Opinion
F082390
12-02-2022
THE PEOPLE, Plaintiff and Respondent, v. VICTOR HUGO BECERRA, Defendant and Appellant.
Wallin & Klarich, Stephen D. Klarich, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF365745. Juliet L. Boccone, Judge.
Wallin & Klarich, Stephen D. Klarich, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SMITH, J.
INTRODUCTION
Over a period of three to four years, defendant Victor Hugo Becerra sexually molested four girls under the age of 14. The victims were all adults at the time of trial. Becerra was convicted of numerous counts arising from the sexual assaults and was also convicted of one count of intimidating a witness. He was sentenced to the determinate upper term of three years on the witness intimidation count, with a consecutive indeterminate term of 225 years to life.
On appeal, Becerra contends: (1) the use of the support dog during the victims' testimony was inherently prejudicial and violated his federal constitutional rights to a fair trial and to confront witnesses against him; (2) the trial court abused its discretion when it allowed a support dog to accompany the adult victims during their testimony without a "particularized showing" the victims required the animal's assistance; (3) the prosecutor committed prejudicial misconduct during her closing rebuttal argument by suggesting that "if [the jury] believe[s] [the victims] beyond a reasonable doubt, you can and should convict the defendant, and not doing so is calling [M.S.] and [ASC] and [AMC] and [B.O.] a liar;" (4) cumulatively the alleged errors require reversal; and (5) the trial court improperly calculated his custody credits as to count 20 (Pen. Code, § 136.1, subd. (a)(2)).
All further references are to the Penal Code unless otherwise stated.
On August 18, 2022, this court requested supplemental briefing to address the applicability of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill No. 567) to the trial court's imposition of the aggravated term of three years on count 20 (§ 136.1, subd. (a)(2)). This court received a supplemental briefing letter from the People, but did not receive supplemental briefing from Becerra. In their briefing letter, the People concede Becerra is entitled to the retroactive application of Senate Bill No. 567.
As we discuss further below, we conclude Becerra is entitled to the retroactive benefit of Senate Bill No. 567. Therefore, we vacate the sentence and remand for resentencing. In all other respects, we affirm the judgment.
STATEMENT OF THE CASE
On October 8, 2020, a jury convicted Becerra of four counts of lewd and lascivious upon As.C. (ASC), a minor under 14 years old (§ 288, subd. (a), counts 1-4) with the special allegations Becerra had substantial sexual conduct with her (§ 12033.06, subd. (a)(8)) and there were multiple victims (§ 667.61, subd. (b)); three counts of oral copulation upon Am.C. (AMC), a child under 10 years old (§ 288.7, subd. (b), counts 57); eight counts of lewd and lascivious acts upon AMC, a child under 14 years old (§ 288, subd. (a), counts 8-15) with the special allegations Becerra had substantial sexual conduct with her (§ 12033.06, subd. (a)(8)) and there were multiple victims (§ 667.61, subd. (b)); sexual penetration with B.O., a child under 10 years old (§ 288.7, subd. (b), count 16); a lewd and lascivious act upon B.O., a child under 14 years old (§ 288, subd. (a), count 17) with the special allegations Becerra had substantial sexual conduct with her (§ 12033.06, subd. (a)(8)) and there were multiple victims (§ 667.61, subd. (b)); two counts of lewd and lascivious acts upon M.S., a child under 14 years old (§ 288, subd. (a), counts 18, 19) with the special allegations Becerra had substantial sexual conduct with her (§ 12033.06, subd. (a)(8)) and there were multiple victims (§ 667.61, subd. (b)); and intimidating M.S. from not testifying at a trial or later proceeding (§ 136.1, subd. (a)(2), count 20). Subsequently, as to count 20, the trial court sentenced Becerra to the upper term of three years. The trial court then sentenced Becerra to 15 consecutive terms of 15 years to life (counts 1-7, 11-16, 18, 19). As to counts 8 through 10 and count 17, the trial court stayed these sentences pursuant to section 654. The total aggregate sentence imposed was a determinate term of three years and an indeterminate term of 225 years to life.
Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their first names or initials. No disrespect is intended.
STATEMENT OF THE FACTS
I. Prosecution Case-In-Chief
A. Conduct Concerning ASC
ASC was 22 years old at the time of trial and had an older sister, ALC (ALC), and a younger sister, AMC. She also had an aunt, J.B., who was married to Becerra. ASC attended a church where Becerra taught Sunday School. The highest member of the church was Pastor Edward.
i. Sexual Abuse Allegations (Counts 1-4)
In December 2017, when ASC was 19 years old, she began "thinking about hurting [her]self" because she "kept playing something in [her] head" involving Becerra. ASC spoke with either a therapist or counselor who asked her questions about whether she had been inappropriately touched when she was little. In 2016, ASC told her best friend, Elizabeth, about sexual misconduct by Becerra. That same day, after speaking with the therapist or counselor, ASC told her older sister ALC, her grandmother B.H., and her mother V.R. about the misconduct. V.R. became very upset and called her sisters and the police. The next day, on December 27, 2017, ASC filed a report with the Dinuba Police Department.
ASC testified the first incident occurred when she was 11 years old and in the fifth grade. At this time, ASC was living in an apartment in Dinuba across the street from a Walmart with Becerra and J.B. because her parents had just divorced. AMC and her little brother M.C. also lived in the apartment. The apartment had two rooms, a master bedroom and a second bedroom. Becerra and J.B. slept in the master bedroom and their child, A.B., slept in the second bedroom. A.B. slept in the master bedroom with her parents after the three children moved into the second bedroom.
ASC also testified ALC lived in the apartment, but only "for a little bit."
One night, ASC slept alone on the couch in the living room. AMC and M.C. were also asleep in the living room. Becerra was in the corner of the living room playing video games when ASC fell asleep. ASC wore tights to bed and underneath the tights she wore spandex biker shorts and underwear. During the night, she "felt somebody pulling down [her] pants" and observed Becerra "yanking" and pulling off her tights and spandex. Her underwear ended up at her knees. She knew it was Becerra because he would wear a white T-shirt and boxers at night and observed him wearing this attire that night. She then saw Becerra lean on top of her and felt something "going in [her]." Specifically, she felt the "[p]ressure" of Becerra's penis touch her vagina. All the while, ASC pretended to sleep. Eventually, she turned her body to the side to "act like [she] was kind of waking up." Becerra then put ASC's underwear and tights back on her body but left the spandex off and then left the room. Five to 10 minutes later, ASC went to the master bedroom and told J.B. she had a bad dream. J.B. told her it was probably the videos she watched before bed.
