Opinion
E051156
08-31-2011
THE PEOPLE, Plaintiff and Respondent, v. BILLY BENNY LOPEZ, Defendant and Appellant.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIF147296)
OPINION
APPEAL from the Superior Court of Riverside County. Ronald R. Combest, Judge. (Retired judge of the Mendocino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Billy Benny Lopez, was convicted following a jury trial of two counts of aggravated sexual assault on a child under the age of 14 and more than seven years his junior (Pen. Code, §§ 269, subd. (a)(4) [oral copulation], (a)(5) [sexual penetration] (counts 1 & 2)) and five counts of aggravated lewd conduct on a child under the age of 14 (§ 288, subd. (b)(1) (counts 3-7)). All of the offenses were committed against a single victim, Jane Doe, when Jane was six to nine years old and defendant was 16 to 19 years old. The trial court sentenced defendant to 30 years to life, consisting of consecutive 15 year-to-life terms on counts 1 and 2 and concurrent terms on counts 3 through 7.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant appeals, raising four contentions: (1) insufficient evidence supports each of his seven aggravated sexual assault convictions because there was no evidence he committed any of the acts by means of force, violence, fear, or duress; (2) the court erroneously failed to instruct the jury sua sponte that lewd acts with a child under the age of 14, without force, duress, or fear, were lesser included offenses to the aggravated oral copulation and oral penetration charges in counts 1 and 2; (3) CALCRIM No. 3517 improperly instructed the jury to determine whether the greater offenses were committed before considering whether the lesser included offenses were committed; and (4) both the court and counsel mistakenly assumed that the court was without discretion to impose concurrent rather than consecutive terms on counts 1 and 2, and remand for resentencing is necessary to allow the court to exercise its discretion. We find each of these claims without merit, and affirm the judgment in all respects.
II. FACTUAL BACKGROUND
A. Prosecution Evidence
Jane was born in June 1997, and defendant was born in October 1986. In 2004, when Jane was six years old, she, her mother Cynthia, her stepfather (who was also defendant's brother), and her brother Brandon were living in one apartment of a duplex apartment building in Colton. In May 2004, defendant, then age 17, and his mother Virginia moved into the other apartment. Jane did not know defendant before he moved in next door.
The two apartments were joined by a common door that opened into a closet in defendant's apartment and a bathroom in Jane's apartment. In 2005, at the request of Jane's mother, defendant began meeting Jane and her brother at the end of their school day to walk them home.
When Jane testified at trial in June 2009, she had recently turned 12. She recalled being between the ages of six and nine when the sexual acts involving defendant occurred, but she did not recall exactly how old she was or the exact dates or years the sexual acts occurred.
On one occasion in defendant's bedroom, defendant told Jane to pull down her pants and "hold up" her "private area" below her waist, and defendant took a photograph of her. No adults were in either apartment when this incident occurred; Jane's brother Brandon was in his family's apartment playing games.
On another occasion, defendant showed Jane photographs of naked people in a magazine. On still another occasion, when Jane was less than nine years old, defendant made Jane watch adult pornography with him in his bedroom even though she did not want to.
Jane also recalled that on at least three occasions, which usually occurred on the floor in defendant's bedroom, defendant tried inserting his penis into her rectum. When defendant did this, he would hold his hands on the sides of Jane's body and move her around. Defendant was unable to insert his penis into Jane's rectum, even though he tried using a gel.
The first time defendant tried to put his penis into her rectum, he told her to pull down her pants and pull up her shirt. Jane complied because she was "scared" and believed defendant had a "weapon" in his back pants pocket. Jane could see "the outline" of what appeared to be a four-inch knife or box cutter in defendant's back pants pocket. Jane also noticed that defendant had "long swords" on the wall of his bedroom, and a poster of "Scarface" holding a gun.
On several occasions, defendant had Jane masturbate him by moving her hands "up and down" on his penis. On at least three of these occasions, defendant had Jane put her mouth on his penis and told her to "drink" his ejaculate. Jane did not want to do these things and would "pretend" to drink the ejaculate by covering her face. On one occasion, defendant put his finger up Jane's rectum. Jane said "it hurt" and she did not want it there. This was the last sexual act Jane recalled defendant doing to her.
