Opinion
E071162
04-07-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO VILLASENOR, Defendant and Appellant.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Daniel Rogers, Adrianne S. Denault, and Christopher P. Beesley, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV17004550) OPINION APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Daniel Rogers, Adrianne S. Denault, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, Roberto Villasenor, was charged by information with 12 counts of committing a lewd act upon a child under the age of 14, tried by a jury, and convicted of seven of the 12 counts. (Counts 1-7; Pen. Code, § 288, subd. (a).) As to count 7, the multiple victim allegation set forth in section 667.61, subdivisions (b) and (e), was found true. The sentencing court sentenced defendant to an aggregate prison term of 105 years to life, composed of seven consecutive 15-year-to-life terms.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant argues the sentencing court erroneously believed that it was mandatory to sentence him to consecutive terms for each of the counts, and that remand is necessary to allow the trial court to exercise its discretion to impose the terms consecutively or concurrently as it sees fit. We affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
Defendant's crimes had two victims, Jane Doe 1 and Jane Doe 2. Jane Doe 1 is defendant's biological daughter. When Jane Doe 1 was 11, defendant approached her and told her he wanted to talk to her about the possibility she would soon be interested in having a boyfriend and that this boyfriend would want to kiss and touch her. Defendant then kissed her with an open mouth and touched her breasts. After that, he undressed her and himself, got on top of her, put his penis between her legs, and moved it until he ejaculated. Similar incidents recurred a little less than once a week on the weekends until Jane Doe 1 began working at 15. After that, incidents happened about six or seven times a year until Jane Doe 1 left home at 17. This activity eventually escalated to defendant touching her vagina with his hands and mouth. All of the incidents except one occurred in defendant and Jane Doe 1's home while Jane Doe 1's mother was at work.
Jane Doe 2 is defendant's niece. She lived with defendant for three years beginning when she was 12. Shortly after moving in, defendant asked her to come to his room and told her he was going to teach her about sex. He touched her breasts and vagina and digitally penetrated her. He then used his penis to vaginally penetrate her. Defendant vaginally penetrated her again about three days later, and also put his penis in her mouth. These incidents occurred while Jane Doe 2's aunt was working. During another incident, defendant took Jane Doe 2 with him in his truck and anally penetrated her. Defendant vaginally penetrated Jane Doe 2 more than 10 times in total, and anally penetrated her three to four times. The abuse stopped when Jane Doe 2 moved back to Mexico to get away from defendant.
At trial, the People also presented testimony from defendant's oldest daughter and two additional nieces. Defendant's daughter stated she was three to five years of age when she awoke to defendant digitally penetrating her. Defendant's younger niece testified that when she was eight, he touched her vagina with his hand and vaginally penetrated her with his penis. He repeated this behavior approximately 10 times, stopping when the niece was around 11. Defendant's older niece testified that she was 14 when defendant touched her breasts and vaginally penetrated her with his penis. Defendant abused her three or four more times by touching her vagina and breasts, vaginally penetrating her, forcing her to perform oral sex, and performing oral sex on her.
When questioned by police, defendant admitted to much of the abuse and even wrote a letter of apology to Jane Doe 1.
The San Bernardino District Attorney charged defendant with 12 counts of committing a lewd act upon a child under the age of 14. Counts 1-6 concerned lewd acts perpetrated between January 1997 and January 2000 against Jane Doe 1. Counts 7-12 concerned lewd acts perpetrated between August 1999 and August 2001 against Jane Doe 2. The People also alleged that defendant committed the counts against multiple victims within the meaning of section 667.61, subdivisions (b) and (e).
A jury convicted defendant on counts 1-7, and found the multiple victims allegation true as to count 7. The jury deadlocked as to counts 8 through 12, a mistrial was declared as to those counts, and the jury was discharged. Counts 8 through 12 were eventually dismissed.
The sentencing court imposed a 15-year-to-life sentence for each of the seven counts, to be served consecutively, for an aggregate indeterminate term of 105 years to life.
Defendant timely appealed.
III. DISCUSSION
Defendant argues that the trial court failed to properly exercise its discretion to sentence defendant because it erroneously believed it had no discretion to order that two or more of the 15-year-to-life terms be served concurrently. Defendant requests that we remand this case to the sentencing court to allow it to exercise this discretion. We disagree with defendant's contentions. A. Defendant Has Forfeited His Right to Challenge the Sentence
First, we address whether defendant forfeited his right to challenge the sentence by failing to object at the trial court level. Generally speaking, we are limited to deciding issues that the appellant has preserved for appeal. "In order to encourage prompt detection and correction of error, and to reduce the number of unnecessary appellate claims, reviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim." (People v. Scott (1994) 9 Cal.4th 331, 351.) Indeed, permitting contemporaneous objections to a court's sentencing reasoning is one of the primary purposes for requiring the court to announce such reasoning, as "[i]n the event ambiguities, errors, or omissions appear in the court's reasoning, the parties can seek an immediate clarification or change." (Ibid.) Failure to object to the trial court's imposition of a consecutive term forfeits any challenge to the consecutive term. (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1372, fn. 6.)
Both parties agree that defendant failed to object to the trial court's decision to impose the seven terms consecutively. Accordingly, defendant forfeited his right to challenge his sentence on that basis.
