Stats. 1994 (1st Ex. Sess.), ch. 14, § 1.) That version of section 667.61, subdivision (g) was changed in 2006, long before defendant committed the subject crimes. (Stats. 2006, ch. 337, § 33.) However, even if the prior subdivision (g) still existed, it would not support defendant's assertion that it somehow prohibited more than one life term for offenses involving multiple victims on multiple occasions. (See People v. Jones (1997) 58 Cal.App.4th 693, 719 ["This is a tortured and implausible reading of the statute"].)

Section 667.61, subdivision (g) currently provides: "Notwithstanding Section 1385 or any other provision of law, the court shall not strike any allegation, admission, or finding of any of the circumstances specified in subdivision (d) or (e) for any person who is subject to punishment under this section." --------

Finally, defendant invokes the rule of lenity, which provides that doubts as to the meaning of a statute must be resolved in a criminal defendant's favor. However, "'[t]he rule [of lenity] applies only if the court can do no more than guess what the legislative body intended; there must be an egregious ambiguity and uncertainty to justify invoking the rule.' [Citation.]" (People v. Avery (2002) 27 Cal.4th 49, 58.) As we agree with our sister courts of appeal that the statute is clear and not susceptible of the meaning advocated by defendant, we have no occasion to apply the rule of lenity.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

/s/_________, J.

CHAVEZ We concur: /s/_________, P. J.
LUI /s/_________, J.
HOFFSTADT


Summaries of

People v. Gonzalez

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Jan 29, 2020
B295976 (Cal. Ct. App. Jan. 29, 2020)
Case details for

People v. Gonzalez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CESAR AUGUSTO ESCOBAR GONZALEZ…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

Date published: Jan 29, 2020

Citations

B295976 (Cal. Ct. App. Jan. 29, 2020)