Jane testified that she never wanted to perform any sexual acts with defendant but did so only because she was "scared" and believed defendant would harm her family if she did not do what he told her. For the same reason, Jane did not tell her mother about the molestations as they were occurring.
Jane admitted that defendant never showed her any weapon and never expressly threatened to harm her or her family. Defendant also never used any physical force during any of the sexual incidents—by pinning Jane down, for example. Once, however, when Jane was around six years old, defendant threatened to tell Jane's mother that Jane had a boyfriend.
In January 2008, Jane's then 18-year-old brother, Alan M., moved in with his mother Cynthia, his stepfather, Jane, and Jane's other brother. At that time, defendant was still living in the apartment next door, and Alan noticed that Jane did not want to be around defendant. Shortly thereafter, defendant moved out of his apartment but still visited the duplex apartments almost daily.
Around October 2008, defendant gave Alan his digital camera so Alan could download some photographs. Alan discovered that the camera's memory card contained two serial video recordings showing Jane getting dressed in the bathroom of her family's apartment, and pulling on a Disney-themed skirt. The videos showed only the lower parts of Jane's legs, and were apparently taken through the one-inch gap between the floor and the door separating the two apartments. The videos were apparently recorded around August 2008. Alan showed the videos to his mother Cynthia. After seeing the videos, Cynthia spoke to Jane, and Jane told her about the sexual acts involving defendant. Cynthia contacted the police.
At some point, Alan asked defendant about the videos, and defendant said he wanted to look for whoever had taken them. Defendant took his camera and left, saying he was going to reenact how the videos were taken and he would be back, but Alan never saw him again.
On October 17, 2008, Jane was interviewed by forensic interviewer Sarah Walker, a member of the Riverside Child Assessment Team (RCAT). The interview was videotaped and played to the jury after Jane testified. Jane's trial testimony was consistent with her earlier interview statements. During the interview, Jane said the last time defendant made her pull her pants down, he put his finger into her rectum about five times. This was the only time he put his finger into her rectum. B. Defense Evidence
Defendant did not testify. Instead he called three character witnesses, namely, his cousin, his former girlfriend, and his older sister, each of whom testified he was a nonviolent person and had never exhibited a sexual interest in children.
Defendant's cousin, Vanesa Rangel, knew defendant very well and had never seen any "red flag[s]" indicting he had a sexual interest in children. Defendant had lived with his former girlfriend, Claudia Fernandez, from April 2007 to January 2008. On several occasions, Claudia left her two-year-old daughter alone with defendant and always trusted defendant with her daughter. Claudia had also observed defendant interacting with his nieces and nephews, who apparently had no fear of him. Defendant's older sister, Cynthia Sevier, testified that defendant was a "kind" person whom she trusted to be alone with her four children.
III. DISCUSSION
A. Substantial Evidence Shows Defendant Committed Each Crime By Means of Duress
Defendant first claims insufficient evidence supports his aggravated sexual assault convictions in counts 1 through 7, because there is no evidence he committed any of the sexual acts underlying the offenses by means of force, duress or fear. We conclude substantial evidence shows defendant committed each offense by means of duress, specifically by both express and implied threats of retribution.
When, as here, a criminal defendant claims that insufficient evidence supports one or more of his convictions, we review the entire record in the light most favorable to the judgment in order to determine whether it contains substantial evidence—that is, evidence which is reasonable, credible and of solid value—such that a reasonable trier of fact could have found the defendant guilty of the subject offense beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-578; Jackson v. Virginia (1979) 443 U.S. 307, 318-319.)
Aggravated sexual assault on a child, whether by oral copulation or sexual penetration (§ 269, subd. (a)(4), (a)(5)), and aggravated lewd conduct on a child (§ 288, subd. (b)(1)) require proof that the underlying sexual acts were committed by means of "force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." (§§ 269, subd. (a)(4) [referencing § 288a, subd. (c)(2)] and (a)(5) [referencing § 289, subd. (a)]; § 288, subd. (b)(1); see, e.g., People v. Cochran (2002) 103 Cal.App.4th 8, 13.)
In arguing the case to the jury, the prosecutor said he was not claiming defendant committed any of the sexual acts by means of force or violence. Instead, he argued the evidence showed that defendant committed the acts by means of "duress and fear." We therefore limit our inquiry to whether substantial evidence shows defendant committed the sexual acts by means of duress.
