Opinion
B297501
06-05-2020
THE PEOPLE, Plaintiff and Respondent, v. JUAN MANUEL TRUJILLO, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No.BA455515) APPEAL from a judgment of the Superior Court of Los Angeles County, Leslie A. Swain, Judge. Affirmed as modified. Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Juan Manuel Trujillo appeals from his conviction of twelve counts of rape, sexual abuse, and sexual intercourse or sodomy with a child ten years old or younger. Two of the victims—J.D. (counts one through nine) and D.T. (count 10)—are defendant's daughters; the third victim, A.P. (counts 11 and 12), was a family friend. As to counts one through 10, the jury found true the aggravating circumstance that defendant committed the offense against more than one victim, pursuant to Penal Code section 667.61, subdivision (e)(4). The trial court sentenced defendant to consecutive terms of 25 years to life on all counts (staying the sentence on counts six through nine pursuant to section 654). On counts one through ten, the court applied the sentencing scheme pursuant to section 667.61, commonly known as the "One Strike" law (see People v. Anderson (2009) 47 Cal.4th 92, 99).
All further statutory references are to the Penal Code unless otherwise indicated.
In this appeal, defendant contends it was impermissible to impose One Strike terms under section 667.61 more than once per victim. We disagree. However, we conclude that on counts one through nine, the trial court erred in imposing terms of 25 years to life under section 667.61, subdivision (a) rather than terms of 15 years to life under section 667.61, subdivision (b). We therefore correct defendant's sentence accordingly and otherwise affirm.
PROCEDURAL HISTORY
An information filed May 17, 2017 charged defendant with five counts of forcible rape against J.D. (§ 261, subd. (a)(2); counts one through five), four counts of rape of an unconscious person against J.D. (§ 261, subd. (a)(4); counts six through nine), one count of continuous sexual abuse against D.T. (§ 288.5, subd. (a); count ten), and two counts of sexual intercourse or sodomy with a child ten years old or younger against A.P. (§ 288.7, subd. (a); counts 11 and 12). The information further alleged as to all counts that defendant committed the offenses on more than one victim within the meaning of section 667.61, subdivisions (a) and (e).
As we explain in the Discussion section, post, section 667.61, subdivision (a) only properly applies to count ten. The multiple victim circumstance under section 667.61, subdivision (b) applies to counts one through nine. Section 667.61 does not apply at all to counts 11 and 12; accordingly, the multiple victim circumstance was not included on those counts at trial.
Jury trial began on January 15, 2019. On January 30, 2019, the jury convicted defendant on all twelve counts. The jury also found the multiple victim circumstance allegations to be true on counts one through 10.
The court sentenced defendant to a total of 200 years to life, comprised of consecutive One Strike terms of 25 years to life on counts one through five and 10, plus consecutive terms of 25 years to life on counts 11 and 12 pursuant to section 288.7, subdivision (a). The court also sentenced defendant to 25 years to life on each of counts six through nine, but stayed the sentences on those counts pursuant to section 654. Defendant timely appealed.
FACTUAL BACKGROUND
We provide limited details of the evidence at trial for background and as relevant to the sentencing issue presented. A. J.D.'s testimony
J.D. is defendant's daughter and was 24 years old at the time of trial. She testified that she first met defendant when she was about 12 and then began living with him at age 18. Defendant lived in the top floor unit of a home and his mother lived in the ground floor unit. J.D. left defendant's home after six months, but returned about six months later after having trouble in her group foster home. After she returned, defendant began to ask her for leg massages. This progressed to requests that she massage his testicles and then masturbate his penis. When she refused, defendant would masturbate himself while she massaged his testicles. According to J.D., defendant made these requests two to three times a week.
Defendant started coming into J.D.'s room saying he wanted to "return the favor." Defendant would massage her legs and then touch her vaginal area with his fingers. About a month before J.D. moved out a second time, defendant raped her. She was asleep and awoke to defendant penetrating her with his penis from behind. The assault ended when defendant lost his erection and fell asleep. These incidents occurred on two occasions while J.D. was asleep and once while she was awake.
