People v. ValdezPeople v. Valdez
Opinion
A jury found defendant and appellant Juan Manuel Valdez guilty of seven counts of lewd and lascivious acts upon a child in violation of Penal Code section 288, subdivision (a).
In his timely appeal, defendant contends it was impermissible to impose multiple one strike sentences for convictions as to Jessica where the only aggravating circumstance was the multiple-victim factor under the applicable version of section 667.61. According to defendant, the 1998 version of the one strike law permitted the imposition of only one indeterminate term as to each victim. Alternatively, defendant contends imposition of mandatory consecutive sentences was improper under the Estrada rule
STATEMENT OF FACTS
The three victims were sisters. Defendant was the boyfriend of their grandmother. In 2001, defendant lived in the same house with the grandmother and the three sisters on Opp Street in Wilmington.
Crystal turned eight years old in 2001. One night in April, when Crystal’s mother was in the hospital giving birth, defendant followed Crystal to the girls’ bedroom and closed the door behind them. When Crystal lay down on the bed, defendant pulled down her pants and underwear, removed his own pants, and penetrated her vagina with his penis, causing pain to Crystal. She kicked defendant in the face and began to cry. Defendant told her not to say anything about it or he would hit her. When her grandmother entered the room and asked why she was crying, Crystal lied and said she had hurt her finger. She was afraid to tell the truth. The following morning, Crystal saw blood on her underwear. Her vaginal area burned when she urinated.
A second incident occurred a few years later, after defendant had moved out of the home to an apartment in Wilmington. Defendant was visiting them and Crystal was sitting on the couch. When Crystal’s grandmother went to the bathroom, defendant tried to put his hands under Crystal’s shirt in the area of her breasts. She pushed him away and yelled for her grandmother. Defendant told the grandmother that Crystal was “just crazy.” Crystal did not tell her grandmother what defendant had done because she did not think anyone would believe her.
In 2008, when she was 14 or 15 years old, Crystal finally told her mother about defendant’s abuse, after Jessica had disclosed defendant’s conduct to their mother. Her mother called the police, and Crystal told the officer what defendant had done to her.
Jessica—Counts 3 Through 6
Jessica is one year younger than Crystal. In 2001, when defendant was about to leave the house after a visit, he reached into her pajama pants and rubbed the skin of her buttocks.
Within a year of that incident, Jessica was lying down on her bunk bed, while one of her sisters was in the upper bunk. Defendant entered the room, lay down beside Jessica, unzipped his pants, and began “humping” her. She felt his penis against her pajama pants in the area of her vagina. Jessica did not tell anyone about it at the time because she did not know defendant’s conduct was inappropriate.
When the sisters lived on MacDonald Street, defendant would “grab up [her] butt” while he played with her. She was clothed and he rubbed her buttocks over the clothes. It made her uncomfortable because he rubbed her for such a long time.
Jessica’s mother would routinely ask her and her sisters whether anyone had “touched” them, but they would always say “no.” Jessica did not think their mother would believe the truth about defendant. Finally in 2008, she decided to tell the truth. Her mother called the police, and Jessica told the officer what defendant had done to her.
Irene—Counts 7 and 8
Irene is the youngest of the three sisters. She was five years old in 2001. Irene remembered the incident when defendant abused Jessica on the mattress in the MacDonald Street residence. She saw defendant on top of Jessica; he touched Jessica in the area of her vagina with his hand. Afterwards, she and Jessica went to the bathroom, where Jessica showed her the semen-like substance on her underwear. Irene did not recall that defendant touched or abused her at that time.
Count 8 was based on a subsequent incident. When Irene was five or six years old, defendant took her and Jessica to his residence in Wilmington approximately three times. Once, he took Irene to his room, where he touched her vagina with his hand under her clothes. He rubbed her genitals for a long time, causing her to be frightened. On approximately four other occasions, defendant touched her vagina on top of her clothes. When she was seven years old, defendant threatened to hurt her mother if she told anyone about what he had done to her.
Carlos Leiva, a work associate, testified that he had known defendant for nearly 20 years, and defendant had a very good reputation for honesty and nonviolence. Pablo Munoz Alonso had known defendant for eight years and had been his roommate for three or four of those years. Defendant had a good reputation for honesty and was not a violent person.