The prosecutor told the jury: "I'm not saying that he did it by force, I want to be clear on that. I'm not saying that he did it by violence, I want to be clear on that. Duress and fear, both are there. Duress, the law says it's a direct or implied threat of force or violence or danger or hardship or retribution that causes a reasonable person to do or submit to something that they wouldn't usually do."
For purposes of all of the charged offenses, "duress" means "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. [Citations.]" (People v. Leal (2004) 33 Cal.4th 999, 1004-1005 [approving definition of duress originally articulated in People v. Pitmon (1985) 170 Cal.App.3d 38, 50].) CALCRIM Nos. 1015 (oral copulation by threat), 1045 (sexual penetration by threat), and 1111 (lewd act by threat) instructed the jury on the definition of duress. The same instructions told the jury that "[r]etribution is a form of payback or revenge," and, "[w]hen deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the other person and his [or her] relationship to the defendant."
This is in accordance with settled case law. "'"The total circumstances, including the age of the victim, and [her] relationship to defendant are factors to be considered in appraising the existence of duress." [Citation.]' [Citations.] 'Other relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family.' [Citations.]" (People v. Veale (2008) 160 Cal.App.4th 40, 46 [Fourth Dist., Div. Two] (Veale).)
Here substantial evidence shows that defendant continually coerced Jane to perform sexual acts with him by using one initial, direct threat of retribution and a series of ongoing, implied threats of retribution. Near the time the molestations began, when Jane was around six years old, defendant directly threatened Jane with retribution by telling her he would tell her mother she had a boyfriend unless she participated in a sexual act with him. The molestations continued until Jane was around nine years old. During this three-year time frame, defendant was 16 to 19 years old, both substantially older and physically larger than Jane.
Jane testified that when she was six years old, or near the time the molestations began, defendant directly threatened to tell her mother she had a boyfriend unless she allowed him to perform a sexual act with her. During the RCAT interview, Jane said defendant made this threat in the context of playing a game of "truth or dare." Jane told the interviewer that after she told defendant "a truth" that she had a boyfriend, defendant responded with a question. He said: "[Y]ou want me to tell your mom that you have a boyfriend, or do you want me to do this, and then it looked like he had something like a weapon in his pocket, so I had to say the other thing, and of course, I was afraid . . . ."
Defendant was also in a position of authority over Jane, particularly when he acted as her after-school caretaker during 2005 and 2006. The molestations began after defendant began walking Jane and her brother Brandon home from school and watching them after school. Most, if not all, of the molestations occurred in defendant's bedroom or elsewhere in the family's adjoining duplex apartments, during after-school hours when no other adults were present in either apartment, or on other occasions when defendant was alone with Jane and Jane was away from the protection of her mother and other adults.
In sum, the jury could have reasonably inferred based on the totality of the circumstances that defendant knowingly used his position of authority over Jane, coupled with his ability to physically and psychologically isolate Jane from the protection of other adults, to coerce her to perform sexual acts with him. Defendant's initial, direct threat of retribution, in combination with his subsequent and continuing implied threats of retribution, constitute "duress" for purposes of the aggravated sex offenses charged in counts 1 through 7.
Defendant argues "[i]t is clear from the record that [defendant] never directly or impliedly threatened [Jane] or her family with any harm, at all," and Jane's fears that he would physically harm her or her family were "purely subjective," and not based on anything he said or did to her. To be sure, Jane testified that defendant never showed her any type of weapon, never directly or expressly threatened to physically harm her or her family, and never used physical force with her during any of the sexual acts. Still, the jury could have reasonably inferred based on the totality of the circumstances, including Jane's young age, defendant's older age and larger size, position of authority, and the physical and psychological isolation in which the molestations occurred, that defendant was aware of the coercive nature of his conduct and knowingly took advantage of his physical and psychological dominance and position of authority over Jane.
