THE PEOPLE,
A164370
(Napa County Super. Ct. No. 19CR001442)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Filed 11/15/23
CERTIFIED FOR PUBLICATION
We will reduce Villegas‘s sentences on counts eight through ten from 25 years to life to 15 years to life and, pursuant to the agreement of the parties, reduce his sex offender fine to $4,300 but impose $12,320 in additional mandatory assessments. We otherwise affirm.
I. BACKGROUND
A. Operative Information and Trial Evidence
On September 20, 2021, the Napa County District Attorney filed the operative first amended information in this case, charging Villegas with 10 felonies: six counts of lewd and lascivious acts on a child under 14 (
Trial was held before a jury over five days in September 2021. The following was among the evidence adduced at trial:
1. Allegations Involving Jane Does One and Two
i. Testimony of Jane Doe One
Jane Doe One was 14 years old at the time of the trial. Her sister, Jane Doe Two, was ten years old at the time of the trial. Jane Does One and Two lived with their parents in a garage located on Villegas‘s property. Villegas, his wife G.V., and their daughters (Jane Doe Three and her sister A.V.) had lived in a separate house on the property. Villegas was Jane Doe One‘s godfather at her first communion, and she would be alone with him when he would take her to school. Jane Doe One also saw Villegas around the house and yard. Villegas was “around” Jane Does One and Two when their parents were “at the store.”
According to Jane Doe One, Villegas would use his hand to touch her body. The first time was when Jane Doe One was 11 years old and her parents were at the store. He touched her on her breasts and vagina over her clothes. When Villegas touched her vaginal area, he moved his hand in a rubbing motion. Villegas told Jane Doe One not to tell her parents, which made her uncomfortable and scared. Villegas touched both her breasts and vagina more than two times. One time, Villegas came into the garage while Jane Doe One‘s mother was showering and called Jane Doe One‘s name. When she came out in the yard, he moved his hand on her breast. On another occasion, while she played outside with her sister, Villegas touched Jane Doe One‘s vaginal area using the same rubbing motion as before. Although Villegas usually touched Jane Doe One over her clothes, she remembered one time (when her sister was probably watching YouTube) that Villegas put his hand under her shirt on top of her bra and moved it around. She wanted Villegas to stop, but she did not tell anyone because she was scared. Jane Doe One disclosed to her parents a few weeks after the last incident of molestation.
L.R., the mother of Jane Does One and Two, testified that, at the time of trial, her family had been living in the garage on Villegas‘s property for six years. Villegas and her husband A.R. had been friends for many years. According to L.R., when Villegas came home from work, he would tell her to have the girls come out and play. In May 2018, L.R. saw Villegas approach Jane Doe One from behind in the backyard and put his hands on her chest and crotch over her clothes. L.R. became very upset and “snatched” Jane Doe One away from him. She told Villegas that if he touched Jane Doe One again she would call the police. Villegas responded that, if she called the police, he would “send [her] to Immigration.” Villegas‘s threat frightened L.R.
About a year later, in May 2019, L.R. became suspicious because Villegas asked her where Jane Doe One was each time he returned from work and wanted the girls to come out and play. She asked the two sisters together whether Villegas had been touching them, and both girls confirmed that he had. L.R. told her husband and an administrator at Jane Doe Two‘s school and then reported the matter to the police.
iii. Testimony of Jane Doe Two & Her Forensic Interview
Jane Doe Two was 10 at the time of trial. She generally responded that she did not know or did not remember when questioned by the prosecutor. However, Jane Doe Two did remember speaking to a police officer and, although she shook her head when asked if she remembered telling the officer that Villegas had touched her in ways that made her feel uncomfortable, she subsequently nodded and said “yeah” when asked if she remembered those things happening. She also nodded her head when asked if it was really hard to be there and talk that day.
