Filed 4/22/22 P. v. Astengo CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075467
v. (Super.Ct.No. FSB17002847)
JUAN VENTURA ASTENGO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Colin J. Bilash,
Judge. Affirmed with directions.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Michael D.
Butera, Deputy Attorneys General, for Plaintiff and Respondent.
1 I. INTRODUCTION
In July 2017, the San Bernardino County Sheriff’s Department received an
electronic storage device alleged to contain child pornography. Upon investigation, they
discovered numerous photographs depicting an adult man engaged in various forms of
sexual contact with a toddler over the course of multiple days. As a result, a jury found
defendant guilty of three counts of sexual intercourse or sodomy of a child 10 years of
age or younger (Pen. Code, § 288.7, subd. (a), counts 1, 3, & 5);1 one count of sexual
penetration of a child 10 years of age or younger (§ 288.7, subd. (b), count 7); and 11
counts of committing a lewd act upon a child under 14 years of age (§ 288, subd. (a),
counts 2, 4, 6, 8, & 9-15). In a bifurcated proceeding, the trial court found true a special
allegation that defendant had a prior conviction qualifying as a strike. Defendant was
sentenced to an aggregate term of 180 years to life and an additional 44 years in state
prison, which included the imposition of consecutive sentences on all counts.
Defendant appeals, arguing: (1) insufficient evidence supported his convictions
on counts 1, 3, 5, and 7 (§ 288.7, subds. (a) & (b)); (2) the trial court erred in giving an
instruction that classified count 7 (§ 288.7, subd. (b)) as a general intent crime; (3) the
trial court erred in failing to stay punishment on counts 2, 4, 6, and 8 (§ 288, subd. (a))
because those convictions were based upon the same physical act alleged as the basis for
counts 1, 3, 5, and 7; and (4) the matter should be remanded for sentencing because the
trial court misunderstood the scope of its discretion in imposing consecutive sentences.
1 Undesignated statutory references are to the Penal Code.
2 We conclude that sufficient evidence supports defendant’s convictions, the alleged
instructional error by the trial court was harmless, and the record does not support
defendant’s contention that the trial court misunderstood the scope of its discretion when
sentencing defendant. However, we agree that imposition of defendant’s sentences on
counts 2, 4, 6, and 8 must be stayed pursuant to section 654, and we modify his sentence
accordingly.
II. FACTS AND PROCEDURAL HISTORY
A. Facts and Charges
In July 2017, the San Bernardino County Sheriff’s Department received an
electronic storage device alleged to contain child pornography. Upon investigation, they
discovered numerous photographs depicting an adult man engaged in various forms of
sexual contact with a toddler.
As a result, defendant was charged with three counts of sexual intercourse or
sodomy of a child 10 years of age or younger (§ 288.7, subd. (a), counts 1, 3, & 5); one
count of sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b),
count 7); and 11 counts of committing a lewd act upon a child under 14 years of age
(§ 288, subd. (a), counts 2, 4, 6, 8, & 9-15). It was also alleged that defendant had a prior
conviction qualifying as a strike.
B. Relevant Evidence at Trial
1. Testimony of A.L.
A.L. testified that she is the mother of four children, but all four have been
removed from her custody. Her oldest child, N.S., was born in 2013. In 2016, A.L.’s
3 sister, C.L., would occasionally babysit N.S. However, A.L. always left N.S. with C.L. at
their father’s home, and A.L. was never told that her sister took N.S. out of their father’s
home on any of these occasions.
2. Testimony of C.L.
C.L. testified that she is the sister of A.L. She entered into an immunity
agreement with the district attorney’s office to testify but was presently in custody for
unrelated offenses. C.L. first met defendant when she was 17 years of age and began
purchasing drugs from him. When she turned 18, she began exchanging sexual favors in
return for drugs from defendant. The two agreed they would record their sexual
activities.
C.L. testified that during sexual activity with defendant, she would often make
sexually suggestive comments regarding N.S. as well as her own two children. She
believed defendant enjoyed engaging in such dialogue and that defendant found such
comments arousing.
On some occasions, C.L. would bring N.S. into the room while she had sex with
defendant. C.L. admitted that she and defendant took photographs of N.S., but she
claimed that defendant never intended to engage in sexual contact with N.S. Instead,
C.L. expressed the belief that any contact that might have been depicted in a photograph
was initiated by N.S. and that N.S. was merely trying to mimic C.L.’s actions. She
claimed that defendant did not engage in any penetration of N.S. during these incidents.
