Opinion
D069706
05-22-2017
THE PEOPLE, Plaintiff and Respondent, v. SALVADORE R. GUTIERREZ, Defendant and Appellant.
Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE338332) APPEAL from a judgment of the Superior Court of San Diego County, Patricia K. Cookson, Judge. Affirmed in part and reversed in part with directions. Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Salvadore Gutierrez guilty of nine counts of lewd and lascivious acts upon a child. (Pen. Code, § 288, subd. (a).) At a bifurcated hearing, the trial court found true Gutierrez had previously been convicted of two serious felonies (§§ 667, subd. (a)(1), 668 & 1192.7, subd. (c)) and two prior strike offenses (§§ 667, subds. (b)-(i), 668 & 1170.12). Additionally, the court found that one of the prior convictions brought Gutierrez's current convictions within the operation of the One Strike law. (§ 667.61 (subd. (a), (c), and (d).) Accordingly, the court sentenced Gutierrez to 205 years to life in state prison.
All statutory references are to the Penal Code unless otherwise noted.
On appeal, Gutierrez raises two arguments, both involving his prior conviction in Arizona for child molestation and its effect on the current trial and sentence. First, he contends his counsel was ineffective for failing to object to the use of the Arizona conviction for impeachment purposes because the Arizona conviction was not a crime of moral turpitude. Second, he claims the trial court violated his Sixth Amendment right to a jury trial when it determined that the Arizona conviction constitutes a serious felony and strike prior under California law because such a determination required the trial court to make factual findings regarding the underlying facts of his offense rather than only a review of the least adjudicated elements.
Although we conclude Gutierrez's counsel was not ineffective for failing to object, we agree the trial court violated Gutierrez's right to a jury trial when it determined the Arizona conviction constitutes a serious felony. Accordingly, we reverse the sentence and remand for resentencing.
OVERVIEW
In light of the contentions on appeal, we only briefly summarize the facts of Gutierrez's current convictions.
Around 2001, Gutierrez began molesting his granddaughter, who was then eight years old. He would pick her up from elementary school and take her to his tuxedo shop, where he repeatedly committed lewd and lascivious acts and instructed his granddaughter to tell no one. The molestation occurred repeatedly over several months.
When she was still young, Gutierrez's granddaughter left San Diego with her family, first to Temecula and later to South Carolina. The granddaughter eventually reported the incidents to several people, including law enforcement, but Gutierrez was not charged until 2014, after the police and a prosecutor interviewed the granddaughter when she moved back to San Diego.
At trial, Gutierrez's daughter, the mother of Gutierrez's victim, testified he also molested her when she was a child. Gutierrez was never charged for these acts. Additionally, another victim testified that when she was 10 or 11 years old, Gutierrez was her neighbor and would molest her when she went over his house to go swimming. In 1988, Gutierrez pleaded guilty to the charge of committing a lewd act upon a child based upon these incidents.
The jury convicted Gutierrez of all nine counts. Gutierrez agreed to waive his right to a jury trial on the truth of his prior allegations and, at a bifurcated bench trial, the trial court found that Gutierrez did in fact suffer the Arizona conviction. After reviewing additional evidence, the court concluded that the Arizona conviction also constituted a strike prior and serious felony for purposes of sentencing. Subsequently, the court sentenced Gutierrez to a total term of 205 years to life in prison.
DISCUSSION
I
At trial, Gutierrez testified and denied the claims of his daughter and granddaughter. On cross-examination, the prosecutor challenged Gutierrez's credibility by questioning him regarding his two prior felony convictions. Gutierrez admitted he was convicted of two crimes involving moral turpitude, the 1988 conviction lewd and lascivious acts upon a child and the earlier 1974 Arizona conviction of child molestation. The court instructed the jury that if it found Gutierrez did commit these felonies, it may consider that fact "only in evaluating the credibility of the witness' testimony." Defense counsel did not object to the introduction of this evidence.
Before trial, the trial court ruled that the Arizona conviction could not be introduced under Evidence Code section 1108 to demonstrate Gutierrez's propensity to commit sexual offenses or to impeach his character witnesses. Those rulings are not at issue on appeal.
