Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court No. RIF142821 of Riverside County. David B. Downing, Judge.
Dacia A. Burz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia, Meagan Beale, Felicity Senoski, and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King J.
I. INTRODUCTION
Defendant Andre Jackson is the stepfather of the victim, J.R. He was convicted of two counts of oral copulation involving a minor under the age of 14 and two counts of sodomy, one involving a minor under the age of 14 and one involving a minor under the age of 16. He was further found guilty of one count of lewd and lascivious conduct, one count of attempted lewd and lascivious conduct, and one count of battery. All of the conduct occurred between 1997, when J.R. was seven years old, and 2004 when he was 14. The trial court sentenced defendant to a total indeterminate sentence of 54 years 8 months to life. On appeal he raises three claims of error.
First, defendant claims the trial court abused its discretion under Evidence Code section 352, in admitting a prior consistent statement of J.R. detailing the molestations. As background, approximately one year before trial, J.R.’s mother and defendant were involved in a child custody action involving J.R.’s half brother, J. As part of that action, in February 2008, J.R. submitted a written declaration describing defendant’s sexual abuse. At trial in the present matter, the court allowed the February 2008 declaration into evidence as a prior consistent statement. (§ 791.) On appeal, defendant does not claim error as it relates to its admissibility as a prior consistent statement; rather, he argues the trial court abused its discretion under section 352 in that the probative value of the statement was substantially outweighed by its undue prejudice. Specifically, he contends the statement was unduly prejudicial in that the jury was allowed to place an undue amount of trustworthiness in the statement because it was implicitly found credible in the earlier custody matter. We conclude the prior statement was properly admitted and, even if it was not, it was harmless.
All further statutory references are to the Evidence Code unless otherwise indicated.
Second, defendant contends the court prejudicially erred in failing to instruct the jury that defendant’s out-of-court statements must be viewed with caution. The People concede this error but argue it was harmless. We agree any error was harmless. We also reject defendant’s further claim that the cumulative effect of the admission of J.R.’s prior statement and the failure to give the cautionary instruction was prejudicial.
Third and finally, defendant claims the trial court misunderstood its sentencing discretion in imposing three consecutive 15-year-to-life terms on counts 2, 3, and 4. We conclude the terms were required to be imposed consecutively (Pen. Code, §§ 269, 667.6, subds. (d), (e)) and the court did not have discretion to impose the terms concurrently. We therefore affirm the judgment in its entirety.
II. FACTUAL SUMMARY
At the time of trial, J.R. was 19 years old. Defendant is his stepfather. The first time J.R. was inappropriately touched by defendant was when J.R. was in fourth grade. J.R. and defendant were lying on a couch when defendant pulled J.R. on top of him. Defendant put his hands underneath J.R.’s pants and moved his hands to J.R.’s inner thigh. During this incident, J.R.’s underpants were still on. This kind of prolonged hugging and petting occurred more frequently when J.R. was in fifth grade.
While still in the fifth grade, defendant asked J.R. to take a shower with him. Both J.R. and defendant got into the shower with their clothes off. Defendant washed J.R.’s buttocks, legs, genitals, and penis. Defendant then asked J.R. to wash defendant’s penis. Defendant had an erect penis. Upon defendant’s request, J.R. kissed defendant’s penis. Defendant then put J.R.’s penis in his mouth, followed by J.R. putting defendant’s penis in his mouth. Defendant explained to J.R. he was showing him love. Shower incidents of this nature happened more than once.
When J.R. was in the sixth grade defendant sodomized him. The incident lasted about 20 minutes. When J.R. was 14 years old and a freshman in high school, he was again sodomized when defendant came into his bedroom during the nighttime. It was on the night of this incident that J.R.’s mother observed defendant and J.R. coming out of the bathroom with their pants down.
The next morning, J.R. and defendant, a church pastor, went to defendant’s church to set up for services. Defendant took J.R.’s hand and led him to the bathroom; defendant then unzipped his pants and told J.R. to “suck [his] dick.” Defendant ejaculated in J.R.’s mouth. This was the last time J.R. was molested.
