P. v. Om

Filed 6/2/06 P. v. Om CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Judgment affirmed, sentence vacated, and remanded for resentencing.

In January 2005 the District Attorney of San Diego County filed a second amended information (the information)^[1] charging Jonny Om with 16 counts of committing lewd acts upon five children under the age of 14 years (Pen. Code,^[2] § 288, subd. (a)). The information contained allegations that Om (1) committed lewd acts upon more than one victim (§ 667.61, subds. (b), (c) & (e); counts 1-5, 15 & 16); (2) used matter depicting sexual conduct in committing the charged offenses (§ 1203.66, subd. (a)(9); counts 1-3, 5-14); and (3) had substantial sexual conduct with a victim who was under the age of 14 years (§ 1203.66, subd. (a)(8); counts 1, 5-14).

In counts 6 through 14, the information also contained allegations (the section 803(g) allegations) that prosecution of each of those nine counts was revived under the tolling provisions of former section 803, subdivision (g) (hereafter referred to as section 803(g))^[3] because (1) each offense was reported to a California law enforcement agency by a person who alleged that she was the victim of a crime described in section 288, subdivision (a) when she was under the age of 18 years, (2) the limitation periods specified in sections 800 and 801 had expired, (3) each offense involved substantial sexual conduct, and (4) independent evidence clearly and convincingly corroborated each victim's allegations. The information also alleged that prosecution of count 16 was commenced within the limitations period because a warrant for Om's arrest was issued on January 3, 2000 (§ 804, subd. (d)).

Following a jury trial in January 2005, the jury acquitted Om of three counts (counts 4, 6 & 15); convicted him of 13 counts (counts 1-3, 5, 7-13 & 16); and found true the respective allegations in those 13 counts, with the exception of the allegation in count 14 that prosecution of that count was revived under the tolling provisions of section 803(g). The jury found the section 803(g) allegation in count 14 to be not true. The court thereafter dismissed count 14.

The court sentenced Om to an aggregate term of 75 years to life plus 18 years, consisting of consecutive indeterminate terms of 15 years to life for each of counts 1, 2, 3, 5 and 16, plus consecutive determinate terms of six years for count 7 and two years each for counts 8 through 13.

Om appeals, contending (1) the court prejudicially misinstructed the jury on the independent evidence requirement of section 803(g); (2) the court prejudicially erred in instructing the jury with a modified version of CALJIC No. 2.27 pertaining to the sufficiency of the testimony of one witness; (3) the matter must be remanded for resentencing because the court was unaware of its discretion to sentence Om to concurrent prison terms for his convictions of counts 1, 2, 3, 5 and 16; and (4) Om was denied his federal constitutional right to a jury trial, and the court acted in excess of its jurisdiction, when the court sentenced him to consecutive terms based on facts beyond those found true by the jury.

We affirm the judgment of conviction. However, because the record shows, and the parties agree, that the court imposed consecutive 15-year-to-life terms as to counts 1, 2, 3, 5 and 16 based on the mistaken belief that it had no discretion to order that Om serve the sentences on counts 2, 3, 5 and 16 concurrently to the sentence imposed on count 1, the matter must be remanded for resentencing on counts 2, 3, 5 and 16.

FACTUAL BACKGROUND

A. The People's Case

Om, a Cambodian national, was a family friend of fellow Cambodian immigrants K.T. (father), K.T.'s wife (mother) and their nine children (including daughters hereafter referred to as oldest, middle, and youngest sisters), K.T.'s mother (grandmother) and sister (K.T.'s sister).^[4] Om lived with K.T. and his family in San Diego for a couple of months. Before and after that period of time, Om lived with grandmother. He also lived with K.T.'s sister's family, including her daughters hereafter referred to as older and younger cousins. Om sexually molested middle and youngest sisters and younger and older cousins, and touched a fifth victim, Linda D., during a period of about eight years.

