P. v.
Morales
Filed 4/11/13 P. v. Morales CA4/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
JAIME
SAUL MORALES,
Defendant and Appellant.
E054587
(Super.Ct.No. RIF150397)
OPINION
APPEAL from the Superior Court of
County. Christian F.
Thierbach, Judge. Affirmed.
Victoria Barana and Anita P. Jog,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, William M. Wood and Meagan J. Beale, Deputy Attorneys
General, for Plaintiff and Respondent.
Defendant and appellant Jaime Saul
Morales appeals after a jury convicted him of several sex offenses committed
against a minor. He raises the single
contention that the trial court erred in imposing consecutive sentences on two
of the counts, because there is no way to determine whether the offenses
occurred on “separate occasions,†within the meaning of former Penal Code
section 667.6, subdivision (d). We
affirm.
FACTS
AND PROCEDURAL HISTORY
Defendant was employed at a
construction company yard between approximately 2002 and 2008. The company’s owner had office and storage
facilities at the construction yard.
There was also a mobilehome on the property, where defendant lived with
his wife during most of the time he was employed at the yard. Otherwise, defendant’s duties included
keeping a security watch on the yard, keeping it clean, and helping to load and
unload trucks.
The victim was the son of the owner
of the construction yard. When he was 12
years old, in about 2002 or 2003,
company during his summer vacation. The
victim was assigned to pick up lumber and to remove nails from good pieces of
wood so they could be reused. The victim
spent about 12 hours a day at the construction yard that summer. He and defendant often interacted at the yard. One day, defendant and the victim had been
cleaning some lumber when they engaged in some horseplay. As they were playfully wrestling, defendant
touched the boy’s penis. Defendant took
the victim into a shed where tools were stored, and started rubbing the
victim’s genital area over his clothes.
Defendant threatened to “fucking kill†the victim if he told
anyone. Defendant pulled down the
victim’s pants and masturbated him. The
victim was shocked, but he did not cry.
Defendant then wanted the victim to masturbate defendant’s penis; the
victim reluctantly complied because he was scared. Defendant ejaculated on the ground.
Throughout the rest of the summer,
the victim testified, he and defendant engaged in acts of oral sex two or three
times a week at various locations in the construction yard. Sometimes the acts took place in the
mobilehome that defendant lived in at the yard.
The victim testified that defendant would perform oral sex on him, and
the victim would then perform oral sex on defendant. Defendant always ejaculated on the ground.
Defendant never repeated the threat
he made during the first encounter.
Defendant also did not use physical force during any of the acts of oral
copulation. However, the victim
participated only because he was “very much scared†of defendant after the
original threat. Each act was against
the victim’s will. On one occasion,
defendant put on a condom and attempted to penetrate the victim; the victim
pushed defendant away because “[i]t hurt too bad.†Thereafter, the victim did not let defendant
have anal sex because the physical pain was too great. The victim did not tell anyone what was
happening because he felt ashamed for himself and for his family. From time to time, the victim asked not to
work at the construction yard, but he was too ashamed to tell the truth. The victim otherwise could not come up with a
valid reason to stop working at the yard, so his father had him continue
working there.
The next year, in 2003, the victim
again worked at his father’s construction yard during the summer months. He was assigned the same kinds of duties as
the previous year. The victim’s father
spent most of his time in the office.
The victim, as well as defendant, spent most of the day at the yard. The yard superintendent supervised both
defendant and the victim. That summer,
defendant had oral sex with the victim two or three times a week. Defendant did not threaten the victim again,
but he would give him a certain “look†to let the victim know when he wanted to
have oral sex with the victim.
One day, defendant and the victim
were engaged in an act of oral sex when they heard the victim’s father coming
their way. Defendant got up and walked
away; the victim pulled up his pants and walked quickly in a different
direction. The victim’s father was upset
because the victim appeared to be “goofing off†and not working; the victim
gave the excuse that he had been chasing a lizard. The victim’s father told him he was fired,
and sent him home. The victim returned to
the construction yard a few days later, however, and resumed his work at the
yard.
The next year, in 2004, the victim
again spent the summer working at his father’s construction yard. By now, the victim was about 14 years old,
and had grown taller. The victim was
about the same height as defendant that year.