After the incident, ASC believed she could feel something in her stomach so she would "bang [her] stomach against the counter." She thought she was pregnant and wanted to get rid of the baby.
ASC began sleeping in A.B.'s room after the first incident. She slept on the outside of a bed with AMC and M.C. ASC could see the bedroom door from where she slept. On three or more separate nights while ASC slept, Becerra came into the room, knelt next to ASC's bed, and touched her thighs and the outside of her vagina with his hand underneath her clothes and on her skin. ASC again pretended to sleep. Becerra would stop touching ASC and leave the room when she pretended to wake up. Other times Becerra attempted to touch ASC's body, but she "would tuck [her] blankets under" her feet causing him to leave.
ii. Evidence Code Section 1108 Incidents
In a separate incident, ASC went with Becerra, J.B., and A.B. to Pismo Beach for a church revival when she was 12 years old. They all drove together in an RV and stayed in Pismo Beach for two weeks. One day during the revival, ASC was alone with Becerra inside the RV. She attempted to leave the RV through the main door when Becerra pulled her in by her waist and kissed her on the lips. ASC pushed him away and ran out of the RV. Afterward, ASC felt scared and believed he would try something more.
ASC again went with Becerra, J.B., and a couple of members from the church to Pismo Beach for a church revival when she was either 14 or 15 years old. She wanted to go home early because she "was scared ... [o]f something happening to [her] again." She ended up leaving early because she felt "[n]auseous, [and] gross."
ASC did not initially tell anyone about the sexual misconduct because she was "scared" due to Becerra being "very high in the church." She did not "think [anyone] would believe [her], because he's from the church."
B. Conduct Concerning AMC
AMC was 19 years old at the time of trial and had two sisters, ASC and ALC. J.B. was her aunt and Becerra was her uncle. When AMC was either seven or eight years old, AMC lived with Becerra and J.B. for a couple of months after her parents divorced. During this time, AMC was sexually molested and only disclosed to a friend because she felt scared and "just learned to deal with it." However, on December 27, 2017, AMC disclosed misconduct to police after hearing what Becerra had done to ASC because she wanted to be on her sister's side and support her.
i. Sexual Abuse Allegations (Counts 5-15)
AMC testified she lived at the apartment in Dinuba across the street from a Walmart when she was either seven or eight years old. On five or more separate nights, while AMC slept in the bedroom with ASC and M.C., Becerra approached the bed and pulled off the blanket. AMC slept in a dress to bed and pretended to sleep. Becerra then took off AMC's underwear and touched the line down the middle of her vagina on the skin with his hands. Her clothes ended up "usually at [her] ankles, [her] underwear were, and [her] dress was usually up." Becerra stopped touching her when she pretended to wake up, but he "hover[ed] in the darkness of the room until [she] would, like, stop pretending to wake up" and then touched her again. In one instance AMC remembered Becerra wore a white T-shirt and boxers.
During this same time period, Becerra orally copulated AMC two or three separate times. During one specific incident, Becerra "use[d] his fingers to open [AMC's] mouth" and placed his erect penis inside her mouth where she had "a loose tooth." As Becerra was going in and out, his penis pushed on the tooth causing it to fall out. AMC "felt like [she] was suffocating." Becerra wore a shirt and boxers during this specific incident.
In a later incident, AMC woke up in the middle of the night at a different apartment and went into the game room where Becerra was playing video games. AMC walked into the room and Becerra said, "Lay down." AMC lay down on her back and Becerra straddled her and "grind[ed]" his penis on the outside of her clothes while he was still dressed.
In a separate incident, AMC and M.C. visited Becerra and J.B. at K.S.'s apartment when she was 11 years old. That night, AMC slept on the couch because she believed Becerra was going to try and inappropriately touch her. Becerra came out and pulled down AMC's underwear and rubbed his fingers inside the line of her vagina. AMC opened her eyes and remembered seeing Becerra wiping his hands off with a napkin.
ii. Separate Incident Not Involving AMC
On one occasion, AMC, ASC, and B.O. were sleeping on the mattress in A.B.'s room at the apartment across from a Walmart. AMC usually slept closest to the door or in the middle of the bed and ASC would sleep farthest from the door. During the night, AMC observed Becerra walk into the room, but he did not approach her. She "knew he was doing something, but he wasn't doing it to [her]." AMC then heard him "shuffle around the room" and heard either ASC or B.O. wake up.
C. Conduct Concerning B.O.
B.O. was 21 years old at the time of trial and had three sisters, K.S., V.R. and J.B. AMC and ASC were B.O.'s nieces. B.O. had been a member of the church "[p]ractically [her] whole life, since [she] was young," but left the church when she was 18 years old. She left the church because she "didn't want a part of it anymore."
i. Sexual Abuse Allegations (Counts 16 &17)
During one incident, B.O. was 10 years old and spent the night at an apartment on Crawford in Dinuba. B.O. wore a nightgown to bed and lay awake on a bed in the second bedroom of the apartment. Becerra then approached B.O. and she pretended to sleep. Becerra then reached under B.O.'s night gown and pulled her underwear to the side and inserted his fingers in between the line of her vagina. B.O. moved her body causing Becerra to "back away and le[ave] the room." B.O. did not immediately tell anyone about the incident because "[i]t didn't seem like [it] could have been real . . . and [she] didn't really understand."
At 12 or 13 years old, B.O. told M.S. she had been sexually assaulted. B.O. knew M.S. through the church. M.S. told her something similar happened between her and Becerra. However, M.S. was later asked about the misconduct, and she stated, "[I]t was a dream and that nothing ever happened and it was just a dream."
At around this same time, J.B. approached B.O. aggressively and asked, "[W]hat was going on, things are being said about you and [Becerra], is this true?" B.O. told J.B. that Becerra did not do anything inappropriate, but later went into the house and started crying. At this point, B.O. told her mother B.H. something sexual occurred between her and Becerra. B.H. began panicking and did not know what to do. B.H. then drove to the church and spoke with Pastor Edward over the phone. B.O. could hear the contents of the conversation. B.O. heard Pastor Edward tell B.H.," 'Are you sure?'" and" 'Are you sure you want to do this? You want to go forward with sending an innocent man to jail?'" B.O. believed B.H. felt "pressur[ed]" by Pastor Edward not to tell. B.O. testified church members "kind of abide by what [Pastor Edward] says ... [s]o there's a lot of power that he has." B.H. did not tell police about the misconduct. After B.H. told Pastor Edward about the abuse, B.O. was taken out of the Sunday School class and joined the adult congregation for a couple of Sundays, which made her feel "[l]ike an outcast."
