Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BA123888 Craig E. Veals, Judge.
Rodger Paul Curnow, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Delfino C. Machado appeals from the judgment entered following his convictions by jury on count 1 – forcible rape (Pen. Code, § 261, subd. (a)(2)) with a finding that appellant committed the offense against multiple victims (§ 667.61, subd. (e)(5)), and three counts of forcible lewd act upon a child (§ 288, subd. (b)(1); counts 2 through 4) with findings as to each of the three counts that appellant committed kidnapping (§ 667.61, subd. (e)(1)), personally used a deadly weapon (§§ 667.61, subd. (e)(4), 12022.3, subd. (a)), and committed the offense against multiple victims (§ 667.61, subd. (e)(5)), and with court findings that appellant suffered two prior felony convictions (§ 667, subd. (d)) and two prior serious felony convictions (§ 667, subd. (a)). The court sentenced appellant to prison for 310 years to life. We affirm the judgment, except we vacate appellant’s sentence and remand the matter for resentencing.
This is appellant’s second appeal. Following his first, which affirmed his conviction (People v. Machado (May 23, 2000, B130741 [nonpub. opn.]), a federal court granted habeas corpus relief on the ground of instructional error and remanded the matter for a retrial. This appeal followed appellant’s second conviction. At respondent’s unopposed request, we have taken judicial notice of the record in the first appeal.
Unless otherwise indicated, statutory references are to the Penal Code.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which as to the substantive offenses is not in dispute, established that on October 12, 1995, 20-year-old Maria M. (Maria) was at the Union Station in Los Angeles. Appellant, with a child, approached and offered to help her find a bus. Maria walked with appellant to his apartment, he dropped off the child, and Maria and appellant left. The two walked towards an embankment near a freeway. Appellant threw Maria down, held her in bushes, removed her pants from one of her legs, and raped her.
The incident was reported to a police officer who was a friend of Maria’s aunt, Maria was immediately taken to a hospital, and while there, she reported the rape to police. A sexual assault examination revealed debris and wood chips in Maria’s vagina. Sperm recovered from her vagina contained DNA matching appellant’s DNA. A few days after the attack, a private investigator helped Maria find the crime scene. They recovered from the scene a headband which Maria had been wearing during the attack. They also found appellant’s apartment. The investigator later took photographs of appellant outside the apartment, police created a photographic lineup, and Maria positively identified appellant’s photograph as depicting the person who raped her. She also identified appellant from a photograph taken by the investigator and depicting appellant and the child. Maria identified appellant at 1997 and 1999 court proceedings but not at the present trial.
During the morning of February 28, 1997, 12-year-old Alma S. (Alma) was at a bus stop waiting for a bus to take her to school. Appellant approached with a child, and asked Alma a question. Later that day, Alma returned to the bus stop en route home. Appellant was there, seemed to have been waiting for her, and still had the child. Appellant asked Alma for help, and they walked to an apartment building. The three entered and went to an apartment.
Appellant, using a key, opened the apartment’s door and pushed Alma inside. Appellant threatened Alma with a knife and pushed her to the floor. Appellant subsequently removed Alma’s underwear and shorts from one of her legs, covered her mouth, and spread her legs. Appellant later orally copulated Alma, then touched her vagina with his hands. Appellant exposed his penis and Alma, trying to delay him, asked him to use protection. Appellant put on a condom while Alma was trying to persuade him to stop his attack. Appellant unsuccessfully attempted to penetrate Alma’s vagina with his penis.
Appellant later left, and Alma fled. A woman tried to call the police for Alma, but Alma ran home and told a relative that someone had tried to kidnap her. Later, Alma reported the sexual assault to police and was examined at a hospital. Sperm recovered from Alma’s underwear contained DNA matching appellant’s DNA. Alma identified appellant at trial as her attacker. In defense, appellant presented alibi evidence as to the offenses against Alma.
Appellant represented himself at trial and during sentencing.
