Filed 7/15/26 P. v. Barragan CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D086163
Plaintiff and Respondent, (Super. Ct. No. RIF2102555)
v.
JORGE ADRIAN SANCHEZ
BARRAGAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Samah Shouka, Judge. Reversed and remanded for resentencing.
Theresa Osterman Stevenson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Assistant Attorney General, Andrew
Mestman and James M. Toohey, Deputy Attorneys General, for Plaintiff and
Respondent.
I. INTRODUCTION
A jury found defendant Jorge Adrian Sanchez Barragan guilty of
several sex offenses against adult victim S.C. and, in unrelated incidents,
against minor victim J.W. The trial court sentenced defendant under the
One Strike law (Pen. Code,1 § 667.61)2 to an aggregate prison term of six
years, plus 200 years to life, plus life without the possibility of parole
(LWOP). Defendant raises three issues on appeal.
First, defendant challenges the sufficiency of the evidence supporting
his conviction for rape in concert (§ 264.1) of S.C., arguing there is
insufficient evidence that he or his accomplice used force during the
commission of the offense. We disagree. S.C. testified that defendant
removed her clothes while defendant’s accomplice pulled her from the front
seat of her car to the back seat of her car, where the accomplice raped her.
This use of force is sufficient to sustain defendant’s conviction for rape in
concert.
Second, defendant contends the trial court erred under section 654 by
imposing concurrent sentences on three separate convictions arising from the
same single act. (See § 654 [prohibiting multiple punishments for a single
act]; People v. Duff (2010) 50 Cal.4th 787, 796 (Duff) [“ ‘the imposition of
concurrent sentences is precluded by section 654’ ”].) Defendant argues we
should remand for the trial court to exercise its sentencing discretion in
determining which sentence to impose and which duplicative sentences to
stay. The People agree the trial court erred in imposing concurrent sentences
but contend remand is unnecessary because the trial court is presumed to
1 Statutory references are to the Penal Code unless otherwise indicated.
2 The One Strike law “provides an alternative, harsher sentencing
scheme for enumerated forcible sex offenses . . . that are committed under
specified circumstances.” (People v. Williams (2024) 17 Cal.5th 99, 117
(Williams).)
2
have understood and exercised the scope of its sentencing discretion under
section 654. We agree with the parties that the trial court erred in imposing
concurrent sentences. We also agree with defendant that remand is
necessary for the trial court to exercise informed sentencing discretion under
section 654.
Finally, defendant contends his sentence is cruel and unusual under
the United States and California constitutions. Because he did not raise this
fact-specific argument in the trial court, he has forfeited the issue for appeal.
Defendant may raise this issue during resentencing on remand.
Accordingly, we reverse the judgment and remand for the limited
purpose of allowing the trial court to exercise its sentencing discretion under
section 654 as further specified in this opinion, and to fully resentence
defendant.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background3
From 2017 to 2019, defendant stayed with his friend Maria M. and her
family (her husband Joseph, their four minor children,4 and some of Maria’s
adult brothers) in their Jurupa Valley home. Defendant met Maria when she
worked at a convenience store where defendant was a regular customer. In
3 Because defendant’s appeal implicates the substantial evidence
standard of review, we summarize the evidence and state the relevant facts
in the light most favorable to the judgment. (People v. Jennings (2010)
50 Cal.4th 616, 638 (Jennings).)
4 At the time of trial in 2024, J.W. was 15 years old, and the other
children were 13, 11, and 9.
3
connection with separate incidents that occurred while defendant was living
with Maria’s family, defendant was charged with sexually assaulting Maria’s
adult friend, S.C., and sexually abusing Maria’s minor daughter, J.W.
1. Prosecution Evidence
a. Sexual Assault of S.C.
In 2018, S.C. was living with her “best friend” and “on and off”
boyfriend, Micah, as well as his parents. S.C. began working at the same
convenience store as Maria, and the two women became friends. Through
Maria, S.C. met and became friends with defendant and with Maria’s brother
A.M. A.M. was “best friends” with defendant. A.M. and S.C. were
occasionally intimate with each other.
On the afternoon of January 31, 2019, when S.C. was 22 years old, she
had an argument with Micah. S.C. drove from Micah’s house to Maria’s
house and texted defendant to let him know she was on the way.
S.C. testified she may have engaged in sexual relations with A.M. upon
arriving at Maria’s house.5 S.C then greeted defendant and sat with him in
her car as she “vented” about her argument with Micah. S.C. sat in the
passenger seat and defendant sat in the driver’s seat.
After S.C. and defendant talked in her car for about 15 to 20 minutes,
another of Maria’s friends, codefendant Angel Fuentes,6 drove up and parked
5 A.M. testified that S.C. suggested they be intimate but that he went to
take a shower first because he had just arrived home from work.
6 Defendant and Fuentes were tried jointly before separate juries.
Fuentes’s jury heard evidence only regarding S.C. Fuentes is not a party to
this appeal.
4
next to S.C.’s car. Fuentes was friends with defendant but had only met S.C.
once at the convenience store. S.C. chatted car-to-car with Fuentes and
eventually invited him into her car. Fuentes accepted and got in the rear
driver’s side seat behind defendant, bringing along a bottle of vodka. The
group talked and S.C. and Fuentes drank vodka. S.C. testified she did not
recall what they talked about, but she knew it was not sexual.
S.C.—a self-described “lightweight” who only drank alcohol once
before—drank about seven sips of the vodka on an empty stomach and
started “blacking out.”7 When S.C. regained consciousness, one of her pant
legs was off and the other was pulled down; defendant was orally copulating
her and digitally penetrating her vagina; and Fuentes was touching her
breasts and kissing her neck. She had not given either man permission to do
this. S.C. blacked out again.
When S.C. woke up a second time, her head was “slouched over” her
car’s center console and Fuentes was thrusting his penis in and out of her
mouth from the backseat. S.C. blacked out again.
S.C. regained consciousness a third time to find she was “being
pulled . . . under [her] arms by [Fuentes] into the backseat” as defendant
pulled her pants off the rest of the way and removed her boots. S.C. told the
7 S.C. testified that each sip was less than a shot of alcohol. Maria
testified that when she left for work the night of the incident she saw S.C.
drinking vodka and thought S.C. “was drunk.” A.M. testified he saw S.C.
“downing th[e] stuff” straight from the bottle and that he previously told an
investigator that S.C. appeared drunk. By the time of trial, A.M. felt that
S.C. had “disrespected” him and used him for emotional support and that he
then believed S.C. appeared drunk but was faking it.
5
men, “No,” but did not recall whether the men could hear it.8 S.C. blacked
out again and woke up “like a dead weight” on top of Fuentes with his penis
penetrating her vagina and defendant’s finger penetrating her anus. S.C.
told the men “no” again but they did not stop. S.C. heard Fuentes ask
defendant if he wanted to switch places. When S.C. said she was not on birth
control, Fuentes withdrew his penis from her vagina and masturbated until
he ejaculated.
S.C. “came to” after being “thrown off of [Fuentes],” completely naked.