C.L. estimated this type of contact occurred approximately three times in the
summer of 2016, and that she took approximately three videos and 20 photographs on
4 these occasions. However, C.L. also claimed she was on drugs at the time and could not
explain why she would have taken photographs of these incidents.
3. Photographic Evidence
A San Bernardino County Sheriff’s Department detective testified that in
July 2017, an unidentified individual provided law enforcement with a micro SD card2
and reported that the card contained child pornography. The detective discovered that the
micro SD card contained multiple photographs and videos that depicted a man’s erect
penis next to a toddler. The photographs and videos did not depict the man’s face, but
they revealed distinct scars along the man’s abdomen and a freckle pattern on his hand.
Some of the photographs depicted almost the entirety of the toddler’s facial image.
The same micro SD card also contained videos of a male adult and female adult
engaging in sexual intercourse. These videos depicted the facial image of both
participants and, based upon previous encounters, the detective identified defendant and
C.L. as the two adults. In several of the videos, defendant and C.L. can be heard
discussing performing sexual acts upon N.S, as well as C.L.’s daughter and a third child.
Twelve of the photographs that were stored on the micro SD card were displayed
for the jury. The detective described several of these photographs as depicting an erect
penis “inserted” into the vagina of the toddler. The detective also described one of the
photographs as depicting a finger “inserted” into the anus of the toddler. The time stamps
associated with each photograph suggested they were taken on July 16, 25, and 30, 2016.
2 A micro SD card is a small electronic chip that can be connected to mobile phones to store data.
5 The jury was also shown photographs depicting defendant fully nude, as well as depicting
defendant’s hands and penis.
4. Testimony of Examiner
A registered nurse testified that she works as a forensic nurse clinician for the
Children’s Assessment Center in San Bernardino. She explained that the center conducts
forensic examinations of children who have been victims of child abuse. She performed
an examination of N.S. in July 2017, but she found no signs of physical trauma.
However, she explained that it was possible for penetration of N.S.’s vagina or anus to
have occurred without lasting physical signs of trauma a year later. She was shown the
photographs previously presented to the jury and opined that she would not expect lasting
signs of trauma for the type of penetration depicted in these photographs.
5. Fingerprint Evidence
Another detective with the San Bernardino County Sheriff’s Department testified
that she works within the scientific investigations division of the sheriff’s department and
is a latent fingerprints examiner. She compared a fingerprint and a palm print taken from
two of the photographs previously shown to the jury and determined that both prints
matched those obtained from defendant at the time he was taken into custody.
6. Defendant’s Prior Admissions
Another detective with the San Bernardino County Sheriff’s Department testified
that she interviewed defendant during the course of their investigation. During this
interview, defendant admitted to having a sexual relationship with C.L. in the summer of
2016. He was also shown a photograph taken from the same micro SD card that stored
6 the photographs of N.S. and admitted he was depicted in that photograph. However,
when he was shown the photographs depicting N.S., defendant denied being depicted in
any of those photographs.
7. Defendant’s Testimony
Defendant testified in his own defense. He admitted to having a sexual
relationship with C.L., but he denied knowing, seeing, or ever being in the presence of
N.S. He testified that C.L. was lying when she claimed to have taken photographs
depicting him with N.S. He further denied that the hand depicted in the photographs
reviewed by the fingerprints examiner belonged to him. Against the advice of counsel,
defendant insisted on testifying further, but was stopped by the trial court when defendant
attempted to claim the violation of various rights at the time of his arrest and during the
course of the proceedings in the case. As a result of this additional testimony, defendant
was forced to admit on cross-examination that he previously pled guilty to assault with a
deadly weapon and suffered a prior conviction for domestic violence.
C. Verdict and Sentence
The jury returned a guilty verdict on all counts. In a bifurcated proceeding, the
trial court found true the allegation that defendant was previously convicted of a
qualifying strike offense. Defendant was sentenced to an aggregate term of 180 years to
life and an additional 44 years in state prison, comprised of: (1) three consecutive terms
of 50 years to life for the three counts of sexual intercourse or sodomy of a child 10 years
of age or younger (§ 288.7, subd. (a), counts 1, 3, & 5), representing the statutory terms,
doubled for the strike prior; (2) a consecutive term of 30 years to life for sexual
7 penetration of a child 10 years of age or younger (§ 288.7, subd. (b), count 7),
representing the statutory term, doubled for the strike prior; and (3) 11 consecutive terms
of four years for each of the remaining counts of committing a lewd act upon a child
under 14 years of age (§ 288, subd. (a), counts 2, 4, 6, 8, & 9-15), representing one-third
the middle term, doubled for the strike prior.
