Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super. Ct. No. RIF112076 Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Patricia L. Brisbois, 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, Gil Gonzalez and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
Following a jury trial, defendant Jose Juan Heraz was convicted of 12 counts of committing a lewd and lascivious act by use of force or fear upon a child under the age of 14. (Pen. Code, § 288, subd. (b)(1).) It was further found true that during the commission of the offenses, defendant engaged in substantial sexual conduct. (Pen. Code, § 1203.066, subd. (a)(8).) He was sentenced to 36 years in state prison. Defendant appeals, contending: (1) the trial court erred in admitting prior uncharged acts involving the same victim under Evidence Code section 1108; (2) there is insufficient evidence of force; (3) the prosecutor misstated the law during closing argument; (4) he received ineffective assistance of counsel; (5) the trial court abused its discretion by denying his request to transfer the case to the juvenile court for a fitness hearing prior to sentencing; and (6) the trial court committed sentencing error.
I. FACTS
Defendant is the brother of G.S.’s (victim) stepfather. Defendant was “like an uncle” to victim. When victim was seven years old, she was at defendant’s mother’s apartment when he first molested her. Victim was in a bedroom with her brothers and defendant when he kicked the brothers out and locked the door. Victim testified that defendant removed her shorts and underwear, turned her around, bent her over the bed, and “stuck his penis in... [her] butt.” She cried while defendant moaned. When defendant was finished, he told her to pull up her pants. He unlocked the door, and the brothers were allowed back in the room. Defendant was 13, 14 or 15 years old at the time.
Elsewhere, victim indicated that she was seven or eight years old when defendant first molested her.
Defendant was born in October 1981. Victim was born in 1988. Victim testified that defendant first molested her when she was seven years old. However, in her interview on February 18, 2003, she stated that she was either seven or eight years old.
When victim was eight years old, she lived in a house in Riverside (first house). She recalled a time when defendant pulled her into the bathroom, took off her pants and underwear, bent her over the sink and “sticked [sic] his penis in [her] butt again.” She cried and did not want defendant to do this to her. Defendant was moaning. Victim testified that on another occasion while she was still eight years old, the “same thing” happened in the bathroom and there was nothing different about those incidents. In fact, she testified that “it happened a lot” when she lived at the first house. Victim also testified that defendant molested her every time he came to that house, approximately once or twice a month.
When victim was nine or 10, she moved to another house in Riverside (second house). Defendant sodomized her there “quite a few times.” She testified that it hurt when he did this. Defendant then started to “make” her give him oral sex. She explained that one time, she was watching television with her little brother when defendant called her into a bedroom. Defendant was sitting on the bed with his zipper down. He pushed victim’s head onto his penis and moved her head up and down. She began to choke and tried to get up, but defendant would not let her. Instead, he held her head on his penis. Afterward, defendant got up and went into the bathroom.
Victim testified that each time defendant made her have oral sex, it was the same, and always in the bedroom of her brothers. He did this approximately four or five times a year. The first couple of times that victim had oral sex, defendant pushed her head down; however, she later “just [did] it” on her own “because [she] was used to it.” She explained that “95-99 percent of the time, [defendant] would push [her] head down.” Victim did not want defendant to do these things to her, nor did she want to do anything to him, but she did not feel like she could say “no.”
Victim testified that defendant molested her about once a month before his girlfriend moved in with him. When defendant molested victim, she was between the ages of eight and 12. Defendant stopped when victim turned 12. When victim turned 14, she told her mother and a counselor about the molestations. She explained that she had never told anyone before because she was “scared.” Although defendant never said anything threatening to her, victim was afraid of him because he was older.
An investigator with the Riverside County District Attorney’s Office interviewed victim on two separate occasions, once in November 2004, and another time in June 2006. Her statements in the interviews were consistent with her trial testimony. Likewise, her statements in an interview with the Riverside County Child Assessment Team (RCAT) on February 18, 2003, were consistent with her trial testimony.
On June 19, 2003, Riverside Police Detective Richard Wheeler interviewed defendant, who was then 21 years old. In that interview, defendant admitted fondling victim and rubbing his penis against her. He also admitted that victim gave him a “blowjob” and that he may have penetrated her “butt.” Defendant specifically recalled engaging in sexual conduct with victim at the first house. He recalled ejaculating into his hands on one incident after victim orally copulated him. He stated that he believed he was 14 or 15 when he last molested victim.
