THE PEOPLE, Plaintiff and Respondent, v. RENOIR VINCENT VALENTI, Defendant and Appellant.
No. B255727
Second Dist., Div. Three
Jan. 14, 2016
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion
LAVIN, J.—
INTRODUCTION
Defendant Raynard Anthony Haylock, calling himself Renoir Vincent Valenti, was convicted of continuous sexual abuse, lewd act on a child, child molestation, forgery, and violating a court order—all relating to his sexual abuse of 15 children over nearly 30 years. The jury found multiple-victim and substantial-sexual-conduct allegations true.
On appeal, defendant contends there is insufficient evidence his continuous sexual abuse of Denzel lasted at least three months or that he touched Jeremy or Bradley with lewd intent; that we must reverse his six convictions for annoying or molesting a child because there is insufficient evidence of objectively disturbing or offensive conduct, the court erred by instructing the jury the People did not have to prove sexual motive, and the instruction for
We affirm in part, reverse in part, and remand with directions. We reverse the convictions for counts 1, 5, and 10 for insufficient evidence, and count 14 for violating the ex post facto clauses of the federal and state Constitutions; those counts may not be retried. We reverse the convictions for counts 6 through 9 for failure to instruct on an element of the offense, and remand for retrial. We vacate the indeterminate sentences imposed for counts 2 and 12, and remand for resentencing without application of the “One Strike” law. We reverse the noneconomic restitution awards for all counts, and remand with directions to conduct a restitution hearing for counts 15, 23, and 24 only. We direct the court, upon resentencing, to recalculate defendant’s custody credit to reflect no more than 15 percent local conduct credit. In all other respects, we affirm.
PROCEDURAL BACKGROUND
Defendant was charged by fourth amended information with 20 counts related to the sexual abuse of children who lived in his neighborhood and played on the soccer teams he coached. The information charged him with five counts of continuous sexual abuse, a felony (
Defendant pled not guilty and denied the allegations. A jury found defendant guilty of all remaining counts, and found all allegations true.
The court sentenced defendant to a determinate term of 10 years eight months, and a consecutive, indeterminate term of 120 years to life. For the determinate sentence, the court selected count 14 (
Defendant filed a timely notice of appeal.
FACTUAL BACKGROUND
In 1983, eight-year-old James K. met defendant at the Santa Monica Pier. James liked to break-dance with his friends in Santa Monica and Venice while his father fished nearby. James approached defendant, who was photographing the break-dancers, and asked defendant to take pictures of James and his friends, who were hoping to book a commercial. Defendant and James began to spend time together and soon, James’s 10-year-old sister, Alexis, asked to come along.
By 1986, defendant and Alexis had started dating. Alexis was 13 years old; defendant was 24. They married the following year, on August 11, 1987. In 1991, Alexis gave birth to the couple’s first child, Damien. In 1993, the young family moved to Palmdale. Defendant told people his name was Renoir Vincent Valenti,5 and that he was a soccer coach from England. In early 1994, Alexis gave birth to the couple’s second child, Alex.
In 1995, defendant’s sons introduced him to Garrett, a five-year-old boy who lived in the same apartment complex as the Valenti family. Defendant soon started molesting Garrett. The abuse, which continued for nearly a decade, ultimately involved thousands of episodes of molestation, including repeated oral copulation, masturbation, and sodomy.
The same year, defendant began to coach boys’ soccer in Lancaster. He would go on to coach Lancaster soccer from 1995 until 2006—primarily coaching teams of boys younger than 10 or 12 years old.
Meanwhile, Alexis had grown unhappy in her marriage to defendant and jealous of the time he spent with other people’s children. They separated on March 30, 1996; a judgment of dissolution was entered on January 6, 1997. Despite the divorce, Alexis and defendant continued to live together, and in April 1998, they moved to the nearby Pavilion Apartments. Justin and Gary Q. lived in the complex.
By 2001, defendant and Alexis had moved from Palmdale to an apartment in Lancaster. That year, defendant met Cory. Like Garrett, whose abuse continued during this period, Cory often spent the night at defendant’s home. Defendant frequently hugged Cory, kissed him on the forehead and lips, and inserted his tongue into Cory’s mouth. One evening, defendant brought Cory to his bedroom and fondled his penis.
In 2001 or 2002, Alexis finally moved out, leaving Damien with his father, defendant. On January 31, 2003, Damien reached out to the sheriff’s department. He told authorities defendant had been beating and molesting him for five years, along with Garrett, Cory, and a boy named David. Sergeant Anna Fernandez investigated the allegations, but no charges were ever filed. Damien later recanted.
Before long, defendant had moved on to Ammon. Ammon met defendant through his older brother, a friend of Damien’s and a member of the soccer team defendant coached. Soon, Ammon joined the soccer team too. By 2004, eight-year-old Ammon had started sleeping over at defendant’s house nearly every weekend—and defendant molested him on nearly every visit. During those visits, defendant touched Ammon’s penis, put his mouth on Ammon’s penis, and masturbated Ammon and himself.
Ammon met Thomas in the fall of 2005, when they sat together in fourth grade. In early 2006, defendant moved west to Quartz Hill. Sometime that winter or spring, Ammon introduced Thomas to defendant. Thomas was nine years old. Thomas went to defendant’s house two or three times each week until 2007, when he was scheduled to start sixth grade. Every time Thomas visited defendant, defendant sat Thomas on his lap, reached his hand into Thomas’s pants, and stroked his penis and buttocks. Defendant put his fingers around Thomas’s anus and kissed his neck. The abuse continued as long as Thomas spent time at defendant’s house.