CONTENTIONS
Appellant claims (1) the trial court erred by granting his self-representation motion, (2) the trial court erred by denying appellant’s motion to sever count 1 from counts 2 through 4, (3) the information erroneously failed to give notice that a “One Strike” law multiple victim allegation pertained to count 1, (4) the trial court erred by applying the 2006 One Strike law to appellant’s 1997 offenses to impose consecutive One Strike law sentences on counts 3 and 4, (5) the trial court failed to exercise its informed discretion to strike one or both “Three Strikes” law prior felony convictions as to some but not all counts, (6) there was insufficient evidence supporting the One Strike law kidnapping findings, and (7) appellant’s sentence constituted cruel and unusual punishment.
DISCUSSION
1. The Court Properly Granted Appellant’s Motion to Represent Himself.
a. Pertinent Facts.
On February 7, 2008, appellant made a pretrial Marsden motion which the court denied. Appellant then moved to represent himself and later submitted a written Faretta waiver. The trial court granted appellant’s self-representation motion, stating it had no choice in the matter.
People v. Marsden (1970) 2 Cal.3d 118.
Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562].
b. Analysis.
Appellant claims the trial court erroneously granted his self-representation motion. He argues his waiver of his right to counsel was, as a matter of law, not knowing and intelligent because the trial court erroneously failed to exercise its discretion to deny his motion on the ground he was incompetent to represent himself. We reject the claim.
In Godinez v. Moran (1993) 509 U.S. 389 [125 L.Ed.2d 321] (Godinez), the high court held that if a defendant is competent to stand trial and makes a knowing and voluntary waiver of the defendant’s right to counsel, federal due process does not require the trial court to determine, by a standard higher than competency to stand trial, whether the defendant is competent to represent himself or herself before the court permits self-representation. Godinez acknowledged that states are free to adopt competency standards more elaborate than the trial competency formulation, but concluded those additional competency standards are not required by federal due process.
The appellate court in People v. Hightower (1996) 41 Cal.App.4th 1108 (Hightower), observed that it had found no California case identifying a California standard beyond the federal standard for determining competence to waive counsel. (People v. Taylor (2009) 47 Cal.4th 850, 874-875 (Taylor).) People v. Bradford (1997) 15 Cal.4th 1229 (Bradford), concluded that competence standards for trial and waiving counsel were the same (Taylor, supra, at p. 876), and People v. Halvorsen (2007) 42 Cal.4th 379 (Halvorsen) concluded that “[u]nder Godinez, the Faretta right ‘may be asserted by any defendant competent to stand trial, ’ making the trial court’s use of a higher standard erroneous.” (Taylor, supra, at p. 876, quoting Halvorsen.)
In Indiana v. Edwards (2008) 554 U.S. 164 [171 L.Ed.2d 345] (Edwards), the high court held that, even if a defendant was competent to stand trial, the federal Constitution does not preclude a state from requiring a determination, by a standard different than competency to stand trial, whether, as a result of mental illness, the defendant is incompetent to conduct trial proceedings by himself or herself before a trial court permits self-representation. (Taylor, supra, 47 Cal.4th at pp. 866, 876-878.)
In Taylor, the defendant claimed the trial court’s granting of his 1996 self-representation motion was error because he was mentally incompetent. (Taylor, supra, 47 Cal.4th at pp. 866, 875.) Taylor concluded, “[w]hile Edwards makes clear states may set a higher or different competence standard for self-representation than for trial with counsel, California had not done so at the time of defendant’s trial. In the absence of a separate California test of mental competence for self-representation, the trial court had no higher or different standard to apply to the question. In that circumstance, the court did not err in relying on federal and state case law equating competence for self-representation with competence to stand trial.” (Taylor, at pp. 866-867, italics added.)
In the present case, there is no dispute appellant was competent to stand trial. Nor is there any dispute that appellant’s waiver of his right to counsel was knowing, voluntary, and otherwise valid, except to the extent appellant argues that, as a matter of law, the contrary is true because the trial court erroneously failed to exercise its discretion to deny appellant’s self-representation motion on the ground he was incompetent to represent himself. Moreover, far from being a case such as Edwards, in which the defendant’s mental health was at issue and the trial court denied the defendant’s self-representation motion, appellant concedes he was “not shown to be suffering mental illness, ” and the trial court in this case granted appellant’s self-representation motion.