D. Conduct Concerning M.S.
M.S. was 25 years old at the time of trial. She attended the church growing up and lived in a house right next to the church. Becerra was M.S.'s Sunday School teacher and Bible quiz leader. The Bible quiz team would practice with Becerra most Tuesday evenings. Although initially refusing to disclose any type of abuse, M.S. told a Dinuba Police detective Becerra may have touched her.
i. Sexual Abuse Allegations (Counts 18 &19)
Every incident took place in the Sunday School classroom at the church when M.S. was between the ages of 12 and 13 years old. The first incident occurred when M.S. and Becerra were sitting on chairs alone in the classroom. These chairs were tucked underneath a table. They were having a normal conversation when Becerra "touched the inner part of [M.S.'s] thigh" towards her vagina. Becerra was so close to M.S. she could feel Becerra breathing on her neck. Becerra stopped touching M.S. because "someone started walking down the hallway asking for him."
A second incident occurred at night. During this incident, M.S. remembered she lay "on the floor and [her] skirt was hiked up to [her] waist" and she was no longer wearing underwear. M.S. could not remember how she ended up on the floor, but remembered Becerra was on top of her. Becerra moved her skirt and touched her below the waist. They were alone in the classroom. M.S. was "[f]rozen" and "afraid to move" and "just leave." Afterward, Becerra told M.S. he was sorry and would never do this again. He also told her not to tell anyone and proceeded to leave the classroom to "go pray."
A third incident occurred at night after a church service. M.S. walked through the church to go home when she observed the Sunday School classroom lights turned on. She walked over to turn the lights off when she noticed Becerra inside the classroom. She told Becerra," 'Oh, I thought the light - - no one was in here.'" Becerra then turned off the light and closed the door. M.S. remembered she ended up on her back with all her clothes off and Becerra "touched [her] vagina."
ii. Other Facts Related to the Sexual Abuse Allegations
M.S. had a conversation with B.O. when she was 16 or 17 years old. B.O. told M.S. she felt uncomfortable around Becerra and did not want to be alone with him. B.O. was "[v]ery fidgety" during the conversation and "wouldn't look [M.S.] in the eye when she was talking to [her] about it." M.S. told B.O. she also felt uncomfortable around Becerra, but did not provide specifics. Later, B.O.'s mother B.H. approached M.S. about this conversation and M.S. denied anything happening between her and Becerra. She denied it because she "was scared."
M.S. also testified Becerra asked her about topics that made her feel uncomfortable. Specifically, Becerra asked M.S. about who she was seeing and showed interest in her personal life. He also asked if she "was still a virgin." Around M.S.'s freshmen year of high school Becerra called her and asked her how she was doing. Becerra also asked M.S. what clothes she was wearing and whether she missed him.
When M.S. was 12 or 13 years old she attempted to speak with Pastor Edward about Becerra's misconduct. She stated," 'I want[] to talk to you about something regarding [Becerra]'" and Pastor Edward responded," 'I'm not interested .. . I don't understand why you're coming to me when it comes to him. Why don't you just go and pray about it if you're having such bad feelings towards him?'" Afterward, Pastor Edward told the youth group no one was allowed to be alone with another member of the congregation. Becerra then went from sitting on the platform during church services, which was reserved for ministers or preachers, to sitting in the regular pews like the rest of the church congregation, which was unusual.
M.S. did not initially disclose the misconduct to the police because she was really scared. Her family still went to the church and she "felt like people would be really, really mean to them, and they are."
iii. Intimidating a Witness Allegation (Count 20)
On March 26, 2019, M.S. worked at a Home Depot in Selma. On this date, M.S. saw Becerra in the store with Chris H. Chris asked M.S. if a certain product was in stock, so she looked up the product on her scanner. At this point, Chris walked away and Becerra walked up and asked M.S. how her family was doing. Becerra then told M.S. there were no hard feelings about the case and that his family still loves and cares for her and that he still cares about her brothers. During this conversation, M.S. was standing in a corner surrounded by a wall and a gate and believed she could not leave. Becerra then told her he had heard she moved to Fresno. M.S. only told family members she moved because she "didn't want other people knowing where [she] lived . . . [and] didn't want to be bothered." Becerra then told M.S. he hired a private investigator and wanted her to speak with the investigator regarding the case. He then said," 'I know that we're friends and that you wouldn't say that about me or try and hurt me. So I don't understand why you're wanting to talk to people.'" Becerra appeared very confident and clenched his fists as he talked with M.S.
On May 13, 2019, the Fresno County District Attorney's Office agreed to allow Tulare County as the venue for prosecution pursuant to section 784.7, subdivision (a) regarding the section 136.1, subdivision (a)(2) allegation (count 20). Both parties agreed to allow Tulare County jurisdiction over this charge and the trial court incorporated the letter into the record as Court Exhibit No. 1.
Subsequently, M.S. told her coworker Martin G. she just saw "the man who had molested [her] as a child." Martin "saw [M.S.] shaking and ... her eyes bulging and in shock." Surveillance footage showed Becerra and Chris inside the store. Someone walked M.S. to her car from work for two weeks because she was "terrified."
E. "Fresh Complaint" Testimony
B.H. was the mother of B.O., K.S., V.R., and J.B., and the grandmother of ALC, ASC, and AMC. B.H. attended the church and it "was very important to [her]. That was [her] life." In 2004, Pastor Edward headed the church and B.H. described him as "a man of God." Pastor Edward was "[v]ery strict" and required individuals to obtain permission to date, even adults. B.H. testified B.O. told her Becerra inappropriately touched her. B.H. "felt angry" and proceeded to call Pastor Edward. She told him it involved Becerra, B.O., and M.S. Pastor Edward responded," 'Don't say one more word, or I'm going to have to call the authorities,'" and that he did not want to "send an innocent man to jail." B.H. ended up not calling the police and told B.O., "[C]hurch is our life, and we'll just pray and seek God for an answer."
Crystal G. was 28 years old at the time of trial. In or around 2012, B.O. told Crystal something happened between her and Becerra. Crystal believed the incident was sexual in nature, but B.O. provided no specifics. During this conversation, B.O. "seemed upset" and Crystal told her to talk to B.H.
