Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Francis J. Hourigan III, Judge, Los Angeles County Super. Ct. No. YA060900.
Opinion following remand by Supreme Court
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
MALLANO, Acting P. J.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte and Lawrence M. Daniels, Supervising Deputy Attorneys General, Dawn S. Mortazavi and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.
Manuel Topete appeals from the judgment entered following a jury trial in which he was convicted of continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a)) from July 1990 to July 1996 (the information further alleged that the statute of limitations had been tolled) and a postverdict plea of guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). Defendant contends that the trial court should have instructed, sua sponte, on the statute of limitations or alternatively that such instructions should have been requested by trial counsel, and that an upper term sentence was erroneously imposed.
In a prior opinion in this case, we rejected these same arguments and affirmed the judgment. (People v. Manuel T. (Nov. 20, 2006) B188514 [nonpub. opn.].) Defendant then filed a petition for review in the California Supreme Court, arguing among other things that our disposition of the sentencing issue, which relied on People v. Black (2006) 35 Cal.4th 1238 (Black I), was rendered erroneous by Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856] (Cunningham). The petition was granted. On September 12, 2007, the cause was transferred back to us with directions to vacate our prior decision and reconsider the cause in light of People v. Black (2007) 41 Cal.4th 799 (Black II). We do so here and in this opinion remand for resentencing on the continuous sexual abuse offense. In all other respects, we affirm.
BACKGROUND
As of the time of trial, defendant and his wife (wife) had six children, ranging from 5 to 19 years of age. One female child (child), who was then 19-years-old, was born in July 1986. Child had been placed with defendant and wife as a foster child about July 1990, and they adopted her four years later. Soon after child’s arrival in the home, defendant began to sexually abuse her, primarily by committing acts of sodomy. The sexual abuse continued for several years.
At one point during the 1995–1996 school year, child told a friend about being molested. Child testified that not long afterward her fifth grade teacher (teacher) asked child if her father had been touching her. She said he had not. Wife testified that she attended a meeting with defendant, child, teacher, and a school representative. Child was asked if defendant had been touching her and responded in the negative. Teacher told child that she had to apologize in front of the class for making up a story.
In May 2004, wife overheard an argument between child and defendant in which child asked defendant if he remembered what he used to do to her and accused him of being a child molester. Soon afterward, in response to wife’s questioning, defendant admitted, “‘Yes, I touched [child].’” Wife also heard defendant say to child, “‘I’m sorry for what I did. I guess you’re going to be happy, because now your mom is going to leave me.’”
Wife soon moved out of the home with the children and filed for divorce. She did not immediately notify the police. Child ultimately filed a complaint in December 2004. In investigating child’s allegations, a detective arranged to tape record a telephone conversation between child and defendant. During the conversation, defendant admitted that he had had sex with child and apologized for his conduct.
In defense, defendant testified that he never had any sexual contact with child. He asserted that child had a history of lying and blaming others and that wife’s testimony was untruthful. During the telephone conversation with child, defendant lied about having molested child because wife had advised beforehand “just to play along with [child], then we can get on with our life when she goes to college.” Teacher testified that he did not recall either questioning child about improper touching or meeting with her family on the subject.
DISCUSSION
1. Statute of Limitations
Defendant contends that the trial court prejudicially erred in failing to instruct, sua sponte, and alternatively that trial counsel rendered ineffective assistance in failing to request instructions, on the tolling of the statute of limitations under former Penal Code section 803, subdivision (g) (further section references are to the Penal Code). We disagree.
“In statutory amendments to section 803 in 2005, subdivisions (f) and (g) were rewritten as subdivision (f) and former subdivision (h) was designated as subdivision (g). [Citation.]” (People v. Linder (2006) 139 Cal.App.4th 75, 78, fn. 2.)
As noted, child was born in July 1986, defendant was convicted of having molested her between July 1990 and July 1996, and child first reported defendant to the authorities in December 2004. Other than the allegation in the information of tolling under former section 803, subdivision (g), the record contains no reference to the statute of limitations.