Again, defendant would give the victim a “look†to signal when he wanted
to have sex with the youngster, which they did about twice a week that
summer. The victim again asked his
father if he could stop coming to the yard, but he still was unable to tell him
the real reason, or to give a satisfactory excuse for quitting.
The next summer, in 2005, the victim
spent less time working at the construction yard. The sexual contacts with defendant became
less frequent. The victim also started
to say “no†to defendant, when defendant asked him for sex.
In 2006, the victim’s father became
aware of other accusations against defendant.
That is, the young son of the yard supervisor reported that defendant
had molested him. In following up these
allegations, the victim’s father asked the victim whether defendant had ever
molested the victim. The victim denied
that anything had happened, because he felt ashamed. He was about 16 years old at that time; the
supervisor’s son was about five or six years younger than the victim.
Defendant stopped working at the
construction yard in approximately June of 2008.
In 2009, the victim, then 19 years
old, was driving home with a friend when he happened to see defendant working
in someone’s front yard. The victim
remembered the molestations and told his friend. The victim’s friend encouraged him to tell
his parents, which the victim did in a letter.
The victim’s father, upon reading the letter and talking to the victim,
called his lawyer, who advised them to go to the police.
By the time of trial, the victim was
21 years old, and working full-time for his father’s construction company.
As
a result of bringing the molestations to light, defendant was ultimately
charged in a second amended information with five offenses: Count 1 alleged a violation of Penal Code
section 269, subdivision (a)(4) (aggravated assault on a child under age 14),
“in that on or about June 2003, through and including September 2003
. . . he did willfully, unlawfully, and lewdly commit oral copulation
on [the victim], a child under 14 years of age, by force, violence, duress,
menace and fear of immediate and unlawful bodily injury . . . where
the said child is 10 or more years younger than the defendant
. . . .â€
Count 2 contained an identical
allegation of a second offense, again in violation of Penal Code section 269,
subdivision (a)(4), “in that on or about June 2003, through and including
September 2003 . . . he did willfully, unlawfully, and lewdly commit
oral copulation on [the victim], a child under 14 years of age, by force,
violence, duress, menace and fear of immediate and unlawful bodily injury
. . . where the said child is 10 or more years younger than the
defendant . . . .â€
Count 3 charged a violation of Penal
Code section 288, subdivision (c)(1) (lewd act upon a child of 14 or 15), “in
that on or about June 2004 through and including September 2004 . . .
he did willfully, unlawfully, and lewdly commit a lewd and lascivious act upon
[the victim], a child under the age of sixteen years and more than ten years younger
than said defendant with the intent of arousing, appealing to, and gratifying
the lust, passions, and sexual desires of the said defendant and the said
child.â€
Count 4 of the second amended
information originally charged a violation of Penal Code section 288a,
subdivision (b)(2), but was amended by interlineation just before trial to
charge a violation of Penal Code section 288, subdivision (c)(1), the same
offense (and presumably the same dates) as in count 3.
Count 5 alleged a violation of Penal
Code section 288a, subdivision (b)(2) (felony oral copulation), “in that on or
about June 2005 through and including September 2005 . . . he did
willfully and unlawfully, being over the age of 21 years, participate in an act
of oral copulation with [the victim], a person under the age of 16 years.â€
Thus, the second amended information
charged two identical counts of aggravated sexual assault on a child under age
14 in 2003, two identical counts of lewd and lascivious acts on a child under
age 16 in 2004, and one count of felony oral copulation in 2005. At the preliminary hearing, the trial court
had inquired as to the basis for two identical counts of aggravated sexual
assault, between June 2003 and September 2003.
The court asked, “what’s the difference between 1 and 2? It’s the same victim, the same time
period.†The prosecutor replied,
“Right. Just that it happened multiple
times. It happened more than once. We didn’t charge every time, but it was
enough to charge twice.†The court held
defendant to answer on both count 1 and count 2, on the basis that the victim
told police about multiple incidents of oral copulation in 2003, and
specifically referenced a different location—i.e., the mobilehome defendant
occupied on the premises—for at least one of the acts.
The case was tried to the jury, with
the evidence as described ante. At the close of the prosecution’s case, the
trial court entered a judgment of acquittal on count 5, the oral copulation
alleged to have taken place in 2005, on the basis that the victim could not
clearly remember any particular incidents that had taken place with
defendant. The court found the state of
the evidence too speculative, and removed count 5 from the jury’s
consideration.
