Opinion
H041852
06-28-2017
THE PEOPLE, Plaintiff and Respondent, v. DENIS JAVIER MEJIA Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1354348)
Defendant Denis Javier Mejia appeals following his conviction by a jury of eight counts of forcible lewd conduct against a child under the age of 14 years. He contends the trial court committed reversible error by removing a sitting juror for bias. He also raises a prosecutorial misconduct claim, a related ineffective assistance of counsel claim, and challenges an order requiring him to pay a portion of his defense costs. Finally, he requests that we review the victim's confidential school records, to which the trial court denied him access following an in camera review, to determine whether the trial court's denial constituted an abuse of discretion. We affirm the judgment of conviction, reverse the order requiring defendant to pay defense costs, vacate the sentence, which is unauthorized, and remand the matter to the trial court with directions.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Santa Clara County District Attorney charged defendant with eight counts of lewd acts on a child under the age of 14 years by use of force, violence, duress, menace, or fear (Pen. Code, § 288, subd. (b)(1)). The case proceeded to a jury trial in October 2014.
All statutory references are to the Penal Code unless otherwise stated.
The victim, then 12 years old, testified that when she was seven or eight years old her mother began dating defendant. Shortly thereafter, the three moved into a rented room together and defendant began touching the victim sexually. He told her not to tell her mother because, if she did, her mother "might hang [her] . . . by the neck." The frequency of the touchings increased over time, until defendant was touching her three or four times a week. The touchings generally occurred in the evening, when the victim's mother was taking a shower. Defendant touched the victim's vagina with his hand, mouth, and penis. On cross-examination, the victim testified that her mother would sometimes punish her by taking away her iPod.
The victim disclosed the abuse to her mother in April 2013, when she was 11 years old. The mother called 911 immediately. The victim told the operator that defendant had touched her private parts multiple times.
San Jose police officer Justin Palmer, a member of the Sexual Assault Investigative Unit, interviewed the victim on April 15, 2013. She told him defendant had touched her more than 30 times over the course of multiple years. Using a drawing of a girl, she indicated he had rubbed his penis on her vagina and touched her chest and butt. The victim told Palmer defendant had told her not to tell anyone about the touchings, and had said that her mother would hang them both if she found out.
The victim's mother testified that she began dating defendant in 2008. They moved in together, along with the victim, in October 2008. The victim's mother testified that she generally showered after dinner, between 9:00 and 10:00 p.m.
Michael Grogan, a psychologist, testified for the prosecution as an expert on child sexual abuse accommodation syndrome (CSAAS). He testified that child sexual abuse victims frequently keep the abuse a secret, only reporting after a significant delay, and often have a preexisting relationship with their abuser.
A number of character witnesses testified for the defense, including defendant's former employer, his aunt and her ex-boyfriend, and three members of a family whose basement defendant and victim's mother rented for about two years. They each testified that they never saw or heard of defendant doing anything inappropriate with children.
The jury returned guilty verdicts on all eight counts.
At a December 12, 2014 sentencing hearing, the court imposed a sentence of 56 years, consisting of the middle term of six years on counts 1 through 4 and the middle term of eight years on counts 5 through 8, all running consecutively. The court also ordered $4,000 in attorney fees payable to the Public Defender's Office.
Defendant timely appealed.
II. DISCUSSION
A. The Removal of Juror No. 6
Defendant argues the trial court committed reversible error by removing one of the sitting jurors during the trial. We find no abuse of discretion.
1. Factual Background
Jury selection occurred on Wednesday, October 22 and Thursday, October 23, 2014. Testimony began on Friday, October 24, with the victim testifying first. At approximately noon on Friday October 24, Juror No. 6 sent a note to the judge. It stated, in relevant part: "five or six years ago, I volunteered with the County to help tutor needy kids. [¶] I was assigned a fourth grade girl who was living with foster parents and I would pick her up at a sitter's [house] after school and take her to a public library and have her read to me. She would like to stop at a 7-Eleven afterwards and I would purchase an ice cream for her. [¶] One day I noticed the clerk looking at me funny and I sta[r]ted wondering if this little girl might accuse me of something wrongly as a means to obtain an iPod or something. I prayed on it and decided to withdraw my volunteer service. [¶] This would not impact my judgment in this case."