1. Middle sister (counts 6-9: November 10, 1991─October 31, 1994)

Middle sister, who was born in late 1984, was 20 years of age at the time of trial in January 2005. When she was six or seven, Om drove her and her brothers, sisters and cousins to Belmont Park. The boys went to the amusement park near the beach, and the girls (middle and youngest sisters and older and younger cousins) stayed with Om. Om suggested that middle sister and older cousin go swimming, and the girls, not having bathing suits, took off all of their clothes and did so. When they finished swimming, middle sister and oldest cousin lay down on the grass on either side of Om, covered by blankets. Om touched middle sister's breast and vaginal areas, and grabbed her hand and moved it up and down his penis until he ejaculated. These acts stopped when the other children returned.

Another molestation occurred when middle sister's family visited grandmother. Middle sister and oldest cousin went to Om's room to "hang out" and ended up naked on his bed. Middle sister watched Om touch and kiss oldest cousin from her neck down to her breasts and vagina. He then did the same thing to middle sister.

When middle sister was eight or nine years old, Om moved into her family's home and would frequently invite her into his bedroom, turn on pornographic movies, and make her masturbate him until he ejaculated. On other occasions, Om would have middle sister roll over him on his bed while they were both clothed.

One night in 1994 or 1995, middle sister's parents went to a wedding reception, and the children stayed home with Om. Mother returned home early and went to sleep in the living room. When everyone was asleep, Om crawled into middle sister's bed and tried to touch oldest sister. Middle sister watched him go under the blanket and touch oldest sister. Oldest sister awoke and began crying. One of their brothers awoke and saw Om on the bed. Mother heard her children crying and saw Om leaving their bedroom. When she went into the bedroom, the children were covered up inside the blanket and screaming, "Help me. Help me, Mom. Jonny is in my room." Oldest sister told her mother that Om came into the bedroom, pulled the blanket away from her, and then attempted to molest her. Mother asked Om why he went into the bedroom, and he replied that he went in to cover up the children. Mother told him he was not allowed in the bedroom because the girls slept in there. When K.T. returned home later that night, oldest sister was crying and scared, and her lips were shaking. Oldest sister told father that Om had come into her room. Father told Om to move out. Because Om is Cambodian, father decided not to report Om to the police.

After Om left their house, he moved back in with grandmother. Youngest sister, who was six or seven at the time, often visited grandmother and returned home with small gifts she received from Om. Middle sister told her not to go to grandmother's house because she believed Om was touching her while she was there.

Om stopped molesting middle sister in 1994 or 1995, when she was 10 or 11 years old. On August 23, 1999, middle sister called the police because she was tired of Om hurting her, her younger sister and her older cousin.

2. Youngest sister (counts 1-5: January 16, 1997─August 22, 1999)

Youngest sister, who was born in January 1992, was 13 years old at the time of trial. When she was five, six or seven years old, Om touched her vagina with his fingers, both over and under clothing, in his bedroom in grandmother's house. Om showed her pornographic movies in his bedroom. He masturbated and ejaculated in front of youngest sister while lying in a hammock strung across his room. Sometimes he asked her to orally copulate him, and she complied. When she told Om she did not want to orally copulate him, he would get mad.

On one occasion, he lay down on top of youngest sister on the floor, and his penis touched the area between her legs. Older cousin was in the room at the time.

Another time, when youngest sister was with Om in his car, Om placed his fingers on her vagina over her clothing while she was sitting in his lap pretending to drive.

Om gave youngest sister money. Before he would touch her, Om would tell her not to tell anyone. She did not tell her parents, but she told middle sister that Om had touched her.

Maria Gasza, M.D., conducted a medical examination of youngest sister in September 1999. She told Dr. Gasza that at the time of the sexual contact, three weeks before the examination, she experienced pain in her genital area and in her bowel movements, and she had nightmares. Dr. Gasza's examination revealed normal findings that were consistent with the history provided by a social worker. The acts youngest sister described were not of the type that would cause severe permanent damage. Any minor injuries, such as abrasions or bruises, would have disappeared in about 72 hours.

3. Older cousin (counts 10-14: February 6, 1992─October 31, 1994)

Older cousin, who was born in February 1983, and was 21 years old at the time of trial, met Om when she was eight or nine years old. Om lived with older cousin and her family in San Diego.

