Opinion
A147160 A150605
04-27-2018
THE PEOPLE, Plaintiff and Respondent, v. OMAR LAMONT WILLIAMS, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. MICHAEL KEITH MADISON, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 051422005)
Omar Lamont Williams and Michael Keith Madison (collectively, "appellants") appeal from a judgment sentencing them to prison after a jury convicted them of several counts arising out of a sexual assault. They contend: (1) the judgment must be reversed because the prosecutor used peremptory challenges to excuse six African-American jurors in violation of Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); (2) the trial court erroneously admitted evidence the victim had told a nurse that Williams was a pimp; and (3) their 25-year-to life sentences under the One Strike law for one of the counts must be vacated because the operative pleading did not include a One Strike allegation for that count. Additionally, Madison contends the trial court abused its discretion in continuing the trial date in his case so he could be tried jointly with Williams and another codefendant, and Williams contends the restitution fine he was ordered to pay must be reduced and his case must be remanded for resentencing so the court can consider striking the firearm enhancements attached to two counts. We affirm the convictions but agree the case must be remanded for resentencing.
I. FACTS AND PROCEDURAL HISTORY
In 2012, Jane Doe rented a room from Audrey Sims, Williams's cousin and one of the defendants in this case. Sims loaned Doe $800 before Doe moved out, and there was a dispute about whether Doe had repaid the debt.
Sims is not a party to this appeal.
On the night of May 31, 2014, Doe stopped by Sims's house to see if her friend Alicia was there. Williams and Madison were outside when she arrived. They all went inside the house, where Sims confronted Doe about the money she believed was owed to her. Doe denied the debt and Sims became angry, stating she would get her money "one way or the other." A physical altercation ensued between the two women. Williams got involved and took Doe's phone. He choked her, called her a "bitch," and told her she owed his cousin some money.
Williams and Sims told Doe she needed to figure out a way to make the money back that night. They told her she was going to "get on Redbook," a prostitution website, and they would get clients for her. Doe said she did not want to do that and Williams and Sims told her they didn't care what she wanted. Appellant pulled a gun out from the back of his pants and said, "I'm not stupid. You have a pussy, right?" Appellant pointed the gun in Doe's face and said "he was about that life and that he wasn't afraid to use it."
Madison was inside the room listening to the conversation. He and Williams emptied Doe's purse onto the couch and Williams said they needed pictures of Doe to put on her Redbook page. Williams had Doe unlock her phone to look at the photos on the device, then said they needed more pictures. He and Madison had Doe get in the back seat of her car with Williams driving. Williams told Doe she should not borrow money if she did not intend to pay it back. He said she was "off the hook" that night because they would only take pictures and activate a Redbook account, after which she could leave. Williams said Doe would have to prostitute herself one to three times each day to pay back the money she owed.
Williams pulled up to a gas station and Madison went inside and bought some Swisher Sweet cigars. Williams sent Madison back into the store for condoms. Doe was able to get her phone back under the pretense of looking for an open liquor store, but she did not summon help because she believed Williams and Madison would see what she was doing. They stopped at a liquor store where Madison purchased some alcohol.
Williams drove back to the complex where Sims lived and stopped at a grassy area by the community pool. He and Madison were smoking and drinking. Williams took Doe into the bushes and photographed her with her pants pulled down, saying he would post the pictures on Redbook. Williams then told Doe she had to give both him and Madison oral sex. Doe said "no," but Williams said she had no choice and she owed it to him because he was not going to require her to prostitute herself that night. Doe was afraid because Williams had a gun, and said she would do it to him but not to Madison. Williams said she would do it to both of them.
Doe performed oral sex on appellant while Madison tried to have anal sex with her before putting his penis into her vagina. Doe was crying and the men were laughing. Williams placed his penis inside Doe's vagina and then took off his condom and continued with oral sex until he ejaculated in Doe's mouth. Madison also placed his penis inside Doe's mouth. The incident ended when Doe said she needed to go pick up her son. Appellant looked at Doe and twice asked her, "We're good, right?" Doe, who was afraid, told him they were good. She got into her car and drove to a friend's house, hysterical, and said she had been raped. The friend called the police.
Police officers responded and Doe described the confrontation at Sims's house and the subsequent sexual assault. Doe took the officers to the location where the sex crimes occurred and pointed out the used condoms. She was taken to the emergency room and was examined by the nurse in charge of the county's Sexual Assault Response Team (SART), Anamaree Rea. The genital examination revealed tears to Doe's posterior fourchette, which is the entrance to the vagina. Nurse Rea also observed and documented that Doe had swelling, tenderness and bruising above and below her right eye and cheek.
Officers went to Sims's house, where they contacted Williams, Madison and Sims and located a loaded Glock .40-caliber pistol during a security sweep. Doe later identified the gun as the one Williams had pointed at her. DNA matching Williams was found on a rectal swab taken from Doe during the SART examination and his sperm was found on the jacket she had been wearing and in two of three condoms found at the scene of the assault. DNA matching Madison was found on a vaginal swab taken from Doe during the SART examination and in one of the three condoms.
A third amended information was filed charging Williams as follows: count 1: conspiracy to commit kidnapping for extortion, human trafficking and pandering (Penal Code, §§ 182, subd. (a)(1), 209, subd. (a); 236.1, subd. (b)(2); 266i); count 2: kidnapping for extortion (§ 209, subd. (a)); count 3: human trafficking (§ 236.1, subd. (b)); count 4: forcible rape in concert (Pen. Code, § 264.1); count 5: forcible oral copulation in concert (§ 288a, subd. (d)). Sims was charged as a codefendant in counts 1 through 3, and Madison was charged as a codefendant in counts 2 through 5. The third amended information also alleged that Williams had personally used a firearm within the meaning of section 12022.53, subdivision (b), in the commission of the kidnapping charged in count 2, had personally used a firearm within the meaning of section 12022.5, subdivision (a), in the commission of the human trafficking charged in count 3, and had been armed with a firearm within the meaning of section 12022, subdivision (a)(1), during the commission of the rape in concert and oral copulation in concert charged in counts 4 and 5. Madison was alleged to have been armed with a firearm within the meaning of section 12022, subdivision (a)(1), during the commission of counts 2 through 5, and Sims was alleged to have been armed with a firearm during the commission of counts 2 and 3. Finally, as to the oral copulation charged in count 5, it was alleged under the One Strike law that both Williams and Madison had kidnapped the victim within the meaning of section 667.61, subdivision (d)(2), and that the movement substantially increased the risk of harm to her above that level of risk inherent in the underlying offense.
Further statutory references are to the Penal Code unless otherwise indicated.
Williams, Madison and Sims were jointly tried and presented evidence attempting to show that they did not intend to make Doe prostitute herself and that the sex Doe had with Williams and Madison was consensual. Sims testified that she did not tell Doe she would open a Redbook account for her or tell her that she needed to prostitute herself in order to pay back the loan. She did say, "Do what you do best," but said it just to be "mean."
All three defendants were convicted as charged. Separate sentencing hearings were held, and Williams and Madison were each sentenced to a One Strike term of 25 years to life for rape in concert plus a consecutive year for the attached firearm enhancement, with the sentences on the remaining counts run concurrently or stayed. Williams and Madison each filed a notice of appeal, and those appeals have been consolidated.
