P. v. Garcia
Filed 2/13/13
P. v. Garcia CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
JULIAN DELGADO GARCIA,
Defendant
and Appellant.
E054347
(Super.Ct.No.
SWF029035)
OPINION
APPEAL from the Superior Court of
County. Mark E. Petersen,
Judge. Affirmed in part, reversed in
part with directions.
Eric R. Larson, under appointment by
the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Julie L. Garland, Assistant Attorney General, Christopher P. Beesley, and Peter
Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Julian
Delgado Garcia was convicted on six counts of various forms of
Doe. He contends that his conviction on
count 2, sexual penetration of a child under the age of 10, in violation of
Penal Code section 288.7, subdivision (b),
failed to prove that the single act of digital penetration Doe described
occurred after the effective date of the statute.
As we discuss below, we agree. We will also correct clerical errors in the
abstract of judgment and sentencing minutes.
PROCEDURAL HISTORY
Defendant was charged, under the
alias Susano Delgado Portillo, with one count of committing a lewd act on a
child under the age of 14 (§
288, subd. (a); count 1); one count of sexual penetration of a child under the
age of 10 (§ 288.7, subd. (b);
count 2); and four counts of rape of a child under the age of 14 and seven or
more years younger than the perpetrator (§ 269, subd. (a)(1); counts 3-6).
The information also alleged as to count 6 that defendant inflicted
great bodily injury within the meaning of section 12022.7, subdivision (a) and
of section 1192.7, subdivision (c)(8).
(Language in the information that the infliction of great bodily
of section 667.61, subdivision (c)(3), the “One Strike†law, was stricken on
motion of the prosecutor.)
Defendant was convicted on all
counts, and the great bodily injury allegation was found true. The court imposed a total term of 11 years
plus 75 years to life.
Defendant filed a timely
FACTS
Because the issue raised in this
appeal pertains only to count 2, we will give only an abbreviated recitation of
the facts.
Doe was born in August 1997. Doe and her brother lived with their grandmother
since Doe was four years old. Defendant
was married to Doe’s grandmother.
Doe testified that when she was
seven or eight years old, defendant touched her breast area both over and under
her clothes. Doe told her grandmother
about it, and the next day, defendant installed a lock on the inside of Doe’s
bedroom door.
Doe testified that defendant
continued to molest her until she was 11, when defendant impregnated her. When Doe suspected she was pregnant, she told
her grandmother, who called the police.
On September 1, 2009, Doe was taken to a hospital for a forensic
interview with a child sexual abuse expert.
A pregnancy test was administered that day, and it was determined that
she was pregnant. Doe and her
grandmother agreed that she would have an abortion. The abortion was performed two days
later.
After his arrest, a DNA sample was
obtained from defendant. Examination of
defendant’s DNA, Doe’s DNA and the DNA taken from the aborted fetus established
“a strong probability†that defendant was the father.
LEGAL ANALYSIS
1.
THE CONVICTION ON COUNT 2 VIOLATES THE
CONSTITUTIONAL PROHIBITION ON EX POST FACTO LAWS
The ex post facto clauses of the
state and federal Constitutions prohibit imposition of punishment for offenses
committed before the effective date of the statute under which the defendant is
prosecuted or sentenced. (
253, 257.) In count 2, defendant was
charged with violating section 288.7, subdivision (b) (hereafter section
288.7(b)). Section 288.7(b) provides,
“Any person 18 years of age or older who engages in oral copulation or sexual
penetration, as defined in Section 289, with a child who is 10 years of age or
younger is guilty of a felony and shall be punished by imprisonment in the state
prison for a term of 15 years to life.â€
Section 288.7 was enacted in 2006 and became effective on September 20,
2006. (Stats. 2006, ch. 337, § 9.) Prior to the effective date of section 288.7,
sexual penetration of a minor under the age of 14 by a person more than 10
years older than the was victim punishable by a prison term of three, six, or
eight years, pursuant to section 289, subdivision (j).
Defendant contends that his
conviction on count 2 violates the ex post facto prohibition because the evidence
does not unambiguously establish that the single act of sexual penetration Doe
described occurred after the September 20, 2006 effective date of section
288.7. Rather, he contends, the evidence
“supports the conclusion†that the act took place before the effective date of
the statute, when Doe was seven or eight years old. He notes that the jury was not instructed
that in order to find defendant guilty, it must determine that the act occurred
after September 20, 2006. Rather, the
jury was instructed that it need only find that the penetration occurred
“reasonably close†to the time period alleged in the information, i.e., “on or
about October of 2006, through and including August of 2007.â€
The Attorney General responds that
the conviction must be upheld because there is substantial evidence which
supports a finding that the penetration took place after September 20, 2006.