Hightower, Bradford, and Halvorsen were decided before appellant’s February 7, 2008 self-representation motion, and the trial court was bound to follow them. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, when appellant moved to represent himself, the trial court had no discretion to deny his motion on the ground he was incompetent to represent himself (cf. Taylor, supra, 47 Cal.4th at pp. 880-881), and the court properly denied his motion as the court was compelled to do.
U.S. v. Ferguson (9th Cir. 2009) 560 F.3d 1060, does not compel a contrary conclusion since it did not involve state (or California in particular) competency standards. We are not obligated to follow federal appellate court authority in any event. (Cf. People v. Figueroa (1992) 2 Cal.App.4th 1584, 1587.) To the extent appellant claims his Marsden motion was a request for advisory counsel and the trial court erred by failing to appoint advisory counsel, we reject the claim. Appellant never requested advisory counsel and the court was under no duty to appoint same for appellant. (People v. Garcia (2000) 78 Cal.App.4th 1422, 1428-1431.)
2. The Trial Court Properly Denied Appellant’s Motions to Sever.
On February 15, 2008, appellant filed a motion to sever count 1 from counts 2 through 4. At the February 18, 2008 hearing on the motion, the People opposed it, arguing, inter alia, the evidence as to the counts was cross-admissible under Evidence Code sections 1101 and 1108. The court agreed and denied the motion. On July 10, 2008, appellant renewed his motion and the court denied it, concluding it raised no new issues.
Appellant claims the trial court erred by not severing count 1 from counts 2 through 4. We disagree. There is no dispute counts 1 through 4 were properly joinable. (§ 954.) The remaining issue is whether the trial court abused its discretion by refusing to sever.
The law prefers consolidation of charges. (People v. Manriquez (2005) 37 Cal.4th 547, 574.) When statutory requirements for joinder are met, a defendant must clearly show prejudice to establish an abuse of discretion by the trial court in failing to sever. The pertinent factors to be considered are whether (1) the evidence of the crimes would be cross-admissible in separate trials; (2) some of the charges are unusually likely to inflame the jury against the defendant; (3) a weak case has been joined with a strong case or another weak case so that the total evidence on the joined charges may alter the outcome of some or all of the charged offenses; and (4) any one of the charges is a death penalty offense, or whether joinder converts the matter into a capital case. A determination that evidence is cross-admissible ordinarily dispels any inference of prejudice. (People v. Marshall (1997) 15 Cal.4th 1, 27-28 (Marshall).) (We refer to the above four factors as the Marshall factors.)
Finally, even if a trial court has not abused its discretion in denying a pretrial severance motion based on the then-existing record, the judgment must be reversed if the defendant shows that joinder resulted in gross unfairness amounting to a denial of due process. (People v. Macklem (2007) 149 Cal.App.4th 674, 698.)
In the present case, there was evidence as to each count that appellant used a small child to lull a vulnerable young female into a false sense of security and cause her to accompany appellant to locations, including an apartment, so he could gratify his sexual desires. This evidence would have been mutually cross-admissible in separate trials on the issues of motive, identity, and intent (cf. Marshall, supra, 15 Cal.4th at p. 28; Evid. Code, § 1101, subd. (b)), as well as on the issues of the absence of mistake or accident (Evid. Code, § 1101, subd. (b)). The evidence of the attacks in counts 1 through 4 was probative of a common method or approach sufficient to support mutual cross-admissibility. (Cf. Marshall, supra, at p. 28.)
Moreover, the evidence of the sexual offenses in counts 1 through 4 was mutually cross-admissible under Evidence Code section 1108, subdivision (a). (See People v. Falsetta (1999) 21 Cal.4th 903, 911.) Appellant suggests the contrary on the ground the trial court did not engage in an Evidence Code section 352 analysis. However, when faced with properly joined offenses, we assess potential prejudice using the Marshall factors, not Evidence Code section 352. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1222, fn. 11.) We do not believe that application of the remaining Marshall factors suggests the trial court abused its discretion by refusing to sever. This is especially true where, as here, there was overwhelming evidence that appellant committed the offenses of which he was convicted, even if count 1 is considered separately from counts 2 through 4. (Cf. Marshall, supra, 15 Cal.4th at p. 28.)