Williams received the following sentence: (1) 25 years to life for the rape in concert conviction under count 4, plus one year for the firearm enhancement pursuant to section 12022, subdivision (a)(1); (2) 25 years to life for the oral copulation in concert conviction under count 5, plus one year for the firearm enhancement pursuant to section 12022, subdivision (a)(1), concurrent to the sentence in count 4; (3) life with the possibility of parole for the kidnapping conviction under count 2, plus a 10-year firearm enhancement pursuant to section 12022.53, subdivision (b), concurrent to the sentence in count 4; (4) life with the possibility of parole for the conspiracy conviction under count 1, that sentence to be stayed pursuant to section 654; and (5) the lower term of eight years for the human trafficking conviction under count 3, plus the lower term of three years for the firearm enhancement under section 12022.5, subdivision (a), with "the 11 years that is imposed" being "concurrently stayed under Penal Code section 654."
Madison's sentence consisted of: (1) 25 years to life for the rape in concert conviction under count 4, plus one year for the firearm enhancement pursuant to section 12022, subdivision (a)(1); (2) 25 years to life for the oral copulation in concert conviction under count 5, plus one year for the firearm enhancement pursuant to section 12022, subdivision (a)(1), stayed pursuant to section 654; (3) life with the possibility of parole for the kidnapping conviction plus one year for the firearm enhancement under count 2, stayed pursuant to section 654; (4) the lower term of eight years for the human trafficking conviction plus one year for the firearm enhancement under count 3, to run concurrently with the other counts.
II. DISCUSSION
A. Denial of Batson/Wheeler Motions
Appellants contend the judgment must be reversed because the prosecutor used his peremptory challenges to exclude six African-American jurors based on their race, in violation of the principles set forth in Batson, supra, 476 U.S. 79 and Wheeler, supra, 22 Cal.3d 258. We disagree.
1. General Legal Principles
As discussed in Batson, supra, 476 U.S. 79 and Wheeler, supra, 22 Cal.3d 258, both the state and federal Constitutions bar peremptory challenges that are based on a juror's race, ethnicity, or membership in a similar cognizable class. (People v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix).) A defendant who suspects a juror has been challenged for a discriminatory reason must bring a motion under Batson/Wheeler, at which point the trial court will analyze the claim using a familiar three-prong test. First, it must determine whether the defendant has made a prima facie showing the prosecutor exercised a peremptory challenge based on race, ethnicity or some other impermissible ground. Second, if the showing is made, the burden then shifts to the prosecutor to demonstrate the challenge was exercised for a neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination by evaluating the proffered reasons and determining whether they are legitimate or pretextual. (Lenix, at p. 612; see People v. Manibusan (2013) 58 Cal.4th 40, 77.)
In this case, the trial court made no express finding regarding a prima facie case of discrimination as to any of the jurors at issue, but allowed the prosecutor to explain his reasons for excusing the jurors and resolved the Batson/Wheeler motions by referring to those reasons. We therefore review this as a third-prong case, and review for substantial evidence the trial court's determination that the challenges were not discriminatory. (People v. McDermott (2002) 28 Cal.4th 946, 971 [whether opponent of a peremptory challenge has proved purposeful discrimination is reviewed for substantial evidence]; (People v. Williams (2013) 58 Cal.4th 197, 280-281 [when court ruled on ultimate question of intentional discrimination, question of whether defendant established a prima facie case of discrimination is moot].) This standard requires us to give "great deference to the trial court's ability to distinguish bona fide reasons from sham excuses," at least so long as the court made "a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered." (People v. Burgener (2003) 29 Cal.4th 833, 864.)
A prosecutor's reason for excusing a juror does not need to be well-founded so long as it is not discriminatory. (Purkett v. Elem (1995) 514 U.S. 765, 768.) " '[E]valuation of the prosecutor's state of mind based on demeanor and credibility lies "peculiarly within a trial judge's province." ' " (People v. Stevens (2007) 41 Cal.4th 182, 198.) It is presumed an advocate's use of peremptory challenges was constitutional. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1009 (Lewis).) The ultimate issue is "whether it was more likely than not that the challenge was improperly motivated." (Johnson v. California (2005) 545 U.S. 162, 170.)
We turn now to the six prospective jurors as to which appellants lodged Batson/Wheeler objections. As to each, the trial court ruled the prosecution had established plausible and credible nondiscriminatory reasons for the challenges and denied the Batson/Wheeler motion. The court also noted that while not dispositive, the jury panel included two African-American jurors, and would have included three if defense counsel had not excused a female African-American juror whom the court characterized as being "a very conservative person." (See Lenix, supra, 44 Cal.4th at p. 629; People v. Dunn (1995) 40 Cal.App.4th 1039, 1054 [prosecutor's acceptance of a panel of jurors that included a member of a cognizable group was relevant when assessing discriminatory intent].)
2. Juror J.D.
Juror J.D. was a 53-year-old African-American woman with a four-year college degree who worked as an HMO insurance consultant and had previously served on a criminal jury in Sacramento. In response to the question in the written jury questionnaire "Would you expect a defendant to testify?," Juror J.D. wrote "no" and explained, "They could be nervous and don't explain themselves the best they otherwise could if not in court." When asked if she would automatically believe a testifying defendant, she responded, "I base my decision on their testimony. I consider both sides and the evidence that is brought forth. I am a fair person and I don't prejudge someone I don't know, as I wouldn't want someone to believe I am guilty of anything just because I allowed someone else to represent me." When asked during voir dire about her previous juror service, she said she thought it was on a felony case and described the charges as "the man was accused of stabbing the girl or his girlfriend"
The prosecutor explained that Juror J.D. had first come to his attention when he reviewed her written questionnaire and was unaware of her race or ethnicity. Her response to the effect that a defendant might not want to testify because he was nervous was of concern because at the beginning of voir dire, jurors generally think they would want to testify if they were accused of such a serious offense, and even if they did not have that perspective, they wouldn't state "affirmative reasons sympathetic to the defendant why they would not take the witness stand." Juror J.D.'s comment that she wouldn't prejudge whether the defendants were guilty because she "wouldn't want someone to believe I'm guilty of anything" was problematic because she was "literally putting herself in the defendant's chair and projecting, empathizing from [the] defendant's point of view, whether or not she would want somebody to judge him or her, based on not taking the stand or something they said or didn't say on the witness stand. That is unacceptable." The "final and largest shoe to fall" was when Juror J.D. was asked about her prior jury service, and described the case as one in which the defendant was "accused" of stabbing his girlfriend, which suggested the case did not end in a guilty verdict. "No prosecutor, in their right mind, is going to leave a juror that they believe has rendered a prior verdict of not guilty on a case on a jury, ever." The prosecutor noted that in another case he had tried about two years ago, he had excused an otherwise unobjectionable Caucasian female juror for the very reason that she had previously been on a jury that rendered a not guilty verdict on a gun possession charge.
