IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION ONE
Case No. D062918
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent
v.
GERARDO ESCOBEDO,
Defendant and Appellant.
San Diego County
Superior Court
Case Number
SCN295204
STATEMENT OF APPEALABILITY
This appeal is authorized, as it follows a judgment of final
conviction. (§ 1237, subd. (a);1 Cal. Rules of Court, rule 8.304(b)(4)(B).)
STATEMENT OF THE CASE
On May 1, 2012, a San Diego County jury convicted appellant,
Gerardo Escobedo, as he had been charged in a consolidated information
alleging 14 counts of committing lewd and lascivious acts upon three
children over a period of 14 years between 1997 and 2011 (§ 288, subd.
(a)). (1 CT 191-204.) The jury found that several of the counts involved
substantial sexual conduct (§ 1203.066, subd. (a)(8)) and, as to all of the
counts, the jury found that the offenses involved more than one victim (§§
1203.066, subd. (a)(7) & 667.61, subds. (b), (c), (e)). (1 CT 191-204.)2
On October 31, 2012, the court sentenced appellant to a term of 15
years to life on each count, for a total indeterminate term of 210 years to
life. (2 CT 277-278.) The court awarded him 756 days of presentence
custody credit.
1
(2 CT 278.)
It also imposed various fines and fees,
Statutory citations are to the Penal Code unless otherwise indicated.
2
The details of the specific charges and allegations will be discussed
in more depth below as they become pertinent to the context of the issues.
1
including a $570 drug program fee (Health & Saf. Code, § 11372.7, subd.
(a)) and a $190 lab analysis fee (Health & Saf. Code, § 11372.5, subd. (a)).
(Ibid.). Appellant filed a timely appeal on November 1, 2012. (2 CT 275.)
In this appeal, appellant contends that the judgment must be reversed
because he was denied fundamental due process and the right to present a
defense, as well as the right to be free of conviction except upon proof
beyond a reasonable doubt that he committed these crimes. He further
contends that, even if the convictions may stand in the face of the
fundamentally flawed trial process, the extraordinary sentence of 210 years
to life in prison must be reversed as an abuse of discretion or as a violation
of the constitutional protections against cruel and/or unusual punishment.
Lastly, appellant contests the drug program and lab analysis fees as clearly
unauthorized because he was not convicted of any drug offenses.
STATEMENT OF FACTS
Background
Appellant was an uncle by marriage to “A.”, “S.”, and “K.”, as he
was married to Ofelia Escobedo, who was the sister of K.’s father (“D.”)
and A. and S.’s mother (“O.”),3 and thus A., S., K., and Sarah (appellant
and Ofelia’s daughter) were cousins whose families spent time together
during their childhood. (4 RT 98-99, 156-157.) The charges in this case
arise from allegations of A., S., and K. that appellant molested them in
various ways on unspecified dates during various ranges of time over a total
period of 14 years between 1997 and 2011. The date ranges are largely tied
to appellant and Ofelia’s places of residence in Escondido during this time,
where most of the incidents allegedly occurred. The parties stipulated that
3
Consistent with the policies intended to preserve confidentiality for
minors in cases of this nature, appellant identifies the alleged victims and
their immediate family members by the first letter of their first names only.
2
appellant and Ofelia lived at the Friendly Hills Mobile Manor from
February 21, 2002 to April 18, 2003, in apartment 164 of the Cross Creek
Apartments from April 19, 2003 to June 30, 2008, and in apartment 219 of
the same complex from July 1, 2008 to February 7, 2011. (6 RT 357.) The
evidence concerning the various charges is summarized in turn below.
The Charges Involving “A.” (Counts 1-5)
Appellant was charged with four counts of committing a lewd and
lascivious act upon A. over a span of more than six years between February
21, 2002 and April 10, 2008 (Counts 1-5), as follows:
1: “On or about and between August 11, 2006 and August 10, 2008,”
appellant “touched [A.] at [A.’s] home”;
2: “On or about and between April 19, 2003 and June 30, 2008,”
appellant “touched [A.] at Cross Creek Apartments – first time”;
3: “On or about and between April 19, 2003 and June 30, 2008,”
appellant “touched [A.] at Cross Creek Apartments – last time”;
4: “On or about and between February 21, 2002 and April 18, 2003,”
appellant “touched [A.] at Friendly Hills Mobile Manor – first time”; and
5: “On or about and between February 21, 2002 and April 18, 2003,”
appellant “touched [A.] at Friendly Hills Mobile Manor – last time.”
Counts 2, 3, 4, and 5 were alleged to have involved substantial
sexual conduct. (§ 1203.066, subd. (a)(8).)4
(1 CT 15-16.)
The following evidence was developed concerning these charges:
A. was born in August 1994 and was 17 years old at the time of trial.
(5 RT 246-248.) When she was younger, she and S., her older brother,
would stay at appellant and Ofelia’s house during periods of the day that
4
The prosecution initially charged a substantial sexual conduct
allegation with respect to Count One, but later dismissed it. (1 CT 14.)
3
their parents were working. (5 RT 249, 307.) This started when she was
six or seven and continued until “maybe like when middle school was
over.”
(5 RT 248-250, 287.)
Appellant was sometimes there and
sometimes not, depending upon his work schedule. (5 RT 250, 308-309.)
“Things happened” between her and appellant. (5 RT 250.) As for when
this started, A. testified: “I can’t put a date on it or an age, but I know I was
in elementary school.” (5 RT 250.) She said she was either “probably like”
eight or nine, in the second or third grade, or she was “probably six or
seven.” (5 RT 250, 273.) These things started at the Friendly Hills Manor
mobile home. (5 RT 250-252, 287.) The first thing she recalled was
playing in a corner of the home one day when appellant asked her to come
lay with him on the couch, saying he “wanted to put his hotdog in [her]
bun.” (5 RT 252-255, 287-288.) A. stayed where she was and nothing else
happened. (5 RT 254, 287-288.) As for what else happened at the mobile
home, A. testified she did not remember whether “touching” had occurred
there, saying “I don’t remember a lot about that mobile home,” though she
later said “there was a lot less touching” there. (5 RT 255, 289-290.) A.
said no touching of her breasts had occurred there and she did not recall
whether there had been any touching of her vaginal area. (5 RT 271, 291.)
At the preliminary hearing, A. had testified that more “stuff” happened
there, including “more than one time” when appellant came up behind her,
hugged her, and rubbed her vaginal area. (5 RT 271-272, 303.) After being
shown this testimony at trial, A. said this was the case. (5 RT 272-273.) In
an interview with a criminal investigator before trial, A. reported that
appellant had come up from behind and touched her breast and vaginal
areas an unspecified number of times at the mobile home, though she really
“couldn’t remember the exact date or different locations.” (5 RT 320-322.)
A. testified that more incidents occurred at the first Cross Creek
apartment in which appellant and Ofelia lived, when she was seven, eight,
4
or nine years old. (5 RT 292, 296.) As for what happened, A. testified that
on one occasion while she was playing with some blocks, appellant came
up behind her, held her still with one arm and then touched or “massage[d]”
her vaginal area over her clothes with his free hand. (5 RT 256-259.) As
for how many times this sort of vaginal touching happened, A. testified that
it was “more than one time” or “a lot of the time,” and that sometimes
appellant would also touch her breast area with the arm he was using to
hold her still. (5 RT 258, 261, 266-268.) Later, she testified that she
remembered only one specific incident of vaginal touching (when she was
playing with blocks) because she had “tried to suppress it as much as
possible.” (5 RT 270-271, 290.) Finally she said she did not remember any
specific instances as she “just remembered it happening.” (5 RT 296.)
A. also testified that she recalled an incident on a “pendulum” or
stretching table the Cross Creek apartment, recounting that appellant
strapped her to the table on one occasion and grabbed her breast in the
process of flipping her over. (5 RT 259-261.) Other than that this incident
was during the daytime, A. could not specify when it had occurred. (5 RT
261.) She had never told anyone about this alleged incident before trial; it
“was a new memory that [she] remembered.” (5 RT 293, 303.)
A. recounted another unspecified time at the same apartment when
appellant exposed himself to her: he came out of the bathroom after a
shower wearing only a towel, looked directly at A., unwrapped the towel
exposing his genitals, and then rewrapped it around himself when she
turned and walked away from him. (5 RT 262-265, 295.)
The babysitting at appellant’s house stopped when A. was around
eight or nine years old. (5 RT 297.) The next time something happened
was when A. was “older,” a teenager, “probably like thirteen.” (5 RT 275.)
She did not know the date, month, or the time of year – just that it was
daytime and “it might have been during the summer.” (5 RT 275-276.) A.
5
testified that on this occasion, she was at her home in Escondido sitting at a
computer when appellant came over to pick up some tools. (5 RT 274,
297.) While there, appellant approached A., grabbed and massaged her
breasts over her clothing, and then turned around to leave. (5 RT 274-275,
297.) As he was walking away, A. picked up something and threw it at him
because she was mad. (5 RT 274-275.) Appellant got mad in response,
walked back up to A., and grabbed one of her breasts again. (5 RT 275276.) Then he turned around and left with the tools. (5 RT 276-277.)
A. initially did not tell anyone about these incidents, because she
was trying to suppress the memories to make it easier for everyone. (5 RT
278, 291-292, 294-296, 297-298.)
Sometime in February 2011, an
investigator came over and asked about whether anything had ever
happened with appellant. (5 RT 279.) A. told the investigator nothing had
happened, and that she had a good relationship with him, he was her
favorite uncle, and he was “respectful and caring.” (5 RT 279-281, 299.)
She testified that she had lied about this because she was concerned about
making things complicated and ruining people’s lives. (5 RT 280, 299.)
A. knew at the time that K. had raised some sort of allegations
against appellant; she did not know the nature of the allegations, but she
assumed they were sexual in nature. (5 RT 280-281, 284, 298.) A. got the
impression that the family was defending appellant. (5 RT 298, 311.) So
she decided to tell her church youth leader that appellant had molested her.
(5 RT 299, 312-313.) This was about a week after the investigator had
interviewed her. (5 RT 281-283, 299-300.) The youth leader said she
should tell her parents. (5 RT 283, 314.) A. told her mother about a month
later. (5 RT 283-284.) In June 2011, Leslie and A. told A’s father. (5 RT
284-285, 298, 310, 316.) The matter was reported to police. (5 RT 300.)
6
A. testified that she knew something had happened to her brother S.,
but that she had not talked to him about it. (5 RT 285.) She also had not
talked to K. about the allegations that K. had made. (5 RT 286.)
During a pretrial interview with Christina Schultz, a child forensic
interviewer, A. reported general allegations that appellant had touched her
breast and vagina over her clothes multiple times without specifying the
time, place, or specific nature of the incidents, except that she had described
the alleged breast touching incident at her house. (5 RT 337-339, 346.)
The Charges Involving “S.” (Counts 6-11)
The prosecution charged appellant with six counts of committing a
lewd and lascivious act against S. over a span of eleven-and-a-half years
between January 1, 1997 and June 30, 2008 (Counts 6-11), as follows:
6: “On or about and between January 1, 1997 and February 20,
2002,” appellant “touched [S.] at Paseo del Prado Apartments – first time;”
7: “On or about and between January 1, 1997 and February 20,
2002,” appellant “touched [S.] at Paseo del Prado Apartments – last time”;
8: “On or about and between February 21, 2002 and April 18, 2003,”
appellant “touched [S.] at Friendly Hills Mobile Manor – first time”;
9: “On or about and between February 21, 2002 and April 18, 2003,”
appellant “touched [S.] at Friendly Hills Mobile Manor – last time”;
10: “On or about and between April 19, 2003 and June 30, 2008,”
appellant “touched [S.] at Cross Creek Apartments #164 – first time”; and
11: “On or about and between April 19, 2003 and June 30, 2008,”
appellant “touched [S.] at Cross Creek Apartments #164 – last time.”
7
Counts 8, 9, 10, and 11 were alleged to have involved substantial
sexual conduct. (§ 1203.066, subd. (a)(8).)5
(1 CT 16-19.)
The evidence developed regarding these allegations was as follows:
S. was born in December 1992 and was about 19 at the time of trial.
(6 RT 359.) S. recalled that the babysitting at appellant and Ofelia’s began
when he was in the second grade and continued until he was in the fifth or
sixth grade though he was not sure. (6 RT 362-363, 404-405.) Appellant
was there sometimes and sometimes not. (6 RT 363-364.) S. testified that
appellant “molested” him at various times during this period at the Paseo
del Prado apartment, Friendly Hill Mobile Manor, and the Cross Creek
apartment (#164), where appellant and Ofelia had lived over the general 11and-a-half year period of the allegations. (6 RT 363-364, 375, 404-405.)
S. testified that sometime in second grade appellant started playing a
“game,” taking S.’s hand and placing it on various places of A.’s body over
the clothes and asking S. to guess the part of the body – this involved
appellant’s arms and legs and eventually, on one occasion, his genital area.
(6 RT 365-367, 404-405.)
Regarding this activity, appellant told S.,
“touching is touching, and it doesn’t matter where it is.” (6 RT 365-366,
404.) Appellant also started touching S. around this time, resting his hand
on S.’s genital area, massaging the area over the clothes, or making skin-toskin contact. (6 RT 367-379.) This happened “more than sometimes” and
it was more of a general than a specific memory of touching that started in
the second grade and continued through the fifth or sixth grade. (6 RT 367370.) S. did not specify where these “games” had occurred; he recalled
5
Regarding Counts 6 and 7, the jury found that the prosecution had
commenced in a timely manner – i.e., that S. was under 18 years of age at
the time of the alleged acts and that the prosecution was commenced on or
before his 28th birthday (§ 801.1, subd. (a)). (1 CT 196-197.)
8
only one such game at the Paseo del Prado apartment, though he believed
appellant had “groped” him at all three apartments. (6 RT 387-389.)
In discussing the grouping incidents, S. testified that one time at the
Friendly Hills Mobile Manor, he was lying face down across appellant’s lap
when appellant began massaging him, starting with his shoulders and
eventually progressing down to his genital area which appellant then
groped until it hurt. (6 RT 370-373.) S. said appellant groped him more
than one time at this apartment. (6 RT 390.) S. did not specify his age, the
month, year, or the time of year that this incident allegedly occurred. He
also testified about a “new memory” he just recalled about this apartment
before trial, saying at another unspecified time S. unzipped his pants in
response to appellant’s request to see his penis and appellant then stroked
his penis, while commenting it was kind of funny that S. got an erection
because he did not think S. was able to get an erection. (6 RT 391-392.)
S. recounted another groping incident at an unspecified time at the
Cross Creek apartment, saying they were sitting on a couch watching
television when appellant reached under a blanket covering S. and groped
S.’s genitals over the clothes. (6 RT 371, 373-374, 407-408.) This was
another “new memory” or “flashback” about the events at this apartment
that had come to S. for the first time a couple of weeks before trial. (6 RT
400, 407.) S. also said one time, in the fifth or sixth grade, S. was sleeping
over when appellant turned on a pornographic show and groped S.’s
genitals over the clothes while S. was on the couch. (6 RT 369, 405.)
S. testified that there were other incidents at the Cross Creek
apartment when he was in the fifth or sixth grade. (6 RT 609.) He gave a
general account of having touched appellant’s genitals at various
unspecified times, saying that he had groped appellant’s genitals or touched
his penis; sometimes appellant asked S. to touch him and other times it was
“more of [S.’s] own free will.” (6 RT 385-386.) S. also testified about
9
instances of masturbation at unspecified times during this period. On more
than one occasion while S. was taking a shower, appellant had entered the
shower and masturbated S. to the point of ejaculation. (6 RT 383-384, 410411.) On another unspecified occasion in this apartment, S. was in the
bathroom standing over the toilet when appellant entered and masturbated
S. into the toilet. (6 RT 383-384, 394, 410.) In addition, “as a general
memory” of something he believed had happened more than once, S.
testified that he had entered the bathroom to find appellant masturbating
himself over the sink, appellant asked S. to touch his penis, and S. then
participated in bringing to appellant to the point of ejaculation by stroking
appellant’s penis during the process. (6 RT 386-387, 394, 412.)