In the summer of 2007, Thomas failed fifth grade, and Ammon moved to Bakersfield for sixth grade. For Thomas, the abuse ended when Ammon
Meanwhile, brothers Enrique, Eduardo, and David had also joined Manchester soccer. Along with their younger brother Ricardo, they began sleeping over at defendant’s house nearly every weekend before their soccer games. During their weekends with defendant, the brothers played soccer and video games, and defendant took them to the movies, out to eat, and to amusement parks like Universal Studios, Hurricane Harbor, Six Flags, and Magic Mountain. While defendant bought gifts for some boys—like RC cars6 worth hundreds of dollars—he did not buy gifts for Enrique, Eduardo, David, or Ricardo. He did, however, pay their soccer registration fees.
Defendant applied to coach soccer in Quartz Hill beginning in 2007, and was assigned a team for the 2010 season. That summer, Manchester soccer disbanded, and defendant began coaching the Red Devils—the soccer team he would coach through the 2010-2011 regular and all-star seasons. Ammon joined another soccer team; he stopped going to defendant’s house, and the abuse ended. Enrique, Eduardo, and David followed defendant to the Red Devils, where 13-year-old Jeremy would become defendant’s star player and the main focus of his attention.
Jeremy met defendant at the 2010 soccer tryouts. He sometimes visited defendant’s house with the other boys, but mostly, defendant went to Jeremy’s house, where he spent a lot of time with Jeremy’s family. Defendant played basketball with Jeremy, his dad, and his brother; he played video games with them; he joined the family for dinner and for his birthday. Sometimes Jeremy’s friend Bradley was there too. Defendant, Jeremy, and Bradley went on adventures together—to the RC car racing track, Mulligan Family Fun Center, or out to eat. For Christmas, defendant made Jeremy a large photo collage, created a photo calendar, and bought him an Xbox. Sometime after that, he bought Jeremy a $600 RC car. Defendant’s nightstand sported a matted, framed photo of Jeremy, with the phrase “all the numbers” written on the mat. “All the numbers” was an expression of defendant’s love for Jeremy, and defendant frequently told Jeremy he loved him. Defendant also showed his love in other ways. He cuddled with Jeremy on the couch, kissed him, held his hand in the car, sat Jeremy on his lap to steer the car, and hugged him for inappropriately long periods. Defendant also spent time with Jeremy at Bradley’s house, where he swam with the boys in the pool. In 2011, defendant’s relationship with Jeremy’s family
Meanwhile, sometime during this period, Ammon moved to Nevada. Before he moved away, defendant delivered a letter to Ammon’s mother. “Hello son,” he wrote, “I thought that I would get to see you grow up and graduate from middle school and high school, teach you to drive, get you a car and see you off to college; however, it seems, this is not to be. ... I have and will always miss you every day, yesterday and forever. I will never forget my Ammon. ... I will always love you all the numbers.”
When the next soccer season began in August 2011, defendant had been banned from coaching boys’ soccer in Palmdale, Lancaster, and Quartz Hill. In Palmdale and Quartz Hill, defendant had tried to register boys to play soccer without their parents’ consent; the reasons for the Lancaster decision were not disclosed to the jury. By this time, Ammon had moved away and Jeremy was off-limits, so defendant directed his energies towards Bradley, repeating the pattern that had worked so many times before. By May or June 2012, however, Bradley’s mother had ordered him to stop seeing defendant. Bradley asked his father, James T., for permission—but James insisted on interviewing defendant first. At their meeting, defendant told James that “his children were grown and he liked hanging out with younger children.” James responded, “It wasn’t going to happen then or at any time.” Bradley continued to contact defendant by text message—but eventually, Bradley’s mother found out and grounded him. Now Bradley, too, was off-limits. But Eduardo, Enrique, Ricardo, and David still spent the weekends at defendant’s house—a house full of fun things for boys to do—and defendant moved on to children in his neighborhood.
Nine-year-old Denzel, his older brother Gary, and their mother, Monique, were defendant’s next-door neighbors in Quartz Hill. In January 2012, Gary started spending time at defendant’s house with Enrique and Eduardo. Eventually, Denzel joined him. Denzel usually played outside with the neighborhood kids. By May 2012, however, Denzel had started spending more time inside defendant’s house, playing video games, watching movies, and eating pizza. By June 2012, defendant was a well-established presence in Denzel’s life. Sometime that summer, defendant called Denzel into his bedroom and began to molest him. Defendant would call Denzel into his bedroom, close the door, and lift him onto the bed. Then, using his hand, defendant rubbed Denzel’s penis through his clothes. Other times, defendant sucked “around my wiener area,” again through Denzel’s clothes. DNA tests confirmed the presence of defendant’s saliva on Denzel’s shorts.
Cut off from Denzel, defendant started showing up at Rachel’s house almost every day. As with the previous objects of his affection and abuse, defendant and Rachel’s sons played video games and basketball, and raced RC cars. He took the boys to the movies, to Mulligan’s, to the desert to shoot Airsoft pistols, and to the local pool. He put them on his lap and let them steer the car. This time, however, his conduct escalated quickly. Defendant tried to see the boys every day. He appeared at the house uninvited—or invented a pretext to come over even when Rachel specifically told him not to. He called the house to wish the boys goodnight, and asked Rachel to tell them that he missed them, and that he loved them. Within weeks, defendant had overstayed his welcome.
Finally, on August 6, 2012, authorities took defendant into custody.
CONTENTIONS
On appeal, defendant contends that count 14 (
By letter, we invited the parties to file supplemental briefing on the issue of whether application of the One Strike law to the sentences for counts 2, 12, 13, and 20 violated the ex post facto clause. In response, the People and defendant agree that the One Strike sentences for counts 2 and 12 violate the ex post facto clause, and defendant contends his sentences for counts 13 and 20 also violate the ex post facto clause.
