Filed 9/11/17 P. v. Rowton CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

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In 1984, defendant James Scott Rowton, Sr., was convicted of molesting his daughters and sent to state prison. After he got out of prison, he fathered another daughter, J.R., and later molested her too. Convicted of eight sexual offenses against J.R. and sentenced to an aggregate term of 350 years to life in state prison, defendant appeals.

We conclude that four of the eight convictions must be reversed because the prosecution did not prove the crimes were committed within the time period and at the pertinent age of the victim alleged in the information. We also conclude that some of the findings as to defendant’s prior convictions were not supported by the evidence. We therefore affirm in part, reverse in part, vacate the sentence, and remand for resentencing.

BACKGROUND

It is unnecessary to give here a detailed account of defendant’s crimes or the procedure leading to his convictions and sentencing because the pertinent details are given in the discussion.

In 1984, defendant was convicted of oral copulation, lewd acts, and unlawful sexual intercourse with his daughters, N.R. and C.R.

On June 30, 1990, defendant’s daughter J.R. was born. When she was 10 years old, defendant took her into the basement of their home and raped her. Over the succeeding years, defendant committed numerous acts of oral copulation, lewd touching, and forcible rape on J.R.

A jury convicted defendant of eight sexual offenses (listed in the discussion), all against J.R.

The trial court sentenced defendant to four consecutive indeterminate terms of 25 years to life under the habitual sexual offender law. (Pen. Code, § 667.71.)[1] Those terms were tripled under the “Three Strikes” law. (§ 1170.12, subd. (c)(2).) Identical terms were imposed for two other counts but were stayed under section 654. Finally, the trial court imposed consecutive indeterminate terms of 25 years to life under the Three Strikes law on the remaining two counts. (§ 1170.12, subd. (c)(2).)

DISCUSSION

I

Amendment of Information

Defendant contends the trial court violated his rights under section 1009 and the due process clause by allowing the prosecution to amend the information after defendant waived his right to a preliminary hearing. We conclude the contention is without merit because the amendment did not materially change the crimes charged.

A. Applicable Law

We recently summarized the law concerning amendments to an information after a preliminary hearing has been waived in People v. Rogers (2016) 245 Cal.App.4th 1353:

“Section 1009 prohibits amending an information to charge an offense not shown by evidence taken at the preliminary hearing. That provision reads in pertinent part: ‘An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination.’ It is well settled that where a defendant waives a preliminary hearing, the prosecution may not amend the information to add new charges. (People v. Peyton (2009) 176 Cal.App.4th 642, 654 (Peyton); People v. Winters (1990) 221 Cal.App.3d 997, 1007 (Winters).) This is so, even if the amendment would not prejudice the defendant or if the defendant had notice of the facts underlying the new charges. (Peyton, at pp. 654, 656.)

“Winters, supra, 221 Cal.App.3d 997 provides guidance here. In Winters, the defendant was charged with possessing methamphetamine for sale and waived a preliminary hearing. (Id. at p. 1002.) During the trial, over the defendant’s objection, the court allowed the prosecution to amend the information to allege a second count, transporting methamphetamine. (Id. at pp. 1001-1002.) On appeal, the appellate court reversed the transportation conviction as violative of section 1009. (Winters, at pp. 1007-1008.) Because the defendant had waived his preliminary hearing, no evidence shown at a preliminary hearing could support the new charge. (Ibid.) The court rejected the People’s argument that the new charge was proper because it was based on evidence defendant knew of when he waived his preliminary hearing. (Id. at p. 1006.) As the court noted, to allow the amendment ‘ “would result, in legal effect, in wiping out all provisions of the [C]onstitution and the Penal Code providing for a preliminary examination, and in clothing the district attorney with unlimited authority to file information against whomsoever in his judgment he [or she] might consider guilty of crime.” ’ (Id. at p. 1007.)