Several witnesses testified on defendant’s behalf. His ex-wife testified that she never noticed defendant acting inappropriately around children. Defendant’s brother testified that he never saw defendant do anything inappropriate with victim. Defendant’s girlfriend testified that victim never acted like she was afraid of defendant. Defendant’s sister testified that she never saw him act inappropriately with her three daughters or with victim. Defendant’s uncle testified that one time he scolded victim. Victim became upset with him and threatened to tell her mother that he had raped her. Victim later admitted she had lied.
II. ADMISSIBILITY OF PRIOR UNCHARGED ACTS UNDER
EVIDENCE CODE SECTION 1108Defendant challenges the admission of his prior uncharged acts under Evidence Code section 1108.
A. Background
Prior to trial, the prosecution made a motion in limine to admit defendant’s uncharged acts with victim when he was 13 or 14 years old and she was about seven years old. The motion sought admission of the evidence of these incidents under Evidence Code section 1108 as propensity evidence. At the hearing, the trial court inquired as to why these acts were not charged as Penal Code section 288, subdivision (b), violations. The prosecutor replied that (1) they were committed outside of Riverside County, and (2) it was unclear as to whether defendant was 13 or 14 years old at the time. Defense counsel expressed concern that the evidence was unduly prejudicial because the jury could become confused as to whether the conduct was actually charged but did not otherwise object to its admission. Instead, defense counsel requested the jury be admonished that the prior conduct was not part of the charged offenses.
The trial court agreed that confusion was a concern but determined that instructing the jury as to the limited purpose of the prior act evidence would “eliminate the possibility that they will be confused.” The court granted the prosecution’s motion, stating, “So in weighing the probative value of this evidence, I find the probative value substantially outweighs its prejudicial effect.” The jury was instructed pursuant to Judicial Council of California Criminal Jury Instructions, CALCRIM No. 1191, immediately after victim testified about defendant’s acts towards her when she was seven years old. The entire charge to the jury was also provided at the close of evidence.
B. Issue
Citing Penal Code section 26, defendant contends that when balancing the probative value pursuant to Evidence Code section 352, the trial court should have considered the fact that defendant’s “mental state or capacity to commit a crime in light of his age was inextricably intertwined with the admissibility of the prior sexual offense[s]....” Thus, defendant argues the trial court abused its discretion when it admitted the evidence without requiring prosecutor to prove by clear and convincing evidence, and the jury to find, that he understood the wrongfulness of his conduct in light of his age at the time he committed the uncharged acts. Defendant further argues that the error was compounded by the trial court’s “failure to consider the issue of [his] age and capacity” when it found the evidence admissible under Evidence Code section 352.
Penal Code section 26, in relevant part, provides: “All persons are capable of committing crimes except those belonging to the following classes: [¶] One—Children under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness.” (See also In re Gladys R. (1970) 1 Cal.3d 855, 864 [“[s]ection 26 embodies a venerable truth, which is no less true for its extreme age, that a young child cannot be held to the same standard of criminal responsibility as his more experienced elders”].) Penal Code section 26 “articulates a presumption that a minor under the age of 14 is incapable of committing a crime.” (In re Manuel L. (1994) 7 Cal.4th 229, 231, fn. omitted.) To rebut this presumption, the People must provide “‘clear proof’” that the minor knew the act’s wrongfulness at the time of commission. (Ibid.)
The People respond that the issue is waived by defense counsel’s failure to raise it at the trial level. (People v. Saunders (1993) 5 Cal.4th 580, 590; People v. Alvarez (1996) 14 Cal.4th 155, 186.) Anticipating that the People would challenge his claim of error based on his counsel’s failure to raise this objection at the trial level, defendant claims ineffective assistance of counsel.
C. Standard of Review
A claim of ineffective assistance of counsel based on a failure to object cannot succeed unless the defendant shows that the failure to object fell “below an objective standard of reasonableness” under “prevailing professional norms.” (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland).) Attorneys often choose not to object for reasons that have no bearing on their competence as counsel. (In re Seaton (2004) 34 Cal.4th 193, 200.) There is a presumption the challenged action was the product of a “‘sound trial strategy.’” (People v. Mesa (2006) 144 Cal.App.4th 1000, 1007-1008.)
Thus, failure to object “rarely constitutes constitutionally ineffective legal representation.” (People v. Boyette (2002) 29 Cal.4th 381, 424.) Where the record sheds no light on why counsel acted or failed to act in a manner challenged, a claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. (People v. Lopez (2008) 42 Cal.4th 960, 966; see also People v. Mendoza Tello (1997) 15 Cal.4th 264, 266; People v. Gray (2005) 37 Cal.4th 168, 207.)
