Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. BB409126
Premo, J.
In June 2006, defendant John Hardy Jackson was found guilty at a court trial of six counts of forcible lewd or lascivious acts (Pen. Code, § 288, subd. (b), hereafter section 288(b)) and 10 counts of nonforcible lewd or lascivious acts (§ 288, subd. (a), hereafter section 288(a)) on five child victims for which he was sentenced to a total of 222 years in state prison. His appeal attacks the voluntariness of his waiver of jury trial; the sufficiency of the evidence and the constitutionality of the definition of “duress,” an element of the crime of forcible lewd or lascivious acts on a child; and the One Strike life sentences on counts 3 through 16. (§ 288(b).)
Further statutory references are to the Penal Code unless otherwise stated.
FACTS
Defendant started molesting second-grader D. shortly after he married D.’s mother, Jennifer, in 1992. Sexual activity with D. and with foster children living in the home between 1995 and 2000 continued and escalated into sexual intercourse and oral copulation until 2004 when D. was almost 18. Jennifer apparently suspected something when D. was in the fifth grade. Twice a week, Jennifer pulled D. into the bathroom in the mornings and asked if there was anything D. needed to talk about. D. always lied to her.
After these inquiries, police and a social worker contacted D. and the foster children to inquire if they were being abused. D. lied because she was afraid of losing her family if the foster children were removed and defendant went to jail. When D. finally told the truth, she was almost 18. She and Jennifer were talking when Jennifer said, “for all I know it’s been happening to you for a long time.” D. was nodding in agreement, and “at that point,” the secret had been revealed and she could not “take it back.” Police were called a few days later.
The molestation began shortly after defendant’s and Jennifer’s wedding. The family, defendant, Jennifer, D., and defendant’s son, Raymond, who was about the same age as D., went to visit D.’s grandmother. All of them slept in their van parked in the grandmother’s driveway. D. woke in the night to find her hand on defendant’s penis and defendant kissing her on the mouth and touching her vagina under her clothes. She fell back asleep. In the morning defendant spoke to her about it, but other than his warning not to say anything to anybody about it, D. did not remember what he said. D. thought that defendant spoke to Jennifer about it, because Jennifer asked D. if anything happened in the van. D. made up a story that she woke up because of a nightmare. She was not afraid of defendant; she was afraid that something bad would happen if she told. Defendant later apologized for the incident.
D. got along well with defendant. Jennifer was the disciplinarian, and her relationship with D. began deteriorating in the third grade, the same grade that the molestation started. Defendant let D. do what she wanted. If she was grounded, he never enforced it until her mother got home. He acted as a buffer between the two and would do things to deflect Jennifer’s anger from D. to himself. When there was less sexual activity, however, defendant was not as nice and would let Jennifer’s anger fall on D. without doing anything.
D. thought of defendant as her father. He took the family on camping trips, to concerts, and let her sit on his lap when he was driving and think she was controlling the car. Sometimes when they were camping, he would let her drive on dirt roads. D. did not forget her biological father though, and around second grade, she started asking defendant about him. D.’s father was a drug user, and although defendant said her father could visit her anytime he wanted if he just cleaned up and stayed off drugs, he never did. When D.’s father died a couple of years later, defendant helped D. through the grieving process.
D. complied with defendant’s sexual requests because she did not want him to be mad at her if she did not, and she felt something bad would happen to her. She testified that when she was in the third grade, she did not feel in physical danger, “but I was afraid of losing a dad.” Defendant had told her that “if anybody ever found out that he would be in trouble and that they would take us [her and the foster children] away. [¶] . . . [¶] . . . [H]e would be put in jail.” When asked if defendant told her whether that would be a hardship for her, she answered, “[j]ust that I would be with my mom most likely” and that she would not have a father in her life.
In the seventh grade, defendant and Jennifer were “having problems and they were talking about getting a divorce and he did tell me that . . . if I went with my mom, it would just be me and my mom and he wouldn’t be there to help me get along with my mom.” Defendant told her that if her mom knew of the sexual activity between them, she “would be very upset with him and that she would try to protect [D.] . . . [and] that she would likely divorce him.” By then, the “foster kids” were D.’s “family” and she did not want to lose them. She knew they would be taken away, and thought they might go to better homes, “but selfishly I didn’t want them to leave.” She knew “that they [the authorities] wouldn’t leave them with just my mom.”
