Opinion
E066273
01-11-2018
THE PEOPLE, Plaintiff and Respondent, v. JESUS PADILLA, Defendant and Appellant.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Barry Carlton, Sharon L. Rhodes, and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1406395) OPINION APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Affirmed in part, reversed in part, and remanded for resentencing. Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Barry Carlton, Sharon L. Rhodes, and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Jesus Padilla is a so-called "resident child molester." (E.g., People v. Johnson (2002) 28 Cal.4th 240, 242.) He repeatedly sexually assaulted his girlfriend's daughter while the child was between the ages of approximately 8 and 12. As a result, he was found guilty on 20 separate counts and sentenced to multiple consecutive life terms.
Defendant now contends that:
1. There is insufficient evidence of the use of force, violence, duress, menace, or fear to support defendant's convictions for a forcible lewd act.
2. Evidence regarding child sexual abuse accommodation syndrome (CSAAS) should be inadmissible for all purposes.
3. The trial court gave an erroneous limiting instruction regarding CSAAS.
4. The prosecutor committed prosecutorial error by suggesting in closing argument that the defense had the burden of proving innocence.
5. In ruling on defendant's motion for a new trial, the trial court erroneously considered only the sufficiency rather than the weight of the evidence.
6. Three consecutive life terms, for oral copulation or sexual penetration of a child aged 10 or younger, are unconstitutional as cruel and unusual punishment.
7. The trial court erred by believing that it lacked discretion to impose a concurrent term for attempted aggravated sexual assault on a child.
8. The trial court violated Penal Code section 654 (section 654) by imposing two separate and unstayed sentences for the same act of sexual penetration.
9. The trial court violated defendant's right to trial by jury by making the factual findings necessary to set the amount of the restitution fine.
In addition, the People contend that the trial court erred by sentencing defendant to six years on three counts of oral copulation or sexual penetration of a child aged 10 or younger, because the statutorily prescribed sentence is 15 years to life.
The People concede that the trial court violated section 654. We will hold that the trial court mistakenly believed that it was required to run the sentence for attempted aggravated sexual assault on a child concurrently. We will also hold that the trial court imposed an erroneous sentence on three counts, as the People contend. Otherwise, we find no error. To correct these three errors, we will remand for resentencing.
I
FACTUAL BACKGROUND
A. Molestations at the First House (Counts 1-10).
Jane Doe was born in the summer of 1999. Between 2007 and 2011 (i.e., when Doe was between 7 and 12), Doe, her mother, and her siblings lived in three different houses in Riverside. Defendant was Doe's mother's boyfriend and lived with them, at least at first.
The trial court ordered that the victim be identified by this fictitious name. (Pen. Code, § 293.5.)
At some point, Doe's mother learned that defendant had another girlfriend and, moreover, that he had gotten that girlfriend pregnant. Doe's mother was "heartbroken" and very angry. Defendant moved out, but she did not break up with him; he kept coming to the house and sleeping over there.
Doe testified that defendant was "basically [her] dad." She believed that she had to do what he said. She was scared of what would happen if she did not listen to him.
Doe lived in the first Riverside house from 2007 through 2009.
The first time defendant did anything sexual to her was at the first house; Doe was 7 or 8 years old. She was in bed, just falling asleep, when defendant came in and told her to "scoot over." He started touching her vaginal area, at first over her pajamas, but then under her underwear, skin-to-skin. Doe was scared. This happened more than twice.
The term Doe used for both male and female genitalia was "private area" or "private part." She agreed with the prosecutor's description of them as "where you go No. 1." She testified that the "technical term[s]" were "penis" and "vagina."
While still at the first house, defendant also put his hand or finger inside Doe's vaginal area "about three" times. On one occasion, defendant pulled Doe's pajamas down and put his mouth on her vaginal area. Defendant also rubbed his penis up against Doe's vaginal area, skin-to-skin, three times. Each time he did something to her, she became more scared.
When asked "the worst thing you can remember that he did to you," Doe testified that defendant pulled her pants down and put his penis in her butt. "[I]t hurt really bad." This happened at the first house. Doe was more scared than ever, because she had seen how defendant hit his own children, and she thought if she told him no, he would hit her, too.
B. Molestations at the Second House (Counts 11-16).
Doe lived in the second house from 2009 to 2010. At that house, defendant touched Doe's vaginal area with his hand, skin-to-skin, "[m]ore than twice." He put his finger in her vaginal area; this happened "at least two times" before she turned 11. He put his mouth on her vaginal area once. He put his penis on her vaginal area "[m]ore than twice." "More than one time," he put his hand on top of Doe's hand and made her touch his erect penis.
C. Molestations at the Third House (Counts 17-20).
Doe lived in the third house from 2010 through 2012. At the third house, defendant did "the same things." He touched Doe's vaginal area with his hand; she did not remember how often. He rubbed his penis on her vaginal area "[m]ore than twice." In one instance, as she was holding his erect penis, he pushed her head down, but she resisted.
The last time defendant did something sexual to her, Doe was 11 or 12. He touched her vaginal area and rubbed his penis on it. Doe started crying. Defendant asked her why she was crying, and she said "[she] didn't want him to do it anymore. [She] never wanted it and [she] just wanted him to stop." Defendant did stop molesting her, but he told her not to tell anyone. She did not want anybody to find out, because they would look at her differently and it would be "embarrassing."
D. Doe Discloses.
In December 2011, when Doe was 12, she told her mother that defendant had touched her sexually. Doe's mother made Doe face defendant; she ordered Doe to say it again in front of him, but Doe remained silent. Defendant denied Doe's allegation, and Doe's mother believed him.
The next day, however, defendant admitted to Doe's mother that he had touched Doe sexually. He begged Doe's mother not to say anything, and she agreed. At trial, she explained, "[I]t was huge, the love I had for him." However, she did break up with him at this point.
Doe's mother was mad at Doe. She told Doe not to tell anybody else; she added that, if Doe did tell, Doe and Doe's little sister would be taken away. Doe felt sad and betrayed. She started cutting herself. However, she was happy that defendant would not be around anymore.
Some months later, Doe's mother hired defendant as a gardener. As a result, in October 2012, Doe told two of her friends at school about the molestation. She told them to keep it a secret, but they did not. First, a school counselor phoned Doe. Then a uniformed police officer came to her house. Doe did not tell the officer everything, because she was afraid of being taken away. She said that defendant had touched her sexually only once, and that this had happened six or seven years earlier. She also said, falsely, that she had never told her mother.
When the police interviewed Doe's mother, she was not cooperative. She told them that Doe was a liar and rebellious. At trial, she admitted that this was false. Nevertheless, both Doe and her little sister were removed from their mother's custody and placed with their father.
When the police interviewed defendant, he denied molesting Doe.