City of Napa Detective Dustin Dodd was experienced in conducting forensic interviews of alleged victims of child molestation. He forensically interviewed Jane Doe Two, a recording of which was played for the jury. During the interview, Jane Doe Two reported that, between Christmas and her birthday, she was outside with L.R. and Jane Doe One playing with a soccer ball when Villegas tickled her and dragged his hand across her chest over her clothes. It made her feel ” ‘[k]ind of sad.’ ” Another time when she was playing outside by herself, Villegas tickled her and then touched her vaginal area over her clothes. She felt ” ‘kind of nervous.’ ” When asked how she felt about Villegas, Jane Doe Two responded: ” ‘Um, kind of bad.’ ”
On May 22, 2019, Detective Dodd and City of Napa Detective Jason Barrera interviewed Villegas at the police station. A recording of the interview was played for the jury. At the outset of the interview, Villegas was advised of his Miranda rights in both English and Spanish, confirmed his understanding, agreed to talk with the detectives, and proceeded to speak at length. During a large portion of the interview, Villegas failed to provide any useful information. However, after Detective Dodd informed Villegas that the police had spoken to Jane Does One and Two and L.R. who told them ” ‘everything,’ ” Villegas admitted that one time he hugged Jane Doe One and her “boobie did get grabbed.” Villegas then admitted to “squeez[ing] a little boob” two times and acknowledged he had made a mistake.
2. Allegations Regarding Jane Doe Three
i. Testimony of Jane Doe Three
Jane Doe Three was 25 years old at the time of the trial. Before living on the same property with Jane Does One and Two, she lived at another residence with Villegas, G.V., and her younger sister. She shared a bedroom and bathroom with her sister. Jane Doe Three testified that Villegas “raped [her]” when she was 14 years old. On the morning of the assault, she got up early and went to the bathroom to get ready for school. Villegas knocked on the door, entered the bathroom, and hugged her from behind which was “normal.” However, Villegas started massaging Jane Doe Three‘s crotch. She felt uncomfortable and tried to move but Villegas persisted. Villegas told Jane Doe Three to ” ‘wet [her]self.’ ” He then put his hand down her pants under her underwear and “massag[ed] harder,” ultimately penetrating her vagina with his finger. According to Jane Doe Three, it was painful. She cried and attempted to end the assault by falling to the bathroom floor. Jane Doe Three told him to stop multiple times, but he continued what he was doing for what seemed like a long time.
Villegas next picked Jane Doe Three up and placed her on the toilet. He pulled down her pajama pants and underwear and performed oral sex on her by licking her vagina for what seemed to her to be a long time. When Jane Doe Three continued to cry, he told her to shut up. According to Jane Doe Three, Villegas told her “he was showing [her] what one day [she] couldn‘t let a boy do to” her.
Thereafter, Villegas pulled down his own pants and underwear, crouched over Jane Doe Three on the toilet, and inserted his penis in her vagina, thrusting his hips back and forth. Jane Doe Three felt physically “numb,” and
After that day, on two separate occasions when Villegas was drunk, he entered her bedroom and asked her to follow him into the bathroom so he could “show [her] something.” She refused to comply but was scared. On those nights, she locked her bedroom door and barricaded it with a table to make sure Villegas could not enter. Jane Doe Three testified that, as a result of the abuse, she felt depressed, had PTSD, and couldn‘t “really think because [she was] constantly scared that [she] might get hurt.” She tried to take her own life “a few” times.
Jane Doe Three first disclosed the abuse to her mother, although she was not sure when. Jane Doe Three disclosed the abuse to her fiancé, J.O., on the day the police arrested Villegas for molesting Jane Does One and Two. As Jane Doe Three explained: “We wanted to know why he got arrested, so we looked up the charges. And [J.O.] asked me if I thought that my dad was capable of doing anything of that sort and I told him yes. And [J.O.] said why and I said because it happened to me.”
ii. Testimony of J.O.
J.O., Jane Doe Three‘s fiancé, testified that, when Jane Doe Three disclosed the abuse to him, “[s]he had a complete emotional breakdown” and was “hysterically crying.” J.O. called the police that same day, May 23, 2019.
iii. Villegas‘s Second Interrogation
On May 24, 2019, Detective Berrera interviewed Jane Doe Three regarding her sexual abuse allegations. Detectives Dodd and Barrera then questioned Villegas a second time with respect to the allegations made by Jane Doe Three. A recording of the interrogation was played for the jury. As discussed further below, Villegas eventually admitted that he had made a single mistake and that everything Jane Doe Three said was true.