Gutierrez now contends that his counsel was ineffective in failing to object to the introduction of the Arizona conviction for impeachment purposes. To establish ineffective assistance of counsel, a defendant "must show that his or her counsel's performance was deficient and that the defendant suffered prejudice as a result of such deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-692, [104 S.Ct. 2052, 80 L.Ed.2d 674].) To demonstrate deficient performance, defendant bears the burden of showing that counsel's performance 'fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citation.] To demonstrate prejudice, defendant bears the burden of showing a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. [Citation.]" (People v. Mickel (2016) 2 Cal.5th 181, 198.)
Counsel does not perform deficiently by not raising a meritless objection. (People v. Marlow (2004) 34 Cal.4th 131, 144.) Accordingly, to show his counsel's failure to object was unreasonable, Gutierrez must demonstrate that such an objection would have merit because the evidence of his Arizona conviction was irrelevant to the issue of his credibility. He does not meet this burden.
Pursuant to Evidence Code section 788, "[f]or the purposes of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony." As explained by our Supreme Court, however, this broad evidentiary standard is constrained by the Due Process Clause of the Fourteenth Amendment. (People v. Castro (1985) 38 Cal.3d 301, 314-315.) A prior felony conviction is relevant to the question of the witness's credibility only if it involves a crime of "moral turpitude." (Ibid.)
To determine whether a crime involves moral turpitude, the court may consider only whether the "least adjudicated elements of the conviction necessarily involve moral turpitude" and may not consider the particular acts of misconduct giving rise to the defendant's conviction. (People v. Castro, supra, 38 Cal.3d at p. 317.) The court must consider whether one can reasonably infer from those elements the presence of moral turpitude, i.e., "dishonesty, a ' "general readiness to do evil," ' ' "bad character," ' or 'moral depravity.' " (People v. Gabriel (2012) 206 Cal.App.4th 450, 456.) This determination is a question of law. (People v. Gray (2007) 158 Cal.App.4th 635, 640.)
As applied here, there is no doubt that the least adjudicated elements of Arizona's child molestation statute described a felony involving moral turpitude. Primarily, a foreign conviction may not be admitted for impeachment purposes unless it is shown to be a felony under the law of the foreign jurisdiction. (Truman v. Thomas (1980) 27 Cal.3d 285, 296.) Here, it is undisputed that Arizona Revised Statutes section 13-653 was a felony offense in Arizona. (A.R.S. § 13-653; 1965 Ariz. Sess. Laws; see State v. Berry (1966) 101 Ariz. 310, 312 (Berry).)
Hereinafter referred to as section 13-653.
The next question is whether section 13-653 constitutes a crime of moral turpitude. Gutierrez acknowledges that a violation of section 288, for lewd and lascivious acts upon a child, constitutes a crime of moral turpitude. (See, e.g., People v. Massey (1987) 192 Cal.App.3d 819, 822-824.) He contends, however, that his Arizona conviction arose from a significantly broader statute. Specifically, he argues that the least adjudicated elements of the Arizona statute did not require any intent to be proven and, therefore, could not involve moral turpitude.
When Gutierrez was convicted in 1974, Arizona's child molestation statute provided, "[a] person who molests a child under the age of fifteen years by fondling, playing with, or touching the private parts of such child or who causes a child under the age of fifteen years to fondle, play with, or touch the private parts of such person shall be guilty of a felony . . . ." (A.R.S. § 13-653; 1965 Ariz. Sess. Laws; see Berry, supra, 419 P.2d at p. 339.)
Although the statutory language itself did not expressly contain an element of intent, the Arizona Supreme Court considered section 13-653 and clarified that "where a penal statute fails to expressly state a necessary element of intent or scienter, it may be implied." (Berry, supra, 419 P.2d at p. 340.) In Berry, the court rejected the argument that section 13-653 did not include an element of intent. Instead, the court concluded "a scienter requirement is apparent" when considering "both the word 'molest' itself and the general intent of the Legislature." (Berry, at p. 340.) Accordingly, " '[w]hen the words annoy or molest are used in reference to offenses against children, there is a connotation of abnormal sexual motivation on the part of the offender.' " (Ibid., quoting State v. Trenary (1955) 79 Ariz. 351, 354 [290 P.2d 250, 252].) Section 13-653 did not proscribe all touching of children regardless of intent, but rather criminalized acts " 'motivated by an unnatural or abnormal sexual interest or intent with respect to children.' " (Berry, at p. 340.)
