Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Madera County No. MCR026460, Edward P. Moffatt, Judge.
Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
An information charged Richard Daniel Wright with: (1) aggravated sexual assault of a child under the age of 14, occurring on or about December 1, 2002 (Pen. Code, § 269, subd. (a)(4); Count 1); (2) aggravated sexual assault of a child under the age of 14, occurring on or about January 1, 2003 (§ 269, subd. (a)(1); Count 2); and (3) continuous sexual abuse of a child under the age of 14, occurring between May 1, 2002 and May 16, 2003 (§ 288.5, subd. (a); Count 3). All three counts were submitted to the jury and the jury returned guilty verdicts on each of them.
All statutory references are to the Penal Code unless otherwise noted.
Wright does not contest the sufficiency of the evidence to sustain the convictions, therefore we need not discuss the evidence in detail. In brief, Jane Doe was Wright’s stepdaughter. Wright helped raise Jane since she was three years old; he married Jane’s mother in 1998 and they divorced in 2004. While at her grandparents’ house in Arizona during the summer of 2006, Jane told her grandfather she had been raped. Upon returning to Madera County, Jane spoke with law enforcement. Jane recalled the following specific incidents that occurred when she was 13 years old and in eighth grade: one incident of oral copulation by Wright, three incidents where Wright raped her, and a fourth incident where she was taking a shower and Wright, who was naked, climbed into the shower with her.
Wright’s trial attorney moved for a new trial on several grounds, one of which was that section 288.5, subdivision (c) required the continuous sexual abuse count to be charged in the alternative to the aggravated sexual assault counts. The court denied the motion after pointing out that the evidence showed the three charges involved separate acts. Wright then personally moved for a new trial on the ground of ineffective assistance of counsel and the court appointed conflict counsel to represent him on the motion.
Conflict counsel filed a written motion for a new trial, contending Wright’s trial counsel was ineffective for failing to move to dismiss the aggravated sexual assault charges before the case was submitted to the jury. Conflict counsel requested either a new trial or dismissal of both aggravated sexual assault charges. The district attorney filed an opposition, agreeing that Wright should not have been convicted of all three counts, but arguing the proper remedy was to dismiss the continuous sexual abuse charge.
The court agreed with the district attorney and dismissed the continuous sexual abuse charge. The court sentenced Wright to two consecutive 15-years-to-life terms on counts 1 and 2. The court also imposed, inter alia, a $630 fine under section 294, comprised of a $200 base fine, a $200 state penalty assessment pursuant to section 1464, a $140 county penalty assessment pursuant to Government Code section 76000, a $50 state court facilities construction fund penalty pursuant to Government Code section 70372, subdivision (a), and a $40 surcharge pursuant to section 1465.7.
DISCUSSION
Alternative Charges
Wright was charged with, and convicted of, one count of continuous sexual abuse of a child between May 1, 2002 and May 16, 2003, in violation of section 288.5, and two counts of aggravated sexual assault of a child occurring within the same time period. Our Supreme Court, however, has held that because section 288.5, subdivision (c), “clearly mandates the charging of continuous sexual abuse and specific sexual offenses, pertaining to the same victim over the same period of time, only in the alternative,” prosecutors “may not obtain multiple convictions” in such a circumstance. (People v. Johnson (2002) 28 Cal.4th 240, 248 (Johnson).) The pleading in this case failed to allege the continuous sexual abuse count and the two specific counts in the alternative. Therefore, Wright could not stand convicted of both. (Johnson, supra, 28 Cal.4th at p. 248.) Recognizing this on the motion for new trial, the trial court dismissed Wright’s conviction for continuous sexual abuse of a child and sentenced him only on the aggravated sexual assault counts.
Wright contends this was error. He asserts the trial court should have granted the motion for a new trial because alternative verdicts should have been submitted to the jury. He cites the language of section 288.5, subdivision (c), and argues the Legislature’s requirement that continuous child sexual abuse and specific sexual offenses be charged in the alternative necessarily implies that the “trier of fact must determine which of the alternative counts are designated for conviction and which for acquittal.” Wright also maintains the trial court’s refusal to allow the jury to determine which of the alternative counts required conviction and which required acquittal violated his due process rights. As we shall explain, the procedure the trial court followed was not erroneous and did not deny Wright his constitutional right to due process.
