Opinion
E071145
09-19-2019
THE PEOPLE, Plaintiff and Respondent, v. JUAN RUBIO, Defendant and Appellant.
Jennifer Peabody, 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, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV17002520) OPINION APPEAL from the Superior Court of San Bernardino County. Daniel W. DeTienna, Judge. Modified and affirmed with directions. Jennifer Peabody, 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, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
In 2017, defendant and appellant, Juan Enrique Rubio, was charged under Penal Code section 288.7, a law passed in 2006, for crimes he committed throughout 2003 and 2004. The parties agree that his convictions violate the ex post facto clauses of the state and federal constitutions, which prohibit "[a]ny law that applies to events occurring before its enactment and which disadvantages the offender either by altering the definition of criminal conduct or increasing the punishment for the crime." (People v. Rojas (2015) 237 Cal.App.4th 1298, 1306.) The parties further agree that defendant's section 288.7 convictions should be modified to lesser included offenses. We find the parties are correct in both respects and therefore modify the judgment. We remand to the trial court for resentencing and otherwise affirm the judgment.
Unless otherwise noted, all statutory references are to the Penal Code.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On several occasions between March 1, 2003, to March 1, 2004, defendant sexually abused Jane Doe, who was at all times under 10 years old. In 2018, a jury convicted defendant of: (1) continuous sexual abuse of a child under 14 years of age (§ 288.5, subd. (a); count 1); (2) sexual penetration with a child 10 years old or younger (§ 288.7, subd. (b); count 2); (3) oral copulation with a child 10 years old or younger (§ 288.7, subd. (b); counts 3 and 4); and (4) commission of a lewd act on a child under 14 years of age (§ 288, subd. (a); count 5). The trial court sentenced defendant to 18 years for counts 1 and 5, plus three consecutive terms of 15 years to life (i.e., 45 years to life) for counts 2 through 4. Defendant timely appealed.
III.
DISCUSSION
Defendant's sole contention on appeal is that his convictions for counts 2 through 4 violate the ex post facto clauses of the California and federal Constitutions because section 288.7 was enacted in 2006, years after he had committed the underlying offenses. The People concede. We find the parties are correct. We modify the judgment, remand for resentencing, and otherwise affirm.
The federal Constitution forbids the states from passing ex post facto laws. (U.S. Const., art. I, § 10.) The California Constitution likewise prohibits ex post facto laws in California. (Cal. Const., art. I, § 9.) These constitutional prohibitions are interpreted in the same manner. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 294-297.) Both provisions prohibit "'"any statute [1] which punishes as a crime an act previously committed, which was innocent when done; [2] which makes more burdensome the punishment for a crime, after its commission, or [3] which deprives one charged with crime of any defense available according to law at the time when the act was committed. [Citations.]"'" (Id. at p. 294.)
"[A]ny application of section 288.7 to conduct that occurred prior to September 20, 2006, is a violation of the state and federal ex post facto clauses." (People v. Rojas, supra, 237 Cal.App.4th at p. 1306.) Here, Defendant committed all of the acts underlying his section 288.7 convictions in 2003 and 2004. His section 288.7 convictions therefore violate the ex post facto prohibitions of the California and federal constitution. (Ibid.)
To remedy these constitutional violations, the parties agree that defendant's section 288.7 convictions should be modified to the lesser included offenses. We agree. (See People v. Eagle (2010) 246 Cal.App.4th 275, 279 ["When a conviction is contrary to law, but the evidence shows that a defendant is guilty of a lesser included offense, a court can reduce the conviction to the lesser included offense and affirm the judgment as modified."].)
"Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]" (People v. Steeles (1998) 19 Cal.4th 108, 117-118.) In other words, "[a]n offense is lesser included to a greater offense if the greater offense cannot be committed without also committing the lesser offense. [Citations.]" (People v. Steele (2000) 83 Cal.App.4th 212, 217.)
Count 2 alleged, and the jury found, that defendant violated section 288.7, subdivision (b), by engaging in sexual penetration with Jane Doe, who was younger than 10 years old at the time. Section 289, subdivision (h), which was in effect in 2003 and remains in effect today, provides, in relevant part, that "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 a county jail for a period of not more than one year."
Because defendant violated section 288.7, subdivision (b), by engaging in sexual penetration of Jane Doe, who was under 10 years old at all relevant times, it follows that defendant violated section 289, subdivision (h), which prohibits engaging in sexual penetration of any person under the age of 18. Thus, the parties correctly agree that violation of section 289, subdivision (h), is a lesser included offense of count 2 for violation of section 288.7, subdivision (b).
Counts 3 and 4 alleged, and the jury found, that defendant violated section 288.7, subdivision (b), by engaging in oral copulation with Jane Doe, who was younger than 10 years old at the time. Section 288a, subdivision (b)(1), which was in effect in 2003 and 2004, provides that "any person who participates in an act of oral copulation with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year."
Section 288a, subdivision (b)(1), was renumbered in 2019 as section 287, subdivision (b)(1). (See Stats. 2002, ch. 302 (S.B. 1421), § 4, amended by Stats. 2018, ch. 423 (S.B. 1494), § 49, eff. Jan. 1, 2019.)
Because defendant violated section 288.7, subdivision (b), by engaging in oral copulation with Jane Doe, who was under 10 years old at all relevant times, it follows that defendant violated section 288a, subdivision (b)(1), which prohibits engaging in oral copulation with any person under the age of 18. Thus, the parties correctly agree that violation of section 288a, subdivision (b)(1), is a lesser included offense of counts 3 and 4 for violation of section 288.7, subdivision (b).
Accordingly, we will modify the judgment as follows: count 2 is reduced to the lesser included offense of sexual penetration of a minor (§ 289, subd. (h)), and counts 3 and 4 are reduced to the lesser included offense of oral copulation of a minor (§ 288a, subd. (b)(1)). Consistent with the parties' request, we remand this case for resentencing. (See People v. Navarro (2007) 40 Cal.4th 668, 681 [holding that remand "for a full resentencing as to all counts is appropriate" when modifying a verdict to a conviction of a lesser included offense].)
IV.
DISPOSITION
We modify the judgment as follows: (1) defendant's conviction on count 2 is reduced to a violation of section 289, subdivision (h), and (2) defendant's convictions on counts 3 and 4 are reduced to a violation of section 288a, subdivision (b)(1). The matter is remanded to the trial court for resentencing consistent with these modifications. The trial court is directed to amend the abstract of judgment accordingly and transmit an amended abstract of judgment to the appropriate correctional authorities. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.