At the end of the day on Tuesday October 28, with defendant and the attorneys present, the court questioned Juror No. 6 about the note outside the presence of the jury. In elaborating on his note, Juror No. 6 mentioned that the girl he tutored was in the fifth grade, "from the eastside," and "overweight." He noted that he shared his concern about a false accusation with his supervisor at the County. As a result, he was reassigned a boy, who he tutored at the boy aunt's house, which Juror No. 6 volunteered was located "on the eastside, not far from the neighborhood you're talking about, downtown I mean." Juror No. 6 stopped volunteering a few months later because he remained uncomfortable and his private practice workload increased.
Regarding the 7-Eleven clerk's look, Juror No. 6 explained: "It was almost like he looked at her and looked at me and I'm older and she['s] Hispanic and so like maybe it's all in my head you know. . . . But . . . my perception of worrying about maybe somebody would falsely accuse me may impact what you all are trying to do here." In the same context, the juror stated "maybe I'm a little too sensitive, I don't know." Juror No. 6 noted that he was concerned the girl would falsely accuse him, in part, because she had asked if he would buy her an Xbox for Christmas. When the court asked why he had referenced an iPod in his note if the girl had asked for an Xbox, he explained: "I threw that term [iPod] in there meaning this other thing [Xbox]. I wasn't that specific. It was some kind of game thing. I know they're like a couple hundred dollars or something."
Juror No. 6 said he did not think about the tutoring experience during voir dire, despite questions related to false accusations. The topic first occurred to him the night before he wrote the note to the judge. He denied having "a particular sensitivity to the topic of false allegations."
The court noted that Juror No. 6's hands and voice were shaking during the foregoing interaction. The court was "taken aback at how visibly nervous this man[,] who otherwise in the past [had] appeared confident[,] . . . was in discussing it." The court noted that the juror "conveyed with his body language by gesturing [that] 'this was a weight on [his] mind.' "
On October 30, the court excused Juror No. 6 from further jury service. The court did so after finding that the juror had actual bias in the form of "a very strong predisposition to believe that little nine-year old, overweight Hispanic girls make false allegations against men" who are caring for them. The court stated two primary grounds for its conclusion. First, the court concluded Juror No. 6 was "applying his personal experience to the facts of this case." Second, the court concluded Juror No. 6 had a "very high level hypersensitivity to the topic of false accusations."
With respect to the first ground, the court believed the juror improperly compared his situation to the facts of the case. One "significant example" of that, according to the court, was the juror's reference to an iPod in his note. Further questioning revealed the girl he tutored expressed interest in an Xbox, not an iPod. But the victim testified about an iPod, saying her mother would take hers away as a form of punishment. In the court's view, the foregoing circumstances showed the juror was "using the facts in this case and applying them to his own situation." The court further noted that the juror had volunteered that the girl he tutored was in the fourth or fifth grade, Hispanic, overweight, and from San Jose—all things that were true of the victim as well. In the court's view, "he went out of his way to let us know that this case was similar to his situation," and thus was not putting aside his own experiences.
2. Legal Principles and Standard of Review
Pursuant to section 1089, "[t]he trial court may discharge a juror for good cause at any time, including during deliberations, if the court finds that the juror is unable to perform his or her duty." (People v. Lomax (2010) 49 Cal.4th 530, 588 (Lomax).) " 'A sitting juror's actual bias, which would have supported a challenge for cause, renders him "unable to perform his duty" and thus subject to discharge and substitution . . . .' " (Id. at p. 589.) Actual bias is "defined as a state of mind that would prevent that person from acting impartially and without prejudice to the substantial rights of any party." (People v. Hillhouse (2002) 27 Cal.4th 469, 488.) Bias against a witness "that renders a juror unable to fairly weigh [that witness's] testimony is grounds for the juror's replacement." (People v. Barnwell (2007) 41 Cal.4th 1038, 1051 [bias against law enforcement]; see People v. Thomas (1990) 218 Cal.App.3d 1477, 1485 [same]; People v. Feagin (1995) 34 Cal.App.4th 1427, 1437 [same].) "[A] juror's 'behavior and demeanor [also] [may] suppl[y] substantial evidence . . .' of good cause for discharge." (People v. Zamudio (2008) 43 Cal.4th 327, 349 [finding trial court did not abuse its discretion in discharging sitting juror under section 1089].)
