Opinion
F083566
07-12-2023
THE PEOPLE, Plaintiff and Respondent, v. JORGE ELOY MOTA, Defendant and Appellant.
Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County, No. MCR069134 Ernest J. LiCalsi, Judge.
Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Defendant Jorge Eloy Mota contends on appeal that (1) the judgment must be reversed and remanded because the evidence presented at trial was insufficient to support his convictions on counts 8 through 11, and (2) the sentence must be vacated and remanded for resentencing because the trial court was unaware of its discretion to impose concurrent or consecutive sentences on counts 6 through 11. We vacate the sentence and remand for resentencing. In all other respects, we affirm.
PROCEDURAL SUMMARY
On July 2, 2021, the Madera County District Attorney filed an information charging defendant with forcible oral copulation of B. Doe (Pen. Code, § 287, subd. (c)(2)(A); count 1); sodomy by use of force of B. Doe (§ 286, subd. (c)(2)(A); count 2); forcible oral copulation of B. Doe (§ 287, subd. (c)(2)(A); count 3); forcible rape of A. Doe (§ 261, subd. (a)(2); count 4); forcible rape of A. Doe (§ 261, subd. (a)(2); count 5); and six counts of lewd acts upon D. Doe., a child under the age of 14 years (§ 288, subd. (a); counts 6-11). It was further alleged that defendant committed the sexual offenses against multiple victims, and upon a victim who is a child under 14 years of age, for the purposes of section 667.61, subdivisions (b) and (j)(2).
All statutory references are to the Penal Code.
On October 13, 2021, the jury found defendant guilty on counts 4 through 11 and hung on counts 1 through 3. The jury found true the allegations of multiple victims and a victim being a child under 14 years of age. The court declared a mistrial on counts 1 through 3.
On November 17, 2021, defendant was sentenced to the aggregate indeterminate term of 180 years to life, as follows: on count 4, 15 years to life; on count 5, 15 years to life, consecutive, pursuant to section 667.61, subdivision (b) (multiple victims); on each of counts 6 through 11, 25 years to life, consecutive, pursuant to section 667.61, subdivision (j)(2).
On November 18, 2021, defendant filed a notice of appeal.
We have only summarized the facts relevant to counts 4 through 11, as counts 1 through 3 are irrelevant to defendant's appeal.
Defendant lived in a house with his wife, Guadalupe, his son, Carlos, Carlos's wife, Noemi, Carlos and Noemi's two sons, Eduardo and Carlos, Jr., and Noemi's daughter from a previous relationship, D. Doe. Defendant's other son, Mario, his wife, A. Doe, and their two young children also lived with the family some of the time. D. Doe shared a room with her brothers; her mother, Noemi, and her stepdad, Carlos, shared another bedroom; Mario, A. Doe and their children shared a bedroom; and defendant and Guadalupe shared the last bedroom. The family members first lived together in a house in Madera, before moving together to a house in Chowchilla. Defendant was employed at a chicken ranch nearby the Chowchilla house.
Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their first names. No disrespect is intended.
Counts 4 and 5
Defendant was A. Doe's father-in-law.
In 2016, A. Doe was residing at defendant's Madera house with her husband and defendant's son, Mario, and their oldest child. Defendant entered her bedroom when no one else was home and forced her to have sex with him while her daughter, an infant at the time, was asleep in her playpen in the same room.
In 2017, A. Doe, Mario, their daughter, and newborn son were living in defendant's Chowchilla house. Defendant entered A. Doe's bedroom after she got out of the shower while both her toddler daughter and infant son were asleep in the same room and forced A. Doe to have sex with him.
Counts 6 through 11
D. Doe was born on May 30, 2009. Defendant was D. Doe's stepgrandfather. When D. Doe was between eight and 10 years old, she, her brothers, her mother, and Carlos moved to a nearby trailer. Defendant continued to live in the Chowchilla house.
Later during the same year that D. Doe moved out of defendant's Chowchilla house to the trailer, Noemi and Carlos divorced. D. Doe moved with her mother and brothers to Madera. Carlos moved back into defendant's Chowchilla house. Carlos continued to see D. Doe and her brothers regularly. He would take them most weekends, from Friday night to Sunday, to stay with him at defendant's Chowchilla house. These overnight visits continued until September 2020.
