Opinion
D057753 Super. Ct. No. SWF013223
11-18-2011
THE PEOPLE, Plaintiff and Respondent, v. LUIS LEMPIRA GALEANO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Riverside County, Eric G. Helgelsen, Judge. (Retired judge of the Tulare Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
In May 2009, in prior jury trial proceedings, Luis Lempira Galeano successfully moved for acquittal as to counts 3 through 11, which charged him with committing lewd acts on a child under the age of 14 years (Pen. Code, § 288, subd. (a), hereafter section 288(a) (undesignated statutory references will also be to the Penal Code)). The court declared a mistrial after the jury was unable to reach a verdict on the remaining two counts, which charged Galeano in count 1 with committing a lewd act by force on a child under the age of 14 years in violation of section 288, subdivision (b) (hereafter section 288(b)), and in count 2 with committing a lewd act on a child under the age of 14 years (§ 288(a)). In January 2010 a second jury found Galeano guilty of counts 1 and 2.
The court sentenced Galeano to the middle prison term of six years for his conviction of the principal count, count 2 (§ 288(a)), and a consecutive middle term of six years for his conviction of count 1 (§ 288(b)), for a total term of 12 years. The court ordered Galeano to pay victim restitution in the amount of $1,395.
Galeano appeals, contending (1) the court prejudicially abused its discretion by denying his motion in limine to exclude evidence of sexually explicit photographs of preteen females found on the victim's grandmother's computer; (2) his count 1 conviction of committing a lewd act upon the victim by force must be reduced to the lesser included offense of attempted lewd act upon the victim by force because the evidence is insufficient to show that a lewd act was accomplished; (3) the court erred in imposing a full, consecutive sentence under former section 667.6, subdivision (d) (hereafter section 667.6(d)) for his count 1 conviction; and (4) the restitution award must be reduced by $165, the amount the court ordered Galeano to pay for mental health counseling for the victim's grandmother, because this portion of the restitution award is not authorized. We affirm.
FACTUAL BACKGROUND
A. The People's Case
When she was four or five years old, the victim, who was 10 years old when she testified during the second trial, visited her grandmother at least once or twice a month. Her grandmother lived with her son (the victim's uncle), Aaron. Everyone had his or her own bedroom. The victim went to her grandmother's house with her mother and stayed overnight by herself. When she stayed overnight, the victim slept in the same bed as her grandmother.
Galeano was grandmother's boyfriend. The victim first met Galeano when she was four years old. Galeano sometimes stayed overnight at grandmother's house. They all slept in grandmother's bed. The victim slept by the wall, her grandmother slept next to her, and Galeano slept on the opposite side of the bed from the victim.
About a month and a half after the victim first met Galeano, she stayed overnight with her grandmother when Galeano was there. The victim slept on her side facing the wall and woke up when Galeano shook her. Galeano touched her waist and then used one of his hands to pull out her underwear and put his other hand inside her underwear. Although she did not say anything, the victim tried to move closer to the wall. She testified that when she did so, Galeano did not say anything but continued to touch her "private part" that she uses to "[g]o to the restroom." Galeano touched the victim's private part for about two minutes. No one had ever touched her there. When asked at trial how it felt, the victim stated, "It hurt." When Galeano was done touching the victim, he told her not to tell anybody. The victim testified that when Galeano said this, she felt scared because he was doing something bad and she "[did not] know if he [was] going to hurt [her] family." She did not say anything to Galeano the next morning, and she did not tell her mother or grandmother because she was scared. The victim knew Galeano had done something bad because her mother had told her that no one could touch her privates. After this incident, the victim saw Galeano less often as she stayed overnight with her grandmother only every other month or so.
Two or three months after the first incident, Galeano touched the victim again in the same way under the same circumstances, except that he may have used only one hand. As he was touching her, the victim rolled closer to the wall "so that his hands had gotten out," and then she rolled back on her side. As before, Galeano told her not to tell anybody.
