Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County No. SWF015073, Sherrill A. Ellsworth, Judge.
BENKE, Acting P. J.
Defendant in this case was convicted of committing 12 acts of child molestation on two victims. In light of two prior convictions he was sentenced to a total prison term of 1,330 years to life.
On appeal defendant contends the trial court erred in failing to conduct an in-camera Marsden hearing the first time he made complaints about trial counsel's representation of him and that his counsel erred in failing to request a Marsden hearing at that point. The trial court eventually relieved his initial counsel and appointed new counsel. In a related contention, defendant contends the trial court erred in failing to provide new counsel with transcripts of the hearing at which defendant's first attorney was relieved.
Defendant also contends that the testimony of one of the victims, Jane 2, will only support his conviction of committing four lewd acts on her. Thus he argues that two of six of his convictions for committing lewd acts on Jane 2 must be reversed and those two charges must be dismissed.
In addition, defendant contends that, although, upon learning that potential jurors had made statements about the case during jury selection, the trial court admonished the veniremen that they should not discuss the case among themselves, the trial court should have gone further and conducted an investigation of the statements the potential jurors made. Finally, with respect to defendant's sentence, both defendant and the Attorney General contend the trial court committed errors which require remand and further proceedings.
With one exception, we affirm defendant's convictions. Any error the trial court made in failing to conduct an in-camera hearing at the time defendant first articulated his unhappiness with trial counsel was cured when, later in the proceedings, in an in-camera hearing, defendant fully articulated the reasons he believed his trial counsel had not been adequately representing him, and based on counsel's explanation of his representation, the trial court denied defendant's Marsden motion. The in-camera hearing cured any failure to conduct a hearing earlier and any failure on counsel's part to request one.
However, our review of the record discloses evidence which will support no more than five convictions of committing lewd acts on Jane 2. Thus one of defendant's convictions for committing a lewd act on Jane 2 must be reversed and the allegation with respect to that act must be dismissed.
The trial court did not abuse its discretion in simply admonishing potential jury members not to discuss the case, rather than conducting an investigation as to which potential jurors may have made statements about defendant and the charges against him.
With respect to sentencing, the prosecution concedes the trial court erred in imposing 25-year-to-life sentences under the "one strike" law and that remand for resentencing is required.
PROCEDURAL HISTORY
On January 29, 2008, Horace Mann Williams was charged in an amended information with 12 counts of committing sex offenses against two minors, Jane 1 and Jane 2. With respect to Jane 1, Williams was charge with one count of sexual penetration with a foreign object of a person under the age of 14 years and five counts of lewd and lascivious conduct with a child under the age of 14 years. (See Pen. Code,§§ 289, subd. (j), 288, subd. (a).) The penetration with a foreign object and two of the lewd and lascivious acts were alleged to have occurred between January 1, 2004, and October 1, 2005, and the three remaining lewd and lascivious acts were alleged to have occurred between January 1, 2004, and January 31, 2005. With respect to Jane 2, the information alleged Williams committed six lewd and lascivious acts between November 8, 1999, and December 31, 2000. (See § 288, subd. (a).)
All further statutory references are to the Penal Code unless otherwise specified.
The information further alleged Williams's acts involved multiple victims, that he was a habitual sex offender, had two prior serious felony convictions and two prior "strike" convictions. (See §§ 667.61, subd. (e)(5), 667.71, 667, subd. (a), 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A).)
A jury found Williams guilty of all the offenses charged in the information and returned a finding that 11 of the offenses were committed against more than one victim. Williams admitted the prior serious felony conviction and prior strike allegations. The trial court denied Williams's motion for a new trial and, as we indicated, the trial court sentenced Williams to a prison term of 1,330 years to life.
FACTUAL BACKGROUND
Jane 1
Jane 1 was born in 1992. Jane 1 has two brothers. In 2001 or 2002, Jane 1's mother befriended Williams and his wife. The relationship between Williams's family and Jane 1's family became quite close. Williams developed a "father-daughter type" relationship with Jane 1 and would pick her up from school and babysit her. Williams did not appear as interested in Jane 1's brothers. At one point, Jane 1's mother became quite ill and was hospitalized for more than a month; during her illness, Williams visited Jane 1's mother every day.