Gutierrez argues against the use of Berry to establish an element of intent to Arizona's child molestation statute. Relying on a more recent Arizona Supreme Court decision, State v. Holle (2016) 240 Ariz. 300 (Holle), he suggests that Berry did not create an element of intent. His argument, however, relies on a misinterpretation of Holle.
In Holle, the Arizona Supreme Court held that specific sexual intent is not an element of the current child molestation statute, but rather the defendant may rely on a lack of sexual intent as an affirmative defense. (See, e.g., Holle, supra, 379 P.3d at p. 204) ["viewing sexual motivation as an element of child molestation or sexual abuse would obligate the state to prove additional aspects of a defendant's mental state beyond the mental states ("intentionally or knowingly") that are statutorily defined and expressly required"].)
As Gutierrez acknowledges, the Arizona Supreme Court in Holle was careful not to disparage the holding of Berry and its interpretation of the child molestation statute as it was written at the time of Gutierrez's conviction. Indeed, the court in Holle clarified that it did not disagree with the holding of Berry regarding the prior statute, but rather was reaching a different conclusion regarding the current statute because of a change in Arizona's child molestation statute. (Holle, supra, 379 P.3d at pp. 202-203.) Whereas Berry interpreted section 13-653 as including an implied element of intent given the legislative history and use of the word "molest," the court in Holle recognized subsequent changes in statutory language, including the addition of an express intent requirement and removal of the word "molest," necessitated a different interpretation. (Ibid.) Accordingly, the holding in Holle does nothing to negate the court's previous decision in Berry that, at the time of Gutierrez's 1974 conviction, Arizona's child molestation statute required the prosecution to prove the defendant's sexual motivation.
Next, Gutierrez argues that no authority suggests "that an implied connotation of a motive for conduct is identical to a statutorily defined specific intent." On appeal, he repeats a claim made by trial counsel that " '[i]ntent is not something that can be implied in a child molest.' " During the sentencing hearing, defense counsel argued that "Berry was actually the case that [established] where the actual words knowingly and willfully, intentionally are missing from a statute, it can be implied that the prosecutor has proven it."
This contention misses the point of Berry. The Arizona Supreme Court did not hold that a defendant's intent to sexual arouse himself was presumed in all child molestation trials. Instead, Berry interpreted the child molestation statute to include not only the express elements set forth in the statute, but also an implied element of intent that the prosecution must prove to secure a conviction. This implied element did not stand apart from the express language of the statute, but rather was implied from the language of the statute and was a necessary element that must be adjudicated to sustain a conviction.
Under the applicable test to determine whether the Arizona conviction could be used to impeach Gutierrez in the present matter, Berry established that the least adjudicated elements of Arizona's child molestation statute at the time of Gutierrez's conviction included an element of intent to touch a child " 'motivated by an unnatural or abnormal sexual interest or intent with respect to children.' " (Berry, supra, 419 P.2d at p. 340.)
At oral argument, Gutierrez suggested this language mirrors the language of California's Penal Code section 647.6, which includes misdemeanor offenses. Section 647.6, subdivision (a)(1) applies to any person who "annoys or molests any child under 18 years of age," but does not require touching. (See, e.g., People v. Valenti (2016) 243 Cal.App.4th 1140, 1162.) Courts have defined "annoy or molest" under section 647.6, subdivision (a)(1) as requiring that the defendant act in a manner " ' "motivated by an unnatural or abnormal sexual interest." ' " (See, e.g., People v. Lopez (1998) 19 Cal.4th 282, 289.) Similarly, section 647.6, subdivision (a)(2) applies to any person "who, motivated by an unnatural or abnormal sexual interest in children, engages in conduct with an adult whom he or she believes to be a child under 18 years of age, which conduct, if directed toward a child under 18 years of age, would be a violation of this section."
