Opinion
A151929
09-20-2018
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO MORALES-CUEVAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 611075)
Defendant Armando Morales-Cuevas was accused of sexually abusing his stepdaughter (stepdaughter) beginning when she was nine years old. Stepdaughter repeatedly retracted and renewed her allegations, but Morales-Cuevas confessed to some of the allegations during a police interview. A jury convicted him of four counts of sexual intercourse or sodomy with a child 10 years of age or younger and one count of continuous sexual abuse of a child under 14 years of age, and he was sentenced to 116 years to life in prison.
On appeal, Morales-Cuevas advances seven primary claims. These are that (1) the trial court should have suppressed his statements to the police, because he did not validly waive his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) before being interrogated and his confession was coerced; (2) portions of CALJIC No. 10.42.6, the jury instruction given on the count of continuous sexual abuse, are legally incorrect; (3) expert testimony about Child Sexual Abuse Accommodation Syndrome (CSAAS), which was introduced at trial, "should be held inadmissible in California for all purposes"; (4) the court mistakenly believed it lacked discretion to impose concurrent terms for the counts of sexual intercourse or sodomy with a child 10 or younger; (5) his sentence constitutes cruel and unusual punishment; (6) the imposition of a $10,000 restitution fine violated his constitutional rights under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi); and (7) he is entitled to an additional day of presentence credits. We reject his claims and affirm, except we agree that the abstract of judgment must be modified to reflect an extra day of presentence credits.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Stepdaughter was born in fall 2002 and never met her biological father. Stepdaughter's mother (mother) met Morales-Cuevas in 2004 when he and some family members, including a first cousin known as Alejandro, moved into mother's apartment building. In fall 2005, shortly after mother gave birth to a son by a different man, Morales-Cuevas moved in with her and her children. At the time, Morales-Cuevas was 30, mother was 21, and stepdaughter was 3. Morales-Cuevas treated stepdaughter as his own child, and she did not learn he was not her biological father until several years later. Morales-Cuevas and mother married in 2007, and they had two children together, a girl born in fall 2007 and a boy born in early 2013.
A. The First Reports that Morales-Cuevas Sexually Abused Stepdaughter.
In 2008, the family moved into a four-bedroom apartment on Market Street in Oakland. Other family members, including Alejandro, and various tenants also lived in the apartment for periods of time. Alejandro's then-girlfriend, V.P., and her young daughter lived in the apartment between July 2012 and March 2014. Shortly after V.P. moved out, Alejandro also left and moved in with her.
A few months after moving out of the Market Street apartment, V.P. and Alejandro met with stepdaughter, who was then 11, at stepdaughter's request. Stepdaughter was crying, and she told them that Morales-Cuevas had raped her and the abuse "had been going on for a long time." She indicated that "her private parts hurt a lot" and her vagina was bleeding. Although this was the first time V.P. learned of any abuse, she had occasionally been concerned by Morales-Cuevas and stepdaughter's relationship because "[s]ometimes they would be alone in [a bedroom] and [stepdaughter] would come out angry or crying and slam the door." V.P. testified that stepdaughter later told her several other times that Morales-Cuevas had molested her and "never contradicted herself."
Around the time stepdaughter reported Morales-Cuevas's sexual abuse to V.P. and Alejandro, stepdaughter told mother that she wanted to sleep at V.P.'s home because Morales-Cuevas "had touched her." Specifically, stepdaughter said Morales-Cuevas had tried to have sex with her, had hit her, and had rubbed his penis until "something that looked like milk" had come out of it and gotten on her. Mother questioned the veracity of stepdaughter's claims, as stepdaughter did not appear upset during this conversation.
Shortly thereafter, Alejandro and V.P. separately told mother what stepdaughter had said about Morales-Cuevas. Mother claimed that when she asked stepdaughter about the bleeding, stepdaughter said her nose, not her vagina, had been bleeding. A few days later, mother asked Morales-Cuevas whether he had molested stepdaughter. According to mother, Morales-Cuevas denied that he had masturbated in front of stepdaughter or ejaculated on her, although he did admit hitting her. He also admitted that there "had been an accident" during which he reached for the television remote, which was between stepdaughter's legs, and had accidentally touched her vagina. Ultimately, mother decided not to report stepdaughter's allegations to the police because she had no "evidence" that Morales-Cuevas did anything inappropriate.
B. Alejandro Is Arrested for Molesting Stepdaughter.
Mother and Alejandro secretly carried on a sexual relationship that began in 2010 and lasted about two years. Sometime in early 2015, mother, Alejandro, and Morales-Cuevas had three-way sex, but mother claimed Morales-Cuevas did not know about the affair at this point. Instead, it was not until the spring or summer of that year that Alejandro told stepdaughter about the affair, and stepdaughter told Morales-Cuevas. Morales-Cuevas responded by leaving the apartment for a few days, but he and mother quickly reconciled and were still married at the time of trial.
In fall 2015, V.P. broke up with Alejandro after seeing "some messages from his ex-girlfriend" on his cell phone. The following day, V.P. found sexual messages and photographs from stepdaughter on Alejandro's phone. Shocked because Alejandro was 34 and stepdaughter was 12, V.P. reported what she had seen to the police. She did not, however, report the accusations stepdaughter had made about Morales-Cuevas. As part of the investigation of Alejandro, the police contacted mother, and she also failed to mention stepdaughter's accusations about Morales-Cuevas and said she did not have any concerns about Morales-Cuevas's being around stepdaughter.
Alejandro was arrested in mid-October 2015 after stepdaughter's first interview at the Child Abuse Listening, Interviewing and Coordination Center (CALICO). A transcript of this interview is not in our record, but stepdaughter affirmed at trial that Alejandro had sexually abused her, including by having intercourse with her, beginning before she was nine.
In addition, stepdaughter testified that a man known as Don Luis, who began renting a room at the Market Street apartment in 2015, had also sexually abused her. V.P. testified that stepdaughter told her that Don Luis "touched her inappropriately."
The results of a child sexual-assault exam performed on stepdaughter soon after Alejandro's arrest were inconclusive. The exam was considered "non-acute" because more than a few days had passed since the last reported incident of abuse, and there was no attempt to collect DNA evidence. Stepdaughter's hymen had certain irregularities, which could have been caused by trauma, but the exam was otherwise normal. The pediatrician who performed the exam testified that even if a child of stepdaughter's age had been vaginally penetrated, a non-acute exam would be "completely normal" in 86 percent of cases. And if a child of stepdaughter's age was sodomized, a non-acute exam would be "completely normal . . . with no scarring" in 99 percent of cases.