However, anticipating this argument, defendant argues in the alternative that any forfeiture was the result of the ineffective assistance of trial counsel. Therefore, we will address the merits of his argument in order to forestall his derivative ineffective assistance of counsel claim. B. Defendant Fails to Show the Trial Court Erred
"'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation . . . .'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez), quoting People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8 (Belmontes).) Thus, where a court erroneously believes it does not have discretion to render a different sentence, "the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (Gutierrez, at p. 1391, quoting Belmontes, at p. 348, fn. 8.)
"Section 669 grants the trial court broad discretion to impose consecutive sentences when a person is convicted of two or more crimes," and accordingly "[t]he sentencing rules specify several criteria to guide the trial court's determination whether to impose consecutive or concurrent terms." (People v. Shaw (2004) 122 Cal.App.4th 453, 458.)
The one strike alternate sentencing scheme does not abrogate this discretion. This scheme "mandates an indeterminate sentence of 15 or 25 years to life in prison when the jury has convicted the defendant of a specified felony sex crime (§ 667.61 [listing applicable crimes]) and has also found certain factual allegations to be true" (People v. Anderson (2009) 47 Cal.4th 92, 102), including that defendant committed these crimes "against more than one victim," as defined under subdivision (e)(4) of the same section. (§ 667.61, subds. (c), (e)(4).) In addition, subdivision (i) of the same section requires that "[f]or any offense specified in paragraphs (1) to (7), inclusive, of subdivision (c), or in paragraphs (1) to (6), inclusive, of subdivision (n), the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions." (§ 667.61, subd. (i).)
Defendant was convicted of lewd or lascivious acts in violation of section 288, subdivision (a). This crime is listed in paragraph 8 of section 667.61, subdivision (c). Thus, it is not one of the seven crimes listed in section 667.61, subdivision (c), paragraphs (1) to (7), which require imposition of a consecutive sentence. Accordingly, "although the statutory language of section 667.61, subdivision (b), mandates the imposition of 15 years to life for each count involving separate occasions and separate victims, section 667.61 does not mandate that those terms must be served consecutively." (People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262.) To the extent the trial court believed it lacked discretion to impose any of the sentences concurrently, this was in error.
However, "absent a showing to the contrary, the trial court is presumed to have known and followed the applicable law and to have properly exercised its discretion." (People v. Bradford (2010) 187 Cal.App.4th 1345, 1355.) To rebut this presumption, defendant points primarily to a colloquy that occurred five months before sentencing and three months before trial in which the trial court stated, "each count is a mandatory consecutive," and the People erroneously confirmed this. It is undisputed that this misconception was never corrected on the record, and that neither the parties nor the court discussed concurrent sentencing as a possibility at the sentencing hearing.
However, while this is evidence that the court was under a mistaken impression prior to trial, it does not necessarily follow that the court was under the same mistaken impression while sentencing defendant five months later, and there is no evidence to suggest otherwise. The record does not indicate that the parties or the court still labored under this mistaken understanding at the time of sentencing, as both the probation officer's report and the People's sentencing brief contain no relevant errors in the statement of the law on this point. Indeed, the probation officer's report explicitly included the text of California Rules of Court, rule 4.425 in its sentencing considerations, which sets out the standard for determining whether to impose consecutive or concurrent sentences and the report recommends consecutive sentencing. The People's sentencing brief also notes that the People are requesting consecutive sentencing, implying that concurrent sentencing was an option. The People's sentencing brief specifically states "[t]he Court has discretion to sentence the defendant to the 105-years-to-life." The trial court indicated that it had read and considered both of these reports. Absent evidence that the trial court erroneously believed that it lacked discretion to impose the concurrent terms on counts 1 through 7, the trial court is presumed to have properly exercised its discretion. C. Any Alleged Error by the Trial Court Was Not Prejudicial
Even assuming the trial court was still under this mistaken understanding at the time of sentencing, remand is not necessary if "the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (Gutierrez, supra, 58 Cal.4th at p. 1391, quoting Belmontes, supra, 34 Cal.3d at p. 348, fn. 8.)
The record here indicates that the trial court would have reached the same conclusion regardless of its actual knowledge of its discretion. The trial court went on at length, on the record, regarding its assessment that defendant's crimes were some of the most heinous the court had presided over in 24 years on the bench. The court did not mince words, stating that it had "never seen anything worse than the defendant's conduct," and that on "a scale of 1 to 10, he is a 12 . . . in terms of [his] sexual misconduct." The court also acknowledged that it "heard from the victims in this matter and their desire that he spend the rest of his life in prison," and that "obviously they have a basis for that feeling because of atrocities that he did to them both physically and emotionally." The court discussed at length the peculiar vulnerability of defendant's victims, his power over them as a father and uncle, his abuse of that power, the sophistication of his attacks, the calculation he demonstrated in limiting his more severe attacks to his nieces, his total lack of remorse, and the trial court's belief that he represented a continuing threat to the public's and his family's safety. In sum, there is little doubt that the trial court considered defendant to have exhibited behavior worthy of the maximum possible punishment allowed under the law. It is therefore clear from the record that even if the court was mistaken about its discretion, its decision would not have changed had it been corrected.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. CODRINGTON
J.