When older cousin was eight or nine years old, Om said sexually explicit things to her, touched her vagina with his fingers and penis, made her touch him, and showed pornographic movies to her. Older cousin told Om to stop and she pushed him away, but he persisted.

Om also molested older cousin at Belmont Park, the beach with the roller coaster. Older cousin, her brother, sister and cousin went to the beach with Om. Om told older cousin and middle sister to stay with him while the others went to the area with the roller coaster to play games. Om brought out a sheet and a blanket and laid them out on the grass. He asked the girls if they wanted to play a game that involved taking off their clothes. They agreed, undressed, went swimming without their clothes, and ended up naked, on their sides, underneath the blanket on either side of Om. Om placed his penis against older cousin's vaginal area, asked her whether she could feel it, and ejaculated. Om wanted older cousin to lick his penis and said it was "ice cream." Older cousin did not remember whether his penis touched her mouth. Om did the same thing to middle sister. Older cousin saw him on top of middle sister, trying to "stick his penis into her vaginal area." Om asked the girls to touch his penis. Older cousin did not remember whether either of them touched Om's penis.

On another occasion, when older cousin was eight or nine years old, Om came into her room and touched her vagina with his finger and penis. She testified that Om rubbed her vagina with his penis and "tried to poke it in." Om also showed pornographic movies to her while they were in his bedroom.

Another time when older cousin was eight or nine years old, she again went with Om to Belmont Park. Older cousin's little brother was asleep in the front seat of Om's car. Om and older cousin were in the back seat, and he told older cousin to lie down and take her pants off. Om removed his own pants and rubbed his penis against her vagina until he ejaculated.

On one occasion, Om made older cousin orally copulate him. On other occasions, he showed her pornographic movies and, while the movie played, he touched her vagina.

4. Younger cousin (count 16: April 26, 1998─August 22, 1999)

Younger cousin, who was born in April 1991 and was 13 years old at the time of trial, met Om when she was four or five years old. When she was about eight years old, Om lived in her grandmother's house. One day when she was playing outside with her cousin, Om asked younger cousin whether she wanted to play a game and then touched her on the top of her legs with his hands. Younger cousin told him to stop.

On other occasions, Om would play a "game" and touch younger cousin's legs with his hands while they were in his room. Once he touched her "private" area. On these occasions, youngest sister was always with younger cousin. Om also touched youngest sister on her legs. He showed pornographic movies and magazines to both girls, showed his penis to them and asked them to touch it. Both girls refused.

5. Linda D. (count 15: October 4, 1996─October 4, 1997)

Linda D., who was born in October 1986 and was 18 years old at the time of trial, knew Om because he was a friend of her mother. When she was 10 to 12 years old, Linda went with her mother and older brother to Om's home. Linda and her brother went into Om's room to draw pictures. As Linda's brother was playing checkers with his back towards Om and Linda, Om ran his hand up her inner thigh under her dress and tried to touch her "private part." She pushed him away.

After he touched Linda's thigh, Om left the room. When he returned, he had his clothes on but was holding his exposed penis with his hands. Linda then got up and left as her brother continued to play.

Linda dated older and younger cousin's brother. He testified that Om told him that he "finger banged" Linda and touched her.

6. Investigation

Middle sister reported to the police on August 23, 1999, that Om had molested her the previous day. Detective Gaye Wagner interviewed middle sister and older cousin on September 7 of that year. She also interviewed Linda and youngest sister two days later. Detective Wagner chose not to interview youngest sister and younger cousin because they were the youngest, and a crime had already been established.

On September 13, 1999, middle sister and oldest sister were interviewed by social workers at Children's Hospital. Youngest sister was examined by Dr. Gasza that same day.

Detective Wagner recovered a pornographic videotape from Om's room on September 15, 1999. Pursuant to a warrant, she also went to the local Cambodian Buddhist temple on September 23 of that year and recovered a suitcase containing documents in Om's name and a photograph album containing photos of young girls.