On September 21, 2021, the jury found Villegas guilty on all counts and found true all special allegations. The prosecutor recommended a determinate sentence of two years plus an indeterminate term of 225 years to life. At the sentencing hearing on December 16, 2021, the prosecutor read a victim impact statement from the family of Jane Does One and Two. Jane Doe Three and her sister also addressed the court. After argument, the trial court largely adopted the prosecution‘s sentencing recommendation. Specifically, with respect to the counts relating to Jane Doe One, the court ordered three consecutive terms of 25 years to life (counts one, two, and three) and one concurrent term of 25 years to life (count four). Counts five and six involving Jane Doe Two were both sentenced to consecutive terms of 25 years to life. With respect to count seven, the court ordered the mid-term of two years to be served consecutively. Finally, concluding that counts eight through ten relating to Jane Doe Three constituted separate and distinct acts, the court imposed three additional consecutive sentences of 25 years to life. The court also found multiple acts in aggravation, imposing a total term of 2 years plus 200 years to life.
The court additionally imposed fines and fees, including a fine of $4,800 pursuant to
This appeal followed.
II. DISCUSSION
A. Admissibility of Portion of Second Custodial Interrogation
Villegas was arrested on May 22, 2019, after police spoke with Jane Does One and Two. Later that day, he agreed to speak with two detectives after being advised of and waiving his Miranda rights. Two days later, on May 24, the detectives interviewed Villegas a second time with respect to the new allegations made by Jane Doe Three. Villegas was readvised of his Miranda rights, again agreed to speak with the detectives and proceeded to speak at length. Villegas argues on appeal that all of his convictions should be reversed because the police violated Miranda by subsequently refusing to
1. Additional Background
During his second custodial interrogation, Villegas began by repeatedly asserting that he did not remember anything that had happened with Jane Doe Three in the bathroom when she was 14. He then switched tacks, asking the detectives if they had spoken to Jane Doe Three or if they were lying. One of the detectives responded: “She‘s not lying? Did this happen?” At that point, Villegas acknowledged that it was a single mistake. The following colloquy then took place, which Villegas now claims was a repeated invocation of his right to remain silent:
“[Detective]: We only want the truth.
“[Villegas]: Well that was just one mistake, I won‘t say anything else. It was a mistake and—whatever she says, I won‘t say more things anymore.
“[Detective]: (Unintelligible) ain‘t say anything else, it was an error. So uh that—that—everything they said is the truth?
“[Villegas]: Well s—she—she—she has to tell what—what she feels, let her vent. Supposedly, um, to tell her truth. I will simply say that it was a mistake that—that was made once and . . .
“[Detective]: And what—what was the mistake?
“[Villegas]: Uh . . .
“[Detective]: Because you don‘t know what she told us.
“[Villegas]: Mm-hm. I don‘t know. I simply don‘t know. I will tell you that it was a mistake and that‘s it.
“[Detective]: And what was a mistake?
“[Villegas]: That‘s the mistake that you‘re telling me, to accept that it was a mistake, that it happened once. I‘ve already accepted it and that‘s the only thing I‘ll say.”
2. Legal Framework and Standard of Review
“If a defendant invokes his [or her] Miranda rights, questioning must cease.” (People v. Sanchez (2019) 7 Cal.5th 14, 49 (Sanchez).) “However, when, as in this case, a defendant has waived his [or her] Miranda rights and agreed to talk with police, any subsequent invocation of the right to counsel or the right to remain silent must be unequivocal and unambiguous.” (Ibid., citing Berghuis v. Thompkins (2010) 560 U.S. 370, 381 (Berghuis); accord, People v. Henderson (2020) 9 Cal.5th 1013, 1022 [ambiguous or equivocal references are not sufficient].) Such an admittedly rigid and prophylactic approach is required in this context because “after a suspect makes a valid waiver of the Miranda rights, the need for effective law enforcement weighs in favor of a bright-line rule that allows officers to continue questioning unless the suspect clearly invokes the right to counsel or right to silence.” (People v. Nelson (2012) 53 Cal.4th 367, 377 (Nelson); accord, People v. Ramirez (2022) 13 Cal.5th 997, 1104 (Ramirez).) ” ‘A requirement of an unambiguous invocation of Miranda rights results in an objective inquiry that “avoid[s] difficulties of proof and . . . provide[s] guidance to officers” on how to proceed in the face of ambiguity. [Citation.] If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused‘s unclear intent and face the consequences of suppression “if they guess wrong.” ’ ” (People v. Tom (2014) 59 Cal.4th 1210, 1225, quoting Berghuis, at pp. 381–382.)