On another occasion when the victim was five years old, about three and a half months after she met Galeano, she watched television with him and her grandmother in the living room. Her grandmother and Galeano lay on the couch and the victim sat on the couch next to Galeano. Both Galeano and the grandmother fell asleep and the victim continued watching television. After about an hour and a half, Galeano woke up and told the victim, "Come here," but she was already sitting by him. The victim testified that as her grandmother continued sleeping, Galeano pulled out the victim's pants and touched her on her private.
Galeano then pulled out the elastic band of his pants with one hand and grabbed one of the victim's hands with his other hand and "[stuck her] hand down his pants" under his underwear. The victim indicated she made a fist with that hand and tried to pull her hand away four times. Each time she made grunting sounds. When asked on direct examination whether she "ever touch[ed] any part of [Galeano's] skin," the victim indicated she was not sure and could not remember. She testified she did not touch his private parts and her hand was inside his pants "[n]ot long." Galeano told the victim not to tell anybody.
On another occasion, in April 2006, the victim, her grandmother and Galeano watched a children's movie in the bedroom. Her grandmother fell asleep, but was awakened by the victim's giggling. She listened but did not get up. She heard the victim say, "[S]top touching there." Grandmother testified she "just kind of froze" and then heard Galeano tell the victim, "[R]emember what I said. Don't tell your grandmother." When she heard this, grandmother sat up and saw the victim lying across the end of the bed with her underwear on, but with her pants halfway down, by her feet and with her legs hanging over the edge of the bed. Galeano was on his knees. Grandmother said, "What the hell is going on?" and "[D]on't tell grandma what?" Galeano said he was helping the victim get dressed in her pajamas. The victim's pajamas, however, were in another room. Grandmother testified this incident "raised a red flag" for her, but she did not call the police or talk to the victim's mother about it because she did not see anything.
On another occasion, grandmother, Galeano and the victim went to a baseball tournament to watch Galeano's grandson play. After they returned to grandmother's house, she said they all should take a nap. In response, the victim said to Galeano in a concerned way, "Are you going to tickle me?" Galeano replied, "Do you want me to?" Grandmother asked Galeano what they were talking about, and Galeano said, "Nothing." They all went into the living room, watched a movie, and fell asleep. When grandmother woke up, she saw the victim lying on top of Galeano, who was also lying down. Both Galeano and the victim were awake. Grandmother did not say anything to them and everyone just got up and engaged in conversation. Grandmother thought this was "weird" and tried calling the victim's mother later that night, but was unable to reach her. A few days later she did talk to the victim's mother about what she had seen and heard and asked her to ask the victim what happens when Galeano tickles her.
The mother did talk to the victim and asked her where Galeano tickled her. The victim got up, started screaming, and ran to the corner of the room. She cried and told her mother that she was going to be mad at her and that she was scared. The mother knew from the victim's reaction to the question that something was going on, and she later contacted the police.
Henry Ong, who does forensic computer work for the district attorney, examined grandmother's computer. A password created by grandmother was needed to access the Internet. According to grandmother, Galeano used her computer "all the time" for "hours at a time" and used her password to access the Internet. Galeano would often be in her house when she was not there. Ong testified the computer had accounts with America Online (AOL), an Internet service provider. The most used AOL account was lugalea@aol.com. That account had a number of Web sites saved as favorites, including some Marine Corps Web sites, and sites called Preteen Bikini, Top Teen Model BBS, Legs and More, Legs-R-Us-Girls, and Sandy's Favorite Model Sites, among others. The Marine Corps Web sites contained lots of pictures of young girls wearing bikinis. Ong found similar images in the Internet temporary file and in space in the computer that was not allocated by the operating system.