Defendant testified that he dated the grandmother from 1993 to approximately 2001. He would sometimes take care of Jessica and Irene when they were small children, but he never touched them inappropriately. No one ever complained about any such inappropriate behavior. None of the sisters ever came to his house.
DISCUSSION
Pursuant to California’s one strike law (§ 667.51), the trial court imposed a 15-year-to-life term for each conviction under section 288, subdivision (a). The one strike law provides for enhanced indeterminate terms of either 15 or 25 years to life for those who commit enumerated felony sex offenses in specified circumstances. In the 1998 version of the statute, applicable at the time of the charged offenses, one of the enumerated sex offenses was the commission of lewd and lascivious acts in violation of section 288, subdivision (a). (§ 667.61, former subd. (c)(7).)
It is undisputed that all of defendant’s convictions were for specified predicate sexual offenses under section 667.61, former subdivision (c) and were accompanied with true findings of one of the factual circumstances that trigger application of the 15-year-to-life punishment provision under section 667.61, former subdivision (e). “Section 667.61 requires the trial court to impose a life sentence when the defendant is convicted of an enumerated sexual offense and the People plead and prove one or more of the specified aggravating circumstances.” (People v. DeSimone (1998)
As did the defendant in Stewart, defendant contends the multiple-victim circumstance is different in kind from the other enumerated circumstances because all of the others refer to aggravating factors, such as kidnapping or the use of a dangerous weapon, occurring in the commission of the present offense. The Stewart court, however, cogently explained why that distinction makes no difference in terms of the statute’s application: “The statutory intent and scheme of Penal Code section 667.61, subdivision (e) is not difficult to discern. Where the ‘present offense’ against a victim is a qualifying offense and the gravity of that offense is enhanced by one of the circumstances enumerated in subdivision (e)(1), (2), (3), (4), (6), or (7), the life sentence mandated by the statute shall apply. But even in circumstances where the subdivisions enumerated above do not apply, if .a qualifying offense has been committed against more than one victim, the criminal conduct is considered equally severe and that conduct merits application of the statute so long as those offenses are prosecuted ‘in the present case or cases.’ (
No more persuasive is defendant’s argument that a commonsense reading of former subdivisions (f) and (g) of
Consideration of the 1998 version of
The plain meaning is entirely clear. As stated in Murphy, supra,
Defendant identifies no decisional authority in which his interpretation was endorsed or applied. On the other hand, as the Attorney General points out, the court in DeSimone, supra,
Alternatively, defendant asserts the 2006 amendments to the one strike law serve to proscribe consecutive sentencing where, as here, the qualifying felony is the commission of lewd and lascivious acts under section 288, subdivision (a). He contends those amendments constitute an amendatory statute that should be applied to him under the rule set forth in Estrada, supra,
The purported ameliorative provision on which defendant seeks to rely is the new subdivision (i) of
Here, the record is clear the prosecution argued that imposition of consecutive sentences was not mandatory, but that the trial court had discretion to do so. Further, the court unambiguously indicated that it was exercising its discretion in choosing to impose four consecutive terms and three concurrent terms, explaining that it had exercised its discretion in choosing to impose the consecutive terms based on a variety of aggravating factors—that the victims were extremely young at the time of the offenses, defendant was in a position of trust as one of their caretakers, and defendant threatened and intimidated his victims. As there is no indication the court believed consecutive sentencing was mandatory and defendant does not argue those findings lacked evidentiary support or were inadequate to support the court’s imposition of consecutive terms, there was no error, but if error occurred, it was harmless under any legal standard.
The judgment is affirmed.
Armstrong, Acting P. J., and Mosk, 1, concurred.
On April 25, 2011, the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied July 13, 2011, S192733.
Notes
All further statutory citations are to the Penal Code unless stated otherwise.
The jury found defendant not guilty of one count of lewd and lascivious conduct against Irene.
In re Estrada (1965)
At the preliminary hearing, she testified that defendant placed his penis beside her vagina and caused her pain.
This incident was the basis for count 7, on which defendant was acquitted.
The 2006 version of
The one strike law was again revised effective September 9, 2010. Among other modifications, the multiple-victim circumstance was renumbered as