She heard the men say that somebody was coming. Fuentes ran out of the
car and drove off in his own car with “tires screeching.” S.C. heard A.M.
argue with defendant and punch him. A.M. then checked on S.C., who told
him, “I think I was raped.”9 S.C. blacked out again and later woke up, fully
clothed, with A.M. driving her in her car to Micah’s home.10
When S.C. got home, she told Micah she had been raped. Micah
encouraged her to call 911 and then took her to the sheriff’s station to file a
report.
8 S.C. acknowledged on cross-examination that she previously told an
investigator, “I remember saying ‘no’ but not loud. I remember saying it
quiet, probably quietly.” S.C. also told a different investigator, “And I
remember telling them. I don’t know if it was loud, but it was loud enough
for me and loud enough for me to know that at least I said ‘no.’ ”
9 A.M. testified that although S.C. told him she had been raped, S.C. was
“a liar” and he was “100 percent sure she didn’t get raped.” When asked if he
thought the incident was “[S.C.]’s fault,” A.M. testified: “I don’t think. I
know.”
10 A.M. told an investigator about a month after the incident that he put
S.C.’s clothes back on her because “she actually couldn’t do it on her own
because she was kind of like wasted and passed out in the car.” At trial, A.M.
reiterated his claim that S.C. was merely pretending to be drunk.
6
From the station, Micah took S.C. to a hospital for a forensic sexual
assault exam. A sexual assault nurse examined S.C. and collected multiple
swabs for DNA analysis. The nurse observed no redness or abrasions in
S.C.’s vaginal area but observed two abrasions in S.C.’s “perianal area, which
is the area outside of the rectum.”
The day after the incident, S.C. quit her job at the convenience store
where she met defendant and Maria.
A criminalist with the State Department of Justice testified about her
comparison of the swabs collected from S.C. and DNA reference samples
collected from defendant and Fuentes. As to defendant, the DNA analysis
showed “very strong support” for his inclusion as a contributor to DNA
collected from S.C.’s perianal area; “limited support,” which is “not sufficient
to . . . determine inclusion or exclusion of a person,” as to DNA collected from
S.C.’s right breast; and exclusion of defendant as a contributor to DNA
collected from S.C.’s vaginal area and left breast.11
b. Sexual Abuse of J.W.
As noted, between 2017 and 2019, defendant lived with Maria and her
family. Maria and her husband Joseph shared one bedroom in their two-
bedroom residence; their four children shared the other bedroom; and
defendant slept on a couch in the living room. Defendant babysat the
children when Maria and Joseph were away—in addition, Maria worked two
jobs and was often gone with her boyfriend, while Joseph worked long shifts
11 As to Fuentes, there was “very strong support” for his inclusion as a
contributor as to the vaginal and breast swabs, and “moderate support” for
his inclusion as to the perianal swab.
7
and on some weekends.12 Defendant cleaned the house, cooked for the
children, and took them to and from school. In 2019, Maria moved in with
her boyfriend; and Joseph, the children, and defendant moved to a different
house in Riverside where defendant continued to babysit.
In February 2021, Maria confronted J.W.—then 12 years old—after
Maria saw text messages from defendant to J.W. calling J.W. “baby” and
telling her, “I love you.” J.W. disclosed that defendant had been “touching
her for a long time” and had been showing her X-rated videos. Maria later
found such videos in J.W.’s cellphone history. Maria reported the abuse to
law enforcement.
Sheriff’s investigators had J.W. conduct a pretext call with defendant.
For most of the call defendant denied any wrongdoing, but when J.W.
threatened to tell her parents if defendant did not admit it, defendant
eventually apologized and acknowledged he “touched” J.W.
At trial, J.W. testified about defendant engaging in five specific sexual
abuse events. The first incident occurred about one month before J.W.’s
ninth birthday. While J.W.’s parents were grocery shopping, J.W. was
watching television on the couch. Defendant sat next to her and began
touching her thigh. J.W. told him to stop, but defendant “just kept going”
and “ended up putting his fingers inside of” J.W.’s vagina.
The second incident occurred a few weeks later, after J.W. turned nine
years old. Defendant called J.W. into the parents’ bedroom, shut and locked
the door, and told her to undress and lie on the bed. After J.W. complied,
defendant tied her hands to the wooden bed frame with a ribbon or string.
12 Maria and her husband experienced relationship challenges. During
these times Maria spent time with a man she considered a boyfriend.
8
Defendant opened J.W.’s legs and inserted his penis into her vagina. J.W.
tried to push him off but was unable to. When defendant was finished, he
untied J.W. and walked away. J.W. felt pain and saw blood on the bed. J.W.
told defendant she was going to tell her dad “because [she] didn’t like what
[defendant] was doing.” Defendant responded that if J.W. did that, defendant
“was going to do it to [her] little sister,” who was then about seven years old.
Defendant repeated this threat “almost every time that he touched [J.W.]”
The third incident occurred about two months after the second one.
J.W. woke up on the couch and defendant grabbed her hand and moved it up
and down his penis. Defendant then told J.W. to put her mouth on his penis.
When J.W. said she did not want to, defendant told her, “It’s fine. Just do it.”
When J.W. complied, defendant used his hands to move her head up and
down.
The fourth incident occurred in late 2018 or early 2019, when J.W. was
about 10 years old and had just moved to her father’s house in Riverside.
Defendant summoned J.W. to the garage and offered her a tablet computer if
she let him touch her. J.W. agreed. J.W. testified about a bed in the garage
and that she briefly laid down on it before getting back up. Defendant then
“hugg[ed]” J.W. from behind and put his fingers between her labia and
rubbed her clitoris for about 15 minutes.
The final incident occurred a few months later. Defendant grabbed
J.W.’s hand and moved it up and down his penis until “white stuff started
coming out.”
In addition to these specific incidents, J.W. testified more generally
that defendant touched her vagina about twice a week from the time she was
eight until she was 10.
9
A professor of psychological science testified as a prosecution expert
regarding child sexual abuse accommodation syndrome. She identified a
series of responses—secrecy, fear, helplessness, accommodation, and delayed
disclosure—to dispel misconceptions adults may have about how children
disclose sexual abuse. The expert offered her opinions in the abstract; she
did not meet J.W. or know any details about the case.
2. Defense Evidence
a. Sexual Assault of S.C.
Defendant testified on his own behalf. On the afternoon of the incident,
defendant and S.C. were smoking methamphetamine together in her car
when Fuentes arrived with a bottle of vodka and got in the back seat.13 S.C.
and Fuentes drank vodka but S.C.’s demeanor never changed, and she never
lost consciousness.
S.C. began discussing sexual matters and stated “she was in the mood
for sex.” S.C. talked about body piercings, lifted up her shirt to reveal a
nipple piercing, and placed defendant’s hand on her breast. Defendant “took
that as her lead” and began touching S.C.’s genital area on the outside of her
pants. When S.C. did not resist, defendant partially pulled down her pants
and orally copulated her. S.C. assisted in pulling down her pants and did not
resist; rather, she “caress[ed]” and “fondl[ed]” defendant’s head and pulled
him toward her.
S.C. leaned her upper body to the backseat and began orally copulating
Fuentes. Defendant digitally penetrated S.C.’s vagina as she did this.
