P. v. Villaneuva
Filed 6/21/12 P. v. Villaneuva CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
ROGELIO VILLAREAL
VILLANUEVA,
Defendant and Appellant.
G045585
(Super. Ct. No. 09HF0594)
O P I N I O N
Appeal
from a judgment of the Superior Court of
County, James
A. Stotler, Judge.
Affirmed in part and reversed in part.
Melissa
Hill, 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, Christine Levingston
Bergman and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and
Respondent.
Rogelio Villanueva
appeals from a judgment sentencing him to life in prison for committing
multiple sex crimes against multiple children.
He contends: 1) his convictions on six of the counts must be reversed
under the lesser included offense doctrine; 2) some of the charges were
time-barred; and 3) his sentence is cruel
and unusual. As the Attorney General
concedes, the first contention has merit.
We will therefore reverse appellant’s convictions on six of the
counts. In all other respects, we
affirm.
FACTS
name="_ftnref1" title="">[1]
In December 2003,
Vanessa A. was 13 years old. One day
when she came home from school, appellant, her defacto stepfather, told her it
was time she learned how to kiss for her future boyfriends. He then forced open her mouth by pressing her
cheeks together and stuck his tongue inside her mouth. Frightened by appellant’s actions, Vanessa
pushed him away, ran to her room and locked the door. Although she was very troubled about what had
happened, she did not tell anyone because she did not want to cause problems
for her family.
That
incident marked the beginning of appellant’s sexual exploitation of
Vanessa. Over the course of the next
year, he routinely kissed her against her will and made lewd comments about her
body. He also touched her breast and
buttocks over and under her clothing.
Then, in 2004-2005, when Vanessa was 14, he forcibly raped her on two
occasions. He also raped her twice
between December 2007 and April 2009.
And, he put his mouth on her vagina on two separate occasions during
that time period.
Vanessa was not
appellant’s only victim. During
1996-1997, he forcibly kissed Vanessa’s 12-year-old aunts Lucia G. and Rosario
P. on separate occasions when he had them alone in his car. Appellant used the same cheek-squeezing
technique on Rosario that he used on Vanessa. And in Lucia’s case, he grabbed hold of her,
forced his tongue inside her mouth, and did not relent until she bit his tongue.
Trial was by jury. Appellant was convicted of six counts of
forcible lewd conduct on a child, based on his actions in kissing Vanessa,
Lucia and Rosario and touching Vanessa’s buttocks. (Pen. Code, § 288, subd. (b)(1).)
those six counts, appellant was also convicted of the lesser included offense
of lewd conduct on a child. (§ 288,
subd. (a).) In addition, appellant was
convicted of raping and orally copulating Vanessa and touching her lewdly when
she was at least 10 years his junior.
(§§ 261, subd. (a)(2); 288a, subd. (c)(2); 288, subd. (c)(1).)
The
jury also found true the special allegation appellant committed a forcible lewd
act against more than one child, in violation of the One Strike law. (§ 667.61, subd. (e).) Therefore, the court sentenced appellant to
consecutive terms of 15 years to life on each of the six counts involving that
conduct. (§ 667.61, subd. (b).) Appellant received the same sentence on the
six counts involving the lesser included offense of lewd conduct on a child,
but the court stayed his sentence on those counts. (§ 654.)
As to the remaining counts, appellant received a determinate term of 30
years, bringing his aggregate sentence to 120 years in prison.
I
The parties agree
appellant should not have been convicted of the six counts of lewd conduct on a
child. Because those counts were based
on the very same acts that formed the basis of his convictions for forcible lewd
conduct on a child, and because lewd conduct on a child is a lesser included
offense of forcible lewd conduct on a child (People v. Ward (1986) 188 Cal.App.3d 459), we reverse his
convictions on those six counts. (
1227-1228; People v. Pearson (1986)
42 Cal.3d 351, 355.)
II
Appellant also claims
the charges regarding Lucia and Rosario were time-barred because they were not
prosecuted within six years from the time they arose. He is wrong.
