Opinion
B324065
09-30-2024
THE PEOPLE, Plaintiff and Respondent, v. ANGEL MARTINEZ, Defendant and Appellant.
Judith Kahn, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan S. Pithey, Assistant Attorney General, Steven D. Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA152859. Allen J. Webster, Jr., Judge.
Judith Kahn, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan S. Pithey, Assistant Attorney General, Steven D. Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
VIRAMONTES, J.
INTRODUCTION
Angel Martinez appeals from his judgment of conviction of multiple child sexual abuse offenses against three victims. Martinez argues (1) the trial court erred in admitting expert testimony on Child Sexual Abuse Accommodation Syndrome (CSAAS); (2) three of the counts must be dismissed because they involved the same victim and the same time period as the count for continuous sexual abuse in violation of Penal Code section 288.5; and (3) the case should be remanded for the trial court to consider striking the findings made under the "One Strike" law (§ 667.61) based on the recent amendments to section 1385.
Unless otherwise stated, all further undesignated statutory references are to the Penal Code.
We conclude the trial court did not err in admitting the CSAAS testimony because such evidence is admissible for the limited purpose of disabusing jurors of common misconceptions about child sexual abuse. We further conclude the amendments to section 1385 do not permit the trial court to strike or dismiss the aggravating circumstance findings made under the One Strike law. However, as the Attorney General concedes, Martinez was erroneously convicted of multiple offenses in violation of section 288.5, subdivision (c). We conclude the proper remedy in this case is to remand for the trial court to determine which count(s) to vacate and to resentence Martinez on all remaining counts.
FACTUAL AND PROCEDURAL BACKGROUND
I. Charging information
In an amended information, Martinez was charged with 12 felony counts: seven counts of lewd act upon a child under the age of 14 (§ 288, subd. (a); counts 6, 8, 10-12, 15-16); two counts of lewd act upon a child aged 14 or 15 (§ 288, subd. (c)(1); counts 19-20); one count of continuous sexual abuse (§ 288.5, subd. (a); count 21); one count of aggravated sexual assault of a child (§ 269, subd. (a)(1); count 22); and one count of sexual penetration by use of force (§ 289, subd. (a)(1)(A); count 23). The information alleged that Martinez committed the offenses charged in counts 6, 8, 10-12, 15-18, and 21-22 against multiple victims within the meaning of the One Strike law (§ 667.61, subds. (b), (e)).
II. Evidence at trial
A. Sexual abuse of J.S. (counts 6, 8, 10-12, 19-23)
Ten of the counts charged against Martinez concerned his sexual abuse of his stepdaughter, J.S., between 2013 and 2020. J.S. was born in 2005, and was 17 years old at the time of trial. Her extended family includes two female cousins, K.A., and P.T., who are close in age to J.S.
Martinez began sexually molesting J.S. when she was about eight years old. At that time, J.S.'s mother started working the graveyard shift, and J.S. was left in Martinez's care at night. When J.S. went to bed, she often awakened to find Martinez touching her breasts and vaginal area over her clothing. Within a few months, J.S.'s mother switched to an earlier shift, though she still worked at night. During that time, Martinez continued to sexually molest J.S. over her clothing. He told J.S. he was giving her a "body massage," and the child believed such touching was "normal."
When J.S. was age nine or 10, Martinez began removing her clothing and rubbing his penis against her vagina. Martinez usually wore a condom on these occasions. When J.S. was about 12 or 13 years old, Martinez began asking the child if he could not use a condom. There were a few times when Martinez did not use a condom, and he made J.S. shower afterward because he had ejaculated on her body.
On one occasion when J.S. was under the age of 14, Martinez tried to put his penis inside her vagina. He stopped when J.S. said that it hurt, and told her it would not hurt once she was "a little older." On another occasion, when J.S. was 13 or 14 years old, Martinez tried to insert a vibrator into her vagina. J.S. again told Martinez that it hurt, and he stopped. There also were times when Martinez made J.S. put on pajama pants that had a large hole in the crotch. He told J.S. the pajamas were in that condition so that she would not wake up as he was touching her.
