Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF062589. Richard A. Erwood, Judge.
Valerie G. Wass, 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, Barry Carlton, Rhonda Cartwright, and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, Acting P.J.
Defendant Nelson Alberto Rocha was convicted of three counts of aggravated sexual assault on a minor under the age of 14. He contends that his conviction must be reversed because the court failed to give instructions on two lesser included offenses.
We will affirm the judgment but will order correction of the sentencing minutes and the abstract of judgment.
PROCEDURAL HISTORY
Defendant was charged with three counts of aggravated sexual assault on a child under the age of 14 years and seven or more years younger than the defendant, consisting of sexual penetration by force, violence, duress, menace, fear and threat. (Pen. Code, § 269, subd. (a)(5); counts 1, 2 & 3.) He was also charged with possession of an illegal weapon, a short-barreled shotgun. (§ 12020, subd. (a)(1); count 4.)
All further statutory citations refer to the Penal Code.
A jury convicted defendant on all four counts. The court imposed three consecutive terms of 15 years to life on counts 1, 2 and 3, and a consecutive determinate term of two years on count 4.
Section 269, subdivision (b) provides for a mandatory term of 15 years to life. Section 269, subdivision (c) provides for mandatory consecutive sentences for each offense which involves the same victim on a separate occasion.
Defendant filed a timely notice of appeal.
FACTS
Because the issues raised on appeal do not require any fact-based analysis, a cursory review of the facts will suffice.
Briefly stated, defendant molested his 11-year-old stepdaughter, Jane Doe, on three occasions in late 2007 and early 2008. Defendant was 31 years old at the time. On each occasion, defendant came into Jane Doe’s bedroom and forcibly inserted his finger into her vagina. Jane Doe was afraid of defendant before these incidents occurred because he yelled a lot, had hit and slapped Jane Doe’s mother many times and had threatened to kill her mother once. He owned guns, which he would sometimes shoot outside the house, and he physically abused Jane Doe’s younger half brother, most notably kicking the child in the abdomen when he was four years old.
Jane Doe did not report the molestation at first because she was afraid defendant would hurt her if she did. However, after the third incident, she told her mother. Her mother left the house with Jane Doe and her brother, telling defendant they were going to go get something to eat. She called 911. Sheriff’s deputies met them at an agreed location. Jane Doe’s mother told the deputies what had happened. They then went to the sheriff’s station, where they met with an investigator.
During a pretext call monitored by the police, Jane Doe told defendant that she had told someone that he had touched her “down there” and that the person she told was then telling her mother. Defendant told her to lie about what had happened and say that a boy was wanting to touch her. Jane Doe responded, “But I don’t like it.” Defendant assured her that he would never do that to her again and said he would take care of her “like a queen” and “like gold.”
Jane Doe’s mother told the investigator that defendant had guns in the house. She gave them permission to search the house and gave them the keys. During the search, deputies found a sawed-off shotgun and ammunition.
A physical examination of Jane Doe revealed no injury. The nurse who examined her testified that this was consistent with the type of molestation Jane Doe reported and neither confirmed nor refuted Jane Doe’s complaint of having been penetrated digitally.
LEGAL ANALYSIS
LESSER INCLUDED OFFENSE INSTRUCTIONS WERE NOT REQUIRED
A trial court has a sua sponte duty to instruct on lesser included offenses if there is substantial evidence which would support a determination that the defendant is guilty only of the lesser offense. (People v. Parson (2008) 44 Cal.4th 332, 349.) An uncharged offense is included in a greater charged offense if either (1) the greater offense, as defined by statute, cannot be committed without also committing the lesser (the elements test), or (2) the language of the accusatory pleading encompasses all the elements of the lesser offense (the accusatory pleading test). (Ibid.) Under the elements test, a court determines whether, as a matter of law, the statutory definition of the greater offense necessarily includes the lesser offense. (Ibid.)
Defendant contends that the court should have instructed on nonforcible sexual penetration on a person under 18 in violation of section 289, subdivision (h) and on nonforcible lewd acts on a minor under 14 in violation of section 288, subdivision (a), as lesser included offenses within the charged offense, aggravated sexual assault on a minor in violation of section 269, subdivision (a)(5) and section 289, subdivision (a). We disagree.
Section 289, subdivision (h) is not a lesser included offense.