Defendant touched “around” S.C.’s anus but did not penetrate it. He
13 S.C. testified she did not use any drugs on the day of the incident.
10
surmised his long fingernails may have accidentally caused the abrasions she
sustained to her perianal area.
S.C.’s pants were around her knees and her top was still on. She
“started taking off her clothes” without help from defendant or Fuentes. S.C.
eventually removed all her clothes and boots.
S.C. had trouble climbing over the center console to get in the backseat,
so Fuentes helped her. Fuentes did not pull S.C. and defendant did not push
her. Once in the backseat, S.C. straddled Fuentes and had intercourse with
him. S.C. affectionately touched Fuentes’s neck and told him “he had very
pretty eyes.”
After S.C. and Fuentes finished, A.M. came out of the house, opened
the back door of S.C.’s car, and asked what was going on. Fuentes got in his
car and left. Later that night, defendant told A.M. that S.C. engaged in
consensual sexual activity in the car.14 A.M. told defendant that S.C. said
she was raped. A.M. punched defendant later that night.
Defendant testified that his sexual contact with S.C. was consensual
and that she was a conscious, willing participant. Defendant admitted he
had several prior felony convictions but maintained he was testifying
truthfully.
Fuentes also testified on his own behalf. He testified similarly to
defendant about the events in S.C.’s car. Fuentes maintained that all the
sexual activity was consensual; S.C. was not too drunk to consent; S.C.
undressed herself and voluntarily climbed into the backseat without Fuentes
pulling her; and that she was never unconscious. Fuentes admitted that he
14 Defendant acknowledged on cross-examination that he lied to an
investigator about this conversation with A.M.
11
initially lied to investigators about the incident by denying that he had any
sexual contact with S.C.
b. Sexual Abuse of J.W.
Defendant denied J.W.’s allegations. He explained generally that there
would not have been any opportunity to be alone with J.W. because someone
else was always around. Regarding the incident in the parents’ bedroom,
defendant testified the parents’ bed had no headboard to which to tie a ribbon
or string. Regarding the touching incident in the garage, defendant disputed
J.W.’s claim that there was a bed in the garage.
Defendant attempted to explain away his admissions during the
pretext call. First, he testified he was intimidated by J.W.’s threat to tell her
parents because her father “is a very big guy” who owns guns and has many
gang-member relatives. Second, “after she just kept persisting, persisting,”
defendant “felt like it would be easier” to “tell her what she wanted to hear.”
Finally, defendant explained he took the call while at work and needed to get
off the phone to avoid getting in trouble. Defendant also claimed that his
apology during the call was for having to end the call, not for abusing J.W.
B. Procedural Background
1. Charges
The People charged defendant with five offenses regarding S.C. and
12 offenses as to J.W.
As to S.C., the People charged defendant with: (1) rape of an
intoxicated person (§ 261, subd. (a)(3); count 1); (2) oral copulation of an
intoxicated person (§ 287, subd. (i); count 2); (3) vaginal penetration of an
intoxicated person by a foreign object (§ 289, subd. (e); count 3); (4) anal
12
penetration of an intoxicated person by a foreign object (§ 289, subd. (e);
count 4); and (5) forcible rape in concert (§ 264.1, subd. (a); count 18).15
As to J.W., the People charged defendant with: (1) sexual intercourse
with a child 10 years of age or younger (§ 288.7, subd. (a); count 6);
(2) aggravated sexual assault (rape) of a child under 14 (§ 269, subd. (a)(1);
count 7); (3) aggravated sexual assault (oral copulation) of a child under 14
(§ 269, subd. (a)(4); count 8); (4) three counts of aggravated sexual assault
(penetration with a foreign object) of a child under 14 (§ 269, subd. (a)(5);
counts 9, 10, and 11); (5) three counts of lewd and lascivious acts with force or
fear on a child under 14 (§ 288, subd. (b)(1); counts 12, 13, and 14); and
(6) three counts of lewd and lascivious acts on a child under 14 (§ 288,
subd. (a); counts 15, 16, and 17).
The People asserted special allegations under the One Strike law that
there were multiple victims (§ 667.61, subd. (e)(4)); that defendant engaged in
tying and binding of a person (id., subd. (e)(5)); and that a victim was under
age 14 (id., subd. (j)(1), (2)). The People further alleged as aggravating
circumstances as to both victims that they were particularly vulnerable (Cal.
Rules of Court, rule 4.421(a)(3)) and that defendant abused a position of trust
(id., rule 4.421(a)(11)).
15 Fuentes was also charged with (1) rape of an intoxicated person (§ 261,
subd. (a)(3); count 1); (2) oral copulation of an intoxicated person (§ 287,
subd. (i); count 5); and (3) forcible rape in concert (§ 264.1, subd. (a);
count 18).
13
2. Verdicts and Findings
With one exception—finding defendant guilty of assault as a lesser
included offense of rape of an intoxicated person—the jury convicted
defendant of the charged counts and found true the One Strike allegations.16
In a bifurcated bench trial on the aggravating circumstances, the trial
court found that both victims were particularly vulnerable and that
defendant violated a position of trust as to J.W. but not as to S.C.
3. Sentencing
The trial court imposed an aggregate term of six years, plus 200 years
to life, plus LWOP. This sentence was calculated as follows:
Count 1: Six months concurrent to count 2.
Count 2: Six years (midterm).
Count 3: Two years (one-third the midterm) concurrent to count 2.
Count 4: Two years (one-third the midterm) concurrent to count 2.
Count 6: 25 years to life concurrent to count 12.
Count 7: 15 years to life concurrent to count 12.
Counts 8–11: 15 years to life per count.
Count 12: LWOP.
Counts 13–17: 25 years to life per count.
Count 18: 15 years to life
16 Fuentes’s jury found him guilty on all charges. The trial court
sentenced him to five years in prison.
14
III. DISCUSSION
A. Substantial Evidence Supports Defendant’s Conviction for
Rape in Concert
Defendant challenges the sufficiency of the evidence supporting his
conviction for rape in concert. He argues that because he did not have
intercourse with S.C., “his conviction under the theory of being an aider and
abettor to [Fuentes’s] act . . . should not be sustained since there is no
substantial evidence to prove the use of force, which is a necessary element
of . . . rape in concert” under section 264.1. Under the applicable substantive
law and standard of review, we conclude substantial evidence supports this
conviction.
1. Background
The People charged defendant in count 18 with rape in concert in
violation of section 264.1. At the close of the prosecution case, defendant
moved under section 1118.1 to dismiss this count for lack of evidence of force.
Defendant argued that S.C.’s testimony that the defendants “repositioned her
body in order to perform sex acts” was insufficient because S.C. “suffered no
great bodily injury” and the force was no “greater than necessary to
accomplish the alleged rape and oral copulation.” The People opposed the
motion.
The trial court denied the motion to dismiss. Citing People v. Thomas
(2017) 15 Cal.App.5th 1063 (Thomas), the court found S.C.’s testimony “that
she said no as she was being pulled by Fuentes towards the back and
Sanchez was taking off her pants” to be sufficient to establish the force
element of rape in concert. (See id. at p. 1071 [holding that the force element
of rape is satisfied by “force used to accomplish ‘the penetration and the
15
physical movement and positioning of [the victim’s] body in accomplishing
the act’ ”].)
