P. v. Lopez
Filed 7/27/12 P. v. Lopez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
GABRIEL CABRERA LOPEZ,
Defendant
and Appellant.
E053445
(Super.Ct.No.
RIF129100)
OPINION
APPEAL
from the Superior Court
of Riverside County. Robert E. Law, Judge. (Retired Judge of the Mun. Ct.
for the Orange Jud. Dist. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed with directions.
Athena
Shudde, 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, Meredith S. White and
Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
and appellant Gabriel Cabrera Lopez (defendant) appeals after a jury convicted
him of multiple sex crimes involving two victims; he received a sentence of 90
years to life. Defendant claims ex post
facto protections barred both his “One Strike” law sentences on four counts of
forcible lewd acts on a child (Pen. Code, § 288, subd. (b))
assault of a child (§ 269). This is
because, he argues, the jury could not have concluded beyond a reasonable doubt
that he committed the offenses after the date the relevant statutes became
effective—November 30, 1994. The People concede and, we agree, that two of
the four forcible lewd act counts should be vacated and the matter remanded for
resentencing on those counts because the evidence did not establish beyond a
reasonable doubt that appellant committed these offenses on or after November 30, 1994. However, we conclude that an additional count
of forcible lewd acts should also be remanded for resentencing, for the same
reason. We affirm the convictions, and
sentences on the remaining counts, including the conviction for aggravated
sexual assault of a child.
and Procedure
Defendant
molested his daughter, C., over 30 times, from the time she was three or four
years old, until she was 10 years old.
C. revealed the molestations to her mother when she was about 10 years
old. They disclosed the molestation to
law enforcement in May 2005. These
crimes are not the subject of this appeal.
Previously,
defendant had also molested his niece, A., from the time she was five years old
until she was nine or 10 years old. In
2006, when the adult A. heard that defendant had been arrested for molesting
C., she came forward and disclosed the molestation to law enforcement. These crimes are the subject of this appeal
because defendant argues they could have taken place before November 30, 1994.
The
People filed a first amended information on February 17, 2011.
Regarding C., the People charged defendant in counts 1 and 3 with
committing a lewd act on a child (§ 288, subd. (a)),
assault on a child (§ 269, subd. (a)).
counts 5 through 8 with committing a forcible lewd act on a child (§ 288,
subd. (b)(1)), and in count 9 with aggravated sexual assault of a child
(§ 269, subd. (a)(4)).
name="_ftnref4" title="">[4] The counts regarding A. were filed outside
the normal statute of limitations pursuant to section 803, subdivision
(f). The People further alleged that
defendant had committed lewd acts upon a child against more than one victim, within
the meaning of section 667.61. The
effect of the allegation under section 667.61 is to increase the punishment for
committing a forcible lewd act on a child, as in counts 5 through 8, to 15
years to life on each count, instead of the normal sentence of three, six or
eight years. This is known as the One
Strike law.
On
February 25, 2011, a jury found defendant guilty on counts 3 through 9 and
deadlocked on counts 1 and 2. At
sentencing on April 22, 2011, the court deemed a true finding on the section
667.61 multiple victim allegation to be inherent in the verdicts. The court sentenced defendant to consecutive
terms of 15 years to life on counts 4 through 9, and a concurrent term of 15
years to life on count 3, for a total term of 90 years to life. This appeal followed.
Defendant argues
he should be resentenced on counts 5 through 8 because the principles of ex
post facto prohibit him from receiving a 15-year-to-life sentence on these
counts under the One Strike law for actions that took place before the law’s
effective date of November 30, 1994.
Defendant asserts the testimony at trial was not sufficient to allow the
jury to determine beyond a reasonable doubt that each of the acts included in
counts 5 through 8 took place on or after November 30, 1994. This is why, defendant argues, the jury was
asked to return general verdicts. The
unanimity instructions told the jury that the People presented more than one
act to prove defendant committed the offenses and that the jury must agree that
appellant committed at least one of the acts and agree as to which act he
committed.
The effective date of the One Strike law was November 30,
1994. (Stats. 1994, 1st Ex. Sess.
1993-1994, ch.14, § 1, pp. 8570-8572.)
Consequently, the section 667.61 multiple victim allegation subjected
defendant to a maximum sentence of 15 years to life on each of counts 5 through
8 only as to those acts that the
evidence proves beyond a reasonable doubt occurred on or after the law’s
effective date. Any application of the
One Strike law to an act committed before the effective date violates the ex
post facto clauses of the state and federal constitutions. (People
v. Alvarez (2002) 100 Cal.App.4th 1170, 1178.)
Similarly, defendant argues the charge in count 9 should
be dismissed altogether. Section 269,
aggravated sexual assault of a child under age 14, was created as a new offense
with an enhanced penalty of 15 years to life.
As with the One Strike law at issue in counts 5 through 8, section 269
became effective November 30, 1994.
(Stats. 1994, 1st Ex. Sess. 1993-1994, ch. 48, § 1.) Defendant contends the evidence does not
prove beyond a reasonable doubt that the actions comprising count 9 took place
on or after that date.
The information
alleged that each of the acts involving A. in counts 5 through 9 occurred
between October 31, 1992 and October 31, 1996.
The jury was not called upon to and did not provide a date for each of
the five crimes involving A.