Defendant's reliance on People v. Espinoza (2002) 95 Cal.App.4th 1287 (Espinoza) is misplaced. There, the defendant molested his 12-year-old daughter, and the court found there was insufficient evidence of duress, reasoning: "The only way that we could say that defendant's lewd act on L. and attempt at intercourse with L. were accomplished by duress is if the mere fact that he was L.'s father and larger than her combined with her fear and limited intellectual level were sufficient to establish that the acts were accomplished by duress. . . . Duress cannot be established unless there is evidence that 'the victim['s] participation was impelled, at least partly, by an implied threat . . . .' [Citation.] No evidence was adduced that defendant's lewd act and attempt at intercourse were accompanied by any 'direct or implied threat' of any kind. While it was clear that L. was afraid of defendant, no evidence was introduced to show that this fear was based on anything defendant had done other than to continue to molest her. It would be circular reasoning to find that her fear of molestation established that the molestation was accomplished by duress based on an implied threat of molestation." (Id. at p. 1321.)
Here, unlike in Espinoza, substantial evidence supports a finding of duress. Jane was only six to nine years old when defendant was molesting her, and considerably younger than the 12-year-old victim in Espinoza. As such, Jane was more susceptible than the victim in Espinoza to being coerced to perform sexual acts by an older and physically larger man in a position of authority over her. (Cochran, supra, 103 Cal.App.4th at p. 14; Veale, supra, 160 Cal.App.4th at pp. 49-50.)
Additionally, though the molestations in Espinoza occurred during the early hours of the morning, other family members were present when the molestations occurred. Here, by contrast, the molestations occurred while Jane was both physically and psychologically isolated from her mother and other adults. Lastly, in Espinoza, unlike here, no direct or implied threats of retribution were ever communicated to the victim. B. The Trial Court Did Not Have a Duty to Instruct Sua Sponte on Nonaggravated Lewd Conduct (§ 288, subd. (a)) as Lesser Included Offenses in Counts 1 and 2
Defendant next claims the trial court erred in failing to instruct the jury sua sponte on the lesser included offense of nonaggravated lewd conduct (§ 288, subd. (a)) in counts 1 and 2. He argues that nonaggravated lewd conduct on a child under the age of 14 (§ 288, subd. (a)) is a lesser included offense to aggravated oral copulation on a child under the age of 14 (§§ 269, subd. (a)(4), 288a, subd. (c)) and aggravated sexual penetration on a child under the age of 14 (§§ 269, subd. (a)(5), 289, subd. (a)), under both the elements and accusatory pleadings tests. We disagree.
A trial court has a duty to instruct sua sponte on uncharged lesser included offenses if substantial evidence shows that the lesser offense but not the greater charged offense was committed. (People v. Parson (2008) 44 Cal.4th 332, 348-349; People v. Breverman (1998) 19 Cal.4th 142, 154, 162.) "An uncharged offense is included in a greater charged offense if either (1) the greater offense, as defined by statute, cannot be committed without also committing the lesser (the elements test), or (2) the language of the accusatory pleading encompasses all the elements of the lesser offense (the accusatory pleading test). [Citations.]" (People v. Parson, supra, at p. 349.)
When, however, "the accusatory pleading is couched in terms of the statutory definition of the greater crime and no additional factual allegations are included therein, the courts necessarily must rely solely upon the statutory definition." (People v. Anderson (1975) 15 Cal.3d 806, 809.) This principle applies here. Defendant was charged with aggravated oral copulation and aggravated sexual penetration in the language of the statutes, and the information did not contain any additional language that could be interpreted as encompassing the elements of any lesser offenses in addition to lesser offenses necessarily included by statute. We therefore limit our discussion to the elements test.
Under the elements test, nonaggravated lewd conduct (§ 288, subd. (a)) is not a lesser included offense to aggravated oral copulation (§ 288a, subd. (c)(2)), or aggravated sexual penetration (§ 289, subd. (a)). Nonaggravated lewd conduct on a child under the age of 14 in violation of section 288, subdivision (a) is a specific intent crime. (People v. Warner (2006) 39 Cal.4th 548, 556.) It requires the specific intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or the child. (People v. Raley (1992) 2 Cal.4th 870, 907; § 288, subd. (a).)
By contrast, aggravated oral copulation in violation of section 288a, subdivision (c)(2) does not require any specific intent or purpose. (People v. Muniz (1989) 213 Cal.App.3d 1508, 1517.) Instead, the statute proscribes "an act of oral copulation . . . against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person . . . ." (§ 288a, subd. (c)(2).) No specific intent to arouse the passions of the perpetrator or victim is required.