S. further testified that appellant had “flashed” him at both the
Friendly Hills Manor mobile home and the Cross Creek apartment, opening
his towel which exposed his genitals while looking directly at S. (6 RT
376-378, 395, 409.) A. had been there on one such an occasion. (6 RT
378.) S. also recalled an occasion at some point in time at the mobile home
when appellant came up behind A., wrapped his arms around her, and said
“Can I put my hotdog in your buns?” (6 RT 375-376, 391, 396.) This was
the only instance of appellant’s touching A. that he had seen. (6 RT 396.)
S. initially did not tell anyone about these alleged incidents. (6 RT
408-409, 411.)
S. recalled that appellant at one point had tried to
rationalize what was happening by saying he was preparing S. for the
world. (3 RT 396.) S. testified that he had never discussed these matters
with A. (6 RT 395-396, 415.) He had at one point, however, told A. that
he knew a way they could “get back” at appellant. (6 RT 395, 413, 414.)
S. testified that, by this, he had not mean reporting false allegations, but
instead meant being prepared with a response the next time appellant tried
to rationalize the situation. (6 RT 395-396.) S. first told a friend in high
school about the alleged incidents with appellant. (6 RT 397, 406.) He had
10
not said anything earlier because he felt shameful and embarrassed about
the situation. (6 RT 399.) S. later told his mother, who did not report the
allegations. (6 RT 397-399.) He also told some teachers in college, who
did not report them either. (6 RT 398-399, 405-407, 419-420.) The next
time S. said anything was to the police in June 2011, after his father told
him about K.’s allegations against appellant and after S. also learned that A.
had reported allegations against appellant. (6 RT 399-402, 414-416.)
The Charges Involving “K.” (Counts 12-14)
Appellant was charged with four counts of committing a lewd and
lascivious act against K. over a span of more than five-and-a-half years
between April 1, 2005 and January 1, 2011 (Counts 12-14), as follows:
12: “On or about and between April 1, 2005 and January 1, 2011,”
appellant “touched [K.’s] body”;
13: “On or about and between April 1, 2005 and January 1, 2011,”
appellant “pulled [K.’s] hand onto his body – first time”; and
14: “On or about and between April 1, 2005 and January 1, 2011,”
appellant “pulled [K.’s] hand onto his body – last time.”
(1 CT 19-20.)
The evidence concerning these allegations was as follows:
K. was born in March of 1997 and was 15 years old at the time of
trial. (4 RT 96.) K. testified regarding times she spent at appellant and
Ofelia’s residence between the ages of about eight and twelve when they
lived in the Cross Creek Apartment complex. (4 RT 99-101, 134-135,
140.) She recounted incidents that she recalled having occurred during this
time, though she testified that she did not recall when or in what order they
had occurred other than being able to distinguish the first one from the last
one. (4 RT 143-144, 160.) As for the first incident, K. testified that
appellant had her hugged her from behind in the kitchen, held on tightly
11
with both arms to the point that it hurt while “shooshing” her to be quiet,
and touched her breast for “a few seconds” until someone started coming
out of the bathroom. (4 RT 101-107, 115, 140-142, 159.) At trial, K. did
not specify her age, the year, the month, or the time of the year this incident
had allegedly occurred. In a pretrial interview with Christina Schultz, the
forensic interviewer, in October 2010, K. had said she believed she was
around nine years old, though she was not sure. (5 RT 332-333, 336.)6
K. testified to another incident in which she said that appellant had
touched her breast. She said it happened at the pool in the apartment
complex sometime when she was eight, nine, or ten years old -- she could
not recall her age or the day or month, though she believed it was the
summer time since it was at the pool. (4 RT 108-110, 113, 135-136, 144.)
Having offered to help K. learn to swim, appellant was holding her up in
the water as she lay with her chest across his arms. (4 RT 109-112, 146147.) During this time, appellant’s hand slid under K.’s bathing suit and he
started caressing her breast area and continued doing so, even though she
told him to stop, until she pushed away from him. (4 RT 113-115, 147148; 5 RT 333-334, 347.) S., A., Ofelia, and Sarah were all there at the
time of this incident at different areas of the pool. (4 RT 110, 144-146,
158-159, 161.) K. said she believed there may have been other times that
appellant touched her chest area, but she was not certain. (4 RT 108, 116.)
K. gave a similarly general timeframe in describing the third incident
of appellant’s having touched her – testifying that she did not know the day,
month, or year and just recalled that it was sometime in the summer when
she was eight, nine, or ten. (4 RT 116-117, 151, 160; see also 5 RT 335
[where Schultz testified that, during the forensic interview, K. did not say
how old she was at the time of this incident].) This time, K. testified, she
6
No transcript or recording of this interview was presented at trial.
12
was playing video games in the dining room with appellant’s daughter
Sarah when appellant (who was shirtless at the time) came up behind her
and asked K. for her hand. (4 RT 116-120, 149.) K. gave him her hand,
balled it up into a fist, which he then painfully pulled back toward him until
her knuckles touched his “private area” over his pants. (4 RT 116, 120122, 150-151; 5 RT 334-336.) When appellant would not let go of her
wrist despite her efforts to pull away, K. told Sarah to tell appellant to let
go, and Sarah started hitting him until he released K.’s hand. (4 RT 120123.) She and Sarah then resumed playing video games. (4 RT 122-123.)
Finally, as the last incident, K. described a similar situation at her
Aunt Mara’s house in Escondido on a Saturday or Sunday when she was
around 12 years old, though she did not know the time of year. (4 RT 124126, 152, 155-156, 160; 5 RT 331.) K. testified that she was sitting on the
couch with appellant and Sarah when appellant grabbed K.’s wrist and
pulled her hand toward his private area until her knuckles touched his
crotch of his pants. (4 RT 125-129, 152-154, 158; 5 RT 330-332.) At first,
K. angled herself so as to block Sarah’s view of this, but when appellant
would not let go as she struggled against him to pull her arm away, K.
asked Sarah for help, and Sarah punched and slapped him until he let go.
(4 RT 125, 127-130, 153.) K. laughed and pretended as if she and appellant
had been playing a game so that Sarah would not get scared. (4 RT 125.)
K. did not tell anyone about these incidents because she felt
uncomfortable and “didn’t know what was happening.” (1 RT 114, 130131, 143, 148, 151, 159-160.) When she was 13 or 14, K. told her Aunt
Mara, and eventually her parents. (4 RT 131, 155-156, 165-166, 168.)
K.’s father, D., testified that he had left K. at Ofelia and appellant’s
house for a few hours a couple of days a week during two summers when
K. was between eight and ten years old. (4 RT 164-165.) Ofelia was
13
always there when he dropped off K. (4 RT 164.) Appellant was there
“sometimes”; there were times that D. did not see him. (4 RT 1 164-165.)
According to K. and D., sometime after K. had reported these
allegations to her parents, appellant called their home and left a voice
message on their answering machine in which he said something to the
effect that he was very sorry and that, if he done anything to K., it was
“unconsciously done” and he had not intended to hurt her. (4 RT 138-139,
156, 166-167, 169.) The message was ultimately deleted before anyone
else, including the police, had heard it. (4 RT 156, 166, 169.) When D.
later went to appellant’s house to speak with him, appellant said nothing
had happened between him and K. (4 RT 166-167.) The family decided to
report the matter to police a few weeks later. (4 RT 167.)
K. had not discussed this situation with S. or A., though she recalled
that her parents had spoken with their parents about it. (4 RT 139, 157,
165.) D. confirmed in his testimony that he had discussed the matter with
O., S. and A.’s mother, and other family members. (4 RT 168-169.)
During the forensic interview, K. reported that appellant had also
touched her vaginal area, though she did not provide any specific instances
or details about this except to say that he had hugged her and touched her
on the chest and “down there” while in the kitchen. (5 RT 346-350.)
The prosecution also introduced the testimony of Damian Jackson, a
detective for the City of Escondido, who had witnessed the pretrial forensic
interview of K. and who had then interviewed appellant about these
allegations in early 2011. (4 RT 170-174, 177, 182; 5 RT 202-205, 212,
222-223, 235-238.)
Jackson first made a phone call to appellant who
agreed to discuss the allegations, which he had learned about from D. (4
RT 176-177; 5 RT 212-213, 229.)7
7
Appellant generally denied any
No transcript or other recording of the call was presented at trial.
14
inappropriate conduct toward K. (4 RT 176-177; 5 RT 213-214, 229.)
When asked about the alleged pool incident, appellant first said he had only
gone there with his daughter and then said he had been there with his nieces
and nephews but that he never got into the pool because of a shoulder
problem or, if he did, he had immediately gotten out when others got in
because he had an embarrassing foot condition. (4 RT 177-178, 180-181.)
As for his contact with K., appellant first said he was never in the pool with
her and later said he had been in the pool with her but he had never touched
her inappropriately, so she must have misunderstood things if she believed
he had. (4 RT 181-182.) Jackson found appellant’s statements difficult to
follow and contradictory. (4 RT 177, 181.) When asked about the other
alleged incidents, appellant initially denied anything like that had ever
occurred. (4 RT 178.) He later said that he had grabbed K’s wrist and
pulled it toward him one time when they were in the kitchen because he
wanted to look at a mark on her wrist, and he had touched her breast during
the process. (4 RT 179-180; 5 RT 220, 229-230.) At the end of the call,
appellant said he did not understand the allegations. (5 RT 214.)
About a week later, appellant met with Jackson voluntarily at the
police station for another interview. (4 RT 182-183; 5 RT 215-216.)8 In
discussing K.’s time at his house, appellant initially said that she was not
often there and later said she was but he had minimal contact with her. (4
RT 186-187, 213.)
Appellant initially denied any contact with K.,
inappropriate or otherwise, with the exception of grabbing her wrist in the
kitchen. (4 RT 183-184, 216-217.) Under continued questioning about the
alleged breast touching in the kitchen, appellant said “maybe I bumped into
her in the kitchen and that’s where it could have happened.” (4 RT 186.)
Appellant denied K.’s allegation that he had forced her to touch his crotch
8
No transcript or recording of the interview was presented at trial.
15
at her Aunt Mara’s house. (4 RT 188.) Later, appellant said that one time
at his house, after performing a “magic trick” for K. with tissue paper in his
pants pocket, he had grabbed K.’s hand, put against his crotch area, and
held it there for several seconds until Sarah told him to let her go, at which
point he realized what he was doing and let her hand go. (4 RT 188-193,
196-197; 5 RT 218-219, 231-233.) He said this was unintentional, as he
had not intended to have K. grab him there. (4 RT 190, 192.) As for the
alleged computer incident, appellant initially denied any contact with K. in
the room with the computer, though he said under continued questioning
that he had “probably bumped into” K. and Sarah. (4 RT 184-186.)
A few days later, appellant called Jackson, said he wanted to talk
again, and met Jackson back at the police station.
(5 RT 222-223.)
Appellant said he had since talked to his wife, had lied in some of his prior
statements, and “I have been thinking about it, and I better come up with
some stuff.” (4 RT 197; 5 RT 223-224.) Jackson said he wanted appellant
to explain what happened and why K. had made these allegations, not to
just come up with things. (5 RT 224-227, 230, 232.) Appellant brought up
K.’s allegation about an inappropriate touching in the computer room,
saying, after having thought about it further, he must have inadvertently
bumped into the girls when he came up behind them and reached between
them to get the computer keyboard. (4 RT 195-197.) Regarding other
types of contacts he had with K., appellant said he had “poked” K. in the
chest with his finger at some point in the past and on another occasion his
hand came into contact with her lower stomach area to stop her from
flipping off of an inversion table at his house. (4 RT 198; 5 RT 227-229.)
Jackson acknowledged that an incident which K. had found
significant may have been something that appellant never realized
happened if the incident was an accident. (5 RT 225.) Throughout each of
Jackson’s communications with appellant, appellant said he never had any
16
bad or negative intent and did not intend to hurt K. at any time that he did
or may have touched her. (4 RT 197-199; 5 RT 219-220, 222.)
Expert Testimony
Catherine McLennan, a child forensic interviewer who had worked
in the field for 25 years, testified as an expert about child sex abuse victims.
(6 RT 421-425.) McLennan had not interviewed any of the alleged victims
in this case, and she had not reviewed any of the factual information
concerning the allegations; her purpose was only to discuss the behavioral
and psychological responses of child sex abuse victims as a general class.
(6 RT 440; 1 CT 180.)9
She testified that most victims in this class
significantly delay disclosure of the abuse. (6 RT 425-426, 441.) Those
who molest children often engage in a process of “grooming” – providing
positive attention, massaging, playing innocent games with them – to
desensitize the child to the touching. (6 RT 437-438.) The perpetrator is
usually someone with whom the child has a close relationship, often a
family member or someone close to the family, which can make disclosure
difficult, embarrassing, or shameful. (6 RT 426-428.) For similar reasons,
it is common for the child to initially deny the existence of abuse when first
9
The trial court gave the jury the following limiting instruction
regarding the purpose for which McLennan’s testimony could be used:
The testimony of Catherine McLennan was admitted
for a limited purpose. The testimony was offered and may be
considered by you only for the purpose of understanding a
class of individuals, child victims of sexual assault or abuse
that may behave in a certain way, or have a certain physical
condition, because of membership in this class of persons.
This evidence cannot be used for any other purpose. Do not
assume that because I give a particular instruction that I am
suggesting anything about the facts. [¶] The complaining
victims in this case may or may not be within that class of
persons. That is for you to decide.
17
asked about it. (6 RT 431-432.) After the disclosure is made, the details
tend to come out slowly and develop over time through further questioning
as the child recalls more or becomes more comfortable discussing the
situation. (6 RT 428-431, 441.) In explaining what occurred, if the abuse
has occurred on an ongoing basis, the child may not be able to recall the
specific incidents and instead may have only “episodic memory” – that the
incidents occurred a certain number of times over given period, such as
once or twice a week. (6 RT 432-434.) It varies from child to child, as
some give a lot of details while other give little. (6 RT 441-442.) The
question of “when” incidents occurred is often difficult for child to
articulate or recall, so interviewers typically leave this subject alone entirely
if the child is uncertain and focus instead upon basic milestones such as the
general timeframe of the first incident. (6 RT 435-436.)
The timing of a child’s report of sex abuse allegations, and the level
of detail provided and at what point after the disclosure, do not have any
bearing upon their truth or falsity. (6 RT 441-442.) False accusations do
occur, though studies indicate they are uncommon. (6 RT 443.)
Defense
Appellant’s daughter, Sarah, and wife, Ofelia testified for the
defense. Sarah was born in September 2000 and was 11 years old at the
time of trial. (6 RT 444, 453.) Sarah testified that appellant worked a lot
when she was younger. (6 RT 445-447.)
Her mother, Ofelia, would
babysit her cousins A. and S., and sometimes K. (6 RT 446.) They first
moved to apartment 164 in the Cross Creek apartment complex when Sarah
was about five years old. (6 RT 451.) Sarah believed that appellant was
there just a “couple of times” that year and the next year when A. and S.
were there, though she was ultimately uncertain just how often he was there
when A. and S. were being babysat. (6 RT 446, 451-452.) During the year
18
that she was seven, A. and S. came over only about once or twice a month,
and appellant “would be there maybe once every couple times a visit.” (6
RT 452-453.) Sarah did not recall ever having played a game on the
computer with K; nor did she recall ever having gone to the pool with her.
(6 RT 449-450.) Sarah recalled that Ofelia was the only one who brought
them to the pool and appellant never went. (6 RT 450, 454.)
The only
thing Sarah recalled doing with K. when K. came over was watching
television. (6 RT 450.) A. and S. would also just watch television and use
the computer when they came over. (6 RT 451.) Sarah did not recall ever
seeing any inappropriate behavior between appellant and A., S. or K., or
hearing appellant say anything sexual toward them. (6 RT 447.) Sarah
loved appellant but would not lie on his behalf; everything to which she had
testified was the truth to the best she was able to recall. (6 RT 447-448.)
