P. v. Bustos
Filed 1/16/13 P. v. Bustos
CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff
and Respondent,
v.
JOHNNY BUSTOS III,
Defendant
and Appellant.
B236172
(Los Angeles County
Super. Ct. No.
GA078661)
APPEAL from a
judgment of the Superior Court of
County,
Janice C. Croft, Judge.
Modified and, as modified, affirmed.
Vanessa Place
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Assistant Attorney General, Lawrence M. Daniels and Allison H. Chung,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
>
Appellant Johnny Bustos III, appeals from the judgment entered
following his convictions by jury on two counts of
name="_ftnref1" title="">[1] count 1 & 2) and on
count 3 – continuous sexual abuse (§ 288.5, subd. (a)), with court findings he
suffered a prior felony conviction (§ 667, subd. (d)), a prior serious felony
conviction (§ 667, subd. (a)), and a prior sex offense conviction (§ 667.61,
subds. (a), (c), & (d)(1)). The
court sentenced appellant to prison for 155 years to life. We modify the judgment and, as modified,
affirm it.
1. Facts
Pertaining to the Present Offenses.
Viewed
in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence
established that A.J. was born in March 1998.
In 1998, appellant became involved with C.B. (C.B.), A.J.’s mother and,
in 2003, appellant and C.B. married.
A.J., appellant, and C.B. lived in an apartment in Monrovia. The below acts occurred there.
From
the time A.J. was little to the time she was 12 years old in about 2010,
appellant, perhaps 20 to 30 times, awakened her in bed and digitally penetrated
her vagina. In February 2002, when C.B.
was in the hospital, appellant digitally penetrated A.J.’s vagina two to four
times while bathing her.
In
2004 or 2005, when A.J. was six or seven years old, respectively, A.J. was
lying on a couch in the living room when appellant lay behind her, put his
penis between her legs and on her buttocks, and repeatedly pressed against her
perhaps 10 minutes. During this time,
appellant digitally penetrated A.J.’s vagina.
Also, from the time A.J. was six or seven years old to the time she was
12 years old, appellant, on 40 or 50 occasions, digitally penetrated her vagina
while she sat on his lap, under a blanket, while the family watched
television.
In 2007 when A.J. was about nine
years old, appellant digitally penetrated her vagina while she was lying on the
living room sofa and watching television.
Appellant also removed her pants, put his penis between her legs, and
rubbed his penis on her buttocks. During
an eight-year period, appellant inappropriately touched A.J. 40 to 50 times.
In the summer of 2009, when A.J. was
about 10 years old, appellant told A.J. to sit on a bed and she complied. He pulled her legs on the bed, removed her
pants, digitally penetrated her vagina, and bit her buttocks. He also orally copulated her vagina (count
1). On another occasion in the summer of
2009, appellant pulled A.J. into his bedroom and began “fingering†and
inappropriately touching her. He removed
her underwear and engaged in sexual intercourse with her (count 2).
A.J.’s stepbrother lived in the
apartment and, when A.J. was 12 years old, she told her stepbrother about the
abuse. Appellant stopped touching her
for a few months, but later resumed when A.J.’s stepbrother moved out of the
apartment. A few days before December 15, 2009,
appellant, in his bedroom, placed his hands in A.J.’s pants and digitally
penetrated her vagina. Appellant stopped
when C.B. approached, and he told A.J. not to say anything. In 2009, C.B. learned about the abuse and
took A.J. to a hospital where a sexual assault nurse examined A.J.
Appellant
presented no defense evidence. The parties stipulated police took A.J. home
after the nurse’s examination, retrieved clothing A.J. was wearing “on the date
of the incident of December 13,†but did not perform any tests on that
clothing.
2. Prior
Uncharged Offenses.
V.G.
was born in 1983. She was the daughter
of appellant’s former girlfriend. From
the time V.G. was nine years old to the time she was 11 years old, appellant
would get in bed with her almost every night, touch her breasts and vagina, and
try to kiss her. He also touched V.G.’s
vagina more than 20 times. On one
occasion during that period, he was driving V.G. in his car when he put his
tongue in her mouth. On another occasion
during that period, he was driving V.G. in his car while touching her
vagina.
In
early 1994, V.G. was at her aunt’s house when appellant lay on top of V.G. and
rubbed the front of his body on the front of V.G.’s body. Appellant engaged in this type of conduct
more than 10 times. In August 1994, when
V.G. was 11 years old, V.G. was in bed when appellant got in bed with her,
touched her vagina and breasts, moved his penis between her legs, and
unsuccessfully tried to get her to touch his penis. Appellant rubbed V.G.’s vagina on numerous
occasions.