III. DISCUSSION
A. Sufficient Evidence Supports Defendant’s Conviction on Counts 1, 3, 5, and 7
On appeal, plaintiff contends the evidence was insufficient to support his
convictions on counts 1, 3, 5, and 7. The parties do not dispute that counts 1, 3, 5, and 7
required the jury to find defendant engaged in an act of penetration in order to support a
conviction;3 do not dispute the legal definition of penetration for the purpose of these
offenses;4 and do not dispute that the People presented a separate photograph purporting
3 Counts 1, 3, and 5 alleged a violation of section 288.7, subdivision (a), which requires that defendant engaged in an act of sexual intercourse or sodomy with the victim. Count 7 alleged a violation of section 288.7, subdivision (b), which also requires that defendant engaged in sexual penetration of the victim “as defined in section 289.” (§ 288.7, subd. (b).) The definition of penetration for each of these offenses is identical. (People v. Mendoza (2015) 240 Cal.App.4th 72, 79 [In the context of section 288.7, subd. (a), “[s]exual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis,” and “[s]odomy similarly requires penetration, however slight.”]; § 289, subd. (k)(1) [“ ‘Sexual penetration’ is the act of causing the penetration, however slight, of the genital or anal opening of any person . . . .”].)
4 The physical act required to meet the legal definition of penetration for each of these offenses is identical. (People v. Mendoza, supra, 240 Cal.App.4th at p. 79 [In the context of section 288.7, subd. (a), “[s]exual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis,” and “[s]odomy similarly requires penetration, however slight.”]; § 289, subd. (k)(1) [“ ‘Sexual penetration’ is the [footnote continued on next page]
8 to depict the commission of each charged offense as direct evidence of the crimes.5 We
conclude the photographs constitute substantial evidence in support of the jury’s verdict
and decline to reverse defendant’s convictions for insufficiency of the evidence.
“In reviewing a sufficiency of evidence claim, the reviewing court’s role is a
limited one. ‘ “The proper test for determining a claim of insufficiency of evidence in a
criminal case is whether, on the entire record, a rational trier of fact could find the
defendant guilty beyond a reasonable doubt.” ’ ” (People v. Smith (2005) 37 Cal.4th 733,
738-739; see People v. Cravens (2012) 53 Cal.4th 500, 507-508.) “ ‘In applying this test,
we review the evidence in the light most favorable to the prosecution and presume in
support of the judgment the existence of every fact the jury could reasonably have
deduced from the evidence. [Citation.] “Conflicts and even testimony [that] is subject to
justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive
province of the trial judge or jury to determine the credibility of a witness and the truth or
falsity of the facts upon which a determination depends. [Citation.] We resolve neither
credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]”
[Citation.] A reversal for insufficient evidence “is unwarranted unless it appears ‘that
upon no hypothesis whatever is there sufficient substantial evidence to support’ ” the
jury’s verdict.’ ” (People v. Manibusan (2013) 58 Cal.4th 40, 87.)
act of causing the penetration, however slight, of the genital or anal opening of any person . . . .”].)
5 Specifically, the People presented image Nos. 501, 507, 509, and 478 in support of counts 1, 3, 5, and 7, respectively.
9 Here, defendant does not dispute that the evidence offered at trial was sufficient
for the jury to conclude he was the man depicted in the photographs but argues that the
photographs were insufficient to allow the jury to conclude that he engaged in the
physical act of penetration. However, the interpretation of the photographs in question
was highly disputed at the time of trial. Notably, in closing arguments, the prosecutor
argued the photographs depicted the very act of penetration while defense counsel argued
that the “angle of the picture” made it difficult to ascertain whether penetration was
actually being depicted. Even now on appeal, both parties contend that the photographs
“speak” for themselves, yet they take opposite views of what is depicted. This is
precisely the type of factual dispute that the jury must resolve. (See People v. Leon
(2015) 61 Cal.4th 569, 601 [“[B]ecause the surveillance video was played for the jury,
jurors could make up their own minds” whether defendant was the individual depicted.];
People v. Tran (2020) 50 Cal.App.5th 171, 189 [Jurors are ordinarily “capable of
watching a surveillance video and understanding what they see.”].)