DISCUSSION
1. Sufficiency of the Evidence of Continuous Sexual Abuse of Denzel (Count 1) and Lewd Intent Toward Jeremy and Bradley (Counts 15 and 24)
Defendant contends we must reverse the conviction for count 1 (
In assessing the sufficiency of the evidence, we review the entire record to determine whether any rational trier of fact could have found defendant guilty beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357 [75 Cal.Rptr.3d 289, 181 P.3d 105].) “The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (Ibid.) In applying this test, we review the evidence in the light most favorable to the verdict and presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053 [99 Cal.Rptr.2d 1, 5 P.3d 68].) The same standard applies where the conviction rests primarily on circumstantial evidence. (People v. Thompson (2010) 49 Cal.4th 79, 113 [109 Cal.Rptr.3d 549, 231 P.3d 289].) We may not reweigh the evidence or resolve evidentiary conflicts. (People v. Young (2005) 34
1.1 There is insufficient evidence the continuous sexual abuse of Denzel (count 1) lasted at least three months.
A violation of section 288.5 requires proof of the following elements:
1. The defendant lived with or had recurring access to a child;
2. The defendant engaged in three or more acts of substantial sexual conduct or lewd or lascivious conduct with the child;
3. Three or more months passed between the first and last acts; and
4. The child was younger than 14 years old at the time of the acts.
(People v. Rodriguez (2002) 28 Cal.4th 543, 550 [122 Cal.Rptr.2d 348, 49 P.3d 1085] [statute “requires at least three acts of sexual misconduct with the child victim over at least three months to qualify for prosecution of persons who are either residing with, or have ‘recurring access’ to, the child”]; People v. Vasquez (1996) 51 Cal.App.4th 1277, 1284-1285 [59 Cal.Rptr.2d 389, 59 Cal.Rptr. 389] [at least three months between first and last act of abuse].)
“[T]he prosecution need not prove the exact dates of the predicate sexual offenses in order to satisfy the three-month element. Rather, it must adduce sufficient evidence to support a reasonable inference that at least three months elapsed between the first and last sexual acts. Generic testimony is certainly capable of satisfying that requirement . . . [but] ‘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.’ [Citations.] That is, while generic testimony may suffice, it cannot be so vague that the trier of fact can only speculate as to whether the statutory elements have been satisfied.” (People v. Mejia (2007) 155 Cal.App.4th 86, 97 (Mejia).)
“[A] long time” after the second visit, Denzel went to defendant’s house again. He accompanied Gary, and that time, he went inside; he stayed for about an hour, played video games, and went home. “A couple weeks” after that, Denzel returned for a fourth visit, again with his brother. At first, Denzel’s visits were short, and always at times when other kids were there too; he went inside to play video games, watch movies, and eat pizza. By May 2012, Denzel had started spending more time inside defendant’s house. However, it was not until sometime that summer, “a couple months” after his fourth visit, that defendant called Denzel into his bedroom and began to molest him.
“Presuming in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence, we find no reasonable, credible, solid evidence to support a nonspeculative inference that the three-month minimum time period element was satisfied.” (Mejia, supra, 155 Cal.App.4th at p. 94.) “[A]lthough there was ample evidence that at least three qualifying sexual offenses occurred during the charging period” (id. at p. 95), there is no evidence that at least one of those offenses occurred before April 11, 2012—three months before the last possible incident. The evidence established Denzel briefly met defendant sometime after mid-January 2012. “[A] long time later,” Denzel briefly met defendant a second time. A “long time” after that, Denzel went inside defendant’s house for an hour to play video games. “A couple weeks” later, Denzel went back for another uneventful visit. After another “couple months,” sometime during the summer, defendant molested Denzel for the first time. Witness testimony established defendant paid excessive attention to Denzel, was well enmeshed in his life,
1.2 There is sufficient evidence defendant touched Jeremy and Bradley (counts 15 and 24) with lewd intent.
A violation of
- The defendant willfully touched any part of a child’s body, either on the bare skin or through the clothing;
- The defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child; and
- The child was younger than 14 years old at the time of the act.
(People v. Martinez (1995) 11 Cal.4th 434, 444 [45 Cal.Rptr.2d 905, 903 P.2d 1037] (Martinez).)
2. Annoying or Molesting a Child (Counts 5 through 10)
Defendant was convicted of annoying or molesting six children, in violation of
- The defendant engaged in conduct directed at a child;
- A normal person, without hesitation, would have been disturbed, irritated, offended, or injured by the defendant’s conduct;
- The defendant’s conduct was motivated by an unnatural or abnormal sexual interest in the child or in children generally; and
- The child was under age 18 at the time of the conduct.
(People v. Phillips (2010) 188 Cal.App.4th 1383, 1396 [116 Cal.Rptr.3d 401].)
As to each count, defendant contends the evidence was insufficient to prove the second element—objective irritation or offense, and in any event, the court prejudicially erred by instructing the jury that the People did not have to prove the third element—sexual motive. Alternatively, defendant contends motive is not an element of
The People, in turn, contend there was sufficient evidence of objectively irritating behavior. Rather than explaining how the defendant’s behavior was objectively disturbing, however, the People point us to evidence of defendant’s mental state, which we may not consider for this purpose, and the
We conclude the convictions for counts 5 and 10 are not supported by substantial evidence of objectively irritating behavior. We conclude substantial evidence supports the convictions for counts 6 through 9, but the conflicting jury instructions on sexual motive violated defendant’s right to due process of law. Because we reverse on that basis, we do not address defendant’s novel assertion that CALCRIM No. 1122 misstates the law.