“Similarly, in Peyton, supra, 176 Cal.App.4th 642, the court struck a conviction for a charge added after the defendant waived a preliminary hearing and concluded that counsel’s failure to object to the amendment adding the charge constituted ineffective assistance of counsel. (Id. at p. 653.) Citing section 1009 and Winters, the court explained that when a defendant waives a preliminary hearing, ‘the defendant may not be charged with additional crimes not charged in the pleading to which he waived his right to a preliminary hearing.’ (Peyton, at p. 654.) The court similarly rejected the People’s argument that new charges are proper if the defendant is on notice of their underlying facts when he waives a preliminary hearing. (Id. at p. 655.)” (People v. Rogers, supra, 245 Cal.App.4th at pp. 1360-1361, italics omitted.)

However, while the prosecution may not amend the information to add new charges, an amendment to the information that does not significantly vary from the charges in the complaint does not violate a defendant’s rights under section 1009 and the due process clause. (Peyton, supra, 176 Cal.App.4th at pp. 659-661.) “[T]he pleading on file at the time of the defendant’s waiver must serve as the touchstone of due process notice to the defendant of the time, place, and circumstances of the charged offenses.” (Id. at p. 659.) “ ‘Under the generally accepted rule in criminal law a variance [in pleadings] is not regarded as material unless it is of such a substantive character as to mislead the accused in preparing his defense . . . .’ [Citations.] And ‘[n]o accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits.’ (§ 960.)” (Peyton, supra, at p. 659.)

B. Procedural Background

The district attorney filed a criminal complaint against defendant on June 4, 2014. The complaint alleged eight counts, with additional allegations:

Count 1: forcible rape (§ 261, subd. (a)(2)), between June 30, 2000, and June 29, 2004, “FIRST TIME SEX[UAL] INTERCOURSE”;

Count 2: forcible rape (§ 261, subd. (a)(2)), between June 30, 2000, and June 29, 2004, “LAST TIME SEX[UAL] INTERCOURSE”;

Count 3: forcible lewd act upon child (§ 288, subd. (b)(1)), between June 30, 2000, and June 29, 2004, “FIRST TIME”;

Count 4: forcible lewd act upon child (§ 288, subd. (b)(1)), between June 30, 2000, and June 29, 2004, “LAST TIME”;

Count 5: lewd act upon child (§ 288, subd. (c)(1)), between June 30, 2004, and June 29, 2006, “FIRST TIME”;

Count 6: lewd act upon child (§ 288, subd. (c)(1)), between June 30, 2004, and June 29, 2006, “LAST TIME”;

Count 7: forcible oral copulation of person under 18 (§ 288a, subd. (c)(2)(C)), between June 30, 2004, and June 29, 2006, “FIRST TIME ORAL COPULATION”;

Count 8: forcible oral copulation of person under 18 (§ 288a, subd. (c)(2)(C)), between June 30, 2004, and June 29, 2006, “LAST TIME ORAL COPULATION”;

Special allegation: prior conviction for lewd act on child under 14 (§ 288, subd. (a)), under section 1170.12 (the Three Strikes law);

Special allegation: prior conviction for lewd act on child under 14 (§ 288, subd. (a)), under section 667.71 (the habitual sexual offender law); and

Special allegation: prior conviction for lewd act on child under 14 (§ 288, subd. (a)), under section 667.61 (the “One Strike” law).

Defendant and the People stipulated to waiver of the preliminary hearing on June 17, 2014, and the complaint was deemed an information. The stipulation included the following language: “By signing this waiver, you agree that in exchange for waiving their right to a Preliminary Hearing, the People will be entitled to amend the Information in Superior Court as necessary in the opinion of the prosecuting attorney. These amendments may be made to allege any additional charge(s), correct any offense date, or to otherwise correct any defect in the pleadings. Election by the prosecutor to add charges will entitle you to have the case returned for a Preliminary Hearing.”

