Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF126717, J. Thompson Hanks, Judge.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., Stephanie H. Chow and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
OPINION
Gaut, J.
Horacio Vargas (defendant) was convicted of 20 counts of aggravated sexual assault (rape), committed against his stepdaughter when she was under the age of 14, and was sentenced to four consecutive terms of 15 years to life, the remaining terms to run concurrent. He appeals the trial court’s in limine ruling admitting evidence of his propensity to commit sexual offenses (Evid. Code, § 1108), and seeks reversal due to an inadequate record of the in limine proceedings where the discussion of the admission of propensity evidence occurred. We affirm the convictions and reverse the sentence.
BACKGROUND
From the time she was seven, defendant has molested his stepdaughter, Jane Doe. He started out fondling her over her clothes. Defendant threatened that if she told anyone, he would send her back into foster care or the homeless shelter, or hurt her brothers. By the time she was 10, he fondled her under her clothes and made her touch his penis. When she was 11 years old, he made her masturbate him. Beginning when Jane was 13 years old, defendant began to have full sexual intercourse with her. He also sodomized Jane and engaged in oral copulation with her.
Defendant had sex with Jane almost daily in the bedroom shared by defendant and Jane’s mother after the mother went to work. Jane’s older brother noted that when he got up for school, Jane was not in the bedroom shared by the children, but, rather, was in defendant’s bedroom. On one occasion Jane’s brother saw defendant lying on top of Jane in the bed. Starting when Jane was 14 years old, defendant also made Jane watch pornographic movies and made her imitate them. If Jane did not comply, defendant struck her.
Defendant bought Jane presents which made her mother jealous. In October 2005, when Jane was 15 years old, Jane and her mother fought over Jane’s poor school performance and Jane went to stay at the home of her best friend, Esther. At that time, she was afraid she was pregnant and disclosed the molestation to her friend, and eventually to her brother and mother. The police investigated the molestation, and contacted defendant. During an interview with detectives, defendant admitted he had sex with Jane as many as 15, 20 or 25 times from the time Jane was 13 until the time of the interview when she was 15. He also admitted he orally copulated Jane nearly every time he had intercourse with her. At the detectives’ suggestion, defendant wrote letters to Jane and her mother apologizing for molesting Jane.
Defendant was subsequently charged with 20 counts of aggravated sexual assault (rape) of a child under 14 years of age and seven or more years younger than defendant. (Pen. Code, § 269, subd. (a)(1).) Following a trial, a jury returned verdicts of guilty as to all charges. The court imposed four consecutive terms of 15 years to life, and ran the terms for the remaining counts concurrent, for a total period of incarceration of 60 years to life. He appealed.
DISCUSSION
1. There Was No Abuse of Discretion In the Admission of Sexual Offense Propensity Evidence.
Defendant argues the trial court abused its discretion in admitting evidence of other sexual offenses to show defendant’s propensity to commit such offenses. (Evid. Code, § 1108.) He also addresses the admissibility of the uncharged offenses as prior similar acts pursuant to Evidence Code section 1101, subdivision (b), based on the trial court’s settled statement finding the prior acts were admissible under both code sections. However, at trial, the court instructed the jury only to consider the evidence as propensity evidence, pursuant to Evidence Code section 1108, and gave no instructions to the jury to consider the evidence as prior similar acts. Further, the prosecutor’s argument did not refer to prior similar acts or uncharged crimes, limiting his references to defendant’s propensity to commit sexual offenses.
Because the jury was not instructed to consider the evidence of other sexual offenses to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether the defendant did not reasonably believe that the victim consented, there is no possible way the defendant could have been prejudiced by any error in admitting the evidence under Evidence Code section 1101, subdivision (b). We now turn to the question of whether there was error in admitting the evidence to show the defendant’s propensity.
Evidence Code section 1108, subdivision (a), provides that in a criminal action in which the defendant has been accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Evidence Code section 1101, if the evidence is not inadmissible pursuant to Evidence Code section 352. The section allows admission of other sexual offenses unless the trial court determines that the probative value is outweighed by the danger of undue prejudice. (People v. Falsetta (1999) 21 Cal.4th 903, 917.) The charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, subdivision (b); otherwise, Evidence Code section 1108 would serve no purpose. (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41.)
