People v. Flores

IKOLA, J.

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14CF0591) OPINION Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed in part, modified in part, and remanded with directions. Jamie Popper, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.

Over several years, defendant Camerino Flores repeatedly molested his minor daughter, S.F., eventually impregnating her. A jury convicted him of 13 counts: four counts of forcible rape (Pen. Code § 261, subd. (a)(2); counts 1, 5, 8, 11), one count of aggravated sexual assault on a child (§ 269, subd. (a)(1); count 2), one count of a forcible lewd act on a child (§ 288, subd. (b)(1); count 3), one count of a lewd act upon a child (§ 288, subd. (a)(1); count 4), one count of attempted forcible oral copulation of minor 14 years old or older (§§ 664, subd. (a), 288a, subd. (c)(2)(C); count 6), two counts of sexual penetration of a child over age the age of 14 years by foreign object and force (§ 289, subd. (a)(1)(C); counts 7, 10), two counts of forcible oral copulation of a minor 14 years old or older (§ 288a, subd. (c)(2)(C); counts 9, 12), and one count of incest (§ 285; count 13). The jury also found true an enhancement that defendant had personally inflicted great bodily injury. (§ 12022.7.) Because of the enhancement, on count 1 defendant was sentenced to prison for life without the possibility of parole (LWOP). (§ 667.61, subds. (c)(1), (d)(6), (j)(1).)

Defendant contends: (1) his LWOP sentence violated due process and equal protection rights; (2) counts 2, 3, and 4 should be reversed because they were not supported by substantial evidence that the victim was under 14 years old when they occurred; (3) the seven year sentence for count 2 was an ex post facto violation; (4) his sentence for count 6 should not have been consecutive; (5) the trial court erred in finding full consecutive sentencing mandatory under section 667.6, subdivision (d); (6) his sentence for count 13 should have been stayed under section 654; and (7) the abstracts of judgment should be amended to omit and clarify certain restitution fines.

We must remand for resentencing on count 2 to avoid an ex post facto violation. We must also remand the case for resentencing defendant's consecutive sentence on count 6 because section 667.6 does not apply to attempted offenses. The trial court must also stay the execution of sentence on count 13 under section 654. Finally, the abstracts of judgment shall be amended to accurately reflect the restitution fines the court ordered and to remove the parole revocation fine from the indeterminate sentence. In all other respects, the judgment is affirmed.

Defendant lived with S.F., along with S.F.'s mother and siblings. In March 2013, 16-year-old S.F. went to the hospital with severe abdominal pain and learned she was six weeks pregnant. Officers questioned S.F. about the paternity of the unborn child. Initially, she claimed a man, whom she called "Jiggly Man," was the father. She later said she had intercourse with someone named Juan Carlos who lived in Santa Barbara. Ultimately, S.F. told investigators she had engaged in sexual intercourse with defendant.

After defendant's arrest, a Child Abuse Services Team (CAST) interview was conducted with S.F. During the CAST interview, S.F. disclosed sexual abuse inflicted on her by defendant. S.F. said the sexual abuse began when she was 13 years old, while she was pregnant with her son. Defendant started touching her breasts and vagina over her clothing. The touching progressed to under her clothing on her breasts and vagina. S.F. stated when she was "about to turn 14," defendant began raping her. Defendant raped S.F. many times, and had done so just two days before his arrest in February 2014. Additionally, defendant orally copulated S.F. and penetrated her vagina with his fingers many times.

In September 2016, an information charged defendant with counts 1 to 13. The information labeled count 1 as "impregnates Jane Doe," counts 2 to 4 as "first incident," count 5 as "bakery incident," count 6 as "after son born," counts 7 to 9 as "another time," and counts 10 to 12 as "last time." The information also alleged, with regard to count 1, that appellant inflicted great bodily injury in violation of sections 12022.7 and 667.61, subdivisions (c)(1) and (d)(6).

At trial, a DNA consultant testified defendant could not be excluded as the biological father of S.F.'s daughter. The consultant also testified the investigators who performed the DNA analysis to determine paternity used a chemical that was past the manufacturer's recommended date of use, although the data was sufficient for use despite the expired chemical.

A jury convicted defendant of counts 1 and 3 through 13. On count 2, the jury found him guilty of the lesser included offense of assault with intent to commit rape (§ 220). It also found true the section 667.61 allegation tied to count 1 (One Strike law).