In March 2020, when J.S. was about 15 years old, the COVID-19 pandemic forced her mother to stop working. During this time, Martinez did not sexually abuse J.S. However, when J.S.'s mother was out of town for a week in the summer of 2020, Martinez resumed molesting J.S. by rubbing his penis against her vagina. The last incident occurred on the day of Martinez's arrest in October 2020. That morning, J.S.'s mother left the house early. When J.S. woke up, Martinez was lying next to her and touching her breasts and vaginal area. Martinez only stopped when J.S. got out of bed.
At some point, J.S. told her cousin, K.A., about the sexual abuse. J.S. did not disclose the abuse to anyone else until the day of Martinez's arrest. At trial, J.S. explained that she "didn't want it to be anybody else's responsibility or . . . burden." She also knew that the revelation would hurt her mother, and would "derail" J.S.'s "whole life."
B. Sexual abuse of K.A. (count 15)
One of the counts charged against Martinez for lewd act upon a child under the age of 14 related to his sexual abuse of J.S.'s cousin, K.A. K.A. was born in 2005, and was 16 years old when she testified at trial. On one occasion, when K.A. was around age 9 or 10, she spent the night at J.S.'s house. Martinez was watching the girls because J.S.'s mother was at work. That night, J.S. slept in her bedroom, and K.A. slept on the floor in the living room. Martinez asked K.A. if she wanted a massage to help her sleep. As Martinez was touching K.A.'s back over her clothing, he moved his hands toward her buttocks and slightly pulled down her shorts. K.A. felt uncomfortable at the time, but did not say anything because she "didn't know any better."
Later that night, K.A. awakened when she felt someone on top of her. K.A. was on her back with her legs open, and Martinez was on top of her making a thrusting motion with his pelvic area. Scared and confused, K.A. turned on her side, and refused to move when Martinez tried to turn her on her back. The next day, Martinez again offered to massage K.A., but she declined and never slept over at J.S.'s house again.
Some months later, K.A. told J.S. what Martinez had done to her. K.A. wanted J.S. to understand why she no longer wanted to spend time with J.S. at her house. J.S. started to cry, and told K.A. that Martinez also molested her. J.S. said she did not want to tell anyone yet, and K.A. agreed to keep their secret.
C. Sexual abuse of P.T. (count 16)
Another one of the counts charged against Martinez for lewd act upon a child under the age of 14 concerned his sexual abuse of J.S.'s cousin, P.T. P.T. was born in 2006, and was 16 years old at the time of trial. When P.T. was eight years old, she and K.A. spent the night at J.S.'s house. Earlier that evening, Martinez told the girls that one of them had to accompany him to the store. After P.T. agreed to go with him, Martinez said that she would be allowed to stay up later as a reward. Before the girls went to bed that night, Martinez wanted to give each of them a massage. P.T. did not want Martinez to touch her, but reluctantly agreed after he called her a "wussy." Martinez massaged P.T.'s back and shoulders, and then allowed her to go to bed.
That night, P.T. fell asleep on the floor in J.S.'s room. She later awakened to Martinez rubbing her back and pulling on her shirt. He told P.T. that the other girls were asleep so she could get up to stay up later than them. P.T. pushed Martinez away, and said she wanted to sleep. Martinez continued rubbing P.T.'s back, stomach, and chest under her clothing for about 10 minutes. At first, P.T. "froze up" and was scared, but then she told Martinez to stop.
A few months later, P.T. talked to K.A. about the incident with Martinez. K.A. shared that Martinez also had molested both her and J.S. On another occasion, when the three girls were together, P.T. asked J.S. directly if Martinez ever touched her. The girls talked about their individual experiences with Martinez, but did not disclose the abuse to anyone else at that time.
D. October 2020 disclosure of sexual abuse
On October 8, 2020, the girls' families gathered together following the death of a relative. K.A.'s mother noticed that K.A. was very upset after she learned about the sexual abuse of a cousin from out of state. K.A.'s parents met privately with K.A., and asked her if "anybody ever did anything like that" to her.