Ofelia also testified that she loved appellant but would not lie for
him. (6 RT 461-462.) She said that she had baby-sat K. when K. was
between eight and ten years old, but only two to three times a year, during
Easter or Thanksgiving break; she did not recall ever having babysat K. two
to three times per week during the summer. (6 RT 459-460, 463-465.) She
also did not recall K.’s father having regularly dropped off K. with her
during the summers. (6 RT 464.) As for A. and S., Ofelia did babysit them
two to three times a week when they were on vacation, and sometimes
picked them up from school during the school year. (6 RT 460, 465-466.)
This started after they moved into Friendly Hills Mobile Manor and
continued after they moved to the Cross Creek apartment complex; Ofelia
had not babysat A. and S. at the Paseo del Prado apartment, as the children
had only visited with their parents there. (6 RT 466-468, 471-472.)
Appellant worked most of the time. He worked for an air
conditioning installation company that sent him out on various jobs for
various hours a week. (6 RT 460, 468-471.) He was there “sometimes”
19
when he was not working, though “hardly ever” when the children were
being babysat. (6 RT 460, 468-471, 475-476.) Ofelia did not recall that he
ever babysat the children when she was not there. (6 RT 460-461.) She did
not do laundry when the children were there, as she did laundry on the
weekends.
(6 RT 476.)
Other people were always around when the
children were there, like Sarah or appellant’s brother or his friend, such that
appellant was never alone with the children when the children were out of
Ofelia’s sight. (6 RT 476-477.) Ofelia said, “there was no way that he
would have been alone with them.”
(6 RT 477.)
Appellant always
showered at night, after work; he had never showered during the day when
the children were there. (6 RT 478-479.) Appellant hardly ever went to the
pool and never went to the pool with the other children. (6 RT 479-481.)
Ofelia did not recall exactly when she stopped regularly watching A.
and S. at her apartment, but believed it was by the time that A. was in the
sixth grade, and thereafter she had only had them over to go to the
swimming pool or she had watched them at their house. (6 RT 472-475.)
Ofelia never saw appellant touch any of the children inappropriately
and never heard him make any sexual comments to them. (6 RT 461.)
None of the children ever told her that he had touched them. (6 RT 462.)
///
20
ARGUMENT
I
APPELLANT WAS DENIED THE FUNDAMENTAL
RIGHT TO DUE PROCESS, A FAIR TRIAL, AND TO
PRESENT A DEFENSE BECAUSE HE WAS TRIED
AND CONVICTED UPON GENERIC TESTIMONY
ABOUT LARGELY UNDIFFERENTIATED ACTS OF
MOLESTATION OVER VAST RANGES OF TIME
THAT
COMPLETELY
FORESTALLED
ANY
REASONABLE POSSIBILITY OF PREPARING AND
PRESENTING HIS ONLY AVAILABLE DEFENSE
A.
The Basic Legal Framework
Of course, every criminal prosecution must afford the defendant the
fundamental rights to due process, a fair trial, to prepare and present a
defense, to remain free of conviction except upon proof beyond a
reasonable doubt of every element of every charge against him, and to be
protected against being prosecuted and punished twice for the same offense.
(U.S. Const., Amends. V, VI, XIV; Cal. Const., art. I, §§ 7, 15; see Rock v.
Arkansas (1987) 483 U.S. 44, 51 [due process, right to present a defense]
and People v. Cunningham (2001) 25 Cal.4th 926, 998-999 [same];
Jackson v. Virginia (1979) 443 U.S. 307, 316, 318-319 [proof beyond a
reasonable doubt] and People v. Johnson (1980) 26 Cal.3d 557, 576-578
[same]; United States v. Dixon (1993) 509 U.S. 688, 696 [double jeopardy]
and People v. Batts (2003) 30 Cal.4th 660, 685-686 [same].)
Generally, the prosecution’s failure to prove the exact date upon
which a charged offense allegedly occurred does not, by itself, violate these
rights, so long as the proof sufficiently establishes that the offense occurred
reasonably close to or reasonably near the date that the prosecution alleged
it occurred.
(See §955, People v. Crosby (1962) 58 Cal.2d 713, 725;
United States v. Hinton (9th Cir. 2000) 222 F.3d 664, 672.)
21
But courts have long recognized that cases involving allegations of
child molestation often pose unique difficulties in attempting to properly
accommodate both the defendant’s right to have each of these fundamental
constitutional protections scrupulously observed and the interest of the state
in ensuring that molesters are held accountable for their actions: “Society’s
interest in protecting its youngest and most vulnerable from sexual
molestation collides with our fundamental commitment to assuring a
criminal defendant due process of law, including the right to adequately
prepare a defense and to have guilt determined by a unanimous decision of
his or her peers.” (People v. Higgins (1992) 9 Cal.App.4th 294, 299.)
Years ago, courts were voicing concerns about the inherent dangers
of relying upon a child’s generic, non-specific allegations of molestation in
support of a charge that the defendant committed an act of molestation on
or reasonably close to a date or range of dates in the charging instrument:
‘In cases of this character about the only defense open to the
accused is that of an alibi. Therefore, unless the prosecutrix is
firmly held to fixing the time and place of the alleged
occurrence, the defendant is deprived of the opportunity to
present evidence in support of his contention that he was not
present with the child at the time and place claimed. That the
prosecutrix may have been a child of immature years and
consequently unable to remember dates and time furnishes no
valid reason for denying the accused the right to be advised of
the exact occasion upon which he is charged with committing
the offense.’
(People v. Ridout (1957) 154 Cal.App.2d 699, 674, quoting People v.
McCullough (1940) 38 Cal.App.2d 387, 390.)
Courts began extrapolating these concerns to the context of the
“resident child molester,” which is understood to mean one who “lived with
the victim for an extensive, uninterrupted period and therefore had
continual day and night access to the vulnerable child” (People v. Obremski
(1989) 207 Cal.App.3d 1346, 1353) or had “continuous access to him or
22
her” during the operative time (People v. Jones (1990) 51 Cal.3d 294, 299
(Jones)). The reasoning here was that such prosecutions raised the same
inherent concerns about a defendant’s ability to effectively defend himself:
A serious problem with the vague charges and the testimony
upon which they are based is that the defendant’s ability to
defend is severely hampered. A ‘resident child molester’
would virtually be precluded from presenting an alibi defense
to the acts unless he could account for every time he was in
the presence of the victim. In the instant case, defendant,
because he was the victim’s father and lived in the household,
has no idea what specific time or specific act he has to defend
against.... [¶] Also, the defendant is precluded from attacking
the victim’s testimony in any way other than a general attack.
(People v. Van Hoek (1988) 200 Cal.App.3d 811, 817.)
Then “[t]he Legislature offered a solution in 1989, by creating a new
and separate crime, the continuous sexual abuse of a child.” (§ 288.5.)
(People v. Higgins, supra, 9 Cal.App.4th at p. 299.)
This provision
dispensed with “any requirement of particularity or specificity of the
victim’s testimony,” as well as the need for unanimity “on which acts
constitute the requisite number,” and permitted conviction based on proof
that a person “who either resides in the same home with the minor child or
has recurring access to the child” committed three or more substantial
sexual acts (or three or more lewd and lascivious acts) over a three month
period coupled with the jurors’ unanimous agreement that three or more
such acts occurred. (People v. Jones, supra, 51 Cal.3d at p. 310.)10
10
Section 288.5 provides:
(a) Any person who either resides in the same home with the
minor child or has recurring access to the child, who over a
period of time, not less than three months in duration,
engages in three or more acts of substantial sexual conduct
with a child under the age of 14 years at the time of the
commission of the offense, as defined in subdivision (b) of
23
The next year, the California Supreme Court issued its opinion in
People v. Jones, supra, 51 Cal.3d 294, for the purpose of “attempt[ing] to
accommodate all legitimate due process concerns without immunizing
resident child molesters from prosecution.” (Id. at p. 299.) Specifically,
the court was concerned with the alleged molester “who either lives with
his victim or has continuous access to him or her” (id. at p. 299), giving rise
to cases in which the alleged victim was “molested over a substantial period
by a parent or other adult residing in his home . . .” (id. at p. 305). In such
situations, the alleged victim “may have no practical way of recollecting,
reconstructing, distinguishing or identifying by ‘specific incidents or dates’
all or even any such incidents.” (Ibid.) Thus, the court reasoned, “any
constitutional principles or evidentiary standards we develop should
attempt to assure that the resident child molester is not immunized from
Section 1203.066, or three or more acts of lewd or lascivious
conduct, as defined in Section 288, with a child under the age
of 14 years at the time of the commission of the offense is
guilty of the offense of continuous sexual abuse of a child and
shall be punished by imprisonment in the state prison for a
term of 6, 12, or 16 years.
(b) To convict under this section the trier of fact, if a jury,
need unanimously agree only that the requisite number of acts
occurred not on which acts constitute the requisite number.
(c) 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.
24
substantial criminal liability merely because he has repeatedly molested his
victim over an extended period of time.” (Ibid.) But that concern must be
balanced against the defendant’s “due process right to fair notice of the
charges against him and reasonable opportunity to defend against those
charges,” his right “to a verdict in which all 12 jurors concur, beyond a
reasonable doubt, as to each count charged,” and the constitutional
requirement of “substantial evidence” in support of any conviction. (Ibid.)
The Jones court expounded upon the roots of these protections,
stating that “[t]he ‘preeminent’ due process principle is that one accused of
a crime must be “informed of the nature and cause of the accusation.”
(People v. Jones, supra, 51 Cal.3d at p. 317, citing U.S. Const. Amend. VI.)
Fundamentally, “[d]ue process of law requires that an accused be advised
of the charges against him so that he has a reasonable opportunity to
prepare and present his defense and not be taken by surprise by evidence
offered at his trial.” (Ibid.) “Thus, the right to defend has two related
components, namely, the right to notice of the charges, and the right to
present a defense to those charges.” (Jones, at p. 317, italics original.)
Balancing the rights of a defendant with the state’s interest in
ensuring that resident molesters are not immunized from prosecution, the
court went onto hold that an alleged victim’s generic testimony describing
the kind, number, and general time period of the acts committed does not
violate a defendant’s fundamental rights to notice and to present a defense.
(People v. Jones, supra, 51 Cal.3d at pp. 318-320.)
In reaching this
conclusion, the court cited the various pretrial and trial strategies a
defendant may pursue in challenging such charges – e.g., a pretrial
demurrer to the complaint, pretrial discovery, denying the allegations on the
witness stand, presenting character evidence, impeaching the victim with
evidence of past fabrications, etc.
(Id. at pp. 317, 318, 320.)
Also
important to the court’s holding was its point that the defense of an alibi –
25
which is “about the only defense open to the accused” in any child
molestation case (People v. Ridout, supra, 154 Cal.App.2d at p. 674) – will
largely be unavailable in the case of a resident child molester. Specifically,
the court rejected the argument of Jones – the adoptive father of the victim
whose allegations were at issue – that the generic evidence precluded his
ability to assert an alibi defense, saying: “if the defendant has lived with the
victim for an extensive, uninterrupted period and therefore had continuous
access to the victim, neither alibi nor wrongful identification is likely to be
an available defense.” (Id. at p. 319; see also People v. Obremski, supra,
207 Cal.App.3d at p. 1353 [“In cases where the child molester lived with
the victim for an extensive, uninterrupted period and therefore had
continual day and night access to the vulnerable child, neither alibi or
wrongful identification is likely to be a reasonable defense.”].)
Regarding the matter of unanimity, the Jones court said: “As for the
necessity of a unanimous jury on specific charges, we acknowledge that the
requirement of unanimity in criminal cases is of constitutional origin.”
(People v. Jones, supra, 51 Cal.3d at p. 321.) “[E]ven generic testimony
describes a repeated series of specific, though indistinguishable, acts of
molestation.” (Ibid., italics original.) “The unanimity instruction assists in
focusing the jury’s attention on each such act related by the victim and
charged by the People.” (Ibid.) “We see no constitutional impediment to
allowing a jury, so instructed, to find a defendant guilty of more than one
indistinguishable act, providing the three minimum prerequisites heretofore
discussed [i.e., testimony describing the kind, number, and general time
period of the acts alleged] are satisfied.” (Ibid. at pp. 316, 321.)
The court gave examples of how this might properly play out:
For example, if the victim testified that an act of oral
copulation occurred once each month for the first three
months of 1990, and the People charge three counts of
molestation, the jury’s unanimous conclusion that these three
26
acts took place would satisfy the constitutional requirement of
unanimity. Similarly, if an information charged two counts of
lewd conduct during a particular time period, the child victim
testified that such conduct took place three times during that
same period, and the jury believed that testimony in toto, its
difficulty in differentiating between the various acts should
not preclude a conviction of the two counts charged, so long
as there is no possibility of jury disagreement regarding the
defendant’s commission of any of these acts.
(People v. Jones, supra, 51 Cal.3d at p. 321, italics original.)
The court also described the sort of unanimity instruction required
depending upon the nature of the jurors’ possible disagreement over the
particular acts that serve as the basis for the individual charges:
In a case in which the evidence indicates the jurors
might disagree as to the particular act defendant committed,
the standard unanimity instruction should be given.
[Citations.] But when there is no reasonable likelihood of
juror disagreement as to particular acts, and the only question
is whether or not the defendant in fact committed all of them,
the jury should be given a modified unanimity instruction
which, in addition to allowing a conviction if the jurors
unanimously agree on specific acts, also allows a conviction
if the jury unanimously agrees the defendant committed all
the acts described by the victim.
(People v. Jones, supra, 51 Cal.3d at pp. 321-322.) ‘“[B]ecause
credibility is usually the ‘true issue’ in these cases, ‘the jury either
will believe the child’s testimony that the consistent, repetitive
pattern of acts occurred or disbelieve it.’” (People v. Jones, supra,
51 Cal.3d at p. 322, quoting People v. Moore (1989) 211 Cal.App.3d
1400, 1414.) ‘“In either event, a defendant will have his unanimous
jury verdict [citation] and the prosecution will have proven beyond a
reasonable doubt that the defendant committed a specific act, for if
the jury believes the defendant committed all the acts it necessarily
believes he committed each specific act.”’ (Ibid.)
27
Consistent with the stated scope of the issue addressed in Jones,
courts have continued to apply the decision to molestation cases involving
“resident child molesters.” (See People v. Newlun (1991) 227 Cal.App.3d
1590, 1599 [The Jones case “defined the standards for reviewing questions
of sufficiency of the evidence and due process in so-called resident child
molester cases where the defendant is accused of multiple offenses and the
victim’s testimony concerning particular acts is ‘generic’ (i.e., nonspecific
as to time and place).”]; accord People v. Obremski, supra, 207 Cal.App.3d
at p. 1353 and People v. Matute (2002) 103 Cal.App.4th 1437, 1444-1445;
see also People v. Fortanel (1990) 222 Cal.App.3d 1641, 1645, citing the
Jones case [“In a recent opinion, the California Supreme Court settled these
issues in the resident child molester context.”].)
B.
Permitting the Jury to Convict Appellant of the Charged Crimes
Based Upon the Non-Specific Allegations of Molestation Over
Such Vast Ranges of Time Violated His Fundamental Rights
In this case, appellant was charged with 14 counts of child
molestation involving the three alleged victims over a total span of 14
years, which was divided up into four broad date ranges chronologically as
follows: January 1, 1997-February 20, 2002 (Counts 6 & 7); February 21,
2002-April 18, 2003 (Counts 4, 5, 8 & 9); April 19, 2003-June 30, 2008
(Counts 2, 3, 10, & 11); April 1, 2005-January 1, 2011 (Counts 12, 13, &
14); and August 1, 2006-August 10, 2008 (Count 1). (1 CT 12-20.) The
trial court instructed the jury that “[t]he People are not required to prove
that the crimes took place exactly on those days but only that it happened
reasonably close to that time frame.” (1 CT 150; CALCRIM No. 207
[Proof Need Not Show Actual Date].)11 The court went on to instruct that
11
The full instruction was as follows:
28
the prosecution had “presented evidence of more than one act to prove that
the defendant committed these offenses” and that, to convict, the jurors
must either (1) “all agree that the People have proved that the defendant
committed at least one of these acts and you all agree on which act he
committed for each offense” or (2) “all agree that the People have proved
that the defendant committed all the acts alleged to have occurred during
this time period and have proved that the defendant committed at least the
number of offenses charged.”