E. Defense Evidence.
One day, Doe's mother showed up at the home of defendant's other girlfriend and had an hour-long confrontation with defendant. She was angry and jealous. She screamed at defendant and threatened him.
Defendant's current girlfriend as of the time of trial testified that Doe's mother had phoned her "[m]ore than six" times. Doe's mother told her that, if she left defendant, Doe "would say the truth, that he didn't do nothing"; but if she did not, Doe's mother would add more charges. The girlfriend admitted having paid $45,000 toward defendant's defense.
Doe's mother had never actually asked the police to add more charges.
F. Expert Testimony.
Dr. Jody Ward, a psychologist, testified for the prosecution as an expert on CSAAS. Dr. Ward explained that CSAAS is "a pattern of behaviors" seen in some — but not all — sexually abused children. It has five aspects:
1. Secrecy: Child sexual abuse happens in secret, and a child will keep it a secret for a very long time; the perpetrator does not have to threaten the child.
2. Helplessness: Children are dependent on adults. Therefore, a child cannot leave a sexually abusive situation.
3. Entrapment and accommodation: Because the child has no alternative, he or she may appear to acquiesce in or even to accept the sexual abuse.
4. Delayed and unconvincing disclosure: Sexually abused children may delay disclosure for a long time; two-thirds do not disclose until they are adults. They tend to "test the waters" before making a full disclosure. Dr. Ward stated, "I haven't heard of children or even adults who come out with the very first disclosure of any kind of sexual abuse at all and tell the whole story of everything that happened."
5. Retraction or recantation.
Dr. Ward admitted that some children falsely allege sexual abuse, and some parents coach their children to falsely allege sexual abuse. She also admitted that CSAAS "doesn't deal with" the concept of false allegations.
Dr. Michael Kania, a psychologist, testified for the defense as an expert in the evaluation of sex offenders. He had conducted an evaluation of defendant. This involved reviewing the police reports and interviewing defendant. Dr. Kania had also administered the Minnesota Multiphasic Personality Inventory (MMPI), but the results were invalid and unusable; either defendant was "very guarded," or he did not understand all of the questions.
Dr. Kania found no evidence that defendant had "an attraction to sexually deviant behavior." However, he admitted that his evaluation could not be used to determine guilt.
In Dr. Ward's opinion, Dr. Kania's evaluation was incomplete, because Dr. Kania had relied solely on his interview of defendant, even though "interview data is the least reliable form of information that we have." Dr. Kania did not do any testing regarding defendant's sexual interests, such as the Multiphasic Sex Inventory (MSI) or the Abel Assessment of Sexual Interest (AASI). According to Dr. Ward, there is no way to tell if someone is likely to molest children "[o]ther than a person showing a sexual interest in children . . . ." While Dr. Kania did do an MMPI, the MMPI results "call[ed] into question a lot of the things that Mr. Padilla said during his interview."
Dr. Kania responded that the MSI and the AASI are "rarely used"; he could form a valid opinion without them.
II
PROCEDURAL BACKGROUND
Defendant's first trial ended in a hung jury. In his second trial, the jury found him guilty as charged on all counts:
Counts 1, 8-11, 15-16, and 19: Lewd act on a child under 14. (Pen. Code, § 288, subd. (a).)
Counts 2, 4-7, and 12-14: Oral copulation or sexual penetration of a child aged 10 or younger. (Pen. Code, § 288.7, subd. (b).)
Count 3: Aggravated sexual assault on a child under 14 by forcible sexual penetration. (Pen. Code, § 269, subd. (a)(5).)
Count 17-18: Forcible lewd act on a child under 14. (Pen. Code, § 288, subd. (b)(1).)
Count 20: Attempted aggravated sexual assault on a child under 14 by forcible oral copulation. (Pen. Code, §§ 269, subd. (a)(4), 664, subd. (a).)
Defendant was sentenced to a total of 78 years 4 months to life in prison, along with the usual fines, fees, and miscellaneous sentencing orders.
III
THE SUFFICIENCY OF THE EVIDENCE OF FORCE OR DURESS
Defendant contends that there is insufficient evidence of the use of force, violence, duress, menace, or fear to support his convictions for a forcible lewd act (counts 17 and 18).
"'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence — that is, evidence that is reasonable, credible, and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Covarrubias (2016) 1 Cal.5th 838, 890.)
The crime of a nonforcible lewd act requires the commission of a lewd and lascivious act, with the requisite intent, on a child under 14. (Pen. Code, § 288, subd. (a).) The crime of a forcible lewd act additionally requires that the act be committed "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury . . . ." (Id., subd. (b).)
The People argue that there was sufficient evidence of duress to support both counts. Alternatively, they argue that there was sufficient evidence of force to support count 17; rather conspicuously, however, they do not argue that there was sufficient evidence of force to support count 18. We therefore begin (and end) with duress.
"'[D]uress,' as used in [Penal Code] section 288(b)(1), means '"a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted."' [Citation.]" (People v. Soto (2011) 51 Cal.4th 229, 246, italics omitted, fn. omitted.)
"'[D]uress involves psychological coercion. [Citation.] Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes. [Citations.] "Where the defendant is a family member and the victim is young, . . . the position of dominance and authority of the defendant and his continuous exploitation of the victim" [are] relevant to the existence of duress. [Citation.]' [Citation.]" (People v. Veale (2008) 160 Cal.App.4th 40, 49 (Veale).) "The fact that the victim testifies the defendant did not use force or threats does not require a finding of no duress; the victim's testimony must be considered in light of her age and her relationship to the defendant." (People v. Cochran (2002) 103 Cal.App.4th 8, 14, disapproved on other grounds in People v. Soto, supra, 51 Cal.4th at p. 248, fn. 12.)
In Veale, this court found sufficient evidence of duress, as follows: "A reasonable inference could be made that defendant made an implied threat sufficient to support a finding of duress, based on evidence that [the victim] feared defendant and was afraid that if she told anyone about the molestation, that defendant would harm or kill [the victim], her mother or someone else. Additional factors supporting a finding of duress include [the victim]'s young age when she was molested; the disparity between [the victim's] and defendant's age and size; and defendant's position of authority in the family. The totality of this evidence is sufficient to support a finding that defendant molested [the victim] by means of duress, in violation of section 288, subdivision (b)." (Veale, supra, 160 Cal.App.4th at p. 47.)
Here, all of the molestations occurred when defendant was approximately 28 to 32 and Doe was approximately 8 to 12. Doe considered defendant to be "a father figure"; she called him "Dad." Doe testified that she believed that, if she told defendant no, he would hit her. She was scared, because she had seen "how he . . . hit his kids," and she "didn't want him to do the same" to her. Each time he molested her, she "bec[a]me more scared . . . ." After the incident at the first house, in which he sodomized her, she was "[a] lot more scared." The crime in count 17 occurred at the third house, when defendant "grab[bed] [her] hand and put it on his penis." The crime in count 18 also occurred at the third house, when defendant rubbed his "private area" on hers.