On December 2, 2014, court and counsel discussed removing the “FIRST TIME” and “LAST TIME” language from each count of the information. Defendant objected to the amendment and argued that it would entitle defendant to a preliminary hearing, but defense counsel acknowledged that the amendment would not disadvantage him in defending the case. The trial court found that the amendment would not prejudice defendant and granted the prosecution’s motion to amend the information by removing the “FIRST TIME” and “LAST TIME” language from each count of the information.

On December 9, 2014, the district attorney filed a first amended information. It removed the “FIRST TIME” and “LAST TIME” language from the information. The amendment also changed the Penal Code citation alleged in counts 7 and 8 from section 288a, subdivision (c)(2)(C) to the broader subdivision (c)(2) of the same section, which had the effect of removing the allegation that the victim was 14 years of age or older but under 18 years of age. Finally, the amendment added additional prior conviction allegations.

On appeal, defendant claims he objected to all amendments to the information. But the Attorney General claims defendant objected only to the removal of the “FIRST TIME” and “LAST TIME” language. The record is not entirely clear concerning what amendments were objected to. In any event, we need not consider whether defendant forfeited consideration of the contentions on appeal because the contentions have no merit.

C. Analysis

1. “FIRST TIME” and “LAST TIME” Language

Defendant’s argument that the trial court violated his due process rights by allowing removal of the “FIRST TIME” and “LAST TIME” language from each count in the information is as follows:

“With regard to the alteration of the charging language by removing the word ‘first’ from counts 1, 3, 5 and 7; and the word ‘last’ from counts 2, 4, 6, and 8, the prosecution was freed from having to prove the specific first and last acts. Thus, the case was drastically altered by this amendment because it went from charges involving specific acts to only generic acts. As the trial evidence demonstrated, this was significant because J.R. could not describe the ‘last time’ for any of the acts within the charging dates.”

To the contrary, the removal of the “FIRST TIME” and “LAST TIME” language from each count in the information was not a substantive change. It did not change the crime, and it did not change what the prosecution was required to prove in order to convict on each count. The information alleged that each crime occurred “[o]n and between” two dates, more specific and limiting than an “on or about” allegation. With the “first time/last time” language in the information, the prosecution was required to prove more than one instance of each crime within the time period alleged. Without the “first time/last time” language in the information, the prosecution was equally required to prove more than one instance of each crime within the time period alleged.

Defendant’s argument that removal of the language “drastically altered” the information by changing the prosecution from one for specific acts to one for generic acts is unconvincing. Defendant provides no authority for the proposition that the language removal effected that type of change. And we see no logic in the argument. The prosecution was still required to prove two separate acts during the time period alleged.

Because the removal of the “FIRST TIME” and “LAST TIME” language from the information did not materially change the charges, the amendment did not violate defendant’s rights under section 1009 or the due process clause.

2. Change in Statutory Allegation

As to the amendments to counts 7 and 8 changing the subdivision charged from the more specific section 288a, subdivision (c)(2)(C) to the broader subdivision (c)(2) of the same section, we need not consider defendant’s contention that the amendment violated his rights because we conclude in part III of this discussion that there was insufficient evidence to sustain those convictions.

II

Substantial Evidence on Counts 5 and 6

Defendant contends the evidence was insufficient to convict him on counts 5 and 6, both charging a lewd act upon child (§ 288, subd. (c)(1)), during the time J.R. was 14 and 15 years old. We conclude the evidence was insufficient to convict on those counts. J.R. testified that the lewd touchings began when she was 15 or 16 years old, and nothing in the evidence supports a reasonable inference that she was 15 rather than 16.

“When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 27.)

Counts 5 and 6, by reference to section 288, subdivision (c)(1), alleged that defendant committed a lewd act on J.R. when she was 14 or 15 years old.