Aggravated sexual assault of a child, in violation of section 269, subdivision (a)(5), includes sexual penetration of a child under the age of 14 by force, fear, violence, duress or menace if the child is at least seven years younger than the perpetrator. For purposes of section 269, sexual penetration is defined in section 289, subdivisions (a) and (k)(1).
Section 269 provides, in pertinent part:
Section 289, subdivision (h) provides: “Except as provided in Section 288, any person who participates in an act of sexual penetration with another person who is under 18 years of age shall be punished by imprisonment in the state prison or in the county jail for a period of not more than one year.”
Defendant contends that section 289, subdivision (h) is a lesser included offense of aggravated sexual assault on a child “because the charged offense requires the defendant to have committed an act of forcible sexual penetration on a person under the age of 14, who was at least seven years younger than the defendant, ” and that a person committing that offense would “necessarily have participated in an act of sexual penetration with a person under the age of 18.” The Attorney General responds that because section 288, subdivision (a) expressly applies to children under the age of 14, the phrase “Except as provided in Section 288” demonstrates that the Legislature intended section 289, subdivision (h) to apply only to minors who are between the ages of 14 and 18 (sic).
Because section 289, subdivision (h) applies to minors “under the age of 18, ” the upper age limit to which it applies is 17.
In reply, defendant contends that if section 289, subdivision (h) were intended to apply only to victims older than 14, it would not state that it applies to victims under the age of 18, which necessarily includes those who are under 14. Defendant also asserts that the phrase “Except as provided in Section 288” “clearly refers” to the intent element of section 288, which requires that the perpetrator acted with the intent of “arousing, appealing to, or gratifying the lust, passions or sexual desires” of the perpetrator or the child. (§ 288, subd. (a).) He does not elaborate on this contention.
In construing a statute, our purpose is to determine the intent of the Legislature and effectuate the purpose of the law. To do so, we look first to the words of the statute because they are the most reliable indicator of legislative intent. (People v. Brookfield (2009) 47 Cal.4th 583, 592.) We construe the words in context, keeping in mind the nature and the purpose of the statute. (Ibid.) If the language is unambiguous, we do not resort to any extrinsic source to determine the Legislature’s intent. (People v. Traylor (2009) 46 Cal.4th 1205, 1212.)
Here, the phrase which introduces section 289, subdivision (h), “Except as provided in Section 288, ” is unambiguous: It means that section 289, subdivision (h) applies only in situations in which section 288 does not apply. In other words, it applies to sexual penetration involving a minor aged 14 to 17. Accordingly, because it is undisputed that Jane Doe was 11 years old at the time of the offenses, an instruction on section 289, subdivision (h) as a lesser included offense was not supported by the evidence and was not required. (People v. Parson, supra, 44 Cal.4th at p. 349.)
It is arguable that section 289, subdivision (h) also applies to sexual penetration involving a minor under 14 if the perpetrator lacked the intent required by section 288, subdivision (a), i.e., sexual arousal or gratification, but intended, instead, to commit an act of abuse. (§ 289, subd. (k)(1).) We discuss the distinction between the intent elements of the two statutes below. We need not decide whether that is the case, however, because defendant has not cited to any evidence in the record which would support a jury finding that he acted for the purpose of abusing Jane Doe rather than for sexual arousal or gratification, nor to any evidence that would support a finding that the acts were nonforcible. It is the appellant’s burden to demonstrate both error and prejudice. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610; Paterno v. State of California (1999) 74 Cal.App.4th 68, 105.) “An appellate court is not required to examine undeveloped claims, nor to make arguments for parties.” (Paterno v. State of California, supra, at p. 106.) Moreover, the appellant must provide citations to specific pages in the record which support the appellant’s contentions. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 [Fourth Dist., Div. Two].) Defendant has not met his burden in this instance.
Section 288, subdivision (a) is not a lesser included offense.
Section 288, subdivision (a) provides: “[A]ny person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, 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 and shall be punished by imprisonment in the state prison for three, six, or eight years.” Thus, section 288 requires the specific intent to arouse, appeal to or gratify the lusts, passions or sexual desire of the perpetrator or the child. (People v. Warner (2006) 39 Cal.4th 548, 556.) The intent element of section 289 is different, however: For purposes of that statute, sexual penetration is defined as “the act of causing the penetration, however slight, of the genital or anal opening of any person... for the purpose of sexual arousal, gratification, or abuse.” (§ 289, subd. (k)(1), italics added.) Consequently, because section 269, subdivision (a)(5) can be violated without the intent to cause sexual arousal or gratification, section 288, subdivision (a) is not a lesser included offense. (See People v. Pearson (1986) 42 Cal.3d 351, 356 [sodomy, in violation of section 286, is not a lesser included offense of section 288, subdivision (a) because, as a general intent crime, it can be committed “for wholly sadistic purposes, ” rather than sexual arousal or gratification, “or by an individual who lacks the capacity” to form the specific intent of sexual arousal or sexual gratification required by section 288].)