J.D.'s second stay with defendant lasted about eight months. She returned to live with defendant over a year later, when she was 21. Defendant again requested testicle massages and raped J.D. twice while she was asleep.
At some point, J.D. told her half-sister , D.T. (defendant's younger daughter), that defendant was "weird" when drunk and would ask for massages. D.T. responded that she knew what J.D. meant and disclosed her own abuse. J.D. disclosed the abuse to D.T.'s mother, Yolanda, a few weeks later. Yolanda contacted the police. B. D.T.'s testimony
D.T. was 15 years old at the time of trial. She testified that she stayed with defendant on weekends. When she was around ten, defendant began touching her while she was sleeping. She awoke to feel defendant's fingers inside her. This occurred once or twice a month, for about three and a half years. J.D. started living there when D.T. was about 13. They shared a bedroom. She recalled talking to J.D. in February 2016 about defendant's behavior. That same day, defendant put his fingers in D.T.'s vagina while "play fighting" with her in the swimming pool. That night, she awoke to defendant leaning over and touching her breasts and vaginal area. When she asked what he was doing, he said he was trying to wake her so she could vacuum. That was the last time he touched her. Afterward, she and J.D. moved in with Yolanda. C. A.P.'s testimony
A.P., the third victim, was 14 years old at the time of trial. She was D.T.'s friend. A.P. testified that she visited defendant's house to play with D.T. and once spent the night there when she was nine or ten years old. After she and D.T. fell asleep, she felt defendant behind her. Defendant started touching her and took off her underwear. Then he put his penis into her anus. A.P. moved and defendant left the room. She woke up D.T., started crying, and said she wanted to go home. Defendant told A.P. she could not go home because everyone was sleeping. D.T. went back to sleep. An hour later, defendant returned and put his penis into A.P.'s anus again. A.P. told her mother a year or two after the incident and her mother called the police. D. Defense Evidence
A.P. told the investigating detective that she was unsure whether defendant put his penis in her vagina or anus. She testified at the preliminary hearing that it was her "front private part."
Two of defendant's co-workers testified that defendant was honest and trustworthy and they did not believe defendant would molest his daughters. Defendant's mother and sister also testified on his behalf. His mother stated that she did not believe the allegations made by her granddaughters.
Defendant testified about his relationship with his daughters. He stated he did not really know A.P. well. He denied the allegations and testified that he never touched J.D., D.T., or A.P. in a sexual manner.
DISCUSSION
Defendant argues that the trial court erred in imposing consecutive One Strike terms based on the multiple victim circumstance under section 667.61. He claims this circumstance can only be used once per victim and urges us to strike the section 667.61, subdivision (e)(4) findings on the remaining counts. We are not persuaded. However, we conclude portions of defendant's sentence were not authorized under section 667.61, subdivision (a), and modify those portions accordingly. A. Section 667.61
"Effective November 30, 1994, section 667.61 ensures serious sexual offenders receive long prison sentences whether or not they have any prior convictions. (Stats. 1993-1994, 1st Ex. Sess., ch. 14, § 1, pp. 8570-8572.)" (People v. Wutzke (2002) 28 Cal.4th 923, 929 (Wutzke).) Section 667.61 creates an alternative, harsher sentencing scheme of either 15 or 25 years to life for certain enumerated sex offenses accompanied by additional specified factual findings. (§ 667.61; see People v. Mancebo (2002) 27 Cal.4th 735, 738.)
Section 667.61, subdivision (a) provides: "Except as provided in subdivision (j), (l), or (m), any person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 25 years to life." Where a qualifying offense includes only one of the circumstances specified in subdivision (e), section 667.61, subdivision (b) imposes a term of 15 years to life.