The test is thus whether the invocation was “articulated sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be an invocation of such rights.” (Nelson, supra, 53 Cal.4th at p. 380.) “[T]he question of ambiguity in an asserted invocation must include a consideration of the communicative aspect of the invocation—what would a listener understand to be the defendant‘s meaning.” (People v. Williams (2010) 49 Cal.4th 405, 428 (Williams).) The prosecution bears the burden of proof by a preponderance of the evidence to show the statements were admissible. (Sanchez, supra, 7 Cal.5th at p. 48.)
On review, ” ‘we accept the trial court‘s determination of disputed facts if supported by substantial evidence, but we independently decide
As for Villegas‘s assertion of defense counsel‘s ineffectiveness, it is well settled that, to prevail on an ineffective assistance of counsel claim under either federal or state law, a defendant must show that counsel‘s representation fell below an objective standard of reasonableness and that counsel‘s deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel‘s failings, the result would have been more favorable to the defendant. (People v. Waidla (2000) 22 Cal.4th 690, 718, citing Strickland v. Washington (1984) 466 U.S. 668, 687–696.) “[A] court need not determine whether counsel‘s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel‘s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” (Strickland, supra, 466 U.S. at p. 697; accord, In re Cox (2003) 30 Cal.4th 974, 1019–1020.) Under a prejudice analysis, “[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, at p. 686.) “The likelihood of a different result must be substantial, not just conceivable. (Harrington v. Richter (2011) 562 U.S. 86, 112.) Thus, “[s]urmounting Strickland‘s high bar is never an easy task.” (Richter, at p. 105.)
3. Villegas has Forfeited his Miranda Claim
As the Attorney General correctly points out—and as Villegas implicitly concedes—defense counsel in this case failed to seek to exclude Villegas‘s confession on the basis that he invoked his right to remain silent after a valid Miranda waiver. Rather, defense counsel sought to exclude both interrogations in their entirety based on certain mistranslations of the Miranda warnings from English to Spanish. The trial court rejected this argument, and, on appeal, Villegas concedes “the initial express Miranda waivers obtained at the outset of his two interviews were sufficient as determined by the trial court.”
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: . . . [¶] . . . [t]here appears of record an objection to or a motion
4. No Ineffective Assistance of Counsel
Villegas contends his repeated statements that he did not want to say anything else about the incident with Jane Doe Three were unequivocal assertions of his right to remain silent under Miranda, and thus all questioning should have ceased. He asserts that his attorney was therefore prejudicially ineffective in failing to raise this purported Miranda violation in the trial court and move to exclude the latter portion of his second interrogation at trial. We disagree. Based upon the record and context of the colloquy, there was no Miranda violation and thus there is no substantial likelihood the result in this case would have been more favorable to Villegas had defense counsel raised the claim.
As stated above, a defendant who has waived his or her Miranda rights, as Villegas did here, “must make a ‘clear assertion’ of the right to silence or counsel before officers are required to cease questioning.” (Ramirez, supra, 13 Cal.5th at p. 1104.) Our high court has held that ” ’ [a] defendant has not invoked his or her right to silence when the defendant‘s statements were merely expressions of passing frustration or animosity toward the officers.’ ” (Williams, supra, 49 Cal.4th at p. 433; see e.g., id. at p. 434 [the defendant‘s statement ” ‘I don‘t want to talk about it’ ” was an expression of frustration with the officer‘s failure to accept his “repeated insistence that he was not acquainted with the victim as proof that he had not encountered her on the night of the crime, rather than an unambiguous invocation of the right to remain silent“]; see also Nelson, supra, 53 Cal.4th at p. 383 [the defendant‘s statement that he did not care who might be caught for the murder ” ‘as long as you guys leave me alone’ ” was an expression of frustration rather than an invocation of the right to silence].)