In his defense, defendant presented
only the testimony of his wife, to the effect that defendant did not speak
English, and the victim did not speak Spanish.
The defense closing argument relied on inconsistencies in the evidence,
including the victim’s confusion about which year the molestations actually
began or when certain incidents took place, and the supposed “language
barrier,†which caused counsel to question, “How are they communicating?â€
The jury returned guilty verdicts as
to all four remaining counts. The court
sentenced defendant to a term of 30 years to life in prison: the court selected count 1 as the principal
count and imposed a term of 15 years to life for that offense. The court imposed a consecutive term of 15
years to life on count 2 noting that, “A consecutive term is mandated by Penal
Code section 667.6 subdivision (d) . . . .†The court imposed a concurrent term of two
years on count 3, and another term of two years on count 4, to run concurrently
to both the sentence in count 3 and the sentences on counts 1 and 2. The court also entered orders as to certain
fines and fees, and other details of the sentence.
Defendant filed a timely
ANALYSIS
I. Contention and Standard of Review
Defendant raises the sole contention
that the trial court erred in imposing consecutive sentences on counts 1 and 2,
on the theory that the evidence failed to show that the offenses took place or
occurred on “separate occasions.†Former
Penal Code section 667.6, as in effect in 2003 (the date of the offenses in
counts 1 and 2), provided in subdivision (d), that, “A full, separate, and
consecutive term shall be served for each violation of . . .
committing . . . oral copulation in violation of Section . . .
288a by force, violence, duress, menace, or fear of immediate and unlawful
bodily injury . . . if the crimes involve separate victims or involve
the same victim on separate occasions.â€
Defendant contends that, in order to impose full consecutive sentences
on counts 1 and 2, the court was required to find that each count was based
upon acts that occurred on a separate occasion from the other count.
Defendant urges that sentencing
errors are generally reviewed under an abuse of discretion standard. (See People
v. Welch (1993) 5 Cal.4th 228, 234.)
The court is required to exercise “informed discretion†when
implementing a sentence. If the trial
court erroneously misunderstood its discretion—here, defendant contends the
trial court was mistaken in thinking that consecutive sentencing was
mandatory—then the matter should be remanded for resentencing, under a proper
understanding of the court’s discretion.
(See People v. Fuhrman (1997)
16 Cal.4th 930, 944.)
II. The Trial Court Properly Imposed Consecutive
Sentences
Both offenses charged in count 1 and
count 2 of the second amended information alleged that the offenses occurred
within the same time frame, from June 2003 through September 2003. The victim described numerous molestations
that took place during that time frame.
As noted, the victim was unsure at some times whether some of the events
had taken place in 2002 rather than 2003, but he acknowledged that he might
have been mistaken as to which year the molestations began. The victim’s testimony about the second year
of molestations largely mirrored his testimony about the first year. The victim’s father believed that the victim
first worked at the construction yard in 2003.
It was within the exclusive province of the jury to resolve the issue as
to when the molestations occurred. (See
Evid. Code, § 312, subd. (b) [“Subject to the control of the court, the
jury is to determine the effect and value of the evidence addressed to it,
including the credibility of witnessesâ€]; People
v. Sanders (1995) 11 Cal.4th 475, 531 [the jury is assigned the exclusive
function of resolving questions of fact, credibility of witnesses, and the
weight to be accorded evidence].)
The precipitating event, when
defendant first touched the victim in the genital area, and then engaged in
mutual masturbations in the shed, did not involve any oral copulation. That was the incident, however, when
defendant threatened the victim. The
victim thereafter complied with defendant’s initiation of other molestations,
including numerous acts of oral copulation, because he was afraid of
defendant. The initial sexual
molestation therefore did not qualify as an act of aggravated oral copulation,
even though evidence of that event was necessary to establish the element of force
or fear.
Aside from the initial masturbatory
contact, however, the victim described numerous acts of oral copulation, both
defendant’s oral copulation of the victim, and the victim’s oral copulation of
defendant. The victim testified that,
the first summer, some of the events took place in the mobilehome that
defendant occupied on the premises.
Others took place behind a garage building on the property. Still others took place inside the shed where
the initial encounter had happened.
Defendant would have oral sex with the victim two to three times a week
that first summer.
