Opinion
F073550
12-21-2018
THE PEOPLE, Plaintiff and Respondent, v. VALERIANO ARROYO-CRUZ, Defendant and Appellant.
Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF160111A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Thomas S. Clark, Judge. Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Valeriano Arroyo-Cruz was charged with and convicted by jury of sodomy of a child 10 years of age or younger (Pen. Code, § 288.7, subd. (a)) (count 1), oral copulation or sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b)) (count 2), and continuous sexual abuse of a child under the age of 14 years (§ 288.5, subd. (a)) (count 3). The trial court sentenced defendant to a total term of 40 years to life in prison plus 16 years as follows: an indeterminate term of 25 years to life on count 1; a consecutive indeterminate term of 15 years to life on count 2; and a consecutive determinate term of 16 years on count 3.
All further statutory references are to the Penal Code unless otherwise specified.
Defendant was charged with committing the discrete acts of sexual abuse underlying count 1 between April 1, 2014, and April 1, 2015; the discrete acts of sexual abuse underlying count 2 between July 25, 2012, and March 30, 2014; and continuous sexual abuse between July 25, 2012, and April 1, 2015. On appeal, defendant claims he is entitled to reversal of count 3 because convictions for both discrete acts of sexual abuse and continuous sexual abuse against the same victim during the same time period are precluded as a matter of law under section 288.5, subdivision (c). The People argue that defendant forfeited his claim, but they concede count 3 must be reversed if we conclude the forfeiture doctrine does not apply.
The charged offenses were committed against the same victim when she was between six and eight years old. The issue raised on appeal does not involve any disputed issues of fact and, therefore, a summary of the facts underlying defendant's offenses is unnecessary.
For the reasons set forth below, we reject the People's forfeiture argument and, in accordance with the California Supreme Court's decision in People v. Johnson (2002) 28 Cal.4th 240, 248 (Johnson), we agree with the parties that count 3 must be reversed. The judgment is otherwise affirmed.
DISCUSSION
I. Summary of Parties' Positions
The discrete acts of sexual abuse underlying counts 1 and 2 overlap in time with the period of continuous sexual abuse underlying count 3, and defendant argues that, under these circumstances, section 288.5, subdivision (c), prohibits his conviction on count 3. Anticipating the People's argument, defendant also contends his failure to demur or object to the information on this ground does not forfeit his challenge to the improper conviction.
The People do not dispute that section 288.5, subdivision (c), required the prosecutor to charge the counts in the alternative since the conduct involved the same victim during the same time period or that the prosecutor failed to do so. (Johnson, supra, 28 Cal.4th at p. 248.) However, relying on People v. Goldman (2014) 225 Cal.App.4th 950 (Goldman), they argue that defendant forfeited his challenge by failing to demur or object to the information. Should we disagree, they concede count 3 must be reversed.
II. Background
Section 288.5 provides:
"(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, involving the same victim may be charged in 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 charged in the alternative. A defendant may be charged with only one count under this section unless more than one victim is involved in which case a separate count may be charged for each victim."
In Johnson, the California Supreme Court addressed section 288.5 in circumstances analogous to those here: the defendant was charged with the continuous sexual abuse of a child under section 288.5 and with discrete acts of sexual abuse under other statutes. (Johnson, supra, 28 Cal.4th at p. 243.) The prosecutor did not charge the offenses in the alternative and the time periods charged overlapped. (Ibid.)
The court explained that section 288.5 was enacted in 1989 to solve "a recurrent problem in the prosecution of so-called resident child molesters: Because of the age of the victim and the repeated and continual nature of the offenses, trial testimony often failed to identify with specificity the date or place of particular charged acts, and the defense's ability to respond to specific charges arguably was impaired." (Johnson, supra, 28 Cal.4th at p. 242.) Prior to the statute's enactment, Courts of Appeal were reversing "convictions obtained through the use of such 'generic' testimony ...." (Ibid.) Following its enactment, "the trier of fact need unanimously agree only that the requisite number of specified sexual acts occurred, not which acts constituted the requisite number." (Id. at p. 243.)
