80 Cal.App.5th 962
Cal. Ct. App.2022Background
- Defendant Nathan Wandrey was charged after a preliminary hearing (original complaint contained continuous sexual abuse and one lewd-act count); information later alleged 230 counts (assault with intent to commit a sex offense (§220(a)(2)) and lewd acts (§288)) grouped into year-long periods based on victim’s age; jury convicted on 158 counts and deadlocked on others.
- Victim (Jane Doe) gave generic, repetitive-timeframe testimony describing frequent breast and vaginal touching from roughly ages 12–14, with estimates and minimum counts per year; a recorded pretext call to Wandrey and expert child-abuse testimony were admitted.
- Defense challenges included demurrer / §995 dismissal (claiming lack of notice and variance), insufficiency of generic testimony, unanimity instruction, in‑court mask requirement (COVID), quashing of subpoenaed therapy records (no in camera review), and Evidence Code §1108 instruction concerning uncharged Hawaii acts.
- At sentencing the court imposed consecutive full aggravated terms under Penal Code §667.6, producing an aggregate term of 756 years.
- Appellate court affirmed convictions and most rulings but remanded for resentencing because post‑sentencing amendments (SB 567) changed the law on imposition of upper terms (now middle term presumptive unless aggravating facts are stipulated or found by a jury).
Issues
| Issue | People’s Argument | Wandrey’s Argument | Held |
|---|---|---|---|
| Demurrer / multiplicity / notice (information charging many identical counts after commitment on continuous-abuse) | Information and preliminary hearing evidence gave constitutionally adequate notice; year-long groupings track victim’s testimony and support counts. | Mass charging (272 → 230 counts) surprised defendant and prevented meaningful defense of individual acts; jurors could not identify specific acts. | Overruled demurrer; information lawful. Generic testimony at prelim hearing and Jones principles supplied notice and particulars. |
| Sufficiency of generic testimony / substantial evidence to support many undifferentiated counts | Victim’s generic testimony met Jones standards (act type, number minima, general timeframes); jury may convict on undifferentiated repeated acts. | Testimony was too approximate/speculative to support 158 convictions across year blocks. | Convictions supported: victim gave sufficient specificity/number/timeframe for counts convicted; jury could properly discern counts. |
| Unanimity instruction (CALCRIM 3501 using year-group descriptions) | Instruction properly accommodated generic testimony per Jones/CALCRIM 3501; allowed either unanimous agreement on specific act(s) or unanimous finding defendant committed all acts in period. | Grouping identically charged counts by year prevented juror unanimity; deadlock on some counts shows lack of unanimity. | Instruction proper; deadlock was explained by differences in counts (some alleged substantial sexual conduct) and did not show lack of unanimity for convictions. |
| Face‑covering masks for witnesses (Confrontation Clause) | Masks were necessary for public health during COVID surge; plexiglass and other measures insufficient; jurors could still assess demeanor. | Masking (opaque) of witnesses, including victim, impaired confrontation and ability to evaluate demeanor; less restrictive alternatives were available. | No violation: balancing test under Craig/Davis supports court’s case‑by‑case public‑health accommodation; jury could assess reliability despite masks. |
| Subpoena of victim’s psychotherapy records / in camera review | Prosecutor: privilege and no showing of need; records not automatically subject to disclosure; trial court discretion to quash without review. | Defense sought in camera review under Reber/Hammon to seek impeachment or statements inconsistent with trial testimony; argued Davis confrontation interest. | No abuse of discretion: defense failed to show plausible, specific need; Hammon/precedent allow court to refuse pretrial/in‑trial disclosure absent sufficient justification. |
| Evidence Code §1108: admission and instruction on uncharged Hawaii acts | Uncharged Hawaii acts were admissible propensity evidence and instruction (CALCRIM 1191A) permissibly described the comparable California offense; any error harmless because conduct likely criminal in Hawaii and evidence cumulative. | Instruction improperly applied California statutory definition to out‑of‑state conduct, risking mandatory presumption and lowering burden of proof; unfamiliarity with Hawaii law prejudiced defendant. | Forfeited by lack of timely objection; in any event no prejudice shown — conduct would be criminal in Hawaii and instruction permissive, not mandatory. |
| Sentencing under §667.6 (consecutive full terms) & jury right to decide "separate occasions" | §667.6 applies to assault with intent (§220); sentencing court may determine consecutive sentencing without jury because consecutive sentencing historically a judicial function (Ice). | §667.6 consecutive enhancement increased mandatory minimums so Alleyne requires jury finding on "separate occasions." | Alleyne does not require jury finding for sentencing-court decision to impose consecutive terms; Ice and California precedent allow judicial fact‑finding on consecutive sentencing. |
| Upper‑term imposition after SB 567 (post‑sentencing amendment) | People argued remand unnecessary or error harmless. | SB 567 made middle term presumptive; trial court imposed multiple upper terms based on aggravating factors not found by jury—so resentencing required. | Remand required for resentencing under amended §1170(b) because aggravating facts supporting upper terms were not jury‑found or stipulated; harmless‑error review inadequate to fully implement SB 567. |
Key Cases Cited
- People v. Jones, 51 Cal.3d 294 (Cal. 1990) (established that "generic" testimony can support multiple undifferentiated molestation counts if victim specifies act type, number minima, and general timeframe)
- Hammon, 15 Cal.4th 1117 (Cal. 1997) (limits pretrial discovery of third‑party psychotherapy records; trial courts need not conduct automatic in camera review absent sufficient showing)
- Reber, 177 Cal.App.3d 523 (Cal. Ct. App. 1986) (earlier case requiring in camera review of psych records; later distinguished/disapproved in Hammon)
- People v. Pitts, 223 Cal.App.3d 606 (Cal. Ct. App. 1990) (reversed convictions where particulars shown at preliminary hearing did not support counts later prosecuted)
- Davis v. Alaska, 415 U.S. 308 (U.S. 1974) (Confrontation Clause prohibits excluding impeachment evidence bearing on witness bias)
- Maryland v. Craig, 497 U.S. 836 (U.S. 1990) (face‑to‑face confrontation may be limited when necessary to further an important public policy and reliability is otherwise assured)
- Oregon v. Ice, 555 U.S. 160 (U.S. 2009) (Apprendi line does not extend to judicial decisions about consecutive vs. concurrent sentences; historical sentencing functions reserved to courts)
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (any fact that increases penalty beyond statutory maximum must be found by jury)
- Alleyne v. United States, 570 U.S. 99 (U.S. 2013) (facts increasing mandatory minimum must be submitted to jury)
- People v. Sandoval, 41 Cal.4th 825 (Cal. 2007) (harmless‑error approach for Blakely/Cunningham jury‑trial sentencing errors; need to assess whether jury would have found aggravators beyond a reasonable doubt)
- People v. Matute, 103 Cal.App.4th 1437 (Cal. Ct. App. 2002) (upholds convictions based on repetitive, generic molestation testimony when Jones criteria satisfied)