Sometime after Alejandro's arrest, V.P. told the police for the first time that stepdaughter had also accused Morales-Cuevas of sexual abuse. During another CALICO interview on November 16, 2015, stepdaughter was asked about a text message she sent to Alejandro shortly after V.P. reported him to the police. The message read, " 'I don't do it with my dad anymore.' " In the interview, stepdaughter denied that Morales-Cuevas had ever touched her inappropriately. She claimed that Alejandro had told her to send the message "so that if one day if something happens with him, he isn't going to go alone to jail."
C. Morales-Cuevas Admits Sexually Abusing Stepdaughter.
Two days after the November 16 CALICO interview, Morales-Cuevas and mother went to the police station to be interviewed as part of what they thought was the investigation of Alejandro. During her interview, mother disclosed stepdaughter's 2014 reports of being abused by Morales-Cuevas, as well as his claim that he had accidentally touched stepdaughter while trying to retrieve the remote. Mother also told the police that he had admitted to masturbating onto stepdaughter and said it would not happen again.
Morales-Cuevas was then arrested, and two police officers interrogated him. Initially, Morales-Cuevas denied having "done anything" to stepdaughter. He remained silent as he was repeatedly asked to say what had happened, but he eventually made several admissions. He began by admitting that once, when he was drunk and alone in his bedroom with stepdaughter, he touched her breasts. After further prompting, he admitted he had also touched her vagina and had sexual intercourse with her. To explain why she did not bleed, stepdaughter told him "she was with . . . Alejandro," who "used to force her to do that."
Mother testified that Morales-Cuevas stopped drinking alcohol after their youngest child's birth in early 2013, when stepdaughter was 10.
After additional prompting, Morales-Cuevas admitted he had sexually abused stepdaughter numerous times, beginning when she was nine and most recently the previous month, when she was 13. He estimated that in total, he had sexual intercourse with her 10 times and she orally copulated him three times. In contrast to his response when accused of abusing stepdaughter, he immediately and consistently denied molesting his own biological daughter, saying, "[W]ell, with my daughter, I couldn't—I could never do that."
D. Stepdaughter's Shifting Claims About Morales-Cuevas.
1. Allegations made during the next CALICO interview.
On November 19, the day after Morales-Cuevas's arrest, stepdaughter was again interviewed at CALICO (post-arrest CALICO interview). She admitted she had lied in previous interviews about not being abused by Morales-Cuevas because she did not want him to go to jail. He told her if mother found out, he would go to jail for a long time and be assaulted there. After the police began investigating Alejandro, stepdaughter told Morales-Cuevas to deny ever molesting her, but Morales-Cuevas told stepdaughter he was tired of lying. At one point in the interview, she expressed reluctance to disclose additional details about their sexual contact, because she was not sure if he had told the police everything and she did not "want him to get more years."
Eventually, stepdaughter disclosed that Morales-Cuevas had started touching her vagina over her clothes when she was around eight or nine, and he first had sexual intercourse with her when she was nine. She estimated that he had sexual intercourse with her a few times a year for the next four years. Morales-Cuevas had also put his penis in her mouth "once or twice," the first time when she was 11 or 12, and had orally copulated her about three times, the first time when she was 12. Finally, stepdaughter disclosed that Morales-Cuevas had sodomized her "[t]wo or three" times, the first time when she was 12 and the most recent time about a month earlier, soon after she turned 13. Stepdaughter felt he had not "abused" her, however, because "he never forced" her.
2. Mother's testimony about retractions by stepdaughter.
Mother testified that after Morales-Cuevas was arrested, she told stepdaughter that the family was going to break apart because he was in jail. According to mother, stepdaughter responded that Morales-Cuevas had not touched her, that he did not deserve to be in custody, and that the situation was mother's fault. Stepdaughter also expressed concern that "she would die" if Morales-Cuevas was not there to take care of the children.
Soon after Morales-Cuevas's arrest, child welfare services removed all four children from mother's custody. Stepdaughter had several placements, including in San Diego with her aunt and in various East Bay group homes. The other three children were permanently returned to mother in January 2017, but stepdaughter was still in an out-of-home placement at the time of trial in March of that year.
Around the end of 2016, stepdaughter ran away from her placement and visited mother. According to mother, stepdaughter again said that Morales-Cuevas had not done anything to her. Mother also claimed that during a recent meeting with child welfare services, stepdaughter had said that Morales-Cuevas "didn't do anything and that she was going to tell the truth when she came to testify." Mother wanted stepdaughter to come home, but the other children did not because they blamed her for Morales-Cuevas's absence.
3. Stepdaughter's statements to the prosecution.
In the months leading up to trial, stepdaughter told the prosecution on numerous occasions that Morales-Cuevas had sexually abused her. A district attorney inspector testified that during an April 2016 meeting, stepdaughter reported that she no longer wanted to refer to Morales-Cuevas as her father "[b]ecause he had raped her." Two months later, stepdaughter told the prosecution that she was considering saying that Morales-Cuevas had never touched her, because her siblings "hated" her and she did not want them to grow up without a father. She also "wondered if she said it didn't happen, or [fewer] things happened, that maybe [Morales-Cuevas] would do less jail time." Later in the meeting, however, she affirmed that Morales-Cuevas had in fact abused her.
In August 2016, shortly before the preliminary hearing in this case, stepdaughter made detailed allegations about Morales-Cuevas to the prosecution that were consistent with her statements in the post-arrest CALICO interview, including that he had begun having sex with her when she was eight or nine, had continued to do so over the next several years, had engaged in oral sex with her, and had sodomized her. Stepdaughter said she "wanted her dad to be happy, but she knew what he was doing to her was wrong."
Finally, at the preliminary hearing, stepdaughter testified, consistent with her previous disclosures to law enforcement, that Morales-Cuevas (1) began having sex with her when she was eight or nine; (2) had sex with her two or three times when she was that age, four times when she was 10, four times when she was 11, two or three times when she was 12, and once when she was 13; (3) performed oral sex on her twice when she was 12 and 13; (4) made her perform oral sex on him once or twice when she was 11 or 12; and (5) sodomized her three times when she was 12 and 13.
About a month before trial started, stepdaughter told the prosecution that she did not want to have to testify again, and she suggested that her testimony from the preliminary hearing be used. She stated that if she had to return to court, she was going to lie and say Morales-Cuevas had not sexually abused her. Then, suggesting to the prosecution for the first time that Morales-Cuevas had not actually abused her, she claimed that the two had formed a plan for her to falsely accuse him of abuse as revenge for mother's affair with Alejandro. When told this plan made no sense, stepdaughter said "she just wanted her dad out of jail" and "was tired of foster care."