3. Juror P.M.
Juror P.M. was a 61-year-old African-American woman with a clinical degree in psychology who had four children, including a 44-year-old son who was a registered sex offender and a younger son who had been molested when he was four years old. She worked as a therapist with an organization that provided mental health services to "[Welfare and Institutions Code sections] 601/602 youth," evaluated juvenile facilities as part of a juvenile justice commission in Alameda County, and was a member of organizations supporting the family members of incarcerated individuals.
As to Juror P.M., the prosecutor gave multiple race-neutral reasons for excusing her: (1) her 44-year-old son was a convicted felon and sex offender; (2) she had a master's degree in psychology, and people with such degrees generally do not make good jurors for the prosecution; and (3) and she provided services that focused on rehabilitating criminals. "She had a son convicted of a sex offense. She basically works to rehabilitate criminals, with criminals, on a daily basis. I'm not letting somebody, in my right mind, no prosecutor would ever let somebody who works with criminals on a one-on-one basis to rehabilitate them in the context of restorative justice, which [is] tremendously progressive, to be polite about the matter, new philosophy of judicial resolution of issues in favor of criminal defendants, in my opinion."
4. Juror D.G.
Juror D.G. was a 50-year-old African-American woman who worked as a "life coach" helping formerly homeless families get back on their feet. She had worked in group homes and with emancipated minors, and her clients included people who had been sexually assaulted. During questioning, she stated, "I've been on both sides. I've been on a side where I have helped the victim that has been, you know, sexually assaulted, and I have also helped families where the victim has not told the truth, and has devastated the family, and I've helped rebuild the family after they had gone through a horrendous lie." Juror D.G. had herself been helped by the police, but a close friend's brother had been killed during a police chase after he committed a crime, and she believed "everybody" was at fault in that situation.
The prosecutor indicated he found Juror D.G. unacceptable because she was a social worker, and when he had the choice, he did not put social workers, psychologists or psychiatrists on the jury. He was also concerned that she had a close friend whose brother had been killed by the police, noting that when he asked if there had been discipline for the officer, she abruptly responded, "None" and did not sound happy about the situation. The prosecutor noted that while Juror D.G. had helped sexual assault victims, she also stated she had worked with people who had lied about sexual assault, and in this case, the defense was going to be arguing that Jane Doe was lying about sexual assault.
5. Juror G.D.
Juror G.D. was a 26-year-old mixed-race African-American man who lived with his parents, had been employed for two months as a custodian at a university, and indicated on his written questionnaire that police officers were "less believable" than other witnesses. He wrote: "I feel that a lot of police officers are not truthful and will lie to get what they feel is right." During voir dire, Juror G.D. explained that in his experience, the police were untruthful, and he described an incident in which he was stopped for having a headlight out but when it was tested it worked and the officer said, "[O]h, it just turned on." While the police were "not his favorite people in the world," he thought he could put that aside and be fair.
In stating his reasons for excusing Juror G.D., the prosecutor stated that the juror's view that police officers would lie to achieve a result went beyond an expression of disliking police officers. Though this case ultimately hinged on whether the jurors believed Jane Doe, the prosecution would be relying on the testimony of police officers who collected evidence corroborating her account. The prosecutor also noted that Juror G.D. was young, lived at home and did not have a lot of life experience.
6. Juror A.F.
Juror A.F. was a 26-year-old African-American man who lived with his mother, had been to college, and worked as a pipefitter. He found police officers' testimony to be "more believable" because that was "their job." The prosecutor excluded Juror A.F. because he was young and had no meaningful life experience.
7. Juror R.A.
Juror R.A. was a 64-year-old African-American man who had worked for the Social Security Administration for six years approving retirement claims. He had previously served in the Marine Corps, where he was a military police officer before being assigned as a drug and alcohol counselor. Juror R.A.'s duties as a drug and alcohol counselor had required him to assess Marines who had been arrested or subjected to disciplinary action, and determine the degree of any substance abuse problem they might have. Depending on the circumstances, he would either refer the Marine for treatment or back to duty, and would monitor any counseling that was determined to be appropriate. Juror R.A. had a degree in psychology with an emphasis in chemical dependency.
With respect to his attitudes toward the police, Juror R.A. had always worked well with police officers while in the military, but recent events involving police shootings in Ferguson, Missouri and South Carolina caused him concern. He realized that while he used to greet officers on the Bay Area Rapid Transit service and thank them for their work, he had "noticed that I stopped saying that as frequently as I used to."
The prosecutor excused Juror R.A. because he had a degree in psychology and had worked with Marines with drug and alcohol problems. The prosecutor compared him to a probation officer, and indicated he would not keep probation officers or correctional officers as jurors: "You know why? Because they work with criminals. They work to help and assimilate criminals. He takes the criminal point of view because it's something they have to do."
8. Analysis
Substantial evidence supports the trial court's determination that the prosecutor had valid, race-neutral reasons for excusing each of the jurors in question. As to Juror J.D., a prosecutor has a "reason to be skeptical" about a juror who has voted for acquittal while serving on another criminal jury, and the juror's description of the prior case on which she had served as one in which the defendant was "accused" of the crime supported an inference that the verdict had been not guilty. (Lewis, supra, 39 Cal.4th at p. 1014.) Similarly, sympathy toward a defendant is a valid, nondiscriminatory reason to excuse a prospective juror, and Juror J.D.'s written response to the question of whether she expected a defendant to testify suggested she was able to put herself in the appellants' shoes to a degree that caused the prosecutor concern. (People v. Stanley (2006) 39 Cal.4th 913, 939.)
Madison argues the prosecutor's reasons for excusing Juror G.D. were pretextual because several of the seated jurors had indicated in their written questionnaires that they would not expect a defendant to testify. But none of those jurors qualified their responses by observing that a defendant might be too nervous to testify. Some of the jurors who did not expect a defendant to testify offered no reason for their viewpoint, some referred to the defendant's constitutional rights, one mentioned trial strategy, and one referred to television shows where the defendant had not testified. Additionally, several seated jurors were unsure about whether they would expect the defendant to testify or indicated they would expect a defendant to testify in his or her own defense.
The prosecutor also stated valid, nondiscriminatory reasons for striking Juror P.M., the most obvious of which was her son's conviction of a sex offense and registration as a sex offender. " '[T]he arrest or conviction of a juror's relative provides a legitimate, group-neutral basis for excluding a juror.' " (People v. Arellano (2016) 245 Cal.App.4th 1139, 1161.) This is particularly true in this case, where a close relative had been convicted of a sex offense and the charges included sexual assault. Additionally, Juror P.M.'s degree in psychology and her work with juveniles who had been adjudged wards of the court caused the prosecutor to believe she would be more sympathetic to the defense. (People v. Streeter (2012) 54 Cal.4th 205, 225.) This belief had " ' " 'some basis in accepted trial strategy' " ' [citation] insofar as it stemmed from a concern about the general attitudes and philosophies persons in that profession might harbor." (People v. Mai (2013) 57 Cal.4th 986, 1053 (Mai).)