On September 15, 1999, older cousin and younger cousin were interviewed at Children's Hospital. On September 30, 1999, Linda D. was interviewed by a social worker at Children's Hospital.

On December 13, 1999, youngest sister was interviewed by social workers at Children's Hospital. The district attorney's office interviewed middle and youngest sister and older and younger cousin in December 1999. Om left for Cambodia in 1999.

On January 3, 2000, the criminal complaint was filed against Om in this matter and a warrant was issued for his arrest. On November 20, 2003, Om was extradited from Seattle, Washington.

B. The Defense

Psychologist Thomas MacSpeiden testified about memory, its phases, and the effects of stress, unconscious transference and post-event information on the acquisition, retention and retrieval of memory.

DISCUSSION

I. INSTRUCTIONAL ERROR (§ 803(G)─INDEPENDENT EVIDENCE)

Om first contends the court prejudicially misinstructed the jury on the corroborating independent evidence requirement of section 803(g), and thus his convictions of committing lewd acts upon middle sister and older cousin (counts 7-13)^[5] must be reversed because the applicable six-year limitation period for those offenses expired, the court's instruction erroneously permitted the jury to find true the section 803(g) allegations in those counts based on the victims' own self-corroborating testimony that they were victims of uncharged sexual misconduct by Om, and thus prosecution of those counts was time barred. He asserts that "the trial court's definition of independent evidence erroneously and prejudicially permitted a true finding on the section 803(g) allegation based on self-corroboration with uncorroborated, uncharged acts of sexual misconduct." We reject these contentions.

A. Background

When the information was filed in this matter in early January 2005, section 803(g) permitted the filing of a section 288 charge after the expiration of the six-year statute of limitations if, among other things, the crime involved "substantial sexual conduct" and "[t]here [was] independent evidence that clearly and convincingly corroborate[d] the victim's allegation." (§ 803, subds. (g)(1) & (2)(A)-(C), italics added, see fn. 3, ante; People v. Mabini (2001) 92 Cal.App.4th 654, 657 (Mabini).)

Here, because the statute of limitations had expired with respect to the sexual offenses Om allegedly committed against middle sister and older cousin, each of the counts contained a section 803(g) allegation that the "offense was reported to a California law enforcement agency by a person of any age alleging that he/she, while under 18 years of age, was the victim of a crime described in [section 288, subd. (a)] and that the limitation periods . . . had expired, and that the offense involve[d] substantial sexual conduct and there [was] independent evidence that clearly and convincingly corroborate[d] the victim's allegation, within the meaning of [section 803(g)]." (Italics added.)

The verdict forms asked the jury to make special findings as to whether each of those section 803(g) allegations was true. The court instructed the jury that in order to find a section 803(g) allegation true, it had to make a special finding that "[t]here [was] independent evidence that clearly and convincingly corroborate[d] the victim's allegation."^[6]

During deliberations, the jury sent the court a note that stated: "Please clarify what is required to establish 'independent evidence' within the meaning of [section 803(g)]. In particular, does the independent evidence need to corroborate the specific count/allegation?"

The court discussed the question with the parties' attorneys outside the presence of the jury. The defense argued that the victim named in a given count could not corroborate herself. Ultimately, however, the court agreed with the prosecution's argument based on People v. Yovanov (1999) 69 Cal.App.4th 392 (Yovanov) and Mabini, supra, 92 Cal.App.4th 654, that the corroboration could be provided by the victim named in a specific count if the corroboration related to sexual misconduct by the defendant either before or after the alleged crime against that victim was committed.

In its written response to the jury's note, the court stated in part: "Independent evidence refers to any evidence received in the trial other than the testimony or videotaped statement of the child named in that specific count regarding the series of charged, as opposed to uncharged, acts as to that child." (Italics added.)

B. Analysis

We reject Om's contention that the court's instruction permitting the jury to make true findings on the section 803(g) allegations in the challenged counts based on testimony by middle sister and older cousin about uncharged sexual misconduct by Om must be deemed prejudicial error.