J.R. did not tell anybody about the molestations until his senior year in high school, at which time he told his girlfriend, C.S. He was confronted by his mother about the molestations approximately one month later.
J.R.’s mother had been told about the molestations by C.S.’s mother.
III. DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion Under Section 352 in Admitting the Prior Consistent Statement
A little over one year before trial, J.R.’s mother and defendant became involved in a child custody action involving J.R.’s half brother, J. As part of that action, J.R. submitted a written declaration describing defendant’s sexual abuse. At the present trial, the court allowed the written declaration into evidence as a prior consistent statement. Defendant contends this was error. While not contesting its threshold admissibility as a prior consistent statement, he argues that the trial court abused its discretion under section 352, in that the probative value of the statement was substantially outweighed by its undue prejudice. He contends the statement was unduly prejudicial in that the jury was allowed to place an undue amount of trustworthiness in the statement because it was implicitly found credible by the family law court in the earlier custody matter. The People argue that defendant has forfeited the issue for purposes of appeal in that it was defense counsel that first brought the issue before the jury. The People further argue that regardless of the issue of forfeiture, the trial court acted well within its discretion in allowing the prior consistent statement into evidence. We agree with the People in both regards.
The prior consistent statement, with little deviation, is identical to the testimony rendered by J.R.
We first address the forfeiture issue. At the beginning of trial and prior to the jury being empaneled, the prosecutor sought permission to introduce into evidence a written declaration prepared by J.R. in February 2008, one year before the present criminal trial. The declaration was prepared as part of a child custody proceeding between J.R.’s mother and defendant; it was prepared at the request of mother’s attorney. The prosecutor sought to have it admitted into evidence as a prior consistent statement. Following some discussion between counsel and the court as to whether the declaration qualified as a prior consistent statement and, if so, whether it should be excluded under section 352, the prosecutor requested a section 402 hearing. Following the hearing, and prior to opening statements, the trial court indicated it would withhold its ruling until after the cross-examination of J.R. by defense counsel; the court further stated it was doubtful the statement would be allowed into evidence.
The state’s first witness was Riverside County Sheriff’s Detective William Guimont. No mention of the February 2008 declaration was made during his testimony. The prosecutor next called J.R.’s mother. On direct, J.R.’s mother testified that in 2004 she separated from defendant and was given custody of both J.R. and J. Under the prosecutor’s questioning, she further testified that in October 2007 she moved to Las Vegas, and in January 2008 she received legal papers relative to defendant attempting to obtain custody of J. On cross-examination by defense counsel, she testified that she filed for divorce in March 2005. During the summer of 2007, she moved to Las Vegas and in 2008 she received papers from defendant’s lawyer accusing her of child abduction. Again, there was no mention of the declaration submitted by J.R. in the custody proceeding nor any mention of the family court’s subsequent custody ruling.
The next witness called was J.R. His direct examination elicited no testimony relative to the February 2008 declaration or the family court’s custody order. On cross-examination, defense counsel for the first time brought before the jury the subject of the declaration prepared by J.R. for the family law court. As the record indicates:
At oral argument, defendant’s counsel argued there was no invited error because J.R. effectively referred to his 2008 declaration during his direct testimony. Counsel pointed to a passage approximately midway through J.R.’s direct testimony when he explained he was testifying because defendant might molest someone else, defendant had asked for sole custody of J., and J.R. wanted to make sure J. was “not in that environment.” By so testifying, J.R. did not refer, even remotely, to his prior declaration or the family court matter.
“Q. And you talked to [your mother’s] attorney, Wanda Green, in the family law court about this; isn’t that right?
“A. Yes
“Q. Then you talked to a number of people from the District Attorney’s Office, including [the deputy district attorney handling the case], about what you would say when you testified; isn’t that right?
“A. Yes.
“Q. So you practiced, so to speak. You talked about what you would say when it came time to testify?
“A. There’s no practicing involved. I say what I say every time I say it. It’s the truth every time. [¶]... [¶]
“Q.... What you testified to yesterday, you wrote—you wrote it out at the request of the family law attorney; isn’t that right?
“A. Correct.