2.1 Sufficiency of the evidence of objectively irritating or offensive conduct
Unlike
a. Ricardo (count 5) and David (count 10)
For several years, Ricardo, David, and their older brothers, Eduardo and Enrique, slept over at defendant’s house nearly every weekend. During these years, defendant hugged David three times and once kissed Ricardo on the top of the head. Defendant contends this behavior is not objectively disturbing. We agree.
As our colleagues in Division Seven have explored in detail, not all kisses are sexual. (In re R.C. (2011) 196 Cal.App.4th 741, 750-751 [126 Cal.Rptr.3d 418].) A kiss’s meaning changes with the era, culture, and even the family in which it occurs. (Ibid.) Because kisses possess such variety and meaning, In re R.C. hinged on whether the defendant kissed the child with an open or closed mouth. “Unlike kissing without the use of tongues, which is an important means of demonstrating parental love and affection for a child,
Here, defendant hugged David and gave Ricardo a brief goodnight kiss on the top of the head. There is no evidence suggesting the kiss or the hug were of any significant duration, that defendant tried to touch either boy—or himself—in any way, or that he became aroused then or later. Put simply, there is no evidence defendant’s actions consisted of anything more than the briefest peck or embrace, such as might be exchanged by friends or family members as an expression of nonsexual affection. While Ricardo and David may have been uncomfortable, in light of defendant’s lengthy, close relationship with their family, defendant’s actions were not objectively disturbing. Because there is insufficient evidence to support the convictions involving Ricardo and David, we reverse counts 5 and 10.
b. Richard, Wyatt, Hunter, and Larry (counts 6 through 9)
While defendant’s interactions with Ricardo and David were reasonable in light of his close relationship with their family, the attention he paid to Rachel’s sons—Richard, Wyatt, Hunter, and Larry—was alarming. Defendant kissed and hugged the boys on their second meeting. He tried to see them every day. Defendant appeared at Rachel’s house uninvited—or invented a pretext to come over despite her objections. He called the house to wish the boys goodnight, and asked Rachel to tell them that he missed them, and that he loved them. When defendant took the boys to the desert to shoot Airsoft pistols, defendant put each of them in his lap and let them steer the car. Indeed, the jury could have reasonably inferred defendant took Rachel’s sons on this trip without Rachel’s knowledge; while all four boys testified to the outing, neither Rachel nor her mother mentioned it. Rachel testified that defendant acted “like a teenage girl [who] had a crush on a boy[.] . . . [He called] to see my children, four, five, six times a day, after I would say no, we’re busy, now isn’t a good time, we’re preparing for school. My kids are going to bed early. He wouldn’t take no for an answer, he still would call to see what we were doing and what was going on, if he could come over.” Defendant’s behavior was “totally inappropriate” and felt “like stalking.” He knew the family for no longer than five weeks. We therefore conclude substantial evidence supports the convictions for counts 6, 7, 8, and 9.
Defendant contends conflicting motive instructions allowed the prosecution to convict him of annoying or molesting a child without proving every element of the offense beyond a reasonable doubt. The People contend defendant forfeited the issue, the court did not err, and any error was harmless. We find no forfeiture and conclude the instructions violated defendant’s Fourteenth Amendment right to due process of law. Because the People have not proven beyond a reasonable doubt that the error was harmless, we reverse the convictions for counts 6 through 9.
As a preliminary matter, we address the People’s argument that defendant forfeited his claim of instructional error because he did not object to the instructions, or seek their revision, at trial. (People v. Guiuan (1998) 18 Cal.4th 558, 569-570 [76 Cal.Rptr.2d 239, 957 P.2d 928].) Certainly, a criminal defendant has a right to accurate instructions on the elements of a charged crime. (People v. Mil (2012) 53 Cal.4th 400, 409 [135 Cal.Rptr.3d 339, 266 P.3d 1030] (Mil).) And it is settled that a defendant need not object to preserve a challenge to an instruction that affects his substantial rights. (People v. Mackey (2015) 233 Cal.App.4th 32, 106 [182 Cal.Rptr.3d 401]; see
a. The court erred by instructing the jury with an unmodified version of CALCRIM No. 370.
The due process clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (In re Winship (1970) 397 U.S. 358, 364 [25 L.Ed.2d 368, 90 S.Ct. 1068]; see
Motive is not generally an element of a criminal offense. But when it is an element, the trial court errs by giving an unmodified version of CALCRIM No. 370, an optional instruction that tells the jury the prosecutor need not prove the defendant’s motive to commit the charged crimes. (Maurer, supra, 32 Cal.App.4th at p. 1128; see People v. Romo (1975) 14 Cal.3d 189, 196 [121 Cal.Rptr. 111, 534 P.2d 1015] [not error to refuse instruction on motive].) To convict a defendant of violating
b. The People have not proven the instructional error was harmless beyond a reasonable doubt.
We assess federal constitutional errors under Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824] (Chapman). Under Chapman, we must reverse unless the People “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.”
“Neder instructs us to ‘conduct a thorough examination of the record. If, at the end of that examination [we] cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error—for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding—[we] should not find the error harmless.’ ” (Mil, supra, 53 Cal.4th at p. 417, quoting Neder, supra, 527 U.S. at p. 19.) On the other hand, the error is harmless if the People can prove beyond a reasonable doubt that the omitted element was uncontested and supported by such overwhelming evidence that no rational juror could come to a different conclusion. (Mil, supra, at pp. 417-419; accord, People v. French (2008) 43 Cal.4th 36, 53 [73 Cal.Rptr.3d 605, 178 P.3d 1100].)