The trial court instructed the jury regarding rape in concert (CALCRIM
No. 1001), forcible rape (CALCRIM No. 1000), and aiding and abetting
(CALCRIM No. 401).
In closing argument, the prosecutor argued defendant was guilty of
rape in concert on the theory that he “aided and abetted Mr. Fuentes who
personally committed a forcible rape.” The prosecutor urged the jury to
“[p]ay attention to what the actual law is for this count, because force is just
enough force to overcome [S.C.]’s will.” The prosecutor maintained this
standard was satisfied because “we heard that [S.C.] said no” and that she
regained consciousness “as she [was] being pulled to the back, as her clothes
are being taken off.”
The jury found defendant guilty of rape in concert.
2. Relevant Legal Principles
“Under section 264.1, subdivision (a), a defendant commits the crime of
rape in concert ‘when the defendant, voluntarily acting in concert with
another person, by force or violence and against the will of the victim,
committed an act described in Section 261 . . . , either personally or by aiding
and abetting the other person.’ ” (People v. Middleton (2023) 91 Cal.App.5th
749, 756 (Middleton), quoting § 264.1, subd. (a), italics omitted; see § 261,
subd. (a)(2) [“Rape is an act of sexual intercourse [¶] . . . [¶] accomplished
against a person’s will by means of force [or] violence”].) “To find a defendant
guilty of rape in concert on an aiding and abetting theory, the jury must find,
beyond a reasonable doubt, (1) a perpetrator committed a rape by force or
violence and against the will of the victim; (2) the defendant knew the
16
perpetrator intended to commit the rape; (3) before or during the commission
of the rape, the defendant intended to aid and abet the perpetrator in
committing the crime; and (4) the defendant’s words or conduct did in fact aid
and abet the perpetrator’s commission of the rape.” (Middleton, at p. 775.)
“There is no special amount of force required to prove forcible rape.
The term force as used in the forcible rape statute has ‘a common usage
meaning, rather than a specialized legal definition.’ ” (People v. Torres (2024)
107 Cal.App.5th 513, 531 (Torres), quoting People v. Griffin (2004) 33 Cal.4th
1015, 1024 (Griffin).) To establish force for purposes of rape in concert, “ ‘the
prosecution need only show the defendant used physical force of a degree
sufficient to support a finding that the act of sexual intercourse was against
the will of the [victim].’ ” (Griffin, at pp. 1023–1024 [discussing forcible rape
under section 261]; see People v. Mom (2000) 80 Cal.App.4th 1217, 1219 [the
force necessary to commit rape in concert under section 264.1 “is no greater
than the force necessary to commit forcible rape within the meaning of . . .
section 261, subdivision (a)(2)”], disapproved on another ground in Griffin, at
p. 1028.)
“[I]n a forcible rape prosecution the jury determines whether the use of
force served to overcome the will of the victim to thwart or resist the attack,
not whether the use of such force physically facilitated sexual penetration or
prevented the victim from physically resisting her attacker. . . . [E]ven
conduct which might normally attend sexual intercourse, when engaged in
with force sufficient to overcome the victim’s will, can support a forcible rape
conviction.” (Griffin, supra, 33 Cal.4th at p. 1027.) “Force includes efforts to
move and to position the victim’s body.” (People v. Aguilar (2019)
41 Cal.App.5th 1023, 1026 (Aguilar); see Thomas, supra, 15 Cal.App.5th at
p. 1071 [force “includes the force used to accomplish ‘the penetration and the
17
physical movement and positioning of [the victim’s] body in accomplishing
the act’ ”]; accord, Torres, supra, 107 Cal.App.5th at p. 531.)
“ ‘In reviewing a challenge to the sufficiency of the evidence, we do not
determine the facts ourselves. Rather, we “examine the whole record in the
light most favorable to the judgment to determine whether it discloses
substantial evidence—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.” [Citations.] We presume in support of the
judgment the existence of every fact the trier could reasonably deduce from
the evidence.’ ” (People v. Houston (2012) 54 Cal.4th 1186, 1215; see Jackson
v. Virginia (1979) 443 U.S. 307, 319; People v. Staten (2000) 24 Cal.4th 434,
460 [“An identical standard applies under the California [and U.S.]
Constitution[s].”].) “ ‘Resolution of conflicts and inconsistencies in the
testimony is the exclusive province of the trier of fact. [Citation.] Moreover,
unless the testimony is physically impossible or inherently improbable,
testimony of a single witness is sufficient to support a conviction.’ ” (People v.
Ramirez (2022) 13 Cal.5th 997, 1118; see Jennings, supra, 50 Cal.4th at
p. 638 [“We neither reweigh the evidence nor reevaluate the credibility of
witnesses.”].) “If the circumstances reasonably justify the findings made by
the trier of fact, reversal of the judgment is not warranted simply because the
circumstances might also reasonably be reconciled with a contrary finding.”
(Jennings, at p. 639.)
3. Analysis
Defendant challenges only the force element of rape in concert. On the
record before us, we conclude substantial evidence supports this conviction.
18
S.C. testified that as she regained consciousness, Fuentes was pulling
her to the backseat and defendant was removing her clothes. By saying “no,”
S.C. established that their conduct was against her will. By persisting in
pulling S.C. to the backseat and removing her clothes, the defendants used
sufficient force to overcome S.C.’s will. (See Thomas, supra, 15 Cal.App.5th
at p. 1072 [“A reasonable jury could find . . . that defendant used sufficient
force to overcome [the victim’s] will by leading her by the hand into the
bathroom . . . [and] positioning her body on the sink before digitally
penetrating her.”]; Aguilar, supra, 41 Cal.App.5th at p. 1026; Torres, supra,
107 Cal.App.5th at p. 531.) Although it was Fuentes who used the force that
repositioned S.C., defendant’s assistance in removing her clothes supports his
conviction on an aiding and abetting theory, which defendant does not
otherwise contest. (See, e.g., Middleton, supra, 91 Cal.App.5th at pp. 759–
761, 775–776 [substantial evidence supported female defendant’s rape in
concert conviction based on aiding and abetting where she led the victim to a
room where a male accomplice forcibly raped the victim].)
Defendant argues in his opening brief on appeal that the force element
was not met because the analogous context of forcible lewd act on a child
requires force that is “substantially different from or substantially greater
than [the force needed] to accomplish the . . . act itself.” (People v. Jimenez
(2019) 35 Cal.App.5th 373, 391.) In his reply brief, however, defendant
acknowledges that the courts have held this standard does not apply to
forcible rape. (See Griffin, supra, 33 Cal.4th at p. 1027.)
Defendant also reargues the strength of the prosecution evidence by
noting conflicting evidence suggesting S.C. may have undressed herself, said
“no” quietly, or willingly participated in the intercourse with Fuentes.
Defendant also cites his and Fuentes’s own self-serving testimony. These
19
arguments ignore the substantial evidence review standards under which
“[w]e accept all evidence supporting the judgment, disregard contrary
evidence, and draw reasonable inferences in favor of the verdict.” (Aguilar,
supra, 41 Cal.App.5th at p. 1026.) Under this standard, defendant has not
overcome his “enormous burden.” (Ibid.)