D. Analysis.
Here, counsel was not asked to explain why he did not object to the evidence of defendant’s uncharged acts on the grounds asserted on appeal. The People contend there are valid tactical reasons for not objecting on such grounds and forcing the prosecution to prove that defendant understood the wrongfulness of his conduct at the time he committed the uncharged acts. The People argue, for example, that if the prosecution had been forced to do that, “it is very likely the evidence would have inflamed the jury and prejudiced [defendant] even more than the mere uncharged acts themselves.” Our review of victim’s interview with RCAT on February 18, 2003, suggests another reason. Victim indicated the first incident occurred when she was seven or eight years old when they went to Redlands around Christmas. We know that defendant was born in October 1981. Victim was born in April 1988. If she was seven years old at the time of the first incident, it would have occurred in or around December 1995. Given defendant’s birth date, he would have been 14. If she was eight, the incident would have occurred in or around December 1996 and defendant would have been 15. Given either of these possibilities, we conclude there is a plausible explanation for trial counsel’s decision to allow the uncharged acts to be admitted with the proper jury instruction. Thus, the presumption that counsel elected to allow the evidence to come in for a valid tactical reason has not been rebutted.
Even if we were to assume defendant has established that his counsel’s performance was deficient, defendant must also show that such deficiency prejudiced his defense. (Strickland, supra, 466 U.S. at p. 687.) In this context, prejudice means there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. (Id. at p. 694.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Ibid.; see also People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) Here, no prejudice can be found from the lack of an objection, because even if an objection had been made and the evidence excluded, the result of the proceedings would not have changed. The evidence against defendant was overwhelming. The victim testified as to defendant’s actions and defendant admitted to engaging in inappropriate contact with her. In light of the evidence presented at the trial, even if defense counsel had made the appropriate objection and the evidence had been excluded, we cannot conclude that the result would have been different.
III. SUFFICIENCY OF EVIDENCE
Defendant contends the evidence is insufficient to support his convictions for violating Penal Code section 288, subdivision (b)(1), because the evidence fails to show he used substantially greater force than needed to commit the acts.
A. Standard of Review
In reviewing a claim challenging the sufficiency of the evidence, we consider the entire record in the light most favorable to the judgment and determine whether there is substantial evidence, i.e., evidence that is “‘“reasonable, credible, and of solid value—such that a reasonable trier of fact could find [defendant] guilty beyond a reasonable doubt.”’” (People v. Maury (2003) 30 Cal.4th 342, 396.) “The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]”’” (Id. at p. 1054.)
B. Analysis
Defendant was charged with 12 counts of violating Penal Code section 288, subdivision (b)(1). Under Penal Code section 288, subdivision (b)(1), any person who commits a lewd or lascivious act upon a child under 14 “by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony....” “Force” means “‘physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.’” (People v. Neel (1993) 19 Cal.App.4th 1784, 1790, italics omitted.)
Citing to various case law that defines the force necessary to support a Penal Code section 288, subdivision (b)(1) conviction, defendant argues the “record is devoid of evidence to show [defendant] physically restrained or controlled [victim] to commit the acts of attempted or actual sodomy. Thus, the evidence failed to show the force used to accomplish these acts—taking her clothes off, bending her over, and placing his hands on her while engaged in the act—was substantially different from or greater than needed to accomplish the lewd act itself.” We disagree.
The first case to evaluate the meaning of “force” as used in Penal Code section 288, subdivision (b), was People v. Cicero (1984) 157 Cal.App.3d 465 (Cicero). The Cicero court posited that “‘force’ should be defined as a method of obtaining a child’s participation in a lewd act in violation of a child’s will....” (Id. at p. 476.) It concluded that “[w]here a defendant uses physical force to commit a lewd act upon a child under the age of 14, and the child suffers physical harm as a consequence, the defendant has committed a lewd act ‘by use of force’ under subdivision (b). Consent is no defense. Where no physical harm to the child has occurred, the prosecution has the burden of proving (1) that the defendant used physical force substantially different from or substantially in excess of that required for the lewd act and (2) that the lewd act was accomplished against the will of the victim.... [I]t is an affirmative defense that the victim knowingly consented to the lewd act.” (Id. at p. 484-485; see also People v. Bolander (1994) 23 Cal.App.4th 155, 158-159 [acts of inhibiting victim from pulling his shorts back up, bending victim over, and pulling victim towards defendant constitute force within the meaning of Pen. Code, § 288]; People v. Babcock (1993) 14 Cal.App.4th 383, 386-387 [act of pulling victim’s hands to place them on defendant’s crotch is sufficient to satisfy the force element].)