Defendant's Lewd Acts Against D. Doe
When D. Doe lived in defendant's Chowchilla house, defendant would call her into his bedroom at night, as the rest of the family slept. When she arrived in defendant's room, he would start touching her with his hand on her "three private parts": on her chest and "the private parts she used for peeing and pooping," both under and over her clothes. D. Doe usually wore a T-shirt, shorts, underwear, and a training bra to bed.This occurred approximately five nights a week.
D. Doe testified that she did not know where defendant's wife, Guadalupe, was when defendant would call her to his bedroom.
Noemi, D. Doe's mother, testified that D. Doe began wearing a kid's sports bra or training bra at approximately four and a half years old.
While D. Doe lived at defendant's Chowchilla house, her school bus would occasionally drop her off at the chicken ranch where defendant worked, so that defendant could drive her home from there. On several occasions, after D. Doe was dropped off at the chicken ranch, defendant touched her chest, bottom, and the area of her vagina, over her clothing in his office.
When D. Doe was 11 years old and no longer lived at the Chowchilla house with defendant, she told a neighbor child about defendant's conduct. Two months later, in September 2020, she also told her mother about defendant's conduct, because the neighbor child was "using it against [her]." D. Doe also told her mother about an incident when she was 11 years old and spending the night at defendant's Chowchilla house. She was laying on the couch with her eyes closed. When she opened her eyes, defendant was standing above her staring at her. He did not touch her on that occasion.
DISCUSSION
I. Sufficiency of Evidence
Defendant contends the evidence presented at trial was insufficient to support the convictions on counts 8 through 11 for lewd acts against D. Doe when she was 10 and 11 years old. The People disagree, as do we.
A. Background Counts 8 through 11
Defendant was charged with six counts of lewd acts against D. Doe in violation of section 288, subdivision (a): counts 6 and 7 were alleged to have occurred between May 30, 2018, and May 29, 2019, when D. Doe was nine years old; counts 8 and 9 were alleged to have occurred between May 30, 2019, and May 29, 2020, when D. Doe was 10 years old; and counts 10 and 11 were alleged to have occurred between May 30, 2020, and September 30, 2020, when D. Doe was 11 years old.
D. Doe's Forensic Interview
D. Doe participated in a forensic interview before trial. The interview was entered into evidence. During the interview, D. Doe gave three different ages for the last time defendant's conduct occurred, stating at different points during the interview that it ceased when she was 9, 10, and 11 years old. She also stated during the interview that she was 10 years old when she moved out of the Chowchilla house, and 10 years old when she began wearing an adult bra. She and the forensic interviewer had the following exchange:
"[Interviewer]: How, um, you said that [defendant] would abuse you. You-you said by, um, touching and then [defendant] would take your clothes off. Did I say that right?
Later in the interview, D. Doe explained that defendant would touch her "private parts" and the "private part where you go pee."
"[D. Doe]: Yes. [¶] ... [¶]
"[Interviewer]: How old were you the last time it happened?
"[D. Doe]: I think I was 9 years old. [¶] . [¶] I think I was in third grade? [¶] . [¶]
"[Interviewer]: Okay. And you said you were nine years old the last time something happened and you were in third grade. Did I say that right?
"[D. Doe]: [Uh], it was 11. I was the age 11.
"[Interviewer]: Okay. You were age 11 the last time something happened?
"[D. Doe]: Yes. [¶] . [¶]
"[Interviewer]: Kay. Tell me about a time that you remember the most.
"[D. Doe]: When [defendant] was staring at me when-and I was sleeping. [¶] He was staring at me and then I think my mom was gonna do a report but [defendant] said he was-he was just passing by and checking that if I was awake or not.
"[Interviewer]: Okay. So there was a time where [defendant] was just staring at you?
"[D. Doe]: Yes. [¶] . [¶]
"[Interviewer]: Tell, um, was there any touching that time [defendant] was staring at you?