The Attorney General argues that defendant has forfeited the statute of limitations issue on appeal because he failed to raise it in the trial court. As stated in People v. Williams (1999) 21 Cal.4th 335, 344, where, as here, the information contains tolling allegations, a defendant may lose the ability to litigate this factual issue. Defendant counters that Williams is inapplicable because Williams specifically left to “future courts” “the rules to apply when the defendant does assert the statute of limitations at trial.” (Id. at p. 345, fn. 3.) Defendant continues that he should be considered to have raised the statute of limitations issue because tolling requires corroboration of the victim (former section 803, subdivision (g)(2)(C)), and his trial defense included challenges to the corroborating evidence.
Defendant has presented no authority to support his position that, by raising a defense on the merits to the evidence presented against him, he should be credited with a sub silentio challenge to a statute of limitations allegation. To the contrary, “[a]s a general rule, the trial court need only instruct on the statute of limitations when it is placed at issue by the defense as a factual matter in the trial. [Citations.]” (People v. Smith (2002) 98 Cal.App.4th 1182, 1192.) Because defendant did not raise a statute of limitations issue at trial, his argument of sua sponte instructional duty must fail. We therefore proceed to defendant’s alternative claim of ineffective counsel.
“To establish constitutionally ineffective assistance of counsel under either the state or federal constitutional right to counsel, appellant must demonstrate (1) that his attorney’s performance fell below an objective level of reasonableness, i.e., that counsel’s performance was not within an objective level of reasonableness and thus did not meet the standard to be expected of a reasonably competent attorney, and (2) that he suffered prejudice as a result of that failure. . . .
“In addition, however, when the reason for counsel’s action or inaction is apparent on the record, the court will determine whether that reason reflects reasonably competent performance by an attorney acting as a conscientious and diligent advocate. If no explanation appears, an ineffective counsel claim will be rejected unless the attorney was asked for and did not offer an explanation, or there can be no satisfactory explanation. [Citation.] In other cases the appellant is left to his remedy on habeas corpus where evidence outside the record may shed light on the reason for the attorney’s action.” (People v. Coddington (2000) 23 Cal.4th 529, 651–652, overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
Defendant’s ineffective counsel claim fails under both prongs of this test. As noted by defendant, the only aspect of tolling requirement that could possibly be in issue was the existence of independent corroboration of child’s accusations. But had a statute of limitations defense been raised, the jury would be instructed to find corroboration by a standard less than reasonable doubt. (See People v. Linder, supra, 139 Cal.App.4th at p. 85 [“the prosecution’s burden of proof on the statute of limitations issue is a preponderance of the evidence and as to the independent corroboration requirement, clear and convincing evidence”].) A reasonably competent attorney trying this case could well elect to forego a statute of limitations defense because the resulting instructions would not only draw the jury’s attention to the strong corroborating evidence of the pretext telephone call, and do so under a standard of proof less than required for conviction.
Nor did defendant suffer prejudice based on the lack of statute of limitations instructions. “The failure to instruct on the need for corroboration is harmless where the record contains substantial corroborative evidence. [Citation.]” (People v. Marquez (1993) 16 Cal.App.4th 115, 122, disapproved on another point in People v. Cuevas (1995) 12 Cal.4th 252, 275, fn. 5.) The pretext telephone call afforded such strong corroboration here, defeating any claim of prejudice.
In addition, it is inconceivable defendant would have been convicted had the jury doubted that the telephone call provided corroboration. Given the manner in which the case was presented, the jury was required to determine that either child or defendant was lying. If the jury had entertained a reasonable doubt that defendant was just playing along during the telephone conversation as he claimed, he would have surely been acquitted. That he was not cannot be blamed on the lack of instruction regarding the statute of limitations. (See People v. Pilster (2006) 138 Cal.App.4th 1395, 1406 [“The verdict demonstrates the jury disbelieved defendant’s entire testimony”].)
2. Sentencing
Defendant was sentenced to the upper term of 16 years for continuous sexual abuse of a child, the trial court citing as factors in aggravation child’s vulnerability, defendant having taken advantage of a position of trust, and defendant’s planning. In relying on these factors, the court prejudicially erred.
“[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial [under Cunningham] 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.” (Black II, supra, 41 Cal.4th at p. 816.) The aggravating circumstances relied upon at sentencing here were not found by the jury, admitted by defendant, or justified based on defendant’s record. Accordingly, imposition of the upper term violated Cunningham.