Here, defendant was convicted in counts one through 10 of offenses included in the list of qualifying One Strike crimes. (§ 667.61, subd. (c)(1) [rape, counts one through nine], (c)(9) [continuous sexual abuse, count 10].). The aggravating circumstance at issue here is the multiple victim circumstance under subdivision (e)(4), which provides: "The defendant has been convicted in the present case of committing an offense specified in subdivision (c) against more than one victim." B. Sentencing Errors
In their appellate briefing, both parties proceeded from the premise that the trial court imposed One Strike terms pursuant to sections 667.61, subdivisions (a) and (e) on all 12 counts; defendant argued these sentences should apply only once per victim and the Attorney General contended there was no error. But these arguments overlooked a fundamental issue—section 667.61, subdivision (a) properly applies only to count 10. In response to our request for supplemental briefing on this issue, appellant acknowledged and respondent conceded, the sentencing errors.
Specifically, in counts one through nine, defendant was convicted of violations of section 261, subdivision (a), a qualifying One Strike offense listed in section 667.61, subdivision (c). The jury also found true a single qualifying circumstance for each of these counts—the multiple victim circumstance under section 667.61, subdivision (e)(4). Thus, it was error for the trial court to impose terms of 25 years to life under section 667.61, subdivision (a), because that subdivision only applies where there are two or more qualifying circumstances under subdivision (e). Moreover, the exception under section 667.61, subdivision (m) (imposing a sentence of 25 years to life for certain crimes against minors over the age of 14 with only one qualifying circumstance under subdivision (e)) does not apply, because the victim, J.D., was over the age of 18 at the time of the crimes. Instead, the court should have sentenced defendant on these counts to consecutive terms of 15 years to life under section 667.61, subdivision (b).
Conversely, the victim in count 10, D.T., was under the age of 14. Thus, the 25-years-to-life term was correctly imposed on that count pursuant to section 667.61, subdivision (j)(2), which applies to a conviction "of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e), upon a victim who is a child under 14 years of age." Accordingly, defendant's conviction in count 10 for a violation of section 288.5 (an offense specified in section 667.61, subdivision (c)(9)) under the multiple victim circumstance (specified in section 667.61, subdivision (e)(4)) on D.T. (a child under age 14) was properly sentenced.
In counts 11 and 12, defendant was convicted of violating section 288.7, subdivision (a), which is not a qualifying One Strike offense listed in section 667.61, subdivision (c). As such, the sentencing scheme under section 667.61 did not apply to these counts. However, section 288.7, subdivision (a) independently mandates a sentence of 25 years to life. Thus, the court did not err in imposing terms of 25 years to life on counts 11 and 12.
In his supplemental brief, defendant requested that we remand the matter for resentencing to allow the trial court to exercise its discretion to impose either consecutive or concurrent terms for counts 11 and 12. Respondent argued that remand is unnecessary, as the court previously exercised its discretion to impose the maximum sentence available.
We conclude that remand is unnecessary. We find no support in the record for the apparent assumption by both parties that the court incorrectly applied section 667.61 to sentence defendant on counts 11 and 12. In imposing the sentence on counts 11 and 12, the trial court did not cite to the One Strike law, as it did when sentencing defendant on the other counts. Further, as noted above, the verdict forms for counts 11 and 12 given to the jury did not include the multiple victim circumstance under section 667.61, subdivision (e)(4). As such, at the time of trial, it appears that the court and the parties were aware that section 667.61 did not apply to the violations of section 288.7 charged in counts 11 and 12.
"[I]n light of the presumption on a silent record that the trial court is aware of the applicable law, including statutory discretion at sentencing, we cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of that discretion." (People v. Gutierrez (2009) 174 Cal.App.4th 515, 527; see also People v. Mosley (1997) 53 Cal.App.4th 489, 496-497 [trial court is "presumed to have been aware of and followed the applicable law" including its sentencing discretion].) Here, in the absence of any evidence to the contrary, we presume the trial court correctly sentenced defendant on counts 11 and 12 pursuant to section 288.7, subdivision (a) and exercised its discretion to impose concurrent sentences on those counts.