Although section 647.6, subdivision (a) includes the same intent requirement as discussed in Berry, it is not directly comparable to Arizona's section 13-653 in the context of determining the crimes involve moral turpitude. Whereas section 647.6, subdivision (a)(1) does not require any touching and subdivision (a)(2) involves conduct between two adults and similarly does not require touching, section 13-653 requires the same intent, but also the intentional touching of the private parts of a minor. Obviously, conduct involving the touching of a minor is more egregious than conduct involving the same motivation, but no touching. The moral depravity evident in section 13-653 does not arise only from the state of mind of the defendant, but also the specific act performed on the child, i.e., the touching.
Under established California law, touching another individual, let alone a child, for the purposes of sexual arousal unquestionably is an act of moral depravity involving moral turpitude. (See, e.g., People v. Chavez (2000) 84 Cal.App.4th 25, 29-30; People v. Massey, supra, 192 Cal.App.3d at p. 823.) Additionally, at least one court has held that a conviction for child molestation under the predecessor statute to section 647.6 constitutes a crime of moral turpitude. (Brewer v. Department of Motor Vehicles (1979) 93 Cal.App.3d 358, 361.) Under all of these cases, the criminal touching of another person for the purpose of sexual arousal has been considered an act of moral depravity. Similarly, Arizona's child molestation statute, which criminalizes the intentional touching of the private parts of a child motived by an abnormal or unnatural sexual interest, qualifies as a crime of moral turpitude.
Because Gutierrez's prior Arizona conviction for child molestation was a crime of moral turpitude, it was admissible to impeach Gutierrez. Accordingly, his counsel's failure to object cannot constitute ineffective assistance of counsel because the objection would have been meritless. (People v. Marlow, supra, 34 Cal.4th at p. 144.)
In the alternative, Gutierrez contends that even if the evidence of his Arizona conviction was admissible for purposes of impeachment, his counsel was ineffective for failing to request that the court "sanitize" the conviction by instructing the prosecutor to make only a general reference to a prior felony conviction rather than refer to his conviction of "child molest." Gutierrez contends that without the sanitation, the jury may have considered the prior conviction not only on the issue of credibility, but also as evidence of Gutierrez's propensity to molest children.
Even assuming his counsel's performance was deficient, Gutierrez does not establish that the absence of a sanitation of the conviction creates a reasonable probability that this omission had an adverse effect on the outcome of trial. (See, e.g., People v. Waidla (2000) 22 Cal.4th 690, 718.) The prosecutor introduced detailed testimony from two women regarding their molestation by Gutierrez as propensity evidence pursuant to Evidence Code section 1108. The trial court, however, did not allow the introduction of evidence regarding the underlying conduct of the Arizona conviction for the same purpose, finding that the introduction of three separate incidents would be too prejudicial. This ruling, however, does not establish that the failure to sanitize the Arizona conviction was prejudicial. The trial court was concerned with the cumulative introduction of evidence of the underlying conduct giving rise to the Arizona conviction. A brief use of the phrase "child molest," however, does not carry the same weight as a detailed exposition on the conduct giving rise to the molestation conviction. Given that the jury heard evidence regarding two prior incidents, in addition to the overwhelming evidence of Gutierrez's guilt, there is not a reasonable probability that if counsel had objected to the use of the phrase "child molest," in relation to impeachment, the jury would have acquitted Gutierrez.
Moreover, immediately following the admission of the Arizona prior conviction at trial, the court instructed the jury it could not consider the fact of the conviction for any purpose other than evaluating Gutierrez's credibility. Absent evidence to the contrary, we presume the jury understood and followed the court's instruction to consider this evidence only for the purpose of evaluating credibility and, therefore, Gutierrez was not prejudiced because his counsel did not request the Arizona prior conviction be "sanitized." (See, e.g, People v. Williams (2009) 170 Cal.App.4th 587.)
II
Gutierrez also challenges the trial court's determination that his Arizona prior conviction constitutes a serious felony and strike prior. Specifically, he contends the Sixth Amendment prohibits the court from looking beyond the elements of the Arizona child molestation statute to make a factual finding that his violation of the Arizona statute would constitute a violation of California's comparable statute, section 288. We agree.