Here, the People’s “analysis of the prejudicial effect of the instructional error suggests” not only that they failed to apply Neder, but also that they “may have relied instead on the less demanding standard of whether [the motive] finding was supported by substantial evidence.” (Mil, supra, 53 Cal.4th at p. 417.) The People have not addressed the evidence supporting the defense on the omitted element. Instead, as in Mil, the People’s argument “focused exclusively on evidence that was favorable to the verdict” and presented “the evidence in the light most favorable to the prosecution.” (Id. at pp. 417-418.) In assessing prejudice, we must “determine ‘whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.’ ” (Id. at p. 417, quoting Neder, supra, 527 U.S. at p. 19.) Therefore, our “task in analyzing the prejudice from the instructional error is” not to determine whether a reasonable jury could have believed defendant acted with sexual motive, but rather, “whether any rational fact finder could have come to the opposite conclusion.” (Mil, at p. 418.) This is the converse of the substantial evidence test. If the record shows some evidentiary basis for a finding in the defendant’s favor on the omitted element, the People have not met their burden and we must reverse. (Id. at pp. 417-419.)
Certainly, there was ample evidence defendant’s disturbing conduct in this case was motivated by an unnatural sexual interest in children. However, under Mil, we must determine whether there is substantial evidence supporting a contrary finding on the omitted element. (Mil, supra, 53 Cal.4th at pp. 417-419.) We therefore review the evidence in the light most favorable to
3. Failure to Admonish the Victim Support Person
At trial, Denzel (count 1), Ricardo (count 5), Larry (count 6), Hunter (count 7), Wyatt (count 8), Richard (count 9), Jeremy (count 15), Bradley (count 24), and Jeremy’s brother, Ryan, testified with the support of a victim advocate employed by the district attorney’s office, as permitted by
3.1 Forfeiture and ineffective assistance of counsel
Though nine witnesses testified with the support of a victim advocate, defendant did not object below that the court failed to admonish them. Nor did defendant object to any other aspect of the victim-support procedure used
Under either the federal or state Constitution, “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Strickland v. Washington (1984) 466 U.S. 668, 686 [80 L.Ed.2d 674, 104 S.Ct. 2052] (Strickland).) To establish ineffective assistance, defendant must satisfy two requirements. (Id. at pp. 690-692.) First, he must show his attorney’s conduct was “outside the wide range of professionally competent assistance.” (Id. at p. 690.) Then, he must demonstrate the deficient performance was prejudicial—i.e., there is a reasonable probability that but for counsel’s failings, the result of the proceeding would have been different. (Id. at p. 694.) “It is not sufficient to show the alleged errors may have had some conceivable effect on the trial’s outcome; the defendant must demonstrate a ‘reasonable probability’ that absent the errors the result would have been different.” (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008 [50 Cal.Rptr.3d 875].) We “need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” (Strickland, supra, at p. 697.) We therefore turn first to the merits of defendant’s argument.
3.2 The support
Before trial, the prosecutor moved in limine to allow a professional victim advocate employed by the district attorney’s office to sit with the minor witnesses while they testified. At the Evidence Code section 402 hearing that followed, the court explained the procedure it would use: “That’s fine. [The witnesses will] be advised ahead of time they can’t talk with [the victim advocate], just the comfort of having her be there should be good. With the minors, she [will] sit right behind them. The deputy will help us if you just let us know on that day what we need to do. The deputy will help us, get that set up.” The court then asked if defense counsel had any objections. Counsel replied, “That’s fine.” On the record before us, it appears the court did not advise the advocate of her role, function, duty, or behavior.
At trial, as the witnesses testified, the prosecutor alerted the court when a witness would be testifying with the support of a victim advocate. Ultimately, Denzel, Ricardo, Larry, Hunter, Wyatt, Richard, Bradley, Jeremy, and Jeremy’s brother, Ryan, used their services. Neither party asked the court to explain the presence of the victim advocate or her role to the jury.
In prosecutions for certain violent crimes and sex offenses, including violations of
A witness is entitled to choose his own support person, and sometimes picks another prosecuting witness. Although this procedure could cause logistical and legal problems, subdivisions (b) and (c) impose additional requirements where a support person is also a witness. (
The meaning of in all cases in subdivision (b) of
As discussed,
“Words and phrases in a statute are construed according to the rules of grammar and common usage.” (3 Singer & Singer, Sutherland Statutes and Statutory Construction (7th ed. 2014) § 59.8.) The requirements that the court admonish the support person in juvenile cases and that it do so in all cases were added to the statute together when the Legislature amended it in 1987, and are grammatically linked. (Stats. 1987, ch. 704, § 1, p. 2214.) Together, the sentences require the court (1) in juvenile cases, to inform the support person that the proceedings are confidential, and (2) in both juvenile cases and non-juvenile cases, to admonish the support person not to influence the witness. (Cf. Gutierrez v. Ada (2000) 528 U.S. 250, 254-255 [145 L.Ed.2d 747, 120 S.Ct. 740] [interpreting phrase “any election” to mean any gubernatorial election, based on surrounding sentences].) In context, in all cases distinguishes not the beginning of the paragraph (“If the [support] person . . . [is] also [a] witness[] . . .”), but the previous sentence. That is, the language differentiates not the type of support person, but the type of case.
The statute’s structure supports this construction. Although we look first at the words of a statute, we do not consider the statutory language in isolation; rather, we read the statute “as a whole, harmonizing the various elements by considering each clause and section in the context of the overall statutory framework.” (People v. Jenkins (1995) 10 Cal.4th 234, 246 [40 Cal.Rptr.2d 903, 893 P.2d 1224].) We construe all parts of a statute together, without according undue importance to a single or isolated portion. (Cooley v. Superior Court (2002) 29 Cal.4th 228 [127 Cal.Rptr.2d 177, 57 P.3d 654].)
