P. v. Almazan

Filed 6/26/07 P. v. Almazan CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, James Patrick Marion, Judge. Affirmed in part and reversed in part.

Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted defendant Miguel Angel Almazan of one count of continuous sexual abuse and five counts of lewd acts on a child. Defendant appeals, contending he cannot be convicted of both continuous sexual abuse and multiple counts of lewd acts because the acts were all committed against the same victim in the same time period. He also asserts the trial court erred in instructing the jury with CALJIC No. 2.20.1 and imposing a security fee. We agree with defendants first contention and reverse his five convictions for lewd acts on a child (counts 2 through 6). In all other respects, the judgment is affirmed.

BACKGROUND

Between 2000 and 2002, defendant committed various acts of sexual abuse against a child, who was six or seven years old when the abuse began. (The details of the offenses are irrelevant to the issues raised on appeal and are omitted.) Defendant was charged with continuous sexual abuse and five counts of lewd acts upon a child. The jury returned a guilty verdict on all six counts. The trial court imposed a 12-year term on the continuous sexual abuse count and five 6-years terms on the lewd acts counts to run concurrently with the 12-year term. The court also imposed a $20 court security fee.

DISCUSSION

1. Multiple Convictions

Defendant argues, and the Attorney General correctly concedes, Penal Code section 288.5, subdivision (c) (all further statutory references are to this code) precludes his conviction of both continuous sexual abuse and lewd acts on a child where the offenses were committed against the same victim during the same time period. (People v.

Johnson (2002) 28 Cal.4th 240, 248 (Johnson).) Section 288.5, subdivision (c) declares, No other act of substantial sexual conduct . . . with a child under 14 years of age at the time of the commission of the offenses, or lewd and lascivious acts . . . 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. In Johnson, the Supreme Court held this language clearly mandates the charging of continuous sexual abuse and specific sexual offenses, pertaining to the same victim over the same period of time, only in the alternative, and prosecutors may not obtain multiple convictions in the latter circumstance. (Johnson, supra, 28 Cal.4th at p. 248.) As Johnson explained, if multiple charges and convictions were permitted under the present circumstances, then the alternative charging language of subdivision (c) of section 288.6 is essentially rendered meaningless. We will avoid an interpretation that makes surplusage of a portion of a statute. [Citation.] (Id. at p. 247.)

The parties disagree on the remedy for the error. Defendant urges us to vacate the five counts of lewd acts, while the Attorney General asserts the continuous sexual abuse conviction should be vacated. We agree with defendant.

Under the plain language of section 288.5, subdivision (c), once the prosecution charges a defendant with continuous sexual abuse, no other sexual felony offenses occurring during the same time period against the same victim may be charged, except in the alternative. The charges here were not alleged in the alternative.

The prosecutor apparently attempted to remedy this failure during closing argument. He explained that counts 2 through 6 are kind of included within [count 1]. . . . [C]ount 1 is all of it. All of the touchings during that period of time. [] Count[s] 2 through 6 are kind of in the alternative [in] that these are five counts that you could find

occurred within this same timeframe. The jury returned a guilty verdict on one of the counts; the record does not disclose which one. The court required the jury to return verdicts on the remaining five counts, stating, You have to have five more signed. So what I want you to do, I want to give these back to you, all of them. And I want to hand them to you. Do you understand what I mean? There are six counts. Youve got a verdict on one count. You have to have a verdict on all six. A few minutes after retiring to the jury room, the jurors returned with six guilty verdicts. Defendant was then sentenced on all counts even though the prosecutor reminded the court that the continuous sexual abuse and the lewd acts counts were kind of charged in the alternative. This was error.

Although the record does not reflect on which count the jury returned a guilty verdict, the only rational conclusion is that it was for the section 288.5 count. Of the six verdict forms, five were for committing lewd acts on a minor. The sole unique charge was the continuous sexual abuse count. Given the prosecutors explanation during closing argument, the most logical assumption is that the jury believed a guilty verdict on the section 288.5 count was sufficient. No alternative explanation is offered. As defendant argues, There would have been no sense in completing only one of the section 288 verdicts and leaving the remaining four 288 verdict and the section 288.5 verdict blank.