In addition, statements akin to ” ‘[t]hat‘s my story, and I‘ll stick with it’ ” have been deemed insufficiently clear to invoke a defendant‘s right to silence under Miranda. (Ramirez, at pp. 1104–1105; see, e.g., id. at p. 1104 [“Viewed in context, a reasonable officer would have understood defendant‘s statement[—” ‘I don‘t have nothing else to say to you guys’ “—] to mean that he had nothing to add to his claims of innocence, not that he was invoking his right to silence.“]; People v. Martinez (2010) 47 Cal.4th 911, 944 [defendant was not invoking right to silence when he said ” ‘[t]hat‘s all I can tell you,’ ” after being confronted with inconsistencies in his story and being asked why the victim would make a false accusation]; In re Joe R. (1980) 27 Cal.3d 496, 515–516 [defendant‘s statement ” ‘that‘s all I have got to say’ ” was not invocation of right to silence where the defendant made the comment immediately after the officer confronted him with adverse evidence and challenged his veracity].)
In line with this precedent, we conclude here that Villegas‘s statements during the second interrogation—“I won‘t say anything else,” “I won‘t say more things anymore,” “I will tell you that it was a mistake and that‘s it,” and “that‘s the only thing I‘ll say” —were neither unambiguous nor unequivocal invocations of his right to remain silent. Rather, after repeatedly asserting that he did not remember anything that had happened with Jane Doe Three in the bathroom when she was 14, Villegas admitted he had made a single mistake. He also admitted he did not know exactly what Jane Doe Three had told them, yet the detectives kept asking him for more specific information regarding what had happened. A reasonable officer in this situation would conclude that Villegas‘s comments reflected frustration with the continued questioning because he did not want to admit to things his daughter had disclosed and was simply sticking with his story that he made a “mistake.” As this did not amount to a clear invocation of his Miranda rights, Villegas‘s claim for ineffective assistance of counsel fails.2
Villegas next claims that his sentence of 25 years to life with respect to each of counts eight through ten in this case violate due process as articulated in People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo) because they were pleaded as subject to One Strike allegations based on multiple victims and terms of 15 years to life pursuant to
1. Additional Background
As to each of counts eight through ten in this case, both the original information and the first amended information alleged a special allegation pursuant to “PC 667.61(b)/(e).” Specifically, each special allegation stated that, as to Villegas, “the following special circumstances apply: (e)(4) The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim.” Both pleadings also included a summary chart of charges and punishments, indicating that for the special allegations as to counts one through six (under
The jury subsequently found Villegas guilty on all counts. As to each of counts eight through ten, the jury additionally found true that Jane Doe Three was a minor 14 years of age or older and that Villegas was convicted of a qualifying offense against more than one victim within the meaning of
In its sentencing brief, the People suggested for the first time that the trial court impose consecutive sentences of 25 years to life for each of
2. Legal Framework
i. Due Process Notice Requirements
“Both the Sixth Amendment of the federal Constitution and the due process guarantees of the state and federal Constitutions require that a criminal defendant receive notice of the charges adequate to give a meaningful opportunity to defend against them.” (People v. Seaton (2001) 26 Cal.4th 598, 640.) In addition, “[a] defendant has a due process right to fair notice of the allegations that will be invoked to increase the punishment for his or her crimes.” (People v. Houston (2012) 54 Cal.4th 1186, 1227, citing Mancebo, supra, 27 Cal.4th at p. 747.) “Under modern pleading procedures, notice of the particular circumstances of an alleged crime is provided by the evidence presented . . . at the preliminary examination, not by a factually detailed information.” (People v. Jennings (1991) 53 Cal.3d 334, 358.) However, “a defendant has a cognizable due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for [his or her] crimes.” (Mancebo, supra, 27 Cal.4th at pp. 747–748; accord, People v. Anderson (2020) 9 Cal.5th 946, 953 (Anderson), quoting Mancebo.)
ii. The One Strike law.