At that time, K.A. disclosed that Martinez molested her. She also disclosed that he molested both P.T. and J.S. K.A.'s parents then met with P.T., who confirmed that Martinez molested her.
A short time later, K.A.'s parents picked up J.S. and drove her to the house where the family was gathered. After talking to J.S. about the disclosure, K.A.'s parents met with J.S.'s mother and told her about Martinez's sexual abuse. The family then discussed the matter as a group, and decided to call the police. Martinez was arrested that same day. Sometime after the arrest, J.S.'s mother searched through Martinez's belongings in their shared home. Inside Martinez's dresser drawer, she found boxes of condoms, a vibrator, and a pair of J.S.'s underwear with a hole cut in them.
E. CSAAS evidence
Dr. Jayme Jones, a clinical psychologist, testified for the prosecution as an expert on CSAAS. As described by Dr. Jones, CSAAS is a model to help explain the behavior of sexually abused children. The model has five parts: (1) secrecy; (2) helplessness; (3) accommodation; (4) delayed disclosure; and (5) recantation.
Dr. Jones testified that the first two parts-secrecy and helplessness-describe the context in which child sexual abuse occurs. Because sexual abuse typically takes place outside the presence of other people, it signals to children that they are not supposed to talk about what has happened. In addition, because children are physically smaller than their abusers and taught to obey adults, they feel helpless to fight back against the abuse. The third part of the model-accommodation-describes how children develop ways to cope with ongoing sexual abuse, such as trying not to think about the abuse or focusing on positive aspects of their relationship with the abuser.
Dr. Jones further testified that the last two parts of the CSAAS model-delayed disclosure and recantation-address the ways in which children talk about sexual abuse. According to Dr. Jones, most victims of child sexual abuse never disclose the abuse to anyone, and when they make a disclosure, it is often years after the abuse occurred. The closer the relationship between the child and the abuser, the less likely it is that the child will disclose the abuse. Children also are more likely to disclose to their peers than to adults. When children disclose abuse, they often do so in parts, and depending upon how the information is received, they may share more or shut down. They may have difficulty recalling details of the abuse because they spent so much time trying not to think about it.
On cross-examination, Dr. Jones confirmed that CSAAS is not a diagnostic or predictive measure, but rather a model that only applies to children who have actually been abused. It is not used to determine whether sexual abuse occurred, or whether a child is telling the truth. Dr. Jones also confirmed that she never met any of the alleged victims in this case, or reviewed any police reports or other materials related to the charges against Martinez. She did not know any of the facts of the case, and instead "was asked to talk about children who have been abused in general." Dr. Jones further explained that her purpose in testifying was not to tell the jurors how to judge the credibility of the witnesses, but "to help them understand how children respond to child sexual abuse."
III. Jury verdict and sentencing
The jury found Martinez guilty as charged on all 12 counts. The jury also found each of the multiple victim allegations to be true. The trial court sentenced Martinez to state prison for an aggregate term of 60 years to life plus six years, consisting of: consecutive terms of 15 years to life on counts 12, 15, 21, and 22; a consecutive six-year term on count 23, concurrent terms of 15 years to life on counts 11 and 16; and concurrent two-year terms on counts 19 and 20. The court dismissed counts 6, 8, and 10 for lewd acts against J.S. when she was under age 14 on the ground that they fell "under the umbrella of count 21," the continuous sexual abuse count.
Martinez timely appealed.
DISCUSSION
I. Admission of CSAAS evidence
Martinez contends his judgment of conviction must be reversed because the trial court prejudicially erred in admitting the CSAAS evidence. We conclude this claim lacks merit.
A. Governing law
An expert may give opinion testimony "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).) "The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision . . . is subject to review for abuse of discretion." (People v. McDowell (2012) 54 Cal.4th 395, 426.)