The prosecution bears the burden of
proving that the charged offense occurred on or after the effective date of the
statute under which the defendant is charged or under which he or she will be
punished. (People v. Hiscox, supra,
136 Cal.App.4th 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 is de novo, under the harmless error
analysis of Chapman v. California
(1967) 386 U.S. 18, 24. (
as in this case, the jury was not asked to make a finding that the offense
occurred after the effective date of the statute, “[T]he 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]. [Citation.]†(Ibid.,
italics added.) “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. [A defendant] 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.’ [Citation.]â€
(Ibid.)
Doe testified that the single act of
digital penetration was committed “just a few months†after the first incident
when defendant touched her chest. She
was “still†seven or eight years old when the digital penetration took
place. Her birth date is August 9,
1997. She was therefore seven from
August 9, 2004 through August 8, 2005, and eight from August 9, 2005 through
August 8, 2006. When she was interviewed
by the child sexual abuse expert, she stated that the digital penetration had
occurred when she was “about nine.†She
also told the examiner that she was “not sure†if she was nine when the
penetration occurred, but it was before she turned 10. She also testified that the act occurred
before she was 10. She remembered that
it occurred before she was 10 because she went camping shortly before her 10th
birthday, and the act occurred before she went camping. She did not state how long before her 10th
birthday or how long before the camping trip the act occurred.
Even if this evidence is sufficient
to support the conclusion that the act occurred when Doe was nine, rather than
when she was seven or eight, it is not sufficient to leave “no reasonable
doubt†that the charged act occurred after September 20, 2006. (People
v. Hiscox, supra, 136 Cal.App.4th
at p. 261.) Doe’s ninth birthday was
August 9, 2006, approximately six weeks before the effective date of section
288.7. Accordingly, even if Doe was nine
when the act took place, the incident could nevertheless have occurred before
the effective date of the statute.
The Attorney General contends that
if we conclude that the evidence was insufficient to prove that the digital
penetration took place before September 20, 2006, we should remand the cause
for resentencing under section 289, subdivision (j) (hereafter section
289(j)). Section 289(j) was enacted in
1999 (Stats. 1999, ch. 706, § 5) and remains in effect. It provides: “Any person who participates in
an act of sexual penetration with another person who is under 14 years of age
and who is more than 10 years younger than he or she shall be punished by
imprisonment in the state prison for three, six, or eight years.†Although defendant originally argued that his
conviction on count 2 must be reversed, in his reply brief he agrees that
resentencing under section 289(j) is appropriate. Neither party provides any authority or
analysis which assists us in determining whether resentencing is an available
remedy.
In People v. Hiscox, supra,
136 Cal.App.4th 253, the court held that the evidence was insufficient to
establish that the criminal acts of which the defendant was convicted took
place before the effective date of section 667.61. Section 667.61, the One Strike law, is purely
a sentencing statute: It provides the
punishment to be imposed for acts which violate other substantive statutes,
under specified circumstances.
name="_ftnref4" title="">[4] Accordingly, it was appropriate for the court
in that case to remand the cause for resentencing under the sentencing
provisions in effect prior to the effective date of section 667.61. (People
v. Hiscox, supra, at p.
262.) However, section 288.7(b) is not
solely a sentencing statute. It does not
state that sexual penetration in violation of section 289(j) is subject to an
enhanced penalty if the victim is under the age of 10. Rather, it establishes a substantive offense
of sexual penetration of a child under the age of 10 by a person aged 18 or over: “Any person 18 years of age or older who
engages in oral copulation or sexual penetration, as defined in Section 289,
with a child who is 10 years of age or younger is guilty of a felony and shall
be punished by imprisonment in the state prison for a term of 15 years to
life.†(§ 288.7(b).)
Moreover, defendant was charged with
and convicted of a violation of section 288.7(b). Although we have the authority to modify a
judgment to substitute a necessarily included lesser offense for the charged offense
if we find that the evidence was insufficient to support a conviction of the
charged offense, we may not modify a judgment to substitute an offense which is
not a necessarily included lesser
offense. (§ 1260; People v.
Adams (1990) 220 Cal.App.3d 680, 688-689.)
“An uncharged offense is included in
a greater charged offense if either (1) the greater offense, as defined
by statute, cannot be committed without also committing the lesser (the
elements test), or (2) the language of the accusatory pleading
encompasses all the elements of the lesser offense (the accusatory pleading
test). [Citations.]†(People v. Parson (2008) 44 Cal.4th
332, 349.) “Under the elements test, a
court determines whether, as a matter of law, the statutory definition of the
greater offense necessarily includes the lesser offense.†(Ibid.) “Under the accusatory pleading test, a court
reviews the accusatory pleading to determine whether the facts actually alleged
include all of the elements of the uncharged lesser offense; if it does, then
the latter is necessarily included in the former.†(Ibid.)