The prosecutor cited the youth and relative lack of life experience of Jurors A.F. and G.D., who were both 26-year-old men still living with their parents. The genuineness of this reason is corroborated by the ages of the seated jurors, who were between 42 and 69 years old. "As the Supreme Court has observed, a prospective juror's youth and corresponding lack of life experience can be a valid race-neutral reason for exercising a peremptory challenge." (People v. Jones (2017) 7 Cal.App.5th 787, 805; see People v. Lomax (2010) 49 Cal.4th 530, 575 (Lomax); People v. Taylor (2010) 48 Cal.4th 574, 616.) Juror A.F. also described a troubling encounter with law enforcement and a general dislike of the police. "A prospective juror's negative experiences with law enforcement can serve as a valid basis for [a] peremptory challenge." (People v. Gutierrez (2002) 28 Cal.4th 1083, 1125.)
Appellants argued below that the "youth and lack of life experience" rationale was pretextual because the prosecutor did not excuse J.M., a 27-year-old Caucasian female juror who was ultimately excused by the defense. The prosecutor explained that he viewed this female juror differently because she lived on her own, was involved in a property management firm and had done work in human trafficking, which made her a favorable juror for the prosecution. The prosecutor also noted that he had excused a 22-year-old Caucasian male juror due to his youth and lack of life experience. Finally, in response to defense counsel's observation that the prosecutor did not excuse Juror A.V., a 26-year old Caucasian woman who lived with her mother, the prosecutor noted that A.V. had a fiancé and was working full-time in her chosen career, but he additionally knew defense counsel were likely to excuse her from the jury because she was a younger woman (and they did). The trial court agreed there was a marked difference between Jurors A.F. and A.V., apart from their race: "[Juror A.V.] was kind of the corporate executive in the making, had that sort of look about her. I could understand why somebody would look at her and say she strikes me as a completely different person than [Juror A.F.] who was relaxed, laid back, had more of a typical young college person who was dressed very casually. You know, he wasn't in flip-flops and Bermuda shorts, but he was the next level above that."
The last juror who was the subject of a Batson/Wheeler motion, Juror R.A., had a degree in psychology and had worked with Marines whose substance abuse had landed them in legal trouble. The prosecutor excused R.A. consistent with his practice of excusing psychologists, social workers, probation officers, prison guards and other prospective jurors who worked with people who had been accused or convicted of crimes. (See Mai, supra, 57 Cal.4th at p. 1053.) Juror R.A.'s recent shift in attitude toward law enforcement, though subtle and understandable, is also a viewpoint that could cause the prosecutor concern.
Appellants argue the case is governed by People v. Gutierrez (2017) 2 Cal.5th 1150, 1171-1172 (Gutierrez), in which the prosecution used 10 of 16 peremptory challenges to remove Hispanic jurors and was found to have acted in contravention of Batson/Wheeler with regards to one of them. We find that decision to be distinguishable.
In Gutierrez, the juror in question had stated she was unaware that gangs were active in the Wasco area, where she resided, and the prosecutor used a peremptory challenge to excuse her without asking any follow-up questions. (Gutierrez, supra, 2 Cal.5th at p. 1160.) When the defense objected on Batson/Wheeler grounds, the prosecutor explained, "She's from Wasco and she said that she's not aware of any gang activity going on in Wasco, and I was unsatisfied by some of her other answers as to how she would respond when she hears that [a prosecution witness] is from a criminal street gang, a subset of the Surenos out of Wasco.' " (Id. at p. 1160.) No such " 'other answers' " were ever identified, either at trial or on appeal. (Ibid.) In evaluating the prosecution's explanation, the trial court remarked that the juror was excused due to the " 'Wasco issue and also the lack of life experience,' " even though the prosecutor had not cited a lack of life experience as a reason for the peremptory challenge. (Id. at p. 1161.)
The Supreme Court concluded that while the stated justification—the juror's unawareness of gang activity—was facially nondiscriminatory, it was not obvious why the prosecutor did not want her on the jury and the trial court never clarified why it accepted this reason as an honest one. (Gutierrez, supra, 2 Cal.5th at p. 1171.) "It is not evident why a panelist's unawareness of gang activity in Wasco would indicate a bias against a member of a gang based in Wasco" and the prosecutor's "swift termination" of voir dire "at least raises a question as to how interested he was in meaningfully examining whether her unawareness of gang activity in Wasco might cause her to be biased against the witness for the People's case." (Id. at pp. 1169-1170.) " '[W]hen the prosecution's stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient.' " (Id. at p. 1171.) "On this record, we are unable to conclude that the trial court made 'a sincere and reasoned attempt to evaluate the prosecutor's explanation' regarding the strike of Juror 2723471. [Citation.] The court may have made a sincere attempt to assess the Wasco rationale, but it never explained why it decided this justification was not a pretext for a discriminatory purpose. Because the prosecutor's reason for this strike was not self-evident and the record is void of any explication from the court, we cannot find under these circumstances that the court made a reasoned attempt to determine whether the justification was a credible one." (Id. at p. 1172.) Reversal was therefore required. (Ibid.)
The focus of the analysis in Gutierrez was on the trial court's failure to conduct a " 'sincere and reasoned attempt' to evaluate the prosecutor's justification" when the prosecutor's reasons for striking the juror were not "self-evident." (Id. at p. 1159, 1171.) Here, many of the prosecutor's reasons for excusing the jurors in question were self-evident, and to the extent they were not, the prosecutor fully explained his reasons for the challenges. Appellants' disagreement with those reasons does not mean they were unsupported by the record or pretextual.
B. Madison's Right to a Speedy Trial
Under section 1382, "a defendant charged with a felony is entitled to be brought to trial within 60 days of arraignment unless (1) the defendant has expressly or impliedly consented to having trial set for a date beyond that period, or (2) there is 'good cause' for the delay." (Smith v. Superior Court (2012) 54 Cal.4th 592, 595 (Smith).) Madison argues the judgment against him must be reversed because the trial court violated his right to a speedy trial by setting a trial date beyond this statutory limit in order to maintain a joinder with the case filed against Williams and Sims. He argues the state's interest in trying all three defendants together did not amount to good cause. We disagree.
1. Background
Williams and Sims were arrested before Madison, whom Doe could not initially identify, and the two of them were jointly charged and arraigned on the original information on October 2, 2014. Williams and Sims waived the time limits of section 1382, and trial was set for March 30, 2015. Madison was arraigned on a separate information on December 8, 2014, and did not waive time for trial, meaning the 60-day period under section 1382 expired on February 6, 2015. A trial date was set for January 20, 2015, in Madison's case.
On January 8, 2015, the People filed a motion to consolidate the case against Madison with the case against Williams and Sims, on the ground that all the charges against them were premised on acts committed against Doe on May 31, 2014. Madison opposed the motion, and a hearing was held January 27, 2015. Madison's counsel argued the prosecution had not met its burden of establishing good cause for continuing Madison's trial past the 60-day limit of 1382, as it would need to do if it were to commence trial on the March 30 date previously set for Williams and Sims. The court ordered the cases consolidated and set Madison's case for trial on March 30, 2015, noting the charges all involved acts against the same victim and the evidence showed the three defendants were acting together. Madison filed a petition for writ of mandate in this court challenging the ruling, which was summarily denied on February 17, 2015.