B. We Must Remand for Resentencing with the Trial Court’s
Informed Discretion Under Section 654
Three of defendant’s convictions—sexual intercourse with a child 10
years or younger (§ 288.7, subd. (a); count 6), aggravated sexual assault
(rape) of a child under 14 years old (§ 269, subd. (a)(1); count 7), and lewd and
lascivious acts with force or fear on a child under 14 years old (§ 288, subd.
(b)(1); count 12)—were based on the same single act of defendant having
sexual intercourse with J.W. while she was tied to her parents’ bed. The trial
court sentenced defendant under the One Strike law to LWOP on count 12
and imposed concurrent sentences on count 6 (25 years to life) and count 7
(15 years to life).
Defendant contends the trial court’s imposition of concurrent sentences
on counts 6 and 7 violates section 654’s prohibition on multiple punishments
for a single act. Defendant maintains the trial court should have stayed
punishment on two of the three convictions arising from the single act and
that we should remand for resentencing because the trial court
misunderstood the scope of its sentencing discretion; that is, that the court
mistakenly believed it had no discretion to stay the LWOP sentence on
count 12 and to impose one of the shorter sentences on counts 6 or 7.
The People agree the concurrent sentences on counts 6 and 7 should
have been stayed as duplicative under section 654 and that the trial court
20
had the discretion to select which of the three duplicative punishments to
impose and which to stay. The People disagree, however, that remand for
resentencing is necessary because the People maintain that the trial court is
presumed to have understood the scope of this discretion.
We agree with the parties that the trial court erred by imposing
concurrent sentences and that the court had the discretion under section 654
to select which duplicative punishment to impose and which to stay. On the
record here, however, we conclude the trial court was unaware it had this
discretion. Accordingly, we remand for resentencing.
1. Background
During closing argument, the prosecutor repeatedly confirmed that
counts 6, 7, and 12 were “duplicative” and all arose from the same act of
defendant tying J.W. to her parents’ bed and having sexual intercourse with
her. As noted, the jury found defendant guilty on all three counts.
At the sentencing hearing, the trial court first addressed the
convictions relating to S.C. After stating it had “considered . . . section 654,”
the court asked the prosecutor for her view on “whether . . . the Court has
discretion to run the time as it relates to S.C. 654 to each other.” The
prosecutor responded that “the court does have discretion” because “[t]here’s
no mandatory consecutive sentencing with her except . . . that [c]ount 18
[rape in concert] is a forcible sex crime, which makes it mandatory
consecutive.” The court imposed concurrent sentences on counts 2, 3, and 4
pertaining to S.C.
The trial court then “move[d] on to the more serious counts” involving
J.W. The court opined that it “has no discretion here in terms of imposing
sentence because there’s only one option if state prison is found to be
21
appropriate and probation is denied.” The court concluded probation was
“not an option,” and “[e]ven if it were,” the court “would not grant probation
because the situation as it relates to J.W.” was “terrible and horrific” and the
court “personally agree[d] with [the jury’s] verdict.”
The trial court and counsel initially agreed that the court had to impose
consecutive sentences on counts 6 and 7 because they involved sexual assault
on a child. (See § 269 [“[t]he court shall impose a consecutive sentence for”
certain sex offenses against children under 14 “if the crimes involve separate
victims or involve the same victim on separate occasions”].) But after the
prosecutor confirmed that counts 6, 7, and 12 all arose from the same act, and
that count 12 required an LWOP sentence, the court concluded that its “only
option . . . to run any time concurrent would be counts 6 and 7 to [c]ount 12.”
Accordingly, the trial court imposed sentence on counts 6, 7, and 12 as
follows: “[L]et’s start with [c]ount 12 then.· That [c]ount is punishable by
only one option pursuant to [section] 667.61[, subdivision] (j)(1), which is the
indeterminate period of life in prison without the possibility of parole because
of the binding allegation. So the [c]ourt will impose that. Concurrent to that,
I will impose [c]ount 6[,] 25 to life in state prison. Concurrent to that, I will
impose [c]ount 7[,] 15 years to life. That’s the only options.”
Later in the sentencing hearing, the court revisited its sentence on
these counts: “As to [c]ount 12, the [c]ourt must impose life without the
possibility of parole. [¶] . . . [¶] So just to reiterate so that it’s as clear as
mud[.] [F]or [c]ount 12, [the] [c]ourt must impose life without the possibility
of parole. I’m running [c]ount[s] 6 and 7 concurrent with [c]ount 12.”
After announcing defendant’s aggregate sentence, the court concluded
with the following comments:
22
“It doesn’t give me any joy to impose such a harsh
consequence for anyone, even in horrific cases like this.
“[Defendant], I know where this all stemmed from and that
was from drug use. I think without . . . that lifestyle choice[ ]
you would not be in this position, but I believe (J.W.). The
jury believed her. I respect what the jury does. But I want
to say I believed her as well. And those horrific acts have
lifetime consequences on the people, both on the victim and
of course on the perpetrators. It is a harsh consequence.
“I try to run whatever counts I could concurrent. But the
amount of time, that’s all determined by the Legislature—
the legislation. I tried to do the best I can, um, with going
through all of the different factors. So it’s not joyous for
anyone, but it’s the conclusion of a really horrific set of facts.
So wish you the best to everyone.”
2. Section 654 Authorizes a Stay of One Strike Sentences
Defendant’s sentencing challenge involves the interplay between
different Penal Code sentencing provisions: section 654, which generally
prohibits double punishment for a single act; and the One Strike law, which
“is an alternative sentencing scheme that applies when the prosecution
pleads and proves specific aggravating circumstances in connection with
certain sex offenses.” (In re Vaquera (2024) 15 Cal.5th 706, 712, fn. omitted.)
Section 654, subdivision (a) states: “An act or omission that is
punishable in different ways by different provisions of law may be punished
under either of such provisions, but in no case shall the act or omission be
punished under more than one provision.” “[W]hen a court determines that a
conviction falls within the meaning of section 654, it is necessary to impose
sentence but to stay the execution of the duplicative sentence.” (Duff, supra,
50 Cal.4th at p. 796; People v. Mani (2022) 74 Cal.App.5th 343, 380 (Mani)
[“The trial court is required to impose judgment on each count, which
23
involves selecting a term, and then staying execution of the duplicative
sentence, the stay to become permanent upon defendant’s service of the
portion of the sentence not stayed.”].) “[T]he imposition of concurrent
sentences is precluded by section 654 [citations] because [under such a
sentence] the defendant is deemed to be subjected to the term of both
sentences although they are served simultaneously.” (Duff, at p. 796.)
Before it was amended effective January 1, 2022, section 654 required
the sentencing court “to impose the sentence that ‘provides for the longest
potential term of imprisonment’ and stay execution of the other term.”
(Mani, supra, 74 Cal.App.5th at p. 379; see Stats. 1977, ch. 165, § 11, p. 644
[adding the longest-sentence requirement].) As amended, “section 654 now
provides the trial court with discretion to impose and execute the sentence of
either term, which could result in the trial court imposing and executing the
shorter sentence rather than the longer sentence.” (Mani, at p. 379.)
