Filed 9/21/17 P. v. Ramos CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Darryl B. Ferguson and Harry N. Papadakis,* Judges.†

Robert H. Derham, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.

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An information filed on October 26, 2015, charged defendant Richard Ramos with one count of engaging in oral copulation or sexual penetration with M.L.,[1] a child 10 years of age or younger (Pen. Code,[2] § 288.7, subd. (b) [count 1]); seven counts of committing a lewd or lascivious act upon M.L., a child under 14 years of age (§ 288, subd. (a) [counts 2-8]); one count of engaging in oral copulation or sexual penetration with S.G., a child 10 years of age or younger (§ 288.7, subd. (b) [count 9]); and three counts of committing a lewd or lascivious act upon S.G., a child under 14 years of age (§ 288, subd. (a) [counts 10-12]). The information further alleged: (1) in connection with counts 2 through 6 and 10 through 12, he had substantial sexual conduct with a victim under 14 years of age (§ 1203.066, subd. (a)(8)); and (2) in connection with counts 2 through 8 and 10 through 12, he committed the underlying offense against more than one victim (§ 667.61, subd. (b)).

The jury found defendant guilty on counts 1, 2, 4, 6, and 9 through 11; found him not guilty on counts 3 and 12; and could not reach a verdict on counts 5, 7, and 8. It found true the allegation of substantial sexual conduct with respect to counts 2, 4, 6, 10, and 11 and the multiple-victim special circumstance with respect to counts 4, 6, 10, and 11. The trial court declared a mistrial as to counts 5, 7, and 8. Defendant was sentenced to eight years on count 2 and six consecutive terms of 15 years to life on counts 1, 4, 6, and 9 through 11.

On appeal, defendant makes several contentions. First, with respect to count 1, he did not violate section 288.7, subdivision (b), because the conduct at issue took place before the statute came into effect. Second, separate punishment on counts 1 and 2 was improper because the convictions on those counts were based on the same incident. Third, separate punishment on counts 9 and 10 was improper because the acts underlying those counts were part of a single, indivisible course of conduct. Finally, separate consecutive life sentences on counts 4 and 6 were improper under the pre-September 20, 2006, version of section 667.61.

For the reasons set forth below, we modify the judgment of conviction on count 1 and stay execution of punishment thereon. In all other respects, the judgment is affirmed.

STATEMENT OF FACTS

I.M.L.

M.L. was born on July 1, 1997. She is defendant’s stepdaughter. M.L. testified that defendant molested her for the first time when she was eight years old. On the day of the incident, her family was hosting a barbecue. At some point, M.L. entered her mother and defendant’s bedroom. Defendant was in the bedroom. He hugged her and then “put [her] on the bed[,] . . . pulled down [her] skirt and . . . underwear[,] and licked” her vagina.

Defendant continued to molest M.L. until she was 12 or 13 years old. At trial, M.L. detailed:

“It happened for years. Every night my mom would go to work, he would sneak into my bedroom and touch me while he lied naked in the bed next to me. [¶] . . . [¶] . . . [My clothes] would be removed by him. [¶] . . . [¶] . . . He would touch my vagina[] . . . and my breasts and he would make me touch his erected penis and that would go on for hours . . . . [¶] . . . [¶]

“. . . There was this one time where he used his penis and he would try really hard to get it inside my vagina and I would kick and . . . scratch him and try to get him away but there was this one time I remember where he managed to. [¶] . . . [¶] . . . It felt painful and scary and I didn’t know what was going on because this never happened before. [¶] . . . [¶]

“. . . I remember . . . we went to the shower and he had his video camera and he recorded it. He . . . gave me, I think it was a [M]onster energy drink and he had a type of beer, and I remember him touching me and licking me and my breasts but I don’t know if it was my vaginal area.”

M.L. estimated that defendant touched her vagina with his hand “more than five times”; touched her breasts with his hand “more than five times”; placed his mouth on her vagina “more than five or [10] times”; placed his mouth on her breasts “more than five times”; attempted to insert his penis into her vagina “a couple times”; and inserted his penis into her vagina “one time.” She recalled that the penile penetration occurred “about the time that it was almost over,” i.e., closer to 12 or 13 years old. M.L. clarified that “two times or five times” meant “two times in two days or five times in five days.”

In an earlier interview with Detective Daniel Ford of the Visalia Police Department, M.L. related that defendant had “forcibly placed his penis into her vagina” “one time” and “attempted to do it many times”; “used his hands to touch her vagina over 50 times”; and “used his mouth to orally copulate both her vagina and breasts more than three times each.” In addition, the penile penetration occurred “somewhere from the middle towards the end of the sexual encounters.”