In Yovanov, supra, 69 Cal.App.4th 392, the defendant began sexually molesting his girlfriend's twin daughters Kristy and Kathy in 1986 when they were 11 years old. (Id. at p. 396.) In 1994, after the victims turned 18, they reported the molestations to the police, and the defendant was charged less than one year later with numerous counts of committing a lewd act (§ 288, subd. (a)) on Kristy when she was a child. (Yovanov, supra, at p. 396.) The defendant appealed his conviction, claiming the prosecution failed to present clear and convincing evidence independently corroborating Kristy's allegations of sexual misconduct as required by section 803(g) to revive the otherwise time-barred prosecution of the alleged sexual abuse offenses. (Yovanov, supra, at pp. 400-401, 402.)

Concluding that evidence of similar uncharged sexual misconduct in sex crimes cases can be used to corroborate a victim's allegation of sexual abuse under section 803(g), the Yovanov court stated that "the uncharged sex acts were very much like the charged acts of molestation, and Kristy was a victim in both categories of misconduct." (Yovanov, supra, 69 Cal.App.4th at p. 404, italics added.)

Although the Yovanov court did not decide whether evidence of a defendant's uncharged sexual misconduct, "standing alone," would satisfy the section 803(g) corroborating independent evidence requirement (Yovanov, supra, 69 Cal.App.4th at p. 404), that question was decided in Mabini, supra, 92 Cal.App.4th 654, in which the Court of Appeal held that evidence showing the defendant committed uncharged similar offenses "may standing alone constitute independent evidence that clearly and convincingly corroborates the victim's allegation[s]" for purposes of section 803(g).^[7] (Mabini, supra, at p. 659.)

Thus, under Yovanov, supra, 69 Cal.App.4th 392, and Mabini, supra, 92 Cal.App.4th 654, evidence of a defendant's similar but uncharged sexual misconduct involving either the child alleged to be the victim in the current prosecution or another child victim may constitute "independent evidence that clearly and convincingly corroborates the victim's allegations" within the meaning of section 803(g). Accordingly, we conclude the court did not err by instructing the jury in this case that for purposes of section 803(g), the term "independent evidence" refers to "any evidence received in the trial other than the testimony or videotaped statement of the child named in that specific count regarding the series of charged, as opposed to uncharged, acts as to that child." (Italics added.) This instruction properly allowed the jury to consider middle sister's and older cousin's own testimony about other, uncharged, acts of sexual molestation that Om committed against them, and also permitted each of these victims to corroborate the other victim's allegations. (Yovanov, supra, 69 Cal.App.4th at p. 404; Mabini, supra, 92 Cal.App.4th at p. 659.)

Here, middle sister testified that Om sexually molested her on numerous occasions that were not charged in this case. For example, she stated that at her grandmother's Om touched her older cousin's breasts and vagina and then he did the same thing to her. Middle sister also stated that after Om moved into her family's home, he would frequently invite her into his bedroom, turn on pornographic movies, and make her masturbate him until he ejaculated; and, on other occasions, Om would have her roll over him on his bed while they were both clothed.

Older cousin also described numerous uncharged occasions when Om would touch her breasts and vagina and digitally penetrate her while showing her pornographic movies.

Even if we were to conclude that self-corroboration is impermissible under section 803(g) and the court erred in giving that instruction, any such error was not prejudicial under any standard of review. Om acknowledges that "the jury had at its disposal other evidence [that] it could have considered as independent for purposes of the statute of limitations allegation. For instance, like [in] Yovanov[, supra, 69 Cal.App.4th 392], the jury could have relied on the fact pornographic material was found in [Om's] room after the molests were reported." Citing Yovanov and Mabini, supra, 92 Cal.App.4th 654, Om also states he "recognizes middle sister's and older cousin's testimony could corroborate each other and youngest sister's and younger cousin's testimony could corroborate middle sister and older cousin."

II. INSTRUCTIONAL ERROR (MODIFIED CALJIC NO. 2.27)

Om also contends the court prejudicially erred in instructing the jury with a modified version of CALJIC No. 2.27 pertaining to the sufficiency of the testimony of one witness. We reject this contention.

