Opinion
B317228
03-14-2022
The PEOPLE, Plaintiff and Respondent, v. Jose Antonio LOPEZ, Defendant and Appellant.
Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez, Supervising Deputy Attorney General, and Lewis A. Martinez, Jennifer Oleska, and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of (1) parts B and C of the Factual and Procedural Background (however, the headings for parts B and C of the Factual and Procedural Background are to be published); (2) parts A and B of the Discussion (however, the headings for parts A and B of the Discussion are to be published); and (3) all numbered subheadings.
Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez, Supervising Deputy Attorney General, and Lewis A. Martinez, Jennifer Oleska, and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
SEGAL, J.
INTRODUCTION
Jose Antonio Lopez fled to Mexico after his two step-granddaughters accused him of sexually abusing them. Eight years later Lopez was arrested in California. A jury convicted Lopez on two counts of continuous sexual abuse of a child—one for each step-granddaughter—and the trial court sentenced him to two consecutive terms of 15 years to life.
Lopez contends that the delay in prosecution violated his rights to a speedy trial, that substantial evidence did not support either conviction, and that the court did not understand it had discretion to impose concurrent sentences on the two convictions. In the unpublished portion of the opinion, we conclude that the trial court did not violate Lopez's speedy trial rights and that substantial evidence supported his convictions. In the published portion, we conclude the trial court had discretion under Penal Code section 667.61, subdivisions (c) and (i), to impose concurrent sentences. Therefore, we affirm the convictions on both counts of continuous sexual abuse of a child, vacate the sentences on those convictions, and direct the trial court to exercise its discretion whether to impose consecutive or concurrent sentences on those convictions.
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. Lopez Is Arrested Eight Years After His Step-granddaughters Accuse Him of Sexual Abuse
Karen R. is the mother of Daniela C. and Rebecca C. Lopez was Karen's stepfather and, thus, Daniela and Rebecca's step-grandfather. In February 2010 Karen reported to the Bakersfield Police Department that Lopez had sexually abused Daniela, who was eight years old at the time, and Rebecca, who was six. Officer Felipe Juarez interviewed Daniela and Rebecca, each of whom told the officer that Lopez had touched her vaginal area and buttocks.
On February 17, 2010 Karen made a "pretext call"—a call monitored by law enforcement and intended to elicit incriminating information—to Lopez, accusing him of abusing Daniela and Rebecca. Detectives Lance O'Nesky and Hector Caldas interviewed Lopez later that day and informed him of the nature of their investigation. Sometime between then and March 8, 2010, Lopez went to Mexico. In April 2010 the People filed a complaint charging Lopez with two counts of continuous sexual abuse of a child under the age of 14, in violation of Penal Code section 288.5, subdivision (a) : count 1 for sexual abuse of Daniela and count 2 for sexual abuse of Rebecca. The superior court issued a warrant for Lopez's arrest.
Lopez was not arrested until August 6, 2018. On August 28, 2018 the People filed an information charging Lopez with the same two counts of continuous sexual abuse of a child. For each count, the People alleged Lopez committed an offense specified in section 667.61, subdivision (c) —which includes continuous sexual abuse of a child ( § 667.61, subd. (c)(9) )—against more than one victim (see id ., subd. (e)(4)). Whether a true finding on that allegation required the court to impose consecutive terms is one of the issues in this appeal. B. Lopez Files a Motion To Dismiss, Which the Trial Court Denies
The People also charged Lopez with two counts of willfully and lewdly committing a lewd or lascivious act on a child under the age of 14, in violation of section 288, subdivision (a). The jury found Lopez not guilty on those counts.
See footnote *, ante .
C. The Family Testifies at Trial
See footnote *, ante .
D. The Jury Convicts Lopez, and the Trial Court Sentences Him
The jury convicted Lopez on both counts of continuous sexual abuse of a child and, for each count, found true the allegation Lopez committed an offense specified in section 667.61, subdivision (c), against more than one victim, within the meaning of section 667.61, subdivision (e)(4). The trial court sentenced Lopez to consecutive prison terms of 15 years to life. Lopez timely appealed.
DISCUSSION
A. The Trial Court Did Not Violate Lopez's Speedy Trial Rights
See footnote *, ante .