The possibility of a divorce scared D. “a lot” because she did not want to lose her “father.” Defendant and Jennifer could not get along at times, and Jennifer was not happy with defendant’s drinking. D. testified they fought a lot and “my mom would get upset because he would help me when I was in trouble.”
Further references to D.’s “father” and “family” refer to her stepfather and foster brothers and sisters.
Nevertheless, in the seventh grade, D. began to feel she could say no to defendant. When she did refuse him, he was not angry, nor was it “a big deal.”
Counts 1 through 8 named D. as the victim. They correlated with D.’s school years and were alleged as happening between September of one year and August of the following year. Counts 1 and 2 occurred in the fourth grade from September 1995 to August 1996. Counts 3 and 4 were during the fifth grade, counts 5 and 6 in the sixth grade, and counts 7 and 8 in the seventh grade. Counts 1 through 6 alleged forcible lewd and lascivious acts under section 288(b). The latter two counts, 7 and 8, charged nonforcible lewd and lascivious acts under section 288(a).
D. testified to uncharged sexual incidents that occurred during the third grade when defendant touched D.’s vagina with his hand and she touched his penis with hers. There was also mutual oral copulation. The same acts occurred again in the fourth, fifth, and sixth grades. In the sixth grade, defendant began to have sexual intercourse with D. as well, which continued into the seventh grade. During the summer vacations, when Raymond came to live with them, sexual contact would occur less often.
The remaining eight counts alleging section 288(a) violations consisted of two allegations for each of the four foster children. When D. was in the third grade in 1995, a brother and sister, almost nine-year-old Billy and two-and-a-half-year-old K., moved in. K. shared a room with D.; Billy had his own room except when Raymond was there in the summer. K. went to a babysitter during the day and Billy went to school with D. D. witnessed defendant touch K. on her vagina, both under and over her clothing, on more than one occasion. She also observed defendant and Billy fondling each other’s penises and having mutual oral copulation. Defendant also encouraged D. to touch Billy’s penis and have sexual intercourse with him which she reluctantly did because she did not want defendant to be mad at her if she refused. She was afraid that if she told anybody, the foster kids would go back to the shelter, defendant would be put in jail, her mother would divorce defendant, and she would be alone with her mother. Counts 13 and 14 involved K., and counts 15 and 16 involved Billy.
Defendant displayed adult pornography to the children and videotaped his own sex acts with D. three or four times. He showed D. the videotapes.
In December 1995, 11-year-old Jason arrived and in 1996, Billy and K. moved out. Shortly after Jason arrived, he was awakened in the middle of the night by defendant orally copulating him. When D. was in the fourth grade in 1996, D. witnessed fondling and oral sex between defendant and Jason and defendant encouraged her to have sex with Jason, which she did. Billy came back to visit sometimes and he and defendant engaged in fondling, mutual masturbation, and oral copulation. Later, Jason engaged in sexual activity with defendant including orally copulating and fondling defendant until Jason moved out in June 1999.
Defendant encouraged Jason in sexual activity with D., K., and five-year-old Victoria, who moved in in 1998 and stayed until 2000. Jason and D. fondled each other’s genitals. She was reluctant most of the time. Jason fondled K.’s vaginal area and put his penis in Victoria’s vagina. Defendant videotaped Jason’s and Victoria’s sexual activity. Jason was the victim in counts 9 and 10.
Jason remembered the investigation when the police and social worker interviewed the children. He thought there had been a complaint. Jason lied because he was afraid that something might happen to him, but also because he liked it at defendant’s house. He thought the family was nice: they saw to it that he got to school, they made him clothes, they provided him with dinner, and they went camping and as a family to concerts.
Defendant also videotaped Jason having sex with Victoria. D. observed defendant and Victoria fondling each other’s genitals.