California's Three Strikes law increases a sentence when the defendant has been convicted of prior serious or violent felonies, or "strikes." (See §§ 667, subds. (b)-(i), 1170.12.) A qualifying strike includes "[a] prior conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison . . . if the prior conviction in the other jurisdiction is for an offense that includes all of the elements of a particular . . . serious felony as defined in subdivision (c) of Section 1192.7." (§ 667, subd. (d)(2).) Similarly, prior convictions for serious felonies also result in a five-year sentence enhancement. (§§ 667, subd. (a)(1), 668 & 1192.7, subd. (c).) An out-of-state prior conviction may be used for imposing a sentence enhancement. (§ 668.)
Accordingly, to use Gutierrez's Arizona conviction as a strike prior and serious felony prior enhancement, the trial court was required to determine whether Gutierrez was convicted under an Arizona statute that includes all the elements of a serious felony in California. At issue is the scope of the inquiry the trial court may undertake to make that determination without infringing on Gutierrez's right to a jury trial.
The permissible scope of a sentencing court's inquiry into prior convictions for the purposes of increasing a current sentence has been discussed and modified in a series of decisions by the United States Supreme Court and California Supreme Court. The most recent California Supreme Court decision discussing the issue, People v. McGee (2006) 38 Cal.4th 682 (McGee), held that a sentencing court may consider the record from the earlier out-of-state prosecution to determine whether the offense would be considered a serious felony. In McGee, the Supreme Court reviewed the relevant United States Supreme Court decisions, beginning with Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). As discussed in McGee, the Apprendi decision recognized that sentence enhancements based upon a defendant's prior convictions fall into a " 'narrow exception' to the general rule that ' "any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." ' " (McGee, at p. 699.)
Applying Apprendi and its progeny, the court in McGee held that when determining whether a prior conviction qualifies as a serious felony, "the inquiry is a limited one and must be based upon the record of the prior criminal proceeding, with a focus on the elements of the offense of which the defendant was convicted. If the enumeration of the elements of the offense does not resolve the issue, an examination of the record of the earlier criminal proceeding is required in order to ascertain whether that record reveals whether the conviction realistically may have been based on conduct that would not constitute a serious felony under California law." (McGee, supra, 38 Cal.4th at p. 706.)
In a statement of prescience, the McGee court noted "the possibility that the United States Supreme Court, in future decisions, may extend the Apprendi rule" to preclude a court from examining the record of the prior conviction. (McGee, supra, 38 Cal.4th at p. 709.)
In 2013, the Supreme Court did just that when it decided Descamps v. United States (2013) 570 U.S. ___ (Descamps), which considered the constitutionality of a similar procedure to that approved in McGee. In its decision, the Supreme Court held that except within a narrow range of circumstances, the Sixth Amendment precludes a sentencing court from making factual determinations based on the court record from the prior conviction.
Descamps outlined the permissible methods under the Sixth Amendment for a sentencing court to determine whether a prior conviction may be used to increase a sentence for a current conviction. First, under the "categorical approach," a court may compare the elements of the statute under which the defendant was previously convicted with the comparable offense. (Descamps, supra, 133 S.Ct. at p. 2281.) If the elements of the out-of-state offense are the same as, or narrower, the comparable in-state offense, the sentencing court may properly determine it is sufficient to apply the sentence enhancement. (Ibid.)
Second, under the "modified categorical approach," the sentencing court may consider additional evidence from the court record if the prior conviction is for violating a "divisible statute." (Descamps, supra, 133 S.Ct. at p. 2281.) As Justice Kagan explained, "[t]hat kind of statute sets out one or more elements of the offense in the alternative—for example, stating that burglary involves entry into a building or an automobile. If one alternative (say, a building) matches an element in the generic offense, but the other (say, an automobile) does not, the modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction. The court can then do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime." (Ibid.)
Descamps considered the question whether sentencing courts may consult those same additional documents if the defendant was convicted under an "indivisible" statute that did not contain alternative elements. Finding that to do so would contravene prior decisions and the principles underlying them, the Descamps court concluded it would violate the Sixth Amendment. (Descamps, supra, 133 S.Ct. at pp. 2281-2282.) As the court explained, "[t]he Sixth Amendment contemplates that a jury—not a sentencing court—will find such facts [about the defendant's underlying conduct], unanimously and beyond a reasonable doubt. And the only facts the court can be sure the jury so found are those constituting elements of the offense—as distinct from amplifying but legally extraneous circumstances." (Id. at p. 2288.) Thus, when a statute does not list multiple, alternative elements creating, in effect, different crimes, the court may not look beyond the elements into the court record to determine whether the specific offense committed by the defendant would match the comparable offense. (Id. at pp. 2288-2289.)
