People v. Calla CA2/6, B301783

Background

Defendant Jesus Calla was convicted by jury of two counts of committing a lewd act on a child under 14 (Pen. Code §288(a))—victims An.J. (count 8) and S.J. (count 9)—and acquitted or resulted in mistrial on counts concerning the youngest child.
Allegations involved hands-down-pants rubbing of the victims when they were ages ~10 and 11; disclosures were delayed by years.
Trial included CSAAS expert testimony on delayed disclosure; defendant testified and denied sexual contact.
At sentencing the court imposed two consecutive terms of 15 years-to-life under the One Strike scheme (§667.61(b),(e)) and fines/assessments; the court did not impose 25-to-life on count 8 under §667.61(j).
Defendant appealed, arguing prosecutorial misconduct in closing, sentencing error (consecutive vs concurrent and failure to apply §667.61(j)), incorrect custody credits, and imposition of fines/assessments without an ability-to-pay hearing.
The Court of Appeal affirmed guilt findings, rejected the prosecutorial-misconduct claim, found the sentence unauthorized for count 8 (§667.61(j) applies) and remanded for resentencing (including reconsideration of concurrency, credits, and ability-to-pay issues).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prosecutorial misconduct during closing (misstated evidence/law; burden shift)	Prosecutor’s remarks were fair argument about credibility, grounded in trial testimony and consistent with CALCRIM instructions.	Prosecutor misstated evidence and law, shifted burden of proof, and improperly argued about lack of motive.	No misconduct: remarks were supported by the record, did not shift burden, and were not reasonably likely to mislead jury.
Applicability of §667.61(j) (mandatory 25-to-life) and adequacy of pleading notice	The information’s reference to §667.61(b) plus allegations (multiple victims under 14, (e) circumstance) gave adequate notice that §667.61(j) could apply.	Pleading only §667.61(b) did not notify defendant of potential §667.61(j) penalty; imposing (j) would violate due process.	Notice adequate; §667.61(j) applies to count 8 and the trial court’s failure to impose the 25-to-life term produced an unauthorized sentence.
Consecutive versus concurrent sentencing discretion	Respondent noted sentence may be corrected, but recognized court had discretion to order concurrent sentences; no mandatory consecutive requirement for §288(a) offenses here.	Trial court abused discretion by imposing consecutive 15-to-life terms rather than concurrent terms.	Remand for resentencing so trial court can exercise informed discretion (concurrency vs consecutivity) in light of correction on count 8.
Custody credits and fines/assessments (ability-to-pay)	N/A in substance; respondent concedes remand appropriate to address these calculations.	Trial court miscalculated pre-sentence custody credits and imposed fines/assessments without an ability-to-pay hearing.	Remand for resentencing to correct credits and to determine ability to pay before imposing fines/assessments per controlling authority.

Key Cases Cited

People v. Caro, 7 Cal.5th 463 (prosecutorial misconduct standard)
People v. Centeno, 60 Cal.4th 659 (whether argument likely misleads jury tested in context)
People v. Hill, 17 Cal.4th 800 (prosecutor may not reference facts not in evidence)
People v. Young, 34 Cal.4th 1149 (credibility argument based on evidence permissible)
People v. Valdez, 32 Cal.4th 73 (permissible inferences from evidence in argument)
People v. Jimenez, 35 Cal.App.5th 373 (holding that failure to plead §667.61(j) precluded sentencing under it)
In re Vaquera, 39 Cal.App.5th 233 (pleading referencing §667.61(b) may give notice of §667.61(j))
People v. Zaldana, 43 Cal.App.5th 527 (same conclusion as Vaquera re pleading notice)
People v. Vizcarra, 236 Cal.App.4th 422 (appellate correction of unauthorized sentences)
People v. Buycks, 5 Cal.5th 857 (remand considerations when sentence change affects discretion)