II.S.G.

S.G. was born on November 27, 2000. She lived with her grandmother, who was in a romantic relationship with defendant.[3] On June 28, 2010, S.G., then nine years old, was in the swimming pool with defendant while her grandmother was inside the house. He swam behind her, drew her closer, and pulled down her trunks. Defendant “rubbed” S.G.’s vagina with his hand “first” and “[t]hen]” “put [his finger] inside.” He also took out his penis and rubbed it against her vagina. S.G. recalled that defendant’s penis “went in once” but “didn’t go in all the way” before he “pulled it out really fast.” After she exited the pool, S.G. told her grandmother that defendant “touched [her]” and “put his fingers inside of [her].” S.G.’s grandmother called 911.

On June 29, 2010, S.G. underwent a pediatric sexual assault examination. In the lower vaginal area, she exhibited a petechiae—a “pinpoint bruise” “caused by the rupture of a . . . capillary”—as well as “generalized redness.” S.G. also complained of pain to the left side of the vagina and while urinating. According to the family nurse practitioner who performed the examination, S.G.’s injury was consistent with “digital penetration or attempted penile penetration.”

DISCUSSION

I.With respect to count 1, defendant did not violate section 288.7, subdivision (b), because the conduct at issue took place before the statute came into effect.

a.Background.

The information charged defendant with engaging in oral copulation or sexual penetration with M.L., a child 10 years of age or younger (§ 288.7, subd. (b) [count 1]). It further alleged that the conduct underlying this count transpired “[o]n or about and between July 1, 2004[,] and June 30, 2008.” In her summation, the prosecutor elected a specific incident:

“Now regarding [M.L.], the Count 1 of oral copulation. She talked about how she was between seven or eight years old . . . . [¶] [D]efendant went into the room with her. She believed they were having some type of family barbecue and she went into her mom’s room and for some reason he went in there after her. She . . . had her skirt on and . . . defendant took off her skirt and her underwear and then he licked [M.L.]’s vagina. [¶] Count 1 applies to that very first incident that [M.L.] described to you. That she described to the police and that she talked about only on that day. That is all Count 1 applies to.”

2. Analysis.

“Our state and federal Constitutions prohibit ex post facto laws. [Citations.] Any law that applies to events occurring before its enactment and which disadvantages the offender either by altering the definition of criminal conduct or increasing the punishment for the crime is prohibited as ex post facto. [Citation.]” (People v. Rojas (2015) 237 Cal.App.4th 1298, 1306 (Rojas).) “ ‘t is the prosecution’s responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant’s punishment.’ [Citation.]” ([i]Ibid.)

Section 288.7 was enacted as part of the Sex Offender Punishment, Control, and Containment Act of 2006 and became effective on September 20, 2006. (Stats. 2006, ch. 337, § 9, p. 2590; see People v. Cornett (2012) 53 Cal.4th 1261, 1267; Rojas, supra, 237 Cal.App.4th at p. 1306.) “The statute created a new offense which imposes an indeterminate life sentence for sexual intercourse, sodomy, oral copulation, or sexual penetration of a child who is 10 years of age or younger. [Citations.] Therefore, any application of section 288.7 to conduct that occurred prior to September 20, 2006, is a violation of the state and federal ex post facto clauses.” (Rojas, supra, at p. 1306.)

Here, in her summation, the prosecutor linked count 1 to the first incident between defendant and M.L., when the victim was eight years old. The record establishes that M.L. was born on July 1, 1997, meaning the incident occurred sometime between July 1, 2005, and July 1, 2006, before section 288.7 became effective. Thus, application of section 288.7 to this conduct violated the state and federal ex post facto clauses.

The Attorney General concedes that “[defendant]’s conviction for count 1 is barred by the ex post facto principles.” Nevertheless, she asserts that “there was sufficient evidence to support [defendant]’s conviction of . . . section 288a, subdivision (b)(1),”[4] which was in effect at the time of the initial incident and the violation of which constitutes a lesser included offense under the elements test.[5] The Attorney General asks us to “modify the judgment on count 1 to a felony conviction for section 288a, subdivision (b)(1).” Defendant agrees.

“f the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed.” (§ 1181, subd. 6; see [i]People v. Adams (1990) 220 Cal.App.3d 680, 688.)

We exercise our statutory authority and modify the judgment of conviction on count 1 in the manner requested by the parties.

II.The Attorney General concedes that separate punishment on counts 1 and 2 was improper.

a.Background.

