Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA280045, Barbara R. Johnson, Judge.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Michael R. Johnsen, and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Oscar Rodriguez was convicted of multiple sexual offenses against a child. On appeal, he contends that the admission of evidence under Evidence Code section 1108 deprived him of a fair trial, due process, and equal protection and that his sentence is unconstitutional under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Rodriguez was charged with sexual offenses against a niece and two of his daughters. With respect to his niece, Janet A., Rodriguez was charged with three counts of committing lewd or lascivious acts on a minor under the age of 14 years (Pen. Code, § 288, subd. (a)), and of continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a)). He was charged with one count of committing lewd or lascivious acts on a minor under the age of 14 years on his daughter, S.R., and with two counts of rape (Pen. Code, § 261, subd. (a)(2)) of his daughter J.A. It was alleged as to all counts that Rodriguez committed the offenses against more than one victim within the meaning of Penal Code section 1203.066, subdivision (a)(7), and that as to all counts except the continuous sexual abuse count, Rodriguez committed an offense specified in Penal Code section 667.61, subdivision (c) against more than one victim.
At trial, Janet A., S.R., and J.A. testified as to sexual offenses by Rodriguez. Pursuant to Evidence Code section 1108 and over Rodriguez’s objections under Evidence Code section 352, the trial court permitted another niece and another daughter of Rodriguez to testify as to sexual offenses Rodriguez had committed against them. Also admitted at trial were various post-arrest statements by Rodriguez in which he admitted engaging in various degrees of sexual conduct with each of the testifying witnesses.
Rodriguez was found guilty of the four offenses against Janet A. and not guilty of one count of rape; the jury hung on the other rape count and the final lewd acts count. The trial court dismissed the counts on which the jury was unable to reach a verdict and imposed a total sentence of 28 years in state prison. The court selected the upper term for the first lewd acts count (eight years) and for the continuous sexual abuse conviction (16 years), “based on the fact that the crime was committed against a single victim, but on separate occasions. [¶] Furthermore, that the crime involved acts [ ] disclosing a high degree of cruelty, viciousness and callousness pursuant to [California Rules of Court,] rule 4.421, and California Rules of Court, same victim, separate occasions, referring to rule 4.426. Furthermore, for high term, the victim was particularly vulnerable pursuant to [California Rules of Court,] rule 4.421.” The court imposed one-third the midterm for the remaining two lewd acts charges, two years each. All sentences were designated consecutive.
Rodriguez appeals.
DISCUSSION
Rodriguez’s argument against permitting the use of evidence of other sexual offenses in a sexual offense case contains neither a single word identifying the specific evidence he claims should not have been introduced against him nor any discussion of the law as it applies to the facts and evidence in this case. This lack of particularized argument alone would permit us to reject Rodriguez’s contentions. (See, e.g., Agricultural Labor Relations Bd. v. Tex-Cal Land Management, Inc. (1985) 165 Cal.App.3d 429, 441 [matter waived on appeal where there is no “particularized argument regarding the admissibility of the evidence in question”]; Brown v. World Church (1969) 272 Cal.App.2d 684, 691 [appellants are obligated to refer the court to the specific places in the record where error occurred and to point out how they were prejudiced by the error asserted].) We nonetheless consider the merits of his arguments.
Evidence Code section 1108 permits the introduction in a sex offense case of propensity evidence related to the commission of another sex offense. It provides, in relevant part: “(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”
Rodriguez acknowledges that in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), the California Supreme Court rejected a due process challenge to Evidence Code section 1108. He contends, however, that the California Supreme Court’s holding in Falsetta must be reevaluated in light of Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769, which held that the trial court erred in giving a jury instruction that did not limit the jury to a permissible inference based on other crimes evidence, but rather invited the jury to draw the additional inference of criminal propensity. (Garceau v. Woodford, supra, at pp. 775-776, reversed on another ground in Woodford v. Garceau (2003) 538 U.S. 202.) Appellant asserts that under the reasoning of Garceau v. Woodford, evidence of other crimes admitted to infer criminal propensity violates the due process clause.