It has long been held that expert testimony on CSAAS is admissible for the limited purpose of disabusing the jury of common misconceptions about how children may react to sexual abuse. (See, e.g., People v. McAlpin (1991) 53 Cal.3d 1289, 13001301 (McAlpin); People v. Lapenias (2021) 67 Cal.App.5th 162, 171; People v. Munch (2020) 52 Cal.App.5th 464, 468; People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1746; People v. Bowker (1988) 203 Cal.App.3d 385, 394-395.) As our Supreme Court explained over 30 years ago, CSAAS evidence is "not admissible to prove that the complaining witness has in fact been sexually abused; [however,] it is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident-e.g., a delay in reporting-is inconsistent with his or her testimony claiming molestation. [Citations.] 'Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children's seemingly selfimpeaching behavior.'" (McAlpin, at pp. 1300-1301, fn. omitted.)
To be admissible, the CSAAS testimony "must be targeted to a specific 'myth' or 'misconception' suggested by the evidence." (People v. Bowker, supra, 203 Cal.App.3d at pp. 393-394.) But identifying the relevant myth or misconception does not require "the prosecution to expressly state on the record the evidence which is inconsistent with the finding of molestation. It is sufficient if the victim's credibility is placed in issue due to the paradoxical behavior, including a delay in reporting [the] molestation." (People v. Patino, supra, 26 Cal.App.4th at pp. 1744-1745.) The prosecution may offer CSAAS testimony in its case-in-chief whenever the testimony of the victim may raise an "obvious question . . . in the minds of the jurors" as to the victim's credibility, such as "why the molestation was not immediately reported if it had really occurred." (Id. at p. 1745.)
B. The trial court did not err in admitting the CSAAS evidence
In challenging the admission of Dr. Jones's testimony, Martinez asks this court to follow out-of-state cases that have criticized CSAAS evidence as having no proven scientific validity. Martinez asserts the California Supreme Court has never held that CSAAS evidence is per se admissible, and since its 1991 McAlpin decision, most jurors no longer harbor misconceptions about child sexual abuse. However, as our Supreme Court explained in McAlpin," 'even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would "assist" the jury.'" (McAlpin, supra, 53 Cal.3d at p. 1300.) The McAlpin decision held that expert testimony on CSAAS may be admitted for the limited purpose of disabusing jurors of the commonly held misconceptions about sexually abused children, including that a delay in reporting is inconsistent with a claim of abuse. (Id. at pp. 1300-1301.) Despite the passage of time, that decision remains binding on this court. As our colleagues in Division Six observed, "CSAAS evidence has been admitted by the courts of this state since the 1991 McAlpin decision. [¶] . . . That Supreme Court decision is binding on all lower courts in this state. [Citation.] That other jurisdictions may disagree with it does not change its impact on California cases." (People v. Munch, supra, 52 Cal.App.5th at p. 468.)
Martinez argues that, even if CSAAS evidence is not per se inadmissible, it should have been excluded in this case because the complaining witnesses either disclosed the abuse or gave straightforward explanations for their delay, which the average juror was capable of understanding. We disagree. Although the three girls shared with one another that Martinez had sexually molested them, they did not disclose the abuse to any adults for a number of years. They also had varied reasons for their delay in reporting the abuse. When K.A. was asked why she did not tell anyone about the abuse right away, she replied, "I don't know." K.A. later testified that, when her mother asked her directly if anyone touched her inappropriately, she did not want to tell the truth because she "felt like it wouldn't matter anymore because it was so long ago." P.T. stated that she did not tell anyone other than K.A. that Martinez had molested her because she "didn't really focus on it," and she "understood it, but [she] didn't understand it . . ., like, where it could go or what happened." After enduring years of continuous sexual abuse, J.S. revealed what occurred only after her extended family learned about the abuse from K.A. and P.T. J.S. testified that she "wanted it to stop, but [she] never said anything to stop it." She also stated that she did not tell anyone because she knew it would "derail . . . [her] whole life," she "didn't want it to be anybody else's . . . burden," and she "didn't want . . . [her] mom to struggle." The CSAAS evidence was therefore relevant to help explain why a sexually abused child might delay in disclosing the abuse, and might choose to disclose to a peer first rather than an adult.