Jane 1's mother was warned Williams had been convicted of child molestation and advised by child protective services personnel that she should not allow Williams to be with Jane 1. Jane 1's mother confronted Williams with this information, and Williams explained the conviction was based on false charges brought by a woman he had evicted from an apartment. Until Jane 1 later reported being molested by Williams, Jane 1's mother believed Williams's explanation of his conviction.
When Jane 1 began having trouble with math, Williams began tutoring her at his apartment. When Jane 1 was in the seventh or eighth grade, Williams began molesting her at his apartment. Williams began the molestation by reaching under Jane 1's jeans and underwear and rubbing her stomach. Williams would rub his hands in circles on her stomach. Williams rubbed Jane 1's stomach in this manner approximately six times.
On six other occasions Williams slid his hands under Jane 1's jeans and rubbed her vagina with his fingers. On some of these occasions he would slightly penetrate her vagina. In addition to rubbing Jane 1's stomach, touching her vagina and penetrating her vagina, Williams would on some occasions rub and massage Jane 1's neck with both of his hands.
Approximately one year to a year and a half after Williams began molesting Jane 1, Jane 1's middle school conducted a class about sexual abuse and sexual assault. As a result of attending the event and talking to her friends about what Williams had been doing, Jane 1 reported Williams's molestation of her to her mother.
Jane 2
Jane 2 was born in 1990. When she was about eight or nine years old and living with her mother and younger brother, she began having trouble with math and English. Jane 2's mother had a friend who told her that Williams was a good tutor. Williams tutored Jane 2 on approximately 10 occasions at the apartment where Jane 2 lived with her mother and brother.
According to Jane 2, on Williams's third or fourth visit, while her mother was out of the apartment either to go to the store or pick up her younger brother from preschool, Williams slipped his hand under Jane 2's shirt and coverall's and began rubbing her stomach. Jane 2 testified that this made her very uncomfortable and that she immediately jumped off of Williams's lap. Jane 2 testified that as soon as her mother returned, Williams left and she told her mother what had happened. Jane 2's mother did not believe her and thought she was just trying to get out of doing homework.
Jane 2 testified that on two or three later occasions Williams put his hands underneath her shirt and rubbed her chest. On a still later occasion Williams put his hands underneath Jane 2's overalls and ran his finger underneath the waistband of her underwear from hip to hip. This last incident made Jane 2 very upset and she began crying and ran to the bathroom. Jane 2 did not tell her mother about this incident because she was ashamed; however she did tell her grandmother, who called the police.
Tanya
In addition to testimony from Jane 1 and Jane 2, the prosecution presented evidence from another victim of Williams, Tanya. Tanya was born in 1991 and testified that when she was four or five, her mother left her and her two younger brothers alone with Williams. She testified that when she stood up on a couch to watch her brothers play, Williams reached under her nightgown and fondled her private parts over her underwear.
Expert Testimony
The prosecution also presented evidence from a psychologist, who offered testimony about Child Abuse and Sexual Accommodation Syndrome. The psychologist testified childhood victims of sexual abuse oftentimes feel responsible for the abuse, accommodate it and do not report it until adulthood. The psychologist also testified abusers oftentimes develop a bond with their victims and "groom them."
Defense
Although Williams did not testify, six witnesses, including his wife and children, appeared on his behalf. The defense witnesses testified they had never seen Williams touch any child in an inappropriate manner.
DISCUSSION
I
Williams raises three arguments with respect to his rights under Marsden ]: Williams contends the trial court erred in failing to conduct an in-camera Marsden hearing when, at the close of the defense case, Williams complained about counsel and declined to take the stand; Williams contends his counsel failed to adequately represent him in failing to request an in-camera Marsden hearing at that point in the proceedings; and finally, Williams contends the trial court committed a further error in failing to provide newly-appointed counsel with a transcript of one of two Marsden hearings which were eventually conducted by the trial court.
See People v. Marsden (1970) 2 Cal.3d 118, 123-126.
A. Background
On January 31, 2008, at the close of the defense case, the trial court asked Williams to waive his right to testify on the record. In response to the trial court's request, the following colloquy between the trial court, Williams and his trial counsel Dario Bejarano ensued:
"THE DEFENDANT: I need to consult counsel first, not my -- not Bejarano.
"THE COURT: You may not consult
"THE DEFENDANT: Yes, I may. That's my right.
"THE COURT: You may not consult another attorney. I need to know whether you want to testify in your trial.