In counts 15 and 17,
appellant was charged with committing a forcible lewd act on Lucia and Rosario,
respectively. The crimes were alleged to
have occurred between 1996 and 1997 and are punishable by a maximum sentence of
eight years in prison. (§ 288,
subd. (b)(1).) The statute of
limitations for crimes punishable as such is generally six years. (§ 800.)
Yet appellant’s prosecution did not commence until 2009, well beyond
that time limit.
But that does not mean
counts 15 and 17 were time-barred. As to
those counts, the jury also found true the special allegation appellant
committed the alleged crimes against more than one victim, in violation of the
One Strike law. (§ 667.61, subd.
(e).) That transformed the maximum
punishment for those crimes from eight years, to fifteen years to life, in
prison. (§ 667.61, subd. (b).) Since an offense punishable by life in prison
“may be commenced at any time†(§ 799), appellant’s prosecution was
timely.
In arguing otherwise,
appellant relies on section 805. That
section provides: “For the purpose of
determining the applicable limitation of time pursuant to this chapter: [¶] (a) An offense is deemed punishable by
the maximum punishment prescribed by statute for the offense, regardless of the
punishment actually sought or imposed. Any enhancement of punishment prescribed by
statute shall be disregarded in determining the maximum punishment prescribed
by statute for an offense.â€
(§ 805, subd. (a), italics added.)
Appellant contends the
One Strike law should be treated as an “enhancement†for purposes of this
provision. However, “the One Strike law
does not establish an enhancement, but ‘sets forth an
scheme for certain enumerated sex crimes’ when a defendant commits one of those
crimes under specified circumstances.
[Citations.]†(
118-119.) As an alternative sentencing
scheme, the law operates to increase the base term, unlike an enhancement which
is imposed as an additional term of imprisonment over and above the base. (People
v. Jones (1997) 58 Cal.App.4th 693, 709.)
Although the legal distinction between an
alternative sentencing scheme and an enhancement is one that has developed over
time (see generally People v. Brookfield (2009) 47 Cal.4th 583 [discussing gang and firearm provisions]), “the narrow, technical definition of ‘enhancement’ [was well known] back
in 1984, when the current statute of limitations scheme was enacted. [Citations.]â€
(Anthony v. Superior Court
(2011) 188 Cal.App.4th 700, 719.) Therefore, it is reasonable for us to apply
that distinction in this case. Because
the One Strike law does not fit the long-standing definition of an enhancement,
it does not constitute an enhancement for purposes of section 805.
Appellant nevertheless
claims we should disregard the One Strike law in determining the
under People v. Turner (2005) 134
Cal.App.4th 1591. However,
One Strike case. The reason the
Strikes law in determining the applicable statute of limitations for the
defendant’s crimes in that case is because the punishment prescribed under that
law applies to a particular offender based
on his past criminal conduct, not on the particular circumstances attendant
to his present offenses. (
Unlike the life sentence
at issue in Turner, appellant’s life
sentence was not predicated on past criminal
behavior. Rather, it was based on
the fact he victimized multiple children in carrying out the charged
offenses. We agree with the Sixth
Appellate District that, under these circumstances, Turner is inapt; indeed, Turner
“should be narrowly construed to apply only to the antirecidivist Three Strikes
law, and not the One Strike Law, which punishes, as relevant here, not
recidivism but the commission of sexual offenses against more than one
victim.†(People v. Perez (2010) 182 Cal.App.4th 231, 241; accord,
Cal.App.4th at p. 717 [Turner must be
limited to its particular facts because it “was entirely focused on the nexus
between the statute of limitations scheme and the Three Strikes lawâ€].)
Because the
circumstances of the crimes alleged in counts 15 and 17 “were serious enough to
earn [appellant] a life sentence [under the One Strike law] they were serious
enough to warrant prosecution at any time during his natural life.†(People
v. Perez, supra, 182 Cal.App.4th at pp. 241-242.) Therefore, the crimes were timely
prosecuted.
