face="Times New Roman">
face="Times New Roman">P. v. Delena
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">Filed 12/16/13 P. v. Delena
CA4/2
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
face="Times New Roman">
face="Times New Roman">THE PEOPLE,
face="Times New Roman">
face="Times New Roman"> Plaintiff and Respondent,
face="Times New Roman">
face="Times New Roman">v.
face="Times New Roman">
face="Times New Roman">DAVID IGNACIO DELENA, JR.,
face="Times New Roman">
face="Times New Roman"> Defendant and Appellant.
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman"> E056696
face="Times New Roman">
face="Times New Roman"> (Super.Ct.No. FVI1101849)
face="Times New Roman">
face="Times New Roman"> OPINION
face="Times New Roman">
APPEAL
from the Superior Court of San Bernardino
County. Elia V. Pirozzi, Judge. Affirmed with directions.
Steven
A. Torres, under appointment by the Court of Appeal, for Defendant and
Respondent.
Kamala
D. Harris, Attorney General, Julie L.
Garland, Senior Assistant Attorney General, Lilia E. Garcia, and Peter Quon,
Jr., Deputy Attorneys General, for Plaintiff and Appellant.
I
INTRODUCTION
Defendant David Ignacio Delena, Jr., molested
his two stepdaughters. A jury convicted
defendant of two counts of continuous and substantial sexual abuse of a child
under the age of 14 with special allegations for multiple victims. (Pen. Code, §§ 288.5, subd. (a), and 667.61,
subds. (b) and (e).)
consecutive indeterminate prison terms of 15 years to life with the possibility
of parole.
On appeal, defendant seeks to have the case
remanded for resentencing. We affirm the
judgment but remand the matter for resentencing on count 1 and for the court to
exercise its discretion as to whether the sentences should be consecutive.
II
STATEMENT OF
FACTS
face="Times New Roman">A. J.R.’s Testimony
face="Times New Roman">J.R. had two daughters, Z.R., born in March
1993, and R.R. born in September 1995. J.R.
started dating defendant in 2001. J.R.
and defendant eventually married and, in 2008, they divorced.
face="Times New Roman">For about 18 months, from January 2003 to
June 2004, the family lived in an apartment on Bear Valley Road in Apple Valley. Thereafter the family moved in with J.R.’s
parents in Victorville before moving to a home on Tutelo Street
in Apple Valley where they lived for a year or a year and a half between 2004 and
2006. In June or December 2006, the
family returned to the Victorville home for about two years (except for one
month in Silver Lakes) until the marriage ended and J.R. and her daughters moved to Texas. In 2008, defendant began an affair with
another woman. He was frequently absent
from the house and argued with J.R.
face="Times New Roman">In August 2010, while in Texas, Z.R. told her
mother that defendant had sexually molested her and J.R. made a report to the
police in El Paso. Soon after, R.R. told her
mother that defendant had also sexually molested her.
face="Times New Roman">At trial, J.R. identified a handwritten
letter sent in July 2002 from defendant to R.R. in which he stated, “can’t wait
to go home so you can sleep by me and so we can go to McDonald’s or Chuck e.
Cheese or to my house.â€
face="Times New Roman">J.R. testified that defendant played with her
daughters by tackling them to the ground or by wrestling them on the
couch. Reyes remembered an incident
between Z.R. and defendant in which Z.R. was screaming, crying, and dressed
only in an open robe. Z.R. was getting
off a bed, and defendant was standing over her.