"THE DEFENDANT: I can't answer that.
"THE COURT: Well, you need to answer that.
"THE DEFENDANT: I'm not going to answer that because I need to consult counsel first.
"THE COURT: This is your attorney, your attorney of record.
"THE DEFENDANT: Okay, That's -- there's a conflict of interest there, okay? I'm sorry
"THE COURT: That may arise at some point
"THE DEFENDANT: -- there's a breakdown in communication, your Honor, and that's all I've got to say. I'm not going to be, you know, subjected to this farce that's going on.
"THE COURT: All right. [¶] Mr. Bejarano, with regard to your client, was there ever a dialogue about him testifying?
"THE DEFENDANT: As far as I'm concerned, Mr. Bejarano is not representing me.
"THE DEPUTY: No talking.
"MR. BEJARANO: Your honor, I recall talking to the defendant about whether or not we would have him testify, but I do not believe that I advised him of his rights in that regard.
"THE COURT: If you would do that at this time as well.
"THE DEFENDANT: I don't even want to talk to you. You're not representing me."
Following this colloquy, the trial court took a recess. When proceedings resumed, Bejarano was joined by a supervisor from the public defender's office, Christine Voss. Voss advised the trial court Williams wanted Bejarano removed from the case and if Bejarano was not removed, Williams wanted to be removed from the courtroom. The trial court responded to Voss's statement as follows: "I'd also -- the record will reflect there is a request to have Mr. Bejarano removed at this time from the case. That's what your client, Mr. Bejarano, wants the record to reflect, and we will reflect it as such. [¶] At this time, I would not remove Mr. Bejarano. We are to closing arguments and instruction of the law, so we will proceed further."
Following the trial court's ruling on Williams's request for new counsel and at Williams's request, Williams was removed from the courtroom. The trial court instructed the jury, counsel presented their arguments, and the jury returned a guilty verdict on all 12 molestation charges.
Some weeks later, on March 21, 2008, the trial reconvened so that the trial court could conduct a court trial on Williams's prior convictions. Williams stated he was no longer represented by the public defender's office because there were too many conflicts. At that point the trial court conducted an in-camera Marsden hearing. Williams complained Bejarano had not visited him in jail, had been unaware of Williams's second molestation conviction, had failed to call certain witnesses Williams had requested, had not properly responded to a statement a prospective juror had made during jury voir dire, and both Bejarano and other employees of the public defender's office had been rude to him and hung up on him. Williams also complained about Bejarano's failure to call his probation officer, who would have testified Williams had been incarcerated for a portion of the time period during which the prosecution had alleged the crimes against Jane 1 and Jane 2 occurred. Williams further complained that Bejarano had not given him any advice with respect to whether he should testify.
In response to Williams's complaints, Bejarano explained that because he is confined to a wheelchair he does not visit his clients in jail, where wheelchair access is difficult. Bejarano stated he explained this limitation to Williams and advised Williams that his investigator would visit Williams in jail and that Bejarano would follow up by telephone. According to Bejarano, his investigator had in fact visited Williams in jail and Bejarano had in fact followed up by telephone. Bejarano further disputed Williams's contention that anyone in the public defender's office had been rude to Williams or had ever hung up on Williams. With respect to witnesses, Bejarano explained that he contacted the witnesses with the information Williams had provided and that because the prosecution case was considerably shorter than anyone had expected, he had been unable to obtain testimony from all the witnesses Williams had wanted. Bejarano further explained that although Williams's wife had heard one of the prospective jurors discuss the case in terms which were not favorable to Williams, she had not been able to identify the juror with any certainty until after the jury had been admonished by the trial court and seated. Thus Bejarano had not been able to use the information Williams's wife had provided.
Bejarano stated that in lieu of testimony from Williams's parole officer, he had obtained a stipulation from the prosecution to the effect that Williams had been incarcerated for a portion of the period covered by the allegations of the information. Bejarano stated that he did not want the parole officer to testify because he was concerned the parole officer would disclose that Williams had violated the terms of his parole by associating with children.
Finally, Bejarano disputed Williams's contention he had not advised Williams with respect to testifying. According to Bejarano, he advised Williams not to testify because if Williams testified he would be cross-examined about his second child molestation conviction.