Later in the same meeting, stepdaughter went back to acknowledging that Morales-Cuevas had sexually abused her. But shortly before trial, she reversed course again and told the prosecution that Morales-Cuevas had not molested her. This time, she claimed that she and Morales-Cuevas had formulated a plan to falsely report abuse to protect her and her family from V.P., not to get back at mother.
4. Stepdaughter's testimony.
At trial, stepdaughter initially denied that Morales-Cuevas had "ever [had] any sexual conduct with [her] whatsoever." She testified that everything she said in 2014 when first reporting the abuse to mother and V.P., as well as her disclosure of sexual abuse by Morales-Cuevas during the post-arrest CALICO interview, had been a lie. And she disputed many details of what she had reportedly said in her meetings with the prosecution, including by denying that she had ever said she was going to lie at trial because she wanted Morales-Cuevas released. She did acknowledge, however, that she did not like being in foster care and wanted to live with her family again. She felt it was her fault the family had been broken apart, because "everybody got taken away from [mother] for something that wasn't even true."
To explain why she had accused Morales-Cuevas of sexual abuse, including in the text message to Alejandro, stepdaughter reiterated her claim that she and Morales-Cuevas had come up with a plan to punish mother for sleeping with Alejandro. Stepdaughter testified that the intent was "[t]o get revenge" by making mother "feel what she made [the family] feel" when they learned of the affair. Stepdaughter said she and Morales-Cuevas did not agree on the details of what she would allege, except that they had had sexual intercourse. She claimed that she had independently invented the number of times they supposedly engaged in various sex acts.
Later in her testimony, stepdaughter again claimed that the plan with Morales-Cuevas was actually motivated by a desire to protect themselves from V.P., not to get back at mother. Stepdaughter explained that Morales-Cuevas was willing to go to jail "to protect [her] and [her] siblings" because V.P. "wasn't going to just leave Alejandro in jail by himself. She wanted to take [Morales-Cuevas] too, so [he] just like turned himself in." Stepdaughter said both V.P. and Alejandro had threatened her and her siblings.
On cross-examination, stepdaughter was shown testimony she had given at Alejandro's preliminary hearing during which she said she had sex with Morales-Cuevas. When asked whether the prior testimony was true, stepdaughter said no, but when asked again if she had been telling the truth, she responded, "[Morales-Cuevas] touched me just one time. I don't want him going to jail for that one time." She then testified that when she was 13, Morales-Cuevas's penis was in her vagina for "like one minute." She claimed that it "just happened" and "was an accident[,]" because afterward he "was crying . . . [and] apologizing for what happened."
E. The Verdict and Sentencing.
Morales-Cuevas was charged with four felony counts of sexual intercourse or sodomy with a child aged 10 or younger, two based on incidents during a period when stepdaughter was 8 and 9, and two based on incidents during a period when she was 9 and 10. He was also charged with a felony count of continuous sexual abuse of a child under age 14, based on incidents during a period when stepdaughter was 11, 12, and 13. The jury convicted him of all the charges, and the trial court sentenced him to 116 years to life in prison, composed of consecutive terms of 25 years to life for each count of sexual intercourse or sodomy with a child 10 or younger and the upper term of 16 years for the count of continuous sexual abuse of a child under 14.
These charges were brought under Penal Code section 288.7, subdivision (a). All further statutory references are to the Penal Code unless otherwise noted.
This charge was brought under section 288.5, subdivision (a).
II.
DISCUSSION
A. The Trial Court Properly Denied Morales-Cuevas's Motion to Suppress.
Morales-Cuevas claims that the trial court violated his federal and state constitutional rights by denying his motion to suppress his statements to the police because (1) he did not validly waive his Miranda rights before the interrogation began and (2) his confession was coerced. We are not persuaded on either count.
1. Additional facts.
The prosecution filed a motion in limine to admit Morales-Cuevas's statements to the police. In response, Morales-Cuevas requested a hearing for the trial court to evaluate whether the statements' admission would violate Miranda.
Although another officer was present, Oakland Police Officer Rodger Haley conducted most of the interrogation because he spoke Spanish, Morales-Cuevas's preferred language. At the hearing, Officer Haley testified about the circumstances of the interrogation, including its length, the giving of the Miranda warnings, and Morales-Cuevas's condition and body language. The interrogation was recorded, and a transcript of it as well as a Miranda form initialed by Morales-Cuevas were admitted into evidence.
It does not appear that the trial court reviewed the recording of the interrogation before ruling on the motion to suppress. The recording was admitted at trial, however, and our review of it confirms the correctness of the court's ruling.
Morales-Cuevas argued for suppression of his statements on two bases. First, he claimed that "there was not a clear communication" between him and Officer Haley that established he understood his Miranda rights. Although Morales-Cuevas had said " 'mm-hmm' " and "nodded his head several times" when asked if he understood his rights, he had "not affirmatively stat[ed] that he did understand." And although he had initialed a waiver form, "he did not appear to have even read" it, suggesting he "was simply following the officer's instructions and not actually responding to the officer's questions concerning his understanding of what was happening at that moment."
Second, Morales-Cuevas claimed that his statements were "given involuntarily" based on his being handcuffed for over three hours "in a small six by six room . . . with two men wearing holsters on their belts and law enforcement badges on their belts." Morales-Cuevas argued that such circumstances were "intimidating" and suggested that he "was simply following instructions and telling the officers what he believed they wanted to hear." The trial court ruled that the statements were admissible, concluding without further explanation that there were "no Miranda violations."
2. There was a valid implied waiver of Miranda rights.
Morales-Cuevas first claims that the trial court erred by determining he waived his Miranda rights before the police began to question him. We conclude there was a valid implied waiver.
Miranda held that to protect the constitutional right against self-incrimination, "any person who is suspected or accused of a crime and who has been taken into custody or otherwise restrained may not be interrogated by the police unless he [or she] first knowingly and intelligently waives his [or her] right to silence, to the presence of an attorney, and to appointed counsel if indigent. Statements obtained in violation of Miranda are not admissible to prove the accused's guilt in a criminal prosecution." (People v. Ray (1996) 13 Cal.4th 313, 336 (Ray).) Since Morales-Cuevas's claim involves no disputed facts, we " 'independently decide whether the challenged statements were obtained in violation of Miranda.' " (People v. Gonzales (2012) 54 Cal.4th 1234, 1269 (Gonzales).)