On April 1, 2015, Madison requested in a motion in limine that his case be severed from the trial of Williams and Sims, citing the prejudicial effect of being associated with Williams and the potential that Sims would provide exonerating testimony if Madison were tried separately. The trial court denied the motion, noting the "strong preference under the law for joint trials," which was not overcome by the prospect of a prejudicial spillover effect or "the mere hope or expectation unsupported in any way that [a codefendant] might testify favorably for them if the trial were severed."
2. Analysis
We consider whether the trial court abused its discretion by continuing Madison's trial to a date that fell 52 days after the expiration of the 60-day period in section 1382. (People v. Sutton (2010) 48 Cal.4th 533, 546 (Sutton).) This hinges on whether there was "good cause" for the continuance. (Ibid.) Section 1382 does not define "good cause," but our Supreme Court has observed that the following factors are relevant: "(1) the nature and strength of the justification for the delay, (2) the duration of the delay, and (3) the prejudice to either the defendant or the prosecution that is likely to result from the delay." (Ibid.)
"California decisions had long recognized that a trial court properly may find that the significant state interests that are furthered by conducting a single trial of jointly charged criminal defendants constitute good cause to continue a codefendant's trial beyond the presumptive statutory period designated in section 1382." (Sutton, supra, 48 Cal.4th at p. 559; see also Hollis v. Superior Court (1985) 165 Cal.App.3d 642 [trial court did not abuse its discretion by continuing petitioner's trial 100 days beyond the 60-day limit in section 1382 where codefendant showed good cause for continuance]; Greenberger v. Superior Court (1990) 219 Cal.App.3d 487, 501, fn. omitted [court upheld six-month delay; "if the precipitating cause for trial delay is justifiable, such as codefendants' need to adequately prepare for trial, then the section 1098 joint trial mandate constitutes good cause to delay the trial of an objecting codefendant"], People v. Powell (1974) 40 Cal.App.3d 107, 151-152.)
We have little trouble concluding the state's interest in trying Madison together with Williams and Sims constituted good cause for a continuance. Section 1098 provides, " 'When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court orders separate trials.' " This creates "a strong legislative preference for joint trials, stemming both from the fact that they ' "promote [economy and] efficiency" ' and " ' "serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." ' " (People v. Mackey (2015) 233 Cal.App.4th 32, 99.) The charges against Madison were the same as four of the charges brought against Williams and two of the charges brought against Sims, and involved the same events and the same victim, making this "[a] 'classic' case for [a] joint trial." (People v. Keenan (1988) 46 Cal.3d 487, 499-500.) When as here, "the trials are likely to be long and complex and impose considerable burdens on numerous witnesses," the state's interest in a single trial is "especially compelling." (Sutton, supra, 48 Cal.4th at p. 560.)
In light of the strong legislative preference for joint trials, the Supreme Court in Sutton held the trial court acted within its discretion in finding good cause to continue a jointly charged codefendant's trial based on the unavailability of a codefendant's counsel who was engaged in another trial. (Sutton, supra, 48 Cal.4th at pp. 556-558.) It specifically disapproved of the holdings in two court of appeal cases relied upon by Madison in his opening brief—People v. Escarcega (1986) 186 Cal.App.3d 379 and Arroyo v. Superior Court (2004) 119 Cal.App.4th 460—to the extent those cases wrongly held or suggested that the state interest served by a joint trial cannot itself constitute good cause to continue a codefendant's trial beyond the statutory deadline. (Sutton, at p. 546.) In Smith, supra, 54 Cal.4th at p. 596, the Supreme Court clarified "the substantial state interests in trying jointly charged defendants in a single trial constitute good cause under section 1382 to continue the second jointly charged defendant's trial for a reasonable period of time in order to retain joinder."
Moreover, appellant's post-conviction speedy trial claim requires a showing of prejudice under the "miscarriage of justice" standard of article VI, section 13 of the California constitution. (People v. Martinez (2000) 22 Cal.4th 750, 769.) " 'Upon appellate review following conviction, . . . a defendant who seeks to predicate reversal of a conviction upon denial of his right to speedy trial must show that the delay caused prejudice: this court, in reviewing the judgment of conviction, must "weigh the effect of the delay in bringing defendant to trial or the fairness of the subsequent trial itself." ' " (Lomax, supra, 49 Cal.4th at p. 557.) Madison has described no circumstances amounting to a miscarriage of justice.
Madison suggests the continuance of his trial date was prejudicial to his case because it enabled him to be tried with Williams, and (as discussed more fully below) the jury heard evidence that Williams threatened the victim with a gun and claimed to have previously engaged in pimping. Evidence concerning Williams's gun use was the basis for the section 12022 arming allegations against Madison in counts 2 and 3 and would have been admissible in a separate trial of the charges against Madison. And, even if we assume the court would have excluded Williams's statements about pimping in a trial of Madison alone, we fail to see how Madison could have been prejudiced by those statements when there is no indication he participated in pimping activities with Williams. In short, the continuance of the trial date beyond the 60-day period of section 1382 does not require a reversal of Madison's convictions because there was good cause under section 1362 and no prejudice to Madison in any event.
In light of our conclusion that the record supports a finding of good cause within the meaning of section 1382, we need not decide whether the continuance was authorized by section 1050.1, which provides, "In any case in which two or more defendants are jointly charged in the same . . . information, and the court or magistrate, for good cause shown, continues the . . . trial of one or more defendants, the continuance shall, upon motion of the prosecuting attorney, constitute good cause to continue the remaining defendants' cases so as to maintain joinder. . . ." Section 1382 provides an independent basis for the continuance, even if section 1050.1 does not apply. "[L]ong before the enactment of section 1050.1 in 1990, California decisions had recognized that a trial court properly may find that the significant state interests that are furthered by conducting a single trial of jointly charged criminal defendants constitute good cause to continue a codefendant's trial beyond the presumptive statutory period designated in section 1382." (Sutton, supra, 48 Cal.4th at p. 559; see also Smith, supra, 54 Cal.4th at p. 599.)
C. Motion for Mistrial Based on Doe's Statements to SART Nurse
Williams made a motion for mistrial because the SART nurse who examined Doe testified about hearsay statements Doe made during the examination which suggested Williams had committed previous sexual assaults. Although the trial court admonished the jury there was no evidence of such assaults, Williams contends this was insufficient to counteract the prejudicial effect of those statements. Williams also argues the trial court erred in allowing Nurse Rea to testify that Williams was a pimp. Madison joins in the argument based on the "prejudicial spillover" effect that Doe's statements about Williams had on his case. We reject the claims.
1. Background
During the SART examination, Nurse Rea filled out an eight-page standardized form that included (in quotes) statements made by Doe describing the underlying events. Over defense objection, the court ruled that Nurse Rea would be allowed to testify about statements made by Doe during the examination which pertained to the examination.
The prosecutor proceeded to ask about some of Doe's prior statements, and Nurse Rea responded that Doe had said Williams had threatened her with a gun and had told her "that he's done this before and that he was a—" Defense counsel objected and after an unreported sidebar discussion, the trial court admonished the jury, "Before [the prosecutor] proceeds with his questions, to the extent that there was a question and a partial answer was given before we took this sidebar recess, I'm sustaining the objection to that question and instructing the jury to disregard it. [¶] And, in particular, to disregard any possible suggestion or inference that the term 'doing this before' means, that there is an implication here that Mr. Williams had sexually assaulted somebody before, the jury is instructed to disregard that. . . ."