In Johnson, the Court of Appeal had reversed the defendant's convictions on five of the six counts on the ground "that the plain language of section 288.5, subdivision (c) precluded convictions on both the continuous sexual abuse charge and the individual sexual offenses." (Johnson, supra, 28 Cal.4th at p. 244.) In doing so, the Court of Appeal disagreed with People v. Valdez (1994) 23 Cal.App.4th 46 (Valdez), an earlier decision in which another Court of Appeal "held that the charge-in-the-alternative language of section 288.5, subdivision (c) precluded multiple punishment, but not multiple convictions ...." (Johnson, supra, at p. 244, citing Valdez, supra, at pp. 48-49.)
The California Supreme Court disapproved the holding in Valdez. (Johnson, supra, 28 Cal.4th at p. 244.) It found the statutory language clear and unambiguous, and it recognized that "[p]rosecutors in sexual abuse cases possess a variety of means to seek convictions and severe punishments in cases involving sexual offenses against vulnerable young victims. They may, for example, plead and prove discrete sexual offenses and seek consecutive sentencing when permitted; they may bring a charge of continuous sexual abuse, with its relatively severe range of punishments (§ 288.5, subd. (a)); they may charge continuous sexual abuse and discrete sexual offenses outside the period of the alleged continuous abuse [citation]; in appropriate circumstances, they may plead and prove the allegations required by section 667.61, the 'One Strike' law; or they may charge discrete sexual offenses and continuous sexual abuse in the alternative. Because, however, 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, they may not obtain multiple convictions in the latter circumstance." (Id. at p. 248.)
III. Forfeiture
Defendant did not demur to the information charging him in counts 2 and 3 with both discrete acts and continuous abuse during the same time period nor did he object to the later amendment of the information expanding the time period underlying count 3 so that it also overlapped with the discrete acts underlying count 1. He acknowledges the decision in Goldman, in which the Court of Appeal held that the defendant's failure to demur resulted in the forfeiture of his challenge to dual convictions for discrete acts and continuous abuse during an overlapping time period. (Goldman, supra, 225 Cal.App.4th at p. 954.) He argues, however, that the forfeiture doctrine does not apply to a facial constitutional claim, which presents a purely legal challenge. (In re Sheena K. (2007) 40 Cal.4th 875, 889 [declining to apply forfeiture rule to constitutional claim that presented pure question of law of importance].) He also argues that the failure to object does not forfeit a challenge to an unauthorized sentence. (Id. at p. 887 ["A sentence is said to be unauthorized if it cannot 'lawfully be imposed under any circumstance in the particular case' [citation], and therefore is reviewable 'regardless of whether an objection or argument was raised in the trial and/or reviewing court.'"].)
As previously stated, the People cite Goldman for the proposition that defendant's failure to demur forfeits the issue on appeal. We do not agree.
Relying on sections 1004 and 1012, which govern, in relevant part, legal bars to prosecution and waiver by failure to demur, the Goldman court concluded that "[b]ecause [section 288.5 contains] a legal bar to prosecution, a defendant must demur to preserve for appeal an objection to the improper charging." (Goldman, supra, 225 Cal.App.4th at p. 956.) Goldman cited to People v. Alvarez (2002) 100 Cal.App.4th 1170, 1176-1177 (Alvarez) for this proposition. However, Alvarez did not hold that a defendant's failure to demur at trial forfeits any challenge on appeal to convictions obtained in violation of section 288.5, subdivision (c). (Alvarez, supra, at pp. 1176-1177.) Rather, the defendant in Alvarez waived trial by jury and was convicted by the court. (Id. at pp. 1173-1174.) After trial but before the court rendered its decision, the court told the parties that if it found the defendant guilty of the continuous sexual abuse offense pursuant to section 288.5, it could not find him guilty of certain other discrete sexual abuse offenses. (Alvarez, supra, at p. 1174.) The prosecutor then moved to dismiss the continuous abuse charge and, over the defendant's objection, the court granted the motion, dismissed the continuous abuse charge and found the defendant guilty of various discrete sexual abuse offenses. (Ibid.)
Section 1004 provides: "The defendant may demur to the accusatory pleading at any time prior to the entry of a plea, when it appears upon the face thereof either:
"1. If an indictment, that the grand jury by which it was found had no legal authority to inquire into the offense charged, or, if an information or complaint that the court has no jurisdiction of the offense charged therein;
"2. That it does not substantially conform to the provisions of Sections 950 and 952, and also Section 951 in case of an indictment or information;
"3. That more than one offense is charged, except as provided in Section 954;
"4. That the facts stated do not constitute a public offense;
"5. That it contains matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution."