Appellant cites Coleman v. Superior Court (1981) 116 Cal.App.3d 129 (Coleman), for the proposition that “[j]oinder of highly inflammatory charges such as sex crimes against children with another crime against an adult has a very serious prejudicial effect upon a jury[.]” (Id. at p. 139.) Coleman is distinguishable. In Coleman, sex offenses involving two juvenile victims were joined with a weaker capital murder of an adult. In the present case, sex offenses involving only one juvenile victim were joined with simply another sex offense, this one involving an adult victim, and there was overwhelming evidence of all offenses, even if count 1 is considered separately from counts 2 through 4.
The trial court did not abuse its discretion by refusing to sever count 1 from counts 2 through 4. (Cf. Marshall, supra, 15 Cal.4th at p. 28.) Moreover, given the mutual cross-admissibility of the evidence, appellant has not established that joinder resulted in a denial of due process. (Ibid.)
3. The Trial Court Properly Imposed a One Strike Law Sentence on Count One.
The information filed on July 29, 1997, alleged, as to various counts, including count 1, two section 667.61 (One Strike law) allegations: (1) a deadly weapon allegation and (2) a multiple victim allegation. The information also alleged as to count 1 that appellant suffered a prior felony conviction (strike) (§ 667, subd. (d)) and a prior serious felony conviction (§ 667, subd. (a)). The information summary refers to count 1 along with three “[s]pecial [a]llegation[s], ” i.e., “667.61 (a)/(e), ” “1170.12 (a)-(d), ” and “667(a)(1).” That is, the summary appears to refer to count 1 and three allegations, including the multiple victim allegation.
At some point, someone, by interlineation on the information, struck count 1 from the counts to which the One Strike law allegations pertained. On February 2, 1999, during appellant’s first trial (see fn. 1, ante), the information was amended by interlineation. On that date, the court, summarizing the amendments, stated count 1 remained with all “three enhancements” and the prosecutor agreed. Appellant did not comment at that time. Appellant’s March 1999 initial sentence included, without objection, a term for the multiple victim allegation pertaining to count 1.
Appellant assumes the trial court did the striking, and that the trial court did so on February 2, 1999.
During jury argument at appellant’s 2008 retrial, the People argued without objection that they had proven the multiple victim allegation pertaining to count 1. The court, using CALJIC No. 10.02, instructed the jury without objection on that allegation, and the jury found it true. Appellant’s prison sentence included, as to count 1, a term of 45 years to life, calculated pursuant to the Three Strikes law and, without objection, the One Strike law multiple victim allegation.
Appellant claims the trial court erroneously imposed a One Strike law sentence on count 1 because the information did not provide him notice that a One Strike law multiple victim allegation pertained to count 1. We conclude otherwise. First, the burden is on appellant to demonstrate error from the record (In re Kathy P. (1979) 25 Cal.3d 91, 102), and appellant has failed to demonstrate that the court struck count 1 from the counts to which a multiple victim allegation pertained. The court appears to have confirmed that the allegation remained pled when the court said count 1 remained with all “three enhancements.” Appellant has failed to demonstrate error, constitutional or otherwise.
Second, even if the interlineation on the information indicated that, at some point, the court struck count 1 from the counts to which a multiple victim allegation pertained, we conclude, based on the record and how this case was prosecuted, that any such striking was inadvertent and appellant impliedly consented that the information be treated as though a multiple victim allegation had been alleged as to count 1; therefore, appellant’s sentence on that allegation as it pertained to count 1 was proper. (Cf. People v. Francis (1969) 71 Cal.2d 66, 74-75; People v. Sandoval (2006) 140 Cal.App.4th 111, 133; People v. Taylor (1969) 273 Cal.App.2d 477, 485.)
People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo), cited by appellant, is distinguishable. In Mancebo, unlike in the present case, the information never alleged, and never was amended to allege, the multiple victim circumstance or its statutory reference (§ 667.61, subd. (e)(5)), the allegation issue was never submitted to the jury by instruction or jury argument, and the defendant first learned during sentencing that the trial court would rely on the fact of multiple victims to impose a One Strike law sentence.