"[D. Doe]: No. [¶] . [¶]
"[Interviewer]: [U]m, tell me what you were wearing [when defendant touched you]. [¶] ... [¶]
"[D. Doe]: I wasn't using bras yet. [¶] ... [¶]
"[Interviewer]: When did you start using bras? [¶] . [¶]
"[D. Doe]: At the age of 10. [¶] . [¶]
"[Interviewer]: Mm-kay. And the touching of this [vagina] were-where would it happen at.
"[D. Doe]: [Defendant's] room.
"[Interviewer]: [Defendant's] room? All the time did it happen in his room?
"[D. Doe]: Yes
"[Interviewer]: Did it ever happen in any other parts of the house?
"[D. Doe]: No.
"[Interviewer]: Mm. Um, and you said that, um, the time we talked about that it happened you didn't-you weren't wearing a bra yet. You didn't start wearing a bra until you were 10.
"[D. Doe]: Yeah. I think. No. It's good.
"[Interviewer]: Ten. Mm-kay. [¶] . [¶]
"[Interviewer]: Mm-kay. Was there ever a time that [defendant] touched this [private] part when you-when you- when you started wearing a bra?
"[D. Doe]: Yes. I was wearing a bra.
"[Interviewer]: Okay.
"[D. Doe]: Because I remember that-I remember that-I remember that I was in bra. [¶] . [¶]
"[Interviewer]: Tell me about the last time [defendant] touched you on this [private] part. The very-very last time. Tell me everything that happened.
"[D. Doe]: I think I was 10 years old and then I don't know. But I think [defendant] just stopped. But I think we just moved from the Madera house and he-and because we moved and I think he stopped doing it.
"[Interviewer]: So was it last time it was when you were 10?
"[D. Doe]: Yes. [¶] ... [¶]
"[Interviewer]: You said [defendant] started touching you there when you were nine and the last time was when you were 11? [¶] ... [¶] .
"[D. Doe]: And I think it stopped at- [¶] . … [¶]
"[Interviewer]: And you lived there in the same house [when defendant touched your private parts]?
"[D. Doe]: Yes. [¶] .… [¶]
"[Interviewer]: So [defendant touching your private parts] happened almost every day or every day?
"[D. Doe]: Almost every day. [¶] .… [¶]
"[Interviewer]: And you said you think the touching just stopped altogether because you guys moved from there?
"[D. Doe]: Yeah. [¶] .… [¶]
"[D. Doe]: We just moved-that was when-there was a day when I saw him staring at me. [¶] . … [¶]
"[D. Doe]: He just really stared at me at that time.
"[Interviewer]: Okay. So when your mom found out did you guys still live-you guys still lived there for a while?
"[D. Doe]: Yeah. [¶] . … [¶]
"[Interviewer]: And then, um, when did she call the police?
"[D. Doe]: Um, I think it was last time when I called. I told them what was happening.
"[Interviewer]: Okay. Let me understand. I'm-help me understand. So first you told her that he was looking at you?
"[D. Doe]: Hm. [¶] . … [¶]
"[D. Doe]: I told her . [¶] . … [¶]
"[D. Doe]: . that he was looking. [¶] .… [¶]
"[Interviewer]: Had you told her that he had touched you or d-or you just told her that he was looking at you?
"[D. Doe]: He just really stared at me at that time.
"[Interviewer]: Okay. So that's what you told her? And then later on you tell her what had happened. [B]ut kind of what you told me. But you didn't tell her everything.
"[D. Doe]: Yeah."
D. Doe's Trial Testimony
D. Doe also testified at trial. She stated she was nine years old when she lived in the Chowchilla house with defendant, nine when he last touched her, and 11 when she began wearing an adult bra. D. Doe testified that defendant touched her more than once on "[a]ll three" female "private parts," both under and over her clothing.
She stated defendant touched her "[w]hen we were living in that [Chowchilla] house."
The prosecution then asked, "And the times that you described the defendant touched you, was that only when you were living in the defendant's house, or did it happen times when you lived in a different home?" D. Doe responded, "It was only when we lived with him." She testified that the touching occurred in defendant's bedroom, and never in any other rooms in the house, only at night.
When asked, "Now, what do you remember?" D. Doe answered, "I remember when it stopped."