Defendant contends that there is no distinction between the intents required by sections 288 and 289. He relies on section 11165.1, which provides, in pertinent part, “As used in this article, ‘sexual abuse’ means sexual assault or sexual exploitation as defined by the following: [¶] (a) ‘Sexual assault’ means conduct in violation of one or more of the following sections: Section 261 (rape), subdivision (d) of Section 261.5 (statutory rape), 264.1 (rape in concert), 285 (incest), 286 (sodomy), subdivision (a) or (b), or paragraph (1) of subdivision (c) of Section 288 (lewd or lascivious acts upon a child), 288a (oral copulation), 289 (sexual penetration), or 647.6 (child molestation).” Because section 11165.1 defines “sexual abuse” to include a violation of section 288, he contends, a violation of section 288, subdivision (a) necessarily entails the specific intent to abuse the victim.
We disagree. Section 11165.1 is part of the Child Abuse and Neglect Reporting Act. (§ 11164 et seq.) The purpose of that act is to protect children from a broad spectrum of abuse (§ 11164, subd. (b)), and in furtherance of that goal, the Legislature has defined sexual abuse in broad terms. The definition of sexual abuse used in that context does not alter the specific intent the Legislature has required for purposes of section 288, i.e., “arousing, appealing to, or gratifying the lust, passions, or sexual desires” of the perpetrator or the child. (See People v. Pearson, supra, 42 Cal.3d at p. 356; People v. Warner, supra, 39 Cal.4th at p. 556.) Moreover, it is well established that “abuse, ” as used in section 289, is sexual only in the sense that it involves the intent to abuse the victim by penetrating sexual or private areas of the body; unlike sexual arousal or gratification, abuse does not require a sexual motivation. (People v. White (1986) 179 Cal.App.3d 193, 204-206.) Rather, “[I]t is the nature of the act which renders the abuse ‘sexual’ and not the motivations of the perpetrator.” (Id. at pp. 205-206; accord, People v. Whitham (1995) 38 Cal.App.4th 1282, 1292-1294 [construing “sexual abuse” for purposes of section 288.5].)
Finally, defendant contends that because subdivisions of section 289 other than subdivision (h) involve victims under the age of 14, subdivision (h) should be construed as a lesser included offense of section 288, subdivision (a). Defendant does not elaborate on his reasoning, however, and we are unpersuaded because, as stated above, a violation of section 289 does not necessarily involve the specific intent required by section 288, subdivision (a). Consequently, sexual penetration in violation of section 289 does not necessarily constitute a lewd or lascivious act as defined in section 288, subdivision (a).
We note that subdivisions (a)(1)(B), (a)(1)(C) of section 289, to which defendant refers, were not in effect at the time of the assaults on Jane Doe; rather, that version of section 289 became effective on September 9, 2010. (Stats. 2010, ch. 219, § 9.) Subdivisions (i) and (j), which defendant also cites, are unchanged from the version of section 289 which was in effect at the time of the assaults on Jane Doe. (Former § 289, subds. (i), (j); Stats. 2010, ch. 219, § 9.)
THE ABSTRACT OF JUDGMENT AND SENTENCING MINUTES MUST BE CORRECTED
Defendant contends that the abstract of judgment and the sentencing minute order fail to correctly reflect the sentence pronounced by the court in several respects and asks that we use our inherent authority to correct clerical errors to make the minutes and the abstract conform to the court’s oral pronouncement of judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471.)
Defendant correctly points out that the abstract of judgment for the determinate term, while correctly stating that defendant was convicted of a violation of section 12020, subdivision (a)(1), incorrectly describes the offense as “Mfg/Cause Mfg IM.” Although section 12020, subdivision (a)(1) does penalize both manufacturing or causing to be manufactured specified illegal weapons as well as possession of specified illegal weapons, defendant was convicted of possession of such a weapon and not of manufacturing it. The abstract of judgment should be corrected to accurately reflect the specific violation of section 12020, subdivision (a)(1).