Here, the evidence establishes that defendant molested victim at least once a month for approximately four years. Defendant was charged only with three counts of forcible molestation occurring during four periods of time: (1) April 1996 to April 1997; (2) April 1997 to April 1998; (3) April 1998 to April 1999; and (4) April 1999 to April 2000. The acts included sodomy and oral copulation. Regarding the sodomy acts, victim testified that defendant would “pull” her into the bathroom, take off her pants and underwear, bend her over the sink, and “stick his penis in [her] butt.” While this was happening, she cried and he moaned. She stated that the “same thing” happened each time he sodomized her. Although defendant never yelled at her to do anything, he “pulled [her] by [her] hand.” Regarding the oral copulation, she testified that he would be sitting on the bed with his zipper down, “and he pushed [her] head onto his penis.” When his penis was inside her mouth and she started to choke, she tried to get up, but he wouldn’t let her. Instead, he “held [her] head there.” She testified that “95-99 percent of the time he would push [her] head down,” but later on she “would just do it.” Defendant continued to make her have oral sex, and “[i]t was all the same.”
Later testimony confirmed that he “pulled” her pants down and turned her around.
Given the above, we conclude the evidence was sufficient to sustain defendant’s convictions for 12 counts of violation of subdivision (b) of Penal Code section 288, lewd act “by force.”
IV. PROSECUTORIAL MISCONDUCT
As we previously noted, the prosecution was allowed to introduce evidence of defendant’s prior uncharged acts against victim under Evidence Code section 1108. The jury was instructed that the evidence could only be used for the limited purpose of “tending to show the defendant’s lewd disposition or intent toward the other person.” Later, the jury was instructed that these uncharged acts could be used as evidence of defendant’s disposition to commit lewd acts with a child under the age of 14. During closing argument, the prosecutor noted her burden of showing that the lewd acts were accomplished with the use of force. The prosecutor described the uncharged acts evidence and said: “These are acts above and beyond what is needed. And when you are talking about force, you can look at the totality. If you find the first instance was forcible, you can find that every instance after that was forcible. The law allows you to do that. That is why this first time of molest is so important when you are looking at the force. [¶] He locked the door. He grabbed her hand and pulled her. He did that a lot. She told you in the RCAT, he always sort of grabbed her hand and pulled her into the room, that is more than what is needed. [¶] And he took her pants off. And when you were told how that happened, she never took her own pants off. He did it. He pulled her pants down. [¶] The defendant isolated her. Prevented anybody from protecting her. Prevented anybody from getting in there. He would pull her away from people. He would kick people out of the room. And he would pull her pants down. That alone is enough for you to find force on any one of the instances, on any one of the times where he sodomized [victim]. You can find that is enough for force.”
Generally, this court will not review a claim of prosecutorial misconduct if the defendant has failed to object at trial. “‘To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.’ [Citations.]” (People v. Gionis (1995) 9 Cal.4th 1196, 1215.) Although defendant in this case has acknowledged that he forfeited this issue on appeal by failing to raise it at trial, he argues ineffective assistance of counsel. According to defendant, because there was insufficient evidence of force, “the prosecutor’s misstatement of the law contributed materially to the verdicts,” by misleading the jury.
A. Standard of Review
As we previously noted, to prevail on a claim of ineffective assistance of counsel, defendant must establish his counsel’s representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel’s deficient performance, the result of the trial would have been different. (Strickland, supra, 466 U.S. at pp. 688, 694.) “In considering a claim of ineffective assistance of counsel, it is not necessary to determine ‘“whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.’” [Citations.] It is not sufficient to show the alleged errors may have had some conceivable effect on the trial’s outcome; the defendant must demonstrate a ‘reasonable probability’ that absent the errors the result would have been different. [Citations.]” (People v. Mesa, supra, 144 Cal.App.4th at p. 1008.) Likewise, “[a] defendant’s conviction will not be reversed for prosecutorial misconduct unless it is reasonably probable that the jury would have reached a result more favorable to the defendant had the misconduct not occurred. [Citation.]” (People v. Zambrano (2004) 124 Cal.App.4th 228, 243.)
B. Analysis
Considering the record before this court, we conclude it is not reasonably probable that the jury would have reached a result more favorable to defendant. As noted above, the evidence against defendant consisted of victim’s testimony and defendant’s interview. Victim testified there were several incidents of molestation, at least once a month during a four-year period. She stated “the same thing” happened each time he sodomized her or made her have oral sex. Her testimony established force. He would pull her, take off her pants, and bend her over. During oral sex, “95-99 percent of the time he would push [her] head down,” but later she “would just do it.” Defendant confirmed that he “pulled down” her pants “all the time,” that she was bent over, and that he rubbed her neck or her head and “had her hold it right there.” This evidence supported a finding of force.