" 'No particular manner or form of Miranda waiver is required, and a waiver may be implied from a defendant's words and actions. [Citations.] In determining the validity of a Miranda waiver, courts look to whether it was free from coercion or deception, and whether it was " 'made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.' " ' " (Gonzales, supra, 54 Cal.4th at p. 1269.) Although Miranda spoke of the prosecution's " 'heavy burden' to show waiver, . . . this 'heavy burden' is not more than the burden to establish waiver by a preponderance of the evidence." (Berghuis v. Thompkins (2010) 560 U.S. 370, 383-384 (Berghuis).) The ultimate question is "whether the Miranda waiver was knowing and intelligent under the totality of the circumstances surrounding the interrogation" (People v. Cruz (2008) 44 Cal.4th 636, 668), " ' " 'keeping in mind the particular background, experience[,] and conduct of the accused.' " ' " (Gonzales, at p. 1269.)
We agree with the parties that Morales-Cuevas did not expressly waive his Miranda rights before questioning began, and we therefore consider whether there was an implied waiver. To establish a valid implied waiver, it is sufficient for the prosecution to show that (1) a Miranda warning was given; (2) the defendant understood these rights; and (3) the defendant then made an uncoerced statement. (Berghuis, supra, 560 U.S. at p. 384.) Thus, "[i]n general, if a custodial suspect, having heard and understood a full explanation of his or her Miranda rights, then makes an uncompelled and uncoerced decision to talk, he or she has thereby knowingly, voluntarily, and intelligently waived them." (People v. Cunningham (2015) 61 Cal.4th 609, 642 (Cunningham); see also Gonzales, supra, 54 Cal.4th at p. 1269.) Morales-Cuevas does not dispute that he was properly informed of his Miranda rights, and as we discuss in part II.A.3. below, his statements were not coerced. Therefore, our discussion focuses on whether he understood his rights and waived them through his ensuing conduct.
Relying primarily on State v. Wilson (Conn. 1981) 439 A.2d 330 (Wilson), Morales-Cuevas argues that the prosecution did not sustain its burden of showing that he understood his Miranda rights and implicitly waived them. In Wilson, the Connecticut Supreme Court determined that the defendant had not knowingly and voluntarily waived his rights before confessing. (Id. at pp. 330-331.) This was so even though the defendant received a Miranda warning, responded affirmatively when asked whether he understood his rights, and eventually made inculpatory statements. (Id. at pp. 332-333.)
Wilson is not binding on us, but even if it were, it does not support Morales-Cuevas's position. Wilson concluded that the defendant's verbal agreement that he understood his Miranda rights was insufficient to establish actual understanding, because "the record disclose[d] no evidence whatsoever of the defendant's physical or mental condition, educational background, or other factors which could provide a basis for determining his capacity to understand the Miranda warnings and the rights which they represent." (Wilson, supra, 439 A.2d at p. 333.) The Wilson interrogation was not recorded, however, and a police officer's testimony about it was the only evidence presented to establish the defendant's understanding of his rights. Here, in contrast, the record contains more evidence than just the defendant's bare indication of understanding his rights. Morales-Cuevas agreed that he was not intoxicated or otherwise impaired, and he cogently answered the officers' questions when he chose to do so. Moreover, our viewing of the recording of the interrogation confirms that he was both physically and mentally sound. There is no suggestion that he did not understand Officer Haley's Spanish or that his comprehension was otherwise hampered. In short, the totality of the circumstances supports the conclusion that Morales-Cuevas in fact understood his Miranda rights.
Morales-Cuevas also argues that "[t]he fact [he] may have understood his rights and gave a statement is insufficient in itself to show waiver." It is true that in Wilson, the court concluded that "[t]he only fact from which waiver might conceivably be inferred [was] the actual speaking of inculpatory remarks by the defendant; but that [was] not enough" under Miranda, based on the principle that "[a] valid waiver cannot be presumed 'simply from the fact that a confession was in fact eventually obtained.' " (Wilson, supra, 439 A.2d at p. 333, quoting Miranda, supra, 384 U.S. at p. 475.) But Wilson was decided nearly 40 years ago, and the United States Supreme Court has since explicitly held that inculpatory remarks made by a defendant who understands his or her Miranda rights are sufficient to establish an implied waiver: "Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent." (Berghuis, supra, 560 U.S. at p. 384.)
Despite the clear authority to this effect, Morales-Cuevas contends that his inculpatory statements do not suffice "[u]nder these circumstances, where [his] initial statements . . . were virtually reflexive denials to accusations of criminality, resulting in a gap in time between the reading of Miranda rights and the actual substance of the interrogation." He cites no decisions supporting this assertion, however, and we are aware of none. Indeed, in Berghuis, the Supreme Court noted that "[p]olice are not required to rewarn suspects from time to time" and concluded that the fact that the defendant made an inculpatory statement "about three hours after receiving a Miranda warning [did] not overcome the fact that he engaged in a course of conduct indicating waiver," including the giving of "sporadic answers to questions throughout the interrogation." (Berghuis, supra, 560 U.S. at p. 386.) Here, less than two hours elapsed between when Morales-Cuevas was read his rights and when he began to confess, and based on our viewing of the interrogation recording, his extended silences are more reasonably interpreted as a product of his reluctance to admit to shameful conduct than as an attempt to invoke his Miranda rights.
3. Morales-Cuevas's confession was not coerced.
We next address Morales-Cuevas's contention that his confession was the product of police coercion and therefore involuntary. "The test for voluntariness of a custodial statement is whether the statement is ' "the product of an essentially free and unconstrained choice" ' or whether the defendant's ' "will has been overborne and his [or her] capacity for self-determination critically impaired" ' by coercion." (Cunningham, supra, 61 Cal.4th at p. 642.) To assess whether a custodial statement is voluntary, we consider the totality of the circumstances. (Ibid.) Relevant factors include the degree of any coercion; where and how long the interrogation takes place; and the defendant's traits, including educational level and physical and mental health. (Id. at pp. 642-643.) We review a trial court's factual findings for substantial evidence and independently review its determination that a confession was voluntary, including its assessments " ' "whether coercive police activity was present, whether certain conduct constituted a promise and, if so, whether it operated as an inducement." ' " (People v. Jones (1998) 17 Cal.4th 279, 296.)
To begin with, we question whether Morales-Cuevas preserved this claim. He argued below that his statements were involuntary, but he relied on his physical intimidation by being handcuffed in a small room with the officers. On appeal, in contrast, his argument rests on the officers' verbal conduct, namely their alleged promises of leniency and their interrogation tactics. Because he did not previously raise this theory for suppression of his statements, "the parties had no incentive to fully litigate [it] below, and the trial court had no opportunity to resolve material factual disputes and make necessary factual findings. Under such circumstances, a claim of involuntariness [of a confession] generally will not be addressed for the first time on appeal." (Ray, supra, 13 Cal.4th at p. 339; People v. Mayfield (1993) 5 Cal.4th 142, 172.)