K. testified that defendant always put her on his lap when they watched television. He would touch her chest and her back underneath her shirt. Defendant would watch when K. took a bath, and she would sleep in the same bed with him. The day after K. and Billy moved out of defendant’s home, K.’s mother, Annette C., suggested calling “mommy Jennifer” and “daddy John.” K. said she would talk to “mommy Jennifer” but she refused to talk to “dad John because he does that sex thing to me.” When Annette C. inquired further, K. said defendant put her on his lap and touched her.
Victoria testified that defendant touched her vagina, put his mouth on her vagina, and touched her vagina with his penis. This happened more than once. Defendant told her not to tell anyone. Defendant also showed Victoria videos of D., Jason, and K. engaging in sexual activity. Victoria saw defendant touch D. inappropriately on the videotape. Defendant told Victoria he would do the same things with her. Once or twice, defendant engaged in sexual activity with Victoria while she watched the videotape. He may have asked Victoria to engage in sexual activity with Jason and D. Victoria was involved in counts 11 and 12.
Defendant waived a jury trial and the matter was tried to the court. On the second day of trial, the information was amended to conform to proof. The amended information alleged in counts 3 through 16 that defendant “has been convicted in the present case or cases of committing an offense specified in [section 288, subdivision (c), hereafter section 288(c)] against more than one victim, within the meaning of [former] Penal Code sections 667.61 [subdivision] (b) and 667.61 [subdivision] (e).” The court found defendant guilty as charged and found true the section 667.61, subdivisions (b) and (e) allegations in counts 3 through 16. This appeal ensued.
Amendments to sections 667.61 and 1203.066 took effect after defendant’s trial. All references to sections 667.61 and 1203.066 are to the statutes in effect during the 2006 trial.
ISSUES ON APPEAL
Defendant contends (1) his convictions under section 288(b) must be reduced to convictions under section 288(a) because evidence of duress was insufficient. (2) In the alternative to point (1), the term “duress” in section 288(b) is unconstitutionally vague. (3) The one-strike terms imposed in this case must be reversed for insufficient evidence. And, (4) the waiver of jury trial was not knowingly or intelligently entered.
DURESS--DEFINITION AND CONSTITUTIONALITY
Defendant asserts that the prosecution pursued the first six counts of forcible lewd and lascivious acts (§ 288(b)) against D. on a theory of duress, namely, that defendant obtained D.’s submission by exploiting her fear of losing her father and her family. Asserting that there was “no evidence of a direct or implied threat of force, violence, danger, or retribution,” defendant says this case “will rise and fall on a direct or implied threat of hardship, and one that is sufficient to coerce compliance.” (Italics defendant’s.)
Section 288(b) provides in relevant part: “Any person who commits an act described in subdivision (a) [that is, a willful and ‘lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child’ (§ 288(a))] 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.”
“Duress” was defined in People v. Pitmon (1985) 170 Cal.App.3d 38 as “a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.” (Id. at p. 50.) “ ‘[D]uress involves psychological coercion. Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes . . . . “Where the defendant is a family member and the victim is young, . . . the position of dominance and authority of the defendant and his continuous exploitation of the victim” [are] relevant to the existence of duress’ ” (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319-1320) as well as to force or fear. (People v. Superior Court (Kneip) (1990) 219 Cal.App.3d 235, 239.)
In approving the Pitmon definition of “duress,” our Supreme Court commented, “the court relied in part on the dictionary definition of ‘duress’ and found ‘duress as used in the context of section 288 to mean a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.’ ” (People v. Leal (2004) 33 Cal.4th 999, 1004 (Leal).)