Ong testified that grandmother's computer also had accounts with Yahoo. In the account information for a Yahoo e-mail account called italianogaliano@yahoo.com, the person who set up the account identified himself as Louie Galeano. The profile page gave specific information about Galeano's apartment address and his telephone number. Ong found that this account had access to 106 Yahoo special interest groups in which people shared information or pictures. Some of the groups associated with that Yahoo account were named "preteen." One group was called "Up Skirt" and had pictures taken by people with little hidden cameras that focused underneath women's skirts. Some of the other groups were "A1 Modeling Contest 5000," "Adultsites4free," "Alexteen," "Aliengirlsinminiskirts," and "Allnikkicox."
B. The Defense Case
Galeano did not testify. Denise Rodriguez-Bowman, a children's social services supervisor and forensic interviewer at Riverside County Child Protective Services, testified that children can be susceptible to suggestive questioning. "Interview bias," in which the interviewer effectively says, "I know what happened and you're going to tell me," can affect the outcome of the questioning. An adult can influence a child to believe something that is not true. A child's desire to accommodate an authority figure can result in unreliable statements from the child.
Mitchell Eisen, Ph.D., an expert on the memory and suggestibility of maltreated children, testified that repeated suggestive questioning has a strong effect on suggestibility and acceptance of misinformation, and that preschool children are the most suggestible.
The victim's grandmother said that she, her son, Aaron, and Galeano all had the password to her computer. Aaron had friends over Saturdays, afternoons, and evenings, and they may all have had access.
John Wyatt, a detective with the Riverside County Sheriff's Department, testified the police made no attempt to speak to Aaron about the material on grandmother's computer.
Dennis Galeano, Galeano's cousin, testified that he and Galeano are close friends, and he trusted Galeano to babysit his children when they were young. Galeano was "very appropriate" and "beyond approach" around young girls and had demonstrated a healthy, age-appropriate interest in adult women.
Sandra Neiswander, Galeano's sister, testified she has seen him around children throughout his life at family gatherings with her children and his granchildren, and he has always been very loving and caring and concerned for their welfare.
Adriana Galeano, Galeano's daughter, testified that he is very respectful around young girls. She lived with him in his apartment from 2000 to 2005, and there was a computer that everyone could freely access. She never saw any improper material on the computer.
DISCUSSION
I. ADMISSION OF SEXUALLY EXPLICIT COMPUTER PHOTOGRAPHS
Galeano contends the court prejudicially abused its discretion by denying his motion in limine to exclude evidence of sexually explicit photographs of preteen girls and young women found on the victim's grandmother's computer. We conclude the court did not abuse its discretion.
A. Background
Galeano was charged in counts 1 and 2 with committing a lewd act on the victim, a child under the age of 14 years, in violation of sections 288(b) and 288(a), respectively. 1. Motions in limine
Before trial, Galeano filed a motion to exclude the computer evidence. Galeano argued the evidence was inadmissible because (1) no foundation could be established to link him to the images as there was "[n]o evidence . . . regarding when the images were downloaded, their source, that [he] downloaded them, or that he even saw them," and no evidence that he had the password or that the images were downloaded for a sexual purpose; (2) the evidence was not relevant because there was no relevant link between the viewing of images of preteen and older female models and the charged offenses of sexually molesting a five-year-old girl; and (3) admission of the images would be more prejudicial than probative under Evidence Code section 352.
In their competing in limine motion, the People, citing People v. Memro (1995) 11 Cal.4th 786 (Memro) and other case authorities, argued that although no child pornography was found on the grandmother's computer, the computer evidence was admissible under Evidence Code section 1101, subdivision (b) (hereafter Evidence Code section 1101(b)) because it was relevant to show Galeano "had an interest in younger girls," and, thus, it was relevant both to show his intent when he touched the then-five-year-old victim and to demonstrate the touching was intentional and not accidental.