Our review on appeal does not involve substituting our own interpretation of the
evidence for that of the jury. As our Supreme Court has repeatedly explained, reversal on
the ground of insufficiency of the evidence “ ‘ “is unwarranted unless it appears ‘that
upon no hypothesis whatever is there sufficient substantial evidence to support [the
conviction].’ ” ’ ” (People v. Manriquez (2005) 37 Cal.4th 547, 577; see People v. Bolin
(1998) 18 Cal.4th 297, 331.) A “defendant does not defeat the sufficiency of the
evidence merely by offering ‘competing inferences he wishes the jury had drawn’ ”
(People v. Disa (2016) 1 Cal.App.5th 654, 667, fn. 9); and “[t]he existence of possible
10 exculpatory explanations, whether they are simply suggestions not excluded by the
evidence or even where they could be reasonably deduced from the evidence, could not
justify [a reviewing court’s] rejecting the determination of the trier of fact . . . .” (People
v. Redrick (1961) 55 Cal.2d 282, 290; see People v. Abilez (2007) 41 Cal.4th 472, 504
[“ ‘ “[T]he opinion of the reviewing court that the circumstances might also reasonably
be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ ”].)
This court has reviewed the photographs in question. Having done so, it is
apparent that at least one reasonable interpretation of the photographs is that they depict
the physical act of penetration. Thus, to the extent the jury adopted that very
interpretation, the photographs constitute direct evidence of the charged offenses and are
themselves substantial evidence in support of defendant’s convictions. Given this
conclusion, we need not address the additional, circumstantial evidence the People also
claim supports the convictions.
B. The Instructional Error Alleged by Defendant Was Harmless
Plaintiff also argues the trial court erred when it instructed the jury that a violation
of section 288.7, subdivision (b), constituted a general intent crime with respect to
count 7. The People argue that the question of whether section 288.7, subdivision (b),
constitutes a specific intent crime when based on sexual penetration is unresolved and
subject to a split of authority. While the weight of authority supports defendant’s
position, we need not resolve this issue because, even assuming the trial court erred in
including count 7 in a list of general intent crimes, any such error was harmless in light of
the more specific instructions related to count 7.
11 “In a criminal case, the trial court has a sua sponte duty to instruct the jury on all
general principles of law relevant to the issues raised by the evidence. . . . [¶] ‘A claim
of instructional error is reviewed de novo. . . . An appellate court reviews the wording of
a jury instruction de novo and assesses whether the instruction accurately states the
law. . . . The challenged instruction is viewed “in the context of the instructions as a
whole and the trial record to determine whether there is a reasonable likelihood the jury
applied the instruction in an impermissible manner.” ’ ” (People v. Pettigrew (2021)
62 Cal.App.5th 477, 497.)
“Alternative-theory error” occurs when the trial court “instructs on two theories of
guilt, one correct and the other incorrect.” (People v. Aledamat (2019) 8 Cal.5th 1, 7, 9.)
Additionally, where the incorrect theory “is incorrect because it is contrary to law,” it is
considered a “ ‘ “legally inadequate theory,” ’ ” and “a higher standard must be met for
the error to be found harmless.” (Ibid.) Such error must be prejudicial under the standard
set forth in Chapman v. California (1967) 386 U.S. 18 (Chapman) to warrant reversal.
(Aledamat, at p. 9.) Under this standard, “reversal is required unless the error was
harmless beyond a reasonable doubt” (People v. Hernandez (2011) 51 Cal.4th 733, 744-
745) or, stated alternatively, it must be “ ‘ “beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained” ’ ” (People v. Pearson (2013)
56 Cal.4th 393, 463).
Here, plaintiff’s claim of error is premised upon the fact that the trial court listed
count 7 among the offenses requiring a general criminal intent when instructing the jury.
However, the instruction goes on to explain that the act “required will be explained in
12 these instructions for those crimes”; and, with respect to the specific instruction
pertaining to count 7, the jury was instructed that “sexual penetration means penetration .
