Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07NF2760, James Edward Rogan, Judge.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
After a bench trial, the court convicted defendant John Alan Mueller of nine counts of committing lewd acts on a child under 14 years of age in violation of Penal Code section 288, subdivision (a) (all further statutory references are to the Penal Code). The court sentenced him to the middle term of six years. Defendant argues he is not subject to the extended statute of limitations described in section 803, subdivision (f); the trial court abused its discretion in denying probation or refusing to sentence him to the low term of three years; he is entitled to additional custody credits; and he should not be subject to residence and global positioning system (“GPS”) monitoring requirements under Jessica’s Law (Proposition 83, The Sexual Predator Punishment and Control Act). We agree he is entitled to additional conduct credits and remand for recalculation but otherwise affirm the judgment.
FACTS
The victim, born in December 1979, testified defendant, her brother-in-law, began molesting her when she was eight years old. She claimed defendant molested her 40 times. On each occasion, he touched her breasts and her vagina, and on all but one time defendant had her orally copulate him. Defendant also licked her vagina during one incident. She also recalled “some memories” of defendant touching her buttocks, but testified it was not “a recurring thing that he did every single time.” The victim claimed defendant “made a game out of molesting [her]” and “would give [her]... jaw breakers... after we would play the game.” Defendant stopped molesting the victim in mid-1990 after she told him that she had learned in school what he was doing was wrong.
Defendant told the victim that if she reported the molestations they both would get in trouble. However, she admitted telling a school friend about the molestation in fifth grade and disclosing it to her parents when she married in December 1999.
In January 2007, the victim contacted the police about the molestation. At the investigator’s request, the victim telephoned defendant in an effort to obtain corroboration of her allegations. During the recorded conversations, defendant acknowledged “encourag[ing the victim] to... fondle” and orally copulate him, touching her on the breasts, vagina, and buttocks, and admitted what he had done was “wrong.”
During subsequent police questioning, defendant admitted encouraging the victim to touch him a few times, directing her to masturbate and orally copulate him, touching her on the buttocks, and asking her to remove her clothes in his presence. He denied licking her vagina, and could not recall touching either her breasts or vagina. Defendant also testified at trial. He denied ever touching the victim’s breasts or touching or licking her vagina. But he admitted having the victim masturbate him as many as eight times, having her orally copulated him on a couple occasions, and touching her buttocks once.
The prosecution filed the initial felony complaint in August 2007.
DISCUSSION
1. Extended Statute of Limitations
a. Introduction
Defendant argues that the extended statute of limitations under section 803, subdivision (f)(1) is not applicable to several counts and they are barred by the statute of limitations set forth in sections 800 and 801. There is a one-year statute of limitation from the date of a report to California law enforcement of crimes committed on a victim under the age of 18 if three conditions are met: (a) the regular statute of limitations has expired, (b) defendant engaged in “substantial sexual conduct” that is not nonmutual masturbation, and (c) there is independent corroborating evidence of the victim’s allegation. (§ 803, subd. (f)(1), (2).) As to counts 1, 4, 5, and 6 defendant claims insufficient evidence of the defined sexual conduct and there was no corroborating evidence as to count 2.
b. “Substantial Sexual Conduct”
Section 1203.066, subdivision (b) defines “substantial sexual conduct” as penetration of the victim’s vagina with the defendant’s penis, oral copulation, or masturbation of either the defendant or the victim. Here, because defendant admitted to instructing the victim to masturbate and orally copulate him, there was “substantial sexual conduct.”
Section 803, subdivision (f)(2)(B) provides an exception for “masturbation that is not mutual.” Defendant argues mutual masturbation only occurs when sexual partners masturbate each other. Since that is not what occurred here, he continues, he falls within the exception. This argument is unpersuasive.
People v. Lamb (1999) 76 Cal.App.4th 664 held that the phrase “masturbation that is not mutual” refers to “masturbation involving one person, i.e. self-masturbation.” (Id. at p. 680.) In reaching this conclusion, the court relied on the ordinary sense of the word “mutual” and the legislative intent behind the exception. “Mutual” is defined as “‘joint’ or ‘shared in common”’ (ibid.), which supports the conclusion that mutual masturbation could mean either one partner stimulating the other or both partners stimulating each other (ibid). Further, the court explained the Legislature intended to extend the statute of limitations to a perpetrator who “masturbated the victim or coerced the victim to masturbate the perpetrator.” (Id. at p. 679, italics omitted.) The only thing the Legislature intended to exclude was a defendant’s self-masturbation in the presence of the victim. (Id. at p. 679; People v. Terry (2005) 127 Cal.App.4th 750, 771.) As long as there is affirmative participation by both partners, mutual masturbation occurs. Whether the act was done reciprocally, at the same time, or on the same occasion is irrelevant.
In Lamb, the defendant masturbated the victim’s penis on 10 separate occasions. Although at no time did the victim reciprocally touch the defendant, the court held the conduct constituted mutual masturbation. (People v. Lamb, supra, 76 Cal.App.4th at pp. 670, 682.) Defendant instructed the victim to move her hand up and down his penis which is evidence of mutual masturbation since both defendant and the victim affirmatively participated in the act. Defendant did not simply self-masturbate in the victim’s presence while she remained passive. Therefore, his acts do not fall under the nonmutual masturbation exception described in section 803, subdivision (f)(2)(B), and the extended statute of limitations applies.
c. Independent Corroborating Evidence
Section 803, subdivision (f)(2)(C) requires independent evidence corroborating a victim’s allegation. Defendant asserts there was no such evidence to corroborate the allegation he directed the victim to orally copulate him while they were in a tent. But independent corroborating evidence does not have to support precisely the incident in the tent. Rather, “[e]vidence of a person’s propensity to do what the victim has alleged corroborates the victim’s allegation.” (People v. Ruiloba (2005)131 Cal.App.4th 674, 683.) In Ruiloba, despite the defendant’s denial of having a sexual relationship with a minor, his pretextual conversation with her where he stated he was not “looming over... [a] child” and that there was a lot of “love” between the two of them was sufficient corroborating evidence. (Id. at pp. 685, 687.)