Prejudice resulting from Cunningham error is reviewable under Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824]. As such, the appellate court “must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.” (Sandoval, supra, 41 Cal.4th at p. 838.) “[I]f a reviewing court concludes, beyond a reasonable doubt, that 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, the Sixth Amendment error properly may be found harmless.” (Id. at p. 839.)
“[T]o the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be 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. The sentencing rules that set forth aggravating circumstances were not drafted with a jury in mind. Rather, they were intended to ‘provid[e] criteria for the consideration of the trial judge.’ ([Pen. Code,] § 1170.3, subd. (a).) It has been recognized that, because the rules provide criteria intended to be applied to a broad spectrum of offenses, they are ‘framed more broadly than’ criminal statutes and necessarily ‘partake of a certain amount of vagueness which would be impermissible if those standards were attempting to define specific criminal offenses.’ [Citation.] Many of the aggravating circumstances described in the rules require an imprecise quantitative or comparative evaluation of the facts. For example, aggravating circumstances set forth in the sentencing rules call for a determination as to whether ‘[t]he victim was particularly vulnerable,’ whether the crime ‘involved a[] . . . taking or damage of great monetary value,’ or whether the ‘quantity of contraband’ involved was ‘large’ [citation].” (Sandoval, supra, 41 Cal.4th at p. 840.)
The crime of continuous sexual abuse was created in 1989 to fill “‘an immediate need for additional statutory protection for the most vulnerable among our children, those of tender years, some of whom are being subjected to continuing sexual abuse by those commonly referred to as “resident child molesters.” These molesters reside with, or have recurring access to, a child and repeatedly molest the child over a prolonged period of time . . . .’” (People v. Grant (1999) 20 Cal.4th 150, 156.) Thus, by definition, the crime necessarily involves a defendant in a position of trust who takes advantage of a vulnerable victim.
This is not to say that aggravation of sentence for a defendant’s violating a position of trust and the vulnerability of the victim per se implicate the prohibition against dual use of a factor that is also an element of the crime. (See Cal. Rules of Court, rule 4.420(d); People v. Clark (1992) 12 Cal.App.4th 663, 666.) “‘Since continuous sexual abuse can be committed by anyone residing in the same home with the children, whether or not they have special status with the victim, such sentencing factor is not an element of the crime.’ [Citation.]” (People v. Franklin (1994) 25 Cal.App.4th 328, 338.)
But the issue here is not whether a trial court, employing the preponderance-of-the-evidence standard (Cal. Rules of Court, rule 4.420(b)), could validly have imposed an aggravated term. Rather, in order to render harmless the Cunningham error in this case, we must be able to conclude beyond a reasonable doubt that a jury, applying a reasonable doubt standard, unquestionably would have found that defendant violated a position of trust or planned his offenses more than any other resident child molester, or that child here was more vulnerable than children in other situations in which this egregious crime is committed. Given the fundamental constitutional rights that Cunningham sought to vindicate and the potentially severe consequences to defendant of violation of these rights, we are not prepared to predict what a jury might have done in this case.
Based on the foregoing, it is appropriate to reverse the upper term sentence imposed on defendant for the crime of continuous sexual abuse and remand for resentencing. At resentencing, the court should follow the current version of Penal Code section 1170, subdivision (b) (Stats. 2007, ch. 3, § 2), which provides that sentencing terms shall rest within the sound discretion of the trial court. (See Sandoval, supra, 41 Cal.4th at pp. 832, 845–847.)
DISPOSITION
The judgment is reversed with respect to the sentence imposed for continuous sexual abuse of a child and the matter is remanded for resentencing in accordance with this opinion. In all other respects, the judgment is affirmed.
We concur: ROTHSCHILD, J., JACKSON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Former section 803, subdivision (g), which is now set forth in subdivision (f), provided in pertinent part: “(1) Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section 261, 286, 288, 288a, 288.5, or 289, or Section 289.5 . . . .
“(2) This subdivision applies only if all of the following occur:
“(A) The limitation period specified in Section 800, 801, or 801.1, whichever is later, has expired.
“(B) The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual.
“(C) There is independent evidence that corroborates the victim’s allegation. If the victim was 21 years of age or older at the time of the report, the independent evidence shall clearly and convincingly corroborate the victim’s allegation.
“(3) No evidence may be used to corroborate the victim’s allegation that otherwise would be inadmissible during trial. Independent evidence does not include the opinions of mental health professionals.”