Similarly, aggravated sexual penetration in violation of section 289, subdivision (a)(1) also does not require any specific intent or purpose. Like aggravated oral copulation, aggravated sexual penetration is committed "against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person . . . ." (§ 289, subd. (a)(1).) No specific intent to arouse the passions of the perpetrator or victim is required.
In sum, nonaggravated lewd conduct in violation of section 288, subdivision (a) is not a necessarily included lesser offense to aggravated oral copulation or aggravated sexual penetration under the statutory elements test, because the greater offenses can be committed without the specific intent of arousing the passions of the perpetrator or the victim, a necessary element of a violation of section 288, subdivision (a). The trial court thus did not have a duty to instruct sua sponte on nonaggravated lewd conduct as lesser included offenses in counts 1 and 2.
Nevertheless, it seems unfair to defendant that the jury was given the "all or nothing" choice between convicting him of aggravated oral copulation (§§ 269, subd. (a)(4), 288a, subd. (c)(2)) in count 1, and aggravated sexual penetration (§§ 269, subd. (a)(4), 289, subd. (a)) in count 2, or no crime at all in either count, as opposed to convicting him of the lesser related offense of nonaggravated lewd conduct (§ 288, subd. (a)) in each count. If the jury believed defendant did not commit the charged offenses of oral copulation or sexual penetration by "force, violence, duress, menace, or fear of immediate and unlawful bodily injury" (§ 269, subd. (a)(4) [referencing § 288a, subd. (c)(2)] and (a)(5) [referencing § 289, subd. (a)]), then its only choice was to acquit defendant of the charged offenses. It did not have the option of convicting him of the lesser related offenses of nonaggravated lewd conduct in each count. We are mindful, however, that defendant was not entitled to instructions on these lesser related offenses under settled law. (People v. Birks (1998) 19 Cal.4th 108, 136.) C. CALCRIM No. 3517 Did Not Violate Defendant's Due Process Rights
The jury was instructed on lesser included offenses in counts 2 through 7. These were (1) attempted aggravated sexual penetration as a lesser included offense to aggravated sexual penetration as charged in count 2, and (2) nonaggravated lewd conduct as lesser included offenses to aggravated lewd conduct as charged in counts 3 through 7. The jury was given CALCRIM No. 3517 (Deliberations and Completion of Verdict Forms: For Use When Lesser Included Offenses and Greater Crimes are Not Separately Charged) regarding its consideration of the greater and lesser included offenses in counts 2 through 7.
Defendant raises two claims concerning CALCRIM No. 3517. He first claims that the instruction "constituted an improper direction on the order of deliberations" in violation of his federal due process rights. Second, he claims the instruction failed to inform the jury that, in the event it had a reasonable doubt whether a greater or a lesser offense was committed, it had to give him the benefit of that doubt and convict him of the lesser offense. We find both claims without merit.
1. The Order of Deliberations
Regarding his first claim, defendant argues that CALCRIM No. 3517 "outlined a jury deliberation procedure which precluded the jury from considering any lesser included offenses until they had reached a unanimous not guilty verdicts [sic] for the greater offenses," specifically, by directing the jury to reach a verdict of not guilty on the greater offenses before considering the lesser offenses.
As defendant points out, the state Supreme Court has "rejected a 'strict acquittal-first rule' under which the jury must acquit of the greater offense before even considering lesser included offenses." (People v. Berryman (1993) 6 Cal.4th 1048, citing and discussing its prior decisions in Stone v. Superior Court (1982) 31 Cal.3d 503 and People v. Kurtzman (1988) 46 Cal.3d 322, 333.) The trial court may, however, "'restrict[] a jury from returning a verdict on a lesser included offense before acquitting on a greater offense' . . . ." (People v. Berryman, supra, at p. 1073.)
CALCRIM No. 3517 does not include a "strict acquittal-first rule." As pertinent, it told the jury: "If all of you find that the defendant is not guilty of a greater charged crime, you may find him guilty of a lesser crime if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime." But it also told the jury: "It is up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict of guilty of a lesser crime only if you have found the defendant not guilty of the corresponding greater crime." (Italics added.) CALCRIM No. 3517 thus did not prohibit the jury from considering defendant's guilt on the lesser included offenses before it determined whether he was guilty of a greater charged offense.