Defendant argues the record contained no threat of force, violence, danger, or retribution and states that the People relied on threat of hardship. Developing that theory, defendant states, “ ‘[h]ardship’ itself has no fixed definition, but one might discern more clearly its substance from the Webster dictionary definition of ‘duress’ cited by the California Supreme Court as justification for Pitmon’s inclusion of threat of ‘hardship.’ One of the definitions of ‘duress’ in Webster’s is: ‘ “stringent compulsion by threat of danger, hardship, or retribution . . . .” ’ (People v. Leal, supra, [33 Cal.4th] at p. 1009, quoting Webster’s 3d New Internat. Dict. (2002), p. 703, and adding italics to the word ‘hardship’; [citations].) Thus, the ‘hardship’ in question must be consistent with ‘stringent compulsion.’ [(Italics defendant’s).] This, and the general character of ‘duress’ as being coercive under the circumstances shows that it must be something that culpably distinguishes a lewd and lascivious act from a forcible lewd and lascivious act, and makes it more definite than the ambiguities of dominance and force inherent in the commission of a sex crime against a child even under subdivision (a) of section 288.” Therefore, defendant concludes, the convictions on counts 1 through 6 must be reduced to violations of nonforcible lewd and lascivious acts, section 288(a).
In assessing a sufficiency-of-the-evidence argument, the test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.) The court must view the evidence in light of the whole record, drawing all inferences in favor of the judgment and must presume the existence of every fact in support of the judgment that could reasonably be deduced from the evidence. To uphold conviction, the record must contain evidence that is reasonable, credible, and of solid value such that any rational trier of fact could have been persuaded of the defendant’s guilt. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382; In re Jose P. (2003) 106 Cal.App.4th 458, 465; Jackson v. Virginia (1979) 443 U.S. 307, 319.)
Although inferences may constitute substantial evidence in support of a judgment, these must be the probable outcome of logic applied to direct evidence, and merely speculative possibilities do not constitute substantial evidence. (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.) Whether an inference rationally flows from the established facts is a question of law. (California Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175 Cal.App.3d 1, 44-45.)
The consequences defendant used to frighten D. into compliance--deprivation of home, family, and father--were also threats of retribution, of punishment for a future action within D.’s control, namely, failing to keep silent about defendant’s bad behavior. The threats also support the insinuation D. clearly entertained that any losses she suffered would be her fault. She kept silent for years because she believed that if she revealed defendant’s behavior, she would be the catalyst for the divorce and the loss of defendant as a father figure, for the foster children’s departure, and the break-up of her desperately wanted family.
The fact that threats were made allows inferences to be drawn about defendant’s state of mind and his repeated decisions not to act in conformity with the law. Defendant’s strictures on D. to keep silent supports the inference that defendant knew that he wanted D. to do wrong and he intended to continue doing it whether she liked it or not. He knew D.’s compliance was not voluntary and that she needed to be forced to cooperate. The substance of the threats shows that defendant had knowledge of D.’s vulnerabilities and used them to overcome her exercise of free will. The fact that D. testified she knew that what defendant wanted her to do was wrong and she did it anyway is evidence of how effective defendant’s choice of threats was on her.
In determining whether the threats would coerce a reasonable victim of ordinary susceptibilities to perform or acquiesce in an act which he or she otherwise would not have accepted (Leal, supra, 33 Cal.4th at p. 1004), the content of the threat must be considered in the light of the child’s age, circumstances, relationship with defendant, and so on. In addition, the trier of fact may consider defendant’s position as an authority figure in the home, his relationship to her mother, his relationship to her, the comparative physical sizes of defendant and D., and any other factors that are relevant to the determination.
Defendant’s threat to D.--loss of parent and family--has been recognized as one of the cruelest blows a child can suffer. In some jurisdictions, a child who has lost a parent through the negligence of another has a cause of action for loss of parental consortium. “The loss of parental consortium includes ‘the intangible benefits of companionship, comfort, guidance, affection, and aid of the parent in every parental relationship,’ and ‘the tangible benefits of general usefulness, industry, and attention within the home and family.’ ” (Estate of Pearson ex rel. Latta v. Interstate Power and Light Co. (Iowa 2005) 700 N.W.2d 333, 345-346.) It has been asserted that the “trauma of separating a child from the custody of an adult with whom an affection-relationship exists may be psychologically equivalent in its detriment to the orphaning of that child.” (Note 73 Yale L.J. (1944) p. 161, citing Freud Interviews; Burlingham and Freud, Infants Without Families, 102-106.)
