38 Cal. App. 5th 907
Cal. Ct. App. 5th2019Background
- Defendant Sandra Sanchez, age 33 at the time, engaged in repeated romantic/sexual contact with a relative, Y, who was 13 at first and turned 14 during the events; acts included French kisses, breast cupping, and a kissed hickey.
- The People charged Sanchez with two counts of lewd and lascivious acts (Pen. Code § 288) — one under subdivision (a) (victim under 14) and one under subdivision (c)(1) (victim 14 or older) — and one misdemeanor child molestation count (§ 647.6).
- A jury convicted Sanchez on all counts. The court imposed an eight-year upper-term prison sentence (for the under-14 § 288 count), a concurrent three-year term on the other § 288 count, but stayed execution and placed Sanchez on five years’ formal probation; a concurrent 364-day county jail term was imposed on the misdemeanor count.
- As conditions of probation the court required Sanchez to keep probation advised of her residence and to seek/maintain training, schooling, or employment (approval language in the clerk’s minute order was struck on remand). The court imposed a $300 restitution fine and imposed but stayed $300 probation-revocation and $300 parole-revocation restitution fines.
- On appeal Sanchez raised multiple claims; two principal legal issues were (1) whether § 288 contains a separate "intent to sexually exploit" element distinct from the statutory intent-to-arouse/gratify element, and (2) whether a court must impose (and may stay) both probation- and parole-revocation restitution fines when it imposes but suspends a prison sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 288 contains a separate "intent to sexually exploit" element beyond intent to arouse, appeal to, or gratify sexual desires | Prosecution: § 288 requires proof the defendant acted with intent to arouse, appeal to, or gratify sexual desires; no separate "exploit" intent element is required | Sanchez: Prosecutor misstated law in rebuttal; there is a separate "intent to sexually exploit" (a nefarious motive) element | Held: § 288 has a single intent element — intent to arouse, appeal to, or gratify sexual desires; no separate "intent to exploit" element; prosecutor’s remarks were not misconduct and counsel’s failure to object was not ineffective |
| Validity of probation condition requiring defendant to keep Probation Office advised of residence / minute order language approving residence | People: Oral pronouncement controls; the court actually required advising probation of residence, which is permissible | Sanchez: Minute order language "as approved by probation officer" unlawfully permits probation to dictate residence | Held: Minor order error — oral statement controlled; strike the "approved by" language from the minute order on remand |
| Validity of probation condition requiring defendant to seek and maintain training, schooling, or employment | People: § 1203.1 authorizes requiring work/education as probation conditions; willfulness requirement implied for violations | Sanchez: Condition overbroad because compliance may be impossible due to factors beyond her control | Held: Condition valid; courts imply a willfulness standard and compliance impossibility must be shown as matter of law to invalidate the condition |
| Whether trial court must impose (and may stay) both probation-revocation and parole-revocation restitution fines when it imposes but stays a prison sentence | People: Section 1202.45 requires assessment of parole-revocation fine when sentence includes parole; a pronounced-but-stayed prison sentence includes parole, so both fines must be imposed and may be stayed | Sanchez: The parole-revocation fine should be deferred until the suspended prison/parole sentence is actually executed; imposing it now is improper | Held: Court must impose (and may stay) both the probation-revocation and parole-revocation restitution fines when it pronounces a prison sentence (even if execution is suspended) |
Key Cases Cited
- People v. Martinez, 11 Cal.4th 434 (Cal. 1995) (describing the "gist" of § 288 as intent to sexually exploit children)
- In re Jerry M., 59 Cal.App.4th 289 (Cal. Ct. App. 1997) (applied § 288 intent requirement to a prepubescent defendant; lack of puberty undermined intent to arouse)
- People v. Scott, 58 Cal.4th 1415 (Cal. 2014) (a defendant is sentenced when judgment is pronounced even if execution is suspended)
- People v. Smith, 24 Cal.4th 849 (Cal. 2001) (section 1202.45 requires parole-revocation fine when sentence includes parole)
- People v. Hunt, 213 Cal.App.4th 13 (Cal. Ct. App. 2013) (held trial court should impose only probation-revocation fine; court declined to follow)
- People v. Preston, 239 Cal.App.4th 415 (Cal. Ct. App. 2015) (held both revocation restitution fines should be imposed and may be stayed)
- People v. Cortez, 63 Cal.4th 101 (Cal. 2016) (prosecutorial misconduct includes misstating law; arguments judged in context of instructions)
- People v. Farell, 28 Cal.4th 381 (Cal. 2002) (oral pronouncement controls over clerk’s minute order)