The CSAAS evidence was also properly limited in scope. During her testimony, Dr. Jones explained that she never met or evaluated any of the complaining witnesses, never reviewed any materials related to the charges brought against Martinez, and did not know the facts of this case. Dr. Jones did not offer an opinion, nor was she asked to offer an opinion, as to whether the complaining witnesses were telling the truth, or whether the evidence in this case was consistent with CSAAS. Rather, her testimony on CSAAS was confined to dispelling commonly held misconceptions about the behavior of sexually abused children. As Dr. Jones herself testified, she was not there to tell the jurors how to judge witness credibility, but to "help them understand how children respond to child sexual abuse."
Martinez further contends the trial court erred in admitting Dr. Jones's testimony because the prosecutor improperly argued that the jury could use such evidence to infer the complaining witnesses were in fact abused. The record does not support this claim. In her closing argument, the prosecutor stated: "[I]n our jury instructions-and this is [CALCRIM No.] 1193-it talks specifically about how the testimony of a [CSAAS] expert fits in. And the jury instruction says, 'You may consider this evidence from Dr. Jones only in deciding whether or not the conduct of [J.S.], [K.A.], and [P.T.] was not inconsistent with the conduct of someone who has been molested. And you may consider this evidence . . . by Dr. Jones in evaluating the believability of [their] testimony.'" Contrary to Martinez's characterization, the prosecutor did not tell the jury that it could use Dr. Jones's testimony for an improper purpose. Rather, the prosecutor quoted CALCRIM No. 1193, the pattern jury instruction which states that CSAAS evidence may only be used to evaluate the credibility of the complaining witness and to determine whether his or her conduct was consistent with that of a sexually abused child. The prosecutor reiterated the limited use of such evidence in her rebuttal argument when she again quoted CALCRIM No. 1193 to explain that Dr. Jones's testimony "is not evidence that the defendant committed any of the crimes charged against him." This is a correct statement of the law on the proper use of CSAAS evidence. (See People v. Lapenias, supra, 67 Cal.App.5th at pp. 175-176.)
We also reject Martinez's claim that the admission of Dr. Jones's CSAAS testimony deprived him of his constitutional rights to due process and to confront witnesses against him. "[R]eviewing courts have routinely held the admission of CSAAS evidence does not violate due process." (People v. Lapenias, supra, 67 Cal.App.5th at p. 174.) Allowing the prosecution to present CSAAS evidence also does not deprive defendants of their Sixth Amendment right to confront and cross-examine witnesses. (People v. Patino, supra, 26 Cal.App.4th at pp. 1746-1747.) Here, Dr. Jones's testimony was limited in scope and directly relevant to the issues presented at trial. Martinez's counsel was able to thoroughly cross-examine Dr. Jones about the CSAAS model and its application to this case. The trial court also instructed the jury on the proper use, and limitations on the use, of Dr. Jones's testimony. On this record, the admission of the CSAAS evidence did not violate Martinez's constitutional rights.
II. Multiple convictions in violation of section 288.5
Martinez argues his convictions in counts 11 and 12 for lewd act upon a child (§ 288, subd. (a)) and count 22 for aggravated sexual assault of a child (§ 269, subd. (a)(1)) must be vacated because those crimes involved the same victim and occurred within the same time period as count 21 for continuous sexual abuse of a child (§ 288.5, subd. (a)). The Attorney General concedes there was error, but asserts we should vacate count 21 and remand for resentencing on all counts that comprised the continuous sexual abuse, including those that were previously dismissed. We conclude the proper remedy is to remand for the trial court to determine which count(s) to vacate based on which offenses are most commensurate with Martinez's culpability, and then to resentence Martinez on all remaining counts.
A. Governing law
Section 288.5, which defines the crime of continuous sexual abuse, makes it a felony offense for any person, who resides with or has recurrent access to a child, to commit three or more specific sexual acts against the child within a period of at least three months. (Id., subd. (a).) However, under section 288.5, subdivision (c), "[n]o other act . . . involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative." (Id., subd, (c).) Our Supreme Court has interpreted this provision to mean that a defendant may not be convicted of both continuous sexual abuse and specific sexual offenses against the same victim over the same period of time. (People v. Johnson (2002) 28 Cal.4th 240, 248 (Johnson).) If the prosecutor obtains multiple convictions in violation of section 288.5, subdivision (c), then "either the continuous abuse conviction or the convictions on the specific offenses must be vacated." (Johnson, at p. 245.)