Notwithstanding our conclusion that the evidence was sufficient to establish force under Penal Code section 288, subdivision (b), we conclude that the jury instructions clarified any misstatement of the law by the prosecutor. In addition to receiving CALCRIM No. 1191 (Evidence of Uncharged Sex Offense), the jury received CALJIC No. 1027, which instructed the jury that it could not consider the uncharged acts for any purpose other than to show the defendant’s lewd disposition or intent. Moreover, the jury was instructed with CALCRIM Nos. 103 (Reasonable Doubt), 104 (Evidence), 220 (Reasonable Doubt), 222 (Evidence), 1111 (Lewd or Lascivious Act: By Force or Fear), 1110 (Lewd or Lascivious Act: Child Under 14 Years), and 915 (Simple Assault), along with CALJIC No. 17.10 (Conviction of Lesser Included or Lesser Related Offense—Implied Acquittal—First). Read together, the jury instructions eliminated any danger of misuse of the prior uncharged acts evidence. “We presume the jury followed these instructions. [Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 26.)
In short, on this record, defendant has failed to carry his burden of demonstrating prejudice as a result of the ineffective assistance of his counsel.
V. DENIAL OF REQUEST TO TRANSFER CASE TO JUVENILE COURT
FOR A FITNESS HEARING PRIOR TO SENTENCING
A. Procedural Background and Facts
Defendant was born in October 1981. He was charged with committing the Penal Code section 288, subdivision (b) offenses against victim between April 1996 and April 2000. However, due to victim’s delayed disclosure, defendant was not charged with these offense until he was 21 years old (August 2003), and his trial took place shortly after his 25th birthday.
At the preliminary hearing on November 28, 2005, defense counsel argued that because the complaint alleged acts committed between 1995 and April 2000, defendant had a right to a Welfare and Institutions Code section 707 hearing in juvenile court as to counts 1 through 4, and possibly 5, because those incidents occurred prior to the passage of Proposition 21. “Proposition 21, titled the Gang Violence and Juvenile Crime Prevention Act of 1998 and approved by the voters at the March 7, 2000, Primary Election... made a number of changes to laws applicable to minors accused of committing criminal offenses.” (Manduley v. Superior Court (2002) 27 Cal.4th 537, 544-545 (Manduley).) Among other changes, Proposition 21 “confers upon prosecutors the discretion to bring specified charges against certain minors directly in criminal court, without a prior adjudication by the juvenile court that the minor is unfit for a disposition under the juvenile court law.” (Manduley, supra,at pp. 544-545.) Counsel further argued that any reliance on Welfare and Institutions Code section 707, subdivision (d), to try defendant as an adult without conducting a fitness hearing in juvenile court, violates the ex post facto clause of our United States Constitution. Caught off guard by this argument, the prosecutor asked for and received time to research the issue.
After lunch, the prosecutor provided the court with Manduley, supra, 27 Cal.4th 537, and John L. v. Superior Court (2004) 33 Cal.4th 158, but told the court that defendant’s argument appeared to present an issue of first impression. Nonetheless, the prosecutor argued that the cases she cited supported her position that the ex post facto clause did not apply here, because the Proposition 21 amendments to Welfare and Institutions Code section 707 constituted a change in “mechanism... versus a change in punishment” and did not affect a significant right. After much discussion, the court concluded that defendant fell within the provisions of Welfare and Institutions Code section 707, subdivision (d).
After the information was filed, defense counsel demurred on the grounds of lack of jurisdiction. The trial court overruled the demurrer. On March 2, 2006, this court issued an order denying defendant’s subsequent petition for writ of mandate in Heraz v. Superior Court, case No. RIF112076, appellate court case No. E039852 and on April 19, 2006, the California Supreme Court denied defendant’s petition for review in Heraz v. Superior Court, case No. S141851. The trial court denied defendant’s motion to set aside the information pursuant to Penal Code section 995. Following a jury trial, defendant was convicted as charged.