Z.R. normally dressed in a robe after showering.
face="Times New Roman">B. Z.R.’s Testimony
face="Times New Roman">Z.R. was 18 years old when she testified at
trial in December 2011. She admitted
that she did not like her mother dating defendant and that she was not close to
her mother at the time. Defendant would
tackle Z.R. and smack her buttocks with frequency. He rubbed against her while she was on the
floor and made her uncomfortable. Other
people were in the room when the roughhousing was happening.
face="Times New Roman">Defendant started sexually touching Z.R. in
the fourth grade when she was 10 years old and living on Bear Valley Road in 2003. Defendant would
touch her breasts, rub against her buttocks, and touch her genitals over her
clothes. It happened every day, more
than 50 times, and for longer periods than others, depending on whether other
people were around. She did not complain
because she was afraid of defendant and did not want to cause trouble in the
family.
face="Times New Roman">Because Z.R. was born in March 1993, she
turned 12 years old in March 2005 and attended 7th grade for the 2005-2006
school year and 8th grade for the 2006-2007 school year. Z.R. specifically remembered three incidents
occurring in 2005 and 2006.
face="Times New Roman">When Z.R. was in the seventh or eighth grade,
the family was living on Tutelo Street
(in 2005 or 2006). On a summer night, Z.R.
and her brothers and sisters were asleep.
When Z.R. awoke, defendant was on top of her and his penis was inside
her vagina. Defendant whispered to her
that he “wanted her†and was moving up and down on her. He did not ejaculate. She did not disclose the incident because she
did not want anyone to be mad at her.
face="Times New Roman">A second incident occurred when they were
living in Victorville (before June or December 2006) and Z.R. was 13 years old
or younger. Z.R. had just finished showering
and was wearing a robe. Defendant pushed
her on the bed, opened her robe, and got on top of her while clothed. She screamed and ran from the room and told her
mother, who was in the shower. Then she
went to the garage to get some clothes from the dryer. Defendant followed her and told her no one
would believe her. A third incident
happened in Victorville when defendant rubbed against her in the hallway after
tackling her to the floor.
face="Times New Roman">Z.R. lived with her aunt, M.R., during the
ninth grade for the 2007-2008 school year.
M.R. testified that Z.R. told her about the shower incident in August
2007. Z.R. said defendant had opened her
robe. Z.R. also disclosed the Apple
Valley incident where defendant had laid on top of her and said he “wanted
her.†Z.R begged M.R not to tell her
mother. M.R. did not think Z.R. was
being molested although she believed defendant’s actions were sexually
inappropriate.
face="Times New Roman">After Z.R. returned from living with her aunt,
defendant never touched her again. Z.R.
told her mother about the molestation in August 2010, when the family was
living in Texas.
face="Times New Roman">C. R.R.’s Testimony
face="Times New Roman">R.R. was 16 years old when she testified. Defendant began touching her sexually after
she turned 12 years old in September 2007 and began menstruating. While they watched television, defendant would
touch her on the inside and outside of her thighs. He would move her out of the way by touching
her thighs or buttocks. When they were
alone and lying down, he would move her shorts and underwear to the side and rub
his penis on her buttocks and genitals. He
would roll her on the side and rub against her from behind. She sometimes felt wet and sticky on her back. R.R. did not tell her mother because she was
scared that defendant would hurt her family.
On another occasion, defendant came into her
room during a party. She pretended to be
asleep and defendant began rubbing her genitals with his penis. Once defendant took her to get ice
cream. Defendant pulled off the road and
lifted her on to the trunk of the car, a Kia, and rubbed his penis on her
genitals. After a couple of minutes, he
pulled her off the car and they left. She
did not know if he ejaculated. Twice
defendant tried to put his fingers in her vagina and R.R. stopped him by saying
she needed to use the bathroom.
face="Times New Roman">The touching occurred more than 60 times
between the ages of 12 and 14. R.R. was
mad at defendant for leaving her mother because she did not want to move to Texas.
face="Times New Roman">After their mother told R.R. that Z.R. had disclosed
defendant touching her, R.R. also told their mother. R.R. had told defendant’s sister and her
cousins about the molestations.
face="Times New Roman">D. Defense Evidence
face="Times New Roman">Defendant’s sisters, Yvonne and Christine,
lived with defendant and the victims at various times. Yvonne watched the girls while defendant and
J.R. were working. Defendant roughhoused
with the girls but Yvonne never saw anything sexual. The children never said anything was wrong. Christine also never saw inappropriate
behavior and R.R. never told her about molestations. Christine had been molested in the past by an
uncle and was very sensitive to the issue and would remember such information.
face="Times New Roman">Maryann I. started dating defendant in 2008. He left J.R. and they moved in together in
November 2008. J.R. once came into the
house, yelling obscenities and threats.