The trial court accepted Bejarano's version of events and his explanation of how he conducted Williams's defense and denied Williams's Marsden motion. After the Marsden motion was denied and after Williams had been admonished about the hazards of representing himself, he admitted the prior conviction allegations.
On May 23, 2008, the court conducted a second in-camera Marsden hearing. At the second Marsden hearing, Williams advised the court, among other matters, that his relationship with Bejarano had deteriorated further, that Bejarano had caused tension between Williams and his wife, that Williams had filed a complaint against Bejarano with the State Bar, and that there had been a complete breakdown of communication between Williams and Bejarano. In response to Williams's statement, Bejarano stated he could no longer represent Williams. Bejarano then read to the court a letter he had sent his supervisor asking to be removed from the case. The letter set forth a litany of complaints Williams had made about Bejarano, his investigator and the public defender's office and Williams's relentless efforts to besmirch Bejarano's name. Nonetheless, Bejarano advised the court that in response to his letter, Bejarano's supervisor asked Bejarano to continue representing Williams and Bejarano agreed to do so. In fact, Bejarano prepared a sentencing memorandum and a motion for new trial on Williams's behalf.
At that point the trial court found an irreconcilable conflict between Williams and Bejarano. As it had previously found, the trial court again accepted Bejarano's version of events rather than Williams's. In particular, the trial court found that Williams's conduct caused the breakdown in communication between Williams and Bejarano.
B. Initial Complaint About Counsel
Williams argues the trial court should have conducted an in-camera Marsden hearing when, at the close of the defense case, Williams indicated his unhappiness with Bejarano. We agree. However, as we explain, here any prejudice was cured when later in the proceeding the trial court conducted an in-camera hearing and determined there were no grounds to replace Bejarano.
" 'When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].' " (People v. Fierro (1991) 1 Cal.4th 173, 204; see also People v. Eastman (2007) 146 Cal.App.4th 688, 695.) On the other hand, a disagreement about tactics, by itself, is insufficient to compel discharge of counsel and a defendant may not " 'force the substitution of counsel by his own conduct that manufactures a conflict.' " (People v. Smith (2003) 30 Cal.4th 581, 606.)
Here, Williams clearly stated his dissatisfaction with Bejarano when the trial court attempted to determine whether he would be testifying in his own defense, and the trial court should have permitted Williams to articulate the reasons for that dissatisfaction at that point in the proceedings. However, the failure to permit a defendant to set forth the reasons for his or her dissatisfaction with counsel does not compel reversal. (People v. Chavez (1980) 26 Cal.3d 334, 348-349; People v. Washington (1994) 27 Cal.App.4th 940, 944.) Reversal is unwarranted if, as here, the record shows beyond any reasonable doubt Williams would not have obtained a more favorable result had the trial court conducted an in-camera Marsden hearing and permitted Williams to fully articulate the reasons he was dissatisfied with counsel. (See People v. Washington, supra, 27 Cal.App.4th at p. 944; People v. Leonard (2000) 78 Cal.App.4th 776, 786-787.)
In People v. Washington the defendant expressed dissatisfaction with trial counsel at a hearing on a motion for new trial. Because the judge who had presided over the trial was unavailable, the judge presiding over the new trial motion put over the issue of the defendant's dissatisfaction until it might be heard by the trial judge. However, the trial judge never conducted the Marsden hearing. In finding that any Marsden error, if it occurred, was not prejudicial, the court in Washington stated: "Washington has made no showing here either that his Marsden motion would have been granted had it been heard, or that a more favorable result would have been achieved had the motion in fact been granted." (People v. Washington, supra, 27 Cal.App.4th at p. 944.)
In People v. Leonard the court confronted a record somewhat similar to the one presented here. On the first day of trial, the defendant stated he was discharging his attorney and, without conducting a Marsden motion or appointing new counsel to represent the defendant, the trial court permitted the defendant to represent himself. The following day the trial court reappointed the defendant's prior counsel and still later in the proceedings conducted a Marsden hearing, at which it permitted the defendant to set forth his complaints about counsel. After hearing the defendant's complaints, the trial court denied the defendant's Marsden motion and the defendant did not challenge the trial court's ruling on appeal. Instead, the defendant argued the trial court erred in failing to conduct the Marsden hearing on the first day of trial. In rejecting the defendant's argument, the Court of Appeal found that even if the trial court had erred in failing to conduct an earlier Marsden hearing, in light of the trial court's later unchallenged Marsden ruling, the defendant was not prejudiced. (People v. Leonard, supra, 78 Cal.App.4th at pp. 787-788.)