3.4. Defendant’s constitutional rights were not violated.
Notwithstanding the statutory language limiting the admonitions to support persons who are also witnesses, the warnings may be more broadly required if they are necessary to protect the constitutional rights of the accused. (People v. Patten (1992) 9 Cal.App.4th 1718, 1725-1727 [12 Cal.Rptr.2d 284] (Patten).) However, we find the use of the victim advocate in this case did not violate defendant’s constitutional rights. A support person’s mere presence with a testifying witness does not violate the defendant’s due process or confrontation clause rights. (Spence, supra, 212 Cal.App.4th at p. 514, citing Myles, supra, 53 Cal.4th at p. 1214.) Certainly, we acknowledge there may be a constitutional violation where the support person interferes with the witness’s testimony in a way that adversely affects the jury’s ability to assess that testimony. (Spence, supra, at p. 514.) For example, emotional displays or physical contact with the witness may signal to the jury that the support person believes or endorses the witness’s testimony. (Myles, supra, at pp. 1214-1215.) And though there is a split of authority on the issue, at least one court has held the confrontation clause requires a case-specific finding of need in every case. (Compare People v. Adams, supra, 19 Cal.App.4th at pp. 437-444 [case-specific finding required in all cases] with Patten, supra, 9 Cal.App.4th at pp. 1725-1727 [finding not required in every case] and Johns, supra, 56 Cal.App.4th at pp. 554-555 [no showing of helpfulness required to justify presence of non-witness support person].)
3.5 Any error was harmless.
Even assuming the failure to explain courtroom decorum to a professional victim advocate could “deprive[] appellant of the constitutional due process and fair trial rights to which he was entitled,” defendant has failed to show error in this case. To establish a due process violation, the record must clearly identify the support person, where she sat, and how she behaved during the witness’s testimony. (Myles, supra, 53 Cal.4th at pp. 1214-1215.) Defendant acknowledges the record in this case does not contain the required information, but makes no effort to explain how the omission harmed him. Instead, defendant launches into a lengthy non sequitur that juxtaposing the terms “People” and “defendant” prejudicially implies the accused is nonhuman. We note that any objections to the nomenclature used at trial should have been raised below. If defendant wished to be called by some other term, the proper procedure was to bring a motion in limine. (See, e.g., Giarrusso, The General and Captain Justice (2014) 61 La. B.J. 392 [suggesting “Citizen Accused” and “that innocent man” as alternatives to “defendant”].) In any event, we conclude there is no reasonable probability the result in this case would have been different if the court had admonished the support person. (See Strickland, supra, 466 U.S. at pp. 694, 697.) Accordingly, counsel was not ineffective for failing to object. (Id. at pp. 690-694.)
4. Defendant’s Conviction for Count 14 and Sentences for Counts 2 and 12 Violate the Ex Post Facto Clause.
The parties agree that defendant’s count 14 conviction for committing a lewd act on a child (
Accordingly, as we explain below, we reverse defendant’s conviction for count 14, affirm the sentences for counts 13 and 20, vacate the indeterminate sentences imposed for counts 2 and 12, and remand with directions to sentence defendant to authorized determinate terms for counts 2 and 12.
4.1 The ex post facto clause
The United States Constitution and the California Constitution proscribe ex post facto laws. (
We may correct an unauthorized sentence on appeal despite failure to object below. (People v. Scott (1994) 9 Cal.4th 331, 354 [36 Cal.Rptr.2d 627, 885 P.2d 1040].) A sentence is unauthorized if “it could not lawfully be imposed under any circumstance in the particular case.” (Ibid.)
4.2
Defendant was charged in count 14 with committing a lewd act on Alexis when she was 14 or 15 years old and he was more than 10 years older than she (
Before September 27, 1988,
4.3
Enacted in 1994, California’s One Strike law,
Here, the jury convicted defendant of five counts of continuous sexual abuse of a child (
a. Offenses committed before 2006
In count 2, defendant was convicted of continuous sexual abuse of Garrett “[o]n or between January 1, 1994 and December 31, 2004.” In count 12, defendant was convicted of continuous sexual abuse of Cory “[o]n or between January 1, 1997 and December 1, 2004.” Defendant argues, and the People concede, that because these crimes could not have occurred after the 2006 amendment to
b. Offenses committed before and after 2006
Count 13 charged defendant with continuous sexual abuse of Ammon “[o]n or between November 7, 2001 and November 6, 2010.” Count 20 charged defendant with continuous sexual abuse of Thomas “[o]n or between September 27, 2005 and September 26, 2007.” Because he could have completed these acts before the 2006 amendment to the One Strike law, defendant contends his indeterminate sentences for those counts violate the ex post facto clause. The People argue that because
In general, “a law is retroactive only if it attaches new legal consequences to, or increases a party’s liability for, an event, transaction, or conduct that was completed before the law’s effective date. [Citations.] Thus, the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute’s effective date.” (Grant, supra, 20 Cal.4th at p. 157.) “ ‘A continuous course of conduct offense cannot logically be “completed” until the last requisite act is performed. Where an offense is of a continuing nature, and the conduct continues after the enactment of a statute, that statute may be applied without violating the ex post facto prohibition.’ ” (Id. at p. 159.)
In Apprendi, the United States Supreme Court held, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.) In Blakely v. Washington (2004) 542 U.S. 296, 303 [159 L.Ed.2d 403, 124 S.Ct. 2531] (Blakely), the court explained that the “ ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” And, in Alleyne v. United States (2013) 570 U.S. 99 [186 L.Ed.2d 314, 133 S.Ct. 2151, 2155] (Alleyne), the court extended that reasoning to mandatory minimum sentences like those required under the One Strike law, holding, “any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury [and found beyond a reasonable doubt].”