At sentencing, defense counsel requested that the court conduct a postconviction fitness hearing pursuant to Penal Code section 1170.17, subdivision (b)(2), and that the court sentence defendant under Penal Code section 1170.19, subdivision (a). Counsel also moved for a fitness hearing in arrest of judgment pursuant to Penal Code section 1185. The court denied the motion and explained: “Welfare and Institution[s] Code Section 707, subdivision (b) gives the prosecution authority to file an accusatory pleading in a court of criminal jurisdiction against any minor 16 years of age or older who is accused of committing an offense enumerated in subdivision (b), as the defendant concedes he was 16 years old when he committed six of the 12 lewd and lascivious actions. [¶] In addition, all 12 counts alleged in the Amended Information were for a violation of [Penal Code section] 288, subdivision (b), which is an offense expressly enumerated in Welfare and Institutions Code [section] 707, subdivision (b), subsection (6), so therefore, it appears the defendant was clearly eligible for adult prosecution without an initial fitness hearing.”
On appeal, defendant contends the trial court erroneously denied his motion in arrest of judgment and refused to transfer his case to the juvenile court for a fitness hearing.
B. Applicable Law
“Welfare and Institutions Code section 707 concerns the unfitness of certain juveniles to be treated as juveniles. Subdivision (b) sets forth a list of offenses for which certain juveniles will be presumed unfit to be adjudicated as juveniles.” (People v. Neely (2004) 124 Cal.App.4th 1258, 1263.)
“A brief review of the challenged procedure will be helpful. Juvenile court jurisdiction attaches in cases in which the defendant is ‘under the age of 18 years when he violates any law of this state’ [citation]. However, if the defendant is aged 16 years or older at the time of the offense, the district attorney may move to have the minor tried as an adult. [Citation.] If the district attorney so moves, the juvenile court conducts a fitness hearing to determine if the minor is ‘amenable to the care, treatment, and training program available through the facilities of the juvenile court.’ [Citation.] The probation officer is required to file a report on the minor’s ‘behavioral patterns and social history’; the minor and the district attorney may submit other relevant evidence. In reaching its decision the court must evaluate the following criteria: ‘(1) The degree of criminal sophistication exhibited by the minor. [para.] (2) Whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction. [para.] (3) The minor’s previous delinquent history. [para.] (4) Success of previous attempts by the juvenile court to rehabilitate the minor. [para.] (5) The circumstances and gravity of the offense alleged to have been committed by the minor.’ [Citation.]
“Ordinarily, the burden of proving unfitness is on the prosecution. [Citation.] But if the minor is charged with certain felonies enumerated in [Welfare and Institutions Code] section 707, subdivision (b), he is presumed to be unfit for juvenile court treatment and must shoulder the burden of proving that he is a fit and proper subject under the five criteria listed above [citations].” (Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 804-805.)
Penal Code section 1185, in relevant part, states: “A motion in arrest of judgment is an application on the part of the defendant that no judgment be rendered on a... verdict of guilty.... It may be founded on any of the defects in the accusatory pleading mentioned in [Penal Code] Section 1004, unless objection has been waived by a failure to demur, and must be made and determined before the judgment is pronounced.” Here, defendant demurred early in the case challenging the court’s jurisdiction on the grounds that he committed the offenses when he was a minor. Thus, the issue of his entitlement to a fitness hearing prior to sentencing was properly before the court.
The main purpose of Welfare and Institutions Code section 707 is the determination of fitness or unfitness for juvenile court. Defendant argues he was “most likely between the ages of 14 and 17 when he committed the charged offenses.” Thus, he argues that the People did not have the discretion to file charges directly in the criminal division of the superior court. Instead, defendant contends the People were required to move the juvenile court to conduct a fitness hearing before they could try and sentence him in the superior court.
If defendant was between 14 and 17 years old when the offenses were committed, then he argues that the People had no discretion to file charges directly in the criminal division of the superior court. Instead, a fitness hearing was required. In support of his argument, he cites to former Welfare and Institutions Code section 707, subdivisions (b)(6), (c), and (d), which was effective in 1999. In 1999, former Welfare and Institutions Code section 707, subdivision (b), in relevant part, provided: “Subdivision (c) shall be applicable in any case in which a minor is alleged to be a person described in Section 602 by reason of the violation, when he or she was 16 years of age or older, of one of the following offenses: [¶]... [¶] (6) Lewd or lascivious act as provided in subdivision (b) of Section 288 of the Penal Code....” (Welf. & Inst. Code, § 707, subd. (b) (Stats. 1998, ch. 925 (A.B. 1290) § 7).)