Here, as in People v. Leonard, the record shows that later in the proceedings, at the March 21, 2008 hearing, Williams was given an opportunity to completely explain the reasons he was dissatisfied with Bejarano, and the trial court rejected those reasons. As in People v. Leonard, Williams does not challenge the trial court's determination that at that point in time he was not entitled to new counsel. We further note that if Williams challenged the March 21 determination, his challenge would not be successful. Bejarano offered reasonable explanations, which the trial court accepted, for all the issues Williams raised at the March 21 hearing, and the record does not show there was any basis, other than Williams's desire to have new counsel, upon which to fault Bejarano's performance. Thus at that point in the proceedings, it was clear Williams was not entitled to new counsel. Accordingly, the trial court's earlier failure to conduct a Marsden hearing did not prejudice Williams because the outcome of the March 21 hearing demonstrates that the earlier motion would have been properly denied as well.
The fact that still later the trial court relieved counsel does not demonstrate the March 21 ruling was in any manner defective. Rather, the May 23, 2008 ruling demonstrates that in the two months which elapsed between the March 21 hearing and the May 23 hearing, Williams, by way of his constant complaints to and about counsel, finally destroyed any effective attorney-client relationship. That later conduct does not suggest that at any earlier point in the proceedings a Marsden motion was proper.
C. Ineffective Assistance of Counsel
As part of his contention Bejarano was ineffective, Williams argues Bejarano should have made a Marsden motion when, at the end of the defense case, Williams indicated he was unhappy with Bejarano's performance. We reject this contention.
In order to establish ineffective assistance of counsel, a defendant must show both that counsel's performance was deficient in some regard and that "but for counsel's errors, the result would have been different." (In re Wright (2005) 128 Cal.App.4th 663, 674; see also People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) As we have noted, even if the trial court had conducted a Marsden hearing at the close of Williams's case, the record here reveals in fairly unmistakable terms that at that point in the proceedings no relief under Marsden would have been appropriate. Thus any error on the part of counsel in failing to more aggressively insist that the court conduct a Marsden hearing did not prejudice Williams.
D. Transcript of Marsden Hearing
In order to prevent the prosecution from gaining any advantage from the disclosure of otherwise confidential information in a Marsden hearing, the trial court not only usually conducts Marsden hearings in camera, but typically it orders that the transcript of Marsden hearings be sealed. Consistent with this practice, following the May 23, 2008 Marsden hearing, the trial court ordered that the transcript of the hearing be sealed.
Following the May 23, 2008 hearing, the attorney who replaced Bejarano filed a supplemental motion for new trial in which he argued Bejarano had rendered ineffective assistance of counsel. By way of the memorandum counsel filed in support of his supplemental motion, counsel asked that an unsealed transcript of the May 23, 2008 hearing be provided to him. Both in his memorandum and later at the hearing on the motion for a new trial, counsel argued the transcript of the May 23, 2008 hearing might provide the best evidence that Bejarano had provided ineffective assistance to Williams. At the hearing, after denying both the motion for new trial prepared by Bejarano and the supplemental motion for new trial filed by new counsel, the trial court ordered that the transcript of the May 23, 2008 hearing be unsealed for purposes of appeal.
On appeal Williams contends the trial court erred in failing to provide his attorney with an unsealed transcript prior to the hearing on the motion for new trial. He contends this error denied him the effective assistance of counsel in prosecuting the supplemental motion for new trial. The difficulty we have with this argument is of course that our own access to the transcript of the May 23, 2008 hearing reveals that the trial court accepted Bejarano's version of events and relieved Bejarano as counsel because Williams's own conduct had made communication between Bejarano and Williams impossible. There is nothing in the transcript which would support new counsel's contention Bejarano had rendered ineffective assistance of counsel. Rather, our review of the transcript fully supports the trial court's conclusion that the defendant bears sole responsibility for the breakdown in communication between him and Bejarano. Thus, even if the transcript had been unsealed prior to the hearing on the motion for new trial, it would not have provided any material support for counsel's contention. Accordingly, Williams cannot show he was in any manner prejudiced by the trial court's failure to act on counsel's request for a transcript of the May 23 hearing. (See People v. Ledesma, supra, 43 Cal.3d at pp. 216-218.)