Doe erroneously believed Williams was named "James" and referred to him as such when she spoke to the nurse and to police officers.
The prosecutor resumed questioning: "[Q]. Documented in your report, Ms. Rea, in 'the method employed by assailant' did [Doe] tell you that the man she thought was named James was inside Audrey's house with a black gun? [¶] [A]. That's correct. [¶] [Q]. And that the man she thought was James was waving and pointing it at my face? [¶] [A]. Yes. [¶] [Q]. Specifically, did [Doe] tell you quote, 'Told me he is not afraid to use it. He does this for a living. He's a pimp'?" The court overruled a defense objection and directed the prosecutor to read the three sentences and have Nurse Rea confirm whether Doe had made the statements. The following exchange followed: "[Q]. Quote. 'Told me he is not afraid to use it.' Quote, 'He does this for a living.' Quote. 'He's a pimp'? [¶] [A]. Correct on all three. [¶] [Q]. That's what [Doe] told you the man named James with the gun said? [¶] [A]. Yes."
The following day, after a lengthy discussion outside the jury's presence about Nurse Rea's testimony and whether the statements she had recounted had been in Doe's own words or were the nurse's paraphrasing, counsel for Williams made a motion for mistrial. Defense counsel noted that this was a sexual assault case and the jurors "are left with the false impression that Mr. Williams either has a history or some affinity for committing sexual assaults on other individuals." The court denied the motion, indicating that upon request it would give an additional admonition to the jury that there was no evidence of prior sexual assaults by Williams.
The court denied defense counsel's request for an admonition that there was no evidence Williams was ever a pimp. "[Nurse Rea]'s reporting—she's reporting what Jane Doe said to her and Jane Doe's interpretation of what was said to her. This quote—for a living he's a pimp, is a not unreasonable interpretation of your client's comments to Jane Doe at the time of the events. There were certain things he said to her where somebody listening to what he had to say if she is correctly recounting what he said would allow somebody to interpret his comments as 'I'm a pimp' and that's the life or something like that. I understand the life. . . . [¶] Those could be reasonably interpreted as him telling her, I'm a pimp and this is the way it's going to go down. . . . [¶] I don't see how anybody could —would complain that her interpretation of that was unreasonable. It might not have been what he intended if he said something like that. I'm not saying he didn't. But somebody hearing that could reasonably view those comments as the functional equivalent of, I'm a pimp and this is where it's going from here, including going —you are going into Redbook. So I'm not going to correct that misimpression because I don't think it's a misimpression." The court indicated it had allowed the prosecution to elicit evidence of Doe's prior consistent statement to the SART nurse because Doe's credibility had been placed at issue when she acknowledged during cross-examination that she had received moving and relocation benefits from the State.
When the jurors returned to the courtroom, the court instructed them as follows: "Ladies and gentleman, I want to reiterate something I said yesterday. I don't have it memorized but the thoughts are pretty much the same. [¶] Yesterday there was a particular question and answer that was given during Ms. Rea's testimony that perhaps could have been interpreted as suggesting that Mr. Williams was described by Jane Doe as saying that he had done this before, meaning, engaged in sexual assault previously. And that question and answer were stricken and then [the prosecutor] asked some additional questions that clarified exactly what was asked and what was said. [¶] So the Court wants to make sure that you do not draw any inference whatsoever and there is no evidence in this record to suggest that Mr. Williams on any previous occasion had sexually assaulted anyone. To the extent that there might have been a suggestion that was so as far as what Jane Doe said to Ms. Rea, that is not so. And the question and answer that were given during the history part of the exam did not have anything to do with that possible topic. Okay."
2. Analysis
A trial court's ruling on a motion for mistrial is reviewed under the deferential abuse of discretion standard. (People v. Williams (1997) 16 Cal.4th 153, 210; People v. Hayes (1990) 52 Cal.3d 577, 610.) A motion for mistrial should be granted if a trial court is apprised of prejudice that it judges incurable by admonition or instruction. (People v. Wharton (1991) 53 Cal.3d 522, 565.) " 'Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions." (Ibid.) A motion for mistrial presupposes error plus incurable prejudice. (People v. Gatlin (1989) 209 Cal.App.3d 31, 38.)
Williams's motion for mistrial was based on the prejudicial effect of Doe's statement to Rea that Williams had "done this before." Preliminarily, it was not entirely clear what Doe was referring to in the quoted statement to prior instances of human trafficking or prior sexual assaults. To the extent the quoted statement could have been construed to refer to prior sexual assaults, the court admonished the jury—twice—that there was no evidence Williams had committed a prior sexual assault. We presume the jury followed this admonition. (People v. Avila (2006) 38 Cal.4th 491, 574.) The court did not abuse its discretion in concluding the admonition was sufficient to cure any prejudice resulting from the suggestion that appellant had committed prior sexual assaults, particularly when it is not clear the jury would have so construed Doe's statements in the first place. (People v. Valdez (2004) 32 Cal.4th 73,128; People v. Franklin (2016) 248 Cal.App.4th 938, 955-956.)
Williams argues the court's admonition was insufficient because it did nothing to counteract the effect of Doe's statement to Nurse Rea that appellant had told her he was a pimp, which improperly suggested he had been involved in human trafficking before. Williams contends this aspect of Doe's prior statement was inadmissible hearsay and was in any event more prejudicial than probative under Evidence Code section 352. We conclude reversal is not required.
Because Doe testified at trial and was thoroughly cross-examined by defense counsel, the admission of her statements to Nurse Rea did not violate the confrontation clause despite their testimonial nature. (Crawford v. Washington (2004) 541 U.S. 36, 59 ["when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements"]; U.S. Const., 6th Amend. cf. People v. Vargas (2009) 178 Cal.App.4th 647, 662 [victim's statements to nurse during sexual assault examination was testimonial and inadmissible given that victim did not testify at trial].) Appellants do not argue otherwise.
An out-of-court statement is hearsay if offered for its truth, and is inadmissible unless subject to a hearsay exception. (Evid. Code, § 1200; People v. Roa (2017) 11 Cal.App.5th 428, 442.) No instruction was given to limit this evidence to a nonhearsay purpose, and the People do not suggest the statements were admissible on nonhearsay grounds. (Cf. People v. Ervine (2009) 47 Cal.4th 745, 776 [statements treated as nonhearsay when limiting instruction given].) We therefore analyze the statements as hearsay.
Rea's testimony involves two levels of hearsay: Williams's statement to Doe that he was a pimp, and Doe's statement to Rea that Williams told her he was a pimp. (Evid. Code, § 1200, 1201; People v. Zapien (1993) 4 Cal.4th 929, 951-952.) Williams's statement to Doe was admissible as a party admission. (Evid. Code, § 1220.) Doe's statement to Rea was admissible if, as the trial court concluded, it fell within the prior consistent statement exception to the hearsay rule pursuant to Evidence Code sections 1236 and 791. We review the court's ruling admitting the statement for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 725.)