The One Strike law (§ 667.61) “provides an alternative, harsher
sentencing scheme for enumerated forcible sex offenses—including rape, rape
or sexual penetration in concert, lewd or lascivious acts, forcible sexual
penetration, sodomy, oral copulation, or continuous sexual abuse of a child—
that are committed under specified circumstances.” (Williams, supra,
17 Cal.5th at p. 117.) “In general, the length of a One Strike term depends on
the number and nature of applicable aggravating circumstances found by the
trier of fact.” (Id. at p. 118)
One provision of the One Strike law, subdivision (h) of section 667.61
(section 667.61(h)), states: “Notwithstanding any other law, probation shall
not be granted to, nor shall the execution or imposition of sentence be
suspended for, a person who is subject to punishment under this section.”
(Italics added; we will sometimes refer to the italicized clause as “the
24
suspension clause.”) There is a split of authority over whether this provision
precludes a sentencing court from staying execution of a One Strike sentence
under section 654.
In People v. Caparaz (2022) 80 Cal.App.5th 669 (Caparaz), the court
held that section 667.61(h) prevails over section 654 and precludes a trial
court from staying execution of a One Strike sentence. (Caparaz, at p. 690.)
The Caparaz defendant argued on appeal that “section 667.61(h) means that
a trial court is prohibited from granting probation for a One Strike law
offense and nothing more.” (Caparaz, at p. 689.) The appellate court rejected
this argument, reasoning (1) the “plain meaning” of section 667.61(h)’s
suspension clause precludes a stay under section 654 because “a stay is a
type of suspension; thus, a prohibition against suspending a sentence
necessarily prohibits the stay of a sentence”; (2) a contrary reading would
render the suspension clause “meaningless” “surplusage”; (3) section
667.61(h)’s introductory clause stating that it applies “[n]otwithstanding any
other law” indicates the Legislature intended it to prevail over other statutes;
and (4) “[t]his reading . . . serves the purpose of the One Strike law, which is
‘to increase the penalties imposed on defendants who commit certain sexual
offenses under specified circumstances.’ ” (Caparaz, at pp. 689–690.)
The court in People v. Govan (2023) 91 Cal.App.5th 1015 (Govan)
disagreed with Caparaz. (Govan, at p. 1032.) The Govan court acknowledged
that the plain meaning of “suspend[ ]” in section 667.61(h) conceivably
encompasses a stay under section 654 because “a stay under section 654 has
the effect of suspending a sentence until a specific contingency, that is, until
the sentence imposed on another count is served.” (Govan, at p. 1032.) But
the Govan court rejected a plain meaning interpretation because section
25
667.61(h) uses “precise language” that differs from the “language . . . and
purpose” of section 654.
Addressing the different “language” (Govan, supra, 91 Cal.App.5th at
p. 1032), the Govan court explained that the phrase “nor shall execution or
imposition of sentence be suspended” in section 667.61(h) is “terminology . . .
unique to a grant of probation.” (Govan, at p. 1033.) That is, the Legislature
was referring to suspension of execution or imposition of sentence only as a
means of implementing a grant of probation and not as to stays of sentence,
more generally. (Ibid.)
Regarding the different “purpose[s]” (Govan, supra, 91 Cal.App.5th at
p. 1032) of sections 667.61(h) and 654, the Govan court explained that
although the purpose of the One Strike law, generally, “ ‘is to increase the
punishment for forcible sex offenses’ ” (Govan, at p. 1034), its “legislative
history . . . shows the intent of the Legislature in enacting section 667.61,
subdivision (h), was to prohibit trial courts from placing one strike offenders
on probation, not to extend the section’s reach to bar other forms of
suspended sentences” (Govan, at p. 1033). For example, while “one purpose”
of the bill adding the One Strike law “was to add more sex offenses to the list
of sex offenses ineligible for probation,” the same legislative history “contains
no discussion of whether sentences for sex offenders may be stayed under
section 654.” (Govan, at p. 1034, citing Sen. Com. on Judiciary, Analysis of
Sen. Bill No. 1X 26 (1993–1994 Reg. Sess.) as amended May 4, 1994, p. 7
[“Existing law prohibits probation for a person who is convicted of [certain
specified sex offenses]. This bill would add to that list . . . .” (italics added)].)
By contrast, Govan observed that our Supreme Court has “ ‘often said
that the purpose of section 654 “is to ensure that a defendant’s punishment
will be commensurate with his culpability.” ’ ” (Govan, supra, 91 Cal.App.5th
26
at p. 1034, quoting People v. Latimer (1993) 5 Cal.4th 1203, 1211; accord,
People v. Hicks (2017) 17 Cal.App.5th 496, 513–514 (Hicks) [“The purpose of
section 654 is to ensure that a defendant’s punishment is commensurate with
his culpability and that he is not punished more than once for what is
essentially one criminal act.”].)
The Govan court also found its analysis consistent with the legislative
history of related statutes. (Govan, supra, 91 Cal.App.5th at pp. 1034–1035.)
For example, the same bill that enacted the One Strike law also amended
section 1203.066, “which, with limited exceptions, prohibits a grant of
probation to individuals convicted of lewd or lascivious acts on a child (§ 288)
and continuous sexual abuse of a child (§ 288.5).” (Govan, at p. 1034.) The
amendment to section 1203.066 added the italicized language in the following
passage: “ ‘Notwithstanding Section 1203 or any other law, probation shall
not be granted to, nor shall the execution or imposition of sentence be
suspended for, nor shall a finding bringing the defendant within the
provisions of this section be stricken pursuant to Section 1385 for’ any person
convicted of violations of section 288 or 288.5.” (Govan, at pp. 1034–1035,
fn. omitted.) As Govan observed, while committee analysis of this bill
explained that the purpose of this clause was to “ ‘specify that the prohibition
on granting probation takes precedence over any other law or
exception[ ]’ [Citation], . . . nothing in the legislative history reflects an
intent in amending section 1203.066, subdivision (a), to prohibit application
of section 654 to sentences imposed under that section.” (Govan, at p. 1035.)
Similarly, the Govan court noted that the Legislature amended section
667.61(h) in 2006 to conform it to section 1203.066 “by adding the prefatory
language . . . , ‘Notwithstanding any other provision of law.’ ” (Govan, supra,
91 Cal.App.5th at p. 1035.) “In light of this amendment of section 667.61,
27
subdivision (h), to track the language of section 1203.066, subdivision (a),”
the Govan court found “it . . . reasonable to read the 2006 amendment to
section 667.61, subdivision (h), consistent with the 1994 legislative history of
section 1203.066, subdivision (a).” That “both sections now prohibit a trial
court from granting probation to specified sex offenders—but not from
staying the sentence under section 654—regardless of what any other law
might provide.” (Govan, at p. 1035.)
The parties here agree that Govan has the better reasoned view of the
interplay between section 667.61(h) and section 654. We also agree and offer
a few additional observations to support the conclusion.