We have the authority to correct a sentence "that is not authorized by law whenever the error comes to the attention of the court." (People v. Vizcarra (2015) 236 Cal.App.4th 422, 432, quoting In re Ricky H. (1981) 30 Cal.3d 176, 191.) Accordingly, the proper sentence is as follows: on counts one through five, a consecutive term of 15 years to life for each offense, pursuant to section 667.61, subdivisions (b) and (e); on counts six through nine, a consecutive terms of 15 years to life for each offense, pursuant to section 667.61, subdivisions (b) and (e), stayed pursuant to section 654; on count 10, a consecutive term of 25 years to life pursuant to section 667.61, subdivisions (a), (e), and (j); on counts 11 and 12, consecutive terms of 25 years to life pursuant to section 288.7, subdivision (a), for a total aggregate term of 150 years to life. C. Application of Multiple Victim Circumstance
Defendant contends that the court was limited to using the multiple victim aggravating circumstance under section 667.61, subdivision (e)(4) to impose only three One Strike terms, one for each victim. This argument is limited to the imposition of five One Strike terms for the offenses against J.D. in counts one through five. Defendant's contention is that the multiple victim circumstance cannot be used more than once for the offenses against J.D. on five separate occasions, because "one cannot be a multiple victim to oneself." Defendant acknowledges that Division Five of this District reached the opposite conclusion in People v. Valdez (2011) 193 Cal.App.4th 1515 (Valdez), but he contends that case was wrongly decided. He cites no other authority in support of that proposition. We reject his contention.
The trial court imposed only a single One Strike term for the count involving D.T. (count 10), and the counts committed against A.P. (counts 11 and 12) may not be sentenced under section 667.61. --------
In Valdez, the defendant committed multiple qualifying offenses against three victims. (Valdez, supra, 193 Cal.App.4th at p. 1518.) The trial court sentenced him to consecutive terms of 15 years to life on four counts, two of which involved the same victim. (Ibid.) The defendant, relying on section 667.61, subdivision (f) and the difference between the multiple victim circumstance and the other circumstances specified in subdivision (e), claimed as defendant does here, that the One Strike law permitted only one such sentence for each victim. (Ibid.)
The court concluded that the meaning of section 667.61, subdivision (f) "is unambiguous and its application is clear. When the minimum number of subdivision . . . (e) circumstances are pled and proved, the sentencing court shall use them 'as the basis for imposing the term provided in subdivision [(b)] rather than . . . to impose the punishment authorized under any other law, unless another law provides for a greater penalty.'" (Valdez, supra, 193 Cal.App.4th at p. 1522.) Thus, nothing in subdivision (f) "even hints at an intent to limit" the imposition of One Strike terms "based on the multiple victim circumstance. Rather, it evinces the intent to ensure the greatest possible punishment under that sentencing scheme." (Id. at p. 1523.)
Similarly, the Valdez court rejected defendant's argument that "the multiple-victim circumstance is different in kind from the other enumerated circumstances because all of the others refer to aggravating factors, such as kidnapping or the use of a dangerous weapon, occurring in the commission of the present offense." (Valdez, supra, 193 Cal.App.4th at p. 1522.) Citing People v. Stewart (2004) 119 Cal.App.4th 163 (Stewart), the court explained "why that distinction makes no difference in terms of the statute's application: 'The statutory intent and scheme of Penal Code section 667.61, subdivision (e) is not difficult to discern. Where the "present offense" against a victim is a qualifying offense and the gravity of that offense is enhanced by one of the circumstances enumerated in subdivision (e)(1), (2), (3), (4), (6), or (7), the life sentence mandated by the statute shall apply. . . .' (Stewart, supra, 119 Cal.App.4th at p. 171; see People v. Murphy (1998) 65 Cal.App.4th 35, 41-42 (Murphy) ['[I]n making multiple convictions for violent sex offenses punishable by multiple life sentences, the Legislature was expressing the view that multiple violent sex offenses deserve more severe punishment than a single violent sex offense because of the predatory nature of the perpetrator.'].)" (Valdez, supra, 193 Cal.App.4th at p. 1522.)