Section 288.5, subdivision (c) provides: “No other act of substantial sexual conduct, as defined in subdivision (b) of Section 1203.066, with a child under 14 years of age at the time of the commission of the offenses, or lewd and lascivious acts, as defined in Section 288, involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative. A defendant may be charged with only one count under this section unless more than one victim is involved in which case a separate count may be charged for each victim.”
As we have stated, our Supreme Court held in Johnson that section 288.5, subdivision (c) bars multiple convictions for continuous sexual abuse of a child and other specified sexual offenses against the same child that occurred during the same time period. (Johnson, supra, 28 Cal.4th at p. 248.) In applying this holding to the case before it, in which the defendant was convicted of both continuous sexual abuse of a child and specific sexual offenses that involved the same child during the same time period that were not alleged in the alternative, the Court noted the appellate court correctly reversed the defendant’s convictions of the specific sexual offenses. (Ibid.)
In People v. Torres (2002) 102 Cal.App.4th 1053 (Torres), the jury convicted the defendant of continuous child sexual abuse and 10 individual sexual offenses against the same victim during the same time period; the charges had not been alleged in the alternative. The issue before the court in Torres was whether, in light of the Johnson decision prohibiting multiple convictions in such a situation, the court has discretion to vacate either the continuous sexual abuse of a child conviction or the convictions of the specific sexual offenses, or instead is required to vacate the convictions on the specific counts. (Torres, supra, 102 Cal.App.4th at p. 1057.)
To determine the appropriate remedy for failure to plead offenses in the alternative, the court examined the Legislature’s intent in enacting section 288.5 and concluded that courts have discretion to decide which convictions to vacate. (Torres, supra, 102 Cal.App.4th at pp. 1058-1060.) The court explained, “. . . section 288.5, subdivision (c) gives the prosecutor maximum flexibility to allege and prove not only a continuous sexual abuse count, but also specific felony offenses commensurate with the defendant’s culpability, subject only to the limitation that the defendant may not be convicted of both continuous sexual abuse and specific felony sex offenses committed in the same period. It therefore is also appropriate, in deciding which convictions to vacate as the remedy for a violation of the proscription against multiple convictions set forth in section 288.5, subdivision (c), that we leave appellant standing convicted of the alternative offenses that are most commensurate with his culpability.” (Torres, supra, at p. 1059.)
The Torres court noted its conclusion was reinforced by People v. Alvarez (2002) 100 Cal.App.4th 1170 (Alvarez), in which the defendant there contended the trial court erroneously granted the prosecution’s motion to dismiss a continuous sexual abuse charge that had not been alleged in the alternative to three lewd conduct counts, which motion was brought after the evidence was received in the court trial but before the trial court decided the case. The appellate court concluded the trial court properly granted the motion because, by failing to demur to the information, the defendant could not claim the prosecution lost its right to proceed on all of the counts and elect to seek conviction of the specific sexual offenses. (Alvarez, supra, 100 Cal.App.4th at p. 1177.) The Alvarez court noted this conclusion was consistent with the apparent legislative purpose of section 288.5, as it “would be anomalous if section 288.5, adopted to prevent child molesters from evading conviction, could be used by those molesters to circumvent multiple convictions with more severe penalties and prior-strike consequences than available for a conviction under section 288.5.” (Alvarez, supra, 100 Cal.App.4th at pp. 1177-1178.)
The Torres decision was followed in People v. Bautista (2005) 129 Cal.App.4th 1431 (Bautista). In Bautista, after entering a no contest plea, the defendant was convicted, among other things, of one count of continuous sexual abuse of a child and five counts of procurement of a child for lewd and lascivious acts against the same victim within the same time period. On appeal, the defendant asserted she could not be convicted of both continuous sexual abuse and procurement of the same child during the same time period. (Bautista, supra, 129 Cal.App.4th at p. 1433.) The appellate court agreed. Applying the holding in Torres that when either a continuous sexual abuse conviction or a specific felony offense conviction must be vacated for a violation of section 288.5, subdivision (c), the defendant should be left standing convicted of the alternative offenses that are most commensurate with his or culpability, the court affirmed the conviction of continuous sexual abuse and vacated the procurement convictions. In so doing, the court reasoned that convicting the defendant of procurement was not proportionate to the egregious criminal conduct in which she engaged. (Bautista, supra, 129 Cal.App.4th at pp. 1437-1438.)