(1 CT 184; CALCRIM No. 3501
[Unanimity: When Generic Testimony of Offense Presented].)12
It is alleged that the crimes in Count One occurred on
or about and between August 11, 2006 and August 10, 2008.
It is alleged that the crimes in Count two, three, [ten] and
eleven occurred on or about and between April 19, 2003 and
June 30, 2008. It is alleged that the crimes in Count four,
five, eight and nine occurred on or about and between
February 21, 2002 and April 18, 2003. It is alleged that the
crimes in Count six and seven occurred on or about and
between January 1, 1997 and February 20, 2002. It is alleged
that the crimes in Count twelve, thirteen and fourteen
occurred on or about and between April 1, 2005 and January
1, 2011. The People are not required to prove that the crimes
took place exactly on those days but only that it happened
reasonably close to that time frame.
12
The full instruction was as follows:
The defendant is charged with a lewd or lascivious act
on a child under the age of 14 years in Count one sometime
during the period of August 11, 2006 and August 10, 2008.
The defendant is charged with a lewd or lascivious act on a
child under the age of 14 years in Counts two, three, ten and
eleven sometime during the period of April 19, 2003 and June
30, 2008. The defendant is charged with a lewd or lascivious
act on a child under the age of 14 years in Counts four, five,
eight and nine sometime during the period of February 21,
2002 and April 18, 2003. The defendant is charged with a
lewd or lascivious act on a child under the age of 14 years in
Counts six and seven sometime during the period of January
29
Read together, these instructions essentially meant that the jury
could convict appellant on each count based on a finding that, any time
during the date range alleged, he committed at least one of the multiple acts
proved by the evidence or at least the number of offenses alleged to have
been committed during the date range. As is evident, the date ranges
alleged for each count concerned vast periods of time. Indeed, the majority
of them – nine of the 14 counts -- were alleged to have occurred
“sometime” during a period of more than five years, another count alleged
the act occurred “sometime” during a period of more than two years, and
the remaining two allegedly occurred “sometime” over a 14 month period.
The mere idea that appellant could be tried and convicted based on generic
testimony about alleged acts occurring over such vast periods of time
collides with our most basic notions of fairness; for it is difficult, if not
impossible, to imagine that he could truly have been afforded the
fundamental “due process right to fair notice of the charges against him and
1, 1997 and February 20, 2002. The defendant is charged
with a lewd or lascivious act on a child under the age of 14
years in Counts twelve, thirteen and fourteen sometime
during the period of April 1, 2005 and January 1, 2011.
The People have presented evidence of more than one
act to prove that the defendant committed these offenses.
You must not find the defendant guilty unless:
1.
You all agree that the People have proved that
the defendant committed at least one of these acts and you all
agree on which act he committed for each offense;
OR
2.
You all agree that the People have proved that
the defendant committed all the acts alleged to have occurred
during this time period and have proved that the defendant
committed at least the number of offenses charged.
30
reasonable opportunity to defend against those charges.” (People v. Jones,
supra, 51 Cal.3d at p. 305.) In fact, this form of prosecution cannot be
justified under the framework of Jones – or otherwise.
As outlined above, the opinion in Jones concerned molestation cases
involving a “resident child molester” – i.e., one who “lived with the victim
for an extensive, uninterrupted period and therefore had continuous access
to the victim.” (People v. Jones, supra, 51 Cal.3d at p. 319.) It was this
peculiar factual context that served as the basis for the court’s dispensing
with the concern about the defendant’s ability to pursue an alibi defense,
because “neither alibi nor wrongful identification is likely to be an available
defense” in such cases. (Ibid.) The idea is that the “continual day and
night access to the vulnerable child” would effectively prohibit the
defendant from being able to develop any sort of persuasive alibi defense.
(People v. Obremski, supra, 207 Cal.App.3d at p. 1353; Jones, at p. 319.)
But this is not a “resident child molester” case. Appellant never lived with
any of the victims during any of the date ranges alleged; nor did he have
“uninterrupted” or “continual day and night” access to any of them during
this time. At best, the evidence showed the children were at his residence
off and on for discrete blocks of time during the day over the summer,
vacation periods, or after school when their parents were working. (4 RT
99-101, 134-135, 140; 5 RT 249-250, 307-309; 6 RT 363-364, 375, 405.)
So the Jones rationale for placing the state’s interest in ensuring that
child molesters can effectively be prosecuted above the defendant’s interest
in pursuing “the only defense open to the accused” does not apply here. In
cases like this one, where the defendant does not have uninterrupted or
continual access to the alleged victim but instead only periodically
encounters him or her for short intervals of time at different locations, it is
likely that the defendant could develop and present a viable alibi defense to
the extent that the allegations specify the time and place of the conduct.
31
Thus, the defendant’s interest in being able to effectively prepare and
present an alibi defense cannot simply be set aside as of little or no
significance in comparison to the state’s countervailing interests, as the
Jones court did in finding no violation of the right to present a defense.
Rather, in this situation, it is indeed the case that “unless the prosecutrix is
firmly held to fixing the time and place of the alleged occurrence, the
defendant is deprived of the opportunity to present evidence in support of
his contention that he was not present with the child at the time and place
claimed.” (People v. Ridout, supra, 154 Cal.App.2d at p. 674.)
While proof of the exact time and place that each alleged act
occurred may not be necessary to strike a fair balance between the
countervailing interests at stake in molestation prosecutions of this sort, due
process at a minimum would require a date range narrow enough to provide
at least a reasonable opportunity for the defendant to develop and present
the evidence available to establish an alibi for the time frames involved.
This is illustrated through the cases upholding the use of generic testimony
to support molestation charges, which have involved narrow ranges of time
and allegations specific enough to provide a reasonable opportunity to
develop available evidence of an alibi. Jones itself involved charges based
on allegations of molestation during merely a two month period. (People v.
Jones, supra, 51 Cal.3d at pp. 302-303; see also People v. Ridout, supra,
154 Cal.App.2d at pp. 669-670 [the testimony fixed the time frame of both
alleged acts to the end of June 1955]; People v. Fortanel, supra, 222
Cal.App.3d at p. 1643 [the charged act allegedly occurred sometime during
a two month period]; People v. Higgins, supra, 9 Cal.App.4th at pp. 298299 [the defendant was alleged to have committed one act of molestation
over a two month period, another act over a four month period, and
continuous sexual abuse over the entire five month period]; People v.
Coulter (1989) 209 Cal.App.3d 506, 511 [the defendant was charged with
32
six acts of molestation over a five month period and the alleged victim “tied
each assault to a specific time,” identifying the particular holidays or
specific weeks in a given month when they occurred]; People v. Moore,
supra, 211 Cal.App.3d at p. 1409 [the charged act involved a three month
period during which there was sexual intercourse “almost every night”].)
The cases upholding the use of generic testimony in support of
allegations spanning longer periods involved resident child molesters who,
according to the Jones rationale, could not realistically establish an alibi
given their continuous unfettered access to the child. (See e.g., People v.
Obremski, supra, 207 Cal.App.3d at pp. 1348-1350 [the defendant was
charged with numerous counts of molesting his stepdaughter over a four
year period based on her testimony that they repeatedly and continuously
engaged in sexual acts during this entire period, including sexual
intercourse “at least once a week and as often as three times a day”]; People
v. Newlun, supra, 227 Cal.App.3d at pp. 1595-1597 [the defendant, the
father and a caretaker to the victim, was charged with numerous sex crimes
against her between March 1984 and June 1986 based on evidence of
having repeatedly had sexual and anal intercourse during this period];
People v. Matute, supra, 103 Cal.App.4th at pp. 1439-1441 [the defendant
was charged with 15 counts of forcibly raping his daughter over a period of
15 months during which he had continuous, uninterrupted access to her,
based on her testimony that “a week never went by without [defendant]
forcing sexual intercourse upon her” throughout this period], 1447, italics
added [the victim’s “inability to differentiate among the continual rapes
perpetrated by defendant” does not equate to a due process violation].)
So permitting a prosecution based on generic testimony about
allegations of molestations over vast periods of time with little or no
specificity as to the time and place of the alleged acts could potentially be
justified only in those cases in which the defendant had such continuous
33
and uninterrupted access to the victim that there is simply no reasonable
possibility that he could meet the allegations with available alibi evidence.
That is clearly not the case here, given that the charges were based upon
alleged conduct during appellant’s merely intermittent, day-time encounters
with the alleged victims at the residences where he lived with his wife. The
form of these allegations, as arising out conduct during periodic encounters,
lent itself to attack on the basis of an alibi defense insofar as appellant
could have established that he was not there or otherwise lacked the
opportunity to commit the alleged conduct at the time. Given that these
incidents all allegedly occurred during the day time and it was undisputed
that appellant worked a job outside the home during all the years at issue,
there is indeed a reasonable possibility that he could have developed such
evidence to defend himself against some or all of the allegations.
Appellant did what he could under the circumstances to pursue such
a defense by presenting the testimony of his wife and daughter, who said
that he was rarely around the house as a general matter because of his work
schedule. (6 RT 444-454, 458-483.) But, obviously, he could only attempt
to meet the prosecution’s evidence to the extent that the allegations
specified the time and place of the alleged molestations; with the generic,
non-specific nature of the allegations, the only thing appellant could present
in response was generic, non-specific evidence of his work schedule over
the time periods at issue.
Ironically, in cross examining Ofelia, the
prosecutor attempted to belittle her testimony in this respect by asking
whether she had any records reflecting appellant’s time at work which
would establish that he was not there when the children were; Ofelia said
she did and that she could bring them to court. (4 RT 469-471.) Of course,
such records could not have assisted appellant in defending himself given
the generic allegations spanning vast date ranges over many years which
did not specify the dates or times when these acts allegedly occurred.
34
The vastness of alleged the time periods – ranging from 14 months
to over five years for the majority of the charges -- completely hamstrung
appellant in his ability to present any available evidence of an alibi as a
defense to any of the allegations underlying the 14 charges at issue.
Permitting the jury to convict appellant based on generic evidence of
molestations that he no reasonable opportunity to meet with “the only
defense open to the accused” in this context was a violation of due process,
the right to a fair trial, and to present a defense. This applies equally to the
charges involving K. While appellant acknowledged having at some point
unintentionally or inadvertently touched K. in ways similar to the touching
she had described (4 RT 138-139, 156, 166-169, 177-199; 5 RT 213-232),
given the vast date range for the charges – alleged to have occurred
“sometime” between April 1, 2005 and January 1, 2011 – it is impossible
to determine with any degree of confidence that appellant was referring to
the same incidents that K. described as the basis for the charges instead of
some other incidents that occurred at some other time within or outside of
the more than five year date range alleged for the charges.
The convictions based on generic testimony simply cannot stand in
the face of this clear deprivation of appellant’s “due process right to fair
notice of the charges against him and reasonable opportunity to defend
against those charges.” (People v. Jones, supra, 51 Cal.3d at p. 305.)
C.
Even If Jones Would Permit This Form of Prosecution, Reversal
is Required as a Matter of Federal Constitutional Law
As discussed, this form of prosecution cannot be justified given the
deprivation of appellant’s due process rights. However, to the extent this
Court concludes that the Jones opinion permits or compels a finding that
this form of prosecution is proper (Auto Equity Sales v. Superior Court of
Santa Clara County (1962) 57 Cal.2d 450, 455), for purposes of preserving
35
the issue for collateral review in federal court, appellant contends that the
underlying rationale of the Jones framework is fundamentally flawed.
Justice Mosk’s dissent in Jones powerfully explains why. Justice
Mosk fervently argued that the majority’s rationale fails to adequately
safeguard “two of the most important rights constitutionally guaranteed to
all persons charged with crime: the right to be free of conviction except
upon the verdict of a unanimous jury and the right to present a defense.”
(People v. Jones, supra, 51 Cal.3d at p. 323.) In Justice Mosk’s view, the
only way to observe these fundamental rights is to require proof of “a
specific criminal act” with “sufficient particularity to allow reasonable
jurors to distinguish the act from other acts and to agree unanimously that
the defendant committed it.” (Ibid., italics original.) This standard “would
merely circumscribe the prosecution’s case against an accused resident
child molester brought under section 288, so that prosecutors are compelled
to plead and prove, and jurors are compelled to agree upon, the specific
criminal acts of which the presumptively innocent defendant is guilty.” (Id.
at p. 324.) The terms of section 288 so require: “Section 288, subdivision
(a), criminalizes at present only specific acts. The statute is quite clear
about this, making punishable ‘Any person who shall willfully and lewdly
commit any lewd or lascivious act . . .’” (Id. at p. 326, italics original.)
Justice Mosk further explained that the unanimity requirement
would also compel this minimum level of specificity in the allegations:
To make the unanimity rule an effective means of
securing such certitude, the rule “requires jurors to be in
substantial agreement as to just what a defendant did as a step
preliminary to determining whether the defendant is guilty of
the crime charged.
The danger, therefore, of relying on wholly generic
testimony to convict a defendant of specific criminal acts is
that jurors would no longer need to achieve the state of
subjective certitude they reach when they are compelled to
36
agree on the specific criminal acts committed by the
defendant; instead, they would need only to agree that the
defendant committed some lewd or lascivious act,
somewhere, at some time. Testimony pitched at such a low
level of specificity may be sufficient to convict of a crime
defined by a continuous course of conduct, e.g., section
288.5, but it does not suffice when the crime consists, as here,
solely of the commission of specific criminal acts.
Thus, the difficulty with the majority’s approach is its
implied suggestion that acts can be specific, for purposes of
conviction under section, without being distinguishable. This
approach allows jurors to convict the defendant of ‘phantom’
acts which lie below the threshold of particularity that is the
precondition of jury unanimity in any meaningful sense. But
indistinguishable acts cannot serve as the tangible core
around which 12 minds dedicated to finding specific-act guilt
beyond a reasonable doubt can form agreement.
For this reason, the majority’s solution to the generic
testimony problem—the modified unanimity instruction—is
untenable. If jurors are unable to agree that the defendant
committed any single act, they cannot be expected to agree
that the defendant committed ‘all’ the acts. If jurors are
presented with generic acts A, B, C, and D, and cannot agree
unanimously that the defendant committed act A, or act D,
how can they agree that he committed all four acts? The
subjective certitude that jurors lack in deciding whether
defendant committed a single act does not magically appear
when jurors are considering the totality of his acts. In other
words, the modified unanimity instruction does not address
the fundamental requirement that juror agreement on a
specific act stand behind every count charged under section
288.
The majority’s view also ignores the problem of all-ornothing convictions. When a defendant is charged with a
number of similar crimes against the same victim, jurors are
likely to believe he is either largely guilty or else innocent.
This unstated presumption, however, runs counter to one of
our most fundamental notions of due process: a defendant
must be convicted independently and beyond a reasonable
doubt of each charge. Thus, the prosecutor may attempt to
37
‘piggyback’ the charges based purely on generic testimony,
about which the jury has been given little information, on
those charges supported by more specific testimony, about
which the jury has been told a good deal more. The result will
be a further compromising of the reasonable doubt standard.
(People v. Jones, supra, 51 Cal.3d at pp. 327-328, italics original.)
And Justice Mosk also addressed the concern over avoiding the
potentially anomalous result of immunizing repetitive molesters, explaining
that when such particularized evidence is not available, “the accused child
molester would not be beyond prosecution.” (People v. Jones, supra, 51
Cal.3d at p. 324.)
Instead, the defendant could be prosecuted for
“continuous sexual abuse of a child” under section 288.5, which was
designed to provide a vehicle for prosecution of molesters in cases based on
purely generic evidence. (Ibid.) Justice Mosk found it “perplexing” that
the majority “would play havoc with this legislative scheme” by ignoring
the purpose behind the enactment of section 288.5. (Id. at pp. 329, 330.)