Defendant also contends that the abstract and sentencing minutes need to be corrected with respect to the indeterminate terms imposed on counts 1, 2 and 3. He states that during the sentencing hearing, the court sentenced him to consecutive indeterminate terms of 15 years to life on counts 1, 2 and 3 and a determinate term of two years on count 4. The court then stated that the total term was “47 years to life.” The minute order states that the court imposed a “total Indeterminate sentence of 47 years to LIFE.” Further, he notes that the abstract of judgment “correctly indicates that a 2 year term was imposed on Count 4, but incorrectly reflects that 45 years had been imposed on attached pages, as well as an additional indeterminate term on form CR-292 [the abstract of judgment form reflecting the indeterminate term.]” He asks that we correct these clerical errors. The Attorney General does not object.
We begin by noting that the court itself erred in summarizing its sentence as “47 years to life.” The determinate two-year term on count 4 is not part of the indeterminate term. Rather, it constitutes a separate term which is consecutive to the indeterminate term. (§ 669; see also Cal. Rules of Court, rule. 4.451(a); see also, generally, People v. Felix (2000) 22 Cal.4th 651, 657-659.) We note, too, that although courts frequently refer to the minimum determinate portions of consecutive indeterminate terms in the aggregate—for example, to three terms of 15 years to life as an aggregate sentence of “45 years to life”—this is incorrect; there is no statutory or other authority for doing so. Rather, the sentence is three consecutive terms of 15 years to life. Nevertheless, the minutes and the abstract of judgment must correctly reflect the sentence as imposed and not as summarized by the trial court. The sentence imposed was—correctly—consecutive terms of 15 years to life on counts 1, 2 and 3, and a consecutive determinate term of two years. We will direct the trial court to correct the sentencing minutes accordingly.
In addition to being corrected to accurately identify the offense as “possession of illegal weapon, ” as discussed above, the abstract of judgment for the determinate term (form CR-290) must be further corrected as follows: At the bottom of the form, box 6, entitled “Total time on attached pages” shall be left blank. Box 7 (“Additional indeterminate term (see CR-292)”) shall be checked. Box 8 shall state the total time as two years. The abstract of judgment for the indeterminate term (form CR-292) shall be corrected as follows: Box 6a (“15 years to life on counts __”) shall be checked and counts “1, 2 and 3” inserted in the blank. Box 6c, which is currently checked, shall be left blank. Box 7 (“Additional determinate term (see CR-290)”) shall be checked.
DISPOSITION
The judgment is affirmed.
The clerk of the superior court is directed to issue a nunc pro tunc minute order accurately setting forth the sentence, i.e., consecutive terms of 15 years to life on counts 1, 2 and 3, plus a consecutive determinate term of two years. The clerk of the superior court is further directed to issue a corrected abstract of judgment as stated in detail above. The corrected minute order and the corrected abstract of judgment shall be forwarded to the parties and to the Department of Corrections and Rehabilitation within 30 days after the finality of this decision.
We concur: Richli, J., Miller, J.
The information alleged that the minor was 10 or more years younger than defendant. However, because section 269, subdivision (a) provides that the minor must be seven or more years younger than the defendant, the trial court modified the instruction given to the jury according to proof that defendant was more than seven years older than the victim.
“(a) Any person who commits any of the following acts upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child: [¶]... [¶] (5) Sexual penetration, in violation of subdivision (a) of Section 289.”
Section 289, subdivision (a), as in effect in 2007 and 2008, provided:
“(a)(1) Any person who commits an act of sexual penetration when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years.
“(2) Any person who commits an act of sexual penetration when the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, shall be punished by imprisonment in the state prison for three, six, or eight years.”
Section 289, subdivision (k)(1) provides, in pertinent part:
“(k) As used in this section:
“(1) ‘Sexual penetration’ is the act of causing the penetration, however slight, of the genital or anal opening of any person... for the purpose of sexual arousal, gratification, or abuse by any foreign object....”
(Note: Section 289 was amended effective September 9, 2010. (Stats. 2010, ch. 219, § 9.) Former subdivision (a)(1) was renumbered subdivision (a)(1)(A) but is otherwise unchanged. Subdivision (a)(2) remained unchanged. Subdivision (k) remained unchanged. All references herein to section 289 are to the version in effect in 2007 and 2008, unless otherwise indicated.)