B. Substantial Evidence Supported Lopez's Convictions for Continuous Sexual Abuse of Daniela and Rebecca
See footnote *, ante .
C. Remand Is Appropriate for the Trial Court To Exercise Its Discretion Whether To Impose Consecutive or Concurrent Sentences
Lopez argues the trial court failed to recognize it had discretion to impose concurrent sentences on his two convictions. The court sentenced Lopez under the one strike law in section 667.61, which " ‘mandates an indeterminate sentence of 15 or 25 years to life in prison when the jury has convicted the defendant of a specified felony sex crime [citation] and has also found certain factual allegations to be true.’ " ( People v. Carbajal (2013) 56 Cal.4th 521, 534, 155 Cal.Rptr.3d 335, 298 P.3d 835.) Section 667.61, subdivision (c), lists the crimes to which the one strike law generally applies. Continuous sexual abuse of a child in violation of section 288.5 is listed in section 667.61, subdivision (c)(9), as one of those crimes. The one strike law includes a provision requiring consecutive sentences for some, but not all, of the offenses listed in section 667.61, subdivision (c). That provision is section 667.61, subdivision (i), which states: "For any offense specified in paragraphs (1) to (7), inclusive, of subdivision (c), ... the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims ... as defined in subdivision (d) of Section 667.6." Lopez contends that, because section 667.61, subdivision (c), states the court must impose consecutive sentences for offenses listed in subdivision (c)(1) to (7), and continuous sexual abuse of a child is specified in subdivision (c)(9), the trial court had discretion to impose concurrent sentences on his convictions.
Lopez's interpretation of section 667.61 is correct. " ‘The expression of some things in a statute necessarily means the exclusion of other things not expressed.’ " ( Le Francois v. Goel (2005) 35 Cal.4th 1094, 1105, 29 Cal.Rptr.3d 249, 112 P.3d 636 ; accord, People v. Gollardo (2017) 17 Cal.App.5th 547, 557, 225 Cal.Rptr.3d 666.) Because section 667.61, subdivision (i), requires a trial court to impose consecutive sentences for certain offenses in section 667.61, subdivision (c) —namely, those listed in subdivision (c)(1) to (7)—it does not require the court to impose consecutive sentences for other offenses in the statute—namely, subdivision (c)(8) and (9). (See People v. Zaldana (2019) 43 Cal.App.5th 527, 536, 256 Cal.Rptr.3d 725 [because " section 288, subdivision (a) does not fall within [subdivision (c)(1)-(7)]—it is listed in section 667.61, subdivision (c)(8) — ... the court retains discretion to impose concurrent or consecutive 25-year-to-life terms for the three violations of section 288, subdivision (a)"], review granted Mar. 18, 2020, S259731.) Section 667.61, subdivision (i), "by implication leaves the decision to impose consecutive or concurrent terms" for the nonspecified offenses in section 667.61, subdivision (c), "to the sentencing court's discretion under section 669." ( People v. Valdez (2011) 193 Cal.App.4th 1515, 1524, 124 Cal.Rptr.3d 376 ; see People v. Bradford (1976) 17 Cal.3d 8, 20, 130 Cal.Rptr. 129, 549 P.2d 1225 [under section 669 "a trial court has discretion to determine whether several sentences are to run concurrently or consecutively"]; People v. Woodworth (2016) 245 Cal.App.4th 1473, 1479-1480, 200 Cal.Rptr.3d 536 [where a statute "does not contain an express provision depriving the trial court of the discretion afforded to it in section 669," the trial court has "discretion to choose between concurrent and consecutive sentences"].) It's hard to imagine a clearer expression of legislative intent that the consecutive sentencing provision of section 667.61, subdivision (i), does not apply to all nine offenses listed in section 667.61, subdivision (c), than stating it only applies to seven of them. (See People v. Cook (2015) 60 Cal.4th 922, 935, 183 Cal.Rptr.3d 502, 342 P.3d 404 ["statutory language is the best indicator of the Legislature's intent"].)
The People ignore section 667.61, subdivision (i), entirely. Instead, they cite section 667.6, subdivision (d)(1), which provides: "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 ...." Section 667.6, subdivision (e), includes continuous sexual abuse of a child in violation of section 288.5. (See § 667.6, subd. (e)(6).) Therefore, according to the People, section 667.6 requires the court to impose consecutive sentences on multiple convictions for continuous sexual abuse of a child (presumably, regardless of what section 667.61 says).