III
Appellant also raises a
narrow sentencing issue. Although he
received 30 years to life for forcibly touching Vanessa’s buttock on two
occasions, and another 30 years for raping and orally copulating Vanessa and
victimizing her when she was 10 years his junior, he does not contest those
terms. Rather, his claim is limited to
the 15 year to life sentences he received on each of the four remaining counts,
which alleged forcible lewd conduct on child.
Because those counts involved forcible kissing, as opposed to more
serious sexual conduct, appellant claims the aggregate term of 60 years to life
he received on those counts is cruel and unusual. We cannot agree.
Prescribing
the punishment
for a crime is a uniquely legislative function which the courts may not
second-guess unless the penalty is cruel or
477-478.) This occurs when the
punishment is “grossly out of proportion to the severity of the crime†(
173) or is “so disproportionate to the crime for which it is inflicted that it
shocks the conscience and offends fundamental
notions of human dignity.†(
fn. omitted.) The burden of
demonstrating such disproportionality, which occurs “with exquisite rarity in
the case law,†rests with the defendant.
(People v. Weddle (1991) 1
Cal.App.4th 1190, 1196.)
“In determining
whether a particular punishment is cruel and/or unusual, courts examine the
nature of the particular offense and offender, the penalty imposed in the same
jurisdiction for other offenses, and the punishment imposed in other jurisdictions
for the same offense. [Citations.]†(People
v. Alvarado (2001) 87 Cal.App.4th 178, 199.)
Appellant concedes that,
like California, other states have laws that authorize lengthy prison sentences
for sex offenders who commit lewd acts against children. And while California law ordinarily reserves
a sentence of 15 years to life for crimes that are more serious than forcibly
kissing a child, such as second degree murder and attempted premeditated
murder, appellant’s sentence was not due to the commission of single criminal
offense involving a single victim.
Rather, he received 15 years to life on the subject counts because he
victimized multiple children on multiple occasions. As our Supreme Court has recognized, “persons
convicted of sex crimes against multiple victims within the meaning of [the One
Strike law] ‘are among the most dangerous’ from a legislative standpoint†and
that is why the law “contemplates a separate life term for each victim attacked
on each separate occasion.†(
930-931.)
Still,
considering he had no criminal record before this case arose, and given the
subject counts involved forcible kissing,
as opposed to more serious forms of sexual misconduct, appellant contends his
sentence is unconstitutional. The lack
of a prior record is a factor in appellant’s favor, but the kissing wasn’t just
an isolated incident; it occurred repeatedly and was accompanied by force and
intimidation. And with Vanessa, it
allowed appellant to gain a foothold of psychological control that paved the
way for more egregious forms of abuse.
Therefore, we cannot lightly dismiss appellant’s behavior. As to each of his victims, he engaged in
highly exploitive and intrusive conduct that is likely to have long-lasting
effects. Although he received a severe
sentence, we do not believe it is cruel or unusual in any respect. (People
v. Alvarado, supra, 87 Cal.App.4th at pp. 199-201 [rejecting constitutional
challenge to indeterminate sentence imposed pursuant to the One Strike law];
1270, 1277-1282 [same]; People v. Crooks
(1997) 55 Cal.App.4th 797, 803-809 [same].)
DISPOSITION
Appellant’s convictions
for the lesser included offense of lewd conduct on a child in counts 2, 4, 6,
8, 16 and 18 are reversed. In all other
respects, the judgment is affirmed.
BEDSWORTH,
J.
WE CONCUR:
O’LEARY, P. J.
RYLAARSDAM, J.
name="_ftn1" title=""> [1]
Appellant complains in his
reply brief that respondent’s statement of facts is taken from the probation
report and fails to include precise citations to the record. However, we decline to consider appellant’s
request to strike respondent’s statement of facts because his request was not
properly served and filed in a written motion as required by the Rules of
Court. (Cal. Rules of Court, rule
8.54(a)(1).)
name="_ftn2" title=""> [2] Although
the evidence indicated appellant committed numerous acts of forcible lewd
conduct on Vanessa, the prosecution only charged him with four of those acts,
based on the first and last time he forcibly kissed her and first and last time
he forcibly touched her buttocks.
All
further statutory references are to the Penal Code.