In any event, the claim fails on the merits. "[C]oercive police conduct is a necessary predicate" to establish that a custodial statement was involuntary, although "such conduct does not compel a finding that the resulting statement is involuntary." (Cunningham, supra, 61 Cal.4th at p. 643.) To justify the suppression of a statement, the conduct must involve " ' "psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable." ' " (Ibid.) For example, " ' "any promise made by an officer . . ., express or implied, of leniency or advantage to the accused, if it is a motivating cause of the confession, is sufficient to invalidate the confession" ' " and require its exclusion. (Ray, supra, 13 Cal.4th at p. 339.)
Morales-Cuevas argues that the officers here made an "implied promise that the truth would be of benefit to [him]" by "suggest[ing] that leniency would result from a confession whereas only harsher punishment would await if the case had to be proved with the other evidence the officers had against him." The actions Morales-Cuevas objects to are the officers' (1) "assert[ing] that [his] silence spoke volumes"; (2) "repeatedly urg[ing] [him] to tell his side of the story"; (3) "insist[ing] they already knew the truth"; and (4) "providing possible excuses . . . and expressing understanding of the conduct with [stepdaughter]."
We fail to see how these tactics, either individually or collectively, amounted to an improper promise of leniency if Morales-Cuevas confessed. Although an implied promise of leniency can invalidate a confession, " '[n]o constitutional principle forbids the suggestion by authorities that it is worse for a defendant to lie in light of overwhelming incriminating evidence,' " and "law enforcement officers are permitted to urge that it would be better to tell the truth." (People v. Williams (2010) 49 Cal.4th 405, 444; see also Ray, supra, 13 Cal.4th at p. 340; People v. Hill (1967) 66 Cal.2d 536, 549.) "The distinction that is to be drawn between permissible police conduct on the one hand and conduct deemed to have induced an involuntary statement on the other 'does not depend upon the bare language of inducement but rather upon the nature of the benefit to be derived by a defendant if he [or she] speaks the truth as represented by the police.' " (People v. Jimenez (1978) 21 Cal.3d 595, 611, overruled on another ground in People v. Cahill (1993) 5 Cal.4th 478, 509, fn. 17.) Specifically, suggesting the "benefits which would naturally accrue to" the suspect if he or she told the truth is permissible so long as those benefits do "not include leniency or favorable treatment by the state." (Hill, at p. 550, italics added.) Here, the officers certainly suggested to Morales-Cuevas that confessing would make him feel better and would benefit stepdaughter, but none of their statements implied a promise " 'of more lenient treatment at the hands of the police, prosecution[,] or court.' " (Jimenez, at p. 612.)
Morales-Cuevas also complains that during his interrogation the officers used "the minimization/maximization techniques that were of great concern" in In re Elias V. (2015) 237 Cal.App.4th 568 (Elias V.), which was decided by Division Two of this court and upon which Morales-Cuevas heavily relies. As described in that case, those techniques are "a 'cluster of tactics' designed to convey two things. The first is 'the interrogator's rock-solid belief that the suspect is guilty and that all denials will fail.' " (Id. at p. 583.) The second is " 'that leniency in punishment is forthcoming upon confession,' " which the interrogator signals by providing " 'moral justification and face-saving excuses for [the defendant's] having committed the crime in question.' " (Ibid.)
Although the officers here undoubtedly used some of these techniques during Morales-Cuevas's interrogation, we cannot conclude that these tactics were coercive enough under all the circumstances to render his confession involuntary. The use of maximization and minimization techniques alone does not render a confession involuntary. To the contrary, the Miranda warning "serve[s] as a counterweight to the coercive pressure that may be exerted" through typical interrogation tactics, including "threatening a defendant, using deception, displaying confidence in the suspect's guilt and directing questions solely at 'confirming . . . details[,]' . . . [and] minimizing the accused's responsibility for the crime." (People v. Williams, supra, 49 Cal.4th at p. 442.) Any concern about the interrogation techniques used here is diminished because Morales-Cuevas was read his Miranda rights and, as we concluded above, validly waived them.
Elias V. does not compel a contrary conclusion. Our colleagues in Division Two declined to rest their determination that a minor's custodial statements were involuntary on the use of maximization and minimization techniques alone, instead basing the holding "on a combination of factors: (1) [the minor's] youth, which rendered him ' "most susceptible to influence . . ." [citation] . . . and "outside pressures . . ." [citation] . . .' [citation]; (2) the absence of any evidence corroborating [the minor's] inculpatory statements; and (3) the likelihood that [the interrogating officer's] use of deception and overbearing tactics would induce involuntary and untrustworthy incriminating admissions." (Elias V., supra, 237 Cal.App.4th at pp. 586-587.) In contrast, Morales- Cuevas is not a juvenile, and as we have said there is nothing about his particular background that suggests he was especially susceptible to the officers' influence. In addition, before the interrogation, the police had already uncovered significant evidence against him, including stepdaughter's detailed claims about what he had done to her and when, and his confession was consistent with that evidence. (Compare id. at pp. 591-592, 597-600.)
In sum, Morales-Cuevas has failed to demonstrate any error in the admission of his statements to the police. He gave a valid implied waiver of his Miranda rights, and the officers' interrogation techniques were not coercive under all the circumstances. As a result, the trial court did not err by denying his motion to suppress.
B. Morales-Cuevas's Challenge to the Jury Instruction on Continuous Sexual Abuse of a Child Fails.
Morales-Cuevas also claims that the trial court erred by giving CALJIC No. 10.42.6, which addresses continuous sexual abuse of a child. Specifically, he complains about the instruction's statement that "[t]he law does not require that the lust, passions[,] or sexual desires of either [the offender or victim] be actually aroused, appealed to, or gratified," which he contends effectively lessened the prosecution's burden of proof and precluded the jury from considering certain evidence. We reject this claim.
Morales-Cuevas also objects to CALJIC No. 10.42.6's statement that "[i]t is no defense to this charge that the child under the age of 14 years may have consented to the substantial sexual conduct or the lewd or lascivious conduct." But his substantive arguments do not pertain to this statement, and we therefore do not address this aspect of the instruction. (See People v. Gallardo (2017) 18 Cal.App.5th 51, 69, fn. 11 [points not supported by reasoned argument are waived].) Similarly, we will not consider his cursory assertion that CALJIC No. 10.42.6 is duplicative because "the jury has already been instructed on what must be proved." --------
Although Morales-Cuevas did not object below to the giving of CALJIC No. 10.42.6, we will nevertheless consider his claim on the merits because he argues that the alleged error deprived him of his federal constitutional rights to due process and a fair trial. (See § 1259.) " 'A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. [Citations.]' [Citation.] ' "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." ' " (People v. Solomon (2010) 49 Cal.4th 792, 822.) We review claims of instructional error de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1210.)