II
Next, Williams contends that he was not provided effective assistance of counsel at the end of his case when he was required to decide whether he should testify. We find no basis for this contention.
The record is clear Williams was advised by the trial court on the record both of his right to testify and his right not to testify. Moreover, the record from the March 21, 2008 Marsden hearing makes it clear Bejarano advised Williams he should not testify because it would permit the prosecution to cross-examine him with respect to Williams's second child molestation conviction.
Plainly, Bejarano's advice to Williams was reasonable under the circumstances. Thus he was provided the effective assistance of counsel. (See People v. Ledesma, supra, 43 Cal.3d at pp. 216-217.)
III
As we have indicated, Williams was convicted of six counts of committing lewd and lascivious acts on Jane 2. On appeal Williams contends the record only establishes his guilt of four counts. In our review of the record, we find evidence Williams committed only five lewd and lascivious acts on Jane 2. Thus we reverse one count of lewd and lascivious behavior with respect to Jane 2.
As the Attorney General properly points out, in reviewing a claim that a conviction is supported by insufficient evidence, " 'the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.]" (People v. Johnson (1980) 26 Cal.3d 557, 576, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [99 S.Ct. 2781].) However, in conducting our review, we do not limit ourselves to the evidence favorable to the respondent. (Ibid.) " 'First, we must resolve the issue in the light of the whole record—i.e., the entire picture of the defendant put before the jury—and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements... is substantial; it is not enough for the respondent simply to point to "some" evidence supporting the finding, for "Not every surface conflict of evidence remains substantial in the light of other facts." ' [Citation.]" (Ibid.)
As Williams points out, Jane 2 testified she suffered three separate types of molestation: an initial rubbing of her stomach, later incidents of chest rubbing, and a final instance when Williams took his finger along her panty line from one hip to the other hip. Contrary to the Attorney General's contention, consideration of all of Jane 2's testimony discloses evidence of only five separate incidents of lewd and lascivious conduct. In particular, Jane 2 twice stated there was only one incident of stomach rubbing. The fact that at another point in her testimony she arguably referred to 10 such incidents will not support Williams's conviction for more than one such incident. Any fair reading of the whole of Jane 2's testimony shows that when directly referred to the stomach rubbing, Jane 2 made it clear there was only one such incident. The conflicting testimony, referring to 10 incidents, was not reasonably reliable. Of importance in this regard is the fact Jane 2 had earlier testified there were approximately 10 tutoring sessions and her testimony about the 10 stomach rubbing incidents came in the form of her simple affirmation of what defense counsel stated in his questioning: "Yes." In contrast, when testifying that there was only one stomach rubbing incident, Jane 2 expressly stated there was only one incident:
"Q: As far as rubbing your stomach, how many times do you think that happened?
"A: After that day, I don't remember it occurring again."
Later, Jane 2 reiterated this recollection: "Q: How many times did he touch your stomach, just rubbing your stomach?
"A: Just rubbing my stomach?
"Q: Uh-huh.
"A: Well, I just remember it occurring that one time, and then me getting up, and then it not occurring again."
In this context, a rational trier of fact could resolve the conflict in Jane 2's testimony only by attributing Jane 2's affirmation that there were 10 stomach incidents to her mistaken belief that counsel was referring to tutoring sessions rather than incidents of stomach rubbing.
However, contrary to Williams's contention, the record will support Williams's conviction of three chest rubbing incidents. On cross-examination Williams testified as follows: "Q: How about -- you said that he touched your chest, do you remember how many times that occurred?
"A: I mean, not exactly, like two or three. I mean, I'm not giving you, like an exact number because I really don't remember. I'm just estimating, like two or three times."
Given the number of times Williams touched both Jane 1 and Jane 2 and given the fact that Williams tutored Jane 2 on 10 occasions, the jury could reasonably conclude that Jane 2's estimate of three incidents of chest rubbing was accurate. In this regard we point out that it is not simply Jane 2's estimate upon which the jury could rely. The jury could and did also consider evidence of Williams's habitual conduct toward young girls and the fact that he was left alone with Jane 2 on a number of occasions.
In sum then, the evidence supports five of Williams's six convictions with respect to Jane 2. Accordingly, as to count 12, the last of the Jane 2 convictions, we will reverse Williams's conviction and direct that count 12 be dismissed.