After conducting a hearing on the motions and considering Galeano's supplemental briefing, the court ruled the computer evidence was admissible if the People could lay the proper foundation because the evidence tended to show Galeano had an sexual interest in young girls and, thus, was relevant to show motive:
"In reviewing this matter, as well as having had an opportunity to view the images . . . that [are] in question, the Court believes that as long as the People can lay the proper foundation that those sites were visited by someone using [Galeano's] password—without that, I think we have serious relevance issues—the Court does see them as having a tendency to show apparent interest in young girls that well could be evidence that could go towards motive. And on that basis, as long as the foundation is laid, the Court would allow those in." (Italics added.)
2. Foundational hearing and the court's ruling
Later during the trial, the court conducted a foundational hearing under Evidence Code section 402 at which Ong testified on behalf of the People. Ong testified he conducted a forensic examination of grandmother's computer and searched for pictures and images of little girls. He discovered user accounts with AOL and found that lugalea@aol.com was the most used account. That account was associated with Luis Galeano and had a number of Web site favorites, as discussed, ante.
Ong stated he also found Yahoo account activity, including activity under italianogaliano@yahoo.com. That Yahoo account, which was in the name of Louie Galeano, had 106 "groups." Those groups were interested in young girls, and the person who used this Yahoo account was looking for information about naked preteen girls.
a. Ruling
At the conclusion of Ong's foundational testimony, the court ruled the evidence was admissible:
"Based on the testimony that [Ong] gave, he can't say for sure whose fingers were on the computer when it was done. But whoever was on the computer had logged in using the user name that [Galeano] had. And on that basis, I believe that would make them admissible.
"Now, as to the fact that we don't know the actual ages of the girls in the pictures and we have not had any expert testimony about a nexus between people looking at those and then wanting to molest young girls, the Court believes that that would be circumstantial evidence, and I would believe that would be adequate. The fact that they look young, which I—in my opinion, they look young, I would—I would allow them in on that basis because I believe that that is circumstantial evidence going to motive and intent." (Italics added.)
B. Applicable Legal Principles
Evidence Code section 1101, subdivision (a) "prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion." (People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) Thus, evidence of other crimes or bad acts is inadmissible when it is offered to show that a defendant had the criminal disposition or propensity to commit the crime charged. (Evid. Code, § 1101, subd. (a).)
Evidence Code section 1101(b) "clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person's character or disposition." (Ewoldt, supra, 7 Cal.4th at p. 393, fn. omitted.) Specifically, Evidence Code section 1101(b) provides that nothing in that section "prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act."
For evidence of uncharged misconduct to be admissible under Evidence Code section 1101(b) to prove such facts as motive, intent, identity, or common design or plan, the charged offenses and uncharged misconduct must be "sufficiently similar to support a rational inference" of these material facts. (People v. Kipp (1998) 18 Cal.4th 349, 369.) "The least degree of similarity . . . is required in order to prove intent." (Ewoldt, supra, 7 Cal.4th at p. 402.) The uncharged misconduct need only be "sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same [or similar] intent in each instance.(Ibid.; see Memro, supra, 11 Cal.4th at pp. 864-865 [defendant's uncharged conduct of possessing sexually explicit photographs of young males ranging from prepubescent to young adult admissible to show intent to sexually molest young boy].)
If the trial court determines that uncharged misconduct is admissible under Evidence Code section 1101(b), it must then determine whether the probative value of the evidence is " 'substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' " (Ewoldt, supra, 7 Cal.4th at p. 404; Evid. Code, § 352.) "The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging.(People v. Karis (1988) 46 Cal.3d 612, 638.)
3. Standard of review
We review the trial court's rulings under Evidence Code sections 1101 and 352 for an abuse of discretion (People v. Lewis (2001) 25 Cal.4th 610, 637) and will not reverse an evidentiary ruling unless the appellant demonstrates a manifest abuse of that discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
C. Analysis
The court did not abuse its discretion by ruling the computer evidence was admissible under Evidence Code section 1101(b) to show motive and intent. In Memro, supra, 11 Cal.4th 786, the California Supreme Court held that "sexually explicit stories, photographs and drawings of males ranging in age from prepubescent to young adult" (id. at p. 864) were admissible to show the defendant's intent to sexually molest a young boy in violation of Penal Code section 288 even though some of the photographs "depict[ed] youths in a manner that [was] not sexually suggestive." (Memro, supra, at p. 864.) It ruled that "the photographs, presented in the context of defendant's possession of them, yielded evidence from which the jury could infer that he had a sexual attraction to young boys and intended to act on that attraction." (Id. at p. 865.)