The One Strike law (
Accordingly,
The One Strike law goes on to explain: ” If only the minimum number of circumstances specified in subdivision (d) or (e) that are required for the punishment provided in subdivision (a), (b), (j), (l), or (m) to apply have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision (a), (b), (j), (l), or (m) whichever is greater, rather than being used to impose the punishment authorized under any other law, unless another law provides for a greater penalty or the punishment under another law can be imposed in addition to the punishment provided by this section.” (
In Mancebo, supra, 27 Cal.4th 735, the defendant was sentenced to two indeterminate 25-year-to-life terms under the One Strike law for committing forcible rape against one victim under the specified circumstances of gun use and kidnapping, and forcible sodomy against the other victim under the specified circumstances of gun use and tying or binding. (Id. at p. 738; see
The Supreme Court agreed with the appellate court that imposition of the
In reaching this conclusion, the Supreme Court rejected the argument that multiple victim circumstances had effectively been pled because the information included charges for two qualifying offenses against separate victims which were found true by the jury. (Mancebo, supra, 27 Cal.4th at pp. 744–745.) The Supreme Court reasoned: “[N]o factual allegation in the information or pleading in the statutory language informed defendant that if he was convicted of the underlying charged offenses, the court would consider his multiple convictions as a basis for One Strike sentencing . . . . Thus, the pleading was inadequate because it failed to put defendant on notice that the People, for the first time at sentencing, would seek to use the multiple victim circumstance to secure indeterminate One Strike terms under
Because it was clear to the Court that “the prosecution understood the One Strike law‘s express pleading requirements and knew how to comply with them,” the Supreme Court concluded “that the People‘s failure to include a multiple-victim-circumstance allegation must be deemed a discretionary charging decision.” (Mancebo, supra, 27 Cal.4th at p. 749.) Moreover, under such circumstances, “the doctrines of waiver and estoppel, rather than harmless error, apply.” (Ibid., citing People v. Hernandez (1988) 46 Cal.3d 194, 208–209 [“It is unnecessary to . . . engage in a harmless-error analysis when [the] defendant‘s due process right to notice has been so completely violated“].) Finally, the Supreme Court underscored the importance of the pleading requirements, noting: “[I]n many instances a defendant‘s decision whether to plea bargain or go to trial will turn on the extent of [his or her] exposure to a lengthy prison term.” (Mancebo, at p. 752.)
In Jimenez, supra, 35 Cal.App.5th 373, the Sixth District interpreted Mancebo‘s holding under circumstances similar to those presented in this case. The information in Jimenez enhanced many of the charged sexual offenses with allegations under the One Strike law that Jimenez had committed a qualifying offense against more than one victim ” ‘within the meaning of
In doing so, the Sixth District rejected the Attorney General‘s argument that subdivision (o) of
Two other appellate courts have rejected the Jimenez approach. In In re Vaquera (2019) 39 Cal.App.5th 233 (Vaquera), review granted November 26, 2019, S258376, the information had alleged as to each of the two qualifying sexual offenses that, “pursuant to
On remand, the Fourth District acknowledged that, pursuant to the One Strike law, “[i]f a designated sex offense is committed against multiple victims, the default sentence is 15 years to life. (
alleged, so long as the accusatory pleading apprises the defendant of the potential for the enhanced penalty and alleges every fact and circumstance necessary to establish its applicability.” (Vaquera, at p. 239section 667.61, subdivision (b), which specifically references, in its introductory clause, section 667.61, subdivision (j), as an exception to its provisions.” (Vaquera, at pp. 241–242.)
The Vaquera court distinguished Mancebo since Vaquera‘s information properly alleged the two multiple victim aggravating circumstances under their numerical subdivision,
In People v. Zaldana (2019) 43 Cal.App.5th 527 (Zaldana), review granted March 18, 2020, S259731, the relevant information alleged that five counts of qualifying sexual offenses were committed against more than one victim “within the meaning of
3. Due Process Was Violated in this Case
As to each of counts eight through ten in this case, the operative information alleged that Jane Doe Three was a minor victim over the age of 14. In addition, counts eight through ten were enhanced with allegations pursuant to
It is true that the proceedings in Mancebo are factually distinguishable from the situation here (as well as in Vaquera and Zaldana) because the information in Mancebo did not plead a multiple victim circumstance under
We do not see this interpretation as inconsistent with the language in Mancebo indicating that reference to specific numerical subdivisions of