IV
During the jury selection process, Williams's counsel informed the trial court and the prosecutor as follows:
"When I went out at noontime at the break, the defendant's wife was out in the hallway, and, unfortunately, she's left for lunch and hasn't come back, but she called me aside and she said that a couple of the jurors -- and she didn't show me which jurors or point out anybody in particular, but she said that when the jury was coming out, a couple of jurors were talking about the fact that the defendant was charged with 12 counts and something that went back to 1991 and offenses that seemed to be spread out over the years, just snippets of conversation but conversation that appeared to be about the case itself, and I'm not making a motion for mistrial or anything like that at this point because I don't think there's grounds for it, but I would ask the Court to remind the jury that they should not discuss it. We can talk until we're blue in the face and they're going to do whatever they want to do, but we can at least try to protect our record."
In response to this statement, the trial court admonished the prospective jurors as follows: "It has come to my attention that there may have been some dialogues occurring as some potential jurors left the courtroom with regard to the case. I need to, again, admonish each of you, whether your name has been called or not, you may not discuss this case at all. You may not discuss the contents. You may not discuss anything about the case. You're prohibited from discussing the case with one another, with your family, with friends, with witnesses, with other potential jurors.
"The only time you may discuss the case or anything about the case is if, in fact, you are selected to be on the jury, and then only when all of you are all together deliberating, so just so that everyone is clear -- and I don't mean to sound too stern, but this is very, very critical. You may not discuss how many counts there are. You may not discuss anything about the type of case it is.
"If you are discussing the case or having any discussion, then you are violating a court order. You've all been sworn in as potential jurors, and it is very important that you don't have any dialogues whatsoever. That's part of being an impartial judge of the facts.
"As it stands right now, there are not facts. You know no facts. You only have heard potential witnesses and a summary of the charges, so I'm sure that any of you that may have had any dialogues walking out of the courtroom, whether those folks that overheard it got it correct or not, that type of dialogue that has to do with, wow, I can't believe we're on this case, it has this many counts, or anything like that is absolutely prohibited. All right?"
On appeal Williams contends that, in addition to admonishing the jury, the trial court should have sua sponte conducted an inquiry to determine whether the prospective juror who made the statement should have been discharged. (See People v. Ledesma (2006) 39 Cal.4th 641, 738.) We find no abuse of discretion.
"The decision whether to investigate the possibility of juror bias, incompetence, or misconduct—like the ultimate decision to retain or discharge a juror—rests within the sound discretion of the trial court. [Citation.] The court does not abuse its discretion simply because it fails to investigate any and all new information obtained about a juror during trial. [¶] As our cases make clear, a hearing is required only where the court possesses information which, if proven to be true, would constitute 'good cause' to doubt a juror's ability to perform his duties and would justify his removal from the case." (People v. Ray (1996) 13 Cal.4th 313, 343.) In People v. Kaurish (1990) 52 Cal.3d 648, 694, although an unidentified juror was overheard referring to defense counsel as " 'Oh, you son-of-a-' ", the court found no abuse in the trial court's failure to conduct an investigation: "[T]he juror's derogatory remark does not appear to be the result of 'improper or external inferences,' but rather his or her momentary exasperation with the proceedings. Because the record shows no such inferences, nor an indication of serious bias, we find that the court's failure to inquire sua sponte into the juror's state of mind is not error." Similarly, in People v. Osband (1996) 13 Cal.4th 622, 675, although jurors heard police officers discussing material in their police reports in the court hallway during a break, including the time of their arrival at a crime scene, the court found no abuse of discretion in the trial court's decision to simply admonish the jury rather than conduct a hearing. "[I]f any violation of the law occurred when the jurors overheard statements extraneous to the record, any prejudice that may have arisen therefrom was cured by events immediately following defendant's complaint to the court, which strictly admonished the jurors not to consider anything they might hear beyond the witness stand. We presume that they followed the court's instructions and disregarded anything they may have overheard. [Citation.]" (Id. at p. 676.)
Here, the trial court was confronted with no information of any bias or prejudice on the part of any particular potential juror as opposed to evidence of curiosity about the case. Given the nature of the information provided to the trial court, the trial court could reasonably conclude that an admonishment was sufficient to cure any possible prejudice. (People v. Osband, supra, 13 Cal.4th at p. 676.)