On appeal, the trial court’s decision is reviewed for an abuse of discretion. (People v. Wesson (2006) 138 Cal.App.4th 959, 969.) A trial court abuses its discretion when its ruling “‘falls outside the bounds of reason.’” (Ibid.) There was no abuse of discretion. The propensity evidence here was relevant to establish the basis for the expert’s opinion regarding the reasons Jane did not report the abuse earlier and could not have created any more prejudice than defendant’s own statements admitting some of the most serious acts.
Defendant asserts the evidence should have been excluded because any probative value was outweighed by the potential for prejudice. (Evid. Code, § 352.) We disagree. Defendant acknowledges that he conceded the propensity issues. Indeed, as pointed out above, defendant confessed that he engaged in oral sex with Jane each time he had intercourse with her, up to 25 times by his own admission. His own confession therefore provided evidence of his propensity to commit sexual offenses. The fact Jane added information about lesser offenses committed before and after Jane turned 13 did not result in undue prejudice. We note defendant did not object to the admission of his pretrial statements to police officers during the taped interview in which he admitted to having sexual intercourse with the victim and to engaging in oral sex with her, as well, on each occasion. Nor did he make an in limine motion to redact the statement to omit references to the uncharged offenses.
Finally, we observe that defendant does not dispute that 20 counts of sexual intercourse were committed; he simply challenges whether all of them occurred before Jane turned 14, subjecting him to the harsher penalties of Penal Code section 269, subdivision (a)(1). In this respect, his argument is an attack on Jane’s credibility because she testified the acts occurred when she was 13, and the jury believed her. We cannot reweigh the evidence or pass judgment on Jane’s credibility, as those matters are exclusively within the province of the trier of fact. (People v. Upsher (2007) 155 Cal.App.4th 1311, 1322.) The jury heard defendant’s confession, admitting the offenses but describing only two as having occurred before Jane turned 14, and it heard Jane’s testimony that the offenses occurred when she was 13.
Given the fact defendant admitted the propensity evidence himself during the pretrial statement to police officers, which statement was admitted into evidence without objection, there was neither error nor prejudice in admitting the evidence.
2. Defendant Was Not Prejudiced By the Lack of a Reporter’s Transcript of In Limine Proceedings.
Defendant contends reversal is required because the court reporter did not report the in limine hearing in which the parties discussed the prosecutor’s motion to admit, among several other items, evidence of defendant’s propensity to commit sexual offenses. We disagree.
A defendant in a criminal case is entitled to an appellate record adequate to permit meaningful appellate review. (People v. Seaton (2001) 26 Cal.4th 598, 699.) However, there is no federal requirement that all proceedings be transcribed. (People v. Howard (1992) 1 Cal.4th 1132, 1166.) The loss, destruction, or absence of a portion of the reporter’s notes does not per se require a new trial. (People v. Bills (1995) 38 Cal.App.4th 953, 959.) Failure to report sidebar or chambers conferences does not necessarily require reversal. (People v. Pinholster (1992) 1 Cal.4th 865, 920.) It is defendant’s burden to show that deficiencies in the record are prejudicial. (People v. Young (2005) 34 Cal.4th 1149, 1170.)
The California Rules of Court provide for the preparation of a settled statement when a party learns that any portion of the oral proceedings cannot be transcribed. (Cal. Rules of Court, rule 8.346.) To determine whether a settled statement is adequate, the reviewing court considers the issues raised on appeal and the ability of the parties and the trial court to reconstruct the record. (People v. Bradford (2007) 154 Cal.App.4th 1390, 1418.) Additionally, we consider the ability of the court and counsel to recollect and reconstruct the trial proceedings which may depend upon (1) whether the trial judge took detailed notes; (2) whether the court is able to remember the missing portion of the record; and (3) whether defendant’s counsel is able to effectively participate in reconstructing the record. (People v. Cervantes (2007) 150 Cal.App.4th 1117, 1121.)