To the extent that defendant committed the offenses between the ages of 14 and 16, he argues that the juvenile court, in its discretion, could find he was not fit to be dealt with under the juvenile court law, but only if the court concluded that he “‘would not be amenable to the care, treatment, and training program available through the facilities of the juvenile court, based upon an evaluation of each of the following criteria: [¶] (A) The degree of criminal sophistication exhibited by the minor. [¶] (B) Whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction. [¶] (C) The minor’s previous delinquent history. [¶] (D) Success of previous attempts by the juvenile court to rehabilitate the minor. [¶] (E) The circumstances and gravity of the offense alleged in the petition to have been committed by the minor.’ (Former Welf. & Inst. Code, § 707, subd. (d)(1).)” Defendant recognizes that for certain enumerated offenses committed when he was 16 years old or older, there was a presumption that he was “unfit for juvenile court treatment and must shoulder the burden of proving that he is a fit and proper subject under the five criteria listed above [citations].” (Ramona R. v. Superior Court, supra, 37 Cal.3d at p. 805.)
In March 2000, “‘Proposition 21, titled the Gang Violence and Juvenile Crime Prevention Act of 1998... made a number of changes to laws applicable to minors accused of committing criminal offenses.’ [Citation.] The initiative measure added subdivision (d) to [Welfare and Institutions Code] section 707, allowing prosecutors to exercise their discretion under specified circumstances to bring charges directly in criminal court without a prior adjudication by the juvenile court that the minor is unfit for a disposition under the juvenile court law.” (People v. Superior Court (Marcelina M.) (2005) 133 Cal.App.4th 651, 655-656, fn. omitted.)
The circumstances utilized by the prosecution to file directly in criminal court in the proceeding against defendant were that he was 16 years of age or older and was accused of committing a Welfare and Institutions Code section 707, subdivision (b) offense. However, because some of his offenses were committed prior to defendant’s reaching the age of 16, defendant argues that he “could not properly be tried and sentenced in criminal court for [those] offenses... unless first found to be unfit by the juvenile court.” Defendant cites In re Harris (1993) 5 Cal.4th 813 (Harris).) In Harris, the defendant committed a crime on the day prior to his 16th birthday. (Id. at pp. 823-824.) The People sought a fitness hearing and over the defendant’s objections, the juvenile court found that he was unfit for trial as a juvenile and thus certified him to adult court. (Id. at p. 824.) Following his trial and conviction, the defendant appealed on the grounds that the trial court lacked jurisdiction over him due to his age at the time of his crime. (Ibid.) The California Supreme Court agreed with the defendant and concluded that although the trial court did not lack subject matter jurisdiction due to the defendant’s age, it did lack jurisdiction to act, and thus its trial and sentencing were in excess of its jurisdiction. (Id. at pp. 837, 850.) Noting that the defendant waived his right to proceed in juvenile court by failing to object to the trial court’s assumption of jurisdiction over him and “the particular factual setting of this case,” including the burden on the People of having to again prove his guilt after the passage of 10 years, the high court fashioned “an unusual disposition” in response to the defendant’s petition for writ of habeas corpus. (Id. at pp. 838, 850.) It permitted defendant’s adult convictions, which constituted proof of his guilt beyond a reasonable doubt, to stand as a juvenile court finding of jurisdiction under Welfare and Institutions Code section 602 (Harris, supra, at pp. 850-851), and remanded him to juvenile court for a dispositional hearing. (Id. at p. 851.)
We find defendant’s reliance on Harris to be misplaced. All of the crimes that the defendant in Harris committed were committed prior to his turning 16 years old. Such is not the case here. Here, defendant began committing his crimes when he was 14 years old and continued to do so past his 18th birthday. Some, but not all, of the offenses charged were committed by defendant prior to his reaching age 16; however, as the trial court noted, most of them were committed when defendant was at least 16 years old. For those offenses committed after age 16, defendant recognizes that there was a presumption that he was unfit for juvenile court treatment. Given the unique facts in this case, i.e., defendant committed the offenses both prior to and after his 16th and 18th birthdays, defendant has not cited, and we have not found any case to address, the issue before this court.
As we previously noted, in an interview, victim stated that the first molestation occurred around Christmas when she was seven or eight years old. Given defendant’s birth date of October 1981 and the victim’s birth date of April 1988, we calculate defendant would have been 14 years old at that time.
Assuming, without deciding, that the trial court erred in denying defendant’s motion in arrest of judgment and refusing to transfer his case to the juvenile court for a fitness hearing, we find the error to be harmless. As noted above, the trial court determined that because defendant was at least 16 years old when he committed six of the 12 charged offenses (counts 7-12) and because the offenses were all violations of Penal Code section 288, subdivision (b), which is expressly enumerated in Welfare and Institutions Code section 707, subdivision (b)(6), defendant was eligible for adult prosecution without an initial fitness hearing. Given the facts, even if a fitness hearing were held, we cannot conclude the juvenile court would have found defendant fit for juvenile court treatment.