Morales-Cuevas argues that the challenged portion of CALJIC No. 10.42.6 is "biased in favor of the prosecution." He claims that "[b]y informing the jury that certain acts and responses are not required in order to prove the offense[] charged," the instruction "suggests that the prosecution's burden is considerably lower than it actually is." Our state Supreme Court has rejected a similar challenge to CALJIC No. 2.51, which directs that a defendant's motive need not be proven to establish guilt. (People v. Streeter (2012) 54 Cal.4th 205, 253 [motive instruction does not "impermissibly dilute[] the reasonable doubt standard" when accompanied by usual reasonable-doubt instructions].) We do not see any principled reason that CALJIC No. 10.42.6 would impact the concept of reasonable doubt any more than CALJIC No. 2.51. Because the jury instructions given here—including CALJIC No. 2.90 on reasonable doubt and the presumption of innocence—uniformly conveyed that the prosecution was required to prove Morales-Cuevas's guilt beyond a reasonable doubt, there is no reasonable likelihood that the jury construed the instruction at issue to reduce the prosecution's burden of proof. (See People v. Casares (2016) 62 Cal.4th 808, 831-832; Streeter, at p. 253.)
Morales-Cuevas also contends that the challenged portion of CALJIC No. 10.42.6 "improperly implies" that the jury should "give[] no weight" to any evidence that no actual sexual arousal or gratification occurred in either the offender or victim. He argues that a "lack of arousal or gratification" tends to suggest the required "lewd or sexual intent" was absent. Even assuming this is true, there is no reasonable likelihood that the jury understood the instruction to preclude it from considering any lack of arousal or gratification. Moreover, even if CALJIC No. 10.42.6 had been legally erroneous for this reason, there was no prejudice. The evidence overwhelmingly suggested that Morales-Cuevas was sexually aroused and gratified by having intercourse with stepdaughter, abuse he perpetrated for years, and he does not explain why he might have received a more favorable verdict had the challenged portion of the instruction been omitted. In short, his claim of instructional error fails.
C. Stare Decisis Precludes the Claim Involving CSAAS Evidence.
Morales-Cuevas contends that the trial court erred in permitting an expert on CSAAS to testify because "[d]espite existing precedent, . . . any type of CSAAS evidence should be held inadmissible in California for all purposes." As our state Supreme Court has held that such evidence is admissible for some purposes, we must reject this claim.
At trial, Dr. Anthony Urquiza, Ph.D., a licensed psychologist and professor of pediatrics, was qualified as an expert on CSAAS. He testified that CSAAS is a "teaching tool" developed in the early 1980's meant to "educate . . . about the context in which [sexual abuse of children] happens, some of the dynamics that occur in an abusive relationship, . . . some of the ways in which kids respond to the experience of being abused, with the overall idea . . . [of] trying to get rid of any misperceptions" about the topic. Briefly, as set forth by Dr. Urquiza, CSAAS has five components: secrecy, helplessness, entrapment and accommodation, delayed and unconvincing disclosure, and retraction or recantation. These concepts explain behavior by sexually abused children that might otherwise appear inconsistent with their allegations against a perpetrator, including why a child might not disclose or resist abuse or retract an allegation once made. Dr. Urquiza explained that the model does not, however, aim to determine "whether a particular person has been abused or not, or [whether] a particular person is guilty or innocent of a certain crime," issues that are the "responsibility of the jury." He also made clear that he was not familiar with the facts here and was conveying information about sexual abuse generally, "not anything specific to this case."
Morales-Cuevas does not identify anything in particular about Dr. Urquiza's testimony, to which he did not object below, that required its exclusion. Instead, he claims that CSAAS evidence as a whole should never be admitted in California. As he recognizes, however, we are not in a position to accept his suggestion that we "adopt the rule found in three other states of excluding CSAAS evidence entirely." This is because our state Supreme Court has held that while CSAAS evidence is inadmissible to prove a particular child has been abused, " 'it is admissible to rehabilitate [a child molestation victim'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 self-impeaching behavior." ' " (People v. Brown (2004) 33 Cal.4th 892, 906, quoting People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301.) We are bound to follow this precedent, and we therefore need not further address Morales-Cuevas's arguments. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
D. Morales-Cuevas's Claims Involving the Trial Court's Imposition of Consecutive Sentences Lack Merit.
Next, Morales-Cuevas claims that the trial court failed to understand that it had discretion to sentence him concurrently on his four convictions under section 288.7, subdivision (a) (section 288.7(a)) for sexual intercourse with a child 10 years of age or younger, requiring a remand. We are not persuaded.
In giving its tentative sentence, the trial court observed that it had "very, very limited options" on the four section 288.7(a) convictions, "and they [each] carry . . . a 25[-]years[-]to[-]life sentence. [¶] So on each of those will be 25 years to life for a total of 100 years to life." After giving the parties a chance to object to the tentative sentence, which neither did, the court then imposed consecutive sentences for the section 288.7(a) convictions.
In general, section 669 gives a trial court the discretion to determine whether terms of imprisonment for two or more convictions "shall run concurrently or consecutively." (§ 669, subd. (a); People v. Leon (2016) 243 Cal.App.4th 1003, 1025.) "The Legislature may remove this discretion for certain crimes, but exceptions are typically made clear in the statutory language of the offense," and "[u]nless otherwise prohibited by statute, sentences for crimes that carry indeterminate life terms may be imposed concurrently." (Leon, at p. 1025.) The parties agree that section 669 applies to Morales-Cuevas's section 288.7(a) convictions because nothing in section 288.7 or any other statute—including section 667.6, which requires consecutive sentences for certain sex crimes—prohibits concurrent sentencing on them.
Morales-Cuevas claims that the trial court erroneously relied on section 667.6 to impose consecutive terms "because the . . . court seemed to base its determination that consecutive terms were warranted merely on the fact that the crimes arose out of four separate acts," a relevant fact under subdivision (d) of that statute. But at sentencing, the court never said anything about the section 288.7(a) offenses' having occurred on different occasions. Nor is there any other indication that the court believed consecutive sentencing was mandatory. Although the court referred to its "very, very limited options" in sentencing on the section 288.7(a) convictions, that statement does not suggest it believed it had no discretion. Moreover, neither the probation report nor the prosecution's sentencing letter suggested that consecutive terms were mandatory. Thus, we cannot conclude that the court misunderstood its discretion.