J.R. tried to hit Maryann and threatened to damage her car unless defendant
left with her. Maryann never saw defendant
behave inappropriately with her children.
face="Times New Roman">Detective William Lamb interviewed Z.R. and
her mother in Texas by telephone. Z.R. said the
incident in which defendant penetrated her lasted for 10 to 15 minutes. J.R. said that, during the shower incident,
she entered the room and saw Z.R. sitting on her bed, straightening a towel. J.R. explained the Kia was non-operative and
could not be driven. J.R. had a normal
sexual relationship with defendant.
face="Times New Roman">Detective Julie Brumm also interviewed J.R.
and her daughters. J.R. told Brumm that defendant
did not leave permanently until October 2008.
R.R. claimed that the molestations continued until she was 14 in
September 2009, after defendant had moved out of the house. R.R. said the molestation on the trunk of the
car occurred in October 2008. Again J.R.
told Brumm that the Kia was inoperable.
III
DISCUSSION
face="Times New Roman">The issue on count 1 is whether defendant
committed an offense against Z.R. after September 20, 2006, the date that a
violation of section 288.5 was added to the section 667.61 sentencing
scheme—the One Strike Law—as a qualifying sexual violation. Defendant contends that his 15-years-to-life
prison term, based on his conviction for continuous sexual abuse of Z.R. (§
288.5, subd. (a)) should be stricken as a prohibited ex post facto application
of law because the evidence did not establish he engaged in sexual lewd acts
upon Z.R. after September 20, 2006. Defendant asks that this court reverse his
sentence for count 1 and remand the matter to the trial court for resentencing
under the determinate sentencing scheme of section 288.5.
face="Times New Roman">Defendant does not challenge his life
sentence for count 2, for committing continuous sexual lewd acts upon R.R.,
based on the court’s application of the same September 2006 amendment to the
section 667.61 sentencing scheme. He
argues, however, the court did not exercise its discretion in sentencing
defendant consecutively. The People
agree with that contention.
face="Times New Roman">A. Count 1—Ex Post Facto Law
face="Times New Roman">State and federal constitutional law
proscribes ex post facto laws and protects against the later adoption of a
statute that inflicts greater punishment than the law in effect at the time of
the commission of the crime. (
that the charged offense occurred on or after the effective date of the statute
under which defendant will be punished.
(Hiscox, at p. 256.) An ex post facto violation resulting in an
unauthorized sentence may be raised on appeal even if the defendant failed to
object below. (Id.
at p. 258.) Review of an ex post facto
claim is de novo under the harmless error analysis. (Id. at p. 261;
face="Times New Roman">Where the jury was not asked to make a
finding that the offense occurred after the effective date of the statute, the
verdicts cannot be deemed sufficient to establish the date of the offenses
unless the evidence leaves no reasonable doubt that the underlying charges
pertained to events occurring on or after the effective date of the
statute. (People v. Hiscox,
supra, 136 Cal.App.4th at p. 261.)
A reviewing court cannot review the record and select among acts that
occurred before and after that date, or to infer that certain acts probably
occurred after that date. For a court to
hypothesize which acts the jury may have based its verdicts on, or what dates
might be attached to certain acts based on ambiguous evidence, would amount to
“judicial impingement†upon the traditional role of the jury. (Ibid.)
face="Times New Roman">The parties agree defendant cannot be
punished under the One Strike Law if none of the three acts relied upon by the
jury occurred after September 20, 2006. In order to qualify for
sentencing under the One Strike Law, the evidence must establish that defendant
molested Z.R. after September 20, 2006, when Z.R was
still 13 years old, and before she turned 14 in March 2007.
face="Times New Roman">Based on our independent review of the
record, we cannot find evidence leaving no reasonable doubt that the underlying
charges pertained to events occurring on or after September 20, 2006. (People v. Hiscox,
supra, 136 Cal.App.4th at p. 261.)