Evidence Code section 1236 provides, "Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791." Evidence Code section 791 states, "Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: [¶] (a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or [¶] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen."
A statement is admissible as a prior consistent statement when "there is an express or implied charge that the witness's testimony recently was fabricated or influenced by bias or improper motive, and the statement was made prior to the fabrication, bias, or improper motive." (People v. Riccardi (2012) 54 Cal.4th 758, 802, overruled on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) Here, Doe testified that Williams's told her he was "about that life" on the heels of disclosing his plan to create a Redbook page for her. This could be reasonably construed as an admission of prior pimping activities. Defense counsel established during cross-examination that Doe had received financial assistance from the Victim Witness Board in order to relocate, which paved the way for the (somewhat weak) inference that Doe had a bias toward the state. (See People v. Bunyard (1988) 45 Cal.3d 1189, 1209 [defense counsel's cross-examination strongly implied that the witness's testimony for the prosecution had been fabricated or influenced by a motive to avoid incarceration].) Nurse Rea's testimony that just a few hours after the crimes occurred, Doe said Williams had told her he was a pimp, would tend to rehabilitate Doe with her prior consistent statement. The court did not abuse its discretion in determining the "pimp" statement to Nurse Rea was admissible notwithstanding its hearsay nature.
Appellants argue the "pimp" statement should nonetheless have been excluded under Evidence Code section 352 because it was of limited probative value and was outweighed by the undue prejudice inherent in evidence of uncharged crimes. (See People v. Ewoldt (1994) 7 Cal.4th 380, 404.) But even if the court had not admitted Nurse Rea's testimony on the subject, the jury would have heard Doe's testimony that Williams had admitted being "about that life." Doe was the source of both the prior statement to Nurse Rea and of her own testimony at trial, and it is not reasonably probable that hearing the prior statement to Nurse Rea made the jury more likely to convict appellants. (People v. Mullens (2004) 119 Cal.App.4th 648, 659 [error in the admission of evidence under Evidence Code section 352 is tested for prejudice under the "reasonable probability" standard of People v. Watson (1956) 46 Cal.2d 818, 836].) Appellants did not suffer prejudice, much less undue prejudice, as a result of Nurse Rea's testimony that Doe said Williams had told her he was a pimp.
D. One-Strike Allegation for Rape in Concert Count
Appellants argue their One Strike sentences for the rape in concert convictions under count 4 were unauthorized because the accusatory pleading did not include a specific One Strike allegation as to that count. We agree.
1. Legal Principles
Section 667.61, known as the "One Strike" law, is an alternative, harsher sentencing scheme that applies to specified felony sex offenses. (People v. Anderson (2009) 47 Cal.4th 92, 102.) As relevant here, "[f]or the sex crimes falling within its reach . . . [t]he sentence will be 25 years to life if the jury finds (or the defendant admits) . . . one of the more aggravated 'circumstances' listed in section 667.61, subdivision (d). [Citation.]" (People v. Perez (2015) 240 Cal.App.4th 1218, 1223, italics omitted (Perez).) The circumstances enumerated in subdivision (d) include, "The defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense . . . ." (§ 667.61, subd. (d)(2).) Forcible rape in concert and forcible oral copulation in concert are among the offenses that qualify for treatment under the One Strike law. (§ 667, subds. (c)(3), (c)(7).)
"The One Strike law specifically spells out what the People must do in order to invoke its greater penalties." (Perez, supra, 240 Cal.App.4th at p. 1223.) Section 667.61, subdivision (o) states, "The penalties provided in this section shall apply only if the existence of any circumstance specified in subdivision (d) . . . is alleged in the accusatory pleading pursuant to this section, and is either admitted by the defendant in open court or found to be true by the trier of fact." Another provision, section 667.61, subdivision (f), reiterates that the circumstances must be "pled and proved." (See People v. Mancebo (2002) 27 Cal.4th 735, 744-745 (Mancebo).)
The Supreme Court has interpreted these provisions strictly. In Mancebo, the prosecution brought charges against a defendant for sexually assaulting two victims on two separate occasions. (Mancebo, supra, 27 Cal.4th at p. 740-743.) The information alleged that the defendant used a gun and kidnapped the victim in one offense and used a gun and tied or bound the victim in committing the other offense within the meaning of the One Strike law. (Ibid.) The jury convicted the defendant of the base crimes and found the One Strike allegations true, but in order to use the defendant's gun use to impose additional 10-year firearm enhancements under section 12022.5, subdivision (a), the trial court chose not to rely on the gun use to support a One Strike sentence. (Ibid.) Instead, the trial court relied on the kidnapping and tie-or-bind circumstances in combination with a multiple-victim circumstance that had never been pled or found to be true, and used that unpled multiple victim circumstance to sentence the defendant under the One Strike law. (Ibid.)
The Supreme Court held this violated the pleading and proof requirements of the One Strike law as well as the defendant's due process right. (Mancebo, supra, at p. 753.) Although the defendant had been charged with and convicted of committing crimes against two separate women, the allegations were insufficient to support the multiple victim One Strike circumstance "not because defendant was never afforded notice that he was being charged with crimes against two victims; he obviously was, and not because defendant was never afforded notice that the One Strike law would apply to his case; again, he was. Sentencing error occurred because defendant was given notice that gun use would be used as one of the two pleaded and minimally required circumstances in support of the One Strike terms, whereafter, at sentencing, the trial court used the unpled circumstance of multiple victims to support the One Strike terms, and further imposed two 10-year section 12022.5[, subdivision] (a) enhancements that could otherwise not have been imposed but for the purported substitution." (Ibid, italics omitted.)
Thus, Mancebo stands for the proposition that the prosecution must allege, in the operative charging document, "which qualifying circumstance or circumstances are being invoked for One Strike sentencing." (Mancebo, supra, 27 Cal.4th at p. 752; accord Perez, supra, 240 Cal.App.4th at p. 1223.) Such pleading is mandated not only by the language of the One Strike law but also by the "cognizable due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his [or her] crimes." (Mancebo, at p. 747.) "[W]hat matters is notice by pleading, not actual notice." (Perez, supra, 240 Cal.App.4th at p. 1225.)
Under Mancebo, the "straightforward rule" applicable to the One Strike law requires the People to allege the specific circumstances they wish to invoke as to each count they seek to subject to the One Strike law's heightened penalties. (Perez, supra, 27 Cal.4th at p. 1227.) A One Strike sentence imposed in violation of this requirement is unauthorized, and is subject to correction on appeal even without an objection in the trial court. (Mancebo, at p. 749, fn. 7.)
2. Analysis
In this case, the operative pleading was the third amended information. That document alleged that as to the oral copulation in concert charged in count 5, "It is further alleged, pursuant to subdivisions (d) and (2) of Penal Code section 667.61, that in the commission of the above offense, [each appellant] kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense . . . ." No One Strike allegation was included in the rape in concert charge under count 4, and no previous pleading had ever alleged a One Strike allegation as to the rape in concert count. The trial court nonetheless instructed the jury on the elements of the One Strike allegation (CALCRIM No. 3179) in connection with both counts 4 and 5, the verdict forms called for a finding as to each count, and the jury returned a true finding as to each count. Appellants were each given a One Strike sentence of 25 years to life for their convictions of rape in concert under count 4 as well as for their convictions of oral copulation in concert under count 5.