“Q. And that was for the sole purpose of the family law proceedings in Riverside in March of 2008; isn’t that right? [¶]... [¶]
“Q. And your mom and her attorney asked you to write something up about how you had been abused as a child for the purposes of the family law proceeding?
“A. I had already told my mother about the incident, and they asked that I write a written statement of what happened.
“Q. And the point of that was so that [defendant] would not get custody of [J.]; that your mom would win; and she wouldn’t get in trouble for taking him to Las Vegas?
“A. The point of that letter was so [defendant] would not get custody of my brother. That’s where the point of that letter ends—the point of that letter.
“Q. And that’s what your mom wanted?
“A. I would imagine so.”
Shortly after this exchange, cross-examination ended. Thereupon, the trial court ruled that the prior consistent statement would be allowed into evidence. In so ruling, the court, in part, reasoned: “Now, [defense counsel] has gotten [J.R.] to say, quote, you wrote it out—talking about the letter—the lawyer and your mom asked you to write something out, unquote, and talked about, quote, the point of that letter, unquote. I assume you’re referring to this two-page document so that your dad, the defendant, wouldn’t get custody of your younger brother. So [defense counsel] has brought the existence of this letter up on three separate occasions just now on cross-examination.” Continuing, the court stated: “[Y]ou brought it up on three separate occasions and cross-examined the defendant—cross-examined [J.R.], the victim, about it. So the jury now knows that there is a two—a letter. They don’t know how long it is or what it says, basically a two-page letter that now, I think the jury is of the opinion that [J.R.’s] mom’s lawyer, Ms. Green, had him write. That’s what I heard out there. [¶] So, given the totality of what’s been asked, what’s been answered, what’s on the jury’s mind, I’m going to let it in.”
On redirect examination, J.R. read the two-page declaration to the jury.
“‘“It is well settled that when a witness is questioned on cross-examination as to matters relevant to the subject of the direct examination but not elicited on that examination, he [or she] may be examined on redirect as to such new matter.”’” (People v. Hamilton (2009) 45 Cal.4th 863, 921.) And, as a corollary, having introduced evidence of the 2008 declaration for purposes of attempting to undermine the credibility of the witness, defendant may not now complain as to the admission into evidence of said declaration and the surrounding circumstances. (See People v. Visciotti (1992) 2 Cal.4th 1, 72.)
As indicated in People v. Gutierrez (2002) 28 Cal.4th 1083, 1139, “it was defense counsel who, in questioning [the victim], proceeded to first elicit before the jury the fact that defendant had been in prison and that he had served time for assault on a peace officer. The doctrine of invited error bars defendant from challenging the ruling on appeal.” (See also Kessler v. Gray (1978) 77 Cal.App.3d 284, 290 [“‘Under the doctrine of invited error, a party may not object to the sufficiency of the evidence to support a finding against him when the lack is the result of improper exclusion of evidence at his own instance.’ [Citation.]” Italics added].)
Clearly, defendant opened the door to the admission of the prior consistent statement and the surrounding circumstances. At no time during any of the prosecutor’s direct examination of J.R. was the 2008 declaration referenced or hinted at. Additionally, the trial court at the beginning of trial tentatively ruled that it doubted the admissibility of the prior statement. It was defense counsel who made a tactical decision to delve into the issue. Counsel’s theme throughout the trial was that J.R. lacked credibility. In cross-examining J.R., counsel attempted to illicit facts to support the theory that J.R.’s accusations of child molestation were false and were put forth only for purposes of aiding his mother in her dissolution and child custody matter. Accordingly, the prosecutor was entitled to rehabilitate J.R. on redirect examination. And to the extent it may have been error to introduce the overall subject matter of J.R.’s February 2008 declaration, the error was clearly invited by defendant.
The above aside, we do not believe the trial court abused its discretion in admitting the statement. “‘Broadly speaking, an appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion. [Citation.]’... This standard of review is applicable both to a trial court’s determination of the relevance of evidence as well as to its determination under Evidence Code section 352 of whether the evidence’s probative value is substantially outweighed by its prejudicial effect....” (People v. Martinez (1998) 62 Cal.App.4th 1454, 1459.) A trial court’s exercise of discretion is to be impartial, guided and controlled by fixed legal principles. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.) “That discretion is only abused where there is a clear showing the trial court exceeded the bounds of reason, all circumstances being considered.” (People v. Martinez, supra, at p. 1459.)