The Attorney General contends that because the jury was never instructed the offenses were charged in the alternative, it is speculation to assume the jury signed the continuous sexual abuse verdict form. We disagree. The jury may not have received explicit instructions the offenses were charged in the alternative, but the prosecutor told them as much. For this reason, we also reject the Attorney Generals assertion that to assume the jury completed the section 288.5 verdict is to presume it was aware of section

288.5, subdivision (c)s provisions and improperly considered potential punishment.

Once the jury returned its guilty verdict on the continuous sexual abuse charge, its job essentially was finished. The requirement of the section 288.5, subdivision (c) permitted it no choice but to mark the remaining charges as not guilty, a mere ministerial act. (See Johnsonsupra, 28 Cal.4th at p. 248 [where the defendant improperly convicted of both continuous sexual abuse and specific sexual acts against same victim during same time, Court of Appeal correctly reversed latter convictions].)

Citing People v. Torres (2002) 102 Cal.App.4th 1053 (Torres), the Attorney General maintains that when multiple convictions are improperly obtained in violation of section 288.5, subdivision (c), the remedy is to vacate the conviction carrying the lesser punishment. In Torres, the defendant was convicted of continuous sexual abuse of a child and numerous other sexual offenses occurring during the same time period and involving the same victim. On appeal, the defendant argued his individual sex offense convictions should be reversed, leaving him convicted of only the continuous sexual abuse count. While agreeing the defendant could not be convicted on all counts, the court concluded that under the circumstances in that case, the separate convictions, which carried the greater punishment, should stand because this result furthered the legislative purpose in enacting section 288.5 of making a defendants liability reflect culpability. (Torres, supra, 102 Cal.App.4th at p. 1059.)

Torres distinguished Johnson on the ground it held only that when multiple convictions are obtained in violation of section 288.5, subdivision (c) either the continuous abuse conviction or the convictions on the specific offenses must be vacated. [Citation.] (Torres, supra, 102 Cal.App.4th at p. 1057.) It reasoned that because it was not at issue, Johnson did not address which of the alternative convictions should be reversed but rather simply affirmed the Court of Appeals decision vacating the specific counts. (Torres, supra, 102 Cal.App.4th at p. 1057.) According to Torres, Johnson

requires nothing more than vacation of either the continuous abuse conviction or the convictions on the specific sexual offenses. [Citation.] (Torres, supra, 102 Cal.App.4th at p. 1057)

We are not bound by Torres and find it factually distinguishable. It reflects only that the defendant was convicted of both continuous sexual abuse and multiple sexual felonies. It did not discuss the effect of section 288.5, subdivision (c) when the jury first renders a guilty verdict on a continuous sexual abuse charge before reaching the other counts. It also specifically limited its holding to the facts of its case. (Torres, supra, 02 Cal.App.4th at p. 1055.)

Defendants convictions on counts 2 through 6 are reversed. In light of our conclusion, we need not discuss defendants alternative arguments that the sentence on the section 288 counts should have been stayed under section 654 or that the imposition of concurrent terms on those counts violated the double jeopardy clauses of the United States and California Constitutions.

2. CALJIC No. 2.20.1

CALJIC 2.20.1 reads, In evaluating the testimony of a child [10 years of age or younger] you should consider all of the factors surrounding the childs testimony, including the age of the child and any evidence regarding the childs level of cognitive development. A child, because of age and level of cognitive development, may perform differently than an adult as a witness, but that does not mean that a child is any more or less believable than an adult. You should not discount or distrust the testimony of a child solely because he or she is a child. [] Cognitive means the childs ability to perceive, to understand, to remember, and to communicate any matter about which the child hasknowledge. The trial court gave this instruction, omitting the bracketed portion.

Although defendant did not object in the trial court, any error in giving the instruction is reviewable on appeal because it affects his substantial rights. (People v. Slaughter (2002) 27 Cal.4th 1187, 1199; 1259.)

Defendant contends the court erred in giving this instruction because the victim was 11 years old when she testified at trial. He points to the use notes to the instruction, which declare (1) the bracketed clause applies [i]n case more than one child testifies and one is [10] years of age or younger and another child witness is [11] years of age or older and (2) under section 1127f, [t]he first paragraph of [CALJIC No. 2.20.1] must be given upon the request of any party in any criminal trial or proceeding in which a child [10] years of age or younger testifies. (Use Note to CALJIC No. 2.20.2 (7th ed. 2003) p. 52.)