Under Veale, the jury could reasonably infer an implied threat from the evidence that Doe was increasingly afraid of defendant and believed that, if she said no, he would hit her. Also as in Veale, Doe's young age, the disparity in age and size between her and defendant, and defendant's position of authority over her additionally support a finding of duress.
The probation report indicates that defendant was five feet, five inches tall and weighed 202 pounds.
IV
EVIDENCE AND INSTRUCTION REGARDING
CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME
Defendant contends that CSAAS evidence should be inadmissible for all purposes. Defendant also contends that the limiting instruction that the trial court gave regarding CSAAS was erroneous.
A. Additional Factual and Procedural Background.
Both sides filed cross-motions in limine regarding CSAAS evidence. Defendant argued, among other things, that the evidence should be excluded under Evidence Code section 352, because "[t]he testimony of an expert in this matter will only serve to confuse the jury and invite the trier of fact to improperly utilize the testimony as corroboration of the claim of abuse."
After hearing argument, the trial court ruled that the evidence was admissible: "[T]his area has been well litigated and historically [it] has been allowed."
At defense counsel's request, the trial court gave a limiting instruction regarding CSAAS twice — once while Dr. Ward was on the stand, and again at the end of the trial. As they were both based on CALCRIM No. 1193 and they had nonsubstantive differences in wording, we quote only the one given at the end of trial:
"You have heard the testimony from Dr. Jody Ward regarding the Child Sexual Abuse Accommodation Syndrome. Dr. Ward's testimony about Child Sexual Abuse Accommodation Syndrome is not evidence that the defendant committed any of the crimes charged against him.
"You may consider this evidence only in deciding whether or not (Jane Doe's) conduct was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of her testimony."
B. The Admissibility of CSAAS Evidence.
"[I]t has long been held that in a judicial proceeding presenting the question whether a child has been sexually molested, CSAAS is admissible evidence for the limited purpose of disabusing the fact finder of common misconceptions it might have about how child victims react to sexual abuse. [Citations.]" (In re S.C. (2006) 138 Cal.App.4th 396, 418.)
"Expert testimony on the common reactions of a child molestation victim is not admissible to prove the sex crime charged actually occurred. However, CSAAS testimony 'is admissible to rehabilitate [the 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.]' [Citation.] '"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 . . . ." [Citation.]' [Citation.]" (People v. Sandoval (2008) 164 Cal.App.4th 994, 1001-1002.)
There are "two requirements to the admissibility of [CSAAS] evidence:
"First, the expert's testimony must be narrowly tailored to the purpose for which it is admissible, i.e., the prosecution is obligated to 'identify the myth or misconception the evidence is designed to rebut' and the testimony must be limited to exposing the misconception by explaining why the child's behavior is not inconsistent with his or her having been abused. [Citation.]
"Second, if requested the jury must be admonished '"that the expert's testimony is not intended and should not be used to determine whether the victim's molestation claim is true . . . . The evidence is admissible solely for the purpose of showing that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested."' [Citations.]" (People v. Stark (1989) 213 Cal.App.3d 107, 116.)
Defendant does not complain that the trial court misapplied these rules in this case. Rather, he argues that CSAAS should be inadmissible under any circumstances.
The California Supreme Court, however, has indicated that CSAAS evidence is admissible. In People v. McAlpin (1991) 53 Cal.3d 1289, the issue before the court was whether an expert could testify that it is not unusual for a parent to fail to report a known molestation of his or her child. (See id. at pp. 1298-1299.) The Supreme Court drew a "direct analogy" to expert testimony regarding CSAAS. (Id. at p. 1300.) It noted that the courts of appeal had held that "expert testimony on [CSAAS] is not admissible to prove that the complaining witness has in fact been sexually abused; it is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident — e.g., a delay in reporting — is inconsistent with his or her testimony claiming molestation. [Citations.]" (Id. at pp. 1300-1301.) It concluded: "In the case at bar the challenged expert testimony dealt with the failure not of the child victim, but of the child's parent, to report the molestation. Yet the foregoing rules appear equally applicable in this context." (Id. at p. 1301, italics added.) Admittedly, McAlpin itself did not deal directly with the admissibility of evidence regarding CSAAS. Nevertheless, the Supreme Court clearly endorsed the lower appellate court holdings regarding CSAAS.
It is not at all clear whether defendant's argument is based on state evidentiary law, federal constitutional law, or both. If only out of an excess of caution, then, we note that federal as well as state courts have held that CSAAS evidence does not violate due process. (Brodit v. Cambra (9th Cir. 2003) 350 F.3d 985, 991 [maj. opn.], 994 [conc. & dis. opn of Berzon, J.]; People v. Patino (1994) 26 Cal.App.4th 1737, 1747.)
Defendant argues that CSAAS lacks probative value: "Necessarily, the victim's behavior will fit CSAAS since the syndrome has no fixed characteristics and every conceivable behavior fits the syndrome, e.g., immediate disclosure and delayed disclosure, retraction and no retraction."
This overlooks the principle, however, that CSAAS is not intended to reveal whether the child was in fact sexually abused. Rather, it is intended to explain why a child who has been sexually abused might delay disclosure. Thus, in this case, it discouraged the jurors from drawing the unwarranted conclusion that, because Doe delayed disclosure, she must be lying. The fact that some children who have been sexually abused do disclose immediately does not make the evidence either irrelevant or misleading when used for this purpose.
Defendant also argues that "there is a danger that CSAAS evidence may be misunderstood or misapplied by the jury because the question of whether the victim's behavior was typical of sexual abuse victims is closely related to the ultimate question of whether sexual abuse actually occurred." As mentioned, however, the jury must be instructed, on request, that CSAAS evidence is not evidence that a molestation actually occurred; the jury was so instructed here. "Absent evidence to the contrary, . . . we presume the jurors followed the[] instructions. [Citation.]" (People v. Masters (2016) 62 Cal.4th 1019, 1071.) We see no reason why the jury could not follow this instruction in this case.
Finally, defendant notes that CSAAS evidence has been held inadmissible in three states. (Newkirk v. Commonwealth (Ky. 1996) 937 S.W.2d 690, 695 [CSAAS evidence "lacked relevancy and invaded the province of the jury by expressing an opinion on the ultimate issue of guilt or innocence"]; Commonwealth v. Dunkle (1992) 529 Pa. 168, 173-185 [602 A.2d 830, 832-838] [CSAAS evidence is not generally accepted in the relevant field and infringes jury's right to determine credibility]; State v. Bolin (Tenn. 1996) 922 S.W.2d 870, 873 [CSAAS evidence cannot reliably determine abuse and invades the province of the jury to determine credibility].) We do not find the decisions of just three out of fifty states to be persuasive. In any event, stare decisis counsels us to follow McAlpin and the many other California cases holding that CSAAS evidence is admissible.