Here, the probative value of the February 2008 declaration was clear. Defendant’s sole defense was that J.R. was not credible. During his cross-examination of Detective Guimont, defense counsel attempted to create the impression that J.R.’s initial complaint to the Riverside County Sheriff’s Department was not taken seriously by the sheriff’s office and that defendant was arrested solely on the word of J.R. and his mother, with no other supporting evidence. Then, through J.R.’s mother, defense counsel established that during her marriage to defendant, defendant struck her and the children on various occasions. Also elicited was testimony that she separated from defendant in 2004 and filed for divorce in 2005. In 2007, she moved to Las Vegas with J.R. and defendant’s natural son, J. Sometime during early 2008, defendant served her with legal papers seeking custody of J. and accusing her of absconding with J. Defense counsel further established that J.R.’s mother took J.R. to the sheriff’s office in 2007 and 2008 for purposes of reporting and trying to move the investigation on. Lastly, defense counsel established that J.R. had many opportunities to tell authorities of defendant’s molestations, but never did. Through J.R., defense counsel elicited evidence that in October 2004, when J.R. was slapped by defendant, J.R. did not tell two social workers, a psychiatrist, and two police officers anything about defendant molesting him. Repeatedly, J.R. was asked about “practic[ing] [his story] with [the prosecutor], ” writing the February 2008 declaration at the request of his mother and her attorney, and making up the allegations to please his mother. Attacking the veracity of the prosecution’s case was the defense tactic. The consistency between J.R.’s February 2008 declaration and his trial testimony was clearly probative of J.R.’s credibility.
Defendant argues the probative value of the February 2008 declaration was substantially outweighed by its undue prejudice. He argues the jury must have credited the declaration because the family court judge awarded custody of J. to the mother; thus, the judge must have found the declaration to be truthful. Initially, we point out that this argument relative to undue prejudice was never raised at the trial level; it is presented here for the first time. (People v. Kennedy (2005) 36 Cal.4th 595, 612 [ground for excluding testimony is forfeited on appeal if not asserted at trial level], disapproved on another point in People v. Williams (2010) 49 Cal.4th 405, 459.)
Setting aside the forfeiture issue, we note the record reflects only two comments relative to the family court’s ruling. The first was made by J.R.’s mother in response to a question proffered by defense counsel. The only other time the family court order was inferentially referenced was during the prosecutor’s further redirect examination of J.R. when the following occurred:
In neither of the instances when reference to the family court order was made did defense counsel move to strike the answer either under section 352 or as being nonresponsive to the question. (See People v. Hayes (1999) 21 Cal.4th 1211, 1261 [“‘A verdict may not be set aside on the basis of the erroneous admission of evidence... unless the party asserting error has preserved the question by a timely and specific objection to the admission of the evidence, or by a motion to strike or exclude the evidence.’ [Citation.]”].) Defense counsel did not seek to strike the answers.
“Q. Are you making up these very serious allegations against [defendant] to help your mother out?
“A. I have no reason to. She has sole custody of [J.]. He’s never going to get her, whether I say something about it or not.”
The family court’s order was not referenced during closing arguments.
There is nothing “unduly prejudicial” about these two references to the family court order. As stated in People v. Samuels (2005) 36 Cal.4th 96, 124, “‘the “prejudice” referred to in Evidence Code section 352 [is]... evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues....’” There is absolutely nothing about the brief mention of the family court order that would evoke an emotional bias against defendant or would even imply to the jury that the family court’s order in some fashion bolstered the credibility of J.R.’s February 2008 declaration.
At all relevant times after 2004 and before the 2008 family court order, J.R.’s mother had custody of J. In the 2008 family court proceeding, defendant alleged that J.R.’s mother absconded with J. and on that basis sought custody of J. The fact that custody was not changed in the 2008 proceeding reflects nothing more than that the family court judge was not persuaded that the mother absconded with J. and that circumstances had not changed since the original custody order. It does not mean the family court believed the accusations of child molestation in J.R.’s February 2008 declaration.