D. Doe testified that she normally wore a T-shirt and shorts to bed, with underwear under the shorts and a "bra" under the [T-]shirt.
The prosecution then asked D. Doe, "Now, do you remember how old you were when you transitioned or changed from the kid's bra to a regular type bra?" D. Doe answered, "I think I was eleven years old." She testified that she switched to an adult bra one year prior to trial.
One year prior to trial, D. Doe was 11 years old.
The prosecution then asked, "And when the defendant began to touch you, were you wearing the training bra, or had you already switched to a regular type of bra?" She answered, "A training bra."
She was then asked, "Now, did he ever touch you in that same type of way after you had switched from a training bra to a regular bra?" D. Doe responded, "No."
She testified that defendant stopped touching her when she was nine years old and in third grade. When the prosecution asked, "So did it only happen when you were nine years old, or did it happen when you were at an older age" D. Doe answered, "When, like, nine years and still nine years old." When asked again when the last time was that defendant "touched" her "private parts," D. Doe answered, "I think nine years old."
When asked why he stopped when she was nine years old, D. Doe answered, "Because we moved to another house."
D. Doe also testified that she told a neighbor child later, when she was 11 years old, what defendant had done. Two months after telling the neighbor, she told her mother about defendant's conduct.
On redirect, D. Doe was asked, "Did you ever tell your mother about a time when [defendant] was staring at you and didn't touch you?" D. Doe answered, "Yes." She stated the incident occurred one year prior to trial, when she was 11 years old, at defendant's Chowchilla house when she was there on an overnight visit. She said she was laying on the couch at defendant's Chowchilla house with her eyes closed, opened them and saw defendant standing and staring at her. She stated, "I just-I was closing my eyes, laying on the couch and when I opened my eyes, he was right there staring at me."
She was then asked, "You were still going over to defendant's house when you were eleven years old?" She responded, "Yes."
Noemi's Trial Testimony
At trial, D. Doe's mother, Noemi, testified that she and D. Doe moved in with defendant in 2014, when D. Doe was approximately five or six years old, and moved out of the Chowchilla house in 2018, when D. Doe was eight or nine years old. She stated that she and Carlos separated in 2019, when D. Doe was approximately 10 years old. At that time, Carlos began taking D. Doe to defendant's Chowchilla house for overnight visits every weekend while he lived there with defendant. These visits continued until September 2020 when D. Doe was 11 years old, because D. Doe told her about defendant touching her.
Noemi also testified that D. Doe began wearing an adult bra at approximately nine to nine and a half years old.
B. Law
" 'To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Bolden (2002) 29 Cal.4th 515, 553.) We must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) "It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact." (People v. Tripp (2007) 151 Cal.App.4th 951, 955; accord, People v. Young (2005) 34 Cal.4th 1149, 1181.) We look for substantial evidence, and we may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
The reviewing court "does not, ... limit its review to the evidence favorable to the respondent." (People v. Johnson (1980) 26 Cal.3d 557, 576.) Instead, it "must resolve the issue in light of the whole record-i.e., the entire picture of the defendant put before the jury-and may not limit [its] appraisal to isolated bits of evidence selected by the respondent." (Ibid.)
Although we review the whole record, "[t]he uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284, 296; see People v. Panah (2005) 35 Cal.4th 395, 489.) Furthermore," '" '[c]ircumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.'" [Citations.]'" (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jury's findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (Ibid.; Panah, at p. 488.) However, mere speculation cannot support a conviction. (People v. Marshall (1997) 15 Cal.4th 1, 35; People v. Reyes (1974) 12 Cal.3d 486, 500.) "Substantial evidence must be more than evidence which merely raises a strong suspicion of guilt as mere suspicion will not support an inference of fact." (People v. Martin (1973) 9 Cal.3d 687, 695.)
"[W]ith respect to conflicts in the testimony or conflicting inferences which might be drawn from the evidence, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact." (Helms v. Thomas (1953) 120 Cal.App.2d 265, 268-269.)
Section 288 defines the offense of lewd acts upon a child under 14 years of age as:
"a person who willfully and lewdly commits any lewd or lascivious act ... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony . . .." (§ 288, subd. (a).)