The court sentenced defendant to LWOP for count 1 and the associated section 667.61 enhancement. In addition, the court sentenced defendant to a total determinate prison term of 80 years, 8 months, as follows: seven years for count 2; eight years for count 3; two years for count 4; nine years count 5; four years for count 6; eight years for count 7; nine years for count 8; eight years for count 9; eight years for count 10; nine years for count 11; eight years for count 12; and eight months for count 13. The court also imposed fines and fees and ordered defendant to register as a sex offender.

Defendant contends the higher sentence for forcible rape with great bodily injury versus forcible rape without great bodily injury violates substantive due process and equal protection. He claims the distinction between the crimes does not rationally serve a legitimate state interest (violating substantive due process) and does not serve a compelling state interest (failing strict scrutiny and violating equal protection). We reject his arguments.

Substantive due process prohibits the government from depriving a person of fundamental liberty, regardless of the process provided, unless the infringement is narrowly tailored to serve a compelling state interest. (Washington v. Glucksberg (1997) 521 U.S. 702, 720.) A statute passes muster in terms of substantive due process if it is reasonably related to the legislative purpose of protecting health, safety, comfort, or welfare, and the means for achieving the purpose are reasonable such that the legislation is substantially related to its goal. (People v. Ward (2008) 167 Cal.App.4th 252, 258-259.) A due process claim is reviewed de novo. (Spanner v. Rancho Santiago Community College Dist. (2004) 119 Cal.App.4th 584, 589.)

The One Strike law was "'enacted to ensure serious and dangerous sex offenders would receive lengthy prison sentences upon their first conviction.'" (People v. Luna (2012) 209 Cal.App.4th 460, 471.) "Heightened sentences are intended when 'the nature or method of the sex offense "place[d] the victim in a position of elevated vulnerability."'" (Ibid.) The One Strike Law mandates the imposition of a LWOP sentence if a defendant is convicted of one or more enumerated sexual offenses against a victim under 14 years of age, along with a true finding on certain factual allegations concerning the manner in which the underlying offense was committed. (§ 667.61, subds. (c)-(e).) Here, the jury found defendant guilty on count 1, and also found true the allegation under section 667.61 that he personally inflicted great bodily injury on S.F. (§ 667.61, subd. (d)(6).) He was sentenced to LWOP under the One Strike law.

Defendant concedes pregnancy may constitute great bodily injury. (People v. Cross (2008) 45 Cal.4th 58, 65-66.) But he contends this is not determinative of whether pregnancy can constitutionally justify an LWOP versus a determinate 7, 9, or 11 year sentence. He further argues "[a]bsent a showing the offender intended to impregnate the woman, culpability is not increased by the chance of pregnancy actually occurring . . . ." (Fn. omitted.) We disagree.

The jury determined S.F.'s pregnancy resulting from defendant's forcible rape to be great bodily injury. In People v. Meneses (2011) 193 Cal.App.4th 1087, the Court of Appeal concluded the delivery of a baby by a 13-year old supported the jury's determination of great bodily injury. (Id. at p. 1091.) "While pregnancy is difficult for any woman, here the pregnancy forced on this 12-year-old victim significantly exacerbated her injury." (Id. at p. 1092.) S.F.'s testimony at trial supported the jury's determination. S.F. endured an overall difficult pregnancy, emergency caesarian section, and difficult postpartum recovery. (See People v. Sargent (1978) 86 Cal.App.3d 148, 152 ["Childbirth is an agonizing experience"].)

Forcible rape resulting in pregnancy imposes a greater impact than is experienced by rape alone. Rape "is surely exacerbated if it also results in pregnancy. A victim who is raped and made pregnant experiences a different degree of injury than the victim who is not impregnated. The rapist who impregnates his victim imposes a greater injury than is inflicted by the rape alone. It is reasonable for the Legislature to provide for an enhanced degree of punishment under that circumstance. The same is true if a child is impregnated by a defendant's lewd and lascivious conduct." (People v. Cross, supra, 45 Cal.4th at p. 72 (conc. opn. of Corrigan, J.).)

The One Strike Law is rationally related to several legitimate state interests. It prevents offenders from sexually abusing more children. It gives victims the assurance their attacker will not be released. The lengthy sentence deters the commission of sex offenses that involve an increased risk of injury or death to the victim. (People v. Reyes (2016) 246 Cal.App.4th 62, 89.) It also serves to deter offenders from committing offenses under circumstances that increase their risk of harming the victim and impacts the victim beyond what is experienced by rape alone. It aims to protect children, some of the most vulnerable victims. Imposing LWOP for inflicting great bodily injury on a minor during a sex offense reasonably promotes these legitimate state objectives.