In 2012, Dunkle was abrogated by the enactment of 42 Pennsylvania Consolidated Statutes section 5920, subdivision (b)(2), which provides that, when various sexual offenses are charged, a qualified expert "may testify to facts and opinions regarding specific types of victim responses and victim behaviors." (See Commonwealth v. Olivo (Pa. 2015) 127 A.3d 769, 771-781.)
C. The Limiting Instruction Regarding CSAAS.
Defendant takes issue with just one portion of CALCRIM No. 1193 — the portion that allowed the jury to consider the CSAAS evidence "in evaluating the believability of [Doe's] testimony."
The People argue that defense counsel forfeited any error in giving CALCRIM No. 1193 by affirmatively requesting it. Defendant, however, contends that, if so, defense counsel rendered constitutionally ineffective assistance. Hence, we must come to grips with defendant's contention.
"'"'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."'" [Citation.]' [Citation.]" (People v. Covarrubias, supra, 1 Cal.5th at p. 905.)
Here, the trial court also gave CALCRIM No. 226, the standard instruction on witness "credibility or believability." This instruction listed multiple factors that the jury could consider in this regard, including the witness's ability to "see, hear, or otherwise perceive," the witness's ability "to remember and describe what happened," and "the witness's behavior while testifying." CALCRIM No. 1193 then told the jury that, in evaluating the believability of Doe's testimony, it could also consider the CSAAS evidence; however, it told the jury not to use it as evidence that defendant committed any of the charged crimes.
We believe that, taking these instructions together, the jury would have understood that it could use the CSAAS evidence — along with the factors listed in CALCRIM No. 226 — in deciding whether Doe was telling the truth; if she was telling the truth, it could use that in deciding whether defendant was guilty. We see no reasonable probability, however, that it would have concluded that it could use the CSAAS evidence as proof — all by itself, and not by way of Doe's credibility — that defendant was guilty. The instruction itself specifically prohibited this.
We recognize that evaluating a complaining witness's "believability" may ultimately assist the jury in determining whether to accept the witness's testimony that the crimes occurred; however, the same is true of any evidence that is admitted on the limited issue of a witness's credibility.
We therefore conclude that defendant has not shown that CALCRIM No. 1193 is erroneous.
V
MISSTATEMENT OF THE LAW IN CLOSING ARGUMENT
Defendant contends that the prosecutor committed prosecutorial error in closing argument.
A. Additional Factual and Procedural Background.
The trial court gave standard instructions on the prosecution's burden of proof beyond a reasonable doubt. (CALCRIM Nos. 220, 355, 1015, 3517.)
In his closing argument, the prosecutor stated:
" . . . I want you to remember . . . the promise you made to me in jury selection. That you're going to hold me to my burden, and I still ask you to do that. Hold me to my burden to prove to you this case beyond a reasonable doubt."
Defense counsel, in his closing argument, stated:
"Think about the standard of proof. The standard of proof in a criminal trial is unlike anything in your life, as it should be, proof beyond a reasonable doubt is that proof that leaves you with an abiding conviction of the truth of the charge. . . .
"An abiding conviction means that you have a firm long[-]lasting steadfast unwielding [sic] belief, and if you are not convinced, you have a doubt, and it is a reasonable doubt, [you have a duty] under the law to return a verdict of not guilty . . . ."
"The burden is on the People. The burden is on [the prosecutor]. Right? I don't have to call any witnesses. . . . It is not up to [defendant] to prove the negative and prove he didn't do that."
In his rebuttal closing argument, the prosecutor repeated, "Again, hold me to my burden." He also stated:
"I submit to you that the defendant is guilty as charged and this is the reason why.
"For you to believe he is innocent, you would have to believe that [Doe's mother] and (Jane Doe) are both lying. And the reason why I say that is because, let's say you believe that [Doe's mother] is telling the truth. We have from that, [defendant] admitting that he touched (Jane Doe). He is guilty. He is admitting that he touched her.
"You would also have to believe that (Jane Doe) is lying. Not only did [Doe's mother] want [to] come in here and lie, but (Jane Doe) did too. For we don't know what reason, but she wanted to lie. You have to believe that little girl was evil and wanted to lie.
"You would have to believe that (Jane Doe) committed to this lie. She doesn't want to tell it once. She didn't want to tell it twice, she wants to tell it over and over again. And it doesn't matter if years pass by, that she gets taken away. She still wants to tell this lie, even if it means that she doesn't get to live with her mom.
"And [defense counsel] said, well, it is not like she got moved to a faraway place. I think it is kind of clear that [defense counsel] kind of sees things in black and white, you know what, life isn't about black and white.
"[DEFENSE COUNSEL]: Objection. Improper argument.
"THE COURT: Overruled.
"[DEFENSE COUNSEL]: Also object, improper standards.
"THE COURT: Standards?
"[DEFENSE COUNSEL]: Burden of proof.
"THE COURT: Overruled." (Italics added.)
After the jury retired to deliberate, defense counsel asked to "clarify my objection[.]" There was this exchange:
"[DEFENSE COUNSEL]: Your Honor, the slides including the one on the screen now included the phrase, 'For you to believe the defendant.' I objected to those slides. . . . I am asking for a mistrial. It is lowering of the burden. That's a phrase of common knowledge that is not the equivalent of not guilty. It is lowering the burden of proof, and I object to it and, again, I would ask for a mistrial.
The prosecutor illustrated his closing argument with a PowerPoint presentation. At defense counsel's request, the trial court made one slide from the presentation part of the record as an exhibit. Moreover, defendant has had that exhibit transmitted to this court. However, it does not use the words "to believe the defendant," nor does it refer in any other way to the burden of proof.
"THE COURT: And I didn't understand your objection initially. I am glad you explained that. Although the phrase for you to believe he is innocent probably is inaccurate, at the same time counsel's argument dealt with burden. He reminded the jurors what his burden was. I reminded the jurors of what their obligation was to follow the law that I give them. At the time of whatever brief argument was made with respect to that, I don't even think [the prosecutor] referred to that, but it is on the diagram."
The trial court then denied a mistrial.
B. Discussion.
"'Improper comments by a prosecutor require reversal of a resulting conviction when those comments so infect a trial with unfairness that they create a denial of due process. [Citations.] Conduct by a prosecutor that does not reach that level nevertheless constitutes misconduct under state law, but only if it involves the use of deceptive or reprehensible methods to persuade the court or jury. [Citation.]' [Citation.]" (People v. Winbush (2017) 2 Cal.5th 402, 480.)
"'[T]he term prosecutorial "misconduct" is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.' [Citation.]" (People v. Centeno (2014) 60 Cal.4th 659, 666-667.)