Garceau v. Woodford is neither binding (People v. Avena (1996) 13 Cal.4th 394, 430) nor apposite. It did not discuss the admissibility of prior sex offenses in a sex offense case, but instead concerned the introduction of evidence, pursuant to Evidence Code section 1101, that the defendant had previously been convicted of murder and that he manufactured illegal drugs. (Garceau v. Woodford, supra, 275 F.3d at p. 773.) The California Supreme Court had held that this admission of prior crimes evidence to show propensity to commit murder violated California law, but the error was harmless. The Ninth Circuit disagreed with the finding that the error was harmless, not on the underlying inadmissibility of the other crimes evidence. Therefore, Garceau v. Woodward does not at all suggest that the California Supreme Court’s conclusion in Falsetta that Evidence Code section 1108 is constitutional should be revisited.
Rodriguez contends that the two safeguards relied upon by the court in Falsetta, supra, 21 Cal.4th at pages 914 through 920—the weighing process of Evidence Code section 352 and the availability of limiting instructions for the jury—are not adequate to protect criminal defendants, thus requiring that Falsetta be reconsidered. If Falsetta is to be reconsidered, the California Supreme Court is the proper forum. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Rodriguez also argues that, because propensity evidence is admitted only in sex cases, Evidence Code section 1108 violates the equal protection clause in that it discriminates on an irrational basis, as the recidivism rate for sex offenders is lower than that of other types of offenders. This argument was rejected in People v. Fitch (1997) 55 Cal.App.4th 172, at pages 184 through 185, in which the court held, “The Legislature determined that the nature of sex offenses, both their seriousness and their secretive commission which results in trials that are primarily credibility contests, justified the admission of relevant evidence of a defendant’s commission of other sex offenses. This reasoning provides a rational basis for the law. Defendant’s arguments as to the recidivism rate of sex offenders are unavailing. In order to adopt a constitutionally sound statute, the Legislature need not extend it to all cases to which it might apply. The Legislature is free to address a problem one step at a time or even to apply the remedy to one area and neglect others.” The Supreme Court cited this discussion approvingly in Falsetta, supra, 21 Cal.4th at pages 917 through 918. We agree with the rationale of Fitch and reject Rodriguez’s equal protection argument.
II. Imposition of the Upper Term
Rodriguez claims that the trial court could not constitutionally sentence him to the upper term on the two counts for which it selected the upper term because none of the facts relied on by the trial court to do so were found true by the jury. The Attorney General argues that there was no error because the trial court relied on “the aggravating circumstance that the acts were committed against a single victim on multiple occasions,” which was “inherent in the jury’s finding . . . .”
While the jury’s verdict unquestionably demonstrates that offenses were committed against the same victim on multiple occasions—Rodriguez was convicted of three separate sexual offenses against Janet A. distinct from the continuous sexual abuse count (see Pen. Code, § 288.5, subd. (c))—this is not an aggravating factor recognized under California law. The fact of a single victim and multiple occasions of crime is not listed as an aggravating factor in California Rules of Court, rule 4.421, and we are not aware of any authority for using this fact as an aggravating factor for purposes of selecting the appropriate term from the sentencing triad. While we are aware that the aggravating factors listed in California Rules of Court, Rule 4.421 are nonexclusive (Cal. Rules of Court, rule 4.408(a)), here, the California Rules of Court expressly provide trial courts with a different mechanism for imposing a sentence that takes into account the fact that the crimes were committed against the same victim on multiple occasions: California Rules of Court, rule 4.426 authorizes the trial court to impose full, separate, and consecutive sentences when multiple offenses are committed against the same victim on separate occasions, but it does not authorize the trial court to use this fact as a basis for imposing an upper term sentence.