At trial, the prosecutor, in closing argument, focused the jury’s attention, as support for counts 5 and 6, on “when [J.R.] is 15-years old and she touches the defendant’s penis with her hand.” Since the only element of the crime in question on appeal is how old J.R. was when these touchings began, we need not consider the remaining elements. Again quoting the prosecutor in closing argument (not as evidence but as an indication of the evidence relied on by the prosecution):

“And then again, we’re talking about this age period. The child was 14 or 15-years old at the time of the act. [J.R.] described this beginning when she was 15 or 16 and we went back and started talking about it and talking about when she was 15 years old on Shasta Street. Her date of birth is 6-30-1990. So in the time period alleged, she would have been 14 to 15 years old.”

That is the extent of the prosecutor’s guidance to the jury concerning the victim’s age at the time of the crimes alleged in counts 5 and 6.

With the prosecution’s argument in mind, we turn to the evidence produced at trial.

J.R. testified that there were times when defendant made her take his penis in her hand and move her hand in an up-and-down motion. The prosecutor asked whether this occurred when she was “[a]pproximately 15 to 16 years old.” J.R. answered yes.

J.R. also testified that this occurred around the time period when defendant would also force her to orally copulate him. Previously, J.R. had testified that the oral copulation took place while they lived on Shasta Street in Burney and continued when they moved to Superior Avenue, where J.R. lived when she was, in her words, “around the age of 19.”

Concerning the time period when they lived on Shasta Street, Carol R, who was married to defendant at the time, testified. The family moved to Burney in 2001 and first lived in a house on Dora Way. They lived on Dora Way, according to Carol, “probably three or four years.” When they left the Dora Way residence, they moved to another house in Burney—this one on Shasta Street. Carol did not testify specifically concerning the date they moved in to the Shasta Street residence, but she testified that she moved out of the house, leaving the defendant, in August 2007, after living there for, in her words, “[m]aybe two years.”

From this testimony, it could be inferred that the family moved from Dora Way to Shasta Street in either 2004 (three years after moving into Dora Way) or 2005 (four years after moving into Dora Way and two years before Carol moved out). There was no other evidence concerning when defendant and J.R., having been left by Carol, moved out of the Shasta Street residence. Considering the evidence of where the family lived and J.R.’s birth date of June 30, 1990, the family moved to Shasta Street when she was either 14 or 15 years old, and they were still living on Shasta Street when J.R. turned 17.

We must determine whether the jury could have reasonably inferred from this testimony that counts 5 and 6 occurred before J.R. turned 16. The answer is no. While it was possible that defendant made J.R. touch his penis before she turned 16, the evidence was too vague to make an inference reasonable. J.R. testified that the lewd touchings began when she was 15 or 16, and nothing in the evidence suggested that she was 15 instead of 16. While there is no doubt defendant made J.R. touch his penis many times, the mere possibility that the touchings started when J.R. was 15, rather than when she was 16, is not enough to sustain the verdicts on counts 5 and 6. “[M]ere speculation cannot support a conviction.” (People v. Marshall (1997) 15 Cal.4th 1, 35.)

The Attorney General argues that the sheer frequency of defendant’s crimes against J.R. and the evidence that he committed other crimes on her before she turned 16 made it reasonable for the jury to infer that the lewd touchings began when she was 15 years old. But there is no logic to the argument that defendant must have begun making J.R. touch his penis when she was 15 rather than 16 years old because he violated her numerous times.

The prosecution made no attempt to pin down the beginning of the lewd touchings alleged in counts 5 and 6 beyond J.R.’s testimony that it was when she was 15 or 16 years old. Therefore, the evidence is insufficient to sustain convictions on those counts.

III

Substantial Evidence on Counts 2, 4, 5, 6, 7, and 8

Defendant also contends in his opening brief that the evidence was insufficient to convict him as to counts 2, 4, 5, 6, and 8. In his reply brief, defendant adds the contention that the evidence was insufficient to convict him as to count 7 for the same reasons stated as to count 8. We have already concluded that the evidence was insufficient as to counts 5 and 6; therefore, we limit our analysis to counts 2, 4, 7, and 8. Defendant claims that generic evidence of molestation failed to rise to the level of evidence required by the California Supreme Court to convict, citing People v. Jones (1990) 51 Cal.3d 294 (Jones). We conclude the evidence was sufficient as to counts 2 and 4 but insufficient as to counts 7 and 8.