That provision contains procedural safeguards designed ‘“to overcome the
due process problems raised in the Van Hoek case within the framework of
existing statutory law.”’ (Id. at p. 329, quoting Assem. Bill No. 2212
(1989–1990 Reg. Sess.) § 1.) By its terms, the provision accommodates the
need for sufficient proof of the actus reus and the need for unanimity: “The
actus reus of such a crime is a series of acts occurring over a substantial
period of time, generally on the same victim and generally resulting in
cumulative injury. The agreement required for conviction is directed at the
appropriate actus reus: unanimous assent that the defendant engaged in the
criminal course of conduct.” (Id. at p. 329; see also People v. Higgins,
supra, 9 Cal.App.4th at p. 304 [“section 288.5 is a well designed
accommodation of competing interests: the protection of child victims from
molestation and the accused’s right to a unanimous verdict.”].)
38
Another “primary safeguard” the Legislature sought to provide in
enacting section 288.5 to deal with cases involving purely generic evidence
“is the limitation that the defendant be charged with only one count per
victim. Although penalties for violation of section 288.5 are severe -- with
possible 6, 12, or 16 year sentences -- the one-count-per-victim provision is
a significant restriction on overzealous prosecutors, who may be tempted to
compile a multitude of convictions based on potentially exaggerated
estimates of the frequency of the criminal conduct by victims concededly
unable to recall specifics.” (People v. Jones, supra, 51 Cal.3d at p. 329.)
In sum, under a proper balancing of the countervailing interests with
the minimum requirements of due process in mind: “When a prosecutor has
strong evidence of specific acts of child molestation, he may bring his case
under section 288, with its more demanding proof requirements. When the
prosecutor has strong evidence that the defendant committed some type of
lewd and lascivious acts on a child, but has only the child’s generic
testimony, he may bring the case under section 288.5 as a course-ofconduct crime, with relaxed proof requirements but with the built-in
safeguards discussed above.” (People v. Jones, supra, 51 Cal.3d at p. 330.)
Justice Mosk went on to attack the majority’s attempt to “belittle the
grave difficulties of defending against generic testimony.”
(People v.
Jones, supra, 51 Cal.3d at p. 330.) As he explained, “the problems of
defending against purely generic testimony are far more serious than the
majority would have us believe. The defendant faces great obstacles in
presenting not only an alibi defense, but a credibility defense as well.” (Id.
at pp. 330-331.) “The person faced with generic testimony . . . can make
only the most generalized attack on his accuser’s credibility. Unable to
cross-examine the child as to the details of the molestation, he can never
show, for example, that these details render the child’s story physically
impossible, or highly unlikely, or contradictory.” (Id. at p. 331.) “The trial
39
stratagems recommended by the majority are of dubious value” in dealing
with the inherent disadvantages faced in defending against such evidence:
“whereas a lack of specificity in an adult witness would likely raise
questions about his credibility, a child witness’s vagueness may well be
seen by the jury as reflecting simply a lack of cognitive or expressive
development. And generalized character testimony may be given little
weight by a jury impressed by an earnest child victim/witness.” (Ibid.)
Thus, “[c]ontrary to the majority’s assertions . . . the general
credibility or competency of children as witnesses is not the issue: the point
is not that children lie, or lie frequently, but that they may lie, and should
therefore be held to approximately the same standards as adults.” (People
v. Jones, supra, 51 Cal.3d at p. 331, italics original.)
“In short, the
presumptively innocent defendant faced with purely generic testimony
confronts problems of such magnitude as to impair his Sixth Amendment
right to present a defense.” (Ibid.) Justice Mosk opined that, at the least,
adopting a standard under which “the defendant can be convicted under
section 288 only of particular acts supported by testimony that describes
those acts in sufficient detail to make them distinguishable -- will provide
him with a somewhat better opportunity to challenge the child
victim/witness’s credibility.” (Id. at pp. 331-332, italics added.)
Justice Mosk was right: due process at a minimum requires that the
evidence in support of the allegations be of “sufficient particularity to allow
reasonable jurors to distinguish the act from other acts and to agree
unanimously that the defendant committed it.” (People v. Jones, supra, 51
Cal.3d at p. 323.) At the least, this would a somewhat better opportunity to
challenge the credibility of the allegations than appellant had here. Given
the vast ranges of time during which the alleged acts supposedly occurred,
appellant was trapped in the dangerous vortex that Justice Mosk described:
“[u]nable to cross-examine the child as to the details of the molestation, he
40
can never show, for example, that these details render the child’s story
physically impossible, or highly unlikely, or contradictory.” (Id. at p. 331.)
That was his only reasonable chance of defending against these charges,
and the complete deprivation of this opportunity violated due process as a
matter of federal constitutional law.
As Justice Mosk persuasively
explained, the Jones rationale is flawed to the extent it suggests otherwise.
Thus, reversal of the convictions is required under federal
constitutional principles even if this process is sanctionable under state law.
D.
The Issue is Cognizable
The reviewability of this issue on appeal is not dependent upon
whether the matter was raised at some point below in the trial court. The
issue implicates the very integrity of the criminal process and the utmost of
protections to which a defendant is entitled as matter of constitutional law.
(See In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7 [illustrating that
appellate courts can and often do review important constitutional issues or
issues involving substantial rights regardless of any objection below]; see
also In re Luis F. (2009) 177 Cal.App.4th 176, 184, quoting People v.
Williams (1998) 17 Cal.4th 148, 161-162, fn. 6, italics original [“‘[t]he fact
that a party, by failing to raise an issue below, may forfeit the right to raise
the issue on appeal does not mean that an appellate court is precluded from
considering the issue.’”].) The issue is also directly connected to, and to
that extent is grounded in, the trial court’s instructions to the jury under
CALCRIM 207 and 3051, which are what ultimately authorized the jury to
convict appellant on each of these charges based upon the generic
testimony at issue in this case. It is well established that appellate courts
may properly review claims of instructional error implicating the
defendant’s “substantial rights” even though no objection was made on that
41
basis in the trial court. (§ 1259; People v. Flood (1998) 18 Cal.4th 470,
482, fn. 7.) Thus, the issue is properly before this Court.
II
THE NON-SPECIFICITY OF THE GENERIC
TESTIMONY AND THE VASTNESS OF THE DATE
RANGES OVER WHICH THE CHARGED ACTS
ALLEGEDLY OCCURRED ALSO MEAN THAT THE
CONVICTIONS MUST BE REVERSED FOR LACK OF
LEGALLY SUFFICIENT SUPPORTING EVIDENCE
The inherently indefinite and non-specific nature of these generic
allegations of molestation over vast periods of time necessarily jeopardized
the closely related yet independently significant constitutional requirement
of proof beyond a reasonable doubt in support of each and every charge.
The Fourteenth Amendment guarantees no person shall suffer a
criminal conviction except upon proof sufficient to show guilt beyond a
reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at pp. 316, 318319; People v. Johnson, supra, 26 Cal.3d at pp. 576-578.) In making this
determination, the appellate court views the record, and draws all
reasonable inferences, in the light most favorable to the judgment.
(Johnson, at p. 576.) “The court does not, however, limit its review to the
evidence favorable to respondent.” (Johnson, at p. 577.) It must make this
evaluation based upon ‘“the whole record – i.e., the entire picture of the
defendant before the jury – and may not limit [its] appraisal to isolated bits
of evidence selected by respondent.’”
(Ibid., italics original, quoting
People v. Bassett (1968) 69 Cal.2d 122, 138.) Moreover, in looking at the
record as a whole, the evidence in support of the conviction must be of a
“substantial” nature. (People v. Chatman (2006) 38 Cal.4th 344, 389.)
“Substantial evidence” is evidence “sufficiently reasonable, credible, and of
such solid value ‘that a reasonable trier of fact could find the defendant
42
guilty beyond a reasonable doubt.” (Ibid.) The mere existence of some
evidence, no matter how weak or speculative, is not enough. (People v.
Reyes (1974) 12 Cal.3d 486, 499-500.) Similarly, ‘“it is not enough for the
respondent to simply to point to ‘some’ evidence supporting the finding.’”
(Johnson, at p. 577, quoting People v. Basset, supra, 69 Cal.2d at p. 138.)
The record must reasonably support a finding of guilt to “a near certainty”
to satisfy this standard.
(People v. Hall (1964) 62 Cal.2d 104, 112.)
Essentially, to justify a criminal conviction, the trier of fact must have
“reasonably rejected all that undermines confidence.” (Hall, at p. 112.)
To properly apply these standards, it is important to distinguish
between “reweighing” the evidence and considering the evidence “as a
whole.” It is clear that a reviewing court should not resolve for itself
conflicts or contradictions in the evidence when evaluating its legal
sufficiency. (People v. Kraft (2000) 23 Cal. 4th 978, 1054 [“the opinion of
the reviewing court that the circumstances might also reasonably be
reconciled with a contrary finding does not warrant a reversal of the
judgment”].) But that does not mean the reviewing court cannot or should
not consider the evidence undermining the prosecution’s theory of the case.
Quite to the contrary, as noted, “[t]he court does not . . . limit its review to
the evidence favorable to respondent.”
(People v. Johnson, supra, 26
Cal.3d at p. 577.) Instead, “we must resolve the issue in the light of the
whole record i.e., the entire picture of the defendant put before the jury and
may not limit our appraisal to isolated bits of evidence selected by the
respondent.” (Ibid., italics added.) “The foregoing principles of judicial
review are plainly consistent with Jackson v. Virginia [1979] 443 U.S.
307.” (Johnson, at p. 577.) Indeed, these principles are at the heart of the
ultimate purpose behind a sufficiency review, which is to ensure there is
“substantial evidence” in support of the judgment. (Johnson, at p. 578.)
43
The majority of the Jones court addressed these standards in the
context of resident child molester cases, saying: “the question arises, then,
as to the minimum quantum of proof necessary to support a conviction on
one or more counts based on such generic testimony.” (People v. Jones,
supra, 51 Cal.3d at p. 314.) On this point, the majority opined:
The victim, of course, must describe the kind of act or acts
committed with sufficient specificity, both to assure that
unlawful conduct indeed has occurred and to differentiate
between the various types of proscribed conduct (e.g., lewd
conduct, intercourse, oral copulation or sodomy). Moreover,
the victim must describe the number of acts committed with
sufficient certainty to support each of the counts alleged in
the information or indictment (e.g., ‘twice a month’ or ‘every
time we went camping’). Finally, the victim must be able to
describe the general time period in which these acts occurred
(e.g., ‘the summer before my fourth grade,’ or ‘during each
Sunday morning after he came to live with us’) to assure the
acts were committed within the applicable limitation period.
Additional details regarding the time, place or circumstance
of the various assaults may assist in assessing the credibility
or substantiality of the victim’s testimony, but are not
essential to sustain a conviction.
(Id. at p. 316, italics original.)
As discussed, because the Jones decision was decided in a different
context, it is technically not controlling here, and the validity of its
reasoning on the issue of due process is subject to serious question as
Justice Mosk explained in his dissent.13
However, even assuming the
Justice Mosk also criticized the majority’s analysis of the
sufficiency standards in this context, reasoning as follows:
13
The proper test to determine a claim of insufficient
evidence in a criminal case is whether, on the entire record, a
rational trier of fact could find appellant guilty beyond a
reasonable doubt. [Citations.] As explained above, true jury
unanimity is impossible when generic evidence is the sole
basis of a conviction for committing specific criminal acts.
44
majority’s analysis of the sufficiency standards is valid and controlling, the
result is the same. The nebulous, non-specific testimony in this case about
alleged instances of molestation having supposedly occurred “sometime”
during a set of vast date ranges simply cannot satisfy either the general
standards governing sufficiency of the evidence or those set forth in Jones.
To illustrate, regarding Counts 1, 2, 3, and 4 involving A., all she
could say about the alleged acts that served as the basis for Counts 4 and 5
was that appellant touched her breasts, vagina, or both “more than one
time” at the mobile home when she was “probably” six, seven, eight, or
nine. (5 RT 250, 320-322, 273.) There was no more specific evidence
regarding the date, month, or time of year of these alleged incidents, or the
actual number of times they supposedly occurred, and no other
differentiation between the two charges or the types of underlying conduct.
But to say as a matter of law that 12 jurors could not achieve
agreement beyond a reasonable doubt on the evidence
presented is tantamount to declaring the evidence insufficient.
Lack of jury unanimity plainly violates due process; likewise
evidence that does not allow jury unanimity is insufficient.
The majority opinion, in addition to its lengthy though
largely irrelevant discussion of the child/witness’s credibility,
argues that generic testimony is not insufficient because ‘as
many cases make clear, the particular details surrounding a
child molestation charge are not elements of the offense and
are unnecessary to sustain a conviction.’ [Citation.] But this
formulation misconstrues the dilemma of generic testimony.
The need to prove that specific acts of lewd or lascivious
conduct were committed is axiomatic, arising from the statute
itself; the only question is whether the courts should accept
nonspecific testimony to prove these acts. As explained
above, such proof is insufficient as a matter of law because
jurors are unable to achieve true unanimity to convict a
defendant of specific criminal acts.
(People v. Jones, supra, 51 Cal.3d at p. 332.)
45
Given the dearth of any specificity beyond this generic evidence, it is
difficult to fathom how a jury could possibly reach the subjective level of
certitude necessarily required to reach a finding of guilt. In fact, even the
Jones majority acknowledged that the alleged acts must be described with
sufficient specificity “to assure that unlawful conduct indeed has occurred.”
(People v. Jones, supra, 51 Cal.3d at p. 316, italics added.) And the
examples that the court provided in discussing “the general time period”
requirement – “e.g., ‘the summer before my fourth grade,’ or ‘during each
Sunday morning after he came to live with us’” (ibid.) – shows that
generic testimony about alleged acts having occurred anytime when the
alleged victim was six, seven, eight, or nine is clearly inadequate. (See also
People v. Moore, supra, 211 Cal.App.3d at p. 1412, cited with approval in
Jones [the testimony was sufficiently specific where the victim testified that
the alleged acts had occurred “almost every night” for three months].)
Beyond this, it is not even clear that any of the undifferentiated
alleged acts underlying Counts 4 and 5 actually occurred within the date
range alleged. Again, the acts allegedly occurred between February 21,
2002 and April 18, 2003. (1 CT 15-16.) According to the evidence, A. was
born in August 1994. (5 RT 246-248.) That means she would have been
about seven-and-a-half to eight years-eight months old during the 14-month
time frame alleged. Yet, she testified that she was six, seven, eight, or nine
at the time of the acts at issue. If she was nine, the alleged acts would
occurred outside the date range of the charges, in which case the evidence
would fail to satisfy even the most basic threshold requirement of
corresponding with the allegations in the pleading. (People v. Williams
(1945) 27 Cal.2d 220, 225-226; People v. Peyton (2009) 176 Cal.App.4th
642, 659 [“Of course, it is elementary that . . . the proof must correspond
with the allegations in the pleading.].) And, more specifically, it would
follow that a reasonable trier of fact necessarily could not find beyond a
46
reasonable doubt that appellant committed the charged acts sometime
between February 21, 2002 and April 18, 2003, for purposes of
establishing sufficient evidence in support of the judgment.
The evidence in support of Counts 2 and 3 concerning the alleged
acts of molestation at the Cross Creek apartment is similarly problematic.
First, A. gave irreconcilably inconsistent statements about the frequency of
the alleged vaginal touching in that apartment, variously saying it happened
“more than one time,” “a lot of the time,” she could only recall one such
incident, and she could not recall any specific instances as she “just
remembered it happening.”
(5 RT 258, 261, 266-268, 270-271, 290.)
While A. also described a touching of her breast on a “pendulum” machine
at this apartment, she provided no greater degree of specificity regarding
the date, month, or time of year. (5 RT 259-261.) Similar to the situation
with Counts 4 and 5, the only evidence of when these alleged acts occurred
was A.’s testimony that she was seven, eight, or nine. (5 RT 292, 296.)
This is simply not enough to satisfy the requirements of certainty that the
acts actually occurred, the number of such acts, and the time period during
which the acts allegedly occurred, under any standard. (See People v.
Jones, supra, 51 Cal.3d at p. 316.) And the evidence appears to suffer from
the same additional defect as the evidence in support of the other charges:
The acts allegedly occurred sometime between April 19, 2003 and June 30,
2008. At the beginning of that range, A. would have been about eight
years-eight months old, and at the end, about 13 years-10 months old. So,
if A. was actually seven at the time, the evidence here would also fail to
correspond with the date ranges alleged for Counts 2 and 3. Because this
possibility cannot be excluded in light of A.’s testimony on the matter, one
simply conclude with the requisite degree of certainty that judgment is
supported by sufficient credible evidence under any standard.