Under Apprendi, Blakely, and Alleyne, any fact that increases a defendant’s minimum or maximum sentence is an element of the offense that must be submitted to the jury. (See Alleyne, supra, 570 U.S. at p. 99 [133 S.Ct. at pp. 2155, 2157-2158].) Under Grant, defendant is eligible for One Strike sentencing only if the continuous sexual abuse of Ammon and Thomas continued beyond September 20, 2006, the effective date of the 2006 amendment; if the abuse ended before that date, defendant’s indeterminate sentence violates the ex post facto clause. Because the date of the last act of sexual abuse increased defendant’s mandatory minimum and maximum sentences, the date was an element of each charged crime. The court’s failure to instruct that at least one instance of sexual abuse had to occur on or after September 20, 2006, therefore, is federal constitutional error comparable to the omission of an element, and is subject to Chapman-Neder harmless error review. (Washington v. Recuenco (2006) 548 U.S. 212, 222 [165 L.Ed.2d 466, 126 S.Ct. 2546].)
As discussed, under Mil and Neder, the failure to instruct on an element of the offense is harmless if the People prove beyond a reasonable doubt that no
In count 13, the information charged defendant with continuous sexual abuse of Ammon “[o]n or between November 7, 2001 and November 6, 2010.” In 2004, Ammon was sleeping over at defendant’s house nearly every weekend—and defendant molested him on nearly every visit. During those visits, defendant touched Ammon’s penis, put his mouth on Ammon’s penis, and masturbated Ammon and himself. Ammon testified that the abuse continued after defendant moved to Quartz Hill in early 2006, and lasted until at least 2010, when defendant began coaching the Red Devils.
Defendant’s testimony is consistent with Ammon’s account. Defendant testified that he sent Ammon a letter sometime before Ammon moved to Las Vegas. In the letter, defendant wrote that he would always love Ammon “all numbers,” an expression defendant says he invented with Jeremy. Thus, under defendant’s version of events, the letter must have postdated defendant’s summer 2010 acquaintance with Jeremy. Defendant also testified that he wrote the letter because he hurt Ammon’s feelings by spending more time with Enrique, Eduardo, and their brothers, and less time with Ammon: “Shortly after this period [when defendant rejected him], [Ammon] had to move away and I didn’t want him to move away having this ill feeling towards me.” In sum, because defendant’s testimony establishes the letter was written “shortly after” he rejected Ammon, and could not have been written before summer 2010, when he met Jeremy, defendant could not have rejected Ammon before September 20, 2006. Therefore, defendant did not present substantial evidence to support a contrary finding on the omitted element—i.e., that the abuse ended before the 2006 amendment to the One Strike law. Because the People have “prove[n] beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained” (Chapman, supra, 386 U.S. at p. 24), we affirm the One Strike sentence for count 13.
Count 20 of the information charged defendant with continuous sexual abuse of Thomas “[o]n or between September 27, 2005 and September 26, 2007.” Thomas met defendant when he was nine years old, and in Ammon’s fourth grade class—sometime between October 2005 and June 2006. He went to defendant’s house two or three times each week until sixth grade, which he was scheduled to begin in 2007. Every time Thomas visited defendant, defendant sat Thomas on his lap, reached his hand into Thomas’s pants, and
Defendant testified Thomas visited his house only once, and defendant never touched him inappropriately. However, the jury could not have convicted defendant of continuous sexual abuse of Thomas without finding at least three sexual acts—and there was no basis for the jury to find three acts without also determining defendant molested Thomas until he lost touch with Ammon in 2007. Accordingly, we conclude defendant did not present sufficient evidence to support a finding that the abuse ended before the 2006 amendment to the One Strike law, and the People have “prove[n] beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (Chapman, supra, 386 U.S. at p. 24.)
5. The Court Properly Imposed Consecutive One Strike Sentences.
At sentencing, the court imposed consecutive terms of 15 years to life for defendant’s convictions of continuous sexual abuse in counts 1, 2, 12, 13, and 20 (
Defendant is correct that the court had discretion to impose concurrent, rather than consecutive, One Strike sentences in this case. (People v. Valdez (2011) 193 Cal.App.4th 1515, 1524 [124 Cal.Rptr.3d 376].) However, defendant is mistaken that we must reverse because the record does not affirmatively show the court understood this discretion. “The general rule is that a trial court is presumed to have been aware of and followed the
To the contrary, the sentencing transcript reveals the court’s sentencing choices were guided by empathy for the victims and grounded in the court’s view, “[b]ased on the defendant’s actions supported by the jury’s verdicts, defendant Renoir Valenti poses a serious threat to the safety of not only the Antelope Valley, but to all young people.” The court’s concern for the victims is reflected in the care it took to assure defendant would appear in court to hear the eight victim-impact statements presented at sentencing. The judge warned defendant in advance, “Every one [of] these people have an opportunity and have a right to make a victim impact statement, and I want you to be here so they can look at you and say what they have to say, if they choose to do so. . . . These people have been through a lot for many, many years, and they deserve to have you present for them to make their victim impact statements.” The court also signed a conditional extraction order, which allowed the sheriff to bring defendant to court by force if he refused to come voluntarily.
After hearing the victims’ statements and counsel’s arguments, the court addressed defendant at length. The remarks expressed deep compassion for the victims, and concluded, “You, sir, I would hope for the rest of your days, learn how to try to understand how you could hurt so many and use the many years that you will find yourself in prison making something of yourself in a productive manner and hopefully never harm another person again. In this case you will have a lifetime in prison to figure that out.”
On this record, there is no reasonable probability that the court would have imposed any sentence other than the maximum allowable term if counsel had objected. (Strickland, supra, 466 U.S. at p. 694.) We conclude counsel was not ineffective.