Section 1089 provides, in pertinent part, "[i]f at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged . . . ."
"Removal of a juror under section 1089 is committed to the discretion of the trial court, and we review such decisions by asking whether the grounds for such removal appear in the record as a demonstrable reality." (People v. Thompson (2010) 49 Cal.4th 79, 137.) "This standard involves 'a more comprehensive and less deferential review' than simply determining whether any substantial evidence in the record supports the trial court's decision. [Citation.] It must appear 'that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that bias was established.' [Citation.] However, in applying the demonstrable reality test, we do not reweigh the evidence. [Citation.] The inquiry is whether 'the trial court's conclusion is manifestly supported by evidence on which the court actually relied.' " (Lomax, supra, 49 Cal.4th at pp. 589-590.) " 'In reaching that conclusion, the reviewing panel will consider not just the evidence itself, but also the record of reasons the court provides.' " (People v. Fuiava (2012) 53 Cal.4th 622, 712.)
3. Analysis
In reaching its conclusion of actual bias, the trial court relied in part on the juror's reference to an iPod in his note and the theory, first advanced by the prosecutor, that the juror referenced an iPod because the victim had testified about one. But, as the parties concede, the record belies that explanation. It shows the juror wrote the note before the victim testified about an iPod on cross-examination. Therefore, the reference did not show the juror was conflating his experience and the facts of the case, as the trial court believed, and thus did not support the bias finding.
We requested supplemental briefing to confirm our view of the record and the parties agree that it shows the juror submitted the note prior to the victim's iPod-related testimony. Understandably, in the midst of trial, the court and parties did not have access to reporter's transcripts and misremembered the sequence of events. --------
Of course, the iPod reference was not the only evidence on which the court relied in concluding Juror No. 6 was biased against the victim. The court also relied on the juror's demeanor; his references to the age, ethnicity, and weight of the girl he tutored; and his statements about being "a little too sensitive" and "worrying about" being falsely accused. The question before us is whether that evidence supports the court's conclusion that Juror No. 6 had a bias that would have prevented him from fairly weighing the victim's testimony in this case.
We think it does. The juror's unfounded and arguably irrational fear of being falsely accused of child sexual abuse was a sufficient basis for the court's determination that he could not fulfill his duties as a juror in this case. His demeanor and the fact that one of the children he feared would accuse him shared a number of characteristics in common with the victim further supported the trial court's conclusion.
Defendant contends Juror No. 6 was not biased, but merely had a "life experience that bore some similarity to the facts of the case." We disagree. The juror did not describe an experience involving an accusation of child sexual abuse, but his own baseless fear of such accusations. His concern would not have contributed to the jury's "balanced wisdom of group experience . . . ." (People v. Resendez (1968) 260 Cal.App.2d 1, 11.) But it very likely would have caused the juror to improperly apply a harsher standard in assessing the victim's credibility. (People v. Allen and Johnson (2011) 53 Cal.4th 60, 78 [juror who exhibited "a general bias against law enforcement officers and was judging the testimony of the police officers by a standard different from that which he applied to other witnesses" is properly discharged, while juror who "drew on his own personal life experience to conclude [a] witness lacked credibility because of the explanation he gave for a critical discrepancy" need not be discharged].)
Defendant points out that Juror No. 6's note represented that his experience would not impact his "judgment in this case." But, upon questioning, he voiced a concern that his "perception of worrying about maybe somebody would falsely accuse me may impact what you all are trying to do here." Thus, in our view, the juror equivocated regarding the impact of his fear on his impartiality. And a juror is not required to "state unequivocally that he or she will consider inappropriate or extraneous matters" in order for the trial court to remove him or her under section 1089. (People v. Hecker (1990) 219 Cal.App.3d 1238, 1245, disapproved on other grounds in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12 (Soto).) We defer to the trial court's determination that the juror could not be impartial, which was based on its firsthand observation of his tone of voice, body language, and demeanor. (See People v. Debose (2014) 59 Cal.4th 177, 202 [" 'Except where bias is clearly apparent from the record, the trial judge is in the best position to assess the state of mind of a juror . . . .' "]; see also (People v. Scott (2015) 61 Cal.4th 363, 378 [" ' "[A]ppellate courts recognize that a trial judge who observes and speaks with a prospective juror and hears that person's responses (noting, among other things, the person's tone of voice, apparent level of confidence, and demeanor) . . . gleans valuable information that simply does not appear on the record." ' [Citations.]" italics added].)