"[I]t is misconduct for a prosecutor, during argument, to misstate the law [citation] . . . ." (People v. Whalen (2013) 56 Cal.4th 1, 77.) "For a prosecutor's remarks to constitute misconduct, it must appear reasonably likely in the context of the whole argument and instructions that '"the jury understood or applied the complained-of comments in an improper or erroneous manner."' [Citation.]" (People v. Winbush, supra, 2 Cal.5th at p. 480.) "We consider the assertedly improper remarks in the context of the argument as a whole. [Citation.] 'In conducting [our] inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' [Citation.]" (People v. Covarrubias, supra, 1 Cal.5th at p. 894.)
The People do not argue that defense counsel failed to preserve defendant's contention. In any event, defendant also argues that, if his trial counsel failed to preserve this contention, that constituted constitutionally ineffective assistance. Hence, we must reach the merits, even if only to decide this latter issue.
According to defendant, the prosecutor's statement — "For you to believe he is innocent, you would have to believe that [Doe's mother] and (Jane Doe) are both lying" — improperly "suggest[ed] that the defense had some obligation to establish innocence . . . ." We do not agree. Quite the contrary, it implicitly acknowledged that the prosecution had the burden of proof, which it had attempted to meet by calling its two main witnesses. And it expressly acknowledged that, if the jury did not believe those two witnesses, it was required to acquit. It did not refer to any witnesses that the defense did or did not call; it did not suggest that the defense had failed to prove anything. It was consistent with defense counsel's statement, "I don't have to call any witnesses."
The only even arguable flaw we can find in the prosecutor's argument is that he used the word "innocent" instead of "not guilty." However, even this was not prosecutorial error, in light of the instruction that defendant was "presumed to be innocent" unless proven guilty beyond a reasonable doubt. Both sides stressed, in their closing arguments, that it was the prosecution's burden to prove guilt beyond a reasonable doubt. Moreover, the trial court instructed the jury correctly and completely on the burden of proof. In light of the whole record, it is simply inconceivable that the jury took this isolated word to mean that it could not acquit defendant unless it was convinced that he was actually innocent.
We therefore conclude that defendant has not demonstrated prosecutorial error.
VI
THE LEGAL STANDARD FOR RULING ON THE MOTION FOR NEW TRIAL
Defendant contends that, in ruling on his motion for a new trial, the trial court erroneously considered only the sufficiency and not the weight of the evidence.
A. Additional Factual and Procedural Background.
Defense counsel filed a motion for new trial, essentially arguing that Doe and her mother were not credible. After hearing argument, the trial court denied the motion. It explained:
"[T]here was testimony from the victim that was very specific about the criminal acts that she claimed Mr. Padilla committed. You know again, inconsistencies with respect to places and times and dates, it is not uncommon in these cases . . . .[¶] . . . [¶]
" . . . [A]nd certainly the jury had the benefit of reviewing that as part of their determination as to whether or not the victim was credible, and they found not only her to be credible, but believed the evidence provided was sufficient beyond a reasonable doubt.
"So, again, the Court has no disagreement with that in terms of its review of the trial transcripts. For those reasons the Court would deny the motion for new trial."
B. Discussion.
The trial court may grant a motion for new trial when, among other things, "the verdict . . . is contrary to law or evidence . . . ." (Pen. Code, § 1181, subd. 6.)
In ruling on a new trial motion made on this ground, "[t]he court extends no evidentiary deference . . . . Instead, it independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect, as a '13th juror.' [Citations.] If the court is not convinced that the charges have been proven beyond a reasonable doubt, it may rule that the jury's verdict is 'contrary to [the] . . . evidence.' [Citations.]" (Porter v. Superior Court (2009) 47 Cal.4th 125, 133.)
"[A] trial court can grant a motion for new trial where the evidence is legally sufficient and even where the only evidence is that of the prosecution. [Citations.]" (People v. Sarazzawski (1945) 27 Cal.2d 7, 16, overruled on other grounds in People v. Braxton (2004) 34 Cal.4th 798, 817.)
"Although the trial court is to be 'guided' by a presumption in favor of the correctness of the jury's verdict [citation], this means only that the court may not arbitrarily reject a verdict which is supported by substantial evidence. The trial court is not bound by the jury's determinations as to the credibility of witnesses or as to the weight or effect to be accorded to the evidence. [Citations.] Thus, the presumption that the verdict is correct does not affect the trial court's duty to give the defendant the benefit of its independent determination as to the probative value of the evidence. [Citation.] If the court finds that the evidence is not sufficiently probative to sustain the verdict, it must order a new trial. [Citations.]" (People v. Dickens (2005) 130 Cal.App.4th 1245, 1251-1252.)
"The trial court has broad discretion in determining whether the evidence has sufficient probative value to sustain the verdict [citation], and its order will not be reversed on appeal 'absent a manifest and unmistakable abuse of that discretion.' [Citation.]" (People v. Dickens, supra, 130 Cal.App.4th at p. 1252.) "Such an abuse of discretion arises if the trial court based its decision on impermissible factors [citation] or on an incorrect legal standard [citations]." (People v. Knoller (2007) 41 Cal.4th 139, 156.)
"In reviewing an order granting a new trial based on insufficiency of the evidence, the appellate court reviews the evidence in the light most favorable to the trial court's ruling, drawing all factual inferences that favor the trial court's decision. [Citations.] The trial court's factual findings, express or implied, will be upheld if supported by any substantial evidence. [Citation.] The order will be reversed only if it can be said as a matter of law that there is no substantial evidence to support a judgment contrary to the verdict. [Citation.]" (People v. Dickens, supra, 130 Cal.App.4th at p. 1252, fn. omitted.)
Defendant asserts that "[i]nstead of undertaking its positive duty to reweigh the evidence and reach its own conclusion whether it would have decided the case differently, the lower court instead simply concluded that there was sufficient evidence to sustain the verdicts." However, he does not point to anything in particular that the trial court said that would support that conclusion.
Presumably he is thinking of the trial court's statement that "the jury . . . not only [found Doe] to be credible, but believed the evidence provided was sufficient beyond a reasonable doubt." As already mentioned, however, the trial court is supposed to be guided by a presumption that the jury verdict was correct. Thus, it was entirely proper for it to take the jury's verdict and findings into account.
What conclusively refutes defendant's argument is that this was not all the trial court said. Rather, it specifically determined, based on its review of the trial transcripts, and in the exercise of its independent judgment, that it agreed with the jury. It also determined that any inconsistencies in the testimony did not deprive that testimony of credibility. Thus, clearly it did independently examine and reweigh the evidence.