A. Background

CALJIC No. 2.27 provides: "You should give the [uncorroborated] testimony of a single witness whatever weight you think it deserves. Testimony concerning any fact by one witness, which you believe, [whose testimony about that fact does not require corroboration] is sufficient for the proof of that fact. You should carefully review all the evidence upon which the proof of that fact depends." (Italics added.)

At the request of the prosecution, the court deleted the foregoing italicized references to corroboration and gave the following modified version of this instruction: "You should give the testimony of a single witness whatever weight you think it deserves. Testimony by one witness[,] which you believe[,] concerning any fact is sufficient for the proof of that fact. [¶] You should carefully review all the evidence upon which the proof of that fact depends."

B. Analysis

Om contends the court erred in instructing the jury with the modified version of CALJIC No. 2.27 from which the references to corroboration had been deleted. He asserts that, "as modified, the instruction improperly suggested that [a] victim's testimony alone was sufficient to corroborate her own allegation of sexual abuse for purposes of section 803(g) and, therefore, it conflicted with the independent evidence requirement in section 803(g)." He maintains that "this instructional error contributed to the verdicts."

In reviewing a challenge to jury instructions, an appellate court must consider the instructions as a whole and assume the jurors were capable of understanding and correlating all the instructions given to them. (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1294.) "It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. [Citations.]" (People v. Burgener (1986) 41 Cal.3d 505, 538, overruled on another ground in People v. Reyes (1998) 19 Cal.4th 743, 753-754.)

Here, as given, the modified version of CALJIC No. 2.27 applied to all of the counts alleged in the information. As to counts 6 through 14, the prosecution was required under section 803(g) to show that independent evidence clearly and convincingly corroborated the victims' (middle sister's and older cousin's) allegations.

The court specifically instructed the jury under section 803(g) that if it found Om guilty of any of the crimes charged in counts 6 through 14, in which middle sister and older cousin were named as the victims, it was required to determine whether the truth of the section 803(g) allegation contained in each such count had been proved. (See fn. 5, ante.) As already discussed, to find that allegation to be true, the jury was required to determine whether "[t]here [was] independent evidence that clearly and convincingly corroborate[d] the victim's allegation."

Because we assume the jurors were capable of understanding and correlating all the instructions given to them (People v. Fitzpatrick, supra, 2 Cal.App.4th at p. 1294), we also assume that, notwithstanding the modified CALJIC No. 2.27 instruction, they understood their obligation under the more specific section 803(g) instruction to determine whether independent evidence clearly and convincingly corroborated the victims' allegations. The jury's note to the court (discussed, ante) asking for clarification about what was required to establish "independent evidence" within the meaning of section 803(g) indicates the jury understood its obligation to determine whether the People had met their burden of presenting independent evidence that clearly and convincingly corroborated the victims' allegations.

Even if we were to assume the court erred in giving the modified version of CALJIC No. 2.27, we would conclude that Om has failed to demonstrate that any such error was prejudicial. The jury acquitted Om of three counts (counts 4, 6 & 15) and convicted him of 13 other counts (counts 1-3, 5, 7- 13, & 16). The jury found true the various allegations in those 13 counts, with the exception of the allegation in count 14 that prosecution of that count was revived under the tolling provisions of section 803(g). The jury found the section 803(g) allegation in count 14 to be not true, but found true the remaining section 803(g) allegations in counts 7-13.

The evidence of Om's guilt was overwhelming, and the victims' allegations were amply corroborated. Middle sister's testimony about the molestations at Belmont Park corroborated older cousin's testimony about those same molestations, and vice versa. In sum, Om has failed to demonstrate prejudicial error.

III. SENTENCING ERROR

Om next contends the matter must be remanded for resentencing because the court was unaware of its discretion to sentence Om to concurrent prison terms for his conviction of counts 1, 2, 3, 5 and 16. The People agree this matter should be remanded for resentencing because the court erred when it stated it had no discretion to consider the imposition of concurrent sentences under section 667.61 (discussed, post).