4. The Trial Court Erroneously Imposed Consecutive One Strike Law Sentences on Counts 3 and 4.
a. Pertinent Facts.
Appellant committed his offenses (counts 2 through 4) against Alma in February 1997. At the time, former section 667.61, subdivision (g), stated, in relevant part, “[t]he term specified... shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion.” (Italics added.)
In People v. Jones (2001) 25 Cal.4th 98 (Jones), our Supreme Court held that sex offenses occurred on a “single occasion” within the meaning of former section 667.61, subdivision (g), “if they were committed in close temporal and spatial proximity.” (Jones, at p. 107.) Jones rejected this division’s conclusion that whether offenses occurred on a “single occasion” within the meaning of former subdivision (g), depended upon whether they were committed on “separate occasions” within the meaning of section 667.6, subdivision (d). (Jones, at pp. 103, 105-106.)
Section 667.6, subdivision (d), states, in relevant part, “[i]n determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions.” (Italics added.)
In 2006, the Legislature amended section 667.61, to overrule Jones. In particular, the Legislature amended section 667.61, subdivision (i) to read, in relevant part: “[f]or any offense specified in paragraphs (1) to (7), inclusive, of subdivision (c), the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes... involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6 .” (Stats. 2006, ch. 337, § 33, eff. Sept. 20, 2006; italics added.)
Appellant’s offenses against Alma are specified in section 667.61, subdivision (c)(4).
During jury argument at appellant’s 2008 retrial, the prosecutor argued count 2 was based on appellant’s oral copulation of Alma, count 3 was “[appellant] spread her vaginal area with his finger. He grabbed between her legs, touching, ” and count 4 was appellant’s attempted penile penetration of Alma. During the resentencing hearing, the prosecutor recommended that the court impose a consecutive One Strike law sentence as to each of counts 2 through 4, as the court had done at appellant’s initial sentencing hearing. As to each of counts 2 through 4, the court imposed without objection a consecutive prison term of 75 years to life pursuant to the One Strike law and the Three Strikes law. The court’s sole comment concerning consecutive terms was “[b]y the way, each one of these terms is consecutive to the other.”
At appellant’s initial sentencing hearing, the court, following the prosecutor’s recommendation, imposed consecutive One Strike law sentences on each of counts 2 through 4, concluding the offenses were not committed during a “single occasion” for purposes of former section 667.61, subdivision (g), because, between each offense, appellant had an “opportunity to reflect” within the meaning of section 667.6, subdivision (d). At the resentencing hearing, the prosecutor asked the court simply to impose those sentences again.
b. Analysis.
Appellant claims the trial court violated ex post facto principles by applying section 667.61, subdivision (i), as amended in 2006, when resentencing appellant on the 1997 offenses at issue in counts 3 and 4. We conclude the trial court erroneously applied the amended subdivision retroactively.
An ex post facto claim has two elements. First, the law must be retroactive, i.e., it must change the legal consequences of an act (the defendant’s criminal behavior) completed before the law’s effective date. Second, a retroactive amendment to a penal statute does not violate ex post facto principles unless it implicates at least one of four categories described in Calder v. Bull (1798) 3 U.S. 386 [1 L.Ed. 648]. (John L. v. Superior Court (2004) 33 Cal.4th 158, 172.)
The threshold question here is whether the amended section 667.61, subdivision (i), retroactively applied to appellant’s 1997 offenses against Alma. In particular, this requires determinations of whether the amended subdivision changed the law and, if so, whether the Legislature intended retroactive application of the amendment. (McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 472-475 (McClung).)
Jones rejected the opportunity standard in favor of the proximity standard as governing whether offenses were committed on a “single occasion” within the meaning of former section 667.61, subdivision (g). There is no dispute the trial court could impose only one One Strike law sentence for counts 2 through 4 under the proximity standard. (Cf. People v. Stewart (2004) 119 Cal.App.4th 163, 167, 174-175 (Stewart).)