Appellant claims his convictions must be vacated and the
matter must be remanded to permit the trial court to determine whether he will
stand convicted on counts 1 and 2, or, in the alternative, on count 3, and for
resentencing.
Appellant’s Conviction on Count 3 Must Be Vacated, and Remand is
Unnecessary.
1. Pertinent Facts.
The information alleged as to each of counts 1 and 2 that on or between
January 1, 2009, and December 13, 2009, appellant committed a lewd act upon a
child (§ 288, subd. (a)), i.e., A.J.
The information alleged as count 3 that on or between
April 1, 2001, and December 13, 2009, appellant committed continuous
sexual abuse (§ 288.5, subd. (a)) upon A.J. Neither count 1 nor count 2 was alleged in
the alternative to count 3.
During her opening statement, the prosecutor indicated counts 1 and 2
were based on appellant’s oral copulation of A.J.’s vagina, and his sexual
intercourse with her, respectively, in the summer of 2009. The prosecutor indicated count 3 was based on
appellant’s sexual abuse of A.J. when she was between the ages of four years
old and 12 years old, inclusive. During
opening argument, the prosecutor repeated the above except she indicated the
abuse at issue in count 3 began when A.J. was five years old.
The jury convicted appellant as previously indicated. During the sentencing hearing, appellant
argued counts 1 and 2 “[fell] within the range†of count 3, the issue “[went]
toward sentencing,†and the issue was whether counts 1 and 2 “merge[d]†into
count 3, but appellant did not explicitly argue multiple convictions on counts
1 through 3 were improper. The
prosecutor argued multiple convictions and sentences on those counts were
proper.
The court sentenced appellant to prison for 50 years to life on each of
counts 1 and 2 (25 years to life on each of counts 1 and 2 pursuant to section
667.61, subdivisions (a), (c)(8), and (d)(1), doubled pursuant to the Three
Strikes law (§ 667, subd. (e)(1)); plus 50 years to life on count 3 (25 years
to life pursuant to section 667.61, subdivisions (a), (c)(9), and (d)(1),
doubled pursuant to the Three Strikes law); plus five years pursuant to section
667, subdivision (a).
2. Analysis.
Appellant claims
as previously indicated. We reject the
claim, although we do agree appellant cannot be convicted of all three
offenses. Section 288.5, which defines
the crime of continuous sexual abuse, states, in relevant part, “(a) Any person who either
resides in the same home with the minor child or has recurring access to the
child, who over a period of time, not less than three months in duration,
engages in three or more acts of substantial sexual conduct with a child under
the age of 14 years at the time of the commission of the offense, as defined in
subdivision (b) of Section 1203.066, or three or more acts of lewd or
lascivious conduct, as defined in Section 288, with a child under the age of 14
years at the time of the commission of the offense is guilty of the offense of
continuous sexual abuse of a child and shall be punished by imprisonment in the
state prison for a term of 6, 12, or 16 years.
“(b) To convict under this section the
trier of fact, if a jury, need unanimously agree only that the requisite number
of acts occurred not on which acts constitute the requisite number. [¶] (c) No other act of substantial sexual conduct, as defined in
subdivision (b) of Section 1203.066, with a child under 14 years of age at the
time of the commission of the offenses,
or lewd and lascivious acts, as defined in Section 288,
the same proceeding with a charge under this section unless the other
charged offense occurred outside the time
period charged under this section or the other offense is
count under this section unless more than one victim is
involved . . . .â€
(Italics added.)
In
abuse and five counts of specific sexual offenses, i.e., four violations of
section 288, subdivision (b), and one violation of section 286, subdivision
(c). The continuous sexual abuse count,
and the counts pertaining to the five specific sexual offenses, were not
alleged in the alternative. Following
the defendant’s conviction on all counts, the trial court imposed sentence on
the continuous sexual abuse conviction and stayed sentencing on the remaining
convictions pursuant to section 654.
Relying on section 288.5, subdivision (c), the appellate court reversed
the convictions on the five specific sexual offenses. The appellate court reasoned that since
section 288.5, subdivision (a) prohibits charging continuous sexual abuse and
another sexual offense occurring during the same time period, unless the offenses
are charged in the alternative, the defendant could not be convicted of both
continuous sexual abuse and the acts underlying that abuse. Effectively concluding the continuous sexual
abuse offense, and the five specific sexual offenses, occurred during the same
period, the appellate court concluded “either the continuous abuse conviction
or the convictions on the specific offenses must be vacated.†(Johnson,
supra, 28 Cal.4th at pp. 244-245.)