The information charged defendant with committing lewd or lascivious acts upon M.L., a child under 14 years of age (§ 288, subd. (a) [counts 2-8]). With respect to count 2, it alleged that an act involving “MOUTH TO VAGINA, FIRST TIME” transpired “[o]n or about and between July 1, 2004[,] and June 30, 2010.”

2. Analysis.

“An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a); see People v. Newman (2015) 238 Cal.App.4th 103, 111-112 [“[Section 654] generally precludes multiple punishments for a single physical act that violates different provisions of law . . . .”].)

The Attorney General concedes that counts 1 and 2 were based on the same initial incident that took place sometime between July 1, 2005, and July 1, 2006. We accept this concession. In view of our disposition on the first issue (see ante, at pp. 5-7 & fn. 5), the sentence on count 2 (eight years) now carries a longer potential term of imprisonment than the sentence on count 1 (maximum one year). Thus, execution of punishment on count 1 will be stayed. (See People v. Martinez (1985) 171 Cal.App.3d 727, 736 [“Where, as here, multiple prison terms are improperly imposed, the proper procedure is for the reviewing court to modify the sentence to stay imposition of the lesser term.”].)

III.Separate punishment on counts 9 and 10 was warranted.

1. Background.

The information charged defendant with engaging in oral copulation or sexual penetration with S.G., a child 10 years of age or younger (§ 288.7, subd. (b) [count 9]) and committing lewd or lascivious acts upon S.G., a child under 14 years of age (§ 288, subd. (a) [counts 10-12]). It further alleged that count 9 involved “DIGITAL PENETRATION” and count 10 involved “HAND TO VAGINA.” In her summation, the prosecutor specified:

“Now relating to [S.G.], we talked about Count 9, when . . . defendant’s finger went inside her vagina, but Count[] 10 . . . relate[s] to . . . defendant’s hand to her vagina . . . . She talked about how he rubbed his hand on her vagina before putting his finger inside . . . .”

At the November 30, 2015, sentencing hearing, defense counsel contended that separate punishment on counts 9 and 10 was unwarranted because the evidence showed that the acts underlying those counts were “all part of th[e] same [transaction]” and “any touching was incidental to the act of penetration.” The trial court rejected the claim.

2. Analysis.

On appeal, defendant reiterates that the court could not impose separate punishment on counts 9 and 10 because (1) “[b]oth counts involved a continuous touching that was not separated by an appreciable break in time” and (2) “[t]he touching that preceded penetration was incidental to the penetration,” i.e., “it was the means by which the penetration was accomplished.” We reject both assertions.

“t is well settled that section 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.] Whether a course of conduct is indivisible depends upon the intent and objective of the actor. [Citation.]” ([i]People v. Perez (1979) 23 Cal.3d 545, 551 (Perez).) Contrary to defendant’s first point, “t is [his] intent and objective, [i]not the temporal proximity of his offenses, which determine whether the transaction is indivisible.” (People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison), italics added; see People v. Scott (1994) 9 Cal.4th 331, 345 (Scott) [“n the vast majority of cases, multiple convictions had been sustained [i]without regard to the sequence or nature of the underlying acts or the cause or length of any break between them.” (italics added)].)

Under the “single intent and objective test” (Perez, supra, 23 Cal.3d at p. 553), “f all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one” ([i]id. at p. 551). “However, the rule is different in sex crime cases. Even where the defendant has but one objective—sexual gratification—section 654 will not apply unless the crimes were either incidental to or the means by which another crime was accomplished.” (People v. Alvarez (2009) 178 Cal.App.4th 999, 1006; see, e.g., People v. Madera (1991) 231 Cal.App.3d 845, 855 [“[S]ection 654 would bar separate punishment for applying lubricant to the area to be copulated.”]; People v. Galvan (1986) 187 Cal.App.3d 1205, 1215 [§ 654 precludes separate punishment for kidnapping where kidnapping was incidental to the commission of rape].) “A defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act.” (Perez, supra, 23 Cal.3d at p. 553.) If the single intent and objective test controlled, “the clever molester could violate his victim in numerous lewd ways, safe in the knowledge that he could not be convicted and punished for every act.” (Scott, supra, 9 Cal.4th at p. 347.) The modified rule in sex crime cases “ensure[s] that [a] defendant is punished ‘commensurate with his culpability.’ ” (Harrison, supra, 48 Cal.3d at p. 335; see Scott, supra, at p. 344, fn. 6 [“[M]ultiple sex acts committed on a single occasion can result in multiple statutory violations. Such offenses are generally ‘divisible’ from one another under section 654, and separate punishment is usually allowed.”].)