Here, uncontradicted evidence shows that defendant established himself, and D. saw him, as a loving, “fun” daddy who was the provider of trips and treats, comforter when afflicted, and D.’s deflector and shield from Jennifer’s disciplinary zeal. He “st[oo]d in between” her and her mother and encouraged the rift between them. Defendant molded D.’s perception of her mother into an ogress against whom she had only him as an ally and protector. From the very first sexual acts in the van, defendant told D. not to mention them. As time passed, defendant continued his warnings. Eventually, when the sexual activity was an ongoing way of life for D., although she could refuse to participate, apparently without defendant’s “getting mad” or its being “a big deal,” she noticed that defendant withdrew his protection.
We use the phrase “st[oo]d in between” her and her mother because D. used it during trial but neither party discusses evidence in the record to show the type of discipline Jennifer meted out, why she did so, the personalities of the people living in the household, and the circumstances of daily life that Jennifer had to cope with. Defendant’s less savory behaviors such as the “drinking” that caused conflict with Jennifer only came up in passing when D. testified she was afraid there would be a divorce. On the plus side for Jennifer, for a number of years, the home passed muster with the authorities for the placement of foster children. We in no way accept as established fact that Jennifer was an abusive parent. We do accept that in D.’s mind, Jennifer was a peril to avoid, lie, and dissemble to. From evidence in the record, for example, that defendant did not enforce the rules until Jennifer came home after work and therefore appeared to D. to be allied with her against her mother, we are satisfied that defendant fostered the separation between D. and Jennifer.
This evidence establishes duress for counts 1 through 6. The first charged lewd act occurred when D. was in the fourth grade, and she became inured to sexual activity thereafter. D.’s acquiescence was procured by defendant’s manipulation of her very real fears. Defendant was a dominant figure in the home and family, and was her emotional and psychological father. There was substantial evidence of duress in the record.
We reject defendant’s contention that the term “duress” is unconstitutionally vague and that it cannot give notice to those subject to the law or those who will be authorized to enforce and apply the law exactly what it prohibits. Defendant cites California Supreme Court Associate Justice Joyce Kennard’s dissenting opinion in Leal where she states, “ ‘[h]ardship’ is a vague and amorphous concept. It has been defined as ‘suffering’ or ‘privation’ [citation], a ‘lack of comfort’ [citation], and ‘difficulty or suffering caused by a lack of something, especially money’ [citation]. A threat to withhold a child’s promised allowance might well fall within these definitions, as would innumerable other threats.” (Leal, supra, 33 Cal.4th at p. 1012 (dis. opn. of Kennard, J.).)
A law is unconstitutionally vague if it fails to provide adequate notice to those who must observe its limits. (People v. Rubalcava (2000) 23 Cal.4th 322, 332; see U.S. Const., First & Fourteenth Amends.; Cal. Const., art. I, § 15.) “In evaluating a vagueness claim, ‘the touchstone is whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant’s conduct was criminal.’ ” (People v. Powers (2004) 117 Cal.App.4th 291, 298, quoting United States v. Lanier (1997) 520 U.S. 259, 267.)
A statute is not impermissibly vague if its terms can be reasonably understood by reference to other definable sources such as statutes, the common law, its legislative history, and judicial decisions. (American Civil Liberties Union v. Board of Education (1963) 59 Cal.2d 203, 218; People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1116-1117; County of Nevada v. MacMillen (1974) 11 Cal.3d 662, 673; People v. McCaughan (1957) 49 Cal.2d 409, 414, superceded by statute on another point as stated in People v. Anderson (2001) 25 Cal.4th 543, 572; Williams v. Garcetti (1993) 5 Cal.4th 561, 569-570.)
The Pitmon definition of “duress” has been followed since 1985. Leal stated that “the long application of the Pitmon definition has demonstrated” that including “ ‘hardship’ in the definition of ‘duress’ does not make” it unconstitutionally vague. (Leal, supra, 33 Cal.4th at p. 1009.) Defendant dismisses this statement because this issue was raised in Leal by amicus curiae, “not a party to the case” (italics defendant’s), and “Leal treated it as a passing observation in reference to statutory construction.” Defendant stated that since the issue was not addressed on the merits in Leal, Leal cannot be “authority for [a] proposition[] not considered.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1171.)