Defendant points out that CALCRIM No. 3515, which was given immediately before CALCRIM No. 3517, told the jury: "You must consider each count separately and return a separate verdict for each one." Defendant maintains that CALCRIM No. 3515, in combination with CALCRIM No. 3517, effectively instructed the jury it had to consider each charged crime in the order in which it was charged in the information, and also prohibited the jury from considering lesser offenses before greater offenses.
This is a strained and unreasonable interpretation of the instructions. CALCRIM No. 3515 told the jury to "consider each count separately," but in no particular order. CALCRIM No. 3517 did not address the order in which the "counts" were to be considered. Instead, CALCRIM No. 3517 told the jurors it was up them to decide the order in which they considered "each crime," meaning they were at liberty to consider defendant's guilt of a lesser offense before considering whether he was also guilty of a greater charged crime.
2. The Benefit of Reasonable Doubt
Defendant further argues that CALCRIM No. 3517 violated section 1097 and the holding of People v. Dewberry (1959) 51 Cal.2d 548, 555 (Dewberry), by failing to tell the jury that if it had a reasonable doubt whether a greater or a lesser offense was committed, it had to convict him of the lesser offense. We disagree that the instruction violated section 1097 or the Dewberry principle.
Section 1097 provides: "When it appears that the defendant has committed a public offense, or attempted to commit a public offense, and there is reasonable ground of doubt in which of two or more degrees of the crime or attempted crime he is guilty, he can be convicted of the lowest of such degrees only."
The Dewberry principle holds that, where the evidence is sufficient to support a finding of guilt of a charged offense and a lesser included offense, the trial court must instruct the jury, sua sponte, that if it has a reasonable doubt which crime the defendant committed, it must give the defendant the benefit of the doubt and find him guilty of the lesser crime, provided it is convinced beyond a reasonable doubt that the defendant is guilty of the lesser crime. (Dewberry, supra, 51 Cal.2d at pp. 555-556; People v. Musselwhite (1998) 17 Cal.4th 1216, 1262.)
Both section 1097 and the Dewberry principle are based on the principle that the prosecution must prove a defendant guilty beyond a reasonable doubt. (Dewberry, supra, 51 Cal.2d at p. 556.) As explained in Dewberry: "In every case the principle of reasonable doubt requires an acquittal of an offense when the prosecution has not met its burden of proof. Thus, whether reasonable doubt exists as between degrees of the same offense [as section 1097, narrowly construed, speaks to] or as between the inclusive and included offense, the jury can only convict of the crime whose elements have been proved beyond a reasonable doubt." (Ibid.)
CALCRIM No. 3517, together with CALCRIM No. 220, instructed the jury on the principle of reasonable doubt and the Dewberry principle, which specifically applies the principle of reasonable doubt when the jury has a reasonable doubt whether the elements of a greater offense or a lesser included offense have been proved beyond a reasonable doubt. CALCRIM No. 220 told the jury the People had to prove defendant guilty beyond a reasonable doubt, and he was entitled to an acquittal if the evidence did not prove him guilty beyond a reasonable doubt.
CALCRIM No. 3517 reflects and incorporates the principle of reasonable doubt as set forth in CALCRIM No. 220, and its specific application in the Dewberry principle, because it tells the jury that it cannot find a defendant guilty of a greater crime unless all the jurors agree the defendant is guilty of the greater crime beyond a reasonable doubt. Thus here, CALCRIM Nos. 220 and 3517 did not permit the jury to find defendant guilty of any of the greater offenses charged in counts 2 through 7, and required it to acquit defendant of the greater offense, in the event the jurors did not agree or at least some of them had a reasonable doubt whether the defendant was guilty of the greater offense. D. Consecutive Sentences Were Properly Imposed on Counts 1 and 2
At sentencing, the court, the prosecutor, and defense counsel agreed that the court was statutorily required to sentence defendant to consecutive rather than concurrent terms on counts 1 and 2, because the evidence clearly showed the offenses were committed on separate occasions. (§§ 269, subd. (c), 667.6, subd. (d).) Thus, defendant received consecutive 15 year-to-life terms on counts 1 and 2, and concurrent six-year terms on counts 2 through 7.
Defendant now claims the sentencing court and the parties were mistaken, and the court did in fact have discretion to sentence him to concurrent rather than consecutive terms on counts 1 and 2. We disagree.