Here, the record included the prosecutor’s trial brief, which included the motion to admit the evidence of defendant’s propensity to commit sexual offenses. Defendant made a motion to settle the record on appeal, which was granted, to include the parties’ and the court’s reconstruction of the oral proceeding which was not reported. The settled statement indicates the court ruled the uncharged acts were admissible pursuant to Evidence Code, sections 1101, subdivision (b), and 1108.
At the hearing to settle the record, the parties agreed there had been a brief discussion in chambers, mapping out the schedule, during which the prosecutor had submitted his trial brief. The acts offered as propensity evidence consisted of offenses committed after the victim turned 14, and were thus outside the purview of Penal Code section 269, which applies to victims under the age of 14. Defense counsel indicated what his objections were, and when the parties returned from chambers, they memorialized what had been discussed in chambers.
Defendant’s ability to present his argument that the trial court abused its discretion in admitting the propensity evidence has not been impaired in any way by the lack of a reporter’s transcript of the in limine hearing. The lack of a reporter’s transcript did not deprive defendant of meaningful appellate review of the issue.
3. The Sentence Was Unauthorized.
We requested supplemental briefing to determine if concurrent terms for counts 5 through 20 was unauthorized. Effective November 8, 2006, Penal Code section 269 was amended to add subdivision (c), mandating full-strength consecutive sentences for each offense involving the same victim on separate occasions. However, prior to the amendment, Penal Code section 269 did not include subdivision (c). Under the version in effect at the time of defendant’s crimes, any person who violated the section was subject to punishment by imprisonment for 15 years to life.
Sentencing for convictions under the pre-amendment version of the crime of aggravated sexual assault (rape) of a child under 14 years of age were subject to the sentencing provisions of Penal Code section 667.6, subdivisions (c) and (d), governing sentences for violent sex offenses. (People v. Jimenez (2000) 80 Cal.App.4th 286, 291-292.) Consecutive sentences are mandated for multiple convictions of certain “enumerated sex offenses” if committed against multiple victims, or against the same victim on multiple occasions. (Pen. Code, § 667.6, subd. (d).) The list of enumerated sex offenses includes rape (Pen. Code, § 261, subd. (a)(2)), the offense alleged as the predicate offense in the present case. (Pen. Code, § 667.6, subd. (e)(1), (4).)
In Jimenez, the defendant was convicted of two counts of violating Penal Code section 269 by virtue of his commission of separate acts of sodomy, in violation of Penal Code section 286, on a person under the age of 14. (People v. Jimenez, supra, 80 Cal.App.4that p. 290.) The defendant argued the court erred in imposing consecutive terms of 15 years to life for his convictions pursuant to Penal Code section 667.6, subdivision (d), because Penal Code section 269 was not an “enumerated sex offense,” within Penal Code section 667.6. The reviewing court in Jimenez observed that sodomy is one of the predicate offenses of Penal Code section 269, so one convicted of Penal Code section 269 by virtue of acts of sodomy by force satisfied the factual predicate necessary to apply the sentencing provisions of Penal code section 667.6, subdivision (d). (Jimenez, supra at p. 291.)
The holding of Jimenez requires application of the mandatory sentencing provisions of Penal Code section 667.6, subdivision (d), to convictions for violating Penal Code section 269 where the offense involves the same victim on multiple occasions. We recently rejected an argument that Jimenez was wrongly decided in People v. Figueroa (2008) 162 Cal.App.4th 95, and do so again here. The victim’s testimony of daily rapes establishes the acts were committed on separate occasions, beyond a reasonable doubt. Application of the mandatory consecutive sentencing provisions of Penal Code section 667.6, subdivision (d), was therefore mandatory.
Because the trial court did not impose a mandatory sentence, the sentence is unauthorized. Under such circumstances, we, as a reviewing court, must remand the case for a proper sentence. (People v. Pelayo (1999) 69 Cal.App.4th 115, 122-123.)
DISPOSITION
The convictions are affirmed but the sentence is reversed and remanded for resentencing.
We concur: McKinster, Acting P. J., King, J.