47
As for Count 1, which based on appellant’s having allegedly grabbed
A.’s breasts at her house sometime during a two year period when she
would have been about 11 to 13 years old, the sum and substance of A.’s
testimony was that appellant came over one day when she was “probably
like thirteen” and grabbed her breasts while he was there. (5 RT 274-277,
297.) While this testimony may be sufficiently specific so that the evidence
corresponds with the general date range alleged in the charge, as with all
the charges based on such broad date ranges, testimony that appellant
allegedly perpetrated an act of molestation on any one day throughout at
least the entire year that A. was thirteen years old cannot satisfy the time
period requirement, which at a minimum requires much greater specificity.
Similar problems persist in the evidence of the charges involving S.
– Counts 6, 7, 8, 9, 10, and 11. At the outset, all the charges clearly fail the
specificity requirement for the time period at issue. Four of the six charges
involve an alleged period of more than five years, the other two involved a
period of 14 months, and the evidence did not narrow these periods of time
as S. did not specify anything about his age except that all the alleged
molestations occurred between the time he was in the second and the fifth
or sixth grade. (6 RT 367-374, 383-392, 394, 400, 407-408, 410-412.) In
addition, not only is there a general lack of specificity differentiating the
acts that allegedly occurred and the number of times they occurred, but with
respect to Counts 6 and 7, S. only specifically described one act. Counts 6
and 7 were based upon the “first” and “last” time appellant had allegedly
touched S. sometime over the five year period that appellant and Ofelia
lived in the Paseo del Prada apartment. (1 CT 16-17.) While S. testified
that he believed the form of touching – a “game” in which S. touched
appellant’s body in various places – occurred at all three apartments,
Counts 6 and 7 related only to the Paseo del Prada apartment, and S. was
48
only able to recall once such incident there. (6 RT 367-370, 387-389.)
Thus, the evidence necessarily supports only one count – not two.
As for Counts 12, 13, and 14, involving K.’s allegations, the date
range for all the alleged acts also spanned more than five years. (1 CT 1920.) K. testified she might have been nine at the time of the allegations
underlying Count 12 (the alleged touching of K.’s breast and possibly also
vagina), that she was eight, nine, or ten the first time appellant allegedly
pulled her hand onto his genitals (Count 13), and she was around 12 the
second time he had done so (Count 14). (4 RT 101-107, 115-130, 140-142,
149-160; 5 RT 330-336, 346-350.) The lack of any further specificity
regarding the actual date, time of year, or time frame of any of these alleged
acts is problematic enough. But even more troubling is that the fact K. was
not even certain in the minimal degree of specificity she did provide, as she
acknowledged that she actually did not recall the order in which the alleged
acts occurred or when they actually occurred.
(4 RT 143-144, 160.)
Appellant’s statements regarding his contacts with K. cannot fill the holes.
As noted, given the non-specific nature of the allegations, there is simply
no way to determine whether the contacts appellant described where the
same contacts underlying the charges; indeed, there was no specificity
whatsoever in these statements as to the dates or approximate dates of the
contacts he described or K.’s age or approximate age at the time – much
less that these contacts actually occurred sometime between April 1, 2005
and January 1, 2011, as alleged in the applicable counts. Thus, neither
statements -- which could never alone support a conviction anyway (People
v. Valencia (2008) 43 Cal.4th 268, 296 [“The corpus delicti rule generally
requires the prosecution to prove ‘the body of the crime itself’ independent
of a defendant’s extrajudicial statements.”]) – nor any other evidence in the
record provides the requisite level of proof to support the charges.
49
In fact, the cases finding sufficient evidence in this context involved
much more concrete evidence in support of the molestation allegations.
(People v. Newlun, supra, 227 Cal.App.3d at p. 1602 [not only was the
defendant a “resident child molester” with continuous uninterrupted access
to the victim (his daughter), but the evidence also included unrebutted
expert medical testimony establishing with certainty that the defendant’s
daughter had suffered vaginal and anal penetrations at least as many times
as the number of charged acts]; People v. Matute, supra, 103 Cal.App.4th
at p. 1447 [another resident molester case in which the testimony
established a clear pattern of continuous abuse: “J.M. lived with appellant
from birth, and was molested by appellant from the time she was six years
old; he continuously forced sexual intercourse on her from the time she was
12 until she was 16, until he was arrested.”], 1449 [J.M.’s “unequivocal[ly]
testi[fied] that a week never went by without a rape occurring”], 1450
[“J.M.’s testimony reflected the ongoing, repetitive nature of the rapes”].)
Of course, here, there was no medical or other physical evidence
substantiating any of the alleged acts of abuse against any of the victims,
and there was no evidence of continuous, uninterrupted abuse over the
entire period of time charged as the date range of the various alleged acts.
Instead, the evidence consisted simply of the alleged victims’ generic
testimony about sporadic, largely undifferentiated acts of molestation at
three or four different locations – sometimes specified and sometimes not –
at unspecified dates and times over vast date ranges during which appellant
had, at most, periodic encounters with the alleged victims. This simply
does not constitute evidence “sufficiently reasonable, credible and of such
solid value ‘that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt” (People v. Chatman, supra, 38 Cal.4th at p.
389), so as to satisfy either the general Jackson standards or the standards
under the Jones framework. Thus, the convictions must be reversed.
50
III
THE COURT’S DECISION TO IMPOSE ALL TERMS
CONSECUTIVELY SUCH THAT APPELLANT FACES
CERTAIN DEATH IN PRISON WAS AN ABUSE OF
DISCRETION GIVEN THAT NEITHER THE
CURRENT OFFENSES NOR ANYTHING IN
APPELLANT’S BACKGROUND INDICATES HE HAS
RECIDIVIST TENDENCIES OR POSES THE SORT OF
THREAT TO SOCIETY THAT WARRANTS KEEPING
HIM BEHIND BARS FOR THE REST OF HIS LIFE
As the trial court and parties recognized (9 RT 589-603), while the
court was required to impose a term of 15 years to life for each of the 14
convictions of violating section 288, subdivision (a), it had the discretion to
impose those terms consecutively or concurrently (§ 667.61).14
The
prosecutor argued that the court should run all terms consecutively,
sentencing appellant to the maximum possible term of 210 years to life in
14
From the time of its enactment in October 1997 until September
2006, for violations of section 288, subdivision (a), involving multiple
victims, section 667.61 provided that a term of 15 years to life “shall be
imposed on the defendant once for any offense or offenses committed
against a single victim during a single occasion” (Former § 667.61, subds.
(e) & (g); Stats. 1997, c. 817 (A.B. 59), § 6; Stats. 1998, c. 936 (A.B. 105),
§ 9; Stats. 2006, c. 337 (S.B. 1128), § 33.) The 2006 amendment
eliminated former subdivision (g) and added subdivision (i), which
provides, “[f]or any offense specified in paragraphs (1) to (7), inclusive, of
subdivision (c), the court shall impose a consecutive sentence for each
offense that results in a conviction under this section if the crimes involve
separate victims or involve the same victim on separate occasions . . .”
(Stats. 2006, c. 337 (S.B. 1128), § 33; Prop. 83, § 12.) Subdivision (c) does
not include a violation of section 288, subdivision (a); that offense is listed
in paragraph (8) of subdivision (c). (See § 667.61, subd. (c).) Thus, both
before and after this amendment, for multiple violations of section 288,
subdivision (a), involving separate victims or the same victim on separate
occasions, the terms may be imposed consecutively or concurrently within
the trial court’s discretion. (People v. Rodriguez (2012) 207 Cal.App.4th
204, 214 [“subdivision (i) of section 667.61 does not limit court’s
discretion to impose consecutive or concurrent One Strike terms on One
Strike offenses falling outside subdivision (i)”]; see also § 669.)
51
prison, but that it should at least impose one consecutive term for each of
the three victims, for a term of 45 years to life. (9 RT 589-595, 599-600.)
In looking at the probation report, which recommended the maximum
possible sentence, the trial court remarked that it found the Static-99 Risk
Assessment score of -2 “just completely unbelievable.” (9 RT 590.) The
court said it did not understand why “multiple child offenders, people that
are in prison for it and they get out and they all seem to get the nice low
score.” (9 RT 590.) The court continued: “I have absolutely no idea why
we even have that probation report. Well, I do, because the legislature said
you are supposed to look at it. [¶] With that little bit of diatribe . . . and I
am not complaining. You have to give the test, it’s a set test, and you give
the number, so I am not upset at the messenger, for sure.” (9 RT 590.)
Addressing the possible sentences it could impose, the court said:
“there certainly are mitigating factors. There is no doubt.” (9 RT 596.)
Noting that appellant could face the rest of his life in prison with just one
term of 15 years to life, the court further stated: “So you might even make
the argument, ‘well, there is a certain silliness maybe in going 210 to life,
because absent something extremely unusual, that’s not going to occur. [¶]
[B]ut . . . the legislature set these things out, and it does lead every once in
a while to these sentences of 210, 400 . . .” (9 RT 596.) The court said it
believed the case at a minimum called for a sentence of 45 years to life but,
that it was tentatively leaning toward the maximum possible sentence of
210 years to life, “as silly as that may sound.” (9 RT 596.)
Defense counsel argued that running all of the terms consecutively
was neither justified nor fair and would constitute an “overly harsh” and
“extreme” sentence under the circumstances given that appellant had no
prior criminal history, and that most of the alleged acts involved touching
over the clothing and none involved any copulation or penetration. (2 CT
254-257; 9 RT 597-598.) Counsel argued that one term of 15 years to life,
52
with the remaining terms running concurrently, would be the appropriate
sentence in this case. (2 CT 257; 9 RT 597-598, 600-601.)
The court acknowledged that such cases usually involve factors “a
lot worse than this,” like penetration, copulation, or the use of weapons to
carry out the acts.
(9 RT 602.)
But based on the multiple charges
involving multiple victims at different locations, the court believed
appellant “deserved” the maximum sentence: “That was basically what it
came down to. Mr. Escobedo, you just deserve it.” (9 RT 602.) So the
court went on to impose a total term of 210 years to life. (9 RT 602-603.)
A trial court’s decision to impose consecutive or concurrent terms is
an abuse of discretion when it “exceeds the bounds of reason, all of the
circumstances being considered.” (People v. Bradford (1976) 17 Cal.3d 8,
20; People v. Lepe (1987) 195 Cal.App.3d 1347, 1350 .) “Rule [4.]425 sets
forth criteria affecting the court’s decision to impose consecutive rather
than concurrent sentences.” (People v. Giminez (1975) 14 Cal.3d 68, 72.)
Those criteria involve factors related to the crimes of which the defendant
was convicted in the present case; namely, whether:
(1) The crimes and their objectives were predominantly
independent of each other; (2) The crimes involved separate
acts of violence or threats of violence; or (3) The crimes were
committed at different times or separate places, rather than
being committed so closely in time and place as to indicate a
single period of aberrant behavior.
(Cal. Rules of Court, rule 4.425(a).)
Other “circumstances in aggravation or mitigation” are also relevant
to the determination of whether to impose consecutive. (Cal. Rules of
Court, rule 4.425(b).) These include: whether the defendant has “engaged
in any violent conduct that indicates a serious danger to society;” whether
the current crimes involved violence, harm, or threat of violence or harm,
the use of a weapon, vulnerable victims, taking or damage of great
53
monetary value, or evidenced a degree of cruelty, viciousness, or
callousness; whether the defendant induced anyone to participate, commit
or suborn perjury, or interfered with the judicial process in any way;
whether the offense exhibited planning, sophistication, or professionalism;
whether the defendant’s criminal record involves prior convictions of
numerous or increasing seriousness; and whether the defendant was on
probation or parole at the time. (Cal. Rules of Court, rules 4.421
[Circumstances in Aggravation] and 4.423 [Circumstances in Mitigation].)
At the bottom of this analysis is obviously an attempt to strike a
proper balance between the degree of punishment and the defendant’s
culpability as a criminal offender in the current case and in the past – much
like the proportionality analysis in the context of determining whether a
sentence violates the protections against cruel and/or unusual punishment.
As discussed below in Section IV, the sentence here indeed violates the
proportionality requirements under state and federal law based on
appellant’s criminal conduct and a comparison of the punishments imposed
for similar and worse conduct in California and around the country. And
the trial court’s decision to run all the terms consecutively -- which was the
mechanism for arriving at the lengthy sentence at issue – itself compels
reversal of the sentence insofar as it constitutes an abuse of discretion
because it “exceeds the bounds of reason” under all the circumstances of
the case. (People v. Bradford, supra, 17 Cal.3d at p. 20.)
A sentence to term that allows the possibility of being released upon
parole “is considerably less severe” than a sentence to a term of life without
the possibility of parole (LWOP). (See Taylor v. Lewis (9th Cir. 2006) 460
F.3d 1093, 1098 [comparing a sentence of 25 years to life, which at least
provides this possibility, with a sentence of life without the possibility of
parole].) The term imposed in this case -- 210 years to life – upon someone
of appellant’s age, who was 48 at the time of sentencing, “is the ‘functional
54
equivalent of a life without parole sentence.”’ (People v. Thomas (2012)
211 Cal.App.4th 987, 1016 [characterizing a sentence of 196 years to life as
such a sentence], quoting People v. Caballero (2012) 55 Cal.4th 262, 267268; People v. Carmony (2005) 127 Cal.App.4th 1076, 1077 (Carmony II)
[the effect of a sentence of 25 years to life means: “In real terms, [the
defendant] must serve 25 years in prison before he is eligible for parole”].)
A sentence that “will effectively incapacitate [the defendant] for the rest of
his active years . . . does not, however, serve to protect the public when the
current offense bears little indication he has recidivist tendencies to commit
offenses that pose a risk of harm to the public.” (Carmony II, at p. 1080.)
This sets the stage for understanding the problem with the trial
court’s decision to run all the life terms consecutively: there is no indication
that appellant has “recidivist tendencies that pose a risk of harm to the
public” (Carmony II, supra, 127 Cal.App.4th at p. 1080) upon release back
into the population. He has no prior record of any criminal conduct – much
less a prior record of committing sexual offenses. (2 CT 244.) Notably, the
only evidence specifically concerning the likelihood that appellant would
commit sexual crimes in the future is the Static-99 Risk Assessment test,
indicates that he would pose little or no such risk to the public upon release.
The Static-99 Risk Assessment “measures the statistical risk of
reoffense based on characteristics of the subject’s personal history and past
offenses as they compare with those of known criminal sexual recidivists.”
(People v. Williams (2003) 31 Cal.4th 757, 762, fn. 3.) An offender’s score
places him or her into a “risk” category – high, moderate high, moderate
low, and low – with the higher the score, the higher the risk of re-offense.
(See ibid. [“defendant scored a 9 on this scale, equating to a high risk of
reoffense, i.e., 39 percent within five years, 45 percent within 10 years, and
52 percent within 15 years”]; People v. Rasmuson (2006) 145 Cal.App.4th
1487, 1493 [score of 7 placed the defendant in the high-risk category for
55
sexual re-offense”]; Cooley v. Superior Court (2002) 29 Cal.4th 228, 237
[“Marentez’s score of 6 on the Static–99 test put him in the ‘high risk’
category for reoffense, with a 52 percent minimum risk of reoffense within
15 years”]; People v. McKee (2012) 207 Cal.App.4th 1325, 1341
[According to recent studies, the average score for sexually violent
predators is 6.19, which falls within the “high risk” category for sexual reoffense]; Ibid. [a score of 4.6 places the defendant in the “moderate-high”
risk category and 3.6 places in the “moderate-low” risk category].)
Appellant scored a negative 2 on the Static-99 test. The probation
report noted that this places him in the “low” risk category. (2 CT 244.)
Indeed, if a score of positive 6 merely creates a 52 percent chance of reoffense – which simply means more likely than not – and a score of positive
3.6 equates to merely a “moderate-low” risk, then any score that does not
even make it into the positive range, like -2, must by definition mean that
the chance or risk of re-offense is extremely low – if not non-existent.