V
Finally, we turn to defendant's contentions with respect to his sentence.
A. Count 1
Count 1 of the information alleged Williams sexually penetrated Jane 1 with a foreign object. (§ 289, subd. (j).) At the sentencing hearing, the prosecutor made the following statement with respect to count 1: "I'd ask the Court to run Count 1, the 25-years-to-life sentence[,] concurrently as it is not clear from the testimony whether Count 1 was a separate and distinguishable act from the other allegations in this case, and therefore, in the interest of justice, I believe the defendant is entitled to a concurrent sentence only as to Count 1." The trial court adopted the prosecutor's suggestion and imposed a concurrent 25-year-to-life sentence on count 1. On appeal, Williams contends that in light of the prosecutor's statement, his sentence on count 1 should have been stayed under section 654, rather than imposed as a concurrent sentence.
Concurrent sentencing as to count 1 was within the trial court's discretion under section 667, subdivision (c)(6), if it found that the sexual penetration occurred on the same occasion and arose out of the same set of operative facts as other counts. Though inartful and perhaps too broad, we interpret the prosecutor's statement as conceding no more than that concurrent sentencing under section 667, subdivision (c)(6), was appropriate. In light of the fact that Jane 1's testimony would support a finding of more than one act of digital penetration in addition to six separate acts of lewd and lascivious behavior, the record in no sense compelled a finding that one act of sexual penetration was also the basis for any of the lewd and lascivious convictions. Thus a stay under section 654 was not required. (See People v. Scott (1994) 9 Cal.4th 331, 345.)
Thus contrary to the Attorney General's argument, the concurrent sentence was authorized.
B. Counts 2-12
The information filed by the prosecutor alleged that, for purposes of the one strike law (§ 667.61), the substantive charges involved multiple victims. The information also alleged that for purposes of the five-year recidivist statute (§ 667, subd. (a)), and the "three strikes" law (§ 1170.12), Williams had suffered two prior convictions. However, the information set forth no allegation that for purposes of the one strike law Williams had been convicted of a prior offense. (See § 667.61, subd. (d)(1).) Nonetheless, the trial court imposed consecutive 25-year-to-life sentences on counts 2 through 12 under section 667.61, subdivisions (a), (d)(1). In addition, the court imposed consecutive 15-year-to-life sentences on counts 2 through 12 under section 667, subdivisions (b), (e)(5). The court also tripled the 25-year-to-life and 15-year-to-life sentences under the three strikes law. (§ 1170.12.)
On appeal Williams contends that because the information did not allege Williams's prior violations gave rise to punishment under the one strike law, 25-year-to-life sentences could not be imposed under section 667.61, subdivisions (a), (d)(1). (See People v. Mancebo (2002) 27 Cal.4th 735, 753-754.) The Attorney General agrees with this contention, as do we. The terms of the one strike law and due process required that the information inform Williams of the potential that his prior convictions would give rise to a 25-year-to-life sentence under the statute. (Ibid.) Thus we must reverse the 25-year-to-life sentences the trial court imposed under section 667.61 subdivision (a), and remand for further sentencing proceedings.
The Attorney General notes Williams was also sentenced to consecutive 25-year-to-life terms under the habitual sex offender statute (§ 667.71), but that those sentences were stayed in light of the one strike sentencing. As the Attorney General notes, sentencing under the habitual sex offender statute is an alternative to the one strike sentencing scheme and on remand the trial court may impose the 25-year-to-life sentences under the habitual offender statute and stay the valid 15-year-to-life sentences under the one strike law. (People v. Lopez (2004) 119 Cal.App.4th 355, 365-366.) The 25-year-to-life sentences under the habitual sexual offender statute will be subject to mandatory tripling under the three strikes law. (§ 1170.12.)
Finally, the parties agree that the abstract of judgment should be corrected to reflect the fact that Williams was convicted by a jury.
DISPOSITION
Williams's conviction on count 12 is reversed and remanded with instructions that count 12 be dismissed; the imposition of 25-year-to-life sentences under section 667.61, subdivision (a), on counts 2 through 11 is reversed and remanded for resentencing consistent with the views expressed herein; the trial court is further directed to correct the abstract of judgment to reflect that Williams was convicted by a jury; in all other respects, the judgment is affirmed.
WE CONCUR: HALLER, J., O'ROURKE, J.