“In Jones, the six counts at issue each charged one event in a different two-month period. (Jones, supra, 51 Cal.3d at p. 303.) The victim of these counts testified that the abuse occurred once or twice a month during the charged periods. (Jones, at p. 301.) The California Supreme Court held that the victim’s generic testimony constituted substantial evidence supporting these six convictions. ‘n determining the sufficiency of generic testimony, we must focus on factors other than the youth of the victim/witness. Does the victim’s failure to specify precise date, time, place or circumstance render generic testimony insufficient? Clearly not. As many of the cases make clear, the particular details surrounding a child molestation charge are not elements of the offense and are unnecessary to sustain a conviction. [Citations.] [¶] The victim, of course, must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., “twice a month” or “every time we went camping”). Finally, the victim must be able to describe the general time period in which these acts occurred (e.g., “the summer before my fourth grade,” or “during each Sunday morning after he came to live with us”), to assure the acts were committed within the applicable limitation period. Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim’s testimony, but are not essential to sustain a conviction.’ ([i]Jones, at pp. 315-316.)

“The Jones court also separately addressed whether the victim’s generic testimony violated the defendant’s due process rights. (Jones, supra, 51 Cal.3d at p. 316.) First, it held that reliance on generic evidence did not violate a defendant’s due process right to notice. ‘We conclude that, given the availability of the preliminary hearing, demurrer and pretrial discovery procedures, the prosecution of child molestation charges based on generic testimony does not, of itself, result in a denial of a defendant’s due process right to fair notice of the charges against him.’ (Jones, at p. 318.) Second, the court concluded that reliance on generic testimony did not deprive a defendant of his or her due process right to present a defense. (Jones, at pp. 319-320.) Finally, the court held that a defendant’s right to a unanimous verdict was ensured by unanimity instructions. (Jones, at p. 321.) ” (People v. Garcia (2016) 247 Cal.App.4th 1013, 1019-1020, italics omitted.)

A. Counts 2 and 4

Counts 2 and 4 of the information alleged a second act of forcible rape (§ 261, subd. (a)(2)) and a second act of forcible lewd touching of a child under the age of 14 years (§ 288, subd. (b)(1)), respectively. The timeframe alleged as to those counts was June 30, 2000, to June 29, 2004, the period during which J.R. was 10 to 13 years old. The prosecution maintained that the lewd touching count (count 4) was based on the same conduct as the forcible rape count (count 2). And the trial court stayed punishment for count 4 under section 654.

Defendant contends that the evidence was insufficient to support a conviction for a second forcible rape in count 2 (and by extension for a second forcible lewd touching in count 4). He claims J.R.’s generic testimony of multiple incidents of forcible sexual intercourse did not rise to the level of sufficient evidence as stated in Jones. To the contrary, the evidence was sufficient because J.R. testified that defendant raped her again about two weeks after the first rape when she was 10 years old.

J.R. testified that she and the family moved to a house on Dora Way in Burney when she was eight or nine years old. When she was 10 years old, her father took her to the basement. He pulled up her skirt, pulled down her underwear, put her on the workbench, and forcibly had sexual intercourse with her. After the first rape, defendant continued to rape J.R. while they lived in the house on Dora Way.

J.R. testified concerning the second time defendant raped her: “I don’t remember exactly how old I was or anything. I do know it happened again in that house.” J.R. remembered that it happened “a couple times” in defendant’s room and a “couple of times” in J.R.’s room. J.R. could not remember when they moved out of the house on Dora Way, but Carol testified that the family lived in the Dora Way residence “probably three or four years.” If J.R. was eight or nine years old when they moved into the Dora Way residence, she was about 11 to 13 years old when they moved out.

Later, the prosecutor inquired again about the second time defendant raped J.R.:

“Q. Now, do you have any idea or do you recall what the time frame was between the first time your dad had sexual intercourse with you and the next time?