The second summer, which the victim
identified as 2003, also involved numerous acts of oral copulation, in the same
locations as before (i.e., the shed, behind the garages, and in the defendant’s
mobilehome), and at about the same frequency (two to three times a week). The victim described in detail the one
incident when his father nearly discovered defendant orally copulating the
victim, behind the garage building. When
they heard the victim’s father approaching, defendant got up and hurried away,
while the victim quickly pulled up his pants and walked in a different
direction. The victim’s father asked the
victim why he was not working, and the victim gave the excuse that he had been
chasing a lizard.
Before submitting the case to the
jury, the court and counsel conferred about the instructions. The court stated its view that counts 1 and 2
were each based on a “course of conduct,†occurring within the period of time
stated in the charges. The jury would
not, then, need to agree on precisely the same acts as the basis for each
conviction. The court proposed to give a
“non-unanimity†instruction pursuant to People
v. Napoles (2002) 104 Cal.App.4th 108.
The special instruction directed the jurors to determine, as to each
count, whether defendant had engaged in some acts to prove the course of
conduct alleged as to that offense, but the jurors need not rely on the
identical acts in reaching this conclusion.
Counts 1 and 2, under the Napoles
“non-unanimity†instruction, were each based on a jury finding of a “course of
conduct†occurring within the same time frame.
Defendant maintains that, although
he disagrees with the trial court’s treatment of counts 1 and 2 as “continuous
course of conduct†offenses, he does not challenge the non-unanimity
instruction. He also asserts that he is
not challenging the validity of the convictions. Rather, defendant narrows the focus of his
claim as purely a sentencing error:
because of the “non-unanimity†instruction, “it is simply not possible
to ascertain that the two convictions were based upon offenses that occurred on
separate occasions. In other words, it
is possible that different members of the jury relied upon the same act or acts
to support the conviction on different counts.
In such case, the convictions would not be based upon acts that occurred
on separate occasions as required by subdivision (d) of section 667.6.â€
We reject this claim. Defendant does not challenge the validity of
his convictions of counts 1 and 2. He
also states that he is not challenging the appropriateness of the
“non-unanimity†instruction. Given those
concessions, we are left with two guilty verdicts, each based upon a finding
that defendant engaged in acts amounting to a course of conduct occurring
between the dates of June 2003 and September 2003. In order to find defendant guilty of two
separate counts, the jurors were required to find sufficient acts to constitute
a course of conduct as to each charged offense.
The evidence indicated that defendant forced the victim to engage in
multiple acts of oral copulation in the summer of 2003. There are many possible ways in which the
jurors could have concluded that defendant was guilty of two separate
counts: (1) Time:
the incidents took place two or three times a week throughout the
summer. (2) Place:
the incidents took place multiple times in at least three distinct locations. (3)
Type of conduct: the incidents
consisted of different types of acts, e.g., defendant orally copulating the
victim, and the victim orally copulating defendant. Regardless of which basis any individual
juror used to make a “course of conduct†finding as to each count, every single
juror must necessarily have concluded there were two distinct courses of conduct
occurring within the same time frame.
Any rational basis for distinction between the courses of conduct as to
each count necessarily includes a finding that each of the offenses constituted
a “separate occasion†from the other.
Any of the bases for determining a “course of conduct,†also
contemplated “separate occasions,†even for the events within or constituting
the course of conduct.
On these facts, it defies reason to
claim that the two convictions (the validity of which defendant pointedly does
not contest) were not based on conduct occurring on “separate occasions.†Because both convictions necessarily involved
the same victim on separate occasions, full consecutive sentencing was proper. (Cf. also, People v. Figueroa, supra,
162 Cal.App.4th at pp. 98-99.)
The trial court did not
misunderstand or abuse its discretion in imposing mandatory full consecutive
sentences for counts 1 and 2.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
KING
J.
name="_ftn1" title=""> [1] The victim stated in some of his trial
testimony that the molestations began in 2002.
He was unsure, however, whether they actually took place initially in
2002 or 2003. The victim’s father
testified that the victim began working at the construction yard in 2003.
name="_ftn2" title=""> [2] The court apparently failed to interlineate
the remainder of the allegation in count 4, leaving it to read that defendant
had, “on or about June 2004 through and including September 2004
. . . willfully and unlawfully, being over the age of 21 years,
participate[d] in an act of oral copulation with [the victim], a person under
the age of 16 years.â€