Even if the trial court abused its discretion in admitting the declaration, the error is harmless. Implicit within the context of the entire record is the fact the February 2008 declaration was consistent with other statements J.R. gave to investigating detectives. Furthermore, prior to any custody issue developing in 2008 between J.R.’s mother and defendant, J.R. told his girlfriend about the molestations. The veracity of J.R.’s factual recitation was evident given its consistency over the years. The references to the family court order were very indirect and made in passing. To read into the family court’s order a finding of trustworthiness relative to J.R.’s declaration is extremely attenuated. It is not reasonably probable defendant would have achieved a more favorable result had the 2008 declaration not been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Defendant relies on People v. Cummings (1993) 4 Cal.4th 1233 and Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865 to support his argument that reference to the family court order was unduly prejudicial and should therefore have been excluded under section 352. The cases are inapposite. In Cummings, two codefendants were being tried together for murder and the trial court took judicial notice that the wife of one of the codefendants had been convicted of aiding and abetting the murder. (People v. Cummings, supra, at pp. 1294-1295 & fn. 37.) The court held the evidence was “clearly” more prejudicial than probative (§ 352) because it was “inconceivable” the jury would not have understand the evidence as reflecting on her husband’s guilt. (People v. Cummings, supra, at p. 1295.) Similarly, in Clemmer, a wrongful death case, the trial court did not abuse its discretion under section 352 in excluding evidence of the defendant’s conviction for murdering the wrongful death victim. There was no controversy concerning how the death of the victim occurred, and the only purpose in admitting the evidence of the defendant’s murder conviction was to show another jury thought murder had been committed. Here, in contrast to Cummings and Clemmer, the references to the family court order were oblique and did not indicate the family court must have accepted the truthfulness of J.R.’s February 2008 declaration.
B. The Trial Court’s Failure to Instruct the Jury That Defendant’s Out-of-court Statements Should Be Viewed With Caution is Harmless
Defendant contends the trial court erred in failing to instruct the jury that defendant’s out-of-court statements should be viewed with caution. At issue are statements made by defendant during one of the shower incidents, when he said he would have to hurt J.R. and J.R.’s mother if J.R. told anyone about the molestations. J.R. also testified that at another point defendant told him that if he told anyone about the molestations, defendant would have to kill J.R. and his mother. The People concede the error but argue it was harmless.
Judicial Council of California Criminal Jury Instructions, CALCRIM No. 358 provides: “You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to the statement[s]. [¶] [Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.]”
“‘The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made.’ [Citation.] This purpose would apply to any oral statement of the defendant, whether made before, during, or after the crime.” (People v. Carpenter (1997) 15 Cal.4th 312, 393, italics added.) A trial court has a sua sponte duty to instruct the jury to view a defendant’s oral statements with caution, and the standard of review for the erroneous failure to give a cautionary instruction is “‘the normal standard of review for state law error: whether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given.” (People v. Dickey (2005) 35 Cal.4th 884, 905.)
In People v. Zichko (2004) 118 Cal.App.4th 1055, the defendant was charged with making a criminal threat (Pen. Code, § 422) by threatening to shoot a bank teller. Because the threat constituted the crime itself, the court held the trial court did not have a duty to give former CALJIC No. 2.71, a cautionary instruction that applied only to admissions, unlike CALCRIM No. 358 which applies to any oral or written statements of a defendant. The court reasoned that the defendant’s threat was not an admission and, more broadly, any instruction to view the threat with caution may have misled the jury to believe it could find the defendant guilty even if it did not conclude beyond a reasonable doubt he made the threat (or committed the crime), as long as the jury exercised “caution” in determining he made the threat. (People v. Zichko, supra, at pp. 1059-1060.) While the People do not make the argument, defendant’s threats or statements during one of the shower incidents that he would harm J.R. and his mother if J.R. disclosed the molestations quite arguably constitute the element of “duress” and are thus arguably an integral part of the crimes charged. Given this, any cautionary instruction was arguably not required.