In this case, defendant’s admission that he put his penis in the victim’s mouth “a couple [of] times” and touched her in a jacuzzi amounted to substantial evidence that he did in fact direct the victim to orally copulate him. Although defendant denied that the act occurred in a tent, his propensity to do so elsewhere is sufficient independent evidence to corroborate the victim’s allegation.
2. Sentencing
Defendant contends the trial court abused its discretion by denying probation and sentencing him to the middle term of six years instead of the three-year low term. Probation is ‘“not a matter of right’” (People v. Tarris (2009) 180 Cal.App.4th 612, 624) and denial falls within the court’s broad discretion (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311). We defer to its decision unless the court has abused its discretion, proof of which falls on defendant. (Ibid.)
In denying probation the court relied on the victim’s vulnerability and the severe emotional harm inflicted on her. The victim, who was age 8 to 10 when the crimes were committed, testified to her memories of the various and repeated molestations by defendant and how it “haunt[ed]” her. She stated his acts had “affected [her] tremendously, ” and she lived in fear for herself and her nieces, trying to protect them and herself. She then had to relive the crimes because, although defendant had admitted his wrongdoing in recorded telephone calls, he did not plead guilty and she had nightmares after testifying. Additionally, the victim had been in the care of defendant, her brother-in-law, and the crimes occurred in her own and her sister’s homes.
These facts fall within the aggravating factors the court may consider in determining whether to grant probation, including the victim’s vulnerability and the fact defendant inflicted emotional harm and took advantage of his position of trust with the victim. (California Rules of Court, rule 4.414(a)(3), (4), (9).)
Defendant counters with factors in mitigation, including that he had no criminal record, the acts occurred more than 20 years ago, there is virtually no risk he will repeat the offense, he admitted the crimes and expressed remorse, his income supported his family, and he would agree to probation terms. (California Rules of Court, rule 4.414(b)(1), (3), (5), (7), (8).) But defendant denied any recollection of some of the occurrences, at the time characterized the molestation as “just like innocent fun, ” and seemed to blame the victim, stating she became “curious” and started fondling him. Weighing all of the facts the denial of probation does not reflect an abuse of discretion.
When a statute provides for a range of three prison terms, selection of the term falls within the court’s discretion. (§ 1170, subd. (b).) In making its decision the court may rely on aggravating factors the same as those used in evaluating the possibility of probation, including the victim’s vulnerability and the position of trust occupied by the defendant. (California Rules of Court, rule 4.421(a)(3), (11).) Here, too, the sentence fell within the proper exercise of discretion.
3. Additional Custody Credits
Defendant contends, and the Attorney General agrees, that because his offenses took place prior to the enactment of section 2933.1, he is entitled to additional pre- and postsentence credits in accordance with the statute operative at the time of his offenses. Where, as here, the statute increasing punishment for the offenses was enacted after the date defendant committed the offenses the prohibition against ex post facto laws (U.S. Const., art. I § 10; Cal. Const., art. I, § 9) mandates the trial court to apply the statute that was in effect at the time defendant committed the crimes.
Under the current section 2933.1 defendant is entitled to only 15 percent work time credit and 15 percent conduct credit. (§ 2933.1, subds. (a) & (b).) However, under the statutes in effect during the years of the offenses, he is entitled to additional credit. Even the trial court expressed a willingness to adjust defendant’s conduct credits within 120 days from the date of the judgment if counsel submitted research on the issue, but no adjustment was made. Therefore, we remand the case for recalculation of credits in accordance with this opinion.
4 Jessica’s Law
In sentencing defendant the court ordered that, under Jessica’s Law, if paroled he would be barred from residing within 2000 feet of a school, park, or where children are regularly present (§ 3003.5, subd. (b)) and would be required to wear a GPS monitor for the period of parole (§ 3000.07, subd. (a)) and for the remainder of his life. (§ 3004, subd. (b)). Defendant contends that because he committed the crimes before passage of Jessica’s Law, the prohibition against both retroactivity and ex post facto laws invalidates these orders.
As to the residency restrictions, defendant acknowledges the California Supreme Court has held section 3003.5 does not violate ex post facto prohibitions nor is it being retroactively applied (In re E.J. (2010) 47 Cal.4th 1258, 1264, 1272, 1280) but raises the issue to preserve it for review in federal court. In re E.J. is binding on us. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Although In re E.J. did not specifically discuss GPS monitoring, its reasoning also defeats defendant’s argument on this claim. Section 3 provides that “[n]o part of [the Penal Code] is retroactive, unless expressly so declared.” Defendant argues there is no retroactive provision in Jessica’s Law. But “the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute’s effective date. [Citations.]” (In re E.J., supra, 47 Cal.4th at pp. 1273-1274.) In E.J. the court explained that conviction as a sex offender triggering a lifetime registration requirement before passage of Jessica’s Law did not alone show residency restrictions were applied retroactively. (Id. at p. 1276.) Here, although defendant’s crimes were committed before the law was passed, the monitoring will not occur until defendant is released on parole, long after Jessica’s Law was passed. Likewise, there is no ex post facto violation. (See id. at p. 1280.)
DISPOSITION
The matter is remanded to the superior court to recalculate appellant’s custody credits under the law in effect at the time defendant committed the offenses and award those credits. The judgment is otherwise affirmed. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
WE CONCUR: BEDSWORTH, J., MOORE, J.