The results of the Static-99 test were obviously significant to the
question of whether and the extent to which the life terms should be run
consecutively with one another. As defense counsel noted, if only one 15years-to-life term was imposed, as she contended was the fair and just
result here, appellant would become eligible for parole at the age of 65. (9
RT 597.) If two such terms were imposed, making him eligible for parole
at the age of 80, it is still conceivable that appellant could be released
before the end of his natural life. So the number of consecutive terms
imposed consecutively determined whether appellant would face certain
death in prison or whether he would retain the possibility of release, and the
test results spoke directly to the level of risk associated with his release.
The trial court acknowledged the result of this test but found it
“completely unbelievable” and expressed frustration with the notion that a
defendant convicted of multiple sex offenses against children could ever be
56
deemed as posing a low risk of re-offense upon release. (9 RT 590.) That
is, the court seems to have set aside the result of this test and substituted its
own judgment that appellant, like anyone else convicted of such crimes,
necessarily poses a substantial risk of re-offense – at the least, the court’s
comments suggest it accorded no weight to the test. Given the significance
of the Static-99 test results to the key question of whether appellant should
be afforded the opportunity for release sometime during his natural life, the
trial court’s apparent disregard of the factor in favor of its own personal
beliefs regarding the likelihood of re-offense renders its entire analysis
suspect. (See F.T. v. L.J. (2011) 194 Cal.App.4th 1, 25 [“[I]f a trial court’s
decision is influenced by an erroneous understanding of applicable law or
reflects an unawareness of the full scope of its discretion, it cannot be said
the court has properly exercised its discretion under the law.”].)
A proper analysis that accords due weight to this important factor
militates heavily in favor of affording appellant at least the opportunity for
release from prison during his natural life by imposing no more than one or
two consecutive terms of 15-years-to-life. This itself reveals that imposing
all terms consecutively to reach a sentence of 210 years to life such that
appellant faces certain death in prison “exceeds the bounds of reason” as an
abuse of discretion. (People v. Bradford, supra, 17 Cal.3d at p. 20.)
But the other factors relevant to the analysis also ultimately weigh in
favor of the same analysis and thus compel the same result. While the
alleged victims could be characterized as vulnerable given their ages and
relationship to appellant and while the acts of molestation were committed
at different times and places (Cal. Rules of Court, rule 4.425(a)), there are
far more mitigating than aggravating factors: none of the alleged acts
involved violence or the threat of violence, cruelty, or viciousness, the use
of a weapon, criminal sophistication, planning, or professionalism, or the
inducement of another person to participate. (Cal. Rules of Court, rules
57
4.421 & 4.423.) Nor does the record show any history of violent conduct
indicating a “serious danger to society,” any prior convictions of numerous
or increasing seriousness, or any violations of parole or probation since
appellant has no criminal history. (Ibid.) And appellant did not suborn
perjury or otherwise interfere in any way with the judicial process (ibid.);
instead, he voluntarily met with police multiple times, even initiating
contact with them, and participated in extensive interviews about the case.
In fact, as the court and parties noted, the prosecution had offered a
plea deal of only 14 years before trial. (9 RT 597, 598-599.) So while the
prosecution sought the maximum possible sentence after trial, the pre-trial
plea offer shows that even the District Attorney’s Office viewed
circumstances of this case as at least warranting a punishment no greater
than 14 years, which would have at least left open the possibility of release.
And that sentence is even less severe than the single 15-year-to-life term for
which defense counsel advocated in the sentencing proceedings. Given the
minimal or non-existent risk of re-offense upon release as reflected in the
results of the Static-99 test that the trial court overlooked and giving that
the mitigating factors outweigh the aggravating factors, the extraordinary
sentence of 210 years to life ensuring certain death in prison for appellant
clearly constitutes an abuse of the discretion which must be reversed.
///
58
IV
THE EXTRAORDINARY SENTENCE OF 210 YEARS
TO LIFE VIOLATES THE CONSTITUTIONAL
PROTECTIONS
AGAINST
CRUEL
AND/OR
UNUSUAL PUNISHMENT IN LIGHT OF THE
NATURE
OF
THE
CURRENT
OFFENSES,
APPELLANT’S
BACKGROUND,
AND
A
COMPARISON OF PUNISHMENTS IMPOSED UPON
DEFENDANTS WHO HAVE ENGAGED IN FAR
MORE EGREGIOUS CRIMINAL CONDUCT
Even if the extraordinary life sentence imposed against appellant in
this case does not constitute an “abuse of discretion,” it nevertheless cannot
stand because it constitutes cruel and/or unusual punishment.
A.
The Basic Legal Framework
“The Eighth Amendment to the Constitution, applicable to the States
through the Due Process Clause of the Fourteenth Amendment, [citation],
provides that “[e]xcessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.” (Baze v. Rees
(2008) 553 U.S. 35, 47.) “The constitutional prohibition against excessive
or cruel and unusual punishments mandates that the State’s power to punish
be exercised within the limits of civilized standards.”
(Kennedy v.
Louisiana (2008) 554 U.S. 407, 435, internal quotes omitted.)
‘“The
concept of proportionality is central to the Eighth Amendment,”’ and
‘“[e]mbodied in the Constitution’s ban on cruel and unusual punishments is
the precept of justice that punishment for crime should be graduated and
proportioned to [the] offense.’” (In re Coley (2012) 55 Cal.4th 524, 538,
quoting Graham v. Florida (2010) 560 U.S. 48, ___, 130 S.Ct. 2011, 2021.)
‘“The Eighth Amendment does not require strict proportionality
between crime and sentence. Rather, it forbids only extreme sentences that
are ‘grossly disproportionate’ to the crime.’” (Carmony II, supra, 127
59
Cal.App.4th at p. 1076, quoting Ewing v. California (2003) 538 U.S. 11,
23.) ‘“[A] court’s proportionality analysis under the Eighth Amendment
should be guided by objective criteria, including (i) the gravity of the
offense and the harshness of the penalty; (ii) the sentences imposed on
other criminals in the same jurisdiction; and (iii) the sentences imposed for
commission of the same crime in other jurisdictions.”’ (In re Coley, supra,
55 Cal.4th at p. 540, quoting Solem v. Helm (1983) 463 U.S. 277, 292.)
‘“Three kinds of sentence-related characteristics define the relevant
comparative spectrum – ‘(a) the length of the prison term in real time, i.e.,
the time that the offender is likely actually to spend in prison; (b) the
sentence-triggering criminal conduct, i.e., the offender’s actual behavior or
other offense-related circumstances; and (c) the offender’s criminal
history”’ (Coley, at pp. 543-544, quoting Ewing, at p. 37.)
‘“Article I, section 17 of the California Constitution prohibits
infliction of ‘[c]ruel or unusual punishment.’” (People v. Em (2009) 171
Cal.App.4th 964, 972, quoting People v. Dillon (1983) 34 Cal.3d 441, 478.)
“Unlike its federal counterpart, this provision forbids cruel or unusual
punishment, a distinction that is purposeful and substantive rather than
merely semantic.” (Carmony II, supra, 127 Cal.App.4th at p. 1085.) The
distinction is intended to afford ‘“greater protection to criminal
defendants.”’
(People v. Haller (2009) 174 Cal.App.4th 1080, 1092,
quoting In re Lynch (1972) 8 Cal.3d 410, 424.) “For that reason, it is
construed separately from the federal prohibition against cruel and unusual
punishment.” (Carmony II, at p. 1085.)
“A sentence may violate this
prohibition if ‘it is so disproportionate to the crime for which it is inflicted
that it shocks the conscience and offends fundamental notions of human
dignity.’” (Em, at p. 972, quoting Dillon¸ at p. 478.)
California also uses a three-prong test for the proportionality
analysis, which is similar in nature to the elements of the federal test:
60
“First, we examine ‘the nature of the offense and/or the offender, with
particular regard to the degree of danger both present to society.’ Second,
we compare the punishment imposed with punishments prescribed by
California law for more serious offenses. Third, we compare the
punishment imposed with punishments prescribed by other jurisdictions for
the same offense.”
(People v. Em, supra, 171 Cal.App.4th at p. 972,
quoting Lynch, supra, 8 Cal.3d at p. 425.)
Courts have struggled to
consistently apply either standard in non-capital cases. (Graham v. Florida
(2010) 560 U.S. 48, ___, 130 S. Ct. at p. 2036 [“Our Court has struggled
with whether and how to apply the Cruel and Unusual Punishments Clause
to sentences for noncapital crimes.”]; In re Coley, supra, 55 Cal.4th at p.
538 [noting “the particularly difficult nature of line drawing in this
context”].) But it is clear that the sentence here fails under either standard.
At the outset, it is important to note that while the burden on the
defendant is heavy under both the federal and state standard (People v.
Wingo (1975) 14 Cal.3d 169, 174 [the burden is “considerable” under the
federal standard]; People v. Em, supra, 171 Cal.App.4th at p. 972
[“findings of disproportionality have occurred with exquisite rarity in the
case law” under the state standard]), much of the weight is tied to concerns
about “legislative primacy” – i.e., that courts must defer to legislative
determinations about the appropriateness of punishment so as not to disrupt
the separation of powers. “In light of legislative primacy, reviewing courts
‘should grant substantial deference to the broad authority that legislatures
necessarily possess in determining the types of limits of punishments for
crimes . . .”’ (Carmony II, supra, 127 Cal.App.4th at p. 1076, quoting
Solem v. Helm, supra, 463 U.S. at p. 290.) “[I]n our tripartite system of
government it is the function of the legislative branch to define crimes and
prescribe punishments, and . . . such questions are in the first instance for
the judgment of the Legislature alone.” (In re Lynch, supra, 8 Cal.3d at p.
61
41; see also People v. Felix (2003) 108 Cal.App.4th 994, 999-1000, citing
People v. Dillon, supra, 34 Cal.3d at p. 478 [“Because choosing the
appropriate penalty is a legislative weighing function involving the
seriousness of the crime and policy factors, the courts should not intervene
unless the prescribed punishment is out of proportion to the crime.”].)
As discussed above, however, while the legislative has prescribed a
sentence of 15 years to life for each conviction under the “one strike”
statutory scheme, ‘“the length of the prison term in real time”’ is what
matters (In re Coley, supra, 55 Cal.4th at pp. 543-544, quoting Ewing v.
California, supra, 538 U.S. at p. 37) – and that was the product of the trial
court’s discretionary decision to impose all the terms consecutively to one
another (see People v. Bradford, supra, 17 Cal.3d at p. 20). Once the
legislatively mandated terms were imposed, it was up to the court as to how
much actual time appellant would serve. Necessarily then, the concern
about potentially disrupting the separation of powers or interfering with a
legislative mandate carries little, if any, weight in reviewing the propriety
of the ultimate sentence here. And, in any event, “the final judgment as to
whether the punishment it decrees exceeds constitutional limits is a judicial
function.” (Carmony II, supra, 127 Cal.App.4th at p. 1086.)
B.
Sentences of This Nature Are Designed for Those Who, Unlike
Appellant, Have Demonstrated a Clear Pattern of Serious and
Repetitive Criminal Behavior Despite Repeated Sanctions
The first element of both the federal and state standard concerns the
significance of the current case and the defendant’s criminal history -particularly as they reflect the degree of danger he or she poses to society -in relationship to the harshness of the penalty. (See Solem v. Helm, supra,
463 U.S. at p. 292, People v. Em, supra, 171 Cal.App.4th 972.) As is
already apparent, the penalty of 210 years to life is by any measure
62
extremely harsh because, if left unchanged, it will ensure that appellant
spends every day of his remaining natural life behind prison walls. On the
other side of the scale, the nature of appellant’s alleged criminal conduct,
while of a sort generally considered despicable, is a far cry from the most
egregious forms of sex crimes or criminal behavior in general. As the trial
court itself acknowledged (9 RT 601-602), there was no penetration or
copulation, forcible or otherwise, no use of a weapon, no violence or threats
of violence, and no bodily injury or physically assaultive conduct. Indeed,
there is no evidence that appellant had ever engaged in any such conduct
against anyone, nor that he had engaged in criminal activity of any other
sort such as fraud, burglary, robbery, etc., because he had no prior record.
The lack of any such pattern of criminal behavior in appellant’s
background is significant, for it is clear that life sentences of this sort are
primarily intended to target those who have not only displayed much more
egregious forms of criminal behavior but who have also shown a clear
unwillingness to conform to society’s norms by pursuing a life of crime
despite repeated criminal sanctions. (See Rummel v. Estelle (1980) 445
U.S. 263, 284 [“Having twice imprisoned him for felonies, Texas was
entitled to place upon Rummel the onus of one who is simply unable to
bring his conduct within the social norms prescribed by the criminal law of
the State.”]; Ewing v. California, supra, 538 U.S. at pp. 29-30 [the state has
an interest “in dealing in a harsher manner with those who by repeated
criminal acts have shown that they are simply incapable of conforming to
the norms of society as established by its criminal law,” and the life term
there was justified “by the State’s public-safety interest in incapacitating
and deterring recidivist felons, and amply supported by [Ewing’s] own
long, serious criminal record.”]; In re Coley, supra, 55 Cal.4th at p. 547
[“in determining the validity of the sentence under the Eighth Amendment
[the court] must take into consideration that the defendant was a repeat
63
offender whom the Legislature may punish more severely than it punishes a
first-time offender.”]; Carmony II, supra, 127 Cal.App.4th at p. 1076,
quoting Ewing, at p. 24 [the “three strikes laws effected a sea change in
criminal sentencing throughout the Nation. These laws responded to
widespread public concern about crime by targeting the class of offenders
who pose the greatest threat to public safety: career criminals.”’]
As an offender with no prior history of recidivism and whose current
crimes lacked the attributes of the criminal behavior reflecting a serious
degree of danger to society at large, appellant simply falls outside the
general category of those who are appropriately walled off from society for
the rest of their days through a sentence of life with no possibility of parole.
C.
A Comparison of Other Cases in California Shows the
Punishment Here Simply Does Not Fit Appellant’s Crimes
The second factor common to both standards – a comparison of the
sentence in this case with the level of punishment in the same jurisdiction
for similar and more serious crimes (see Solem v. Helm, supra, 463 U.S. at
p. 292, People v. Em, supra, 171 Cal.App.4th 972) – further illustrates the
intolerable disparity between appellant’s culpability and punishment. The
first matter of significance here harkens back to the concerns Justice Mosk
voiced in Jones about the abuse of prosecutorial discretion in this context.
Again, the crime of continuous sexual abuse of a child under section 288.5
applies to, and was specifically designed to cover, a situation in which a
person has “recurring access” to a child under the age of 14 and engages in
three or more acts of substantial sexual conduct, or three or more acts of
lewd and lascivious conduct, with the child over a period of at least three
months. (§ 288.5, subd. (a).) A person prosecuted and convicted under this
statute would be subject to merely one conviction carrying a single
determinate sentence of only six, 12, or 16 years for each victim. (Ibid.)
64
As Justice Mosk explained, “the one-count-per-victim provision is a
significant restriction on overzealous prosecutors, who may be tempted to
compile a multitude of convictions based on potentially exaggerated
estimates of the frequency of the criminal conduct by victims concededly
unable to recall specifics.” (People v. Jones, supra, 51 Cal.3d at p. 329.)
That very danger came to life in prosecution of this case. Section
288.5 would have theoretically applied here, such that a person accused of
the same sort of conduct over the same ranges of time could have been
prosecuted and convicted of continuous sexual abuse of a child and subject
to a determinate sentence for each conviction. With separate incidents
against three victims, the maximum exposure the person would face would
be a determinate sentence of 18, 36, or 48 years. Yet, appellant was
prosecuted and convicted for a series of 14 separate lewd and lascivious
acts against the alleged victims. This allowed the prosecution to tether each
violation to the multiple victim enhancement under section 667.61, which
triggered the mandatory term of 15 years to life on each count. As a result,
appellant was exposed to and received a much greater sentence than if he
had been prosecuted and convicted for continuous sexual abuse of a child.
The fact that appellant could have received a far lesser punishment
based on the same conduct simply because he was prosecuted by an
“overzealous” prosecutor who “compile[d] a multitude of convictions”
under a different statutory scheme carrying a multitude of life terms should
itself show that the sentence he received violates basic notions of fairness.