Under the elements test, section
289(j) is not a necessarily included lesser offense of section 288.7(b). A violation of section 288.7(b) can be
committed without violating section 289(j) and vice versa. For example, an act of sexual penetration of
a nine year old by an 18 year old violates section 288.7(b) but does not
violate section 289(j) because the perpetrator is not more than 10 years older
than the victim. Sexual penetration of
an 11 year old by a 21 year old violates section 289(j) but does not violate
section 288.7(b). Sexual penetration of
an 11 year old by an 18 year old does not violate either statute. Accordingly, neither statute is a lesser
included offense of the other as a matter of law. (People
v. Parson, supra, 44 Cal.4th at
p. 349.) Section 289(j) is also not a
necessarily included lesser offense under the accusatory pleading test because
the information does not allege that defendant was more than 10 years older
than Doe.
For these reasons, we may not either
modify the judgment to reflect a conviction of section 289(j) as a lesser
included offense or simply substitute the punishment which could have been
imposed if defendant had been charged with violating section 289(j) for the
greater punishment imposed for his conviction under section 288.7(b). Rather, the only remedy for the ex post facto
violation is to reverse defendant’s conviction on count 2.
2.
THE CRIMINAL CONVICTION ASSESSMENT FEE MUST BE CORRECTED
With some exceptions not pertinent
here, Government Code section 70373 provides for a $30 assessment on each
misdemeanor or felony conviction. (Gov.
Code, § 70373, subd.
(a)(1).) Defendant asserts, and the
Attorney General agrees, that here, the court imposed a $40 assessment on each
of the six counts of conviction, for a total of $390. The parties agree that this results in an
unauthorized sentence which can be corrected on appeal. (See People
v. Scott (1994) 9 Cal.4th 331, 354.)
They agree that the total fee imposed pursuant to Government Code
section 70373 should be $180 (or $150, based on reversal of count 2).
but we arrive at a different result.
At sentencing, the court stated that
it would impose a court security fee in the amount of $40 per count of
conviction, for a total of $240. This
amount is correct, and is mandatory pursuant to Penal Code section 1465.8,
subdivision (a)(1). Next, the court
stated, “The criminal conviction assessment fee of $30 each for a total of
$390.†(Sic.) It is not clear
whether the court intended the “total of $390†to mean the total of the two
assessments, i.e., $240 pursuant to Penal Code section 1465.8, subdivision
(a)(1), plus $180 pursuant to Government Code section 70373, or the total of
the assessment imposed under Government Code section 70373, but it is incorrect
in either event. (Under the first
scenario, the correct total is $420; under the second scenario, the correct
total is $180.) Regardless of the error
in arithmetic, however, it is clear that the court imposed the correct amount
per count, pursuant to both Penal Code section 1465.8 and Government Code
section 70373. However, neither the
sentencing minutes nor the abstract of judgment correctly reflects the oral
pronouncement.
The sentencing minutes state, “Pay
Court Security fee of $240.00 [$40 per convicted charge]
. . . . [¶] Pay criminal conviction assessment of $390.00
[$30 per convicted charge] . . . .†The abstract of judgment states that defendant
is ordered to pay a court security fee of $240, but then states that the
assessment pursuant to Government Code section 70373 is $390, or $40 per
conviction.
Where there is a discrepancy between
the oral pronouncement of judgment and the sentencing minutes or the abstract
of judgment, the oral pronouncement prevails, and an appellate court may order
correction of the minutes and the abstract.
(People v. Zackery (2007) 147
Cal.App.4th 380, 385-386.) We will
direct the trial court to issue amended sentencing minutes and an amended
abstract of judgment correctly reflecting imposition of an assessment of $40
for each of the five remaining counts of conviction, pursuant to Penal Code
section 1465.8, subdivision (a)(1), for a total of $200, and imposition of a
criminal conviction assessment in the amount of $30 for each of the five
remaining counts, pursuant to Government Code section 70373, for a total of
$150.
DISPOSITION
The conviction on count 2 is
reversed. Within 30 days after finality
of this opinion, the superior court shall dismiss count 2 and shall issue an
amended abstract of judgment and amended sentencing minutes reflecting the
dismissal of count 2 and reflecting imposition of an assessment of $40 for each
of the five remaining counts of conviction, pursuant to Penal Code section
1465.8, subdivision (a)(1), for a total of $200, and imposition of a criminal
conviction assessment in the amount of $30 for each of the five remaining
counts, pursuant to Government Code section 70373, for a total of $150. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
MCKINSTER
J.
We concur:
HOLLENHORST
Acting
P. J.
RICHLI
J.
name="_ftn1" title=""> [1] All further statutory references will be to
the Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] The DNA expert testified that the results
showed that defendant is “210 million to 14 billion times more likely to be the
biological father than some random person from the population.â€