A. Background

During sentencing, defense counsel argued that under section 667.61, the 15-year-to-life term should be imposed for each victim and not for each count. The court, however, sentenced Om to a 15-year-to-life term for each of counts 1, 2, 3, 5 and 16, and ordered that Om serve the sentences for counts 2, 3, 5 and 16 consecutively to the sentence imposed for count 1. The court stated, "I'm going to find that I'm without discretion as to counts [1, 2, 3, 5 and 16] as far as making─they're mandatory consecutive by statute. I believe I'm required to do so."

B. Section 667.61

With exceptions not pertinent here, section 667.61, subdivision (b) provides: "[A] person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 15 years . . . ." Subdivision (c)(4) of this section provides: "This section shall apply to any of the following offenses: [¶] . . . [¶] (4) A violation of subdivision (b) of Section 288." Subdivision (e)(5) of section 667.61 provides: "(e) The following circumstances shall apply to the offenses specified in subdivision (c): [¶] . . . [¶] (5) The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim."

Subdivision (g) of section 667.61 provides in part: "The term specified in subdivision . . . (b) shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion. If there are multiple victims during a single occasion, the term specified in subdivision . . . (b) shall be imposed on the defendant once for each separate victim. Terms for other offenses committed during a single occasion shall be imposed as authorized under any other law, including Section 667.6, if applicable."

C. Analysis

In People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1261, a case that is on point, the Court of Appeal recently explained that "in 1994 . . . the Legislature enacted section 667.61─otherwise known as the one strike law. Section 667.61 provides for indeterminate terms of either 15 years to life or 25 years to life for [section 288, subdivision (a)] and certain other sex offense[s] if certain circumstances apply, regardless of whether the defendant has prior convictions. [Citations.]" In Rodriguez, a jury convicted the defendant of four counts of lewd and lascivious conduct upon his two young daughters in violation of section 288, subdivision (a), and found true an allegation that he committed the offenses against more than one victim. (Rodriguez, supra, 130 Cal.App.4th at p. 1259.) Believing that it had no discretion to order concurrent sentences, the trial court imposed consecutive 15-year-to-life sentences on all four counts. (Id. at pp. 1260-1261.) The Court of Appeal affirmed the judgment of conviction, but vacated the sentence and remanded the matter for resentencing. (Id. at p. 1263.) The Rodriguez court explained that "although the statutory language of section 667.61, subdivision (b), mandates the imposition of 15 years to life for each count involving separate occasions and separate victims, section 667.61 does not mandate that those terms must be served consecutively. [Citations.]" (Rodriguez, supra, 130 Cal.App.4th at p. 1262.)

Here, like the sentencing court in Rodriguez, the court mistakenly believed it lacked legal discretion to order Om to serve the terms imposed for counts 2, 3, 5 and 16 concurrently to the term imposed for count 1. Accordingly, the matter must be remanded for resentencing. (Rodriguez, supra, 130 Cal.App.4th at p. 1263.)

IV. BLAKELY ERROR

Last, citing Apprendi v. New Jersey (2000) 530 U.S. 466, Blakely v. Washington (2004) 542 U.S. 296, and United States v. Booker (2005) 543 U.S. 220, Om contends he was denied his federal Sixth Amendment constitutional right to a jury trial, and the court acted in excess of its jurisdiction, when the court imposed consecutive prison terms based on facts beyond those found true by the jury. However, as Om acknowledges, the California Supreme Court rejected a similar contention in People v. Black (2005) 35 Cal.4th 1238, 1244, concluding that "the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant's Sixth Amendment right to a jury trial." (Italics added.) The Black majority explained that "in operation and effect, the provisions of the California determinate sentence law simply authorize a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge's selection of an appropriate sentence within a statutorily prescribed sentencing range. Therefore, the upper term is the 'statutory maximum' and a trial court's imposition of an upper term sentence does not violate a defendant's right to a jury trial under the principles set forth in Apprendi, Blakely, and Booker." (Black, supra, 35 Cal.4th at p. 1254.) This court is bound to follow Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,455.) Accordingly, we reject Om's contention.