Thus, the Mancebo Court concluded that the defendant‘s due process rights in that case had been violated “not because [he] was never afforded notice that he was being charged with crimes against two victims; he obviously was, and not because defendant was never afforded notice that the One Strike law would apply to his case; again, he was. Sentencing error occurred because defendant was given notice that gun use would be used as one of the two pleaded and minimally required circumstances in support of the One Strike terms, whereafter, at sentencing, the trial court used the unpled circumstance of multiple victims to support the One Strike terms, and further imposed two 10-year
Given our analysis, we obviously reject the argument proffered in Vaquera and Zaldana that the cross-reference to the exceptions in subdivision (b) of section 667.6—in those cases subdivision (j) and in this case subdivision (m)—place a defendant on fair notice of his or her potential exposure of 25 years to life. An accusatory pleading “must adequately inform the defendant as to how the prosecution will seek to exercise its discretion.” (Anderson, supra, 9 Cal.5th at p. 957.) An information that cites generally to subdivision (b) of
We thus also necessarily reject the conclusion in Zaldana that a prosecutor has no discretion in this context when choosing how to plead One Strike allegations. (See Mancebo, supra, 27 Cal.4th at p. 747 [“the People‘s failure to include a multiple-victim-circumstance allegation must be deemed a
In sum, the prosecution in this case clearly chose to exercise its charging discretion by pleading a general enhancement under
C. Non-Economic Restitution
Villegas next argues that certain noneconomic damages awarded in this case must be stricken as unauthorized. First, he asserts that the $500,000 granted to Jane Doe Three was improper because the authorizing statute—
1. Noneconomic Damages for Jane Doe Three
As mentioned above, the trial court awarded $500,000 in noneconomic damages to Jane Doe Three at sentencing. Villegas argues that this award was unauthorized because the restitution statute provides for awards based on “[n]oneconomic losses, including, but not limited to, psychological harm, for felony violations of Section 288, 288.5, or 288.7.” (
i. Statutory Interpretation of Subdivision (f)(3)(F)
Several appellate courts have interpreted
McCarthy argued on appeal that the restitution award was improper because he was not convicted under section 288 as the plain language of
The McCarthy court finally turned to the question of whether, under the rule it had articulated, the minor victim was entitled to noneconomic restitution. It noted that “[s]ection 288 requires the specific intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of the defendant or of the child, whereas a conviction for violating
arousing, appealing to, or gratifying the lust, passions, or sexual desires of” himself or the victim. (
ii. Jane Doe Three is Entitled to Noneconomic Restitution
As stated above, the crimes of which Villegas was convicted involving Jane Doe Three did not include a violation of section 288, which provides
For instance, as described above, Villegas was convicted in count nine of felony sexual penetration by force of a minor 14 years of age or older (
2. Awards to the Mothers of the Does
Villegas next challenges the award of $25,000 to each of L.R. and G.V. (the mothers of the three Does) as beyond the scope of section 1202.4., claiming that the statute only allows restitution for noneconomic losses for the actual victims of the enumerated offenses, not their relatives or other individuals. Arguing the dissent by Justice Banke, Villegas asks us to reconsider our conclusion in People v. Montiel (2019) 35 Cal.App.5th 312 (Montiel). We decline to do so. While we appreciate the points
We thus follow Montiel and see no error in the award of noneconomic damages to the two mothers in this case.
D. Fines and Fees
Finally, both Villegas and the Attorney General raise issues regarding the fines and fees imposed in this case, each conceding that the other is correct. We agree with both parties. We will therefore reduce the sex offender fine imposed pursuant to
Moreover, once a sex offender fine is imposed pursuant to
Additional mandatory penalty assessments based on imposition of the sex offender fine that were not assessed by the trial court include: (1) $860 (
Thus, on remand, the trial court should impose $12,320 in additional penalty assessments as set forth herein.
III. DISPOSITION
Villegas‘s sentences with respect to counts eight, nine, and ten are each reduced from 25 years to life to 15 years to life. The sex offender fine that was imposed pursuant to
GETTY, J.*
I CONCUR:
MARGULIES, ACTING P.J.
A164370P
* Judge of the Solano County Superior Court, assigned by the Chief Justice pursuant to
CONCURRING AND DISSENTING OPINION OF BANKE, J.
I concur in the majority opinion in all respects but one, the award of restitution for noneconomic losses to the mothers of the Does. For the reasons stated in my dissent in People v. Montiel (2019) 35 Cal.App.5th 312, 327–361 (dis. opn. of Banke, J.), I remain of the view that in amending
I concur and dissent:
_________________________
Banke, J.
Superior Court of Napa County
Honorable Scott R.L. Young
Counsel:
Eric R. Larson under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Amit Kurlekar, Deputy Attorney General, Victoria Ratnikova, Deputy Attorney General for Plaintiff and Respondent.