face="Times New Roman">Z.R. testified that appellant began “roughhousingâ€
with her and touching her in sexual ways when she was about 10 or 11 years old
(about March 2003 or March 2004), in fourth grade (2002-2003), and living in
the Bear Valley Road residence.
face="Times New Roman">Because Z.R. was born in March 1993, she was
11 and 12 years old in 2005, 12 and 13 in 2006, and 13 and 14 in 2007. From 2004 to 2006, the family lived in
Victorville and then on Tutelo Street. From June or December 2006 to 2008, the
family lived in Victorville and Silver Lakes.
face="Times New Roman">In 2005 and 2006, when Z.R. was 12 or 13
years old and in the 7th and 8th grades, the family lived on Tutelo Street
until June or December 2006. During that
time, defendant awoke her and penetrated her.
The shower incident occurred between June and December 2006 or in 2007 after
the family began living in Victorville again and when Z.R was 13 years
old. Another incident occurred sometime
in 2006. The evidence does not establish
whether any of the three incidents occurred before or after September 20, 2006.
face="Times New Roman">Although respondent tries to tie the three
incidents to specific dates, the dates are based on speculation. For example, Z.R. disclosed the shower
incident to her aunt in August 2007. But
there is no mention of a specific date when Z.R. moved in with her aunt in the
pages cited by respondent. Nothing in
the record shows the shower incident occurred between September 20, 2006, and March 2007 when Z.R. turned 14. If the shower incident happened after she
turned 14, it was a different criminal offense.
face="Times New Roman">The evidence about penile penetration also
was inconclusive. Z.R. said it happened
when she was living on Tutelo Street
and she was in the 7th or 8th grade. But
it is impossible to determine from the record whether it happened before or
after September
20, 2006.
The fact that Z.R. said it was summer suggested it may have happened in
August or early September of 2005 or 2006.
But the record is uncertain on this point. Respondent claims that when “the family
resided in the Tutelo Street residence, this sex act could conceivably [have] occurred between September 20, 2006 . . . and December 2006, . . .†when the family returned
to Victorville. But it could also have
occurred before September 2006. Based on
this record, we can only speculate that defendant persisted in the ongoing
abuse after September
20, 2006.
face="Times New Roman">Respondent’s speculations cannot overcome the
Chapman standard: “By definition, ‘substantial evidence’
requires evidence and not mere speculation. In any given case, one ‘may speculate about
any number of scenarios that may have occurred . . . . A reasonable inference, however, “may not be
based on suspicion alone, or on imagination, speculation, supposition, surmise,
conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn
from evidence rather than . . . a mere speculation as to probabilities without
evidence.â€â€™â€ (People v.
Cluff (2001) 87 Cal.App.4th 991, 1002, citing People v.
Morris (1988) 46 Cal.3d 1, 21.)
face="Times New Roman">When the evidence regarding a particular issue
is circumstantial, the appellate court must scrutinize that evidence even more
closely to determine whether a reasonable trier of fact could have found the
defendant guilty beyond a reasonable doubt.
(People v. Kunkin (1973) 9 Cal.3d 245,
250.) “Evidence which merely raises a
strong suspicion of the defendant’s guilt is not sufficient to support a
conviction. Suspicion is not evidence,
it merely raises a possibility, and this is not a sufficient basis for an
inference of fact.†(
an explicit determination by the jury regarding the acts upon which they
relied, there is no way to know how they determined which acts made up the
violation of count 1.
face="Times New Roman">As the court stated in People v.
Hiscox, supra, 136 Cal.App.4th at page 261: “It would be inappropriate for us to review
the record and select among acts that occurred before and after that date, or
to infer that certain acts probably occurred after that date. Hiscox has a constitutional right to be
sentenced under the terms of the laws in effect when he committed his offenses.