“A. A couple of weeks, maybe.”

Each time defendant raped J.R. when she was 10 to 12 years old, she told him to stop, but he did not. If she was wearing a skirt, he would pull it up and pull down her underwear. If she was wearing jeans, he would take them off her while she cried and asked him to stop. During the rapes, defendant either held J.R. down with his hands or lay on top of her.

Between the time J.R. turned 10 and the time she was 20 or 21 years old, her father had sexual intercourse with her “[m]ore than 50 [times], probably more than a hundred.”

Concerning one incident when defendant approached J.R. from behind while she was putting away clothes, J.R. testified that she could not remember the details of what happened.

This evidence was sufficient under Jones to convict defendant of a second count of forcible rape when J.R. was 10 to 13 years old. J.R. described the kind of act (multiple episodes of forced sexual intercourse) with sufficient specificity. (Jones, supra, 51 Cal.3d at p. 316.) J.R. described the number of acts “with sufficient certainty to support each of the counts alleged in the information.” (Ibid.) A second episode of sexual intercourse occurred about two weeks after the first, which would make J.R. at most 11 years old at the time. Additionally, other episodes of sexual intercourse occurred at the Dora Way residence, which residence they moved away from by the time J.R. was about 13 years old. “[T]he victim [was] able to describe the general time period in which these acts occurred.” (Ibid., italics omitted.) They occurred while the family lived at the Dora Way residence. And the second act occurred about two weeks after the first. As the Jones court noted: “Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim’s testimony, but are not essential to sustain a conviction.” (Ibid.)

Defendant, however, claims that the evidence was insufficient to support the convictions as to counts 2 and 4. He makes three arguments, each of which is without merit:

(1) “J.R.’s testimony that she and [defendant] had sex ‘more than a hundred’ times is insufficient to define the number of acts that occurred.” This is nothing more than a straw man argument. J.R.’s testimony was that defendant raped her multiple times while they lived at the Dora Way residence. That was sufficient without regard to the additional evidence that he raped her more than a hundred times.

(2) “n reading J.R.’s testimony, it is evident her description of the number of times she and [defendant] had intercourse went beyond the time frame specified in counts two and four.” But the evidence established that defendant raped J.R. at least twice while she was 10 to 13 years old.

B. [i]Counts 7 and 8

Counts 7 and 8 of the information each alleged an act of forcible oral copulation. (§ 288a, subd. (c)(2).) The timeframe alleged as to those counts was June 30, 2004, to June 29, 2006, the period during which J.R. was 14 and 15 years old.

Defendant contends that the evidence was insufficient to support a conviction on count 8 because J.R. could not sufficiently describe any act of oral copulation during the time she was 14 and 15 years old. We conclude the proof as to count 8 suffers from the same problem discussed above with respect to counts 5 and 6—there was insufficient evidence to support a finding that defendant committed oral copulation on J.R. before she turned 16. The evidence concerning count 7 suffers from the same deficiency.

The evidence concerning when defendant started forcing J.R. to orally copulate him is essentially the same as the evidence concerning when defendant starting forcing J.R. to touch his penis with her hand. When asked how old she was when defendant first forced her to orally copulate him, she responded: “I’m not really sure. I’d say roughly around 15, 16. I’m not positive.” The oral copulation and lewd touching began “[r]ight around the same time.” Referring to oral copulation, the prosecutor asked, “Did it happen more than once when you were 15 or 16 years old?” J.R. replied, “Yes.” As noted above, this evidence is not sufficient to sustain a conviction based on J.R.’s age being 14 or 15. It is possible that the oral copulation began when J.R. was 15, but there was no evidence leading to a reasonable inference that oral copulation actually began when J.R. was 15 and not yet 16. The prosecution must establish the alleged acts were committed “ ‘within the timeframe pleaded in the information.’ ” (Jones, supra, 51 Cal.3d at p. 317.) Therefore, the evidence was insufficient to sustain the convictions as to counts 7 and 8.[2]

IV

Sufficiency of Sentence Enhancements

The trial court found true five prior convictions that qualified defendant for alternative sentencing under both the habitual sexual offender law (§ 667.71) and the One Strike law (§ 667.61). At sentencing, the trial court chose the habitual sexual offender law to impose a consecutive term of 25 years to life for six counts. (§ 667.71, subd. (b).) Each term was tripled under the Three Strikes law.[3] (§ 1170.12, subd. (c)(2).) The sentences for counts 3 and 4 were stayed. (§ 654.)