Finally, defendant notes that the trial court did not specifically ask Juror No. 6 whether he would be able to set aside his experience and be an impartial juror. No such inquiry was necessary. As defendant notes, the juror indicated in his note that he could do so. The trial court was not required to inquire further, nor was it required to credit the juror's belief in that regard.
In sum, the trial court did not abuse its discretion in removing Juror No. 6 for bias. The grounds for that removal appear in the record as a demonstrable reality.
B. Prosecutorial Misconduct
Defendant argues the prosecutor committed misconduct by attempting to persuade the jury to convict based on passion and emotion. Anticipating the People's contention that trial counsel's failure to object to the prosecutor's statements forfeited any claim of prosecutorial misconduct on appeal, defendant argues that the failure to object constituted ineffective assistance of counsel.
1. Factual Background
In his closing argument, the prosecutor urged jurors, "[i]n light of the evidence in this case which proves the defendant is guilty," to "have the courage just like [the victim] did when she called 911 in this case, when she finally told her mom about what the defendant was doing to her, when she came into court which was not an easy thing for her and testified on this stand and told you about what the defendant had done to her; she had courage. [¶] I'm asking that you find the courage to find the defendant guilty of these charges." The prosecutor reiterated the argument in his rebuttal closing, stating: "Don't be fooled. Have the courage to find the defendant guilty." Defense counsel did not object to either statement.
2. Legal Principles
" ' "The applicable federal and state standards regarding prosecutorial misconduct are well established. ' "A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.' " ' [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ' " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' [Citation.] . . . [W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." [Citation.]' " (People v. Carter (2005) 36 Cal.4th 1215, 1263 (Carter).)
" ' "To preserve a claim of prosecutorial misconduct for appeal, a defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper argument." ' [Citation.] A court will excuse a defendant's failure to object only if an objection would have been futile or if an admonition would not have cured the harm caused by the misconduct. [Citation.]" (People v. Jackson (2016) 1 Cal.5th 269, 349.)
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish both that his counsel's performance was deficient and that he suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance component of an ineffective assistance of counsel claim requires a showing that "counsel's representation fell below an objective standard of reasonableness" "under prevailing professional norms." (Id. at p. 688.) With respect to prejudice, a defendant must show "there is a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) We "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Id. at p. 697.)
3. Analysis
Citing People v. Lambert (1975) 52 Cal.App.3d 905, 908, defendant urges that the forfeiture rule does not apply when "the case is closely balanced and there is grave doubt of defendant's guilt, and the acts of misconduct are such as to contribute materially to the verdict . . . ." But Lambert and other cases applying that supposed exception to the forfeiture rule have long since been overruled on this point. (People v. Green (1980) 27 Cal.3d 1, 28-34, overruled on other grounds as noted in People v. Dominguez (2006) 39 Cal.4th 1141, 1155, fn. 8; People v. Cain (1995) 10 Cal.4th 1, 48 ["The 'close case' exception relied upon by defendant to avoid the waiver bar is no longer recognized"].) The failure to object below forfeited the contention on appeal.
We nevertheless consider the merits of defendant's argument in the context of his ineffective assistance of counsel claim. He says the prosecutor's references to jurors having the courage to convict constituted an improper appeal to passion "by suggesting that those who would return a not guilty verdict were weak or cowardly or would otherwise face disgrace in the community."
It is improper for the prosecutor "to appeal to the passions and prejudices of the jury." (People v. Seumanu (2015) 61 Cal.4th 1293, 1342.) In other words, it is misconduct for the prosecutor to "suggest 'that emotion may reign over reason' or invite 'an irrational, purely subjective response.' " (Id. at p. 1343.) Relatedly, it is misconduct for a prosecutor to suggest that jurors consider the "community reaction" to their verdict and related "social consequences." (People v. Shazier (2014) 60 Cal.4th 109, 145.)