Here, defendant insists that his touching of S.G.’s vagina merely facilitated the subsequent act of digital penetration. The record, however, is reasonably susceptible of the interpretation that he committed the touching for his own arousal, not necessarily to accomplish any other form of sexual contact. (See People v. Alvarez, supra, 178 Cal.App.4th at p. 1007.) Defendant approached S.G. in the swimming pool when S.G.’s grandmother was inside the house. With no onlookers around, he went behind S.G.; drew her closer; pulled down her trunks; and, in the following order, touched her vagina with his hand, inserted his fingers into her vagina, touched her vagina with his penis, and inserted his penis into her vagina. “Each lewd act was separate and distinct, and none of the acts were necessary to accomplish the others.” (Ibid.) Furthermore, defendant’s argument suggests that a perpetrator who has committed a sex crime against a victim may commit another sex crime “ ‘with impunity’ ” “so long as he does not direct attention to another place on the victim’s body, or significantly delay in between each offense.” (Harrison, supra, 48 Cal.3d at p. 337.) We reject such a proposition. Separate punishment on counts 9 and 10 was warranted.

IV.The trial court properly exercised its discretion when it imposed separate consecutive life sentences on counts 4 and 6.

a.Background.

The information charged defendant with committing lewd or lascivious acts upon M.L., a child under 14 years of age (§ 288, subd. (a) [counts 2-8]). It further alleged: (1) with respect to count 4, an act involving “HAND TO VAGINA, FIRST TIME” transpired “[o]n or about and between July 1, 2004[,] and June 30, 2010”; (2) with respect to count 6, an act involving “PENIS TO VAGINA” transpired “[o]n or about and between July 1, 2004[,] and June 30, 2008”; and (3) with respect to counts 4 and 6, inter alia, defendant committed lewd or lascivious acts upon multiple victims.

In her summation, the prosecutor detailed:

“Counts 4 and 5 relate to . . . defendant’s hand on [M.L.]’s vagina. I’m asking you to find that since she told you it happened at least five times, that he did it the first time and he did it a last time. [¶] She told you how he would move his hands all over her body and touch her vagina before putting his fingers inside. You don’t have to find any penetration in these counts so long as you find that his hand was on her vagina. And Detective Ford talked about his interview with [M.L.] and she said that it was over 30 times that he did it.

“Count 6 is when . . . defendant’s penis touched [M.L.]’s vagina. She told you how there were numerous times where . . . defendant would try to put his penis in her vagina. She would kick him to get him out of the way and he wasn’t able to do it[,] but that one time he was able to get his penis inside of her vagina[:] it was forceful. It caused her pain and it was that one time and she said . . . that was the middle to the end of the timeframe she gave you. She couldn’t tell whether she was 11, 12[,] or 13 but she believes that it was towards the end. [¶] . . . [¶]

“Now on your verdict forms, Counts 2 through 8 and Counts 10 through 12 will have a special allegation. It’s . . . [s]ection 667.61. . . . t will give you the opportunity to find true or not true the special allegation of multiple victims.

The jury found defendant guilty on counts 4, 6, 10, and 11, inter alia, and found true the multiple-victim special circumstance with respect to these counts. ([i]Ante, at p. 2.)

At the November 30, 2015, sentencing hearing, the trial court pronounced:

“[T]he court does find the victims were particularly vulnerable considering . . . one was seven years of age and one was nine years of age. [¶] The manner in which the crimes were carried out do indicate planning and . . . some sophistication in setting the children up at appropriate times when the assaults took place. [¶] The relationship with [M.L.]’s mother and S[.]G[.]’s guardian. . . . [D]efendant obviously took advantage of that position of trust and confidence to commit the offenses. [¶] He is obviously a danger to society from the verdicts of the jury. [¶] As the court has stated just a moment ago, the acts appear to be . . . predominantly independent of each other. They involved separate acts. Committed at different times and places.”

The court imposed consecutive terms of 15 years to life on counts 4, 6, 10, and 11, respectively. (Ante, at p. 2.)

2. Analysis.

Section 667.61, known as the “One Strike Law” (People v. Riskin (2006) 143 Cal.App.4th 234, 237, 245), mandates an indeterminate sentence where a defendant is convicted of certain forcible sex offenses committed under specific aggravating circumstances.

Prior to September 20, 2006, section 667.61 provided in pertinent part:

“(b) . . . [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 . . . .

“(c) This section shall apply to any of the following offenses: [¶] . . . [¶]

“(7) A violation of subdivision (a) of [s]ection 288 . . . . [¶] . . . [¶]

“(e) The following circumstances shall apply to 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. [¶] . . . [¶]

“(g) 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. . . .”