The People's proposed interpretation of sections 667.6 and 667.61, however, renders section 667.61, subdivision (i), superfluous. When interpreting a statute, "we do not consider the statutory language ‘in isolation.’ [Citation.] Rather, we look to ‘the entire substance of the statute ... in order to determine the scope and purpose of the provision’ " at issue, and we "must harmonize ‘the various parts of a statutory enactment ... by considering the particular clause or section in the context of the statutory framework as a whole.’ " ( People v. Mendoza (2000) 23 Cal.4th 896, 907-908, 98 Cal.Rptr.2d 431, 4 P.3d 265 ; see People v. Hernandez (2021) 60 Cal.App.5th 94, 105, 274 Cal.Rptr.3d 188.) In so doing, "interpretations which render any part of a statute superfluous are to be avoided." ( Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1207, 48 Cal.Rptr.3d 108, 141 P.3d 225 ; see People v. Cole (2006) 38 Cal.4th 964, 980-981, 44 Cal.Rptr.3d 261, 135 P.3d 669 ["The rules of statutory construction direct us to avoid, if possible, interpretations that render a part of a statute surplusage."]; People v. Aguilar (1997) 16 Cal.4th 1023, 1030, 68 Cal.Rptr.2d 655, 945 P.2d 1204 [courts "generally avoid a reading that renders any part of a statute superfluous"]; see, e.g., People v. Foley (2020) 56 Cal.App.5th 401, 410, 270 Cal.Rptr.3d 467 [rejecting a proposed interpretation of section 667.61, subdivision (e)(4), because it "essentially eliminate[d]" a word from the statute and made it "entirely superfluous"].) The legislative history confirms that section 667.61, subdivision (i), not section 667.6, subdivision (d), applies to sentencing under the one strike law. Prior to 2006, section 667.6, subdivision (d), required (as it does now) the court to impose consecutive sentences for certain sex crimes where the crimes involved separate victims or the same victim on separate occasions. (See former § 667.6, subd. (d), as amended by Stats. 2002, ch. 787, § 16.) At that time the one strike law did not include a separate provision specifying when a trial court had to impose consecutive sentences. (See former § 667.61, as amended by Stats. 1998, ch. 936, § 9.) Thus, prior to 2006 it may have been unclear whether a trial court had to impose consecutive sentences when sentencing a defendant under the one strike law for offenses listed in section 667.6.
But in 2006 the Legislature enacted the Sex Offender Punishment, Control, and Containment Act, which among other changes added subdivision (i) to section 667.61. (See Stats. 2006, ch. 337, § 33.) Section 667.61, subdivision (i), specified when a trial court had to impose consecutive sentences under the one strike law; it was (and still is) less inclusive than section 667.6, subdivision (d)(1). As amended, section 667.6, subdivision (d)(1), already required the court to impose consecutive sentences for each of the crimes specified in section 667.61, subdivision (i). (Compare former § 667.61, subds. (c)(1)-(7), (n)(1)-(6), as amended by Stats. 2006, ch. 337, § 33 with former § 667.6, subd. (e)(1)-(8), as amended by Stats. 2006, ch. 337, § 32.)Therefore, if the Legislature intended section 667.6, subdivision (d), to apply (or continue to apply) where the trial court sentenced a defendant under the one strike law, there would have been no need to add subdivision (i) to section 667.61. The Legislature could have decided not to add a sentencing provision when it amended section 667.61 in 2006, which would have left trial courts to apply section 667.6, subdivision (d)(1), when sentencing a defendant under the one strike law. But that's not what the Legislature did. Instead, the Legislature added to the one strike law an independent sentencing provision that directs the trial court to impose consecutive sentences for some, but not all, of the crimes subject to the one strike law.
The legislation also added continuous sexual abuse of a child to section 667.6, subdivision (e), thereby making the enhancements specified in section 667.6 applicable to that crime.