II. Defense Case-in-Chief A. Lack of Motive or Opportunity Evidence
Becerra testified he began attending the church in 2003 when he was around 19 years old. He began attending youth group and met J.B. during this time. In 2005, Becerra became involved in Bible quizzing and led the group Tuesday and Thursday nights with competitions on Saturdays. In 2002, Becerra began working for Best Buy and started working the nightshift in the beginning of 2007. The nightshift required Becerra to be at work at 4:00 p.m. and he would not finish until 12:00 a.m. or 1:00 a.m. His schedule was Monday through Friday during the slow months and Sunday through Friday during the busy months. He worked the nightshift until 2010. Becerra was on time at work and did not miss shifts. After V.R. became divorced, J.B. approached Becerra about ASC and AMC staying with them, but Becerra was opposed to the idea. ASC and AMC stayed the night "[occasionally." Becerra also testified he "wasn't really a big gamer" and did not have time to play video games, but rather the video game console was for his brothers. Additionally, Becerra testified he did not wear boxers or a white T-shirt to bed, but rather would wear pajama pants or sweats and an old Best Buy shirt. He denied all the accusations made against him and that the allegations were "very disgusting and disturbing" and not consistent with his character whatsoever.
J.B. testified ASC and AMC "stayed a couple days" throughout the week, but they never lived with them. She testified Becerra worked nights and that she would drop him off at 4:00 p.m. and would then pick him up between 4:00 a.m. to 5:00 a.m. the next morning. J.B. always picked Becerra up from work. Once Becerra got home, J.B. would stay up with him and she testified there was never a time Becerra was alone with either ASC or AMC. She testified Becerra did nothing wrong because "[h]e's a man of God" and he never acted inappropriately towards children.
B. Character Evidence
Becerra called several character witnesses who testified the allegations were not consistent with his known character and they never observed him engage in sexually inappropriate behavior. Marco T. testified he worked with Becerra at Best Buy and never observed Becerra engage in inappropriate sexual behavior at the workplace. Samantha G., Becerra's former Sunday School student, testified defendant was a "great person" and never felt uncomfortable around him. K.G. testified she babysat Becerra's children and that he was "a good man." Becerra's brothers, I.A. and A.A., testified to Becerra's good character and that no evidence exists that ASC and AMC ever lived at the apartment during the weekends.
C. Intimidating a Witness Allegation (Count 20)
In 2019, Chris H. went with Becerra to Home Depot in Selma to purchase supplies. Chris and Becerra ran into M.S. at Home Depot, and they said hello. M.S. ended up helping them look for the supplies. Becerra then told M.S. he understood the situation and there were no hard feelings between them. Chris testified M.S. did not appear upset or agitated. Chris testified Becerra stayed with him during the entire visit. However, on cross-examination, Chris was impeached with the surveillance video and did acknowledge he was unaware of Becerra's whereabouts at Home Depot for two minutes and 24 seconds.
DISCUSSION
I. The Use of a Support Dog During the Adult Victims' Testimony
Becerra contends the support dog's presence during the victims' testimony was inherently prejudicial and violated his federal constitutional rights to a fair trial and to confront the witnesses against him. Becerra further contends the trial court abused its discretion by allowing a support dog to be present during the adult victims' testimony without a "particularized showing" of need. Although Becerra concedes he did not object to the use of a support dog, he urges this court to reach the issue on the merits. We conclude the use of the support dog was not inherently prejudicial and did not violate Becerra's constitutional rights and that the trial court properly exercised its discretion in permitting the use of the dog during the victims' testimony.
A. Additional Factual Background
The relevant exchange during the motions in limine regarding the support dog is as follows:
"THE COURT: All right. All right. People's request for Fortune, the comfort dog, to be permitted to accompany S.M. and E.M.
"[PROSECUTOR]: That's wrong. I'm sorry. S.M. and E.M. is a mistake. It's just all - - it's just accompany all victims, the four victims.
"THE COURT: Okay. Accompany -
"[TRIAL COUNSEL]: And these are all four - - everyone's over 18 at this point, right?
"[PROSECUTOR]: Yes.
"THE COURT: Okay. The way that I do - - when I do allow Fortune to be there, he's brought in before the jury is there. He's under the witness stand. I just had him, like, a couple of weeks ago. He didn't do anything inappropriate.
"[PROSECUTOR]: That's a relief.
"THE COURT: He just stayed right under the witness stand, and nobody really knew that he was there. The only one that knows he's there is the victims, which is good because that's what he's there for. The trainer sits by him and keeps track of it. And then I take a break before the witness gets off the stand, and we have the jury go outside the courtroom, and then Fortune is taken out.
"[TRIAL COUNSEL]: I would just ask, yeah, that they don't see the dog, and if there is the handler, that the handler doesn't have a badge on indicating that she's part of law enforcement or district attorney's office. I'd prefer they didn't see the handler at all, if possible. It doesn't sound like that's going to be possible.
"THE COURT: It's just a precaution because the handler is the one that makes sure to keep Fortune from doing something to reveal.
"[TRIAL COUNSEL]: I don't want this person to be dressed in a police outfit or something like that.
"THE COURT: No, no, no. She's a plain clothes - - she's not a police officer.
"[TRIAL COUNSEL]: Okay. And no badge or -
"THE COURT: No, she's not a police officer.
"[TRIAL COUNSEL]: - - nothing from the DA's office or anything.
"THE COURT: No, she's just - - she's a victim advocate.
"[PROSECUTOR]: She's a victim advocate director. Fortune does have a vest on that indicates that he is - -
"THE COURT: He's a safe dog or -
"[PROSECUTOR]: - - that he is a trained animal. He's not a service dog, but like -
"THE COURT: Yeah, he's a trained -
"[PROSECUTOR]: I don't know his actual title.
"THE COURT: I don't know, but -
"[TRIAL COUNSEL]: I want to see his credentials also.
"[PROSECUTOR]: I have his business card. I can provide it.
"THE COURT: You're not going to see him; so it doesn't matter. Well, you might. You will, but the jury won't see him.
"[PROSECUTOR]: Okay.
"THE COURT: I've had him in my courtroom numerous times, and he's never been revealed in the times I've ever had him."
Subsequently, after M.S. testified, a juror inquired about the support dog. The relevant exchange is as follows:
"(Whereupon, the following proceedings were held out of the presence of the jury.)
"THE COURT: Juror Number 1, you inquired through my bailiff about the dog. We keep the dog sort of secreted because we don't want anybody to read anything into it. The dog is trained to be what we call a comfort dog in the courtroom for witnesses that are very stressed about testifying. They just have the dog there as something that's comforting to them. It's like a little kid with a teddy bear type of situation.
"So I would appreciate it if you wouldn't discuss that with any of the other jurors, because we don't want that to carry too much weight. You really shouldn't consider it at all as far as judging the testimony.
"JUROR NO. 1: I apologize.
"THE COURT: I'm perfectly happy to explain it. We don't want the jurors to take it in a wrong way, that the dog has anything to do with credibility or anything like that. You can separate that from your considerations, can't you?
"JUROR NO. 1: Yes.
"THE COURT: Also, please don't discuss with any other jurors.
"JUROR NO. 1: All right."