Our Supreme Court
affirmed the appellate court’s decision.
(Johnson, supra,
28 Cal.4th at p. 244.) After
discussing various circumstances in which prosecutors could seek convictions
and punishments in sex cases involving juvenile victims, Johnson stated, “Because, . . . section 288.5, subdivision (c)
clearly mandates the charging of continuous sexual abuse and specific sexual
offenses, pertaining to the same victim over the same period of time, only in
the alternative, [prosecutors] may not obtain multiple convictions in the
latter circumstance.†(
convictions on the five specific sexual offenses because multiple convictions
for continuous sexual abuse and the five specific sexual offenses was improper,
as was the staying of the sentences on the latter counts. Johnson
did not address the issue pertinent to this appeal, that is, which of the
multiple convictions in that case should have been reversed, i.e., the
continuous sexual abuse conviction or the convictions on the five specific
sexual offenses. The appellate court in
decision. Johnson does not help appellant.
In
1170 (Alvarez), in pertinent part,
the information alleged one count of continuous sexual abuse and three counts
of specific sexual offenses, i.e., a violation of section 288, subdivision (b),
and two violations of section 288, subdivision (a). All of the above offenses involved the same
victim and were alleged to have occurred during the same period. (Id.
at p. 1173.) The continuous sexual abuse
count, and the remaining counts, were not alleged in the alternative. (Id.
at p. 1176.)
At the conclusion
of the court trial in Alvarez but
before the trial court convicted the defendant on any count, the trial court
suggested that if it convicted the defendant of continuous sexual abuse, the
court could not convict him on the remaining offenses. In response, the People moved to dismiss the
continuous sexual abuse count and the court granted the motion. The court subsequently convicted and
sentenced the defendant on the remaining counts. (Id.
at p. 1174.)
The defendant in
dismissing the continuous sexual abuse count instead of the three counts for
specific sexual offenses; therefore, he was improperly convicted and sentenced
on the three counts. (
concluded the defendant waived the issue of the propriety of the People’s
prosecution of the defendant on all of the offenses by failing to raise the
issue by way of a demurrer. (
also concluded the trial court properly dismissed the continuous sexual abuse
count and properly convicted him on the three counts for specific sexual
offenses.
at pp. 1175-1177.) Alvarez noted Johnson
involved multiple convictions for continuous sexual abuse and other specific
sexual offenses while, in Alvarez,
the trial court dismissed the continuous sexual abuse count before the trial
court had convicted the defendant of anything.
(Id. at pp. 1174, 1176.)
adopted to prevent child molesters from evading conviction, could be used by
those molesters to circumvent multiple convictions with more severe penalties
and prior-strike consequences than available for a conviction under section
288.5.†(Alvarez, supra, 100 Cal.4th at pp. 1177-1178.)
Unlike the trial
court in Alvarez, the trial court in
the present case did not dismiss the continuous sexual abuse count. Nonetheless, the above quoted statement in
conclusion that, in this case, we should simply vacate appellant’s conviction
on count 3. It would be anomalous if
section 288.5 could be used to circumvent multiple convictions (on counts 1 and
2 in the present case) with more severe penalties (50 years to life as to each
of counts 1 and 2, to be served consecutively, resulting in a total minimum
prison term of 100 years) and prior-strike consequences than available for a
conviction under section 288.5 (50 years to life on count 3 in the present
case).
illuminating. In Torres, in pertinent part, the information alleged one count of
continuous sexual abuse and 10 counts of specific sexual offenses. (Id.
at p. 1056.) All of the above offenses
involved the same victim and were alleged to have occurred during the same
period. (Ibid.) The continuous sexual
abuse count, and the remaining counts, were not alleged in the
alternative. (Id. at p. 1057.) Following
the defendant’s conviction on all of the above counts, the trial court
sentenced him to six years in prison for his continuous sexual abuse conviction
but stayed execution of that sentence. (
for a total of 21 years on four of the 10 convictions (each of those four
convictions was for rape) and the court imposed concurrent sentences on the
remaining six convictions. (
remedy for a violation of the proscription against multiple convictions set
forth in section 288.5, subdivision (c), that we leave appellant standing
convicted of the alternative offenses that are most commensurate with his culpability. Here, appellant was alleged to have
committed, and the prosecution proved, not only the three acts necessary to
establish a continuous sexual abuse violation, but also 10 separate felony sex
offenses against Adela including four counts of rape. [Fn. omitted.] Because of the number and severity of these
specific offenses, appellant faced a greater maximum aggregate penalty with
respect to these than he did on the continuous sexual abuse offense. The court also imposed a greater aggregate sentence
with respect to the specific offenses than on the section 288.5 offense, and
stayed execution of sentence on the latter.