6. Noneconomic Restitution (
At sentencing, the court awarded noneconomic restitution to each victim of defendant’s continuous sexual abuse (
The People concede, and we agree, that
6.1 Proceedings below
In requesting noneconomic restitution, the prosecutor argued: “Pursuant to People v. Smith (2011) 198 Cal.App.4th 415 [129 Cal.Rptr.3d 910] and the Penal Code, the court is allowed to award restitution to victims in 288 type cases based upon noneconomic damages or it’s akin to punitive damages in the amount of at least $50,000 per year of sexual abuse. [¶] The court can make a determination based upon the witnesses’ testimony at trial. And this court and this judge heard the testimony of these individuals and based upon their testimony and based upon the abuse and the emotional damage he caused upon those victims, those are the amounts we’d ask for the victims.”
The defense objected: “I’m not opposed to restitution. I think the law allows for it. However, I think the figures that Mr. [Prosecutor] has given us are arbitrary. We have no foundation for the amounts. So I don’t know how he’s arrived at those amounts or how the court is going to arrive at an amount, but these are just figures that are thrown out with no basis. [¶] So based upon that, I would object to—not the idea of restitution, but the amounts as proposed.”
Then, without further argument or explanation, the court ordered defendant to pay $450,000 in noneconomic restitution. “[B]ased on People v. Smith, 198 Cal.App.4th 415 [129 Cal.Rptr.3d 910], a 2011 case, and
6.2 Restitution for noneconomic losses
The plain language of
6.3 There is no rational basis for the court’s $50,000 awards to Jeremy, Justin, and Bradley.
Here, the People’s sentencing memorandum cited to Smith and listed the requested sums, apparently reached by multiplying each victim’s years of abuse by $50,000. The People did not submit any support for the figures, or attempt to explain why the same formula should apply to each victim, despite their vastly different experiences. The record contains no victim declarations, independent documentation, or professional evaluations. The only current information about Jeremy, Bradley, and Justin was filtered through their parents and conveyed in the probation report or in a statement at sentencing. None of these statements provided a basis for the court’s $50,000 award.
Jeremy’s mother told the probation officer she “thanked God her son (victim) did not sustain actual child abuse.” She believed that ultimately learning defendant had a sexual interest in him was confusing to Jeremy, and made him feel betrayed and embarrassed. However, Jeremy had not expressed his true feelings or discussed them with his mother. At sentencing, Jeremy’s mother suggested Jeremy “will suffer ramifications” from his parents’ poor judgment, but did not expand on that belief.
Bradley was “doing fine.” The probation officer reported his mother had “not noticed any emotional scars. Thankfully she believes the defendant
The probation officer did not speak with Justin’s family because the family’s contact “information was not provided[,] as it is the District Attorney’s desire to afford the victims as much privacy as possible.” However, at the sentencing hearing, Justin’s mother said her son was “excellent,” and defendant had not succeeded in destroying him or their family.
Based on this record, the court’s only apparent basis for awarding $50,000 to Jeremy, Bradley, and Justin was the Third District’s opinion, Smith. In that case, after a contested restitution hearing, the trial court ordered the defendant to pay the victim $750,000 as noneconomic restitution for 15 years of abuse—or $50,000 per year. (Smith, supra, 198 Cal.App.4th at p. 432.) The evidence at trial had established the defendant molested the victim, and the evidence at the restitution hearing proved that from the time she was eight years old until she left home as an adult, the defendant isolated her and took advantage of a position of trust. (Ibid.) Critically, the Smith victim also established serious, non-speculative, emotional harm. At age 30, the victim was still having nightmares and flashbacks to the abuse. (Ibid.) She had spent years in therapy, could not keep a job, and had still not finished her education at Folsom Lake College; she had twice attempted suicide by overdosing on pills. (Ibid.) Based on that evidence, the Smith court upheld the $750,000 restitution award. Contrary to the representations of the prosecutor in this case, however, Smith did not hold that all victims in “288[-]type cases” are entitled to noneconomic restitution of “at least $50,000 per year of sexual abuse.” Nor did Smith hold that noneconomic damages are “akin to punitive damages.” To the contrary, the Smith court concluded noneconomic restitution is not punishment.
In sum, the court in this case did not find facts, cite reliable evidence, or even explain how it arrived at the amount of restitution awarded to each victim. There was no evidence, either through direct testimony or victim-impact statements, that the children suffered nightmares or flashbacks, that they were having trouble in school or problems making friends, that they had considered harming themselves or others, or that they had sought or received counseling in any form. In fact, all three families were relieved that their sons had not “actually” been abused. Because the court did not “demonstrate a
7. Defendant Is Limited to 15 Percent Local Conduct Credit.
A sentence is unauthorized “where it could not lawfully be imposed under any circumstance in the particular case [such as] . . . where the court violates mandatory provisions governing the length of confinement.” (People v. Scott, supra, 9 Cal.4th at p. 354.) A sentence that awards custody credits exceeding statutory limits is unauthorized, and may be corrected whenever the error is discovered. (People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8 [55 Cal.Rptr.2d 675].)
Defendant was awarded 1,241 days of pretrial custody credit—621 days’ actual credit and 620 days’ local conduct credit. Under
The convictions for counts 1, 5 through 10, and 14 are reversed. Counts 1, 5, 10, and 14 cannot be retried. The matter is remanded for retrial on counts 6 through 9.
The sentences imposed for counts 2 and 12 are vacated. The matter is remanded for resentencing without application of the One Strike law (
The order for noneconomic damages (
In all other respects, the judgment is affirmed.
Upon resentencing, the court is instructed to recalculate defendant’s custody credit to reflect no more than 15 percent local conduct credit, amend the abstract of judgment to reflect defendant’s new sentence, and forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
Edmon, P. J., and Jones, J.,* concurred.
A petition for a rehearing was denied February 24, 2016, and appellant’s petition for review by the Supreme Court was denied April 13, 2016, S232401.
*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.