Defendant also argues that his motion was so plainly meritorious that, if only the trial court had applied the correct legal standard, it would have had to grant it; he concludes that the trial court must not have applied the correct legal standard. This is a clever but ultimately futile attempt to make an end-run around our standard of review. We are authorized to determine whether a finding of guilt is supported by substantial evidence; we are not authorized to determine whether it is supported by the weight of the evidence. In that sense, the trial court's decision that the weight of the evidence pointed toward defendant's guilt is unreviewable. (See People v. Serrato (1973) 9 Cal.3d 753, 761 ["In ruling upon a motion for a new trial, the trial court is required to independently weigh the evidence, but an appellate court will not modify or set aside the verdict if there is any substantial evidence to support it."], disapproved of on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.)
Defendant all but concedes that there was substantial evidence of guilt. He merely argues, as he did in his new trial motion, that that evidence lacked credibility. However, in granting or denying a new trial, "the trial judge . . . has the exclusive right to pass upon the credibility of witnesses . . . ." (People v. Simpson (1933) 134 Cal.App. 646, 649.)
Thus, defendant has not shown that the trial court erred in denying his motion for a new trial.
VII
MULTIPLE CONSECUTIVE LIFE SENTENCES AS CRUEL AND UNUSUAL
On three counts of oral copulation or sexual penetration of a child aged 10 or younger (Pen. Code, § 288.7, subd. (b), counts 2, 4, and 5), the trial court sentenced defendant to consecutive terms of 15 years to life. Defendant contends that these terms are unconstitutional as cruel and unusual punishment.
As we will hold in part IX, post, one of these three terms should have been stayed under section 654.
The People respond that defendant forfeited this contention by failing to raise it below. A claim of cruel and unusual punishment is fact-specific; as a result, it is forfeited unless raised below. (People v. Ross (1994) 28 Cal.App.4th 1151, 1157, fn. 8; accord, People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) Defendant contends, however, that his trial counsel's failure to raise the issue constituted ineffective assistance. As the People concede, we may reach the merits of defendant's contention under this rubric. (People v. Norman (2003) 109 Cal.App.4th 221, 230-231; People v. DeJesus, supra, 38 Cal.App.4th at p. 27.)
Defendant invokes both the federal and state constitutions. It is not entirely clear whether they prescribe substantively different standards. (Compare People v. Gonzales (2012) 54 Cal.4th 1234, 1300 ["The analysis is the same under the state and federal Constitutions."] with People v. Carmony (2005) 127 Cal.App.4th 1066, 1085 [different wording of state and federal provisions is "purposeful and substantive rather than merely semantic."].) Hence, we will discuss them separately.
A. The Federal Constitution.
A prison sentence is unconstitutional as cruel and unusual punishment under the Eighth Amendment only if it is "grossly disproportionate." (Ewing v. California (2003) 538 U.S. 11, 30-31 [lead opn. of O'Connor, J.]; see also id. at p. 33 [dis. opn. of Stevens, J.]; id. at pp. 35-36 [dis. opn. of Breyer, J.].) The statutorily authorized length of a prison term is a policy decision traditionally committed to the legislature, and the courts traditionally defer to it. (Id. at pp. 24-25 [lead opn. of O'Connor, J.]; see also id. at p. 36 [dis. opn. of Breyer, J.].) Hence, the proportionality principle is "'narrow.'" (Id. at p. 20 [lead opn. of O'Connor, J.]; see also id. at p. 32, fn. 1 [dis. opn. of Stevens, J.].) Successful proportionality challenges are — and should be — "'exceedingly rare.'" (Id. at pp. 21-22 [lead opn. of O'Connor, J.]; see also id. at p. 36 [dis. opn. of Breyer, J.].)
Applying these principles, the Ninth Circuit has upheld a sentence of life without the possibility of parole for the crime of child molestation, where the defendant had also been convicted of child molestation 10 years earlier. (Norris v. Morgan (9th Cir. 2010) 622 F.3d 1276, 1291-1296 (Norris).) It acknowledged that "Norris's offense involved him touching a five-year-old girl on her 'privates' or 'genitalia' and over her clothing for at most 'a couple of seconds.'" (Id. at p. 1293.) However, it explained that "'[t]he impact of [child molestation] on the lives of [its] victims is extraordinarily severe.' [Citations.]" (Id. at p. 1294.) It added that "even assuming that Norris's previous offense involved the least offensive conduct that could support a conviction under the child molestation statute, that offense . . . is 'directly related to [his] triggering offense, evincing a clear pattern of recidivism.' [Citation.]" (Id. at pp. 1294-1295.) More generally, the court observed, "[W]e are aware of no case in which a court has found a defendant's term-of-years sentence for a non-homicide crime against a person to be grossly disproportionate to his or her crime." (Id., at p. 1293.)
Here, defendant repeatedly molested Doe over approximately four years. The three challenged counts involved oral copulation or sexual penetration — conduct much more heinous and traumatizing than Norris's brief touching. Perhaps defendant was not a "recidivist" in the strict sense — i.e., unlike Norris, he had not been convicted of molestation before, and thus he had not had the incentive for reform and the opportunity for reform that incarceration can provide. Nevertheless, he was a recidivist under the dictionary definition — i.e., "a habitual criminal." (Merriam-Webster <https://www.merriam-webster.com/dictionary/recidivist> [as of Jan. 8, 2018].)
Thus, even if we were to view the sentence on each of the challenged counts in isolation — as a separate term of 15 years to life for a separate violation of Penal Code section 288.7 — we would uphold it under Norris. However, that view is not realistic. The trial court also imposed a fourth consecutive term of 15 years to life for aggravated sexual assault on a child. (Pen. Code, § 269, count 3.) Defendant does not challenge the sufficiency of the evidence to support this conviction; he does not argue that the sentence on this count constituted cruel and unusual punishment. Because defendant cannot actually serve multiple consecutive life terms, the real-world effect of each of the challenged terms is to extend the minimum parole period by another 15 years. We doubt that extending an existing minimum parole period, based on a crime against the person, could ever constitute cruel and unusual punishment. Certainly, defendant cites no authority holding that it can. Thus, we uphold the sentence for this reason, too.
B. The State Constitution.
"'To determine whether a sentence is cruel or unusual under the California Constitution as applied to a particular defendant, a reviewing court must examine the circumstances of the offense, including motive, the extent of the defendant's involvement in the crime, the manner in which the crime was committed, and the consequences of the defendant's acts. The court must also consider the personal characteristics of the defendant, including his or her age, prior criminality, and mental capabilities. [Citation.] If the penalty imposed is "grossly disproportionate to the defendant's individual culpability" [citation], so that the punishment "'"shocks the conscience and offends fundamental notions of human dignity"'" [citation], the court must invalidate the sentence as unconstitutional.' [Citation.]" (People v. Gonzales, supra, 54 Cal.4th at p. 1300.)