The Attorney General offers no authority to support its contention that the fact that the crimes were committed against the same victim on multiple occasions was a proper aggravating factor, merely citing to People v. Calhoun (2007) 40 Cal.4th 398, 408, in which the California Supreme Court concluded that the fact of multiple victims could properly be used by the trial court as an aggravator. In Calhoun, the Supreme Court noted that the fact of multiple victims had once been listed as an aggravator in the California Rules of Court but had been deleted, and that the argument was not made on appeal that the excision meant that the factor could not properly be relied upon by the trial court. (Id. at pp. 405-406.) Calhoun does not afford a basis for the establishment of a new aggravating factor, same victim and multiple occasions, where none has previously been recognized and where the California Rules of Court already afford another avenue for taking this fact into consideration at sentencing.
Moreover, even if we were to consider the fact of multiple occasions and a single victim to be a proper aggravating factor, there would be a problem of dual use here: this factor was used as the basis for the two upper term sentences and also as the basis for imposing a full consecutive term on count 4, the continuous sexual abuse charge. Rule 4.425(b) of the California Rules of Court provides that a fact used to impose the upper term may not be considered in deciding whether to impose consecutive sentences, and, referring to this rule, the Advisory Committee comment to California Rules of Court, rule 4.426 states, “The court may not use the same fact to impose a sentence under section 667.6[, subdivision] (c) that was used to impose an upper term.” Rodriguez did not object on the basis of a dual use of facts in the trial court, but we note the error nonetheless to highlight this additional problem in using the multiple occasion/same victim factor as a justification for the imposition of the upper term on count 4.
The other factors relied upon by the trial court to impose the upper term sentences were the facts that the crimes involved acts disclosing a high degree of cruelty, viciousness, or callousness, and that the victim was particularly vulnerable. (Cal. Rules of Court, rules 4.421(a)(1) and 4.421(a)(3).) In order for the trial court to find these aggravating factors present, the court necessarily engaged in additional fact finding beyond the facts found true by the jury. This judicial fact finding failed constitutional scrutiny in Cunningham. “If the jury’s verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied.” (Cunningham, supra, 127 S.Ct. at p. 869.) In the absence of pertinent admissions by Rodriguez, these aggravating factors could only have been relied on had they been submitted to a jury for determination under the beyond a reasonable doubt standard of proof. As these factors were neither admitted nor found true by a jury beyond a reasonable doubt, they could not, consistent with the Sixth Amendment, increase the statutory maximum punishment available for Rodriguez’s crimes beyond the presumptive midterm sentence.
We conclude that there was constitutional error here, but that it is harmless under the analysis set forth by the California Supreme Court in People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). Under Sandoval, we determine whether “the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury.” (Id. at p. 839.) While it frequently is “difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court” (id. at p. 840), this is not one of those difficult instances. Here, the jury unquestionably would have found that the victim, Janet A., was particularly vulnerable. Janet lived with Rodriguez, who is her uncle, and with many other family members in a two-bedroom apartment. The abuse began when she was nine or 10 years old.
To Janet, the worst of Rodriguez’s conduct took place in the bathroom on weekdays. Rodriguez would stay in the bathroom for hours in the evening, sitting and drinking. Rodriguez would be asked by others in the apartment to leave the bathroom, but he would refuse to leave. Eventually, Janet would need to use the bathroom. She testified, “I would knock on the door, and I would ask him[,] can I please go. And he would say, ‘Just come in. You can pee here. I don’t mind.’” After Janet used the bathroom, he would pick her up, put her against the sink, and commit different sexual offenses against her. Janet testified, “When I had to go to the bathroom, it was always—I was always afraid. Sometimes I would hold it in just not to have to go in there because he was there.” Sometimes, however, Janet reported, she needed to use the bathroom so badly that she would have to go in when he was there. She felt she had no choice.
On the weekends, Rodriguez would touch her when he was left by Janet’s mother and aunt to take care of her; he was the sole adult in charge of Janet, her siblings, and her cousins. Rodriguez would stay in the kitchen, drinking. Janet testified that “whenever I would go by the kitchen to grab something to eat or something to drink, he would be there drinking.” He would then take her to his room and molest her. Rodriguez would also lure her into his room under the guise of needing to ask her questions about her cousins. She was afraid to come to him, but she was afraid not to: “I was afraid that if I didn’t go, he would come and do something to me,” such as hit her. Rodriguez had slapped her in the past.