B. Forfeiture
We conclude Becerra forfeited his challenge by not objecting below. In People v. Myles (2012) 53 Cal.4th 1181, 1214, our Supreme Court held the defendant forfeited his claim where he did not object when the victim-witness advocate accompanied a witness to the witness stand. (See also People v. Stevens (2009) 47 Cal.4th 625, 641 [defendant's failure to object to the support person's presence at trial waived any claim of error from the procedure used].) Here, trial counsel never objected to the support dog's presence, but rather only requested the dog not be visible to the jury and that its handler not wear law enforcement insignia on their clothing. Therefore, trial counsel forfeited his challenge regarding the support dog's presence on appeal. However, even if Becerra properly preserved his objection, there is no merit to his contentions.
C. General Principles
"Although section 868.5 expressly provides for the presence of one or two support persons for a witness in certain circumstances, that statute does not apply to the presence of therapy or support dogs." (People v. Chenault (2014) 227 Cal.App.4th 1503, 1513-1514 (Chenault).) "Rather, a trial court has authority under Evidence Code section 765 to allow the presence of a therapy or support dog during a witness's testimony." (Id. at p. 1514, citing People v. Spence (2012) 212 Cal.App.4th 478, 516-517.) Evidence Code section 765 provides:
Section 868.5, subdivision (a) states in pertinent part: "[A] prosecuting witness in a case involving a violation or attempted violation of Section[s] . . . 288 [and] . . . 288.7 ... shall be entitled, for support, to the attendance of up to two persons of the prosecuting witness' own choosing, one of whom may be a witness, at the preliminary hearing and at the trial . . . during the testimony of the prosecuting witness. Only one of those support persons may accompany the witness to the witness stand, although the other may remain in the courtroom during the witness' testimony. The person or persons so chosen shall not be a person described in Section 1070 of the Evidence Code unless the person or persons are related to the prosecuting witness as a parent, guardian, or sibling and do not take notes during the hearing or proceeding."
"(a) The court shall exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, and to protect the witness from undue harassment or embarrassment.
"(b) With a witness under the age of 14 or a dependent person with a substantial cognitive impairment, the court shall take special care to protect him or her from undue harassment or embarrassment, and to restrict the unnecessary repetition of questions. The court shall also take special care to ensure the questions are stated in a form which is appropriate to the age or cognitive level of the witness. The court may, in the interests of justice, on objection by a party, forbid the asking of a question which is in a form that is not reasonably likely to be understood by a person of the age or cognitive level of the witness."
D. Federal Constitutional Rights
Becerra contends the support dog's presence was inherently prejudicial and violated his federal constitutional rights to a fair trial and to confront the witnesses against him. We disagree.
i. Applicable Law
As it relates to section 868.5 support persons, "[c]ase law uniformly rejects arguments that section 868.5 is inherently prejudicial, erodes the presumption of innocence, and impermissibly encroaches on confrontation clause and due process clause rights. (See, e.g., People v. Johns (1997) 56 Cal.App.4th 550, 553-556; People v. Adams (1993) 19 Cal.App.4th 412, 435-444; People v. Patten (1992) 9 Cal.App.4th 1718, 17251733 (Patten).)" (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1077.) Our Supreme Court has also articulated, "Absent improper interference by the support person, ... no decision supports the proposition that defendant advances here, that the support person's mere presence infringes his due process and confrontation clause rights." (People v. Myles, supra, 53 Cal.4th at p. 1214.)
As it relates specifically to support dogs, the defendant in Chenault contended," '[T]he presence of a support dog will cause a jury to decide a defendant's guilt based on impermissible factors.'" (Chenault, supra, 227 Cal.App.4th at p. 1515.) The defendant argued," '[T]he one[-]sided deployment of a universally beloved animal distracts the jury from a dispassionate review of the evidence and unfairly bolsters the prosecution's case by aligning witnesses with a powerful symbol of trustworthiness and vouching for their credibility as victims.'" (Ibid.) However, the court disagreed and concluded, "[W]e apply the reasoning and holdings in the section 868.5 support person cases to this case and conclude the presence of a support dog pursuant to a trial court's authority under Evidence Code section 765 likewise is not inherently prejudicial and does not, as a matter of law, violate a criminal defendant's federal constitutional rights to a fair trial and to confront witnesses against him or her." (Id. at pp. 1515-1516.)
ii. Analysis
Here, Becerra argues the support dog violated his rights to a fair trial because it created a "silent and powerful symbol . . . that the complainants were truthful and vulnerable victims that needed comfort and protection" and that his right to confront witnesses against him were violated because he was unable to question why the dog may have acted in a specific manner in response to the victims' physical reactions during their individual testimony. We reject these arguments and conclude a support dog's presence during a victim's testimony "is not inherently prejudicial and does not, as a matter of law, violate a criminal defendant's federal constitutional rights to a fair trial and to confront witnesses against him or her." (Chenault, supra, 227 Cal.App.4th at pp. 1515-1516.)
E. The Trial Court Did Not Abuse Its Discretion
Becerra further contends the trial court abused its discretion by allowing a support dog to be present during the adult victims' testimony without a "particularized showing" of need. We disagree.
i. Applicable Law
"A trial court has inherent as well as statutory discretion to control the proceedings to ensure the efficacious administration of justice." (People v. Cox (1991) 53 Cal.3d 618, 700, overruled on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421.) "The trial court has broad discretion under Evidence Code section 765 to exercise control over interrogation of witnesses and protect them from undue harassment or embarrassment." (Chenault, supra, 227 Cal.App.4th at p. 1514; People v. Spence, supra, 212 Cal.App.4th at p. 517.) "On appeal, we apply the abuse of discretion standard in reviewing a trial court's exercise of its authority under Evidence Code section 765." (Chenault, at p. 1514.)
"[I]n exercising its discretion under Evidence Code section 765, a trial court should consider the particular facts of the case and the circumstances of each individual witness and determine whether the presence of a support dog would assist or enable that witness to testify without undue harassment or embarrassment and provide complete and truthful testimony." (Chenault, supra, 227 Cal.App.4th at p. 1517.) The court "should focus on whether the presence of the specific support dog would likely assist or enable the individual witness to give complete and truthful testimony by reducing the stress or trauma the witness may experience while testifying in court or otherwise minimizing undue harassment or embarrassment." (Ibid.) The trial court should do everything in its power to reduce the likelihood of prejudice towards the defendant by "mak[ing] the presence of the support dog as unobtrusive and as least disruptive to the proceedings as reasonably possible." (Ibid.) For example, "it may be possible to have the support dog lie on the floor near the witness, entirely out of the jurors' view" and "[t]he court may have the jury recess while the witness takes the stand and the support dog enters and is positioned, and then recess again before the witness and dog leave the courtroom." (Ibid.) Additionally, if the dog's presence becomes known "it generally will be the preferred practice for the court to give an appropriate admonishment to the jury [or juror] to avoid, or at least minimize, any potential prejudice to the defendant." (Id. at pp. 15171518.) However, if the court concludes "the prejudice to the defendant cannot be eliminated . . . the court generally should exercise its discretion by denying the request for the presence of a support dog." (Id. at p. 1518.)