In child molestation cases, as long as the victim specifies the type of conduct involved, its frequency, and that the conduct occurred during the limitation period, nothing more is required to establish the substantiality of the victim's testimony. (People v. Jones (1990) 51 Cal.3d 294, 316.) "By their very nature, sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations." (People v. Falsetta (1999) 21 Cal.4th 903, 915.)
C. Analysis
Here, there is substantial evidence to support defendant's convictions on counts 8 through 11.
Defendant first contends the evidence shows defendant's lewd acts against D. Doe only occurred when she was nine years old, based on D. Doe's testimony that defendant's conduct stopped when she moved out of defendant's Chowchilla house at nine years old and her mother's testimony that D. Doe moved out when she was eight or nine years old.
The fact that D. Doe testified in a contradictory manner about the age at which the defendant's conduct ceased does not mean her testimony was insufficient to support a finding on that point. As the jury convicted defendant of committing lewd acts against D. Doe when she was both 10 (counts 8 &9) and 11 years old (counts 10 &11), the jury clearly inferred from her statements that she was 11 the "last time something happened" that he committed lewd acts against her at age 11, and found those statements credible. The interviewer first asked D. Doe to confirm how defendant touched her private parts, then asked D. Doe how old she was the "last time it happened," and then, when confirming what D. Doe said, the interviewer altered her phrase to ask her how old she was the "last time something happened." (Emphasis added.) A reasonable jury could infer that, when read in context, the forensic interviewer's phrase "last time something happened," refers to defendant touching D. Doe's private parts. "[T]he rule is that the trier of fact is the sole judge of the weight of the evidence and credibility of witnesses." (Donlon v. Donlon (1956) 140 Cal.App.2d 428, 430; see In re S.G. (2021) 71 Cal.App.5th 654, 672.) Accordingly, despite D. Doe's conflicting statements, the jury, as the trier of fact, was entitled to believe her statements that she was 11 years old the "last time something happened" and that the "last time something happened" referred to defendant touching her private parts. (People v. Young (2005) 34 Cal.4th 1149, 1181; see People v. Crabtree (2009) 169 Cal.App.4th 1293, 1323-1324 [jury was entitled to resolve conflict as to when a lewd act occurred where evidence suggested the act may have occurred when the victim was 16, not 15 years old]; People v. Mejia (2007) 155 Cal.App.4th 86, 98-99 [jury was entitled to resolve conflict as to whether two lewd acts occurred in one month when there was evidence suggesting only one lewd act occurred in that month].)
As the testimony of a "single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable," D. Doe's statements that defendant's conduct continued until she was 11 years old are sufficient to support the convictions on counts 8 through 11. (See People v. Scott, supra, 21 Cal.3d at p. 296.)"' "To warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]" '" (People v. Barnes (1986) 42 Cal.3d 284, 306, quoting People v. Thornton (1974) 11 Cal.3d 738, 754; accord, DiQuisto v. County of Santa Clara (2010) 181 Cal.App.4th 236, 261.) Except in rare instances of demonstrable falsity, doubts about the credibility of the in-court witness should be left for the factfinder's resolution. (People v. Cudjo (1993) 6 Cal.4th 585, 609.)
Here, it was not physically impossible for defendant to continue committing lewd acts against D. Doe when she was 10 and 11 years old. She lived at defendant's Chowchilla house until she was either nine or 10 years old, and regardless of whether the jury believed she was nine or 10 when she moved out, the evidence shows she continued to have regular overnight visits to defendant's house most weekends from whenever she moved out until September 2020, when she was 11 years old. Further, the jury as the trier of fact was entitled to disbelieve her testimony that he only touched her in his bedroom when she lived at the Chowchilla house.