The opportunity standard is harsher than the proximity standard. A defendant normally would have an “opportunity to reflect” between crimes not committed in “close temporal and spatial proximity.” In this circumstance, the crimes would not have been committed on a “single occasion” under either standard. On the other hand, a defendant may also have an “opportunity to reflect” between crimes committed in “close temporal and spatial proximity.” (See Stewart.) In this circumstance, the crimes would not have been committed on a “single occasion” under the opportunity standard, but would have been committed on a “single occasion” under the proximity standard.
Jones confirmed the opportunity standard is harsher than the proximity standard when Jones stated, “the rule of lenity... points to the conclusion that the Legislature intended to impose no more than one such [One Strike law] sentence per victim per episode of sexually assaultive behavior.” (Jones, supra, 25 Cal.4th at p. 107, italics added.) Respondent concedes the “ ‘opportunity to reflect’ standard arguably makes it easier to impose full one-strike terms than does the ‘close temporal and spatial proximity’ standard[.]” We conclude section 667.61, subdivision (i), as amended in 2006, if applied to appellant’s 1997 acts at issue in counts 3 and 4, changes the legal consequences of those acts by making each act punishable when they would not have been punishable under the 1997 version of the One Strike law (assuming the trial court imposed a One Strike law sentence on count 2).
Respondent argues the contrary, claiming the amended section 667.61, subdivision (i), merely clarified the Legislature’s original intent as it existed when former section 667.61, subdivision (g), was first enacted in 1994. Indeed, respondent asserts that the Legislature responded to Jones “by clarifying the interpretation of the phrase ‘single occasion’ and effectively rejecting the interpretation by the California Supreme Court.” (Italics added.) Respondent, citing Western Security Bank v. Superior Court (1997) 15 Cal.4th 232 (Western), further asserts “the 2006 amendment must be considered ‘the legislative declaration of the meaning of the original act[.]’ ” (Italics added.) For the reasons set forth below, we reject respondent’s argument.
Statutes 1993-1994, chapter 14, section 1, effective November 30, 1994. Former section 667.61, subdivision (g), read the same in 1994 and 1997.
“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.” (Marbury v. Madison (1803) 5 U.S. 137, 177 [2 L.Ed. 60].) Our Supreme Court in Jones, engaging in statutory interpretation, held that sex crimes were committed on a “single occasion” within the meaning of former section 667.61, subdivision (g), when committed in “close temporal and spatial proximity.” By so doing, our Supreme Court definitively and conclusively determined that the Legislature’s original intent when enacting the former subdivision was that the proximity standard would govern determinations of whether offenses were committed on a “single occasion.”
The Legislature could, by subsequent legislation, overrule Jones and assert a different legislative intent applicable in the future. However, under the separation of powers doctrine, the Legislature would have been without authority to interpret the original legislation or state that the original legislative intent was other than what our Supreme Court said it was in Jones. Accordingly, said subsequent legislation would be a change in the law, not a clarification thereof, and no court could accept a legislative statement characterizing such a change as a mere clarification. (Cf. McClung, supra, 34 Cal.4th at pp. 470, 472-475.)
Jones’s construction of former section 667.61, subdivision (g) was an authoritative statement of what the subdivision meant before and after Jones. (Cf. McClung, supra, 34 Cal.4th at p. 474.) The amended subdivision (i), which effectively switched from the proximity standard to the harsher opportunity standard, constituted a change in the law. (Cf. McClung, at pp. 469-476.) Respondent cites nothing in the 2006 statute amending section 667.61, subdivision (i), or the statute’s legislative history, which indicates the Legislature intended the subdivision to merely clarify existing law.
The remaining issue is whether the Legislature intended the change to be retroactive. Generally, statutes operate prospectively only, and there is a strong presumption against retroactivity. (McClung, supra, 34 Cal.4th at p. 475.) Penal Code section 3, states, “No part of [the Penal Code] is retroactive, unless expressly so declared.” Criminal statutes presumptively apply only prospectively. (People v. Sandoval (2007) 41 Cal.4th 825, 845.) “ ‘[A] statute may be applied retroactively only if it contains express language of retroactivity or if other sources provide a clear and unavoidable implication that the Legislature intended retroactive application.’ [Citation.]” (McClung, supra, at p. 475.)