In
253, the appellate court held, “[I]t is the prosecutor’s responsibility to
prove to the jury that the charged offenses occurred on or after the effective
date of the statute providing for the defendant’s punishment. When evidence at trial does not establish
that fact, the defendant is entitled to be sentenced under the formerly
applicable statutes . . . .” (
to convict the defendant by “agreeing that [he] committed all the acts
described by the victims[,] . . . the jury could have returned guilty
verdicts without considering when any particular offense occurred. [¶]
Since the jury was not asked to make findings on the time frame within
which the offenses were committed, 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 November 30, 1994. [Citation.]
It would be inappropriate for us to review the record and select among
acts that occurred before and after that date, . . . [The 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 . . . would amount to
‘judicial impingement upon the traditional role of the jury.’ [Citation.]”
(Id. at pp. 261, fns.
omitted.)
Here, A.’s
testimony describes five separate incidents,
reasonable doubt that the underlying charges pertained to events occurring
after November 30, 1994. As the People
concede, the evidence regarding counts 5 and 6 does leave reasonable doubt that
these charges took place after November 30, 1994. In addition, we conclude that the evidence
allows for reasonable doubt as to count 7.
We now discuss A.’s testimony as to the time frame of each incident and
explain how we arrive at a determination whether the evidence shows beyond a
reasonable doubt that the crime took place on or after November 30, 1994.
Count 5—Forcible Lewd
Act at Jurupa Park—As Early As 1992
A. testified that
defendant first touched her when she was playing at “a park around Jurupa,”
“when I was in kindergarten.
Five-years-old, I remember.” On cross-examination, when defense counsel
asked A. if she had testified that she was, “what, eight or something like
that, or nine” A. testified, “I was
five years old.” More to the point, A. answered,
“yes,” on cross-examination when asked if she was born in 1987. A. stated that she was 18 years old in
2006. During her testimony on February
22, 2011, A. stated that she was 23 years old, which would put her earliest
birth date at February 23, 1987, and her latest birth date at December 31,
1987, if we credit her answer that she was born in 1987. So, the record indicates that A. was born in
1987 and, thus, this first incident that took place when she was five years old
would have happened in 1992 (1987 birth date plus five years old), before the
effective date of section 667.61. The
15-year-to-life sentence on count 5 should be vacated and remanded for
resentencing.
Count 6—Forcible Lewd
Act in the Bedroom of Defendant’s Apartment—As Early As 1993
A. testified that
the second incident
title="">[6] took place, “Around the same age, six,
seven. I can’t remember.” It took place at defendant’s apartment when
A. and her father were visiting. Thus,
the record shows that this incident took place between 1993 (1987 birth date
plus six years old) and 1994 (1987 birth date plus seven years old), which is
not evidence beyond a reasonable doubt that it took place after the effective
date of section 667.61. The
15-year-to-life sentence on count 6 should be vacated and remanded for
sentencing.
Count 7—Forcible Lewd
Act at Fairmont Park—As Early As 1994
A. testified that
the next incident happened at Fairmont Park when she was in the third or fourth
grade. She answered, “Yeah,” when the
prosecutor asked if she was then seven or eight years old. Although the People argue on appeal that this
conduct must have taken place in 1995 or after, based on A.’s testimony that
she was in third or fourth grade (five years old in kindergarten, so eight
years old in third grade, plus 1987 birth date, equals 1995 or later), we
cannot say that this was proven to the jury beyond a reasonable doubt. This is because, based on A.’s answer to the
prosecutor that she could have been as young as seven years old at the time of
this incident, it could have taken place sometime in 1994 (1987 birth date plus
seven years old), prior to the effective date of section 667.61. The 15-year-to-life sentence on count 7
should be vacated and remanded for sentencing.
Count 8—Forcible Lewd
Act in the Garage at A.’s Home on Harrison Street—1996 or Later
A. testified that
the last time defendant touched her inappropriately was in the garage of her
home on Harrison Street, after her mother had kicked defendant out of their
home. Defendant attempted to have
intercourse with A., but A.’s mother called her name while looking for her and
defendant allowed A. to get up and leave.
A. testified that she was nine or 10 years old and in the fifth or sixth
grade. This would put the incident at
1996 or later (1987 birth date plus nine years old), and so the 15-year-to-life
sentence under section 667.61 stands.
Count 9—Aggravated
Sexual Assault in A’s Bed at Her Home on Harrison Street—1995 or Later
A. testified about
an incident, after the one at Fairmont Park.
It happened while she and her sister were asleep in her bed, at her home
on Harrison Street, while defendant was living with A.’s family. Defendant woke A. up and put his penis in her
mouth. A. testified that defendant later
did this exact same thing on other occasions, but that the first time he did it
she was eight or nine years old and in the fifth grade. We found the testimony confusing as to
whether the incident A. described was the first time he came into her room and
performed this act, or not the first time.
However, based on A.’s testimony that she was at least eight years old the
first time defendant committed this aggravated sexual assault, we conclude that
the evidence shows beyond a reasonable doubt that this took place no earlier
than 1995 (1987 birth date plus eight years old), which would put it after the
effective date of section 667.61. This
conviction stands.
Disposition
The sentences for
counts 5, 6 and 7 are reversed and the matter is remanded for the trial court
to resentence defendant on those counts according to the terms provided by
section 288, subdivision (b).
In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN
OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
RICHLI
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code.
offenses in count 1 from on or about January 1, 1997 to January 1, 1998, and in
count 3 from on or about January 1, 2002 through January 1, 2003.