The prosecutor's brief discussions of courage were not improper. The prosecutor did not urge the jury to convict for reasons unrelated to the crimes charged. Nor did he issue the sort of "warning about the social consequences" that was at issue in Shazier. Rather, he argued the evidence showed defendant was guilty and simply appealed to the jurors to hold defendant accountable.
Moreover, because the prosecutor's argument to the jury is at issue, " ' "the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." [Citation.]' " (Carter, supra, 36 Cal.4th at p. 1263.) Here, jurors were instructed not to let public opinion influence their decision and that nothing the attorneys say is evidence. In view of those instructions, which we presume the jury followed (People v. Sanchez (2001) 26 Cal.4th 834, 852), we conclude it is not reasonably likely jurors applied the prosecutor's comments about courage in an objectionable way.
C. Reimbursement of Defense Costs
At sentencing, the trial court ordered defendant to pay $4,000 in attorney fees "payable to the Public Defender's Office." Defendant requests that order be stricken for lack of substantial evidence of his ability to pay. The People respond that defendant forfeited his challenge by failing to object below.
1. Section 987.8
Section 987.8 "establishes the means for a county to recover some or all of the costs of defense expended on behalf of an indigent criminal defendant." (People v. Verduzco (2012) 210 Cal.App.4th 1406, 1420.) A court may order the payment of attorney fees pursuant to section 987.8, subdivision (b) only if it determines after a hearing that the defendant has the ability to pay. (§ 987.8, subds. (b), (e)(5).) Such a finding must be supported by substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347.)
In the context of section 987.8, "ability to pay" means "the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her, and shall include, but not be limited to, all of the following: [¶] (A) The defendant's present financial position. [¶] (B) The defendant's reasonably discernible future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant's reasonably discernible future financial position. Unless the court finds unusual circumstances, a defendant sentenced to state prison . . . shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense. [¶] (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. [¶] (D) Any other factor or factors that may bear upon the defendant's financial capability to reimburse the county for the costs of the legal assistance provided to the defendant." (§ 987.8, subd. (g)(2).)
2. Forfeiture
As noted, the People argue defendant was required to object below to preserve his challenge to the attorney fee reimbursement order. Defendant counters that no objection was required under People v. Viray (2005) 134 Cal.App.4th 1186 (Viray).
In Viray, we held that "an appellate forfeiture can[not] properly be predicated on the failure of a trial attorney to challenge an order concerning his own fees." (Viray, supra, 134 Cal.App.4th at p. 1215.) There, defendant's public defender himself "brought the fee request to the court's attention, saying 'We're asking the Court to assess attorney's fees' and 'We're asking—the amount we're asking is $9,200 in attorneys fees.' " (Id. at p. 1216.) This court declined "to rely on the conduct of the attorney to impose a procedural forfeiture upon the client" given the obvious conflict of interest in that case. (Ibid.)
More recently, in People v. Aguilar (2015) 60 Cal.4th 862, 864 (Aguilar), our Supreme Court held that, as a general matter, the appellate forfeiture rule applies to a challenge to a section 987.8 order for reimbursement of the fees paid to appointed trial counsel. However, the Aguilar court explicitly noted that the case did not "present, and [it] therefore [did] not address, the question whether a challenge to an order for payment of the cost of the services of appointed counsel is forfeited when the failure to raise the challenge at sentencing may be attributable to a conflict of interest on trial counsel's part." (Aguilar, supra, at p. 868, fn. 4, citing Viray.)
Unlike Aguilar, and akin to Viray, this case involves facts suggesting the existence of a conflict of interest between trial counsel and defendant with regard to the reimbursement order. In particular, the trial court ordered defendant to reimburse the Public Defender's Office directly. (The court may have lacked the authority to do so, as subdivision (e)(5) of section 987.8 authorizes the court to "order the defendant to pay the sum to the county . . . .") (Italics added.) Accordingly, we conclude the challenge was not forfeited by the failure to object below.