Respondent does not, in his brief, expressly address the retroactivity issue. Moreover, respondent cites no express language of retroactivity in the 2006 amending statute, and cites no other sources providing a clear and unavoidable implication that the Legislature intended retroactive application of the amended section 667.61, subdivision (i). Like our Supreme Court in McClung, “[w]e see nothing here to overcome the strong presumption against retroactivity.” (McClung, supra, 34 Cal.4th at p. 475 .) We conclude the amended section 667.61, subdivision (i), is not retroactive; therefore, the trial court erred by imposing sentence on counts 3 and 4 pursuant to that subdivision. Accordingly, we will vacate appellant’s sentence and remand the matter for resentencing.
For the reasons discussed in McClung, supra, 34 Cal.4th at page 476, Western is distinguishable and does not compel a contrary conclusion.
5. The Trial Court Exercised Its Informed Discretion Under the Three Strikes Law.
On February 15, 2008, appellant made a Romero motion to strike his two strikes, and the court denied appellant’s motion. On August 21, 2008, the court found true that appellant suffered the two strikes. On August 22, 2008, appellant made another Romero motion which the court denied. On December 18, 2008, the court, following the People’s recommendation, imposed, as to each of counts 1 through 4, a sentence based on the two strikes. Neither of appellant’s Romero motions expressly referred to the possibility of the court striking one or both strikes as to some but not all counts.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
Appellant claims this matter must be remanded so the trial court can exercise its informed discretion when applying the Three Strikes law. He argues the court seemed to believe the Three Strikes law mandated a two-strike sentence as to each of counts 1 through 4, when, in fact, People v. Garcia (1999) 20 Cal.4th 490, 496-504 (Garcia), held that a trial court properly could strike one or more strikes as to some but not all counts. We conclude otherwise.
Appellant never raised below the issue he raises now. Appellant waived it. (Cf. People v. Askey (1996) 49 Cal.App.4th 381, 388.) Moreover, Garcia was decided before the 2008 sentencing in this case. On this record, we presume the trial court knew the law and elected not to exercise its discretion to strike one or more strikes as to some but not all counts. (Cf. People v. Mosley (1997) 53 Cal.App.4th 489, 496-497, 499; Evid. Code, § 664.) Further, even if no such presumption applied, it is appellant’s burden to demonstrate error from the record (In re Kathy P., supra, 25 Cal.3d at p. 102), and he has failed to demonstrate the trial court erroneously believed it lacked the above discretion.
6. Sufficient Evidence Supported the Kidnapping Findings.
Appellant claims there was insufficient evidence to support the One Strike law kidnapping finding as to each of counts 2 through 4. He argues there was insufficient evidence that “[t]he defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense” within the meaning of section 667.61, subdivision (d)(2). We reject the claim.
We have recited the pertinent facts in our Factual Summary. Appellant committed the sexual offenses against Alma only after forcibly pushing her from a more public area into the apartment, a movement which decreased the likelihood of detection, reduced her opportunity to escape, and enhanced appellant’s opportunity to commit additional crimes. An increased risk of harm was also manifested by appellant’s demonstrated willingness to be violent by threatening the use of lethal force, i.e., the knife. We conclude there was sufficient evidence to convince a rational trier of fact, beyond a reasonable doubt, that the One Strike law kidnapping allegation as to each of counts 2 through 4 was true. (Cf. People v. Rayford (1994) 9 Cal.4th 1, 12-14; People v. Aguilar (2004) 120 Cal.App.4th 1044, 1048-1052; People v. Shadden (2001) 93 Cal.App.4th 164, 168-170; People v. Salazar (1995) 33 Cal.App.4th 341, 345-349.)
7. There is No Need To Decide Appellant’s Cruel and Unusual Punishment Claim.
Since we will remand for resentencing based on our analysis in part 4 of our Discussion, there is no need to reach appellant’s cruel and unusual punishment claim.
DISPOSITION
The judgment is affirmed, except that appellant’s sentence is vacated and the matter is remanded for resentencing consistent with this opinion. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment.
We concur: CROSKEY, Acting P. J.ALDRICH, J.