We agree with Valdez. Subdivision (f) of the One Strike law, by its plain language, demonstrates the intent to ensure the greatest possible punishment for crimes subject to its enhancements; conversely, nothing within it suggests the limitation on punishment advocated by defendant. Similarly, the plain language of subdivision (e) makes no distinction in application between the multiple victim circumstance and the other enumerated circumstances. As such, the trial court correctly applied the section 667.61 enhancement to each count, involving three different victims on eight separate occasions. Nothing in the language of the statute or the applicable case law demonstrates that was error. (See also People v. DeSimone (1998) 62 Cal.App.4th 693, 698 (DeSimone) [rejecting contention that multiple victim circumstance applies only once per case and noting that "[o]ffenders who strike against multiple victims are among the most dangerous"]; Wutzke, supra, 28 Cal.4th at pp. 930-931 ["The One Strike scheme . . . contemplates a separate life term for each victim attacked on each separate occasion."].) Indeed, "[e]very court that has ever considered this issue has rejected defendant's contention that section 667.61 does not permit multiple life terms to be imposed based on the multiple-victims circumstance." (People v. Morales (2018) 29 Cal.App.5th 471, 483; see also People v. Andrade (2015) 238 Cal.App.4th 1274, 1307-1308 ["The plain language of the One Strike law simply does not support a limitation of [a] single life term per victim."].)
Defendant attempts to factually distinguish DeSimone and Murphy, arguing that neither case directly decided the issue here—whet her the One Strike law can be applied more than once per victim. Regardless, we find the discussion in these cases useful, as both courts looked to the statutory language and the purpose behind section 667.61 and rejected the same argument defendant makes here—that subdivision (e)(4) (previously numbered subdivision (e)(5)) should be treated differently than other circumstances in subdivision (e). (See DeSimone, supra, 62 Cal.App.4th at pp. 698-699; Murphy, supra, 65 Cal.App.4th at pp. 40-41.)
Moreover, we note that both cases applied a version of section 667.61 containing former subdivision (g), which stated that a One Strike sentence "shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion." (Former § 667.61, subd. (g), italics added.) However, in September 2006, the Legislature amended the One Strike law to eliminate former subdivision (g). (Stats.2006, ch. 337, § 33, pp. 2165-2167; see People v. Rodriguez (2012) 207 Cal.App.4th 204, 213-214 ["As the Legislature eliminated subdivision (g), which the courts had interpreted to limit the number of One Strike sentences properly imposed on multiple offenses against a single victim on a single occasion, we infer that the Legislature intended to abrogate this restriction."].)
The sole provision relevant to the sentencing of multiple offenses under the current One Strike law (applicable to defendant's offenses here) is subdivision (i), which states: "For 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 separate victims or involve the same victim on separate occasions." In addition, the current subdivision (g) provides that "the court shall not strike any allegation, admission, or finding of any of the circumstances specified in subdivision (d) or (e) for any person who is subject to punishment under this section." (See People v. Hammer (2003) 30 Cal.4th 756, 761 ["The law expressly divests trial courts of authority to avoid these severe sentences: it provides that courts are barred from exercising their traditional discretion to 'strike' any of the triggering circumstances specified in the One Strike law."].) As such, the current statute is incompatible with defendant's contention that the Legislature intended to limit the number of One Strike sentences to one per victim.
In sum, we conclude that the trial court correctly applied the section 667.61 multiple victim circumstance to each of defendant's counts one through five. Accordingly, we will modify the sentence to correct the errors discussed herein and affirm the judgment as modified.
DISPOSITION
The judgment is modified to reflect consecutive terms of 15 years to life pursuant to section 667.61, subdivisions (b) and (e) on counts one through nine, for a total aggregate term of 150 years to life in state prison. Upon issuance of the remittitur, the trial court shall send an amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed as modified.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J. We concur: WILLHITE, ACTING P.J. CURREY, J.