In these circumstances we conclude the appropriate remedy is to
reverse the conviction for violating section 288.5.†(Torres,
supra, 102 Cal.App.4th at pp. 1059-1060, first italics added.)
In the present
case, appellant was alleged to have committed, and the prosecution proved, not
only the three acts necessary to establish continuous sexual abuse, but also
two separate felony sex offenses against A.J., i.e., counts 1 and 2, involving
oral copulation and sexual intercourse, respectively. Because of the number and severity of these
specific offenses, appellant faced a greater maximum aggregate penalty with
respect to these than he did on the continuous sexual abuse offense. The court also imposed a greater aggregate
sentence with respect to the specific offenses than on the section 288.5
offense. These facts, similar to those
in Torres, militate towards a
conclusion we should vacate appellant’s conviction for continuous sexual abuse
(count 3).
(Bautista), cited by appellant, does
not help him. In Bautista, in pertinent part, the defendant was convicted on one
count of continuous sexual abuse, and on four counts of specific sexual
offenses, i.e., four counts of procurement in violation of section 266j. (Id.
at p. 1433.) All of the above offenses
involved the same victim and occurred during the same period. (Ibid.) The continuous sexual abuse count, and the
remaining counts, had not been alleged in the alternative. (Id.
at p. 1436.) Following the defendant’s
conviction on all of the above counts, the trial court sentenced the defendant
to prison for 12 years for her continuous sexual abuse conviction but stayed
the sentences on the remaining counts. (
erroneously convicted on the continuous sexual abuse count and on the four
procurement counts. (
the child (C.), Bautista stated,
“Bautista has not suggested how a conviction of four counts of procuring C. is
in any way more commensurate with her culpability than a conviction of
continuous sexual abuse of C., and we fail to see how convicting Bautista only
of procurement is in any way proportionate to the egregious criminal conduct in
which she engaged. Consequently, we
affirm the conviction of continuous sexual abuse of C., and vacate her
convictions of procurement of C.†(
Although
specific sexual offenses in that case, Bautista
is distinguishable from the present case and does not compel the vacating of
appellant’s convictions for the specific sexual offenses in this case, i.e.,
his convictions on counts 1 and 2. As a
matter of culpability, procuring in violation of section 266j can occur as a
preliminary or inchoate offense, i.e., by the commission of specified conduct
on a minor, whether or not the illicit sexual conduct, e.g., the lewd act, in
fact occurs.
title="">[3] On the other hand, appellant’s convictions on
counts 1 and 2 were not for preliminary offenses but for illicit sexual conduct
with A.J., i.e., oral copulation and sexual intercourse, respectively.
Moreover, a
violation of section 266j can occur based on illicit sexual activity committed
upon a minor by someone other than the defendant, while appellant’s convictions
as to counts 1 and 2 were based on illicit sexual activity that he himself
committed upon A.J. Further,
any, of the sentences (potential or actual, individual or aggregate) applicable
to the specific sexual offenses in that case on the issue of whether the
convictions for those offenses, or the conviction for continuous sexual abuse,
should have been vacated.
There is no need
to remand this matter; the sole issue is whether the convictions on counts 1
and 2 are to be vacated or, in the alternative, whether the conviction on count
3 is to be vacated. Except as noted in
footnote 4, post, there is no dispute
as to what appellant’s sentence should be if his conviction on count 3 is
vacated. In accord with
alternative offenses that are most commensurate with his culpability†(
p. 1059), i.e., his convictions on counts 1 and 2. Respondent concedes we should simply vacate
appellant’s conviction on count 3. We
accept the concession and vacate appellant’s conviction on that count.
The
judgment is modified by vacating appellant’s conviction for continuous sexual
abuse (§ 288.5, subd. (a); count 3) and, as modified, the judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING,
J.
We concur:
KLEIN,
P. J.
ALDRICH, J.
name="_ftn1" title="">[1] Subsequent statutory
references are to the Penal Code.
name="_ftn2" title="">[2] Alvarez concluded the defendant’s sentence was erroneous for a
separate reason and remanded for resentencing.
(Alvarez, supra, 100 Cal.4th at p. 1172.)