Nor was it inherently improbable that defendant continued his conduct until D. Doe was age 11. Testimony may be rejected as inherently improbable or incredible only when the testimony is unbelievable per se, physically impossible, or wholly unacceptable to reasonable minds. (Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065.) "The determination of inherent improbability must be made without resort to inference or deduction, and thus cannot be established by comparing the challenged testimony to other evidence in the case." (People v. Ennis (2010) 190 Cal.App.4th 721,725.) Here, D. Doe twice answered in the forensic interview that she was 11 years old the "last time something happened," when discussing defendant's conduct. The record also shows defendant committed lewd acts against D. Doe when she was nine years old approximately five times a week at night in his Chowchilla house while others slept and on several occasions at his office at the chicken ranch, that she continued to have regular overnight visits to defendant's house approximately two nights per week after moving out, and on one occasion when she was 11, and she caught him staring at her while he thought she was asleep on the couch at his house on an overnight visit. Looking at the entire record, it is not unacceptable to reasonable minds to believe that defendant continued his conduct against D. Doe until she was 11 years old based on the record before the jury.
Accordingly, although D. Doe no longer lived at defendant's house when she was 11 years old, it is not impossible or inherently improbable that defendant continued to commit lewd acts against D. Doe until she was 11.
Defendant asserts that this evidence supports only speculation that defendant's conduct continued when D. Doe was 10 and 11 years old. However, as discussed above, the jury was entitled to believe D. Doe's statements that defendant's conduct last occurred when she was 11 years old, and her testimony is sufficient to support the convictions, as it was not physically impossible or inherently improbable. While she did not describe specific incidents of defendant's lewd acts, she described what he would regularly do when he would touch her, stating that he would touch her "private parts" sometimes over and sometimes under her clothing and when describing his conduct, stated that the "last time something happened," she was 11 years old. (See People v. Moore (1989) 211 Cal.App.3d 1400, 1412 [The victim specified the type of conduct involved (rape) and its frequency ("almost every night" for three months), and confirmed that such conduct occurred during the limitation period. Nothing more is required to establish the substantiality of the victim's testimony in child molestation cases.]; see also People v. Jones, supra, 51 Cal.3d at p. 316; People v. Falsetta, supra, 21 Cal.4th at p. 915.)
Defendant next contends that D. Doe's statement that she did not switch to an adult bra until she was 11 years old does not support the conclusion that defendant continued to commit lewd acts until D. Doe was age 11. D. Doe testified defendant began to touch her when she was wearing a "training bra." She stated at trial that she switched to an adult bra at 11 years old, conflicting with her statement in the forensic interview that she was 10 years old when she began wearing an adult bra and her mother's testimony that she was nine or nine and a half when she switched to an adult bra. It also conflicts with her statement in the forensic interview that defendant did commit lewd acts while she was wearing a bra. The jury as the trier of fact was entitled to find credible D. Doe's trial testimony that she was 11 years old when she started wearing an adult bra as well as her statement in the forensic interview that defendant's conduct also occurred when she was wearing a "bra," supporting the conclusion that his acts continued until she was 11 years old.
Defendant also contends that it is not reasonable to interpret the "incident" that D. Doe described, wherein she lay on defendant's couch with her eyes closed during an overnight visit at his house and found him staring at her, but not touching her, when she was 11 years old, as evidence that defendant committed lewd acts against D. Doe when she was 11. However, D. Doe never stated that this was the only incident that occurred when she was 11 years old. During the forensic interview, she only described this incident when asked about the "time [she] remember[ed] the most." Accordingly, the jury was entitled to find credible her statements that defendant continued his conduct until she was 11.
During trial, the prosecution inaccurately stated during closing argument that defendant touched D. Doe during this incident, but the trial court instructed the jury that the prosecution's statements were not evidence.
Next, defendant argues that because D. Doe testified that she had not seen defendant for two years, he could not have committed lewd acts against her when she was 11 years old. However, D. Doe's mother testified that D. Doe continued to visit defendant's house for overnight visits until September 2020, only one year before trial. As discussed above, the jury was entitled to credit her mother's testimony on this point, rather than D. Doe's.
Trial took place in October 2021. Two years prior to trial would have been 2019. D. Doe turned 10 years old on May 30, 2019.
Last, defendant contends that because D. Doe testified that defendant did not touch her after she moved out of his Chowchilla house, and her mother testified that D. Doe moved out in 2018, the jury could not reasonably conclude that defendant committed lewd acts against D. Doe in 2019 and 2020. Again, however, the jury was entitled to disbelieve her testimony that defendant only touched her while she lived at his house.