It is true that when a trial court exercises its discretion under section 669 to impose consecutive terms, it must identify the reasons for its choice. (People v. Neal (1993) 19 Cal.App.4th 1114, 1117; Cal. Rules of Court, rule 4.406(b)(5); see also § 1170, subd. (c).) But to the extent that Morales-Cuevas contends the trial court erred by not articulating its reasons for sentencing consecutively, the claim is waived. The waiver doctrine applies "to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices," including claims that the court "failed to state any reasons or give a sufficient number of valid reasons." (People v. Scott (1994) 9 Cal.4th 331, 353.) Morales-Cuevas argues that there was no forfeiture under Scott because he did not have "a meaningful opportunity to object," which "can occur only if, during the sentencing hearing itself and before objections are made, the parties are clearly apprised of the sentence the court intends to impose and the reasons that support any discretionary choices." (Id. at p. 356.) But the court's failure to specify its reasons for imposing consecutive sentences in the tentative ruling was clearly apparent, and Morales-Cuevas then had an opportunity to object. Because he did not do so, he cannot complain about the omission now.
Morales-Cuevas also argues that if we conclude he forfeited his consecutive-sentencing claim, his trial counsel rendered ineffective assistance by "failing to properly request concurrent terms and . . . to argue that consecutive terms were not appropriate under the circumstances of this case." The only aspect of his claim that we conclude he forfeited involves the trial court's failure to specify its reasons for imposing consecutive terms, and his briefing does not address why he was entitled to concurrent terms instead. Moreover, in arguing against forfeiture, he contends that "trial counsel reasonably could have concluded that any objection to the imposition of consecutive terms would have been futile," undermining his claim that counsel performed deficiently. He is not entitled to any relief.
E. Morales-Cuevas's Sentence Does Not Constitute Cruel or Unusual Punishment Under Either the State or Federal Constitution.
Morales-Cuevas also contends that his sentence of four consecutive terms of 25 years to life for his section 288.7(a) convictions constitutes cruel and unusual punishment under the federal and state Constitutions. We disagree.
The Eighth Amendment of the federal Constitution " 'prohibits the infliction of "cruel and unusual" punishment. [Citation.] Article I, section 17 of the California Constitution prohibits infliction of "[c]ruel or unusual" punishment. . . . The distinction in wording is "purposeful and substantive rather than merely semantic," ' " and we therefore separately construe the two provisions. (People v. Baker (2018) 20 Cal.App.5th 711, 723 (Baker).) Broadly, however, both prohibit punishment that is " ' " 'grossly disproportionate' " ' " to the crime. (Id. at pp. 723, 732-733.) Whether a sentence constitutes cruel and unusual punishment is a question of law we review de novo. (People v. Mora (1995) 39 Cal.App.4th 607, 615.)
We agree with the Attorney General that Morales-Cuevas forfeited this claim by not raising it below. Since "[c]ruel and unusual punishment arguments, under the federal or California tests, require examination of the offense and the offender," they must first be raised in the trial court. (People v. Norman (2003) 109 Cal.App.4th 221, 229; see also Baker, supra, 20 Cal.App.5th at p. 720; People v. Burgener (2003) 29 Cal.4th 833, 886.) To avoid addressing Morales-Cuevas's contention that his trial counsel rendered ineffective assistance by failing to object on this ground, we will nevertheless address the claim on the merits.
1. California Constitution.
In deciding whether an indeterminate sentence constitutes cruel or unusual punishment, " 'it is the maximum term prescribed by the statute—not a lesser period thereafter fixed as an "incentive to well-doing"—which must survive constitutional scrutiny.' " (Baker, supra, 20 Cal.App.5th at p. 723.) Accordingly, "we must consider whether a life sentence withstands constitutional scrutiny" without regard to when Morales-Cuevas will theoretically be eligible for parole. (Ibid.) The state constitutional analysis requires a three-pronged approach, under which a court (1) evaluates " 'the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society,' " (2) "compare[s] the challenged punishment with punishments prescribed for more serious crimes in [its] jurisdiction," and (3) "compare[s] the challenged punishment to punishments for the same offense in other jurisdictions." (People v. Johnson (2010) 183 Cal.App.4th 253, 296-297.) "The weight afforded to each prong may vary by case," and " '[d]isproportionality need not be established in all three areas.' " (Baker, at p. 723.)
Under the first prong, Morales-Cuevas argues that he "had a limited criminal history," that he did not threaten or use violence or force during the offenses, that stepdaughter was not physically harmed, and that "these incidents of aberrant behavior were seemingly brief and were motivated by the singular objective of apparent sexual gratification." In Baker, the Fourth District Court of Appeal rejected similar arguments in concluding that the defendant's sentence of 15 years to life for a less serious offense— oral copulation with a child 10 years of age or younger under section 288.7, subdivision (b)—did not constitute cruel or unusual punishment. (Baker, supra, 20 Cal.App.5th at pp. 724-727.) Morales-Cuevas's limited criminal history, like that of the Baker defendant, may weigh in his favor. (See id. at p. 725.) But it does not outweigh the numerous other aggravating factors in this case.
In rejecting the claim of cruel or unusual punishment in Baker, the Fourth District emphasized that the defendant's molestation of his niece occurred on multiple occasions, was perpetrated against a victim who "was particularly vulnerable given her age," and involved his "abus[ing] a position of trust." (Baker, supra, 20 Cal.App.5th at p. 725.) Similarly, Morales-Cuevas took advantage of his parental status to sexually abuse stepdaughter numerous times when she was young. Baker also gave little weight to the fact that an exam of the victim shortly after the offense did not reveal physical injuries, because the defendant " 'did not have to hurt her in order to do permanent psychological damage.' " (Ibid.) It goes without saying that Morales-Cuevas's crimes likely caused psychological harm to stepdaughter, and it is difficult to accept that sexual intercourse with such a young child did not involve some degree of physical harm. Finally, we fail to see how his intent to sexually gratify himself distinguishes his offenses from any other violations of section 288.7(a) that the Legislature has seen fit to punish with a sentence of 25 years to life. (See Baker, at p. 725.) In sum, under the circumstances, Morales-Cuevas's sentence is not grossly disproportionate to the seriousness of his offenses.