Many incidents, Janet reported, occurred when Janet’s mother and aunt would make trips to Mexico, leaving her with Rodriguez. During those times, Rodriguez would come to her bed at night and touch her all over her body.
Every time he molested Janet, Rodriguez threatened her, telling her that if she told anyone what was happening that her mother, father, and aunt would go to jail. He also threatened that the children would be taken away. The abuse continued until Janet was 15 years old, when she moved out of the home where Rodriguez lived.
Based on this evidence, we conclude that no reasonable jury would conclude that Janet was not a particularly vulnerable victim. Janet had no way to avoid Rodriguez. She lived in the same apartment with him. She was often left in his care. She needed to use the bathroom. She needed food and drink. As she put it, “I had to go [inside the apartment]. I had to go to the bathroom; go eat.” Rodriguez knew that too, and he lay in wait for her. When Janet tried to take care of these fundamental necessities of life, she was accosted and abused. Rodriguez’s threats prevented her from taking the one route she realistically had to make the conduct stop: she was afraid to disclose this conduct because she feared losing her parents and family. Any reasonable jury would find, based on this evidence, that Janet was a particularly vulnerable victim, and that Rodriguez capitalized on her vulnerability to commit sexual offense after sexual offense against her.
We are well aware that a fact that is an element of a crime may not be used to impose the upper term (Cal. Rules of Court, rule 4.420(d)), and that a victim’s minority is not a proper basis for a particular vulnerability finding when the victim’s minority is an element of the offense. (People v. Flores (1981) 115 Cal.App.3d 924, 927; People v. Fernandez (1990) 226 Cal.App.3d 669, 680 [victim cannot be vulnerable simply because she was a child where the defendant was convicted of lewd and lascivious conduct upon a child under the age of 14]; People v. Ginese (1981) 121 Cal.App.3d 468, 476-477 [while a victim of an age range crime may be particularly vulnerable for reasons other than his or her age, the mere fact of minority cannot support a finding of particular vulnerability; it is “merely referring to punishable elements of the crime already incorporated into the child molesting statute”].) A victim’s age, however, while not alone a proper basis for a finding of vulnerability when age is an element of the offense, may nonetheless be considered in the vulnerability analysis along with other pertinent factors. (People v. Alvarado (2001) 87 Cal.App.4th 178, 195 [vulnerability finding may not be based exclusively on victim being 81 years old when a sentence enhancement was imposed because the victim was over 65 years old; finding may, however, properly be based on victim’s age in combination with other factors].) Our conclusion that had the question been submitted to the jury, it unquestionably would have concluded that Janet A. was particularly vulnerable, is based not on her age but on the fact that she was placed in circumstances in which she was “‘defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant’s criminal act’” to “‘a special or unusual degree, to an extent greater than in other cases.’” (People v. Loudermilk (1987) 195 Cal.App.3d 996, 1007.) The trial court’s error in failing to submit this sentencing factor to the jury was, therefore, harmless beyond a reasonable doubt. (Sandoval, supra, 41 Cal.4th at p. 839.)
In People v. Black (2007) 41 Cal.4th 799, 813 (Black II), the California Supreme Court ruled that “if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely [v. Washington (2004) 542 U.S. 296], the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” Therefore, the Supreme Court held, it does not violate the Sixth Amendment for a trial judge to engage in additional fact finding with respect to other aggravating circumstances once a single constitutionally compliant aggravating circumstance has been identified. (Black II, at p. 816 [“imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions”].) Under this principle, the trial court’s reliance on additional aggravating factors not submitted to the jury was also harmless error.
DISPOSITION
The judgment is affirmed.
I concur: WOODS, J., PERLUSS, P. J., Concurring.