The same is true in the case before us. Galeano placed his intent to violate section 288 at issue by pleading not guilty to the crimes charged. (Memro, supra, 11 Cal.4th at p. 864, citing People v. Balcom (1994) 7 Cal.4th 414, 422-423.) The computer images were circumstantially probative of intent in counts 1 and 2 (§§ 288(b) & 288(a), respectively). As described by the court, the sexually explicit images "ha[d] a tendency to show apparent interest in young girls that well could be evidence that could go towards motive." As in Memro, supra, 11 Cal.4th at pages 864-865, the jury could infer from the images that Galeano was attracted to preteen girls and intended to act on that attraction.
Galeano claims this case is distinguishable from Memro because there was insufficient evidence to directly link him with the computer images, the foundation required to permit admission of that evidence. (See Evid. Code, §§ 402 & 403, subd. (a); People v. Lucas (1995) 12 Cal.4th 415, 466.) There is no merit to this claim. Grandmother testified that Galeano used her computer "all the time" for "hours at a time." She also testified that Galeano was often in her house when she was not there and used her password to access the Internet on her computer. Ong, the forensic computer specialist, testified that he looked at Yahoo accounts associated with grandmother's computer. In the account information for a Yahoo e-mail account called italianogaliano@yahoo.com, the person who set up the account identified himself as Louie Galeano. The profile page for that account gave specific information about Galeano's apartment address and his telephone number. Ong also found that this account had access to 106 Yahoo special interest groups in which people shared information or pictures, and some of the groups associated with that Yahoo account were named "preteen." Ong stated that one group called "Up Skirt" had pictures taken underneath women's skirts with little hidden cameras. The foregoing evidence provided the necessary link between Galeano and the images found on grandmother's computer.
Galeano also contends that "even if the photos are deemed relevant . . . , they should have been excluded under [Evidence Code] section 352, because any probative value was outweighed by the prejudicial effect." This contention is unavailing. The images were damaging to Galeano's defense precisely because they were highly probative, not because they " 'uniquely tend[ed] to evoke an emotional bias against the defendant as an individual' " with " 'very little effect on the issues.' " (People v. Karis, supra, 46 Cal.3d at p. 638.) Although the images of the young girls might have been disturbing to members of the jury, the evidence was less damaging than the victim's description of the ways Galeano molested her.
II. SUFFICIENCY OF THE EVIDENCE (COUNT 1)
Galeano next contends his count 1 conviction of committing a lewd act upon the victim by force must be reduced to the lesser included offense of attempted lewd act upon the victim by force because the evidence is insufficient to show that a lewd act was accomplished. In support of this contention, he asserts that, according to the victim's testimony, when he grabbed her hand, pulled the elastic of his pants, and stuck her hand down his pants, the victim "made a fist with her hand, pulled it away, and avoided
touching [his] private parts." (Italics added.) Thus, he contends, "the most the evidence established was an attempted lewd act by force because . . . the lewd act was not accomplished." This contention is without legal or evidentiary support.
A. Standard of Review
When assessing a challenge to the sufficiency of the evidence, we apply the substantial evidence standard of review, under which we view the evidence "in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that any reasonable trier of fact could find the essential elements of the charged crime or allegation proven beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; Jackson v. Virginia (1979) 443 U.S. 307, 319.) "The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.)
The uncorroborated testimony of a single witness is sufficient to sustain a conviction or true finding on an enhancement allegation, "unless the testimony is physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284, 296.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314.)