Defendant argues that, besides considering the nature of the offense and the nature of the offender, we must also compare the challenged punishment to the punishment for other, more serious crimes in California as well as to the punishment for the same crime in other states. Our high court has held, however, that, provided a punishment is proportionate to the defendant's individual culpability ("intracase proportionality"), there is no requirement that it be proportionate to the punishments imposed in comparable cases ("intercase proportionality"). (People v. Trinh (2014) 59 Cal.4th 216, 255; People v. Duff (2014) 58 Cal.4th 527, 570; see also People v. Melton (1988) 44 Cal.3d 713, 771 [defining terms].) Accordingly, our determination may be based exclusively on the offense and the offender. (People v. Ayon (1996) 46 Cal.App.4th 385, 399, disapproved on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10; see, e.g., People v. Dillon (1983) 34 Cal.3d 441, 479, 482-488; People v. Young (1992) 11 Cal.App.4th 1299, 1308-1311.)
Here, as in almost any sex crime, defendant's motive was sexual gratification. Resorting to a child for this, when he was already cohabiting with one or more adult women, was particularly reprehensible. He acted alone and was solely responsible. Defendant argues that the manner in which the crimes were committed was mitigating, in that he did not use force and Doe was not injured. However, that is offset by the fact that, otherwise, he would likely be facing more, and more serious, charges and/or enhancements.
Actually, the manner in which the crimes were committed was aggravating in several respects. As the probation report noted, defendant abused a position of trust or confidence to commit the offenses. Moreover, these offenses were not isolated, spontaneous, or opportunistic; they were part of a campaign to keep Doe in sexual subjection that ultimately lasted approximately four years. The overall impact on the victim was horrendous — in addition to being sexually violated while still in childhood, she was rejected by her mother and distanced from her siblings.
There is no evidence of anything mitigating about defendant's age or his mental capabilities. The only mitigating factor, as the probation report also noted, was that he had no criminal record. Nevertheless, as discussed in part A, ante, the repeated molestations over four years make defendant essentially a recidivist. For these reasons, we find nothing disproportionate about punishing his multiple violations of Penal Code section 288.7 with multiple life sentences. A fortiori, we find nothing disproportionate about using them to increase the minimum parole period for his existing life sentence on count 3 for aggravated sexual assault on a child.
On the advice of his counsel, defendant refused to let the probation officer interview him. The record therefore contains no information about his education or his work history.
Defendant's opening brief states that he has two prior convictions for driving under the influence. This appears to be a mistake.
VIII
MANDATORY OR DISCRETIONARY CONSECUTIVE SENTENCING
Defendant contends that the trial court erred by believing that it was required to impose a consecutive term for attempted aggravated sexual assault on a child.
A. Additional Factual and Procedural Background.
On count 20 (attempted aggravated sexual assault on a child by oral copulation, Pen. Code, §§ 269, subd. (a)(4), 664), the trial court sentenced defendant to two years four months (one-third the midterm). It ordered this sentence served consecutively. It agreed with the prosecutor that it could not "be run concurrent" because "[i]t is an attempt 269."
B. Discussion.
Penal Code section 269, subdivision (a), defines the crime of aggravated sexual assault on a child. Penal Code section 269, subdivision (b) prescribes a sentence for this crime of 15 years to life in prison. However, because defendant was found guilty of the attempted crime rather than the completed crime, the applicable sentence was five, seven, or nine years under Penal Code section 664, subdivision (a). Moreover, if the sentence was imposed consecutively, the trial court was required to impose one-third the midterm. (Pen. Code, § 1170.1, subd. (a).)
Penal Code section 269, subdivision (c) provides: "The court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6." The trial court evidently relied on this subdivision in running the sentence for this crime consecutively. Defendant contends, however, that this subdivision does not apply to an attempt.
While this is a question of first impression as to Penal Code section 269, there is ample analogous authority. Penal Code section 667.6, subdivision (d) provides that, with regard to certain specified sexual offenses: "A full, separate, and consecutive term shall be imposed for each violation . . . if the crimes involve separate victims or involve the same victim on separate occasions." It has been held that this provision does not apply to an attempt to commit one of the specified sexual offenses. (People v. Rodriguez (2012) 207 Cal.App.4th 204, 217; People v. Cadogan (2009) 173 Cal.App.4th 1502, 1516; People v. Thomas (1990) 218 Cal.App.3d 1477, 1490; People v. Reber (1986) 177 Cal.App.3d 523, 535, disapproved on other grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1119, 1123-1124, 1128; People v. Le (1984) 154 Cal.App.3d 1, 10.)
As the court in Le explained: "Full consecutive terms . . . are only authorized for violations of certain sex crimes enumerated in section 667.6, subdivision (c) . . . . Although forcible oral copulation is specifically listed in section 667.6, subdivision (c), attempted forced oral copulation [citation] is not. Because attempted crimes are considered to be separate and distinct, they are not automatically included in the list of sexual offenses to which section 667.6, subdivision (c) applies. [Citations.]" (People v. Le, supra, 154 Cal.App.3d at pp. 10-11.)
More generally, courts have concluded that any statute enumerating certain crimes should be construed as excluding attempts to commit those crimes (People v. Marinelli (2014) 225 Cal.App.4th 1, 5-7 [Pen. Code, § 1203.4, subd. (b)]; People v. Lewis (2006) 146 Cal.App.4th 294, 298 [Pen. Code, § 1203.4, subd. (b)]; People v. Reed (2005) 129 Cal.App.4th 1281, 1285 [Pen. Code, § 11370.2, subd (a)]; People v. Finley (1994) 26 Cal.App.4th 454, 458-459 [Pen. Code, § 314, subd. 1]; People v. Jillie (1992) 8 Cal.App.4th 960, 962-963 [Pen. Code, § 1202.1, subd. (a)]; People v. White (1987) 188 Cal.App.3d 1128, 1138 [Pen. Code, § 667.8], disapproved on other grounds in People v. Wims (1995) 10 Cal.4th 293, 314, fn. 9), except when this would be absurd or contrary to the evident legislative intent (People v. Smith (2017) 8 Cal.App.5th 977, 983-984; People v. Barrajas (1998) 62 Cal.App.4th 926, 929-930).
We find nothing in Penal Code section 269 that would distinguish it from Penal Code section 667.6 in this respect. Indeed, the former was evidently modeled on the latter; it even incorporates the definitions in the latter by reference.
We therefore conclude that the trial court erred in believing that Penal Code section 269, subdivision (c) required it to run the sentence on count 20 consecutively. The record does not indicate what it would have done if it had known that it had discretion to run this sentence concurrently. Accordingly, we must remand for resentencing.
IX
SECTION 654Defendant contends that the trial court violated section 654 by imposing separate and unstayed sentences on count 2 (sexual penetration of a child 10 years or younger) and count 3 (aggravated sexual assault on a child by sexual penetration).