As Wright points out, none of these cases specifically address the issue he raises here, namely whether section 288.5 requires that the jury render a verdict in the alternative or whether the statute authorizes the trial court to decide which charges to reverse. Wright contends that because section 288.5 requires the prosecution to charge continuous child sexual abuse and specific sexual offenses in the alternative, the Legislature intended that the jury return alternative verdicts. Nothing in the language or purpose of section 288.5, however, supports this contention. Moreover, there are significant practical and legal impediments to proceeding in the manner he suggests.
“Our role in construing a statute is to ascertain the intent of the Legislature in order to effectuate the purpose of the law. [Citation.] Because the statutory language is generally the most reliable indicator of that intent, we look first at the words themselves, giving them their usual and ordinary meaning and construing them in context. [Citation.] If the plain language of the statute is clear and unambiguous, our inquiry ends, and we need not embark on judicial construction. [Citations.] If the statutory language contains no ambiguity, the Legislature is presumed to have meant what it said, and the plain meaning of the statute governs.” (Johnson, supra, 28 Cal.4th at p. 244.) If the initial steps in the process do not reveal a clear meaning, we “apply reason, practicality, and common sense to the language at hand. If possible, the words should be interpreted to make them workable and reasonable . . . in accord with common sense and justice, and to avoid an absurd result.” (Halbert’s Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1239.)
Section 288.5 makes no reference to alternative verdicts or who decides whether a defendant shall stand convicted of continuous child sexual abuse or the specific sexual offense or offenses charged in the information. Given the practical realities we shall describe, it is entirely possible the omission reflects the Legislature’s intent to leave to the trial court the decision whether to provide the jury with alternative verdicts or, under the procedure followed in Johnson, supra, 28 Cal.4th at p. 249, to exercise its own discretion to resolve the matter after the jury renders its verdict on all counts.
The Legislature enacted section 288.5 in 1989 in response to the decision in People v. Van Hoek (1988) 200 Cal.App.3d 811, disapproved in People v. Jones (1990) 51 Cal.3d 294, 322. (Stats. 1989, ch. 1402, § 1, p. 6138.) The Van Hoek line of cases had reversed convictions of resident child molesters based on “generic” testimony that was unspecific as to time and place. (Johnson, supra, 28 Cal.4th at p. 247.) The Legislature stated its intent in enacting section 288.5 was “to provide additional protection for children subjected to continuing sexual abuse and certain punishment for persons referred to as ‘resident child molesters’ by establishing a new crime of continuing sexual abuse of a child under circumstances where there have been repeated acts of molestation over a period of time, and the perpetrator either resides with or has recurring access to the child.” (Stats. 1989, ch. 1402, § 1, p. 6138, italics added.) As explained in Johnson, “the Legislature apparently was not seeking to multiply potential convictions or punishments for such offenders, but rather to subject them to ‘certain’ punishment by lowering the unanimity hurdle against which many molestation prosecutions evidently had stumbled.” (Johnson, supra, 28 Cal.4th at p. 247.) Thus, section 288.5 provided a fallback position when the victim could not provide details regarding the defendant’s abuse at trial.
When first enacted, section 288.5, subdivision (c) prohibited any “felony sex offense involving the same victim” from being charged in the same proceeding with a charge under section 288.5 unless the other charged offense occurred outside the time period charged under section 288.5 or the other offense was charged in the alternative. (Stats. 1989, ch. 1402, § 4, p. 6140.) Effective September 20, 2006, section 288.5, subdivision (c) was amended to replace any “felony sex offense involving the same victim” with any “act of substantial sexual conduct, as defined in subdivision (b) of Section 1203.066, with a child under 14 years of age at the time of the commission of the offenses, or lewd or lascivious acts, as defined in Section 288,” but the subdivision otherwise remained the same. (Stats. 2006, ch. 337, § 8, p. 2133.)
But not every prosecution under section 288.5 involves generic testimony. Where, as here, the evidence is specific enough to support jury verdicts convicting a defendant of both continuous child sexual abuse and separate, specific counts of sexual abuse, the only principled way for either a jury or a trial judge to differentiate between the section 288.5 violation and the specific offense or offenses is by length of sentence. The jury, however, is not privy to that information. Indeed, it is instructed not to consider penalty when deciding an accused’s guilt or innocence. (People v. Shannon (1956) 147 Cal.App.2d 300, 306; see CALJIC No. 17.42 (Jan. 2004 ed.).) To ask the jury to return alternative verdicts in cases alleging continuous child sexual abuse and specific acts of abuse in the alternative — where there is no other basis for differentiating between them — invites the jury to speculate on penalty.
