P. v. Nunez

Filed 9/12/07 P. v. Nunez CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County,

Charles L. Peven, Judge. Affirmed.

Sharon Fleming, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

______________________________

Jesus A. Nunez appeals from the judgment entered following a court trial in which he was convicted of numerous counts of sexual abuse involving multiple child victims. He contends that because the trial court failed to make factual findings as to the truth of the multiple victim circumstance (Pen. Code, 667.61, subd. (e)(5))^[1]at the time the court announced its findings of guilt, the sentence enhancement of an indeterminate life term ( 667.61, subd. (b)) imposed on each of four counts should be reversed. We conclude the trial court sufficiently rendered the necessary finding and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Nunez was charged by amended information with two counts of continuous sexual abuse of a child in violation of section 288.5, subdivision (a) (count 1-Michael R., count 5-Julia M.), five counts of committing a lewd act upon a child in violation of section 288, subdivision (a) (counts 2, 3 -Daniel M., count 6-Austin M., counts 8, 9-Jackie M.), and one count of misdemeanor child molestation (count 7-Peter M.).^[2] It was specially alleged, within the meaning of section 667.61, subdivision (b) that as to counts 2, 3, 6, 8 and 9, Nunez was convicted in the present case of committing an offense against more than one victim (the multiple victim circumstance).

Nunez waived trial by jury and submitted to the trial court on the preliminary hearing transcript the issues of guilt as to count 5 (Julia M.), count 6 (Austin M.), and counts 8 and 9 (Jackie M.). As to counts 1, 2, 3 and 7, Michael R., Daniel M., and Peter M. testified at the court trial.

According to Michael R. and Daniel M., on different occasions, Nunez placed his hand inside the pants of each boy and rubbed the boys penis. Julia M. and Jackie M. testified to incidents in which Nunez pulled down the pants of each girl, and either kissed or licked her vagina (Julia M.) or, using his penis or a round object, rubbed her vagina (Jackie M.).

Nunez was the only defense witness. The trial court asked Nunez, Did you do these things that the kids said that you have been doing? Nunez answered, Yes. He added that he loved his grandchildren, would never hurt a child and, if convicted, he wanted help.

At the conclusion of the trial, the court found the prosecution had failed to prove the lewd act charge of count 6 (Austin M.) beyond a reasonable doubt. As for the remaining counts, the court found the evidence is there as far as all the other children are concerned, especially with [Nunez] having confirmed it. The court then convicted Nunez of counts 1, 2, 3, 5, 7, 8, and 9 and acquitted him of count 6. The court announced no specific findings concerning the section 667.61, subdivision (e)(5)) allegations.

Prior to sentencing, the court summarized its findings, stating that the special allegation was found to be true pursuant to the provisions of section 667.61, subdivision (b). The court imposed an aggregated sentence of 38 years to life in state prison consisting of two consecutive terms of 15 years to life for the lewd act convictions of counts 2 and 8 pursuant to section 667.61, subdivision (b), two concurrent terms of 15 years to life for the lewd act convictions of counts 3 and 9 pursuant to section 667.61, subdivision (b), two consecutive terms of four years for the continuous sexual abuse convictions of counts 1 and 5, and a concurrent term of one year in county jail for the misdemeanor child molestation conviction of count 7.

DISCUSSION

A defendant who is convicted of committing a lewd act upon a child in violation of section 288, subdivision (a) is subject to an enhanced punishment of 15 years to life pursuant to section 667.61, subdivision (b) if there is a finding the defendant committed the offense against more than one victim within the meaning of section 667.61, subdivision (e)(5). ( 667.61, subds. (b), (C)(7), (e)(5).) Section 667.61, subdivision (i) specifies that for the enhanced punishment to apply, the existence of any fact required under subdivision (e) (the multiple victim circumstance) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact .

Nunez contends that because the trial court failed to perform its statutory obligation by making its true findings as to the multiple victim circumstance at the conclusion of the trial, the enhancement as to counts 2, 3, 8 and 9 should be stricken and the resulting sentence of four indeterminate life terms should be reversed.

Nunez is correct that after a court trial, the trial court must announce its findings of fact, including the truth of any sentence enhancement allegations that would otherwise be found by a jury. (See  1167.) Where the record reveals the trial court implicitly made a finding necessary to support a sentence enhancement, however, the sentence will be upheld on appeal. (People v.Chambers (2002) 104 Cal.App.4th 1047, 1051.) Here, although no express finding was made at the time the trial court rendered its verdict, the record shows the trial court impliedly found the multiple victim circumstance true. In announcing its decision, the trial court stated that, other than count 6 involving Austin M., the prosecution evidence and Nunezs admission had proved the remaining counts involving all the other children. At the outset of the sentencing hearing, prior to imposition of sentence, the trial court reiterated that the section 667.61, subdivision (b) special allegations were found true. The trial court then imposed the sentence enhancement of an indeterminate life term on each of counts 2, 3, 8 and 9 pursuant to section 667.61, subdivision (b). This is sufficient. (See People v. Clair (1992) 2 Cal.4th 629, 691, fn. 17 [at sentencing, court impliedly rendered a finding of true as to the allegation when it imposed an enhancement expressly for the underlying prior conviction]; People v. Chambers, supra, 104 Cal.App.4th at p. 1051 [the trial court impliedly rendered a finding of true as to the firearm-use allegation when it imposed a 10-year enhancement for the underlying use of a firearm].)

Nunezs reliance on People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo) is misplaced; the case does not help him. Mancebo involved section 667.61, the One Strike law, which imposes harsher sentences for certain sex crimes. The defendant was charged with and convicted of multiple sex crimes against two different victims. The information did not expressly allege a multiple victim circumstance, as one of the minimum number of circumstances that section 667.61, subdivision (f) requires, for application of the harsher penalties of section 667.61. It is undisputed here the amended information properly alleged the multiple victim circumstance as to the various counts. And, Nunez cannot meaningfully contest the truth of the multiple victim circumstance based on this record. Indeed, as the trial court observed, Nunezs testimony that he committed the acts described by the kids during their testimony constituted a judicial confession to the charged offenses.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

We concur:

PERLUSS, P. J.

JOHNSON, J.

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^[1] Statutory references are to the Penal Code.

^[2] Count 4 was dismissed by the trial court at the conclusion of the preliminary hearing.