Defendant's claim that D. Doe testified inconsistently about material facts is an attack on the credibility of the witness's testimony. As we have said, such determinations are the exclusive province of the jury. (See People v. Ennis, supra, 190 Cal.App.4th at p. 725 ["Because [the defendant]'s inherent improbability claim is based entirely on comparisons, contradictions and inferences, it amounts to nothing more than an attack on witness credibility, and cannot be the basis for a reversal of the judgment on appeal."]) The trial court instructed the jury to consider the effect of inconsistencies or conflicts in testimony. The jury was also instructed that, if it determined a witness lied, to consider the believability of the entirety of that witness's testimony. The jury heard the direct testimony and cross-examination of each witness and D. Doe's forensic interview was part of the record before the jury. Defense counsel cross-examined D. Doe about her recollection of defendant touching her and the surrounding circumstances, and the discrepancies and inconsistencies in her statements, and defense counsel argued those points extensively in closing argument. Accordingly, we find the contradictions in D. Doe's testimony and forensic interview did not render her statements impossible to believe or obviously false, but merely presented the jury with a credibility determination that is not reviewable on appeal. (See People v. Barnes, supra, 42 Cal.3d at p. 306; People v. Cantrell (1992) 7 Cal.App.4th 523, 538.) "The final determination as to the weight of the evidence [was] for the jury to make. We do not reweigh it and substitute our view for theirs." (People v. Brown (2014) 59 Cal.4th 86, 106.) That defendant believes the victim's credibility was undermined by inconsistent statements does not undermine her testimony as substantial evidence sufficient to support the judgment. On this record, we cannot conclude that" 'upon no hypothesis whatever is there sufficient substantial evidence to support'" the jury's verdict on counts 8 through 11. (People v. Bolin, supra, 18 Cal.4th at p. 331.)
II. Mandatory Consecutive Sentences on Counts 6 through 11
Defendant contends his sentence must be vacated and remanded for resentencing because the court was unaware it had discretion to impose consecutive or concurrent terms for counts 6 through 11. The People agree, as do we.
A. Background
Defendant was charged on counts 6 and 7 with violations of section 288, subdivision (a), between May 30, 2018, and May 29, 2019.
Counts 8 and 9 each charged defendant with a violation of section 288, subdivision (a), lewd and lascivious act on a child under 14, between May 30, 2019, and May 29, 2020.
Counts 10 and 11 also each charged defendant with a violation of section 288, subdivision (a), between May 30, 2020, and September 30, 2020.
Defendant was found guilty on each count, and special allegations pursuant to section 667.61, subdivisions (b) [multiple victims] and (j)(2) [child under 14] were found true. Because the jury found true the allegations, the statutorily mandated punishment for counts 6 through 11 was "imprisonment in the state prison for 25 years to life." (§667.61, subd. (j)(2).)
The probation officer's sentence recommendation indicated that each 25-year-to-life term for counts 6 through 11 must be "full and consecutive to all other counts per [section] 667.6[, subdivision] (d)."
At sentencing, the court imposed 180 years to life, including six full and consecutive terms of 25 years to life for counts 6 through 11, "pursuant to section 667.6, subdivision (d)."
B. Law
Section 667.6, subdivision (d) mandates a "full, separate, and consecutive term ... for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions."
Section 667.6, subdivision (e) does not specify section 288, subdivision (a). Section 667.6, subdivision (e), states, in pertinent part:
"(1) Rape, in violation of paragraph (2), (3), (6), or (7) of subdivision (a) of [s]ection 261. [¶] (2) Rape, in violation of paragraph (1), (4), or (5) of subdivision (a) of former [s]ection 262. [¶] (3) Rape or sexual penetration, in concert, in violation of [s]ection 264.1. [¶] (4) Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d) or (k), of [s]ection 286. [¶] (5) Lewd or lascivious act, in violation of subdivision (b) of [s]ection 288.5. [¶] (6) Continuous sexual abuse of a child, in violation of [s]ection 288.5. [¶] (7) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d) or (k), of [s]ection 287 or of former [s]ection 288a. [¶] (8) Sexual penetration, in violation of subdivision (a) or (g) of [s]ection 289. (9) As a present offense under subdivision (c) or (d), assault with intent to commit a specified sexual offense, in violation of [s]ection 220. [¶] (10) As a prior conviction under subdivision (a) or (b), an offense committed in another jurisdiction that includes all of the elements of an offense specified in this subdivision." (§ 667.6, subd. (e).)