Because the purpose of the cautionary instruction is “‘“to help the jury to determine whether the statement attributed to the defendant was in fact made, courts examining the prejudice in failing to give the instruction examine the record to see if there was any conflict in the evidence about the exact words used, their meaning, or whether the admissions were repeated accurately. [Citations.]” [Citation.]’ [Citation.]” (People v. Wilson (2008) 43 Cal.4th 1, 19.)
Here, there was no conflict in the evidence concerning the exact words defendant said to J.R., and J.R.’s testimony that defendant orally threatened him and his mother was uncontradicted. (People v. Beagle (1972) 6 Cal.3d 441, 456 [failure to give cautionary instruction not prejudicial because there was “no conflicting evidence or issue concerning the statements”].) Additionally, the testimony of J.R. and his mother showed defendant had used physical force on J.R. and his mother. Given defendant’s resort to violence in other situations, it would be totally consistent for defendant to threaten physical force to prevent J.R. from divulging the molestations. The jury was also instructed it was the sole judge of the credibility of the witnesses. And, given that the jury convicted defendant of the various counts despite the defense that J.R. was not the least bit credible, it is most doubtful that the omitted cautionary instruction had any impact on the result whatsoever.
C. No Cumulative Error
Defendant argues the erroneous admission of J.R.’s 2008 declaration, together with the failure to instruct the jury to view defendant’s threats to J.R. with caution, deprived him of a fair trial. Specifically, he argues the errors rendered his defense “far less persuasive” (Chambers v. Mississippi (1973) 410 U.S. 284, 294) and for this reason had a “substantial and injurious effect or influence” on the jury’s verdict (Brecht v. Abrahamson (1993) 507 U.S. 619, 637-638). We disagree.
The defense theory was that J.R.’s accusations of molestation were not credible. But defense counsel thoroughly cross-examined J.R. concerning his possible ulterior motives for making the accusations in the first instance—to help his mother gain or retain sole custody of J. Still, the jury apparently believed J.R.’s accusations that defendant had molested him, without any indication the family court had accepted the truthfulness of J.R.’s 2008 declaration recounting the molestations. J.R.’s credibility in accusing defendant was bolstered not so much by his prior consistent statements in his February 2008 declaration in the family court, but more so by the fact he told his girlfriend about the molestations before he signed the declaration and also because he made additional consistent statements about the molestations to investigating detectives.
Further, the failure to instruct the jury to view with caution defendant’s threats to harm or kill J.R. and his mother did not substantially undermine the defense theory that J.R.’s testimony about the molestations, including the threats, was not credible. As discussed, there was no conflicting testimony about the threats, and defendant had used physical violence against J.R. and his mother on other occasions. Thus, the failure to give a cautionary instruction was not “vitally important” to the defense theory that J.R. was not credible. (Cf. People v. Lopez (1975) 47 Cal.App.3d 8, 13-14 [failure to give cautionary instruction concerning defendant’s alleged threats to police was prejudicial because it was “vitally important” to the defense theory that police struck the defendant first, unprovoked; conflicting testimony was given concerning defendant’s threats].)
D. Consecutive Terms Were Properly Imposed on Counts 2, 3, and 4
Defendant claims the court misunderstood its discretion in imposing consecutive 15-year-to-life terms on counts 2, 3, and 4, and remand is necessary to allow the court to exercise its discretion to impose the terms consecutively or concurrently. We disagree. The court did not misunderstand its sentencing discretion. Consecutive sentences were required to be imposed on counts 2, 3, and 4. (Pen. Code, §§ 269, 667.6, subds. (d), (e).) The court did not have discretion to impose the terms concurrently.
In counts 2 and 3, defendant was convicted of orally copulating a child under age 14 by force (Pen. Code, §§ 269, subd. (a)(4), 288a), and in count 4, he was convicted of aggravated sexual assault, sodomy, on a child under age 14 by force (Pen. Code, §§ 269, subd. (a)(3), 286). Penal Code section 667.6, subdivision (d) requires consecutive terms for crimes listed in Penal Code section 667.6, subdivision (e). These include sodomy, in violation of Penal Code section 286, subdivision (c)(2), (c)(3), or (d), and oral copulation, in violation of Penal Code section 288a, subdivision (c)(2), (c)(3), or (d). (Pen. Code, § 667.6, subd. (e).)