Notwithstanding, the “long application of the Pitmon decision” (Leal, supra, 33 Cal.4th at p. 1009) is an example of a statute being reasonably understood by reference to other definable sources such as the judicial decisions that make up the common law. The statute was not so vague that defendant did not know what was forbidden in regard to his conduct with children.
THE ONE-STRIKE SENTENCES
Next, defendant asserts that the due process clause places on the prosecution the burden of proving beyond a reasonable doubt not only that he committed a violation of section 288 against more than one victim in this case (§ 667.61, subd. (e)(5)) which would disqualify him from probation and make him eligible for One Strike punishment, but also that he was ineligible for probation under section 1203.066, subdivision (c), which stated requirements for sentencing leniency. Defendant reasons that because Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) requires the prosecution to prove factors in aggravation, namely, “ ‘sentencing facts’ [that] are subject to the Sixth Amendment right to trial by jury if they . . . ‘allow[] a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant’ (Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856, 860]),” it was the prosecution’s burden to present proof negating the provisions of section 1203.066, subdivision (c). Therefore, defendant states, the court erred in imposing the One Strike life terms because the prosecution failed to prove that defendant was not a parent, stepparent or a member of the victims’ household, that probation for defendant was not in the best interest of the victim, etc. (See fn. 7 ante.)
At the time of defendant’s trial in June 2006, section 667.61, subdivision (b), provided in relevant part: “Except as provided in subdivision (a), a person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 15 years except as provided in subdivision (j).” Subdivision (c)(4) stated it applied to section 288(b), and subdivision (c)(7) stated it applied to section 288(a) unless the defendant qualifies for probation under section 1203.066, subdivision (c). Section 667.61, subdivision (e), stated the circumstances that applied to offenses specified in subdivision (c). As is relevant in this case, subdivision (e)(5) applied when “[t]he defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim.” Subdivision (h) stated, “Probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person who is subject to punishment under this section for any offense specified in paragraphs (1) to (6), inclusive, of subdivision (c).” Subdivision (i) stated, “For the penalties provided in this section to apply, the existence of any fact required under subdivision (d) or (e) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.”
Section 1203.066, subdivision (c), as referenced in section 667.61, subdivision (c)(7), provides that the ban on probation for defendants convicted of section 288 shall not apply when the court makes all of the following findings: (1) The defendant is the victim’s natural, adopted, or stepparent, a relative or a member of the victim’s household who has lived in the victim’s household; (2) a grant of probation is in the best interest of the child; (3) rehabilitation of the defendant is feasible; the defendant is amenable to undergoing treatment, and the defendant is placed in a recognized treatment program for child molestation immediately after the grant of probation or suspension of execution or imposition of sentence; (4) the defendant is removed from the victim’s household until the court determines that the best interests of the victim would be served by the return of the defendant. While removed, the court shall prohibit or, under certain conditions, may permit supervised contact of the defendant with the victim; and (5) there is no threat of physical harm to the victim if probation is granted.
According to defendant, a finding of guilt of a section 288(a) violation alone is “insufficient to trigger a life term under One Strike[;] . . . there must be a finding of probation disqualification as well. This is classically the type of finding to which the Apprendi principle must apply.” Defendant finds a “constitutional parallel” “between a special circumstance that renders a defendant eligible for the death penalty, and . . . the balance of aggravat[ing] and mitigat[ing] [factors] that guide[] the choice between life imprisonment and death once eligibility is established. The former is subject to the Apprendi principle while the latter is not. (People v. Davis (2005) 36 Cal.4th 510, 563-564; People v. Demetrulias (2006) 39 Cal.4th 1, 41; cf. Ring v. Arizona [(2002)] 536 U.S. 584, 602-603.)”