The California Supreme Court has not yet considered the effect of Descamps on the permissible procedures in California for determining whether an out-of-state prior conviction qualifies as a serious felony. The decision in Descamps rested in part on the particularities of the federal law at issue, the Armed Career Criminal Career Act of 1984. (Descamps, supra, 133 S.Ct. at p. 2287; see People v. Marin (2015) 240 Cal.App.4th 1344, 1358-1359.) In that regard, not all of the reasoning of Descamps is applicable to the issue of a California court's ability to use an out-of-state conviction to enhance a defendant's sentence.
On February 17, 2016, the Supreme Court granted review in People v. Gallardo, S231260, to address the issue.
We see no reason, however, why the Sixth Amendment concerns raised in Descamps would not equally apply to California sentencing determinations. Several California Courts of Appeal have applied Descamps to hold that even if a trial court's factfinding regarding out-of-state prior convictions would appear permissible under McGee, it would nevertheless violate the Sixth Amendment. (See, e.g., People v. Navarette (2016) 4 Cal.App.5th 829, 855; People v. Denard (2015) 242 Cal.App.4th 1012, 1030-1034; People v. Saez (2015) 237 Cal.App.4th 1177, 1199-1208; People v. Marin, supra, 240 Cal.App.4th at p. 1362.)
Here, both parties agree that Descamps applies to California sentence enhancement determinations. The parties also agree Arizona's child molestation statute, on its face, does not include all of the elements of California's section 288: whereas section 13-653 applied when a person molests a child under the age of 15 years, California's section 288 applies only when the child is under 14 years.
Additionally, as discussed above, the language of Arizona's child molestation statute did not expressly include an element of intent, whereas section 288 states that the person must "willfully and lewdly commit[] any lewd or lascivious act . . . with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child." The trial court likewise recognized the differences in the statutes, stating that "the least adjudicated elements . . . are not a match." Thus, under the "categorical approach," Arizona's child molestation statute is broader than California's section 288 and cannot be used to enhance Gutierrez's sentence.
The trial court believed, however, that it could look "beyond" the elements and consider the entire case record to determine whether Gutierrez committed an offense that would constitute a serious felony in California. On appeal, Gutierrez relies on Descamps to contend that the court's inquiry was improper because his prior conviction arose from an indivisible statute, which would preclude the use of the Arizona court record to determine the specific facts underlying Gutierrez's conviction.
In response, the Attorney General does not argue Descamps does not apply, but contends the trial court did not run afoul of Descamps when it found that Arizona's child molestation statute constitutes a serious felony and strike prior.
Despite defending the trial court's sentencing determination in the respondent's brief, the Attorney General conceded at oral argument that the trial court erred. Nevertheless, we address the arguments raised by the Attorney General given the novelty of the issue.
The Attorney General first contends that although the Arizona child molestation statute does not expressly include an element of intent, the Arizona Supreme Court held that an element of intent is implied in the statute. As discussed in Section I, ante, we agree. The least adjudicated elements of Arizona's child molestation statute at the time of Gutierrez's conviction included an element of intent to touch a child " 'motivated by an unnatural or abnormal sexual interest or intent with respect to children.' " (Berry, supra, 419 P.2d at p. 340.) This requisite intent is coextensive with section 288's requirement that the touching be done "with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires" of the defendant or the child.
As previously discussed, we see no reason to treat the implied element of intent differently than an express element. Under Descamps and its predecessors, the trial court is prohibited only from relying on "its own finding about a non-elemental fact." (Descamps, supra, 133 S.Ct. at p. 2289.) Indeed, the Supreme Court expressly stated it was not deciding whether a "sentencing court should take account . . . only of the relevant statute's text" and ignore "judicial rulings interpreting it." (Id. at p. 2291.) Because Arizona's Supreme Court unequivocally required the finder of fact to conclude, beyond a reasonable doubt, that a defendant intentionally molested a child to reach a finding of guilt, there would be no interference with Gutierrez's Sixth Amendment rights because the sentencing court need not delve into judicial factfinding to determine he was necessarily convicted on acting with such intent.
