Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA332694, Sam Ohta, Judge.
Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellant Lonnie Lenoir appeals from a judgment sentencing him to six consecutive terms of 15 years to life on six counts of child molestation involving two victims. He contends (1) the evidence supporting count 5 was insufficient to support a finding of guilt of continuous sexual abuse lasting three months; (2) two jury instructions misstated the law; (3) the life sentences imposed for counts 2 and 5 were based on a statute enacted after the date of the offenses; (4) the trial court erroneously believed it lacked discretion to grant probation or impose determinate sentences as to counts 1, 3, 4, and 6; (5) the trial court’s decision to impose consecutive sentences was based on a statute enacted after the date of the offenses; and (6) the trial court miscalculated the presentence custody credit by one day. Contentions (3) and (6) are well taken. We remand the case with directions to the trial court for further proceedings and affirm in all other respects.
PROCEDURAL HISTORY
Appellant was charged with four counts of lewd or lascivious act(s) upon a child under the age of 14 years (Pen. Code, § 288, subd. (a); counts 1, 3, 4 & 6); and two counts of continuous sexual abuse of a child under the age of 14 years (§ 288.5, subd. (a); counts 2 & 5). Counts 1, 2 and 3 referred to victim M.L. and counts 4, 5 and 6 referred to victim B.L. All six counts included “One Strike” special allegations that appellant committed an offense specified in section 667.61, subdivision (c) against more than one victim (§ 667.61, subd. (b)). All six counts also included special allegations that appellant committed the offenses against more than one victim at the same time and in the same course of conduct (§ 1203.066, subd. (a)(7)).
Unless otherwise specified, all further statutory references are to the Penal Code.
These special allegations originally did not apply to counts 2 and 5, but the trial court granted the prosecution’s motion to apply the allegations as to all counts.
Appellant entered a plea of not guilty to the charges and denied all special allegations. A jury found him guilty on all six counts and found the special allegations true as to all counts. The trial court denied his motion for a new trial. He was denied probation and sentenced to 90 years to life on six consecutive 15-years-to-life terms. He was arrested on November 21, 2007, and sentenced on February 26, 2010. He was accordingly credited with 952 days of custody, consisting of 828 actual days and 124 days of good time/work time. He filed a timely notice of appeal.
1. Prosecution Evidence
M.L. was born in February 1990. She lived with her mother but started visiting her father, C.L., around the age of three or four. These visits occurred every weekend or every other weekend. C.L. lived with his girlfriend Denise and their seven children, one of whom was appellant. C.L.’s three children from a third mother, including the second victim, B.L., also stayed there occasionally.
Appellant molested M.L. numerous times over the course of these visits from the time she was six to 14 years old. M.L. testified that when she was 14, she and B.L. told their father, C.L., and stepmother, Denise, about the abuses.
B.L. was born in April 1991. B.L. lived primarily with her mother and visited her father every other weekend pursuant to a court order. When B.L. was six or seven, appellant began molesting her. He molested her frequently over a period of several years. B.L. testified that appellant molested her every weekend she stayed at her father’s house.
2. Defense Evidence
Four of M.L. and B.L.’s half siblings, who lived at their father’s house, testified that they never saw appellant molest M.L. or B.L. C.L. testified that the victims never told him about the sexual abuse, contrary to the victims’ testimony. B.L. testified at one point that appellant molested her only on some weekends, rather than every weekend, contrary to her previous testimony.
DISCUSSION
1. Sufficiency of the Evidence Supporting Count 5
Count 5 alleges continuous sexual abuse of a child under section 288.5. Section 288.5, subdivision (a) provides, “Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years.” Therefore, the statute “requires at least three acts of sexual misconduct with the child victim over at least three months to qualify for prosecution of persons who are either residing with, or have ‘recurring access’ to, the child.” (People v.Rodriguez (2002) 28 Cal.4th 543, 550.) At least three months must pass between the first and the last acts of sexual abuse. (See People v. Vasquez (1996) 51 Cal.App.4th 1277, 1284-1285.)