“ ‘ “When we interpret a statute, ‘[o]ur fundamental task . . . is to
determine the Legislature’s intent so as to effectuate the law’s purpose. We
first examine the statutory language, giving it a plain and commonsense
meaning. . . . If the language is clear, courts must generally follow its plain
meaning unless a literal interpretation would result in absurd consequences
the Legislature did not intend. If the statutory language permits more than
one reasonable interpretation, courts may consider other aids, such as the
statute’s purpose, legislative history, and public policy.’ [Citation.]
‘Furthermore, we consider portions of a statute in the context of the entire
statute and the statutory scheme of which it is a part, giving significance to
every word, phrase, sentence, and part of an act in pursuance of the
legislative purpose.’ ” ’ ” (People v. Reynoza (2024) 15 Cal.5th 982, 989–990
(Reynoza).)
Beginning with the statutory text, we recognize that the plain meaning
of “suspend[ ]” in section 667.61(h) conceivably includes a stay under
section 654. (See Caparaz, supra, 80 Cal.App.5th at p. 689.) But applying
that plain meaning would likely lead to absurd results the Legislature did
28
not intend. (See Reynoza, supra, 15 Cal.5th at p. 989 [“courts must generally
follow [a statute’s] plain meaning unless a literal interpretation would result
in absurd consequences the Legislature did not intend”].) Here, for example,
construing section 667.61(h)’s suspension clause to preclude a section 654
stay would lead to the absurd result of imposing three separate One Strike
sentences—LWOP, 25 to life, and 15 to life—for a single act. This is precisely
the type of result the Legislature sought to avoid by enacting section 654.
(See Hicks, supra, 17 Cal.App.5th at pp. 513–514.)
Moreover, courts have recognized that the suspension clause’s language
has a technical meaning “unique to a grant of probation.” (Govan, supra,
91 Cal.App.5th at p. 1033; see, e.g., People v. Superior Court (Himmelsbach)
(1986) 186 Cal.App.3d 524, 536, fn. 8 (Himmelsbach) [“the words ‘suspension
of execution’ are employed in conjunction with a grant of probation” and
“have developed into terms of art”], disapproved on another ground by People
v. Norrell (1996) 13 Cal.4th 1, 7, fn. 3; People v. Borynack (2015)
238 Cal.App.4th 958, 965 [“the phrase ‘suspend execution of a sentence’ is a
term of art”].) Indeed, “[a]s used in [the Penal] [C]ode, ‘probation’ means the
suspension of the imposition or execution of a sentence and the order of
conditional and revocable release in the community under the supervision of
a probation officer.” (§ 1203, subd. (a), italics added.) “ ‘[W]hen the
Legislature uses a term of art, a court construing that use must assume that
the Legislature was aware of the ramifications of its choice of language.’ ”
(Ruiz v. Podolsky (2010) 50 Cal.4th 838, 850, fn. 3; see § 7, subd. (c)
[“[T]echnical words and phrases” in the Penal Code “shall be construed
according to that peculiar and appropriate meaning.”].) We therefore
conclude the Legislature intended for section 667.61(h)’s suspension clause to
have its technical, probation related meaning.
29
This interpretation is consistent with how some courts have interpreted
similarly worded statutes. (See People v. Gonzalez (2017) 2 Cal.5th 1138,
1141 [“ ‘[W]e consider the language of the entire scheme and related statutes,
harmonizing the terms when possible.’ ”].) Many related criminal statutes
with related purposes contain language identical to section 667.61(h).17
Courts have not historically interpreted similar statutory provisions as
precluding a stay under section 654. (See, e.g., People v. Barela (1983)
145 Cal.App.3d 152, 160 (Barela) [holding section 1203.06 does not preclude a
17 See §§ 1203, subd. (k) [“Probation shall not be granted to, nor shall the
execution of, or imposition of sentence be suspended for,” a person convicted
of a violent or serious felony who was on probation at the time of the current
offense]; 1203.06, subd. (a) [“Notwithstanding any other law, probation shall
not be granted to, nor shall the execution or imposition of sentence be
suspended for,” a person who used firearms during the commission of
enumerated serious and violent felonies]; 1203.065, subd. (a)
[“Notwithstanding any other law, probation shall not be granted to, nor shall
the execution or imposition of sentence be suspended for,” persons convicted
of enumerated sex offenses); 1203.066, subd. (a) [“Notwithstanding Section
1203 or any other law, probation shall not be granted to, nor shall the
execution or imposition of sentence be suspended for,” persons convicted of
enumerated sex offenses]; 1203.075, subd. (a) [“Notwithstanding any other
law, probation shall not be granted to, nor shall the execution or imposition of
sentence be suspended for,” persons who personally inflicted great bodily
injury upon another during the commission of certain offenses]; 1203.08,
subd. (a) [“Notwithstanding any other law, probation shall not be granted to,
nor shall the execution or imposition of sentence be suspended for,” persons
convicted of designated felonies who were previously convicted of at least two
prior designated felonies within 10 years]; 1203.09, subd. (a)
[“Notwithstanding any other law, probation shall not be granted to, nor shall
the execution or imposition of sentence be suspended for,” persons who
committed designated crimes against elderly or disabled victims]; 12022.53,
subd. (g) [“Notwithstanding any other law, probation shall not be granted to,
nor shall the execution or imposition of sentence be suspended for,” persons
found to have used firearms during the commission of designated crimes].)
30
stay under section 654]; Himmelsbach, supra, 186 Cal.App.3d at p. 536, fn. 8
[rejecting as “unpersuasive” the contention that a prohibition on “ ‘suspension
of execution’ of sentence” under repealed section 12311 “precluded a stay
under section 654”]; but see People v. Hutchins (2001) 90 Cal.App.4th 1308,
1314 [holding that section 654 did not require a stay of a firearm
enhancement under section 12022.53 because the plain language of the
enhancement statute indicated it was mandatory and applied in addition to
and notwithstanding any other law, and because imposing an enhancement
“is not punishing appellant twice for the same act; rather, the law is
punishing him once each for the components of that act which make it so
dangerous and antisocial”].)
In addition, the Legislature enacted section 667.61 after it enacted
many of the similarly worded statutes and courts had construed them as
allowing section 654 stays of duplicative sentences. For example, section
1203.06 was enacted in 1975 (see Stats. 1975, ch. 1004, § 2, p. 2357) and
construed as not precluding a section 654 stay in 1983 (see Barela, supra,
145 Cal.App.3d at p. 160). We presume that when the Legislature enacted
section 667.61 in 1994 (see Stats. 1993–1994, 1st Ex. Sess., ch. 14, § 1) and
amended it in 2006 (see Stats. 2006, ch. 337, § 33), the Legislature was aware
of how courts had interpreted identical statutory language and that the
Legislature intended for that interpretation to also apply to section 667.61
(see People v. Seumanu (2015) 61 Cal.4th 1293, 1367 [citing “the rule of
statutory construction that ‘[w]here . . . legislation has been judicially
construed and a subsequent statute on the same or an analogous subject uses
identical or substantially similar language, we may presume that the
Legislature intended the same construction, unless a contrary intent clearly
appears’ ”]).