B. Martinez's convictions violated section 288.5, subdivision (c), and the matter must be remanded for a full resentencing
Here, the parties agree, as do we, that Martinez was erroneously convicted of multiple offenses in violation of section 288.5, subdivision (c). The jury convicted Martinez of one count of continuous sexual abuse of J.S. for acts committed between April 24, 2013 and April 23, 2019 (§ 288.5, subd. (a); count 21). The jury also convicted Martinez of five counts of lewd acts upon J.S. between April 24, 2013 and April 23, 2018 (§ 288, subd. (a); counts 6, 8, 10-12), and one count of aggravated sexual assault of J.S. between April 24, 2017 and April 23, 2019 (§ 261, subd. (a)(2); count 22). At sentencing, the trial court dismissed counts 6, 8, and 10 because they fell "under the umbrella of count 21," the continuous sexual abuse offense. But the trial court did not dismiss counts 11, 12, or 22, and instead imposed terms of 15 years to life on each of those counts as well as count 21.
Because the offenses in counts 11, 12, and 22 also pertained to the same victim and the same date range as the offense in count 21, Martinez cannot stand convicted of both those specific sexual offenses and the continuous sexual abuse offense. (Johnson, supra, 28 Cal.4th at pp. 245-248.)
In considering the proper remedy for a violation of section 288.5, subdivision (c), appellate courts have concluded that the defendant must be left "standing convicted of the alternative offenses that are most commensurate with his culpability." (People v. Torres (2002) 102 Cal.App.4th 1053, 1059; accord, People v. Patton (2024) 101 Cal.App.5th 922, 930-931; People v. Wilson (2019) 33 Cal.App.5th 559, 573-574; People v. Rojas (2015) 237 Cal.App.4th 1298, 1308-1309.) "Generally, this means 'upholding whichever conviction[s] resulted in the greater aggregate penalty and vacating the less serious count[s].'" (People v. Patton, at p. 931; see People v. Rojas, at p. 1309; People v. Torres, at p. 1060.) However, as one appellate court recently explained, there may be circumstances where the "better approach is to allow the trial court to revisit [the] case rather than impose our own sentencing decision," such as where the trial court exercised discretion in imposing the defendant's original sentence. (People v. Martinez (Sept. 18, 2024, D083424) Cal.App.5th [2024 Cal.App. Lexis 583, *12].)
In this case, we conclude the proper remedy is to remand the matter for the trial court to determine which offenses are most commensurate with Martinez's culpability. At Martinez's original sentencing hearing, the trial court explained it had "discretion to impose concurrent or consecutive sentences" for some of the offenses, and as to those counts, it was "going to exercise some liberty." The court selected count 21, the continuous sexual abuse offense, as the base count, and imposed a mandatory term of 15 years to life on that count under the One Strike law. The court also imposed mandatory 15-year-to-life terms on counts 11, 12, 15, 16, and 22 under the One Strike law, but it elected to make the sentences in counts 11 and 16 concurrent with the sentences in counts 12 and 15. In addition, the court imposed the middle term on counts 19, 20, and 23, and elected to make the two-year sentences in counts 19 and 20 concurrent with the six-year sentence in count 23. Although the court dismissed counts 6, 8, and 10, it failed to recognize that, under section 288.5, subdivision (c), it was required to either vacate all six counts for the specific sexual offenses committed against J.S. between April 24, 2013 and April 23, 2019 (counts 6, 8, 10-12, and 22), or to vacate the single count for continuous sexual abuse (count 21). Under these circumstances, the trial court is in the best position to decide which of these count[s] to vacate and/or reinstate, and what sentence to impose for each count that remains.