B. Analysis
As pertinent here, the jury convicted Galeano in count 1 of violating section 288(b)(1), which applies to "[a]ny person who commits an act described in [section 288(a)] by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." Section 288(a) provides in part:
"[A]ny person who willfully and lewdly commits any lewd or lascivious act. . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony . . . ." (Italics added.)
Noting that the term "lewd or lascivious act" in section 288(a) is "defined expansively to include contact 'upon or with the [victim's] body, or any part or member thereof,' " the California Supreme Court has explained that "section 288 is violated by 'any touching of an underage child committed with the intent to sexually arouse either the defendant or the child." (People v. Martinez (1995) 11 Cal.4th 434, 442 (Martinez).)
The high court also explained in Martinez that nothing in the expansive statutory definition of "lewd or lascivious act" "restricts the manner in which such contact can occur or requires that specific or intimate body parts be touched." (Martinez, supra, 11 Cal.4th at p. 442.) Although "a 'touching' of the victim is required," and "sexual gratification must be presently intended at the time such 'touching' occurs," the Martinez court further explained that "the form, manner, or nature of the offending act is not otherwise restricted" and "[c]onviction under [section 288] has never depended upon contact with the bare skin or 'private parts' of the defendant or the victim." (Martinez, at p. 444.)
Here, however, contrary to the foregoing express holding in Martinez, Galeano's sufficiency-of-the-evidence challenge to his conviction of count 1 is premised on the claim that his conviction of count 1 cannot stand because the victim's testimony shows that when he grabbed her hand and stuck it down his pants under his underwear, the victim "made a fist with her hand, pulled it away, and avoided touching [his] private parts." This claim is without legal support. (See Martinez, supra, 11 Cal.4th at p. 444 ["[c]onviction under [section 288] has never depended upon contact with the bare skin or 'private parts' of the defendant"].) The fact that the victim could not remember whether her fist actually touched Galeano's genitals or even his skin is of no moment. (See Martinez, supra, at p. 444.)
Viewing the whole evidentiary record in the light most favorable to the judgment, as we must (Johnson, supra, 26 Cal.3d at p. 578), we conclude substantial evidence amply supports Galeano's count 1 conviction. Regarding the touching element of his section 288(b) offense, Galeano does not dispute that substantial evidence shows he forcibly touched the victim.
The prosecution also presented substantial evidence from which any reasonable jury could find beyond a reasonable doubt that his motivation in forcibly touching the victim was to arouse his own lust for his own sexual gratification. (See Martinez, supra, 11 Cal.4th a p. 444 ["sexual gratification must be presently intended at the time such 'touching' occurs"].) " '[T]he purpose of the perpetrator in touching the child is the controlling factor and each case is to be examined in the light of the intent with which the act was done. . . . If [the] intent of the act . . . is to arouse . . . the lust, the passion or the sexual desire of the perpetrator [or the child,] it stands condemned by [section 288] . . . .'" (Ibid.)
Here, the victim's testimony shows that immediately before Galeano grabbed her hand and forcibly stuck it under his underwear and held it there, he pulled out her pants and molested her by touching her on her private. The evidence of these lewd acts, together with the victim 's testimony showing Galeano sexually molested her on other occasions, is sufficient to support a finding beyond a reasonable doubt by any reasonable jury that he forcibly touched the victim to arouse his own lust for his own sexual gratification. In sum, substantial evidence supports Galeano's count 1 conviction.
III. COUNT 1 (§ 288(B)) CONSECUTIVE SENTENCE
Galeano also claims the court erred in imposing a full, consecutive sentence under section 667.6(d)—which provided in part that "[a] full, separate, and consecutive term shall be served for each violation of . . . subdivision (b) of Section 288 . . . if the
crimes . . . involve the same victim on separate occasions" —for his count 1 conviction of committing a lewd act by force on the victim, a child under the age of 14 years, in violation of section 288(b).