The Legislature cannot have intended the jury to unlawfully consider penalty in deciding whether to convict or acquit a defendant of the alternative counts. In any event, we will not condone such an absurd result by adding language to section 288.5 to require the jury to return alternative verdicts.
Wright also contends the trial court’s decision to dismiss his conviction under section 288.5 does not meet the due process requirements articulated in Hicks v. Oklahoma (1980) 447 U.S. 343 (Hicks). Unlike California, in Oklahoma a convicted defendant was entitled to have a jury fix his or her punishment under statutory law. The Oklahoma trial court instructed the jury in accordance with the recidivist statute then in effect that if it found Hicks guilty, it was required to impose a mandatory 40-year prison term. The jury returned a guilty verdict and imposed the mandatory term. (Id. at pp. 344-345.) Hicks unsuccessfully sought to have his sentence set aside after the Oklahoma Court of Criminal Appeals declared the mandatory 40-year sentence unconstitutional in another case. The Oklahoma Court of Criminal Appeals reasoned the unconstitutional statute did not prejudice Hicks because his sentence was within the range of punishment the jury could have imposed. The United States Supreme Court granted certiorari and vacated the judgment, ruling that where a state has provided for the imposition of criminal punishment in the jury’s discretion, the defendant has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury’s exercise of its discretion, and there was a substantial possibility the jury would have returned a sentence of less than 40 years had it been instructed correctly. (Id. at pp. 345-346.)
Wright maintains that Hicks is applicable here because the Legislature has established that a jury must decide between alternative charges. He insists this was “structural error” subject to per se reversal. The flaw in Wright’s argument, however, is that section 288.5 does not state whether it is the jury or the trial court who determines of which alternative charge the defendant shall stand convicted. We already have concluded the Legislature could not have intended that the jury be required to make that determination. Accordingly, Hicks has no bearing on this case.
Apart from his argument that the jury was required to decide between the alternative counts, Wright does not contend the trial court otherwise erred in dismissing the section 288.5 charge and sentencing him on the remaining charges. Since we have concluded the jury was not required to decide the issue, there is no basis to reverse the trial court’s decision.
The Section 294 Fine
Wright contends the additional penalties assessed in conjunction with the $200 restitution fine imposed pursuant to section 294, specifically those imposed pursuant to sections 1464 and 1465.7, and Government Code sections 76000 and 70372, subdivision (a), are unauthorized penalties which must be stricken. The People concede the additional penalties are unauthorized. We agree.
Section 294, subdivision (b), by its terms, constitutes a restitution fine. Pursuant to recently enacted Legislative amendments, the penalty assessment and surcharge provisions the court imposed with respect to section 294 do not apply to restitution fines. (§ 1464, subd. (a)(3)(A); § 1465.7, subd. (a); Gov. Code, § 70372, subd. (a)(3)(A); Gov. Code, § 76000, subd. (a)(3)(A).) The amendments operate retroactively and apply to this case. (People v. Walz (2008) 160 Cal.App.4th 1364, 1371-1372.) Accordingly, these penalty assessment and surcharge provisions cannot be imposed in conjunction with the section 294 restitution fine and must be stricken.
Section 294, subdivision (b) provides, in pertinent part: “Upon conviction of any person for a violation of Section ... 288a ... where the violation is with a minor under the age of 14 years, the court may ... order the defendant to pay a restitution fine based on the defendant’s ability to pay ...”.
DISPOSITION
The superior court is directed to prepare amended minutes of the October 26, 2007 sentencing hearing to make the following corrections: delete the order to pay the “$630.00 fine, including penalties per PC 294(a)” and the references under it to the “$200.00 Base Fine [¶] $200.00 Penalty Assessment -- PC 1464 [¶] $140.00 County Penalty Assessment -- GC 76000 [¶] $50.00 State Court Facilities Construction Fund Penalty - GC 70372(a) [¶] $40.00 Surcharge per PC 1465.7,” and replace it with an order to pay a $200.00 restitution fine pursuant to section 294, subdivision (a). The superior court is further directed to prepare an amended abstract of judgment deleting the $630 fine under Penal Code section 294, subdivision (a) and the penalties listed thereunder, replace it with the $200 restitution fine pursuant to section 294, subdivision (a), and forward a certified copy of the same to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: Vartabedian, Acting P.J. Cornell, J.