Here, the prosecutor requested during motions in limine that Fortune, a support dog, be allowed to accompany all four adult victims during their testimony. She represented that Fortune was "a trained animal" and would be accompanied by a victim advocate director. The trial court agreed to Fortune's presence and stated, "[W]hen I do allow Fortune to be there, he's brought in before the jury is there. He's under the witness stand . . . [and] I just had him, like, a couple of weeks ago . . . [and] [h]e didn't do anything inappropriate." The trial court further stated, "[Fortune] just stayed right under the witness stand, and nobody really knew that he was there . . . [a]nd then I take a break before the witness gets off the stand, and we have the jury go outside the courtroom, and then Fortune is taken out." The trial court ended the discussion by stating, "I've had [Fortune] in my courtroom numerous times, and he's never been revealed in the times I've ever had him." Although the trial court did not make explicit findings about whether Fortune was necessary during the adult victims' testimony, the record is sparse because defendant never objected to the dog's presence, which would have required a more exhaustive finding by the trial court. (See Chenault, supra, 227 Cal.App.4th at p. 1518 [holding that implicit findings are sufficient to conclude a support dog's presence is required].) Moreover, the trial court "ma[de] the presence of [Fortune] unobtrusive and as least disruptive to the proceedings as reasonably possible" by requiring that the jury be dismissed before the dog was removed from the courtroom thereby reducing the likelihood he would be seen by the jury. (Id. at p. 1517.) Prior to the trial, the trial court properly exercised its discretion in permitting the use of Fortune during the four adult victims' testimony.
However, after M.S.'s testimony, a juror inquired through the bailiff about Fortune's presence. The trial court subsequently admonished the juror outside the presence of the jury by telling him or her, "We keep the dog sort of secreted because we don't want anybody to read anything into it . . . [and] [t]he dog is trained to be what we call a comfort dog in the courtroom for witnesses that are very stressed about testifying." The trial court further informed the juror not to "discuss [Fortune's presence] with any of the other jurors" and he or she "really shouldn't consider it at all as far as judging the testimony." The trial court then asked the juror if they could separate Fortune's presence from their considerations regarding witness credibility and to not discuss with any other jurors and the juror replied, "Yes" and "All right." Although Fortune's presence became known, the trial court gave an "appropriate admonishment to the jur[or] to avoid, or at least minimize, any potential prejudice to the defendant." (Chenault, supra, 227 Cal.App.4th at pp. 1517-1518.) Accordingly, the trial court did not abuse its discretion in allowing the presence of a support dog during the testimony of the adult witnesses.
Becerra further argues the trial court abused its discretion when it did not require the People to offer evidence or testimony as to what steps were taken to ensure the support dog "would not become essentially a vector or fomite that could unwittingly spread the deadly SARS-CoV-2 virus from one witness to the next, or from a handler to a witness." We do not address this argument because it is highly speculative and Becerra makes no reference to the record to support this argument. (People ex rel. Reisig v. Acuna (2010) 182 Cal.App.4th 866, 879 ["It is not the function of this court to comb the record looking for the evidence or absence of evidence to support defendants' argument."]; see also Cal. Rules of Court, rule 8.204(a)(1)(C) [stating that appellate briefs must be supported by record citations].)
II. Prosecutorial Misconduct
Becerra further contends the prosecutor committed prejudicial misconduct during her closing rebuttal argument by suggesting that "if [the jury] believe[s] [the victims] beyond a reasonable doubt, you can and should convict the defendant, and not doing so is calling [M.S.] and [ASC] and [AMC] and [B.O.] a liar." We conclude trial counsel's failure to request a curative admonition forfeited his claim on appeal. (See People v. Seumanu (2015) 61 Cal.4th 1293, 1328.) In the alternative, we conclude the prosecutor did not engage in misconduct during her closing argument. However, even if we concluded the prosecutor's statements were improper, any error was harmless.
A. Additional Factual Background
Trial counsel stated the following during his closing argument:
"A not-guilty verdict doesn't mean that these witnesses are necessarily lying or necessarily wrong for having their day in court, but the case wasn't proven beyond a reasonable doubt. As jurors, I think that's important to keep in mind that it's just as important that an innocent person isn't wrongly convicted as it is to figure out what happened. And that's why you're given and that's why the People had that burden beyond a reasonable doubt."
In response, the prosecutor stated the following during her rebuttal argument:
"Now, one thing in the context of the instruction about believing a victim beyond a reasonable doubt that was mentioned was that well, there's just not enough evidence in the case, but, you know, you shouldn't convict him, but it doesn't mean we're calling the victims liars. That is absolutely what it means because if you believe them beyond a reasonable doubt, you can and should convict the defendant, and not doing so is calling [M.S.] and [ASC] and [AMC] and [B.O.] a liar."
Trial counsel objected to the statement as improper argument; however, after a brief discussion at bench the trial court overruled the objection.
B. Forfeiture
"It is well settled that making a timely and specific objection at trail, and requesting the jury be admonished (if the jury is not waived), is a necessary prerequisite to preserve a claim of prosecutorial misconduct for appeal." (People v. Seumanu, supra, 61 Cal.4th at p. 1328.) However, "[t]here are two exceptions to this forfeiture: (1) the objection and/or request for an admonition would have been futile, or (2) the admonition would have been insufficient to cure the harm occasioned by the misconduct. Forfeiture for failure to request an admonition will also not apply where the trial court immediately overruled the objection to the alleged misconduct, leaving defendant without an opportunity to request an admonition. A defendant claiming that one of these exceptions applies must find support for his or her claim in the record." (People v. Panah (2005) 35 Cal.4th 395, 462.)
Here, it is undisputed trial counsel objected to the prosecutor's statements but failed to request a curative instruction after a brief discussion at bench. This is not a case "where the trial court immediately overruled the objection to the alleged misconduct" (People v. Panah, supra, 35 Cal.4th at p. 462), thereby not providing trial counsel an opportunity to ask for an admonition, but rather counsel had an opportunity after discussion at bench to place on the record his request for a curative instruction and give the trial court an opportunity to cure any error and mitigate any prejudice. For this reason, Becerra's prosecutorial misconduct claim is forfeited. However, even if we were to consider the merits of his claim, we find no misconduct occurred.