The situation is comparable to that in Perez, in which the prosecution alleged One Strike circumstances on some counts, but did not allege any circumstances on a count charging forcible oral copulation. (Perez, supra, 240 Cal.App.4th at p. 1225.) The Perez court concluded that the prosecution's failure to amend the information required reversal of the One Strike sentence imposed on the oral copulation count, even though the jury had received instructions on the One Strike allegation and returned a verdict finding the allegation to be true as to that count. (See ibid.) The court reasoned that the prosecution could have sought leave to amend the indictment to include a One Strike allegation as to that count, and its decision not to do so was a discretionary one akin to a decision not to allege the One Strike circumstance in the first place. (Ibid.)
The Perez court rejected the People's argument that the One Strike sentence was appropriate because the defendant had actual notice they were seeking to apply the One Strike allegation to the oral copulation count. (Perez, supra, 240 Cal.App.4th at p. 1225.) Nor did it matter that the information contained One Strike allegations in connection with other counts. (Id. at p. 1226.) The court distinguished People v. Riva (2003) 112 Cal.App.4th 981, 1002-1003, which held that a court could properly apply a 25-year-to-life discharge of a firearm enhancement under section 12022.53, subdivision (d), as to a count for which it was not alleged when the enhancement had been alleged but not imposed for two other counts. "Unlike section 12022.53's firearm enhancements, '[t]he One Strike law is not. . .a sentence enhancement'; '[r]ather, it "sets forth an alternate penalty for the underlying felony itself. . . ." ' [Citations.] Unlike sentencing enhancements, a defendant can only plead guilty to a One Strike law crime if the circumstances necessary to trigger that crime are pled—that is how the defendant knows the maximum sentence he or she faces and what he or she must admit during the plea. Moreover, extending Riva's rule to the One Strike law would give short shrift to Mancebo's due process underpinnings by allowing one or more One Strike law circumstance(s) alleged as to one count to trigger a One Strike law sentence on another count as long as the total sentence actually imposed by the trial court does not exceed the total sentence that could have been imposed if the People had adhered to the actual allegations in the charging document. Mancebo's due process concerns are better served by a more straight forward rule, and the one that we adopt today: The People must allege the specific One Strike law circumstances it wishes to invoke as to each count it seeks to subject to the One Strike law's heightened penalties." (Perez, at p. 1227.)
The trial court imposed a concurrent term of 25 years to life for Williams's rape in concert conviction under count 4, and stayed under section 654 a term of 25 years to life for Madison's oral copulation conviction. Because a One Strike circumstance was properly pled and proved as to the oral copulation in concert under count 5, our analysis does not affect the sentences imposed for that count and is unlikely to affect the time appellants actually serve in prison. But because a conviction for rape in concert under section 264.1 is punishable by a sentencing range when unaccompanied by a One Strike allegation, we must remand the case for resentencing on count 4.
E. Senate Bill No . 620—Firearm Enhancements
Williams's sentence for kidnapping for extortion under count 2 included a 10-year enhancement for personal use of a firearm pursuant to section 12022.53, subdivision (b), and his sentence for human trafficking under count 3 included a three-year firearm enhancement under section 12022.5, subdivision (a). The firearm enhancements were mandatory at the time. (See former §§ 12022.5, subd. (c) ["Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section."]; 12022.53, subd. (h) [same], both statutes amended by Stats. 2017, ch. 682, § 2.)
Last year, however, the Legislature enacted Senate Bill No. 620. (Sen Bill No. 620 (2017-2018 Reg. Sess.).) Under its provisions, effective January 1, 2018, sentencing courts have the discretion under sections 12022.5, subdivision (c), and 12022.53, subdivision (h), to "strike or dismiss an enhancement otherwise required to be imposed by" those statutes if doing so would be "in the interest of justice pursuant to Section 1385." (§§ 12022.5, subd. (c), 12022.53, subd. (h).) Williams argues these provisions apply retroactively to his case, requiring a remand so the court can reconsider its decision to impose the firearm enhancements under counts 2 and 3. (See People v. Robbins (2018) 19 Cal.App.5th 660 [under In re Estrada (1963) 63 Cal.2d 740, 747-748, amendments to sections 12022.5 and 12022.53 apply retroactively to cases not yet final.)
The People agree that Senate Bill No. 620 applies retroactively, but argue Williams is not entitled to a remand because nothing in the record shows that the trial court would have any possible basis to exercise its discretion under section 1385. We need not resolve this issue because the new discretion to strike firearm enhancements applies explicitly "to any resentencing that may occur pursuant to any other law." (§§ 12022.5, subd. (c); 12022.53, subd. (h).) This case is being remanded for resentencing to determine the length of the concurrent sentence for rape in concert under count 4, i.e, for a "resentencing that may occur pursuant to any other law," (§12022.53 (h)) at which time the trial court may consider whether to strike or impose the firearm enhancements on counts 2 and 3. We express no opinion as to how the court should exercise its discretion.
F. Reduction of Restitution Fine
The trial court ordered that Williams pay a restitution fine under section 1202.4 in the amount of $300 per count, or a total of $1,500, and stayed a parole revocation fine in the same amount under section 1202.45. Williams argues the restitution fine under section 1202.4 must be reduced by $600 because two of the counts (conspiracy under count 1 and human trafficking under count 3) were stayed under section 654. The People agree that a count stayed under section 654 cannot be the basis for a restitution fine, which constitutes a form of punishment. (People v. Carlson (2011) 200 Cal.App.4th 695, 710.) But they argue only one count (conspiracy under count 1) was stayed under section 654, meaning the fine should be reduced by only $300 rather than by $600.
Although the abstract of judgment and minute order state that the sentence on Williams's conviction for human trafficking under count 3 was concurrent, the court's oral pronouncement of judgment shows that count was stayed under section 654. "Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) The restitution fine under section 1202.4 must be reduced by $600, to $900. The abstract of judgment should be modified accordingly to reflect the $900 amount as well as a $900 parole revocation fine under section 1202.45.
Madison's sentencing hearing was held on January 20, 2017, after the opening brief had been filed in Williams's appeal. The trial court ordered Madison to pay a restitution fine of $300 and a parole revocation fine in the same amount, the minimum allowed under the statutes. It additionally noted that it had reviewed the filings in Williams's appeal and believed Williams's appellate counsel to be correct with respect to the argument that counts stayed under section 654 could not be used in calculating the restitution fine.
III. DISPOSITION
The true finding on the One Strike allegation attached to appellants' rape in concert convictions under count 4 is vacated and the case is remanded for resentencing on that count. At the time of resentencing, the court may exercise its discretion under sections 12022.5, subdivision (c), and 12022.53, subdivision (h), as to any counts to which that discretion applies. The court shall reduce appellant Williams's restitution fine and parole revocation fine under sections 1202.4 and 1202.45 from $1,500 to $900, and shall modify the abstract of judgment in Williams's case to reflect this modification and to indicate that the sentence for human trafficking under count 3 was stayed under section 654. As so modified, the judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
SIMONS, J.