The People argue Viray does not apply "where, as here, trial counsel was a 'deputy public defender' who would 'feel personally disinterested in a reimbursement order.' " Because trial counsel in Viray also was a deputy public defender, we are not persuaded. (Viray, supra, 134 Cal.App.4th at p. 1212.)
3. Merits
There is no evidence defendant had a present or future ability to reimburse the costs of his defense. The probation report contained nothing regarding defendant's present financial position, such as information regarding his past employment, income, savings, or assets. With respect to defendant's future financial ability to reimburse, the statute presumes that unless the court finds unusual circumstances, a defendant sentenced to state prison does not have a reasonably discernible future financial ability to reimburse the costs of his or her defense. (§ 987.8, subd. (g)(2)(B).) Here, the court made no express finding of an unusual circumstance to rebut the statutory presumption, nor would the record support any such finding.
We shall remand the matter to the trial court for a new determination of defendant's ability to pay attorney fees. (See Viray, supra, 134 Cal.App.4th at p. 1217.)
D. Independent Review of School Records
The trial court conducted an in camera review of the victim's school records, which were subpoenaed by defense counsel. Finding nothing that "would relate to [her] credibility," such as "discipline, issues of dishonesty, or behavioral problems," the court refused to disclose the records to defense counsel. Defendant asks us to independently examine the sealed records to determine whether the court abused its discretion; the Attorney General does not oppose the request. We have reviewed the records and conclude the trial court did not abuse its discretion. The records contain no information that would have assisted the defense.
E. Unauthorized Sentence
The trial court sentenced defendant to the middle term on all eight section 288, subdivision (b)(1) violations. In doing so, it correctly recognized that an amendment to section 288, subdivision (b)(1) meant that the middle term was six years for some counts and eight years for others. However, the court apparently misunderstood when that amendment took effect, and as a result imposed an unauthorized sentence on counts 3 and 4, as described below.
Between January 1, 2005 and September 8, 2010, violations of section 288, subdivision (b)(1) were punishable by imprisonment in the state prison for three, six, or eight years. (Stats. 2004, ch. 823, § 7, pp. 6294-6295.) Since September 9, 2010, such violations have been punishable by imprisonment in the state prison for five, eight, or 10 years. (Stats. 2010, ch. 219, § 7, pp. 1009-1010, eff. Sept. 9, 2010; Soto, supra, 51 Cal.4th at p. 237, fn. 4.))
Counts 1 and 2 involved conduct that occurred between November 24, 2009 and November 23, 2010. The trial court properly applied former section 288, subdivision (b)(1) to those counts, sentencing defendant to the middle term of six years.
Counts 5 through 8 involved conduct occurring between November 24, 2011 and April 1, 2013. The court properly sentenced defendant to the middle term of eight years on those counts under current section 288, subdivision (b)(1).
Counts 3 and 4 involved conduct that occurred between November 24, 2010 and November 23, 2011. The court mistakenly applied former section 288, subdivision (b)(1) to those counts when the current version applies. Accordingly, defendant's sentence is unauthorized, meaning it " 'could not lawfully be imposed under any circumstance in the particular case' " and is "reviewable 'regardless of whether an objection or argument was raised in the trial and/or reviewing court.' " (People v. Smith (2001) 24 Cal.4th 849, 852.)
The parties disagree on the proper remedy. Defendant urges us to remand for a new sentencing hearing to allow the trial court to exercise its discretion in fashioning an aggregate sentence. The People contend we should modify the judgment by imposing the middle term of eight years on counts 3 and 4. We conclude remand is appropriate to permit the trial court to exercise its discretion regarding whether to impose the upper, middle, or lower term under the current version of section 288, subdivision (b)(1).
III. DISPOSITION
The judgment of conviction is affirmed. The order for reimbursement of defense costs is reversed and the sentence is vacated. The matter is remanded to the trial court. On remand, the trial court shall resentence defendant and has the option to conduct a noticed hearing on defendant's ability to pay attorney fees pursuant to section 987.8. If, after such a hearing, the court determines that defendant has the ability to pay, it may impose a new order to pay attorney fees. The trial court shall prepare a new abstract of judgment and send a certified copy thereof to the Department of Corrections.
/s/_________
ELIA, J.
WE CONCUR:
/s/_________
PREMO, Acting P. J.
/s/_________
MIHARA, J.