The fourth and fifth prior convictions alleged by the information and found true by the trial court as qualifying convictions under the habitual sexual offender law and the One Strike law were both for a violation of section 288a, subdivision (c)—oral copulation, for which defendant was convicted in 1984.

Defendant contends that the evidence was insufficient to sustain the habitual sexual offender law and One Strike law true findings as to the two prior convictions (alleged as the fourth and fifth prior convictions in the amended information) for violation of section 288a, subdivision (c) (hereafter, the section 288a convictions). In other words, he claims the evidence presented concerning those convictions did not qualify them as prior convictions for the purposes of alternative sentencing under the habitual sexual offender law and the One Strike law. The Attorney General agrees, as do we.

A. Habitual Sexual Offender Law

Defendant argues that the section 288a convictions did not qualify him for alternative sentencing under the habitual sexual offender law (§ 667.71) because the section 288a convictions did not necessarily include force, violence, duress, menace, or fear. We conclude that defendant is correct.

As evidence of the section 288a convictions, the prosecution introduced the abstract of judgment that included those convictions as violations of section 288a, subdivision (c). The abstract noted that the crimes (counts 1 and 2 in the abstract) were committed in 1983 and defendant was convicted in 1984.

In 1983, section 288a, subdivision (c), proscribing oral copulation, could be violated in two ways: (1) if the victim was under 14 years of age and more than 10 years younger than the perpetrator or (2) if the act was accomplished by force, violence, duress, menace, or fear.[4] The first alternative did not require force, violence, duress, menace, or fear.

At the time defendant committed the current crimes, the habitual sexual offender law provided that it applied to “[a] violation of subdivision (c) or (d) of Section 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.” (Former § 667.71, subd. (c)(9); Stats. 2000, ch. 287, § 10, p. 2518.) The law at the time therefore required that the oral copulation be accomplished by force, violence, duress, menace, or fear.

The evidence submitted in support of the section 288a conviction allegations was insufficient to determine that those crimes were committed with force, violence, duress, menace, or fear.[5] Therefore, the finding that the section 288a convictions qualified defendant for alternative sentencing under the habitual sexual offender law must be reversed. (See People v. Hiscox (2006) 136 Cal.App.4th 253, 256.)

B. One Strike Law

The evidence supporting the fourth and fifth alleged prior convictions (the same section 288a convictions) was also insufficient to qualify defendant for alternative sentencing under the One Strike law (§ 667.61). That law applies to oral copulation committed in violation of “paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 288a.” (§ 667.61, subd. (c)(7).) Those parts of section 288a include as an element, as relevant here, force, violence, duress, menace, or fear. (§ 288a, subd. (c)(2) & (3).) Therefore, the evidence of the section 288a convictions was also insufficient to qualify defendant for alternative sentencing under the One Strike law because the crimes were not necessarily committed by force, violence, duress, menace, or fear. (See People v. Hiscox, supra, 136 Cal.App.4th at p. 256.)

DISPOSITION

The convictions on counts 5, 6, 7, and 8 are reversed, along with the trial court’s two findings that prior convictions for violations of Penal Code section 288a, subdivision (c) are qualifying convictions for the purpose of applying the habitual sexual offender law and One Strike law. The remaining convictions and true findings are affirmed. The sentence is vacated. And the matter is remanded for resentencing.

NICHOLSON , Acting P. J.

We concur:

DUARTE , J.

RENNER , J.