Penal Code section 269 defines the crime of aggravated sexual assault of a minor as involving the commission of any one of several acts upon a child under age 14, including sodomy, in violation of Penal Code section 286, subdivision (c)(2), (c)(3), or (d) (Pen. Code, § 269, subd. (a)(3)), and oral copulation, in violation of Penal Code section 288a, subdivision (c)(2), (c)(3), or (d) (Pen. Code, § 269, subd. (a)(4)). Although violations of Penal Code section 269 are not expressly listed in Penal Code section 667.6, subdivision (e), when a violation of Penal Code section 269 also constitutes violation of a statute or “predicate offense” listed in Penal Code section 667.6, subdivision (e), then Penal Code section 667.6, subdivision (d) applies and requires a “separate and consecutive term” for the violation. (People v. Jimenez (2000) 80 Cal.App.4th 286, 291-292.) Penal Code sections 269 and 667.6, subdivision (d) are “cumulative, not alternative, to each other.” (People v. Jimenez, supra, at p. 292.)
In 2006, subdivision (c) was added to Penal Code section 269 (Stats. 2006, ch. 337, § 6, p. 2132.) It states: “The court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions, as defined in subdivision (d) of [Penal Code] section 667.6.” In imposing sentence, the court noted that Penal Code section 269, subdivision (c) required the imposition of consecutive terms on counts 2, 3, and 4 because the crimes involved the same victim but occurred on separate occasions.
Defendant argues that, because counts 2, 3, and 4 occurred between 1997 and 2004, before subdivision (c) was added to Penal Code section 269 in 2006, Penal Code section 269, subdivision (c) does not apply to his crimes. Thus, he argues, the sentencing court had discretion to impose the terms concurrently. (Pen. Code, § 669; People v. Felix (2000) 22 Cal.4th 651, 655 [Penal Code section 669 authorizes the court to impose consecutive or concurrent terms, whether determinate or indeterminate].) The People agree Penal Code section 269, subdivision (c) did not apply to counts 2, 3, and 4, but argue the consecutive terms were nevertheless properly imposed under Penal Code section 667.6, subdivision (d). We agree with the People.
In People v. Figueroa (2008) 162 Cal.App.4th 95 at pages 98 to 100 [Fourth Dist., Div. Two], this court rejected substantially the same claim defendant raises here. We adopted People v. Jimenez, supra, 80 Cal.App.4th at pages 291 and 292 in concluding that consecutive terms were properly imposed under Penal Code section 667.6, subdivision (d) for violations of Penal Code section 269 committed before the enactment of Penal Code section 269, subdivision (c) in 2006. We also noted that in People v. Glass (2004) 114 Cal.App.4th 1032 at page 1037 and footnote 10, the court observed that the bill analysis for Penal Code section 269, originally enacted in 1994, specifically referred to Penal Code section 667.6 as applying to Penal Code section 269 crimes. (People v. Figueroa, supra, at p. 99.)
Defendant argues Jimenez and Figueroa were wrongly decided, but he advances no argument that was not addressed in those cases. We therefore decline to reexamine our decision in Figueroa and conclude defendant was properly sentenced to consecutive terms on counts 2, 3, and 4 under Penal Code section 667.6, subdivision (d). (Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 568 [ruling or decision correct in law will not be disturbed on appeal merely because it was given for the wrong reason].)
IV. DISPOSITION
The judgment is affirmed.
We concur: McKinster Acting P.J., Richli J.
Thereafter, while J.R. was still under direct examination and outside the presence of the jury, the trial court discussed the issue of the declaration as a prior consistent statement. The court stated: “All right. And the other issue about the two-page document we’ve not marked or done anything [with] remains open until such time as [defense counsel] is done with his cross-examination, and I’ll rule one way or another.” By noting the matter was still open, the court apparently agreed the prosecutor had not “opened the door” to the declaration, at least at that point.