There can be no argument with the application of the “Apprendi principle” to a determination of eligibility for the death penalty, or of eligibility for a greater punishment than the maximum penalty a judge may impose without any additional findings. (Blakely v. Washington (2004) 542 U.S. 296, 303-304.) However, for a violation of section 288(a) to fall under the provisions of section 1203.066, subdivision (c), “the existence of any fact required in subdivision (a) [must be] alleged in the accusatory pleading and . . . either admitted by the defendant in open court, or found to be true by the trier of fact.” (§ 1203.066, subd. (c)(1).) “For the existence of any fact under paragraph (7) of subdivision (a)[, as is relevant here, that the defendant was convicted of molesting more than one victim in the case] the allegation must be made pursuant to this section.” (Id., subd. (c)(2).) Section 667.61, subdivision (i) also requires the same allegation. In the instant information, a separate allegation also charged that defendant was ineligible for probation and suspension of sentence (id., subd. (a)(1)) in all counts.
Sitting as the trier of fact, the court found defendant guilty of violating section 288(b) in counts 1 through 6, and section 288(a) in counts 7 through 16. The court found true the allegations in counts 3 through 16 of the amended information that defendant has “been convicted in the present case of committing an offense specified in [subdivision] (c) against more than one victim within the meaning of Penal Code sections 667.61[, subdivision] (b) and 667.61[, subdivision] (e).”
The prosecution does not have the burden of proving probation disqualification beyond a reasonable doubt in order to establish the applicability of the One Strike law as defendant claims. “All defendants are eligible for probation, in the discretion of the sentencing court, unless a statute provides otherwise.” (People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1247.) “In enacting section 1203.066 it appears that the Legislature intended that state prison be the sentencing norm in child molestation cases, meeting the criteria in subdivision (a), and that the defendant bear the burden of persuading the court to depart from that norm by granting probation.” (People v. McLaughlin (1988) 203 Cal.App.3d 1037, 1039.) In this case, the statutes that provided probation ineligibility were alleged and found true as to all counts. Under similar circumstances, an appellate court stated that an appellant had “failed to carry his burden of persuading the court to grant probation” (People v. Lammey (1989) 216 Cal.App.3d 92, 98) where “appellant presented no evidence regarding whether the child’s best interest required that he not be imprisoned ([§ 1203.066,] subd. (c)(2)), whether rehabilitation was feasible (subd. (c)(3)), or whether he caused a threat of physical harm to the child if not imprisoned (subd. (c)(4)).” (Ibid.) It is the defendant’s burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or the defense that he is asserting. (Evid. Code, § 500.) Where the evidence necessary to establish a fact essential to a claim lies peculiarly in the knowledge and competence of one of the parties, that party has the burden of going forward with the evidence. (Morris v. Williams (1967) 67 Cal.2d 733, 760.)
Sentencing is the time for the trial court to decide whether a defendant is eligible for probation. (§ 1203; Cal. Rules of Court, rule 4.413, hereafter rule, formerly, rule 413.) At sentencing, the court has available to it the probation officer’s presentence investigation report which contains, among other things, the defendant’s statement to the probation officer including the defendant’s account of the circumstances of the crime, the defendant’s social history, collateral information including written statements from official sources such as defense and prosecution attorneys, later police reports, statements from probation and parole officers who have had prior experience with the defendant and correctional personnel who observed the defendant’s behavior during any period of presentence incarceration; and interested persons such as family members and others who have written letters concerning the defendant. (Rule 4.411.5, formerly, rule 411.5.)
If the information presented at sentencing causes the court to believe probation is a possibility, the court must order a psychological report pursuant to section 288.1. (§ 1203.067, subd. (a)(3), incorporated into § 667.61 through subd. (7) and § 1203.066, subd. (c).) However, where the court is “ ‘not inclined’ ” to grant probation on information before it (People v. Thompson (1989) 214 Cal.App.3d 1547, 1550), there is no need for a diagnostic report. (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1532.)