Appellant contends there was insufficient evidence for the jury to infer the sexual abuse of B.L. spanned the required three months. We disagree. Appellant concedes sufficient evidence was produced to satisfy an inference that B.L. was abused at least three times during the three-month period described in count 5. It is also undisputed defendant had recurring access to B.L. The issue is whether three months passed between the first and last acts within the dates set out in count 5.
Count 5 alleged continuous sexual abuse of B.L. “[o]n or between October 12, 2002 and January 13, 2003.” The jury could reasonably conclude the first act of sexual abuse in count 5 occurred on October 12, 2002, a Saturday, and the final act, under the statute, occurred three months later, on Sunday, January 12, 2003, or later. (§ 288.5, subd. (c).) B.L. only visited appellant’s house on weekends. Thus, there was substantial evidence to support count 5.
Count 5 presumably encompassed such a narrow window of time because any other act of sexual conduct involving the same victim must be charged outside the time period of an offense charged under section 288.5, or charged in the alternative. (§ 288.5, subd. (c); People v. Johnson (2002) 28 Cal.4th 240, 248.) In this case, defendant was charged and convicted of additional sexual conduct offenses under count 4 (between July 11, 2002, and Oct. 11, 2002) and count 6 (between Jan. 14, 2003, and Apr. 13, 2003).
The sexual abuse at issue in count 5 occurred five years before any of the abuse was reported to police. B.L. testified only in a general manner about the abuse and did not give specific dates. B.L. testified she visited her father’s house, where appellant resided, every other weekend pursuant to a court order. At one point, she stated appellant did not sexually abuse her every weekend she visited her father, “[j]ust some weekends.” At another point, she stated that appellant subjected her to sexual abuse every weekend she was there.
Appellant argues that the facts are similar to those of People v. Mejia (2007) 155 Cal.App.4th 86, 96 (Mejia), in which the court concluded that the evidence presented was insufficient to support a finding that the molestations occurred over a three-month period. In Mejia, the defendant was convicted by jury of continuous sexual abuse “‘on or between June 1, 2004 and September 17, 2004.’” (Id. at p. 93.) The victim testified that the defendant molested her 10 times in June and July and at least twice in September. (Id. at p. 95.) “While on direct examination, the victim testified generally that defendant molested her ‘two or three days a week, ’” but stated that the abuse did not occur every week. (Ibid.) The court held that while the jury could reasonably infer that “defendant’s abuse began sometime in June and continued to some date in September, ” “the jury could only speculate that the first incident occurred early enough in June to satisfy the 90-day requirement expiring on September 17, 2004.” (Ibid.)
The court refers here to a “90-day requirement” in error. Elsewhere in the opinion, it correctly refers to the requirement in the language used by the statute: “three months.” (§ 288.5, subd. (a); see also Mejia, supra, 155 Cal.App.4th at pp. 93-97.)
Mejia can be distinguished. The victim in Mejia stated that the defendant did not molest her every week within the designated time period. (Mejia, supra, 155 Cal.App.4th at p. 95.) The victim in the instant case stated that, without fail, defendant molested her either every other week or every week she visited her father. Thus, it was reasonable to conclude that the abuse occurred every weekend that the victim was at her father’s. In Mejia, however, the jury could not infer that the abuse occurred regularly because the victim stated that it did not occur every week. (Ibid.) In other words, it could have occurred every week but one at the high end or just once a year or even less at the low end. The testimony in this case was far less speculative as to the frequency of the abuse than the testimony in Mejia.
“[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence that is, evidence which is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “This standard means that when an appellate court determines that the evidence was insufficient, it has concluded that no ‘reasonable’ trier of fact could have found the defendant guilty.” (People v. Guiton (1993) 4 Cal.4th 1116, 1126-1127.) The jury has the power to pick and choose what testimony it accepts as credible. (People v. Barnes (1986) 42 Cal.3d 284, 306.) Credibility reweighing is foreclosed to us as a reviewing court. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
In this case, B.L. testified that the abuses occurred either every weekend or every other weekend that she visited her father’s house. It was reasonable for the jury to conclude that because the abuses may have occurred every weekend B.L. visited her father’s house during the timeframe set out in count 5, they occurred both on the first and last weekends alleged in count 5. The record contained substantial evidence to justify such an inference.