“At a fitness hearing, the minor who is presumed to be unfit has the burden of rebutting the presumption by a preponderance of the evidence. [Citations.] The minor is not required to demonstrate he is innocent in order to establish his amenability to treatment under the juvenile court law. [Citation.] In fact, guilt or innocence is irrelevant at a fitness hearing. [Citations.] The factors used to assess fitness presuppose that the minor committed the offense. [Citations.] At the fitness hearing, the only question to be adjudicated is ‘whether the best interests of the minor and society would be served by retention of juvenile court authority.’ [Citation.]
“The juvenile court considers five factors when assessing a minor’s fitness for treatment under the juvenile court law. Specifically, the court considers the minor’s degree of criminal sophistication, the minor’s ability to be rehabilitated before the juvenile court’s jurisdiction expires, the minor’s prior delinquent history, the success of prior attempts to rehabilitate the minor and the circumstances and gravity of the crimes alleged against the minor. [Citations.] [¶]... [¶]
“The juvenile court’s determination as to whether a particular minor is fit or unfit for treatment under juvenile court law is reviewed under the abuse of discretion standard. [Citations.]” (Rene C. v. Superior Court (2006) 138 Cal.App.4th 1, 10-11.)
One of the factors is minor’s ability to be rehabilitated before the juvenile court’s jurisdiction expires. Here, defendant continued to commit the offenses after he reached the age of 18. Another factor considers minor’s degree of sophistication. Clearly, defendant exhibited great sophistication in selecting his victim when you consider the young age at which he singled her out. Finally, the gravity of defendant’s crimes was significant. Defendant singled out a young victim who was nearly seven years his junior and isolated her from her siblings. Despite her cries, he continued to assault her. He admitted his actions in an interview, showing no remorse. Any finding that defendant was fit for juvenile court treatment would have amounted to an abuse of discretion.
Given our above analysis, we need not discuss the issue of whether the ex post facto clause was violated.
VI. IMPOSITION OF FULL-TERM CONSECUTIVE SENTENCES UNDER PENAL CODE SECTION 667.6, SUBDIVISION (d)
Defendant contends that the imposition of mandatory consecutive sentences under Penal Code section 667.6, subdivision (d), violates his constitutional right to a jury trial on the facts subjecting him to such a sentence. Recognizing that our state’s highest court recently rejected a similar contention in People v. Wilson (2008) 44 Cal.4th 758, 813, based on its decision in People v. Black (2007) 41 Cal.4th 799, 820 through 823, and that this court is bound by these decisions (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) defendant explained that he had raised this issue in order to preserve it for federal review in light of the United States Supreme Court’s decision to grant review in State of Oregon v. Ice (2007) 343 Ore. 248 [170 P.3d 1049], certiorari granted sub nom. Oregon v. Ice (2008) __ U.S. __ [128 S.Ct. 1657]. The case has now been decided, and the Supreme Court held that the determination to impose a consecutive, rather than a concurrent term, need not be based on findings made by a jury. (Oregon v. Ice (2009) __ U.S. __ [129 S.Ct. 711].) We conclude the trial court’s imposition of the full-term consecutive sentences did not violate defendant’s constitutional rights to due process and a jury trial.
VII. DISPOSITION
The judgment is affirmed.
We concur: KING, J., MILLER, J.
Former Welfare and Institutions Code section 707, subdivision (c), in relevant part, provided: “With regard to a minor alleged to be a person described in [Penal Code] Section 602 by reason of the violation, when he or she was 16 years of age or older, of any of the offenses listed in subdivision (b), upon motion of the petitioner made prior to the attachment of jeopardy the court shall cause the probation officer to investigate and submit a report on the behavioral patterns and social history of the minor being considered for a determination of unfitness. Following submission and consideration of the report, and of any other relevant evidence which the petitioner or the minor may wish to submit the minor shall be presumed to be not a fit and proper subject to be dealt with under the juvenile court law unless the juvenile court concludes, based upon evidence,... that the minor would be amenable to the care, treatment, and training program available through the facilities of the juvenile court based upon an evaluation of each of the following criteria: [¶] (1) The degree of criminal sophistication exhibited by the minor. [¶] (2) Whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction. [¶] (3) The minor’s previous delinquent history. [¶] (4) Success of previous attempts by the juvenile court to rehabilitate the minor. [¶] (5) The circumstances and gravity of the offenses alleged to have been committed by the minor.” (Welf. & Inst. Code, § 707, subd. (c) (Stats. 1998, ch. 925 (A.B. 1290) § 7.)