C. Applicable Law
"' "A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.' [Citations.] In other words, the misconduct must be 'of sufficient significance to result in the denial of the defendant's right to a fair trial.' [Citation.] A prosecutor's misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' [Citations.]"' [Citation.] 'A defendant's conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.'" (People v. Tully (2012) 54 Cal.4th 952, 10091010.)
"During opening and closing arguments, the prosecution is given wide latitude to make' "fair comment on the evidence, including reasonable inferences or deductions to be drawn from it." '" (People v. Parker (2022) 13 Cal.5th 1, 72 (Parker).) "Although counsel have 'broad discretion in discussing the legal and factual merits of a case [citation], it is improper to misstate the law.'" (People v. Mendoza (2007) 42 Cal.4th 686, 702.) Moreover," '[i]t is . . . improper [for the prosecutor] to make arguments to the jury that give it the impression that "emotion may reign over reason," and to present "irrelevant information or inflammatory rhetoric that diverts the jury's attention from its proper role, or invites an irrational, purely subjective response." '" (People v. Redd (2010) 48 Cal.4th 691, 742-743.) "We consider the assertedly improper remarks in the context of the argument as a whole. [Citation.] 'In conducting [our] inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.'" (People v. Covarrubias (2016) 1 Cal.5th 838, 894 (Covarrubias).)
D. Analysis
During closing arguments, a prosecutor has "wide latitude to make' "fair comment on the evidence, including reasonable inferences or deductions to be drawn from it." '" (Parker, supra, 13 Cal.5th at p. 72.) As noted above, "We consider the assertedly improper remarks in the context of the argument as a whole." (Covarrubias, supra, 1 Cal.5th at p. 894.) For example, in People v. King (2010) 183 Cal.App.4th 1281, the defendant contended, "The prosecutor's argument[s] the jury had to find that [the witnesses] lied in order to find [him] not guilty" was improper. (Id. at p. 1306.) In her opening statement, the prosecutor told the jury, "To find [the defendant] not guilty, you have to believe that [the witness] is lying ... and you also have to find that [the witness] is lying to find [the defendant] not guilty." (Id. at p. 1307.) Subsequently during closing arguments, the prosecutor argued, "DNA evidence was unnecessary in this case because 'either you believe [the witnesses] and all the evidence that goes to corroborate them, the 911 calls, their prior statements or you don't.'" (Ibid.) The court concluded the statements were proper because the defendant's "fate rested on whether the jury found [the victims] credible, [and therefore,] the prosecutor's comments served only to highlight CALJIC No. 2.27, that '[t]estimony concerning any fact by one witness, which [the jury] believe[s], is sufficient for the proof of that fact.'" (Ibid.)
Here, taken in isolation, the statement "you can and should convict the defendant, and not doing so is calling . . . [them] liars" may have impermissibly appealed to the passions and prejudices of the jury. (See People v. Redd, supra, 48 Cal.4th at p. 743; see also People v. Centeno (2014) 60 Cal.4th 659, 666 [" '[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its . . . obligation to overcome reasonable doubt on all elements [citation].' "].) However, when read in context with the rest of her argument, it was proper because defendant's "fate rested on whether the jury found [ASC, AMC, B.O., and M.S.] credible." (People v. King, supra, 183 Cal.App.4th at p. 1307.) Moreover, immediately prior to the remarks at issue, the prosecutor stated, "[I]f you believe them beyond a reasonable doubt, you can and should convict the defendant," which reminded the jury it still had to find defendant guilty beyond a reasonable doubt on each individual charge. (Italics added.) These remarks occurred after the prosecutor told the jury in rebuttal that "[the People] ha[d] to prove [their] case beyond a reasonable doubt," which is "a high standard" requiring the jury "to be convinced and have an abiding conviction." (See Covarrubias, supra, 1 Cal.5th at p. 894.) Accordingly, the prosecutor's statements were proper because the entire case rested on whether the jury believed the victims' testimony and she twice reminded the jury during rebuttal she had to prove her case beyond a reasonable doubt. Any "oblique and overly dramatic" statement in isolation was diminished "when read in context" with the rest of her argument. (Parker, supra, 13 Cal.5th at p. 79.)
However, even if we concluded the prosecutor's statements constituted misconduct, it was not" 'reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.'" (People v. Tully, supra, 54 Cal.4th at p. 1010.) First, as noted above, the prosecutor twice reminded the jury during rebuttal she had the burden to prove her case beyond a reasonable doubt. Additionally, the trial court instructed the jury about the People's burden of proof before and after evidence and trial counsel reminded the jury during his closing arguments the People's burden was proof beyond a reasonable doubt. (See People v. Williams (2009) 170 Cal.App.4th 587, 635 [holding that even if the prosecutor committed misconduct, there was no prejudice because, among other things, the trial court, prosecutor, and defense counsel all informed the jury the People had the burden to prove Becerra guilty beyond a reasonable doubt].) Second, these brief remarks were made in a much longer closing argument, where the prosecutor went through all 20 charges and spoke in depth about the relevant legal principles and evidence in this case. (See People v. Anderson (2018) 5 Cal.5th 372, 415 ["To the extent the prosecutor's language, 'I believe with all my heart,' could be viewed as invoking his personal prestige or depth of experience, the brief remark could not have been prejudicial."].) Third, the trial court instructed the jury, "Do not let bias, sympathy, prejudice, or public opinion influence your decision," (CALCRIM No. 101) and, "Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence." (CALCRIM No. 104) (See People v. Pearson (2013) 56 Cal.4th 393, 414 ["We presume that jurors understand and follow the court's instructions."].) Therefore, there was not" 'a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.'" (People v. Cunningham (2001) 25 Cal.4th 926, 1000.)
Becerra "makes a number of additional claims of ineffective assistance of counsel related to various contentions, discussed above, or error in the court's rulings . . . or misconduct by the prosecutor." (People v. Ledesma (2006) 39 Cal.4th 641, 748.) Becerra contends that his counsel performed deficiently in failing to object or request additional instructions. "Because we have addressed the merits of the underlying contentions and have concluded, above, that the actions at issue were not erroneous or improper ... or that any alleged error was not prejudicial, defendant's related claims of ineffective assistance of counsel fail and do not require further discussion." (Ibid.)