2. Jury Instructions
Appellant claims the trial court erred in instructing the jury pursuant to CALCRIM Nos. 1110 (“Lewd or Lascivious Act: Child Under 14 Years (Pen. Code, § 288(a))”) and 1120 (“Continuous Sexual Abuse (Pen. Code, § 288.5(a))”) relating to all six counts. Appellant argues that these two instructions inaccurately state the elements of sections 288, subdivision (a), and 288.5, subdivision (a) by stating that “[t]he touching need not be done in a lewd or sexual manner.” We disagree.
Respondent argues that appellant may not object to the jury instructions because appellant did not bring up these objections in the trial court. A defendant is not required to object to a legally inaccurate instruction at the trial level in order to object to it on appeal. (Code Civ. Proc., § 647; People v. Frazier (2001) 89 Cal.App.4th 30, 35, fn. 3.)
In the recent case of People v. Sigala (2011) 191 Cal.App.4th 695, 701, and footnote 5, the court held that CALCRIM Nos. 1110 and 1120 are accurate statements of law. Moreover, “the courts have long indicated that section 288 prohibits all forms of sexually motivated contact with an underage child. Indeed, the ‘gist’ of the offense has always been the defendant’s intent to sexually exploit a child, not the nature of the offending act.” (People v. Martinez (1995) 11 Cal.4th 434, 444.) A lewd or lascivious act can involve any part of a victim’s body, and does not have to be done under the victim’s clothing. (People v. Carpenter (1955) 137 Cal.App.2d 792, 793.) As respondent notes, “If the jury believed the two victims, due to the nature of the described acts, the jury necessarily would have found that the acts were done in a lewd and sexual manner.” The jury evidently believed the victims, as they rendered a guilty verdict as to all six counts. No evidence was presented that these molestations were devoid of sexual intent. (Cf. People v. Sigala, supra, at pp. 701-702.)
3. Sentencing
A. Application of One Strike Law to Counts 2 and 5
Appellant and respondent agree that the One Strike sentences imposed by the trial court for counts 2 and 5 are violations of the ex post facto clauses of the United States and California Constitutions. (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9.) Both the federal and California Constitutions prohibit the application of criminal statutes that inflict greater punishment than the applicable law when the crime was committed. (Collins v. Youngblood (1990) 497 U.S. 37, 42-43; People v. Alvarez (2002) 100 Cal.App.4th 1170, 1178.)
The jury found true multiple victim special allegations for each of the six counts. The prosecution then recommended determinate 16-year sentences for counts 2 and 5, and 15 years to life for counts 1 and 4. The trial court instead sentenced appellant to six consecutive 15-years-to-life terms. Counts 2 and 5 allege continuous sexual abuse of a child. (§ 288.5, subd. (a).) However, continuous sexual abuse of a child did not become a qualifying One Strike offense for the purposes of section 667.61, subdivision (c)(9) until September 20, 2006. (Stats. 2006, ch. 337, § 33; see Historical and Statutory Notes, 49 West’s Ann. Pen. Code (2010 ed.) foll. § 667.61, pp. 399-400.) Counts 2 and 5 reference offenses that occurred in 2002 and 2003. Because a violation of section 288.5, subdivision (a) for continuous sexual abuse was not an enumerated offense that qualified a defendant for One Strike sentencing under section 667.61 in 2002 and 2003, application of One Strike sentencing for counts 2 and 5 is inappropriate. (People v. Palmer (2001) 86 Cal.App.4th 440, 443 [noting that in 2001, continuous sexual abuse was not a qualifying offense].)
Between November 30, 1994, when the One Strike law went into effect, and September 20, 2006, a defendant convicted for continuous sexual abuse of a child was subject to a determinate sentence of 6, 12, or 16 years. (§ 288.5, subd. (a); see People v. Riskin (2006) 143 Cal.App.4th 234, 246.) Because appellant was improperly sentenced pursuant to section 667.61, this matter must be remanded for resentencing on counts 2 and 5.