I fully concur in the decision to affirm the judgment in this case. I agree the trial court properly admitted evidence of Oscar Rodriguez’s commission of other sexual offenses under Evidence Code section 1108. I also agree the court’s sentence, including imposition of the upper terms for committing a lewd act on a child under the age of 14 years (Pen. Code, § 288, subd. (a)) (count 1) and continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a)) (count 4), should be affirmed and, if the court erred in not submitting the sentencing factor of the victim’s particular vulnerability to the jury, any such error was harmless beyond a reasonable doubt. However, although it does not affect the ultimate disposition of the appeal, I respectfully disagree with my colleagues’ conclusion the commission of violent sex crimes against the same victim on multiple occasions is not appropriately considered as a circumstance in aggravation for purposes of imposing an upper term sentence.
The listing of circumstances in aggravation in California Rules of Court, rule 4.421, including the identification of factors relating to the crime, is not exclusive: “The enumeration in these rules of some criteria for the making of discretionary sentencing decisions does not prohibit the application of additional criteria reasonably related to the decision being made.” (Cal. Rules of Court, rule 4.408(a).) In People v. Calhoun (2007) 40 Cal.4th 398, 408, the Supreme Court, citing rule 4.408(a), approved the trial court’s reliance on the existence of multiple victims to impose an upper term sentence even though only one victim was named in each count -- a sentencing factor not included in rule 4.421. I see no reason in the language of the applicable statutes or rules of court, let alone in the public policy underlying the trial court’s authority to impose upper term sentences, for distinguishing between a defendant who has injured multiple victims and one who abused the same victim on multiple occasions. Indeed, rule 4.426(a) (multiple violent sex crimes) allows the trial court to impose full consecutive sentences for violent sex crimes if there were different victims or multiple, separate occasions with the same victim. If the former is properly used to impose either consecutive sentences or the upper term (Calhoun, at p. 408 [“[t]here is no persuasive reason why the trial court should not be allowed to consider the fact of multiple victims as a basis for imposing either the upper term or a consecutive sentence”]), why not the latter? My colleagues provide no persuasive answer to that question.
References to rule or rules are to the California Rules of Court.
As the majority notes, the trial court both imposed full consecutive terms on counts 1 and 4 and selected the upper terms on each count based on Rodriguez’s commission of violent sex crimes on multiple occasions with the same victim -- an impermissible dual use of that factor. However, by failing to object and thus depriving the trial court of the opportunity to correct its sentencing error, Rodriguez has forfeited the argument on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353 [forfeiture/waiver doctrine applies to “claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are . . . cases in which the court purportedly erred because it double-counted a particular sentencing factor”]; People v. de Soto (1997) 54 Cal.App.4th 1, 7-8 [claim of improper dual use of facts waived by failure to impose specific objection at sentencing]; People v. Erdelen (1996) 46 Cal.App.4th 86, 91 [improper dual use of facts to impose upper term waived].)
To be sure, as the majority explains, prior to 1991 the multiple-victim factor had been identified in what is now rule 4.421 as a factor in aggravation. (See People v. Calhoun, supra, 40 Cal.4th at p. 405.) However, the defendant in Calhoun did not argue the deletion of that factor precluded the trial court’s reliance on it (id. at p. 406), and the Supreme Court did not ascribe any significance to it. (Ibid.) But, if anything, that the multiple-victim factor had once been listed as a possible circumstance in aggravation and then deleted makes the case for permitting reliance on the same-victim-separate-occasions factor more, not less, powerful. In sum, I would affirm imposition of the upper term sentences in this case because the jury necessarily found Rodriguez had committed violent sex crimes against the same victim on multiple occasions, and the trial court properly relied on that circumstance in sentencing Rodriguez.
Quoting the advisory committee comment, the Calhoun Court explained the multiple-victim factor had been deleted “‘to avoid confusion; cases in which that possible circumstance in aggravation was relied on were frequently reversed on appeal because there was only a single victim in a particular count.’” (People v. Calhoun, supra, 40 Cal.4th at pp. 405-406.)