The People concede the error. We agree that the trial court erred. "Section 654 precludes multiple punishments for a single act or indivisible course of conduct. [Citation.]" (People v. Hester (2000) 22 Cal.4th 290, 294.) In closing argument, the prosecutor advised the jury that both counts were based on the same act: "Count 2, what we're talking about there is when . . . something went in her butt, and that's going to be aggravated sexual assault, to wit, sexual penetration . . . . [¶] In regards to Count 3, again, we're talking about when something went in her butt, but this time it is sexual penetration of a child ten and under. So the language in Counts 2 and 3 is a little different, but it is talking about the same incident."
The prosecutor had it backward — count 3 charged aggravated sexual assault on a child by sexual penetration, whereas count 2 charged sexual penetration of a child ten and under. This very slip of the tongue corroborates the fact that both counts were based on the same act.
The trial court therefore was required to stay execution of the sentence on the count with the shorter potential term of imprisonment. (Pen. Code, § 654, subd. (a).) As both counts carried the same punishment — 15 years to life (compare Pen. Code, § 269, subd. (b) with Pen. Code, § 288.7, subd. (b)) — we will leave it up to the trial court on remand to decide which to stay.
X
RIGHT TO A JURY TRIAL ON THE AMOUNT OF THE RESTITUTION FINE
Defendant contends that the trial court violated his right to trial by jury by setting the amount of the restitution fine.
Preliminarily, the People respond that defense counsel forfeited this issue by failing to raise it below. However, because a claim of this nature implicates the right to trial by jury, it has been held that it "may not be forfeited absent an express waiver by the defendant." (People v. Baughman (2008) 166 Cal.App.4th 1316, 1322; accord, People v. French (2008) 43 Cal.4th 36, 46-47.) There was no such express waiver here. Accordingly, we turn to the merits.
"Other than a prior conviction . . . , 'any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' [Citations.]" (Cunningham v. California (2007) 549 U.S. 270, 282.) "[T]he relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts 'which the law makes essential to the punishment,' [citation], and the judge exceeds his proper authority." (Blakely v. Washington (2004) 542 U.S. 296, 303-304.)
These principles apply to the amount of a criminal fine. (Southern Union Co. v. United States (2012) 567 U.S. 343, 349-350.) "Criminal fines, like . . . other forms of punishment, are penalties inflicted by the sovereign for the commission of offenses." (Id. at p. 349.) "[R]equiring juries to find beyond a reasonable doubt facts that determine [a] fine's maximum amount is necessary to . . . the 'preservation of the jury's historic role as a bulwark between the State and the accused at the trial for an alleged offense.' [Citation.]" (Id. at p. 350.)
A restitution fine is a creature of Penal Code section 1202.4. That section, as relevant here, provides:
"(b) In every case where a person is convicted of a crime, the 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. [¶] . . .
"(c) The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b). . . .
"(d) In setting the amount of the fine . . . in excess of the minimum fine . . . , 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. . . . A defendant shall bear the burden of demonstrating his or her inability to pay."
From 2007 through 2011, when defendant's crimes were committed, the minimum restitution fine was $200 and the maximum was $10,000. (Compare Stats. 2011, ch. 45, § 1, p. 1830 with Stats. 2005, ch. 240, § 10.5, p. 2516.)
"Restitution fines are punishment. [Citation.]" (People v. Guillen (2013) 218 Cal.App.4th 975, 1000; see also People v. Hanson (2000) 23 Cal.4th 355, 361-363 [restitution fines are punishment for purposes of double jeopardy]; People v. Walker (1991) 54 Cal.3d 1013, 1024 [restitution fines are punishment for purposes of plea bargaining], overruled on other grounds in People v. Villalobos (2012) 54 Cal.4th 177, 183; People v. Carlson (2011) 200 Cal.App.4th 695, 710 [restitution fines are punishment for purposes of multiple punishment under Pen. Code, § 654]; People v. Kunitz (2004) 122 Cal.App.4th 652, 656 [restitution fines are punishment for purposes of proportionality].)
Nevertheless, People v. Kramis (2012) 209 Cal.App.4th 346 rejected an argument identical to the one that defendant is making here. It explained: "[A]bsent compelling and extraordinary circumstances, the trial court was required to impose a restitution fine in an amount between $200 and $10,000. The $10,000 . . . restitution fine imposed in the present case was within that statutory range. The trial court did not make any factual findings that increased the potential fine beyond what the jury's verdict — the fact of the conviction — allowed." (Id. at pp. 351-352.) "'[N]othing in [the common law and constitutional history] suggests that it is impermissible for judges to exercise discretion — taking into consideration various factors relating both to the offense and offender — in imposing a judgment within the range prescribed by statute.' [Citations.]" (Id. at p. 351.)
Defendant relies on Penal Code section 1202.4, subdivision (c), which provides that "[i]nability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine." He argues that this necessarily implies that the trial court must make a finding of ability to pay before it can order a fine greater than $200. But not so. This provision prohibits a trial court from considering inability to pay, except in ordering a fine greater than the minimum. In other words, it allows the trial court to consider inability to pay in ordering a fine greater than the minimum, but it does not require the trial court to do so. In a suitable case, the trial court can set the amount of a restitution fine over $200 — even at $10,000 — even if it finds that the defendant does not have the ability to pay. This is constitutional, as long as the defendant cannot be imprisoned for failure to pay. (See People v. Sandoval (1989) 206 Cal.App.3d 1544, 1549-1550; People v. Long (1985) 164 Cal.App.3d 820, 826-828.)
We therefore conclude that defendant was not entitled to a jury trial on the amount of the restitution fine.
XI
UNAUTHORIZED SENTENCE ON COUNTS 12-14
The People contend that the trial court erred by sentencing defendant to six years on three counts of oral copulation or sexual penetration of a child aged 10 or younger (counts 12-14), because the statutorily prescribed sentence is 15 years to life. (Pen. Code, § 288.7, subd. (b).)
Defendant does not dispute the error. However, he asserts that: "[I]n correcting any error . . . , the lower court may not impose those terms consecutively or in any other manner increase the aggregate sentence imposed."
We disagree. "The prohibition against double jeopardy, California Constitution, article I, section 15, generally prohibits the court from imposing a greater sentence on remand following an appeal. [Citation.] . . . [But] our Supreme Court [has] set out an exception to this general rule as follows: 'The rule is otherwise when a trial court pronounces an unauthorized sentence. Such a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.'" (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311; see generally People v. Serrato, supra, 9 Cal.3d at p. 764.)
"[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354.) Here, the six-year sentences imposed on counts 12-14 could not be imposed under any circumstances. Thus, the trial court may increase defendant's punishment on these counts on remand.
XII
DISPOSITION
The judgment with respect to the conviction is affirmed. The judgment with respect to the sentence is reversed and the matter is remanded for resentencing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. CUNNISON
Retired judge of the Riverside Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.