B. Discretion to Grant Probation
Appellant claims the trial court incorrectly believed it lacked discretion to grant probation or to sentence him to a determinate term on his conviction for four counts of lewd acts with a child. (See §§ 288, subd. (a), 667.61, subds. (b), (e)(5); counts 1, 3, 4 & 6.) Appellant argues, and respondent concedes, that the trial court applied a version of section 1203.066 that was not in effect when appellant committed the crimes. Appellant argues the matter must be remanded for resentencing on these four counts.
Counts 1, 3, 4 and 6 alleged lewd acts against a child under section 288, subdivision (a). The jury found that these qualifying offenses were committed against more than one victim under section 667.61, subdivision (c) for the purposes of section 1203.066, subdivision (a)(7). At the time of sentencing, such findings made appellant ineligible for probation. (§ 1203.066, subd. (a)(7).) The trial court sentenced appellant to four consecutive terms of life imprisonment on those counts. However, in 2002-2004, when appellant committed these crimes, section 667.61, subdivision (c)(7) stated, “This section shall apply to... [¶]... [¶]... [a] violation of subdivision (a) of Section 288, unless the defendant qualifies for probation under subdivision (c) of Section 1203.066.” (Stats. 1998, ch. 936, § 9, eff. Sept. 28, 1998.) Section 1203.066, former subdivision (c) described when probation is appropriate:
“Paragraphs (7), (8), and (9) of subdivision (a) shall not apply when the court makes all of the following findings:
“(1) The defendant is the victim’s natural parent, adoptive parent, stepparent, relative, or is a member of the victim’s household who has lived in the victim’s household.
“(2) A grant of probation to the defendant is in the best interest of the child.” (Stats. 1997, ch. 817, § 13, italics added.)
Appellant argues the trial court erred in not making findings required by section 1203.066, former subdivision (c). It is true that the trial court proceeded under the incorrect assumption that it lacked the discretion to grant probation. Despite this fact, the trial court could not have granted probation based on the record.
“[A] defendant has the burden to present evidence showing that he is entitled to consideration for probation under subdivision (c) of section 1203.066.” (People v. Groomes (1993) 14 Cal.App.4th 84, 89; accord, People v. Lammey (1989) 216 Cal.App.3d 92, 98.) Testimony indicated that appellant was the victims’ half brother, satisfying section 1203.066, former subdivision (c)(1). However, as appellant concedes, the record does not present evidence as to the other requirements. Because appellant did not satisfy this burden of proof under section 1203.066, former subdivision (c), the trial court’s sentence was not in error. (People v. Lammey, supra, at p. 98 [“the judgment should be affirmed on appeal due to appellant’s failure to present any evidence regarding his eligibility for probation under subdivision (c)”].)
Furthermore, even if evidence were presented on this issue, appellant could not have satisfied section 1203.066, former subdivision (c)(2). Section 1203.066, former subdivision (c)(2) notes one of the factors that must be present for a court to grant probation: when “[a] grant of probation to the defendant is in the best interest of the child.” B.L. and M.L. were 18 and 19, respectively, at the time of the trial. When the victim is no longer a child at the time of sentencing, the sentencing court cannot logically make a determination that probation would be “in the best interest of the child.” (§ 1203.066, former subd. (c)(2); see People v. Wills (2008) 160 Cal.App.4th 728, 740 [“We thus conclude the plain language of former section 1203.066(c)(2) evinces the Legislature’s intent that a sentencing court shall have no authority, and thus no legal discretion, to grant probation to a defendant... in a case in which the molestation victim is no longer a child at time of sentencing”].) Thus, the trial court did not err in denying probation.
C. Discretion to Impose Concurrent Sentences
Appellant claims that in sentencing appellant to consecutive sentences the trial court relied on a version of section 667.61 that was not in effect at the time appellant’s crimes were committed. The trial court based its decision to impose consecutive, rather than concurrent, One Strike sentences on section 667.61, subdivision (i). Because appellant’s crimes were not included in paragraphs (1) to (7) of former subdivision (c) of section 667.61, the trial court stated it had “discretion [as to] whether [the] indeterminate terms should run consecutively or concurrently.” The court relied on a version of section 667.61 not enacted until September 20, 2006. (Stats. 2006, ch. 337, § 33.) However, appellant fails to note that the 2006 amendment did not affect the trial court’s discretion to impose consecutive or concurrent sentences in this case. The amendment merely imposed mandatory consecutive sentencing for certain crimes, none of which is at issue here. (See Historical and Statutory Notes, 49 West’s Ann. Pen. Code, supra, foll. § 667.61, pp. 399-400.)