As a general rule, "when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.'" (People v. Buycks (2018) 5 Cal.5th 857, 893.) Accordingly, on remand, if the trial court decides to vacate the convictions in counts 11, 12, and 22, then it shall resentence Martinez on count 21 and all other remaining counts. Alternatively, if the trial court decides to vacate the conviction in count 21, then it shall reinstate the convictions in counts 6, 8, and 10, and resentence Martinez on the reinstated counts and all other remaining counts. We express no opinion on how the trial court should exercise its sentencing discretion on remand.
III. Amendments to section 1385
Martinez also contends the matter should be remanded for the trial court to consider whether to dismiss the "section 667.61 sentence enhancement" based on the recent amendments to section 1385. We conclude this claim fails because section 1385, subdivision (c), does not apply to the findings made under section 667.61, known as the One Strike law.
A. Governing law
The proper interpretation of a statute is subject to de novo review. (People v. Tirado (2022) 12 Cal.5th 688, 694.) Section 1385, subdivision (a) authorizes a trial court to dismiss an action "in furtherance of justice." Effective January 1, 2022, Senate Bill No. 81 (2021-2022 Reg. Sess.) amended section 1385 to specify the factors that the court must consider in deciding whether to strike or dismiss an enhancement from a defendant's sentence. (Stats. 2021, ch. 721, § 1; see People v. Sek (2022) 74 Cal.App.5th 657, 674.) As amended, section 1385, subdivision (c)(1), now provides that "[n]otwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute."
B. Section 1385, subdivision (c), does not apply to the One Strike law
As the Attorney General correctly asserts, section 1385, subdivision (c), only applies to the dismissal of an "enhancement." (People v. Burke (2023) 89 Cal.App.5th 237, 243; People v. Olay (2023) 98 Cal.App.5th 60, 67.) The One Strike law, however, is not an enhancement. Rather, it "is an alternative sentencing scheme that applies when the prosecution pleads and proves specific aggravating circumstances in connection with certain sex offenses." (In re Vaquera (2024) 15 Cal.5th 706, 712.) In any event, even assuming that the One Strike law qualifies as an enhancement, section 1385, subdivision (c), expressly states that the court may not dismiss an enhancement if the "dismissal . . . is prohibited by any initiative statute." (§ 1385, subd. (c)(1).) In 2006, the California voters approved Proposition 83, which amended, among other statutes, the One Strike law. (§ 667.61, as amended by Prop. 83, § 12, as approved by voters, Gen. Elec. (Nov. 7, 2006), eff. Nov. 8, 2006; see People v. Williams (2024) 17 Cal.5th 99, 119.) As amended, section 667.61, subdivision (g), provides that "[n]otwithstanding Section 1385 or any other law, the court shall not strike any allegation, admission, or finding of any of the circumstances specified in subdivision . . . (e) for any person who is subject to punishment under this section."
Here, the trial court sentenced Martinez under the One Strike law based on the jury's findings that Martinez committed the offenses in counts 11-12, 15-18, and 21-22 against multiple victims within the meaning of section 667.61, subdivisions (b) and (e). Section 667.61, subdivision (b), mandates a state prison term of 15 years to life for a defendant convicted of a qualifying sexual offense under one of the aggravating circumstances specified in subdivision (e), which includes where the defendant committed the offense against more than one victim. (§ 667.61, subds. (b), (e)(4).) Therefore, under the plain language of section 667.61, subdivision (g), the trial court did not have discretion to strike or dismiss any of the jury's aggravating circumstance findings, notwithstanding the amendments to section 1385.
DISPOSITION
The convictions in counts 15, 16, 19, 20, and 23 are affirmed. The matter is remanded for the trial court to conduct a new sentencing hearing to decide whether to vacate the convictions in counts 11, 12, and 22, or to vacate the conviction in count 21. If the trial court vacates the conviction in count 21, then it shall reinstate the convictions in counts 6, 8, and 10. After deciding which count(s) to vacate or reinstate, the trial court shall resentence Martinez on all remaining counts.
WE CONCUR: GRIMES, Acting P. J., WILEY, J.