In 2001, our Supreme Court held that “for the purposes of . . . section 667.61, subdivision (g), sex offenses occurred on a ‘single occasion’ if they were committed in close temporal and spatial proximity.” (People v. Jones (2001) 25 Cal.4th 98, 107; see ibid. [“In this matter, for example, the rule we adopt should result in a single life sentence, rather than three consecutive life sentences, for a sequence of sexual assaults by defendant against one victim that occurred during an uninterrupted time frame and in a single location.”]; see also People v. Fuller (2006) 135 Cal.App.4th 1336, 1343 [three rapes occurred on a single occasion where the crimes were all committed within an hour inside the victim’s apartment].) Hence, “the statutory language of [former] section 667.61 . . . mandates the imposition of 15 years to life for each count involving separate occasions . . . .” (People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262.) This language, however, “does not mandate that those terms must be served consecutively” (ibid.) and, “[a]bsent an express statutory provision to the contrary, section 669^[[6]^] provides that a trial court shall impose either concurrent or consecutive terms for multiple convictions” (ibid.).

On September 20, 2006, as part of the Sex Offender Punishment, Control, and Containment Act of 2006, the Legislature amended section 667.61. In particular, it renumbered former subdivision (c)(7) to subdivision (c)(8), eliminated former subdivision (g), and added a new subdivision (i), which read:

“For 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, as defined in subdivision (d) of [s]ection 667.6.^[[7]^]” (Stats. 2006, ch. 337, § 33, p. 2165.)[8]

“[N]othing in subdivision (i) [of section 667.61] purports to proscribe the imposition of consecutive one strike sentences for those whose predicate offense was under section 288, subdivision (a). To the contrary, it merely provides a limitation on the mandatory imposition of such terms, which by implication leaves the decision to impose consecutive or concurrent terms to the sentencing court’s discretion under section 669.” (People v. Valdez (2011) 193 Cal.App.4th 1515, 1524.)

In his brief, defendant points out that the trial court did not specify which version of section 667.61 it had applied at the sentencing hearing. We agree with, and the Attorney General concedes, this assertion. Defendant also emphasizes that the evidence did not “pinpoint” exactly when the acts underlying counts 4 and 6 happened. We agree that neither act was associated with a particular date. Nevertheless, the evidence sufficiently established that they occurred on separate occasions. Defendant sexually abused M.L. for the first time sometime between July 1, 2005, and July 1, 2006, by engaging in an act of oral copulation. Following this incident, he continued to molest her “[e]very night” for the next four or five years by, inter alia, touching her vagina with his hand. With respect to count 4, which concerned “HAND TO VAGINA, FIRST TIME” (italics added), a reasonable inference could be made that the underlying act took place near the beginning of the four- to five-year molestation period. With respect to count 6, which concerned “PENIS TO VAGINA,” the prosecutor referred to “th[e] one time [defendant] was able to get his penis inside of [M.L.’s] vagina” in her summation. M.L.’s remarks indicated that this penetration was a discrete event that transpired sometime between the middle and the end of the four- to five-year molestation period.

Because the acts underlying counts 4 and 6 occurred on separate occasions, the court’s failure to specify which version of section 667.61 it had applied at the sentencing hearing was ultimately harmless. Under the pre-September 20, 2006, version of the One Strike Law, which defendant favors, where multiple offenses against the victim are committed on separate occasions, (1) former subdivision (g)’s restriction does not apply; and (2) the court has the discretion to impose either concurrent or consecutive life terms. (See ante, at pp. 12-14.) Under the post-September 20, 2006, version, while subdivision (i) does not explicitly cover violations of section 288, subdivision (a), by implication, the court still retains discretion to impose either concurrent or consecutive life terms. (See ante, at pp. 14-15.) At the sentencing hearing, the court demonstrated that it was exercising its discretion when it referred to several aggravating factors, including (1) the victims’ age and vulnerability; (2) defendant taking advantage of his position as M.L.’s stepfather and S.G.’s grandmother’s boyfriend; and (3) defendant waiting until certain adults –i.e., M.L.’s mother and S.G.’s grandmother—left the immediate vicinity before carrying out the crimes. (Cf. People v. Valdez, supra, 193 Cal.App.4th at p. 1524.) The consecutive life sentences on counts 4 and 6 are upheld.

DISPOSITION

With respect to count 1, the judgment of conviction under Penal Code section 288.7, subdivision (b), is modified to a conviction under Penal Code section 288a, subdivision (b)(1), and execution of punishment is stayed. The trial court shall prepare an amended abstract of judgment and transmit certified copies thereof to the appropriate authorities. In all other respects, the judgment is affirmed.

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DETJEN, J.

WE CONCUR:

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POOCHIGIAN, Acting P.J.

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MEEHAN, J.