In addition to the authority discussed ante, People v. Benitez (2005) 127 Cal.App.4th 1274 (Benitez), stated that the Legislature granted authority to the trial court to entertain a request for probation if a defendant satisfies the criteria in section 1203.066, subdivision (c), despite a defendant’s eligibility otherwise for sentencing under section 667.61. Probation is an act of clemency on the part of the trial court. “Because a defendant’s eligibility for probation results in a reduction rather than an increase in the sentence prescribed for his offenses, it is not subject to the rule of Blakely.” (Benitez, supra,127 Cal.App.4th at p. 1278.)
The no-probation allegations in the instant information were statutorily required to be pled and proved by the prosecution. They were. Evidence supporting the factors that would enable a grant of probation upon consideration by the court was the defendant’s burden to produce. He did not. The trial court did not err in imposing the One Strike sentences.
JURY WAIVER
Finally, defendant asserts that he did not knowingly or intelligently waive his right to a jury trial. He claims the court’s advisements “failed to properly define the scope of this right, and implied that the Sixth Amendment right was applicable only to the determination of the facts constituting the charged crimes. This excluded the multitude of factual issues, collateral to the elements of the charged offense, that certainly came within the Sixth Amendment right to trial by jury as defined in Apprendi[, supra,] 530 U.S. 466.”
Defendant concedes that the court’s advisements accurately described the scope of a jury trial on the issue of guilt and other trial rights that remain in the absence of a jury trial. The fatal flaw was the lack of a “direct advisement of a connection between the right to a jury determination and any matter related to sentencing. Further, it cannot be reasonably asserted that the connection was implied by the advisement of [defendant’s] maximum exposure. . . . [T]he sentencing advisement was simply to warn the defendant what was at stake in giving up any fundamental right, and there was no unique connection implied here between the right to trial by jury and sentencing.”
The court advised that a jury waiver would mean the trier of fact would be the court rather than a jury composed of “12 impartial citizens,” and that defendant retained the right to confront and cross-examine witnesses, call his own witnesses, and testify or not as he chose. The court stated defendant’s maximum exposure to prison was 150 years to life plus 32 years. Defendant stated he understood each right and the consequences and that he waived the right to jury trial.
Defendant complains that “an advisement that does not convey the Apprendi principle . . . misrepresents the actual scope of the right to trial by jury, and that any waiver elicited by such an advisement cannot constitute a knowing or intelligent waiver of the right to trial by jury.” In support of this statement, he cites a number of sister state opinions. In the first on his list, State v. Dettman (Minn. 2006) 719 N.W.2d 644, 650-651, the Minnesota Supreme Court stated, “we hold that a defendant must expressly, knowingly, voluntarily, and intelligently waive his right to a jury determination of facts supporting an upward sentencing departure before his statements at his guilty-plea hearing may be used to enhance his sentence.” Unlike Dettman, defendant was not waiving his right to a trial so he could plead guilty. Defendant was waiving his right to a trier of fact of 12 persons in favor of a court trial.
When a defendant waives a jury trial, he is deemed to have consented to a trial of all of the issues in the case before the court sitting without a jury. (People v. Jarmon (1992) 2 Cal.App.4th 1345, 1354-1355.) Here, defendant had been arraigned on an information that pled allegations that he was ineligible for probation as required by sections 667.61, subdivision (i) and 1203.066, subdivision (c). The information gave notice that it contained allegations that would, if found true, render defendant ineligible for probation and that, by reference to the statutes cited, it gave him notice that he would be eligible for One Strike sentences. Defendant was represented by counsel who consented to the waiver of a jury trial.
We note that the record contains a persistent complaint about defense counsel raised in several written motions pursuant to People v. Marsden (1970) 2 Cal.3d 118 dated as late as October 7, 2005. However, a satisfactory solution was apparently reached earlier than that in August 2005. No Marsden issue was raised on appeal.
The trial started on June 26, 2006. The court asked defendant if he agreed to have “the matter” tried by the court and he answered yes. The document which was the subject of either a jury or court trial was the information. There was no suggestion that any charge or allegation in the information would be tried separately from any other. Therefore, when defendant waived the right to jury trial and consented to have “the matter” tried before the court, he gave up the right to jury trial on all issues contained in the information. The waiver was knowing and intelligent.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.