For a court to hypothesize which acts
the jury may have based its verdicts on, or what dates might be attached to
certain acts based on ambiguous evidence, would amount to ‘judicial impingement
upon the traditional role of the jury.’ (
face="Times New Roman">Thus we remand to the trial court for
resentencing on count 1 according to section 288.5. Before the September 2006 amendment of
section 667.61, punishment for violating section 288.5 was imposition of a
state prison for a term of six, 12, or 16 years. (Stats. 1989, c. 1402, § 4.) On remand, the trial court will be required
to decide which of the determinate sentence terms to impose with respect to defendant’s
conviction for count 1.
face="Times New Roman">B. Remand for Resentencing on Count 2
face="Times New Roman">The People agree with defendant that his case
must be remanded to the trial court to exercise its discretion in deciding to
impose concurrent or consecutive sentences for defendant’s two guilty verdicts
under section 667.61. The September 20,
2006, amendment of section 667.61, added subdivision (i), to that section which
provided: “(i) For any offense specified
in paragraphs (1) to (7), inclusive, of subdivision (c), the court shall impose
a consecutive sentence for each offense that results in a conviction under this
section if the crimes involve separate victims or involve the same victim on
separate occasions as defined in subdivision (d) of Section 667.6.†While mandating that convictions for certain
sex crimes committed upon multiple victims must be sentenced consecutive to
each other, subdivision (i) did not statutorily mandate that violations of
continuous sexual abuse of a child (§ 288.5) involving multiple victims, of
which defendant was convicted here, and which was added to the list of
prohibited violations as subdivision (c)(9), also be imposed consecutive to one
another. Because sentence for violation
of section 288.5 involving multiple victims was not mandated to be
consecutively imposed, the trial court had discretion to impose sentence for
counts 1 and 2 concurrently.
face="Times New Roman">A trial court must “state the reasons for its
sentence choice on the record at the time of sentencing.†(§ 1170, subd. (c).) Absent an express statutory provision to the
contrary, a trial court retains discretion to impose either consecutive or
concurrent indeterminate terms under the One Strike Law. People v. Rodriguez
(2005) 130 Cal.App.4th 1257, 1262-1263, explained that “although the statutory
language of section 667.61, subdivision (b), mandates the imposition of 15
years to life for each count involving separate
occasions and separate victims, section 667.61 does not
mandate that those terms must be served consecutively,†citing former
subdivision (g) of section 667.61.
face="Times New Roman">Review of the trial court’s colloquy with the
prosecutor and defense counsel at sentencing reveals the court interpreted
section 667.61 as mandatorily requiring all sentences involving the violation of
prohibited sex crimes involving multiple victims be imposed and served
consecutive to one another. However,
review of subdivision (i) of section 667.61 shows that the mandatory sentence
provision of section 667.61 specifically excluded continuous sexual abuse of a
child (§ 288.5) (listed as subd. (c)(9), in § 667.61) from that list of crimes
involving multiple victims for which consecutive sentences must be imposed. (§ 667.61, subd. (i).)
face="Times New Roman">Applying Rodriguez to
this case, because section 667.61 did not expressly mandate consecutive
sentences be served by a defendant convicted of violations of continuous sexual
abuse of a child involving multiple victims, the trial court had discretion to
order defendant serve his sentences for his section 288.5 convictions in counts
1 and 2, concurrently or consecutively to each other. Because the court did not exercise its
discretion as required by section 1170, subdivision (c), this case must be
remanded to allow the court to exercise that discretion.
IV
DISPOSITION
face="Times New Roman">We affirm the judgment but direct the trial
court to impose a prison term on count 1 according to the section 288.5
sentencing scheme in effect before the September 2006 amendment of section
667.61. The trial court should also
exercise its discretion to decide whether defendant’s sentences should be
served consecutively.
face="Times New Roman">NOT TO BE PUBLISHED IN OFFICIAL REPORTS
face="Times New Roman">CODRINGTON
face="Times New Roman"> J.
We
concur:
RAMIREZ face="Times New Roman">
P. J.
HOLLENHORST face="Times New Roman">
J.
name="_ftn1" title=""> face="Times New Roman">[1] All further statutory
references are to the Penal Code.