On appeal, the defendant challenged the trial court's ruling and argued the court should have dismissed the discrete lewd conduct counts and convicted him on the continuous sexual abuse count. (Alvarez, supra, 100 Cal.App.4th at p. 1175.) The Court of Appeal addressed the California Supreme Court's then-recent decision in Johnson and stated, "Unlike in Johnson, [the] appellant here was not subjected to multiple convictions since he was not convicted of both continuous sexual abuse and specific sexual offenses. The issue presented, which Johnson was not called upon to resolve, is whether Johnson's prohibition against multiple convictions can be achieved by dismissing the continuous sexual abuse count, rather than the specific sexual offenses." (Alvarez, supra, at p. 1176.) The court concluded that by failing to demur to the pleading, the defendant forfeited his claim on appeal "that the prosecution lost its right to proceed on all of the counts and to elect to seek conviction of the specific sexual offenses." (Id. at p. 1177, fn. omitted.) Accordingly, to the extent Goldman stands for the broad proposition that the failure to object in the trial court forfeits a challenge on appeal to multiple convictions obtained in contravention of section 288.5, subdivision (c), as it appears, the court's reliance on Alvarez is misplaced.
"[N]either forfeiture nor application of the forfeiture rule is automatic." (People v. McCullough (2013) 56 Cal.4th 589, 593.) The California Supreme Court has held that section 288.5, subdivision (c), prohibits prosecutors from obtaining multiple convictions for continuous sexual abuse and specific sexual offenses involving the same victim over the same period of time. (Johnson, supra, 28 Cal.4th at p. 248.) Moreover, "[a] sentence is said to be unauthorized if it cannot 'lawfully be imposed under any circumstance in the particular case' [citation], and therefore is reviewable 'regardless of whether an objection or argument was raised in the trial and/or reviewing court.'" (In re Sheena K., supra, 40 Cal.4th at p. 887; accord, People v. Shabtay (2006) 138 Cal.App.4th 1184, 1192 ["While a demurrer does lie to challenge an improper charging of more than one offense under section 954, the failure to demur does not justify a multiple conviction that is improper as a matter of law."].) The crux of defendant's challenge is that his conviction for continuous sexual abuse is unauthorized as a matter of law under section 288.5, subdivision (c). Under these circumstances, we conclude defendant did not forfeit the issue on appeal.
IV. Propriety of Dual Convictions
As previously set forth, the parties agree that the discrete acts of sexual abuse underlying counts 1 and 2 overlapped in time with the continuous sexual abuse underlying count 3, and the prosecutor did not charge the offenses in the alternative. (Johnson, supra, 28 Cal. 4th at p. 248.) Following Johnson, it is clear that prosecutors may not obtain multiple convictions under such circumstances, as the People concede. (Ibid.)
Courts have held that where a conviction must be vacated for violating section 288.5, subdivision (c), the defendant shall be left "standing convicted of the alternative offenses that are most commensurate with his culpability." (People v. Torres (2002) 102 Cal.App.4th 1053, 1059; accord, People v. Bautista (2005) 129 Cal.App.4th 1431, 1437-1438.) In this case, counts 1 and 2 are "most commensurate with [defendant's] culpability" and, therefore, we agree with the parties that count 3 must be reversed. (People v. Torres, supra, at p. 1059.)
Defendant's convictions for violating section 288.7, subdivisions (a) and (b), resulted in the imposition of mandatory terms of 25 years to life (count 1) and 15 years to life (count 2). In contrast, the sentencing range for continuous sexual abuse in violation of section 288.5, subdivision (a), is 6, 12 or 16 years, and defendant's conviction on count 3 resulted in the imposition of the upper term of 16 years. --------
DISPOSITION
Defendant's conviction on count 3 for violation of Penal Code section 288.5, subdivision (a), is reversed. The judgment is otherwise affirmed. The trial court shall prepare an amended abstract of judgment and forward it to the appropriate authorities.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
FRANSON, J.
Section 1012 provides: "When any of the objections mentioned in Section 1004 appears on the face of the accusatory pleading, it can be taken only by demurrer, and failure so to take it shall be deemed a waiver thereof, except that the objection to the jurisdiction of the court and the objection that the facts stated do not constitute a public offense may be taken by motion in arrest of judgment."