Had the Legislature intended section 667.6, subdivision (d)(1), to apply whenever the trial court sentenced a defendant under the one strike law, the Legislature could have drafted section 667.61, subdivision (i), to read something like: "The court shall impose a consecutive sentence for each offense that results in a conviction under this section if required by section 667.6, subdivision (d)." (See Vasquez v. State of California (2008) 45 Cal.4th 243, 253, 85 Cal.Rptr.3d 466, 195 P.3d 1049 ["We may not rewrite the statute to conform to an assumed intention that does not appear in its language."]; People v. Wilson (2020) 53 Cal.App.5th 42, 52, 266 Cal.Rptr.3d 761 [same].)
The history of Senate Bill No. 1128, the bill that became the Sex Offender Punishment, Control, and Containment Act of 2006, also indicates section 667.61, subdivision (i), governs trial court discretion to impose consecutive or concurrent sentences under the one strike law. As amended on March 2, 2006, the bill added continuous sexual abuse of a child in violation of section 288.5 to the crimes specified in section 667.6, subdivision (e), and section 667.61, subdivision (d). Continuous sexual abuse of a child was initially listed in section 667.61, subdivision (c)(10), rather than in section 667.61, subdivision (c)(9). And section 667.61 initially did not include the provision later enacted as subdivision (i), listing the offenses for which the trial court had to impose consecutive sentences. (See Sen. Amend. to Sen. Bill No. 1128 (2005-2006 Reg. Sess.) §§ 30 - 31, Mar. 2, 2006.)
The March 2, 2006 version of the bill would have added lewd or lascivious act in violation of section 288, subdivision (a), as section 667.61, subdivision (c)(9), and continuous sexual abuse of a child in violation of section 288.5 as section 667.61, subdivision (c)(10). (See Sen. Amend. to Sen. Bill No. 1128 (2005-2006 Reg. Sess.) § 31, Mar. 2, 2006.) The final version of the bill renumbered the paragraphs of the subdivision so that continuous sexual abuse of a child in violation of section 288.5 was listed as section 667.61, subdivision (c)(9). (See Stats. 2006, ch. 337, § 33.)
But on May 26, 2006 the sponsor of the legislation introduced an amended version of the bill that added a new subdivision (i) to section 667.61 that, as discussed, specified when the trial court had to impose consecutive sentences under the one strike law. (See Sen. Amend. to Sen. Bill No. 1128 (2005-2006 Reg. Sess.) §§ 32 - 33, May 26, 2006.) The addition of new subdivision (i) to section 667.61 indicates the Legislature understood the one strike law was an " ‘alternative and harsher sentencing scheme for certain enumerated sex crimes’ " ( People v. Acosta (2002) 29 Cal.4th 105, 118, 124 Cal.Rptr.2d 435, 52 P.3d 624 ; see People v. Mancebo (2002) 27 Cal.4th 735, 741, 117 Cal.Rptr.2d 550, 41 P.3d 556 ), to which other sentencing rules and enhancements, such those in section 667.6, generally did not apply. Thus, the Legislature had to add subdivision (i) to section 667.61 to prescribe when trial courts had to impose consecutive sentences under the one strike law. (See Assem. Com. on Public Safety, Analysis of Sen. Bill No. 1128 (2005-2006 Reg. Sess.), as amended June 22, 2006, ¶ 84 [the bill "[s]pecifies that for certain crimes listed in the One-Strike sex statute, an offender must be sentenced consecutively if the crime involves separate victims or the same victim on separate occasions"].)
Because the trial court may not have recognized it had discretion to impose concurrent or consecutive sentences on Lopez's convictions for continuous sexual abuse of a child, remand is appropriate to allow the trial court to exercise that discretion. On remand, the court must state its reasons for imposing either concurrent or consecutive sentences. (See Cal. Rules of Court, rule 4.406(b)(5).) DISPOSITION
The trial court did not state why it was imposing consecutive sentences. Although we ordinarily presume the trial court understood its sentencing discretion where the record is silent (People v. Lee (2017) 16 Cal.App.5th 861, 867, 224 Cal.Rptr.3d 706 ), we decline to do so here because the application of section 667.6, subdivision (d)(1), to the one strike law was arguably unsettled, the court gave no indication it believed it had discretion to impose concurrent sentences, and the court did not state its reasons for imposing consecutive sentences.
The convictions on both counts of continuous sexual abuse of a child are affirmed. The sentences on those convictions are vacated, and the trial court is directed to exercise its discretion whether to impose consecutive or concurrent sentences on those convictions.
We concur:
PERLUSS, P. J.
FEUER, J.