"[I]f the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of [s]ection 667.6," section 667.61, subdivision (i), mandates consecutive sentencing for each offense "specified in paragraphs (1) to (7) . . . of subdivision (c), or in paragraphs (1) to (6) . . . of subdivision (n)." Neither section 667.61, subdivision (c), paragraphs (1) to (7), nor subdivision (n), paragraphs (1) to (6), specify section 288, subdivision (a).
Section 667.61, subdivision (c), paragraphs (1) to (7) state in pertinent part:
"(1) Rape, in violation of paragraph (2) or (6) of subdivision (a) of [s]ection 261. [¶] (2) Rape, in violation of paragraph (1) or (4) of subdivision (a) of former [s]ection 262. [¶] (3) Rape or sexual penetration, in concert, in violation of [s]ection 264.1. [¶] (4) Lewd or lascivious act, in violation of subdivision (b) of [s]ection 288. [¶] (5) Sexual penetration, in violation of subdivision (a) of [s]ection 289. [¶] (6) Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of [s]ection 286. [¶] (7) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 287 or former [s]ection 288a." (§ 667.61, subd. (c).)
Section 667.61, subdivision (n), paragraphs (1) to (6) state in pertinent part:
"(1) Rape, in violation of paragraph (2) of subdivision (a) of [s]ection 261. [¶] (2) Rape, in violation of paragraph (1) of subdivision (a) of former [s]ection 262. [¶] (3) Rape or sexual penetration, in concert, in violation of [s]ection 264.1. [¶] (4) Sexual penetration, in violation of paragraph (1) of subdivision (a) of [s]ection 289. [¶] (5) Sodomy, in violation of paragraph (2) of subdivision (c) of [s]ection 286, or in violation of subdivision (d) of [s]ection 286. [¶] (6) Oral copulation, in violation of paragraph (2) of subdivision (c) of [s]ection 287 or former [s]ection 288a, or in violation of subdivision (d) of [s]ection 287 or former [s]ection 288a." (§ 667.61, subd. (n).)
C. Analysis
Neither section 667.6, nor 667.61, mandates full and consecutive sentences for violations of section 288, subdivision (a). Section 288, subdivision (a) is not listed in section 667.6, subdivision (e), nor is it specified in section 667.61, subdivision (c), paragraphs (1) to (7), or subdivision (n), paragraphs (1) to (6).
Rather, section 288, subdivision (a), is specified in paragraph (8) of section 667.61, subdivision (c), which does not mandate full and consecutive sentences. (§ 667.61, subd. (c).)
As there is no statute mandating full and consecutive sentences for violations of section 288, subdivision (a), against separate victims or against the same victim on separate occasions, the trial court had discretion to impose concurrent or consecutive terms on counts 6 through 11. (See People v. Zaldana (2019) 43 Cal.App.5th 527, 536.) The reference to section 667.6, subdivision (d), in the probation officer's recommendation and the court's pronouncement of judgment imposing full and consecutive terms for counts 6 through 11 "pursuant to section 667.6, subdivision (d)" indicate that the court was not aware of having such discretion." '[W]hen the record shows that the trial court proceeded with sentencing on the ... assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) Since the record does not conclusively show whether the trial court would have exercised its discretion to impose concurrent or consecutive terms on the section 288, subdivision (a) convictions in counts 6 through 11 if it had known that it had such discretion, defendant is entitled to relief. (See People v. Gamble (2008) 164 Cal.App.4th 891, 901.) Accordingly, we vacate defendant's sentence and remand defendant's case for resentencing.
DISPOSITION
Defendant's sentence is vacated, and the matter is remanded for resentencing. In all other respects, the judgment is affirmed. --------- Notes: [*] Before Pena, Acting P. J., Smith, J. and DeSantos, J.