Contrary to defendants contention, nothing in the instruction, its use notes, or section 1127f precludes the giving of the instruction for a child over the age of 10. The fact the bracketed clause applies when more than one child testifies, with one under and another over the age of 10, does not mean the trial court is prohibited from giving the instruction when a single child witness over age 10 testifies. Nor does section 1127fs mandate that the instruction be given in all cases involving a child under age 10 compel that conclusion. It just means the trial court has discretion whether to give it when the child is over the age of 10.

Defendant also argues the instruction precludes consideration of child witnesses demeanor and inability to perceive, understand, remember or communicate[,] (bold and capitalization omitted) and is unconstitutional. As he acknowledges, however, courts have addressed and rejected essentially the same argument. (See People v. Gilbert (1992) 5 Cal.App.4th 1372, 1393 [read as a whole, instruction provides sound and rational guidance to the jury in assessing the credibility of a class of witnesses as to whom traditional assumptions may previously have biased the factfinding process];

People v. Jones (1992) 10 Cal.App.4th 1566, 1572-1574 [rejecting argument that second sentence of CALJIC No. 2.20.1 directs jury to find child witness more credible than adult]; People v. Harlan (1990) 222 Cal.App.3d 439, 455-457.) We agree with the reasoning of these cases and reject defendants claims here.

Defendants arguments why we should disagree with these decisions are not persuasive. There is no reasonable likelihood jurors would construe the second sentence as compel[ling] them to ignore their own experience interpreting childrens non-verbal cues and behavior or suggest[ing] that a childs poor performance in testifying is not relevant to her reliability as a witness. The court gave the standard CALJIC No. 2.20 instruction, listing factors relevant to assessing credibility, including the abilities to remember and communicate. Nothing in CALJIC No. 2.20.1 tells the jury to disregard these factors. Rather, the first sentence expressly admonishes the jury to consider all factors relevant to assessing the credibility and weight of a child witnesss testimony, including the age of the child and evidence of the childs level of cognitive development. All the second sentence does is caution that differences in the childs performance due to age and level of cognitive development do not mean that a child is any more or less believable than an adult. The instruction as a whole warns against discrediting a witness solely because he or she is a child. At the same time, it admonishes against doing the opposite.

CALJIC No. 2.20.1 consistently has been upheld in the face of constitutional challenges, including those raised by defendant. (People v. McCoy (2005) 133 Cal.App.4th 974, 978-980; People v. Gilbert, supra, 5 Cal.App.4th atpp. 1392-1394; People v. Harlan, supra, 222 Cal.App.3d at pp. 455-456; see also People v. Dennis (1998) 17 Cal.4th 468, 527.) Defendants assertions fail for the reasons set forth in those decisions.

3. Court Security Fee

Defendants final challenge is to the $20.00 court security fee imposed under section 1465.8, subdivision (a)(1). Because the charged offenses occurred between September 2000 and December 2002, and section 1465.8 did not become effective until August 2003, he asserts the imposition of fee violates the state and federal ex post facto clauses. On the contrary, the fee is a nonpunitive civil assessment. (People v. Wallace (2004) 120 Cal.App.4th 867, 878.)

Defendant also contends the imposition of the fee was an unlawful retroactive application of a penal statute. The issue is now pending in our Supreme Court. (People v. Carmichael (2006) 135 Cal.App.4th 937, review granted May 10, 2006, S141415 [fee cannot be imposed retroactively because no clear indication that was Legislatures intent]; People v. Alford (2006) 137 Cal.App.4th 612, review granted May 10, 2006, S142508 [fee may be imposed on a defendant whose crime occurred before effective date of statute because history, purpose and impact of the law reveal Legislature intended statute to apply retroactively.)

Regardless of the Supreme Courts ultimate decision, the statute was not applied retroactively in this case. [T]he critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statutes effective date. [Citations.] (People v. Grant (1999) 20 Cal.4th 150, 157.) Under section 1465.8, subdivision (a)(1), the security fee is imposed on every conviction for a criminal offense . . . . Defendants convictions happened after the effective date of the statute. (See People v. Bailey (2002) 101 Cal.App.4th 238, 243 [gang registration statute applicable to any person convicted in a criminal court of certain offenses held not retroactive where defendant convicted after statutes effective date, though offense itself occurred before].)

DISPOSITION

Defendants convictions for lewd acts upon a child (counts 2 through 6) are reversed and ordered stricken. The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and to forward a certified copy to Adult Operations, Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

OLEARY, J.

IKOLA, J.

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