We next consider defendant's equal protection claim. Defendant argues his LWOP sentence on count 1 violates the equal protection clause of the Fourteenth Amendment of the United States Constitution. "The equal protection clause requires the law to treat those similarly situated equally unless disparate treatment is justified." (Griffiths v. Superior Court (2002) 96 Cal.App.4th 757, 775.) The "'similarly situated'" requirement means that an equal protection claim cannot stand, "and does not require further analysis, unless the claimant can show that the two groups are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required to determine whether the distinction is justified." (Ibid.) The burden of demonstrating the invalidity of a classification under this standard rests squarely upon the claimant. (Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985) 39 Cal.3d 878, 890.) We review an equal protection claim de novo. (Shoemaker v. Harris (2013) 214 Cal.App.4th 1210, 1223.)

As a threshold matter, defendant fails to show rapists who inflict great bodily injury on their victims are similarly situated to rapists who do not inflict great bodily injury. Defendant argues the groups are similarly situated because "it is the rape itself that causes the pregnancy" and "[t]he many variables at play in pregnancy mean nothing necessarily distinguishes across groups the people's actions or mental states." We are unpersuaded.

Forcible rape is defined in section 261, subdivision (a)(2). Personal infliction of great bodily injury on the victim is not an element of forcible rape. (§ 263; People v. Wallace (2008) 44 Cal.4th 1032, 1077.) Because sections 261 and the One Strike Law "do not proscribe conduct which is functionally equivalent," defendants charged with violating these laws are not similarly situated. (People v. Parrish (1985) 170 Cal.App.3d 336, 345.) Defendant's equal protection challenge fails at the first prong.

Defendant claims he had ineffective assistance of counsel because his trial attorney did not raise the constitutional arguments outlined above. However, he cannot demonstrate deficient performance for failing to object on due process or equal protection grounds at sentencing. Any such objection would have been overruled because the One Strike Law passes scrutiny, and defendant would have been unable to meet the similarly situated requirement needed for an equal protection claim, as explained above. (People v. Anderson (2001) 25 Cal.4th 543, 587 ["Counsel is not required to proffer futile objections"].) Counts 3 and 4 Were Supported by Substantial Evidence that S.F. was Under 14 Years of Age

Defendant contends his convictions on counts 2 through 4 must be reversed because there was no substantial evidence S.F. was under 14 years of age when they were committed. S.F. testified she was 13 at the time of the sexual assaults. This evidence is sufficient to support defendant's convictions on counts 2 through 4.

On a claim of sufficiency of the evidence, we review the record in the light most favorable to the judgment below. (People v. Johnson (1980) 26 Cal.3d 557, 576.) We will not set aside a verdict absent a clear showing that upon no hypothesis whatsoever is there sufficient supporting evidence. (People v. Redmond (1969) 71 Cal.2d 745, 755.) The testimony of a single witness can support the judgment "even if it is contradicted by other evidence, inconsistent or false as to other portions." (In re Frederick G. (1979) 96 Cal.App.3d 353, 366; Evid. Code § 411.) We are cognizant that "[i]t is for the trier of fact to consider internal inconsistencies in testimony, to resolve them if this is possible, and to determine what weight should be given to such testimony." (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 878, overruled on a different groung in Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 135.) "Testimony may be rejected only when it is inherently improbable or incredible, i.e., '"unbelievable per se,"' physically impossible or '"wholly unacceptable to reasonable minds."'" (Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065.)

The trial court instructed the jury that counts 2 through 4 were alleged to have happened between the day of S.F.'s 13th birthday and the day before S.F.'s 14th birthday. On counts 3 and 4, the jury was also instructed the prosecution needed to prove S.F. was under 14 years of age when the crimes were committed. For the lesser included offense of count 2, the jury was not required to find S.F. was under 14.

S.F. testified at trial that defendant began raping her when she was "about to turn 14." S.F. said the same thing during her CAST interview. Defendant contends S.F.'s statements were not substantial evidence "because her explicit statements and internal contradictions showed that she did not know her age." Any inconsistencies in S.F.'s testimony went to her credibility. The fact that the jury could have reached a different conclusion, i.e., that S.F. was 14 and not 13, is irrelevant. S.F.'s testimony, although contradictory at times and confusing, was credited by the jury. Her testimony was not inherently incredible or physically impossible. There was substantial evidence supporting the convictions for counts 3 and 4.