Looking beyond the element of intent, however, neither the language of Arizona's previous child molestation statute or judicial rulings interpreting it assist in resolving the discrepancy in applicable ages of the victim: whereas Arizona's section 13-653 applied when the victim is under the age of 15, California's section 288 applies only when the victim is under the age of 14. This difference, recognized by all parties and the trial court, precludes a sentencing court from determining that Gutierrez's Arizona conviction would have necessarily resulted in a conviction under section 288 without considering the Arizona court record. Without additional information, it is possible that Gutierrez molested a child over the age of 14.
The Attorney General asserts that because Arizona's child molestation statute is divisible, Descamps would permit a review of the record. As argued by the Attorney General, "Arizona's child molest statute can be violated by fondling, playing with, or touching the private parts of a child that is less than 15 years old. Fondling, playing with, and touching are three different ways the statute can be violated. Furthermore, the statute can also be violated by causing the child victim to fondle, play with, or touch the defendant's private parts. Given the multiple ways the statute could be violated, together with the broader age range for the victim, the trial court appropriately reviewed the record to determine what the evidence disclosed as to how appellant molested the Arizona victim and whether that victim would qualify as a victim under California law." (Italics omitted.)
The Attorney General's argument that the Arizona statute is divisible, even if technically correct, runs afoul of the principles supporting the holding of Descamps. As the Supreme Court explained, the "modified categorical" approach "acts not as an exception, but instead as a tool" and is meant to "merely help[] implement the categorical approach." (Descamps, supra, 133 S.Ct. at p. 2285.) Even if a statute is divisible in some regard, that fact does not create an exception that allows the court to look beyond the elements to focus on the facts of the prior conviction. (Ibid.) The court must still restrict its review to only the elements of the offense, but may review the court record to identify, from among multiple alternatives, the specific prior conviction. (Ibid.)
In other words, the divisibility of a statute is relevant to the scope of a sentencing court's inquiry only if one of the divisible, alternative elements would match the comparable in-state offense whereas the other alternative elements would not. If the difference between the out-of-state offense and the in-state offense does not arise from the alternative elements in the foreign statute, the modified categorical approach may not be used to review the court record. To do so would require the court to venture beyond merely identifying a prior conviction into the realm of factfinding prohibited by the Sixth Amendment. The sentencing court must be sure that by finding the defendant guilty of the foreign offense, the jury necessarily found all of the constituting elements of the comparable in-state offense. If the foreign conviction does not correspond to the in-state offense, "the inquiry is over." (Descamps, supra, 133 S.Ct. at p. 2286.)
As applied here, the alleged divisibility identified by the Attorney General would permit a review of the record only if, for example, a California statute criminalized "fondling," but not "touching." That is not the case. Therefore, Descamps prohibits the trial court from making a factual determination regarding the age of Gutierrez's victim because to do so violates his right to have a jury determine all facts that increase the penalty for his crime. No matter how obvious the evidence may have been, the sentencing court could not determine that Gutierrez would have been convicted, "in the deliberate and considered way the Constitution guarantees," of an offense under section 288 simply because he was convicted under Arizona's broader child molestation statute. (Descamps, supra, 133 S.Ct. at p. 2290.) By reviewing the record of the Arizona conviction to make a factual determination regarding the age of Gutierrez's victim, the trial court violated his Sixth Amendment right to a jury trial.
Because the trial court could not consider the record of Gutierrez's prior conviction, the court's finding that the mere fact of the Arizona conviction under the Arizona child molestation statute constitutes a serious felony or strike prior is not supported by substantial evidence. (See, e.g., People v. Navarette, supra, 4 Cal.App.5th at p. 855.)
As discussed in Marin, supra, 240 Cal.App.4th 1344, the current state of the law appears to permit a retrial on remand regarding Gutierrez's prior conviction. (Id. at pp. 1363-1367.)
DISPOSITION
The trial court's determination that the Arizona conviction for child molestation constitutes a prior strike conviction and a serious felony conviction is reversed, and the matter is remanded for resentencing. In all other respects, the judgment of conviction is affirmed.
BENKE, Acting P. J. WE CONCUR: HALLER, J. DATO, J.