The information charged Galeano with molesting the victim in 2004-2005. At that time, as the parties point out, section 667.6(d) provided: "A full, separate, and consecutive term shall be served for each violation of Section 220, other than an assault with intent to commit mayhem, provided that the person has been convicted previously of violating Section 220 for an offense other than an assault with intent to commit mayhem, paragraph (2), (3), (6), or (7) of subdivision (a) of Section 261, paragraph (1), (4), or (5) of subdivision (a) of Section 262, Section 264.1, subdivision (b) of Section 288, subdivision (a) of Section 289, of committing sodomy in violation of subdivision (k) of Section 286, of committing oral copulation in violation of subdivision (k) of Section 288a, or of committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person if the crimes involve separate victims or involve the same victim on separate occasions." (See Historical and Statutory Notes, 49 West's Ann. Pen. Code (2010 ed.) foll. § 667.6, p. 378, italics added.)
Specifically, Galeano claims the court erred by designating count 2 as the principal count, for the conviction of which it imposed the middle term of six years in prison, and then imposing under section 667.6(d) a consecutive middle term of six years for his count 1 conviction. Citing People v. Jones (1988) 46 Cal.3d 585, Galeano asserts the count 1 consecutive term is unauthorized because section 667.6(d) "applies only when a defendant stands convicted of multiple offenses enumerated in that subdivision" (italics added), and "the mandatory [consecutive sentencing] provision under subdivision (b) did not apply" because, "[h[ere, [he] was convicted of only one enumerated offense: the section 288[(b) offense] charged in count [1]."
Although the court did not specifically cite section 667.6(d) when it sentenced Galeano on March 26, 2010, to the consecutive term of six years for his count 1 conviction, the record shows the court considered the probation officer's report, which did cite section 667.6(d) as the statutory authority for that consecutive sentence.
Acknowledging that, "[o]f the offenses of which [Galeano] was convicted, only the forcible molestation in Count 1 was subject to [section 667.6(d)]," the People concede "the trial court erred by concluding a mandatory consecutive term on Count 1 was required under [section 667.6(d)]."
We accept the People's acknowledgment the court erred by imposing a consecutive term for his count 1 conviction. In People v. Jones, supra, 46 Cal.3d at page 594, footnote 5, the California Supreme Court explained that "the mandatory consecutive sentencing scheme in [section 667.6(d)] can apply only when a defendant stands convicted of multiple ESO's [(enumerated sex offenses)] because of subdivision (d)'s language 'if such crimes involve separate victims or involve the same victim on separate occasions.' Both those situations necessarily imply multiple ESO's." (Italics added.)
In People v. Jones, supra, 46 Cal.3d at page 592, footnote 3,the high court stated it was "refer[ring] to the violent sex offenses enumerated in the pertinent subdivisions of section 667.6 as the 'ESO's.' "
Here, Galeano was not convicted of multiple sex offenses enumerated in section 667.6(d). Although (as noted) he was convicted of two sex offenses—one count of violating section 288(a) (count 2) and one count of violating section 288(b) (count 1)—only count 1 involved a sex offense enumerated in section 667.6(d). (See fn. 1, ante.) The court erred by imposing under section 667.6(d) a consecutive term for Galeano's count 1 conviction because he was not convicted of multiple ESO's, and thus the application of the mandatory consecutive sentencing provisions of section 667.6(d) to impose that consecutive term was unauthorized.
Our analysis, however, does not end here. The court had discretionary authority under section 667.6, subdivision (c) (hereafter section 667.6(c)) to impose a full consecutive sentence for "each" conviction of any of the sex offenses enumerated in that subdivision, including a violation of section 288(b), "whether or not the crimes were committed during a single transaction." (See People v. Jones, supra, 46 Cal.3d at pp. 592-593, 595 [section 667.6(c) "permits full, consecutive sentencing of each [enumerated sex offense] conviction on a discretionary basis" (italics added)].) Furthermore, remand for resentencing is not required if the entire record supports the sentence rendered and it is not reasonably probable a more favorable sentence would have been imposed in the absence of error. (People v. Davis (1995) 10 Cal.4th 463, 552.)