A trial court has wide discretion “in determining whether criminal sentences shall be served consecutively or concurrently, and we recognize that such discretion will not be disturbed on appeal in the absence of a showing of abuse of discretion.” (People v. Morales (1967) 252 Cal.App.2d 537, 547.) We look at the ruling and not the reason for the ruling. (People v. Zapien (1993) 4 Cal.4th 929, 976.) A trial court’s ruling, itself correct in law, will not be reversed on appeal merely because the wrong reason is given. (People v. Geier (2007) 41 Cal.4th 555, 582.) As appellant concedes, the trial court applied its discretion as required by law, despite relying on the wrong subdivision of the statute.
D. Presentence Custody Credit
Appellant argues he is entitled to one additional day of presentence custody credit. Appellant is entitled to credit for time served for all the time he spent in custody prior to sentencing. (§ 2900.5, subd. (a).) “In all felony and misdemeanor convictions, ... when the defendant has been in custody, ... all days of custody of the defendant... shall be credited upon his... term of imprisonment....” (Ibid.) “[T]he sentencing court has broad discretion to determine all appropriate credits.” (People v. Chew (1985) 172 Cal.App.3d 45, 50, overruled on other grounds in People v. Buckhalter (2001) 26 Cal.4th 20, 40.) As a general rule, the time credited includes the date of arrest, the date of sentencing, and every day in between. (People v. Smith (1989) 211 Cal.App.3d 523, 525-526 [“Since section 2900.5 speaks in terms of ‘days’ instead of ‘hours, ’ it is presumed the Legislature intended to treat any partial day as a whole day”].) The probation report states that appellant was arrested at 12:10 p.m. on November 21, 2007. Appellant was sentenced on February 26, 2010. That time span is 829 days. However, the trial court only awarded appellant 828 days of presentence custody credit.
Generally, an appellant may not appeal error in the calculation of presentence custody credit unless the claim is first presented in the trial court. (§ 1237.1.) However, the Court of Appeal may address a presentence custody credit issue if other claims are also raised on appeal. (People v. Mendez (1999) 19 Cal.4th 1084, 1100-1101; People v. Acosta (1996) 48 Cal.App.4th 411, 420-421.)
Respondent argues that appellant has the burden of showing that he was not just arrested but booked on November 21, 2007. We disagree. Citing People v. Ravaux (2006) 142 Cal.App.4th 914, 919, respondent notes that the court concluded that a defendant is not in custody for the purposes of section 2900.5, subdivision (a) until he is “processed into a jail or similar custodial situation.” The defendant in Ravaux was arrested sometime after 9:30 p.m. on December 2 and booked into jail at approximately 12:28 a.m. on December 3. (Ravaux, at p. 917.) The court affirmed the trial court’s calculation of credits beginning on December 3. (Id. at p. 919.) In the instant case, appellant was arrested at 12:10 p.m. on November 21, 2007. There is no showing as to when appellant was booked. The probation officer’s report does not have a box to record a defendant’s booking date; rather, the report records only his arrest date. Were we to accept respondent’s argument, we would rarely be able to review presentence custody credit determinations by trial courts because appellants would have trouble affirmatively proving their booking dates. Given that there is no evidence appellant’s booking date differs from his arrest date, the calculation of credits should begin on November 21, 2007. Appellant is entitled to 829 days of presentence custody credit.
DISPOSITION
The case is remanded for resentencing on counts 2 and 5 so that the trial court can choose from determinate sentences of 6, 12, or 16 years. The trial court is directed to modify the judgment to reflect 829 days of presentence custody credit, together with 124 days of good time/work time credit, for a total of 953 days. The trial court is further directed to prepare an amended abstract of judgment of judgment to reflect this change and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: BIGELOW, P. J., RUBIN, J.