DISPOSITION

The judgment of conviction is affirmed, the sentence is vacated, and the matter is remanded for resentencing on counts 2, 3, 5 and 16.

NARES, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.

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^[1] The original criminal complaint was filed in this matter on January 3, 2000, and the original information was filed on February 24, 2004.

^[2] All further statutory references are to the Penal Code.

^[3] At the time the jury trial ended in this matter on January 28, 2005, section 803(g) provided in full: "(g)(1) Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section 261, 286, 288, 288a, 288.5, 289, or 289.5. [¶] (2) This subdivision applies only if all of the following occur: [¶] (A) The limitation period specified in Section 800, 801, or 801.1, whichever is later, has expired. [¶] (B) The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual. [¶] (C) There is independent evidence that corroborates the victim's allegation. If the victim was 21 years of age or older at the time of the report, the independent evidence shall clearly and convincingly corroborate the victim's allegation. [¶] (3) No evidence may be used to corroborate the victim's allegation that otherwise would be inadmissible during trial. Independent evidence does not include the opinions of mental health professionals." (Italics added.)

Section 803 was repealed effective February 28, 2005. (Stats. 2005, ch. 479, § 3; see Historical and Statutory Notes, 50 West's Ann. Pen. Code (2006 supp.) foll. § 803, p. 51.) As reenacted on that date and subsequently amended, section 803 now provides in subdivision (f): "(f)(1) Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section 261, 286, 288, 288a, 288.5, or 289, or Section 289.5, as enacted by Chapter 293 of the Statutes of 1991 relating to penetration by an unknown object. [¶] (2) This subdivision applies only if all of the following occur: [¶] (A) The limitation period specified in Section 800, 801, or 801.1, whichever is later, has expired. [¶] (B) The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual. [¶] (C) There is independent evidence that corroborates the victim's allegation. If the victim was 21 years of age or older at the time of the report, the independent evidence shall clearly and convincingly corroborate the victim's allegation. [¶] (3) No evidence may be used to corroborate the victim's allegation that otherwise would be inadmissible during trial. Independent evidence does not include the opinions of mental health professionals." (Italics added, fn. omitted.)

^[4] We identify K.T. by his initials to protect the identity of his daughters. We mean no disrespect.

^[5] The information shows that counts 6 through 9 involved middle sister, and counts 10-14 involved older cousin. The jury acquitted Om of count 6, and count 14 was subsequently dismissed.

^[6] The court instructed the jury as follows: "It is alleged that the crimes charged in counts 6 through 14 were reported to a California law enforcement agency by a person of any age alleging that she, while under the age of 18 years of age, was the victim of a crime descri[b]ed in [section 288, subdivision (a)], and that the limitations period specified in [section 800] had expired, and that the offense involves substantial sexual conduct, and there is independent evidence that clearly and convincingly corroborates the victim's allegation, within the meaning of [section 803(g)]. [¶] The limitation of time under [section 800] is six years from the commission of the offense. [¶] In order to find this allegation true, each of the following must be proved: [¶] 1. The crime was reported to a California law enforcement agency by a person of any age; [¶] 2. The report involved a violation of [section 288, subdivision (a)] against the victim when she was under 18 years of age; [¶] the offense involved substantial sexual conduct, except for masturbation that is not mutual; [¶] 4. There is independent evidence that clearly and convincingly corroborates the victim's allegation; and [¶] 5. A criminal complaint was filed in court within one year of the crime being reported. [¶] If you find [Om] guilty of any of the crimes charged in counts 6 through 14, you must determine whether or not the truth of this allegation has been proved. [¶] The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true. [¶] Include a special finding on that question, using a form that will be supplied to you." (Italics added.)

^[7] In Mabini, the specific issue presented was "whether evidence of [the defendant's] sexual misconduct against an uncharged victim, standing alone, constitutes sufficient corroboration" under section 803(g). (Mabini, supra, 92 Cal.App.4th at p. 659.)