31
Indeed, nothing in section 667.61’s legislative history suggests the
Legislature intended a contrary meaning. As the Govan court observed,
while section 667.61’s legislative history “made clear” that “one purpose of
the bill was to add more sex offenses to the list of sex offenses ineligible for
probation,” the legislative history “contains no discussion of whether
sentences for sex offenders may be stayed under section 654.” (Govan, supra,
91 Cal.App.5th at p. 1034, citing Sen. Com. on Judiciary, Analysis of Sen. Bill
No. 1X 26 (1993–1994 Reg. Sess.) as amended May 4, 1994, p. 7.) As the
Govan court noted, this legislative history is consistent with the legislative
history of related section 1203.066. (Govan, at p. 1035 [explaining that
language in section 1203.066 similar to that in section 667.61(h) “was
included to ensure probation would not be granted to specified sex offenders
regardless of what other laws provided”].)
Another relevant aspect of the statutory landscape that existed when
the Legislature enacted the One Strike law is that the version of section 654
then in effect gave trial courts the discretion to stay the longest sentence in
favor of imposing and executing a shorter one—as the statute again provides
now. (See Stats. 1977, ch. 165, § 11, p. 644;18 Stats. 1997, ch. 410, § 1
[amending section 654 to require punishment under “the provision that
provides for the longest potential term of imprisonment”]; Stats. 2021,
ch. 441, § 1 [removing the requirement].) By originally enacting in the One
Strike law statutory language that courts had already interpreted as
18 In 1994, section 654 then provided in relevant part: “An act or
omission which is made punishable in different ways by different provisions
of this code may be punished under either of such provisions, but in no case
can it be punished under more than one . . . .”
32
allowing for a stay under section 654, the Legislature presumably also
understood that courts would have discretion under section 654 to stay the
longest duplicative sentence in favor of imposing and executing a shorter one.
Finally, we are satisfied that interpreting section 667.61 as allowing a
stay under section 654 is consistent with the One Strike law’s legislative
purpose in imposing lengthy prison sentences for certain sex offenses.
(Reynoza, supra, 15 Cal.5th at p. 989 [“ ‘ “When we interpret a statute, ‘[o]ur
fundamental task . . . is to determine the Legislature’s intent so as to
effectuate the law’s purpose.’ ” ’ ”].) Although interpreting section 667.61 this
way allows for shorter sentences in some circumstances, it does not require it.
Rather, it leaves the decision to the trial court’s sound sentencing discretion.
Our interpretation is also consistent with section 654’s competing
legislative purpose of “ensur[ing] that a defendant’s punishment is
commensurate with his culpability and that he is not punished more than
once for what is essentially one criminal act.” (Hicks, supra, 17 Cal.App.5th
at pp. 513–514.) As noted, were we to interpret section 667.61(h) as
prohibiting a stay of any One Strike sentence, the trial court here would be
required to impose three separate One Strike sentences for a single criminal
act. We do not believe the Legislature contemplated such an absurd result.
Therefore, based on the technical meaning of the statutory text, courts’
interpretations of related statutes enacted before enactment of section
667.61, the statute’s legislative history, and the legislative purposes
underlying sections 667.61 and 654, we conclude section 667.61(h)’s
suspension clause does not preclude a sentencing court from staying a
duplicative One Strike law sentence under section 654 or selecting which
duplicative sentence to impose and which to stay.
33
3. Remand for Resentencing Is Necessary
Having concluded the trial court had the discretion under section 654
to select which of defendant’s One Strike sentences to stay and which to
impose and execute, we must now determine whether the trial court
understood it had that discretion. (People v. Salazar (2023) 15 Cal.5th 416,
424 [when a sentencing court “ ‘is unaware of the scope of its discretionary
powers[,] . . . the appropriate remedy is to remand for resentencing unless the
record “clearly indicate[s]” that the trial court would have reached the same
conclusion ‘even if it had been aware that it had such discretion’ ”].) The
People argue that because both Caparaz and Govan had been decided before
the court sentenced defendant, the trial court is presumed to have understood
the scope of its discretion as clarified in Govan. (See People v. Gutierrez
(2009) 174 Cal.App.4th 515, 527 [“[I]n light of the presumption on a silent
record that the trial court is aware of the applicable law, including statutory
discretion at sentencing, we cannot presume error where the record does not
establish on its face that the trial court misunderstood the scope of that
discretion.”].) The record indicates, however, that the trial court did not
understand the scope of its discretion.
The trial court’s comments during the sentencing hearing suggest that
the court was inclined to impose a shorter aggregate sentence but concluded
it lacked discretion to do so. Regarding the court’s inclination toward
leniency, the court stated that it gave the court no “joy to impose such a
harsh consequence” and that the court tried “to run whatever counts [it]
could concurrent” and “tried to do the best [it] can . . . with going through all
of the different factors.”
But the court also stated it “ha[d] no discretion here in terms of
imposing sentence” as to J.W. (italics added); that the court “must impose
34
[LWOP]” on count 12; and that the court’s “only option” was to sentence
defendant to LWOP on count 12 and to run counts 6 and 7 concurrently—
“That’s the only options.” These statements show that the court did not
understand that section 654 gave the court the discretion to stay the sentence
on count 12 and to instead impose and execute a sentence on count 6 or 7 and
stay execution of the sentences on the remaining counts.
The People point out that the trial court stated during the sentencing
hearing that it had “considered . . . section 654.” The record shows, however,
that the court made this comment regarding the counts involving S.C. As the
court’s comments regarding the counts involving J.W. indicate, the court did
not understand the scope of its discretion under section 654 as to those
counts.
Because the record shows that the trial court misunderstood the scope
of its sentencing discretion and did not clearly indicate that it would have
imposed the same sentence if it had understood the scope of that discretion,
we must remand for resentencing given the extent of the court’s full
discretion under section 654. We express no opinion on how the trial court
should exercise that discretion.
C. Defendant Forfeited His Appellate Claim That His Sentence
Is Cruel and/or Unusual
Defendant contends his sentence is cruel and unusual under the Eighth
Amendment to the United States Constitution and cruel or unusual under
the California Constitution. Defendant acknowledges that “he did not raise
this argument” in the trial court. “A claim that a sentence is cruel or unusual
requires a ‘fact specific’ inquiry and is forfeited if not raised below.” (People v.
Baker (2018) 20 Cal.App.5th 711, 720; see People v. Speight (2014)
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227 Cal.App.4th 1229, 1247 [“A defendant’s failure to contemporaneously
object that his sentence constitutes cruel and unusual punishment forfeits
the claim on appellate review.”].) Because defendant did not object to his
sentence in the trial court, he has forfeited his argument that the sentence
constitutes cruel and/or unusual punishment.
Anticipating a potential forfeiture finding, defendant invites us to
exercise our discretion to nevertheless entertain his challenge. We decline to
do so.
Defendant is free to raise this issue during resentencing on remand.
IV. DISPOSITION
The judgment is reversed and the matter is remanded for the limited
purpose of allowing the trial court to exercise its discretion under section 654
as specified in this opinion and to fully resentence the defendant.
RUBIN, J.
WE CONCUR:
MCCONNELL, P. J.
DATO, J.
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