Defendant claims his sentence on count 2 was an ex post facto violation because the midterm for section 220 was four, not seven, years during most of the time frame charged. The Attorney General concedes this issue. A limited remand is required to sentence count 2 under the correct law.

A sentence must be based on the law in effect on the date of the offense. (People v. Hiscox (2006) 136 Cal.App.4th 1253, 260.) We review ex post facto violations de novo. (In re Sampson (2011) 197 Cal.App.4th 234, 1241.)

Before September 9, 2010, the penalty for section 220 violations was 2, 4, or 6 years. (former § 220, subd. (a).) The law changed on September 9, 2010, providing a greater penalty for an offense involving a victim under 18 years old, to 5, 7, or 9 years. (§ 220, subd. (a)(2); Stats. 2010, ch. 219, § 2.) Because S.F.'s testimony was uncertain as to precise dates of abuse, the record provides no guidance as to which version of the statute to apply.

Because the jury did not decide whether the assault occurred on or after the date the new version of section 220 went into effect, a limited remand is appropriate for resentencing on count 2 under the law that was in effect before September 9, 2010 to avoid an ex post facto violation.

Defendant argues the trial court erred in giving a consecutive sentence for count 6, attempted oral copulation. The Attorney General acknowledges consecutive sentencing is unauthorized for an attempt offense. We agree remand is appropriate.

Under section 664, where the crime attempted is punishable by imprisonment in state prison, the defendant shall be sentenced "for one-half the term of imprisonment prescribed upon a conviction of the offense attempted." (Id., subd. (a).) In 2011, section 288a provided that forcible oral copulation of a minor 14 years of age and older carried a sentence of six, eight, or 10 years of imprisonment. (Former § 288a, subd. (c)(2)(C).) Section 667.6 allows full, consecutive sentences for certain crimes, including forcible oral copulation under section 288a, but it does not include attempted crimes. (People v. Cardogan (2009) 173 Cal.App.4th 1502, 1515-1516.)

Between January 1 and September 28, 2011, section 1170.1 provided in relevant part: "The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses." The midterm for forcible oral copulation of a minor under 14 years is 8 years. (§ 288a, subd. (c)(2)(C).) Pursuant to section 664, one-half of eight years is four years. Under section 11701.1, subdivision (a), one-third of the four years is 16 months. On remand for resentencing, the trial court should impose a 16-month term for count 6.

Defendant argues the trial court erred by ordering mandatory, full consecutive sentencing for counts 2, 3, 7 through 9, and 10 through 12 because the counts did not occur on separate occasions. He also contends the court erred by ordering consecutive terms as a discretionary sentence because the crimes did not involve the same victim on the same occasion, pursuant to section 667.6, subdivision (c). We disagree.

Section 667.6, subdivision (d) requires consecutive sentencing for crimes committed on separate occasions. Crimes can occur on separate occasions even without a break of any specific duration or any change in physical location. (People v. Jones (2001) 25 Cal.4th 98, 104.) No statement of reasons is needed for mandatory consecutive sentencing under subdivision (d). (People v. Craft (1986) 41 Cal.3d 554, 559.) If a trial court sentences the defendant under section 667.6, subdivision (d), a reviewing court "may reverse only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior." (People v. Garza (2003) 107 Cal.App.4th 1081, 1092.)

Section 667.6, subdivision (c) gives the trial court discretion to order consecutive sentencing for crimes involving the same victim on the same occasion: "In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion. A term may be imposed consecutively pursuant to this subdivision if a person is convicted of at least one offense specified in subdivision (e)." Subdivision (e), includes rape, lewd or lascivious act, oral copulation, sexual penetration, and assault with the intent to commit rape under section 220. Under this discretionary sentencing choice, the trial court must demonstrate it is aware of its discretion to sentence the defendant under either section 667.6 or section 1170.1 and provide a statement of reasons. (People v. Pena (1992) 7 Cal.App.4th 1294, 1317.)