When Galeano committed his sex offenses in this case, section 667.6(c) provided in part: "In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of . . . subdivision (b) of Section 288 . . . whether or not the crimes were committed during a single transaction." (See Historical and Statutory Notes, 49 West's Ann. Pen. Code, supra, foll. § 667.6, p. 378, italics added.)
Here, neither a modification of Galeano's sentence nor a remand for resentencing is required because (1) the record supported imposition, under the discretionary consecutive sentencing provisions of section 667.6(c), of a full, consecutive sentence for Galeano's count 1 conviction of sexually molesting the victim in violation of section 288(b), an offense enumerated in section 667.6(c) (see fn. 4, ante); and (2) it is not reasonably probable a more favorable sentence would have been imposed in the absence of the court's error in imposing under subdivision (d) of that section the consecutive sentence for Galeano's count 1 conviction. Given the circumstances of this case, the strong evidence of Galeano's guilt, and the factors in aggravation noted by the court,"[i]t is inconceivable that the trial court would impose a different sentence if we were to remand for resentencing" (People v. Champion (1995) 9 Cal.4th 879, 934, disapproved on another ground in People v. Combs (2004) 34 Cal.4th 821, 860).
The court cited the following circumstances in aggravation: (1) the victim was particularly vulnerable (Cal. Rules of Court, rule 4.421(a)(3) (all further rule references are to the Cal. Rules of Court)); (2) the manner in which Galeano carried out the sex crimes indicated planning, sophistication, or professionalism (rule 4.421(a)(8)); (3) he took advantage of a position of trust or confidence to commit the crimes (rule 4.421(a)(11)); and (4) he engaged in violent conduct that indicates a serious danger to society (rule 4.421(b)(1)).
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IV. RESTITUTION AWARD
Last, Galeano claims the restitution award must be reduced by $165, the amount the court ordered Galeano to pay for mental health counseling for the victim's grandmother because grandmother was not a victim and, thus, this portion of the restitution award is not authorized. This claim is unavailing.
The record shows Galeano did not object to this portion of the restitution award. By failing to timely object in the trial court, he forfeited this claim on appeal. (People v. O'Neal (2004) 122 Cal.App.4th 817, 820 (O'Neal))
Were it necessary to reach the merits of this claim, we would reject it. The California Constitution guarantees crime victims will receive restitution. (Cal. Const., art. I, § 28, subd. (b); People v. Broussard (1993) 5 Cal.4th 1067, 1075 (Broussard).) "[R]estitution for derivative victims is appropriate." (O'Neal, supra, 122 Cal.App.4th at p. 821.) "A 'derivative victim' is 'an individual who sustains pecuniary loss as a result of injury or death to a victim.' " (Ibid., quoting Gov. Code, § 13951, subd. (c).) "[C]ompensation for those who suffer injuries or incur expenses as a result of an offense is proper, 'regardless of the nature of their loss.' " (O'Neal, at p. 821, quoting Broussard, supra, 5 Cal.4th at p. 1075.) Furthermore, section 1202.4, subdivision (f)(3)(C) authorizes a sentencing court to order restitution for "[m]ental health counseling expenses" in an amount that is "sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct."
Here, victim's grandmother, although not a direct victim of Galeano's sex offenses, is a derivative victim entitled to compensation for the $165 in mental health counseling expenses she incurred as the result of his criminal conduct in her home. (See Broussard, supra, 5 Cal.4th at p. 1075; O'Neal, supra, 122 Cal.App.4th at p. 821; § 1202.4, subd. (f)(3)(C); Gov. Code, § 13951, subd. (c).) Accordingly, we reject Galeano's assertion that this restitution award was "unauthorized" and conclude the court did not abuse its discretion.
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J. WE CONCUR:
McINTYRE, J.
IRION, J.