Under the second prong, Morales-Cuevas argues that "the mandatory imposition of an indeterminate life sentence" for a crime that did not involve "violence, threat of violence[,] or physical injury" is unconstitutional "when compared with more violent offenses such as robbery, forcible rape[,] and forcible sodomy" which are punished with determinate sentences. But " '[p]unishment is not cruel or unusual merely because the Legislature may have chosen to permit a lesser punishment for another crime. Leniency as to one charge does not transform a reasonable punishment into one that is cruel or unusual.' " (Baker, supra, 20 Cal.App.5th at p. 727.) In particular, " 'great deference is ordinarily paid to legislation designed to protect children, who all too frequently are helpless victims of sexual offenses.' " (Id. at p. 729.) None of the other crimes that Morales-Cuevas identifies involve sexual conduct against children, and they are therefore of limited relevance to our analysis. (See id. at p. 727.) We recognize that certain other serious sexual crimes against children are not subject to indeterminate sentencing. (See id. at pp. 727-728.) But Morales-Cuevas does not explain why the sentence for violations of section 288.7(a), which involve the youngest victims, is out of line with the sentence for other similar crimes. He therefore fails to convince us that "this is that 'rarest of cases' in which 'the length of a sentence mandated by the Legislature is unconstitutionally excessive.' " (Baker, at p. 730.)
Finally, under the third prong, Morales-Cuevas claims that "[a]n examination of the laws from a 10-jurisdiction sampling of the fifty states reveals that the sentence imposed . . . is more severe than would be imposed in the majority of the 10 other jurisdictions." Assuming, without deciding, that these 10 states' sentencing schemes are representative and Morales-Cuevas has described them correctly, they do not establish disproportionality. Although he has identified six jurisdictions in which a sentencing court can impose a determinate term for similar crimes, two of those six permit a life sentence at the court's discretion, and the other four jurisdictions require a life sentence. " '[T]here can be no serious contention . . . that a sentence which is not otherwise cruel and unusual becomes so simply because it is "mandatory." ' " (Baker, supra, 20 Cal.App.5th at p. 731.) Because the majority of jurisdictions Morales-Cuevas highlights allow life sentences for similar offenses, he has not shown that California is an outlier. As a result, he has failed to demonstrate that his sentence violates the state Constitution.
2. Federal Constitution.
Having concluded that the sentence does not violate the state Constitution, we may quickly dispense with Morales-Cuevas's Eighth Amendment claim. "There is considerable overlap in the state and federal approaches," and under the Eighth Amendment we also consider the nature of the offense and offender, the sentences for other crimes in the same jurisdiction, and the sentences imposed for the same crime in other jurisdictions. (Baker, supra, 20 Cal.App.5th at p. 733.) Under the federal approach, however, we need not proceed to the other two prongs of the analysis if the "threshold comparison" of " 'the gravity of the offense and the severity of the sentence' " does not create "an ' "inference of gross disproportionality." ' " (Ibid., quoting Graham v. Florida (2010) 560 U.S. 48, 60.) As discussed above, the section 288.7(a) convictions here involved several aggravating factors, including stepdaughter's young age, the number of offenses, and Morales-Cuevas's abuse of a position of trust. For the same reasons, there was no gross disproportionality between the crimes and the sentence under the Eighth Amendment either.
F. The $10,000 Restitution Fine Did Not Violate Apprendi.
Morales-Cuevas next contends that the trial court's imposition of a $10,000 restitution fine under section 1202.4, subdivision (b) (section 1202.4(b)), the statutory maximum, violated his federal constitutional right to a jury trial under Apprendi. The contention fails.
Section 1202.4(b) provides that "[i]n every case where a person is convicted of a crime, the [trial] court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record." A restitution fine imposed under section 1202.4(b) is "a criminal penalty," not "a civil remedy." (People v. Hanson (2000) 23 Cal.4th 355, 362.)
Under the version of section 1202.4 in effect at the time Morales-Cuevas committed the crimes at issue, the minimum fine was $200 and the maximum fine was $10,000 for a felony conviction. (Former § 1202.4(b)(1).) The fine is "set at the discretion of the court and commensurate with the seriousness of the offense." (§ 1202.4(b)(1).) In setting the amount of the fine above the statutory minimum, the court "shall consider any relevant factors, including, but not limited to, the defendant's inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime." (§ 1202.4, subd. (d).)
In Apprendi, which applies to criminal fines (Southern Union Co. v. United States (2012) 567 U.S. 343, 346), the Supreme Court held that under the Sixth and Fourteenth Amendments, any fact "[o]ther than the fact of a prior conviction . . . that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, supra, 530 U.S. at pp. 476-477, 490.) "[T]he 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant," not "the maximum sentence a judge may impose after finding additional facts." (Blakely v. Washington (2004) 542 U.S. 296, 303-304, italics omitted.)
In People v. Kramis (2012) 209 Cal.App.4th 346 (Kramis), the Second District Court of Appeal held that Apprendi did not apply to the imposition of a $10,000 restitution fine under section 1202.4(b) because "the trial court exercise[d] its discretion within a statutory range." (Kramis, at p. 351.) As Kramis explained, " 'Apprendi distinguishes a "sentencing factor"—a "circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jury's finding that the defendant is guilty of a particular offense"—from a "sentence enhancement"—"the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict" constituting "an increase beyond the maximum authorized statutory sentence." ' " (Ibid.) Thus, because "the fact of conviction" itself authorizes a fine under section 1202.4(b), and that statute permits a fine up to $10,000, a sentencing court can impose the statutory maximum without running afoul of Apprendi. (Kramis, at pp. 351-352.) Citing Kramis with approval, our state Supreme Court recently confirmed that the imposition of a restitution fine in excess of section 1204.2(b)'s minimum does not violate Apprendi or subsequent federal decisions interpreting it. (People v. Henriquez (2017) 4 Cal.5th 1, 47-48 (Henriquez).)
Morales-Cuevas recognizes that we are bound by Henriquez. Nevertheless, he claims that Kramis was incorrectly decided because "the statutory maximum under [former] section 1202.4 is $200," not $10,000, based on his view that section 1202.4 "requires the [sentencing] court to determine an ability to pay [before] increasing the amount of the restitution fine in excess of the minimum fine." We would reject his claim even if Henriquez did not otherwise compel us to do so. (See Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) Although a defendant's inability to pay is a relevant factor in determining whether to set the fine above the statutory minimum, the defendant has the burden of demonstrating an inability to pay the fine. (§ 1202.4, subd. (d).) Thus, Morales-Cuevas's construction of the statute is incorrect.
G. Morales-Cuevas Is Entitled to an Additional Day of Presentence Credits.
Finally, Morales-Cuevas claims that the abstract of judgment must be modified to reflect that he is entitled to an additional day of presentence credits. He accurately points out that the trial court awarded him 591 days of custody credits and 88 days of conduct credits but calculated the total of the two to be 678 instead of 679. The Attorney General concedes the point, and we therefore modify the abstract of judgment to reflect the correct number of days of credits.
III.
DISPOSITION
The abstract of judgment is modified to reflect 591 days of presentence custody credits and 88 days of presentence conduct credits, for a total of 679 days of credits. The trial court is directed to transmit a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Dondero, J.