Here, the trial court found full-term consecutive sentencing was mandatory pursuant to section 667.6, subdivision (d), because the counts involved "multiple offenses with one victim." Counts 2 through 3 (assault with intent to commit rape and forcible lewd act) were alleged to have been committed during an incident referred to in the information as, "1st incident." Counts 7 through 9 (sexual penetration by foreign object and force; forcible rape; forcible oral copulation) were alleged to have been committed during an incident referred to in the information as, "Another time." Counts 10 through 12 (sexual penetration by foreign object and force; forcible rape; forcible oral copulation) were alleged to have occurred during an incident referred to in the information as, "Last time."

The three groups of offenses were alleged to have been committed on different date ranges, so under subdivision (d), there was sufficient time for defendant to reflect between each offense, making each count a separate occasion for sentencing purposes. We are mindful of the deferential standard, and we conclude the court could have reasonably decided counts 2, 3, 7 through 9, and 10 through 12 occurred on separate occasions.

Furthermore, the trial court had discretion to order consecutive terms under section 667.6, subdivision (c). The court was aware of and explicitly relied on its discretion, stating: "The court does believe, based on the earlier conversation, as I stated, that this falls under section d and is mandatory to be consecutive and can be a full term, actually must be a full term and must be consecutive. That is what the court is choosing. [¶] If somehow the Court of Appeal finds the court is incorrect then the court would say it's under its discretion. It's also making this choice because it's in the best interest of the case based on the facts of this case and the terrible abuse this child had to put up with for so many years." The court did not err in ordering consecutive sentencing.

Defendant contends the trial court should have stayed his sentence on count 13 pursuant to section 654 because the underlying incest was the same act of intercourse that formed the basis for the rape in count 1. The Attorney General agrees, as do we.

Section 654 provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (Id., subd. (a).) So while a person may be convicted of more than one crime arising out of the same act or course of conduct, they may not be punished for more than one such crime. (People v. Deegan (2016) 247 Cal.App.4th 532, 541-542.) "Section 654 prohibits multiple punishment for a single physical act that violates different provisions of law." (People v. Jones (2012) 54 Cal.4th 350, 358.)

Because the incest and forcible rape convictions arose out of the same act of intercourse, defendant could not be sentenced for both crimes. (People v. Jarrett (1970) 6 Cal.App.3d 737, 739) The trial court should have stayed execution of the sentence on count 13 in light of the sentence for count 1. Pursuant to section 654, we order the sentence for count 13 stayed.

Defendant argues the $300 restitution fine under section 1202.4 and the $200 parole revocation restitution fine under section 1202.46 should be removed from the determinate abstract of judgment. He also contends the $200 parole revocation restitution fine should be removed from the indeterminate abstract of judgment. The Attorney General has no objection to the modification. We agree the abstracts of judgment must be modified.

Where a discrepancy exists between the trial court's oral judgment and the abstract of judgment, the oral judgment prevails. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Parole revocation restitution fines apply to determinate sentences paired with indeterminate sentences. (People v. Brasure (2008) 42 Cal.4th 1037, 1075.)

At sentencing, the trial court imposed a $200 restitution fine under section 1202.4 and imposed, but suspended, a $200 parole revocation fine under section 1202.45. The abstract of judgment for the determinate sentence lists the restitution and parole revocation fines at $300 each. The abstract of judgment for the indeterminate sentence lists the restitution and parole revocation fine at $200 each.

Pursuant to People v. Mitchell, supra, 26 Cal.4th 181, we order the abstract of judgment for the determinate sentence modified to accurately reflect the trial court's judgment imposing a $200 restitution fine and imposing, but suspending, a $200 parole revocation fine under section 1202.45. The parole revocation fine must be removed from the abstract of judgment for the indeterminate sentence because such a fine does not apply to an indeterminate sentence. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1181.)

We remand count 2 for resentencing under the earlier version of section 220. We must also remand the case for resentencing defendant's consecutive sentence on count 6. The sentence on count 13 must be imposed and stayed as described in this opinion.

The trial court is directed to amend the abstracts of judgment, as follows:

(1) On the determinate sentence abstract of judgment, impose a $200 restitution fine and impose, but suspend, a $200 parole revocation fine under section 1202.45.

(2) On the indeterminate abstract of judgment, remove the parole revocation fine.

(3) Both abstracts should specify in section No. "12. Other orders" that a single $200 restitution fine under section 1202.4 and a single $200 parole revocation restitution fine under section 1202.45 (for the determinate sentence) applies to this case.

The trial court is directed to prepare amended abstracts and forward certified copies to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.