Defendant argues that the court engaged in a prohibited ex post facto application of section 269, subdivision (c) in imposing the consecutive 15 year-to-life terms on counts 1 and 2. Subdivision (c) of section 269 became effective on November 8, 2006, after the voters approved Proposition 83 on November 7, 2006. (Initiative measure Prop. 83, § 5, approved Nov. 7, 2006, eff. Nov. 8, 2006.) The statute 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 section 667.6." (§ 269, subd. (c).)
The parties agree that defendant could not be sentenced to consecutive terms on counts 1 and 2 under section 269, subdivision (c). To be sure, the evidence did not indicate that any one of the several acts of oral copulation that could have underlain count 1 or the single act of sexual penetration underlying count 2, occurred on or after November 8, 2006, the effective date of section 269, subdivision (c). Instead, the evidence was unclear concerning the dates or even the years the crimes underlying counts 1 and 2 were committed. The molestations began no earlier than May 2004, when defendant began living next door to Jane, and stopped no later than June 2007, when Jane turned 10 years old. Jane recalled she was no older than nine when defendant last molested her by committing the act of sexual penetration. (§ 289, subd. (a).)
Nevertheless, throughout the entire time defendant was molesting Jane (May 2004 to June 2007), and both before and after section 269, subdivision (c) became effective on November 8, 2006, section 667.6, subdivision (d) required consecutive sentences for violations of section 288a, subdivision (c)(2) (aggravated oral copulation) and section 289, subdivision (a) (aggravated sexual penetration), provided the crimes were committed against a single victim on separate occasions. (People v. Figueroa (2008) 162 Cal.App.4th 95, 99-100 [Fourth Dist., Div. Two] [consecutive sentencing provisions of § 667.6, subd. (d) applied to predicate offenses underlying aggravated sexual assault convictions before § 269, subd. (c)]; see also People v. Jimenez (2000) 80 Cal.App.4th 286, 291-292 [sentencing provisions of §§ 667.6 and 269 serve different purposes and are cumulative, not alternative, to each other].)
From January 1, 2003 to September 19, 2006, section 667.6 provided: "(d) A full, separate, and consecutive term shall be served for each violation of . . . subdivision (a) of Section 289 [sexual penetration] . . . or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person if the crimes involve separate victims or involve the same victim on separate occasions." (Stats. 2002, ch. 787, § 16, p. 5003 (eff. Sept. 22, 2002).)
From and after September 20, 2006, section 667.6 provided: "(d) A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions. [¶] . . . [¶] (e) This section shall apply to the following offenses: [¶] . . . [¶] (7) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c) . . . of Section 288a. [¶] (8) Sexual penetration, in violation of subdivision (a) or (g) of Section 289." (Stats. 2006, ch. 337, § 32, p. 2163 (eff. Sept. 20, 2006).)
In sentencing defendant to consecutive terms on counts 1 and 2, the court expressly found "there was more than sufficient evidence" that the oral copulation and sexual penetration incidents underlying counts 1 and 2 occurred on separate occasions. "Once a trial judge has found under section 667.6, subdivision (d), that a defendant committed offenses on separate occasions, we may reverse only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior." (People v. Garza (2003) 107 Cal.App.4th 1081, 1092; accord, People v. King (2010) 183 Cal.App.4th 1281, 1325.)
That is not the case here. Instead, substantial evidence supports the trial court's finding that the acts of oral copulation and sexual penetration underlying counts 1 and 2 occurred on separate occasions. Jane testified that defendant had her orally copulate him on several occasions, and at least one of these incidents underlies defendant's oral copulation conviction in count 1. Jane also testified and told the RCAT interviewer that the sexual penetration incident was the last time defendant molested her, and this incident occurred when she was no more than nine years old. Thus, the trial court reasonably concluded that the sexual penetration incident occurred on a different occasion than at least one of the incidents of oral copulation.
In sum, the trial court did not have discretion to impose concurrent rather than consecutive sentences on counts 1 and 2, once it found that the acts underlying the two convictions were committed against Jane on separate occasions. This is so regardless of whether the acts underlying the convictions occurred before or after November 8, 2006, when section 269, subdivision (c) became effective.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
King
Acting P.J.
We concur:
Miller
J.
Codrington
J.