III. Cumulative Prejudice
Becerra further argues he was prejudiced by the cumulative effect of the use of the support dog and the prosecutor's misconduct. However, we have concluded the trial court did not abuse its discretion in permitting use of the support dog and the prosecutor did not engage in misconduct. Accordingly, there is no cumulative effect to weigh. (In re Reno (2012) 55 Cal.4th 428, 483 [holding that each of defendant's individual claims "cannot logically be used to support a cumulative error claim [where] we have already found there no error to cumulate"].) Furthermore, "[t]o the extent there are a few instances in which we have found error or assumed [the] existence [of error], no prejudice resulted. The same conclusion is appropriate after considering their cumulative effect." (People v. Valdez (2012) 55 Cal.4th 82, 181.)
IV. Trial Court Properly Calculated Becerra's Custody Credits
Becerra's final contention is that the trial court improperly calculated his custody credits as to his sentence on count 20 (§ 136.1, subd. (a)(2)). Specifically, although Becerra concedes he was convicted of multiple violent felonies as defined in section 667.5, subdivision (c), Becerra argues it was improper for the trial court to impose a 15 percent limitation as to his custody credits for count 20 because, absent a gang allegation (§ 186.22), a violation of section 136.1, subdivision (a)(2) is not a violent felony for purposes of section 2933.1, subdivision (a).
Section 136.1, subdivision (a)(2), makes it unlawful for any person to "[k]knowingly and maliciously attempt[] to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law."
A violation of section 136.1 is a violent felony for purposes of section 667.5, subdivision (c) when it consists of "threats to victims or witnesses . . . which would constitute a felony violation of section 186.22." (§ 667.5, subd. (c)(20).)
A. Applicable Law
"In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a jail . . . all days of custody of the defendant . . . credited to the period of confinement pursuant to Section 4019 ... shall be credited upon his or her term of imprisonment." (§ 2900.5, subd. (a).) "Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed." (Id. at subd. (b).) "Under section 2933, a prisoner may earn an additional one day of credit against his or her sentence for every one day of participation in a qualifying work, training, or educational program." (In re Pacheco (2007) 155 Cal.App.4th 1439, 1443.) However, "[notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933." (§ 2933.1, subd. (a).) It is undisputed Becerra was convicted of multiple felony offenses listed in section 667.5, subdivision (c). (See § 667.5, subd. (c)(6) ["Lewd or lascivious act as defined in subdivision (a) or (b) of Section 288"].)
B. Analysis
Becerra contends it was improper for the trial court to limit his custody credits as to count 20 (§ 136.1, subd. (a)(2)) because it did not qualify as a felony as defined under section 667.5, subdivision (c) without a gang allegation (§ 186.22). We disagree. In People v. Ramos (1996) 50 Cal.App.4th 810, the defendant argued that because one of his convictions was not a violent felony under section 667.5, subdivision (c), it should be distinguished for the purpose of calculating his presentence conduct credits. (Ramos, supra, at p. 817.) The court rejected this view and held, "[S]ection 2933.1 applies to the offender not to the offense and so limits a violent felon's conduct credits irrespective of whether or not all his or her offenses come within section 667.5 ." (Ibid., italics added.) It further commented the Legislature "could have confined the 15 percent rule to the defendant's violent felonies if that had been its intention." (Ibid.)
Here, as noted above, it is undisputed Becerra was convicted of multiple violent felonies listed in section 667.5, subdivision (c). As to count 20, the trial court committed Becerra "to state prison for the upper term of three years with credit for 120 days spent in custody awaiting sentence, with 18 days conduct credit [15 percent of 120 days] pursuant to 2933.1 of the Penal Code for a total of 138 days." Although count 20 was not a felony listed in section 667.5, subdivision (c), the trial court properly reduced his conduct credit to 15 percent because "section 2933.1 applies to the offender not to the offense" and therefore the statute limits his "conduct credits irrespective of whether or not all his or her offenses come within section 667.5." (People v. Ramos, supra, 50 Cal.App.4th at p. 817.) Accordingly, the trial court properly calculated his custody credits as to count 20.
V. Senate Bill No. 567
As stated above, this court requested supplemental briefing to address the applicability of Senate Bill No. 567 to the trial court's imposition of the aggravated term of three years on count 20 (§ 136.1, subd. (a)(2)). In their briefing, the People concede Becerra is entitled to the retroactive application of Senate Bill No. 567. We accept the People's concession and remand for resentencing.
A. Additional Factual Background
During Becerra's sentencing, the trial court stated the following:
"Well, as to the victims, I'm very sorry that you had to go through this, and there is nothing that I can do, as a court, to undo what was done.
However, you do have a lot of very good support. You need to rely on that. You need to put this where it belongs, which is you did nothing wrong. It was nothing that you did, or said, or should have done, or shouldn't have done. It is not on you for that. And so you need to take that and move forward. As I said, I can't undo it, but I can take your attacker away from being able to hurt you again and anybody else, but you have to rebuild your life, and I know it's going to be hard, but it will be worth it, and every day you will become stronger, because - I've gone through a totally different situation, but some devastating things in my life, and I know that it does happen. You can rebuild it. You can do it one day at a time, especially with great amount of support that you have. So I'm going to sentence him to the maximum time that I can, but I don't want that to be any concern of yours from this point forward. You don't have to worry about him any more. You just have to focus on making yourselves the persons that you should have been without all this effort, but you can still be. Okay?
"[Becerra's] application for probation is denied. In Count 20, [Becerra] is committed to state prison for the upper term of three years with credit for 99 days spent in custody awaiting sentence."
B. Applicable Law
Senate Bill No. 567, enacted after the sentencing hearing in this case, recently amended section 1170. As relevant, it now reads:
"(2) The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. Except where evidence supporting an aggravating circumstance is admissible to prove or defend against the charged offense or enhancement at trial, or it is otherwise authorized by law, upon request of a defendant, trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense." (§ 1170, subd. (b)(2).)
C. Analysis
Absent evidence to the contrary, the Legislature intends amendments to statutes that reduce the punishment for a particular crime to apply to all defendants whose judgments are not yet final on the amendment's operative date. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307-308, discussing In re Estrada (1965) 63 Cal.2d 740.) This court held that because Senate Bill No. 567's "amendments to section 1170, subdivision (b), lessen punishment, and there is no indication that the Legislature intended it to apply prospectively only, the new law must be retroactively applied." (People v. Dunn (2022) 81 Cal.App.5th 394, 403.)
Here, Becerra's case was not final on January 1, 2022, and he was sentenced to the aggravated term on count 20 under former section 1170. As the People correctly point out, the trial court did not cite any aggravating factors in imposing the aggravated term on count 20. Accordingly, Becerra is entitled to the benefit of Senate Bill No. 567.
DISPOSITION
Becerra's sentence is vacated and this matter is remanded for resentencing. In all other respects, the judgment is affirmed.
WE CONCUR: LEVY, Acting P. J., SNAUFFER, J.