Coupled with his lack of any prior criminal history and the lack of any
evidence that he would pose a threat to society upon release, the
extraordinary sentence of 210 years to life ‘“shocks the conscience and
offends fundamental notions of human dignity.’” (People Em, supra, 171
Cal.App.4th at p. 972, quoting People v. Dillon, supra, 34 Cal.3d at p. 478.)
Indeed, a comparison of cases involving similar and more serious
65
crimes shows that defendants who have engaged in a far more egregious
pattern of criminal conduct have received substantially lesser punishments.
(See e.g., People v. Alvarado (2001) 87 Cal.App.4th 178, 199-200 [15
years to life, plus seven years, for the defendant’s having raped his
“particularly vulnerable” neighbor while he burglarized her home]; People
v. Montero (1986) 185 Cal.App.3d 415, 436-437 [30-year prison term
where the defendant was convicted by a jury of five counts of forcible rape,
five counts of unlawful sexual intercourse, and one count of committing a
lewd and lascivious act upon a child under 14 years of age]; People v.
Crooks (1997) 55 Cal.App.4th 797, 800, 806-807 [sentence of 37 years,
eight months for five felony counts first degree burglary with intent to
commit rape, sexual battery, and three counts of rape by means of force,
violence, duress, menace, or fear of immediate death, and one count of
unlawful bodily injury with a deadly weapon]; People v. Haller, supra, 174
Cal.App.4th at pp. 1083-1084, 1088-1091 [78 years to life for a “relentless
recidivist who repeatedly thumbs his nose at an overly generous criminal
justice system, demonstrating that he is indeed a danger,” and in the current
case “terrorized” his ex-wife and her new husband through repeated
“threatening vile acts of violence,” brandishing a knife, and a general
pattern of harassment and stalking them over a period of time]; People v.
Retanan (2007) 154 Cal.App.4th 1219, 1222, 1231 [135 years to life where:
“Defendant was convicted of numerous sex crimes against four young girls,
including the rape of a 10–year–old . . . [and] attempted to silence two of
his victims by threats against the life of the person they loved the most.”].)
And the pattern of behavior was even worse in cases where the
defendant received a similar or greater sentence than appellant’s. (See e.g.,
People v. Sullivan (2007) 151 Cal.App.4th 524, 568-571 [210 years to life
for “an incorrigible recidivist offender who presents a most grave and
extreme level of danger to society” with two prior serious felony
66
convictions and two prior prison terms, who in the current case committed
a series of six robberies that “included threatened acts of violence with a
deadly weapon” and “must be considered acts of a most heinous nature”];
People v. Byrd (2001) 89 Cal.App.4th 1373, 1382 [115 years plus 444 years
to life for a recidivist with three prior serious felony convictions who in the
current case committed 12 armed robberies and shot, severely wounded,
and permanently disabled an innocent victim in one of them]; People v.
Rhodes (2005) 126 Cal.App.4th 1374, 1381-1382, 1390-1391 [LWOP
sentence for murder where the defendant opened fire with an assault rifle
from an overpass at a group of police officers and evidence technicians,
killing one officer and wounding another]; People v. Johnson (2010) 183
Cal.App.4th 253, 296-298 [LWOP sentence for murder where the
defendant acted as the getaway driver and split the proceeds in at least four
robberies over 10 days, during one of which a victim was killed].)
D.
A Comparison of Cases in Other Jurisdictions Reveals the Same
Sort of Disparity Between Punishment and Culpability
A canvass of cases in other jurisdictions – the third element common
to both the federal and state standard (Solem v. Helm, supra, 463 U.S. at p.
292, People v. Em, supra, 171 Cal.App.4th 972) – reveals a similar
situation: lesser sentences have been imposed against defendants guilty of
much more significant criminal conduct and those who have received
similar or greater sentences were guilty of the most egregious of offenses.
Consider the following examples in the first category of cases:
°
Wedhe v. State (Del. 2009) 983 A.2d 82, 84, 87: 15 year
minimum sentence followed by additional suspended sentences based on
defendant’s prior felony convictions and his current convictions of Sexual
Solicitation of a Child, Fourth Degree Rape, and Second Degree
Conspiracy for facilitating sex between his minor son and his wife.
67
°
State v. Dykes (La. App. 2d Cir. 2004) 867 So.2d 908, 909-
910, 913-914: 20-year sentence with hard labor for a defendant who, while
living with a friend, repeatedly fondled the grandchildren whom she
regularly babysat by touching and rubbing their genitals.
°
Hinton v. State (1976) 260 Ark. 42, 47-48 [537 S.W.2d 800]:
“Appellant was sentenced to consecutive sentences of 21 years for robbery,
15 years for use of a firearm, 3 years for kidnapping and 21 years for
assault with intent to commit rape, all of which were maximum sentences.”
°
State v. Wiese (2010) 238 Or. App. 426, 428-429 [241 P.3d
1210]: concurrent sentences of 300 months for two counts of sodomy in the
first degree, sexual abuse in the first degree, and rape in the first degree,
based on the defendant’s sexual abuse of his 11 year old stepdaughter.
°
People v. Nichols (2012 Ill. App. 2d Dist.) 964 N.E.2d 1190,
1212-1215: 32 year term for two counts of aggravated criminal sexual
assault where the defendant forced the victim to perform oral sex at gun
point and then left her with his cohort who forced her to do the same thing.
°
State v. Russell (Utah 1990) 791 P.2d 188, 190: Two 15 year
terms for aggravated sexual assault and aggravated kidnapping where:
“Defendant raped the victim in her own home at gunpoint. He kidnapped
her and, while she was clad only in a towel, drove her to a remote location,
where he forced her to perform fellatio upon him. Defendant then locked
her in the shell of the truck, drove to another location, and raped her again.
He ordered her out of the truck on penalty of death. She was forced to walk
barefoot in the snow until she received help, and she suffered from sores
and numbness in her feet for two months as a result.”
°
Moore v. State (Alaska Ct. App. 2011) 262 P.3d 217, 219: 35
to 50 year sentence for three counts of sexual assault where the evidence
showed the following: “Moore stopped M.S. at 2:30 a.m. and blocked her
way to her apartment door. Moore put his arm around M.S. and began
68
groping her breasts, her butt, and her vaginal area. M.S. tried to push
Moore away and told him to get off of her. But Moore said, ‘Fuck you
bitch,’ hit M.S. in the head, then threw her on the ground and kicked her
repeatedly. Moore then grabbed M.S. by the hair and began dragging her
down the alley outside her apartment door. However, two men intercepted
Moore and restrained him until the police arrived.”
°
State v. Spear (Kan. July 5, 2013) ___ P.3d ___, 2013 WL
3378395, *2-5, 14-18: concurrent 620 month terms for six counts of
aggravated indecent liberties with a child, based on evidence that the
defendant had touched his niece’s vagina on a number of occasions.
°
Sikeo v. State (Alaska Ct. App. 2011) 258 P.3d 906, 907, 911-
912: 99-year sentence for first degree sexual abuse of a minor based upon
the defendant’s having sex with the 11 year old daughter of his friend and
who had two prior convictions of sexual abuse of a minor.
In fact, in State v. Davis (2003) 206 Ariz. 377 [79 P.3d 64], the
Arizona Supreme Court struck down as cruel and unusual punishment a
much lesser sentence than the one imposed in this case.
There, the
defendant had consensual sex with two pre-pubescent girls and was
sentenced, according to the applicable sentencing scheme, to 52 years in
prison. (Id. at pp. 379-380.) The Arizona Supreme Court found this to be
“an extraordinarily long sentence” given that the defendant’s crimes
involved “neither actual nor threatened violation,” the minors willingly
participated in the acts, defendant had no prior adult criminal record, and
his intelligence and maturity level fell far below the norm for an adult of his
age. (Id. at pp. 384-385.) The court explained: “We recognize society’s
strong interest in protecting children and understand and appreciate that it is
the legislature’s province to assess the appropriate punishment for crimes
against children. But we cannot say that all incidents of sexual conduct are
of equal seriousness and pose the same threat to their victims or to society.”
69
(Id. at p. 385.)
Under the circumstances of this case, the defendant’s
punishment was simply “grossly disproportionate” to the crime. (Ibid.)
As for the second category of cases, where the sentence was of a
similar or greater length than in this case, consider these illustrations:
°
State v. Brown (1992) 121 Idaho 385, 388, 394 [825 P.2d
482]: the defendant was sentenced to a fixed life term for convictions of
rape, robbery, and aggravated battery, where: “The gravity of the offense in
this case was very great. Brown not only raped the victim but almost killed
her. Only remarkable medical procedures saved her life.”
°
State v. Wheeler (2007) 343 Or. 652, 678 [175 P.3d 438]:
consecutive LWOP sentences where the defendant was previously
convicted of felony sodomy and robbery and was convicted in the present
case of “18 separate sex felonies involving three different boys: 10 counts
of first-degree sexual abuse [citation], three counts of first-degree sodomy
[citation], three counts of second-degree sodomy [citation], and two counts
of using a child in a display of sexually explicit conduct [citation].”
°
State v. Oliver (Iowa 2012) 812 N.W.2d 636, 653: LWOP
sentence where: “For sixteen years, Oliver has demonstrated an inability to
conform his conduct to the law. Some of these violations have been
relatively minor misdemeanors while others have been felonies. In
particular, Oliver has demonstrated an inability to conform his actions to
society’s expectations regarding minors, having been convicted of
supplying alcohol to a minor and twice convicted of statutory rape. By
violating residency requirements imposed on sex offenders, Oliver has also
shown he is unwilling to comply with the safeguards the legislature has
mandated to protect children from sexual criminals.”
°
State v. Warren (2006) 168 Ohio.App.3d 288, 292-293, 299,
[859 N.E.2d 998]: multiple life terms followed by determinate sentences,
where the defendant was convicted of “eight counts of rape with violence
70
specifications, eight counts of gross sexual imposition, four counts of gross
sexual imposition with violence specifications, and 12 counts of kidnapping
with violence specifications,” involving a child under the age of 13, whom
he had threatened with harm in order to carry out his acts undetected.
°
State v. Woodall (1989) 182 W.Va. 15, 18-21, 25: multiple
LWOP sentences based on a violent kidnapping over an extended period of
time during which the defendant repeatedly raped and sodomized the victim
at knifepoint while repeatedly threatening to kill and “cut up” the victim.
°
State v. Whitfield (2006) 132 Wash. App. 878, 883, 901 [134
P.3d 1203]: defendant was sentenced to 2,137 months’ confinement based
on his conviction of 17 counts of first degree assault with sexual
motivation, 2 counts of witness tampering, and 3 counts of no-contact order
violations” where the evidence showed he “had intercourse with 17 women,
repeatedly concealing his HIV status and insisting on unprotected sex.”
°
State v. Ysaguire (1983) 309 N.C. 780, 781 [309 S.E.2d 436]:
two life terms followed by multiple determinate terms, where the evidence
showed defendant and his cohort broke into the hotel room of a 63 year old
retired school teacher, “repeatedly raped her by force and against her will,”
“forced her to perform fellatio on them and committed other sexual
assaults,” “brandished a knife and threatened to kill her” during these
assaults, took her cash and credit cards, bound and gagged her facedown on
the bed, and then urinated on her before leaving her in the room.
°
Land v. Com. (Ky. 1999) 986 S.W.2d 440, 440-441:
defendant was sentenced to life imprisonment for one count of murder, life
without the possibility of parole on each of two counts of rape, twenty-one
years on each of two counts of shooting with the intent to kill, and eighteen
years for one count of armed robbery, where the defendant forced his way
into the victims’ vehicle, took their money, shot and killed one of them,
twice raped the other one and then shot her as she tried to run away.
71
This comparative cross section of cases from around the country
shows that the extremely harsh punishment of 210 years to life in this case
was not only unjustified in light of the circumstances surrounding the
convicted acts and appellant’s otherwise clean criminal history but “grossly
disproportionate” so as to constitute “cruel and unusual punishment” under
the federal standard (Ewing v. California, supra, 538 U.S. at p. 23) or, at
the least, “cruel or unusual punishment” under the more protective
California standard (People v. Dillon, supra, 34 Cal.3d at p. 478). “[M]any
sex crimes may well justify such a sentence, others do not.” (State v.
Davis, supra, 206 Ariz. at p. 385.) Appellant’s crimes simply do not.
For these reasons, the sentence must be reversed as in violation of
the constitutional protections against cruel and/or unusual punishment.
V
THE DRUG PROGRAM AND LAB ANALYSIS FEES
ARE INAPPLICABLE TO APPELLANT’S CASE AND
THUS MUST STRICKEN AS UNAUTHORIZED
As noted, the trial court imposed a drug program fee under Health
and Safety Code section 11372.7, subdivision (a), and a lab analysis fee
under Health and Safety Code section 11372.5, subdivision (a). (2 CT
278.) These fees must stricken because neither has any application here.
The drug program fee applies only to persons convicted of certain
specified narcotics offenses. (§ 11372.7, subd. (a);15 People v. Martinez
(1998) 65 Cal.App.4th 1511, 1516; People v. Sharret (2011) 191
15
Health and Safety Code section 11372.7, subdivision (a), which has
not changed in any meaningful way since its original enactment in 1986,
provides: “Except as otherwise provided in subdivision (b) or (e), each
person who is convicted of a violation of this chapter shall pay a drug
program fee in an amount not to exceed one hundred fifty dollars ($150) for
each separate offense.” (§ 11372.7, subd. (a), italics added.)
72
Cal.App.4th 859, 862.) Similarly, the lab analysis fee “applies to persons
convicted of violating Health and Safety Code sections 11351 (possession
of cocaine for sale) and 11352 (transportation of cocaine)” and other similar
crimes. (People v. Vega (2005) 130 Cal.App.4th 183, 193-196; Martinez,
at p. 1519; Sharrett, at pp. 863-864; Health & Saf. Code, § 11372.5, subd.
(a).)16
These fees are obviously directly connected to the defendant’s
having possessed or transported illegal drugs. (See Vega, at p. 195 [The lab
analysis fee is intended “to offset the administrative cost of testing the
purported drugs the defendant transported or possessed for sale in order to
secure his conviction”].) Appellant was neither convicted of nor even
charged with any offense involving illegal drugs. Thus, the fees have no
application to this case and must be stricken as unauthorized.
Because the fees are clearly unauthorized as a matter of law, the
error is correctable regardless of whether the issue was raised below.
(People v. Turrin (2009) 176 Cal.App.4th 1200, 1205 [“an unauthorized
sentence may be corrected at any time”]; accord In re Sheena K., supra, 40
Cal.4th at p. 886; People v. Smith (2001) 24 Cal.4th 849, 852 [“We deemed
appellate intervention appropriate in these cases because the errors
presented ‘pure questions of law’ [citation], and were ‘clear and
correctable’ independent of any factual issues presented by the record at
sentencing.”]; Turrin, at pp. 1205-1207 [this applies to erroneous
16
Health and Safety Code section 11375.2, subdivision (a), which also
has not changed in any meaningful way since its enactment in 1980,
provides: “Every person who is convicted of a violation of Section 11350,
11351, 11351.5, 11352, 11355, 11358, 11359, 11361, 11363, 11364,
11368, 11375, 11377, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380,
11380.5, 11382, 11383, 11390, 11391, or 11550 or subdivision (a) or (c) of
Section 11357, or subdivision (a) of Section 11360 of this code, or Section
4230 of the Business and Professions Code shall pay a criminal laboratory
analysis fee in the amount of fifty dollars ($50) for each separate offense.”
73
imposition of fines and fees correctable without factual findings], and
People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248-1249 [same].)
CONCLUSION
For all these reasons, the judgment and sentence must be reversed.
Dated: August 15, 2013
Respectfully submitted,
_____________________
Raymond M. DiGuiseppe
Attorney for Gerardo Escobedo
CERTIFICATE OF COMPLIANCE
I certify that the attached Appellant’s Opening Brief is prepared with
13 point Times New Roman font and contains 24,607 words.
Dated: August 15, 2013
Respectfully submitted,
____________________
Raymond M. DiGuiseppe
74