. . for [the] purpose of sexual abuse, arousal or gratification.” Thus, the jury was
generally instructed that count 7 was a general intent crime, but it later was instructed that
it must find defendant harbored the specific intent required for the commission of the
offense in order to convict defendant of that offense. Assuming the trial court erred in
listing count 7 as a general intent crime,6 such error constituted alternative theory error
subject to the Chapman harmless error standard.
Multiple appellate decisions have considered identical circumstances and
concluded that any such error was harmless beyond a reasonable doubt. In People v.
ZarateCastillo, supra, 244 Cal.App.4th 1161, the trial court similarly classified section
288.7, subdivision (b), as a general intent crime, but then instructed the jury the offense
required an act of penetration done for the purpose of sexual abuse, arousal, or
gratification. (ZarateCastillo, at p. 1168.) The Court of Appeal concluded that such
error was necessarily harmless beyond a reasonable doubt, explaining “the trial court
6 The weight of authority suggests that instructing the jury in this manner was erroneous. (People v. Saavedra (2018) 24 Cal.App.5th 605, 613 (Saavedra) [“[W]hen . . . the violation of [section 288.7, subdivision (b),] is based on sexual penetration, it is a specific intent crime.”]; People v. Ngo (2014) 225 Cal.App.4th 126, 157 (Ngo) [“[S]exual penetration with a child is a specific intent crime under section 288.7, subdivision (b).”]; People v. ZarateCastillo (2016) 244 Cal.App.4th 1161, 1168 (ZarateCastillo) [trial court erred “in informing the jury that the crime of sexual penetration of a child 10 years old or younger . . . [is a] general intent crime[]”].) Relying on People v. Dillon (2009) 174 Cal.App.4th 1367, the People contend the issue is unresolved. However, the parties in that case did not dispute the issue of whether the charged offense required specific or general intent. (Dillon, at p. 1380.) Nor does it appear that any other published decision has followed the language set forth in Dillion, upon which the People now rely.
13 actually instructed the jury on the specific intent required . . . despite failing to classify
the crimes as specific intent crimes earlier in its instructions. . . . [T]here was nothing in
the general intent/specific intent portion of the trial court’s instructions that suggested to
the jurors that they were not to follow the later portions of the instructions telling them
the specific intent—referred to in the instructions as ‘purpose’—that was required to find
sexual penetration. . . . [;] the later instructions specific to those crimes expressly
described the ‘purpose’ of the act of penetration required to commit the crimes, and there
is simply no reason to believe that the jury would have disregarded the explicit direction
of the later instructions . . . .” (Id. at pp. 1168-1169.)
Likewise, in Ngo, supra, 225 Cal.App.4th 126, the trial court initially gave a
general intent instruction regarding an alleged violation of section 288.7, subdivision (b),
but later gave “CALCRIM 1128, which defines sexual penetration as doing so ‘for the
purpose of sexual arousal, gratification, or abuse,’ thereby setting forth the required
specific intent.” (Ngo, at pp. 161-162.) The Court of Appeal concluded that, “[e]ven
under the Chapman standard . . . we would find no prejudice. . . . To convict defendant
. . . , the jury must have found beyond a reasonable doubt that he at least harbored the
intent to commit the actus reus of penetrating the victim. A more favorable outcome
could only arise if a properly instructed juror could have found reasonable doubt that
defendant penetrated the victim ‘for the purpose of sexual arousal, gratification, or
abuse.’ There are very few circumstances in which a person would intentionally
penetrate another person without such a purpose.” (Ngo, at p. 163.)
14 Finally, in Saavedra, supra, 24 Cal.App.5th 605, the trial court again included
section 288.7, subdivision (b), in a list of general intent offenses but gave CALCRIM
No. 1128 setting forth the specific intent required to find defendant guilty of that offense.
(Saavedra, at pp. 615-616.) The Court of Appeal concluded that any error in doing so
was harmless beyond a reasonable doubt because the record contained “no evidence that
could rationally lead to a finding the act of penetration . . . was committed for a purpose
other than sexual arousal, gratification, or abuse. . . [;] defendant did not contest the
element, but rather denied any culpability.” (Id. at p. 616.)
We agree with the reasoning in each of these cases. Like ZarateCastillo, nothing
in the general intent instruction here would suggest to the jury that it was to ignore the
more specific instruction pertaining to count 7, which required it to find that defendant
committed the offense with the requisite specific intent in order to find him guilty.
Indeed, the general intent instruction went so far as to advise the jury that the specific act
required to convict would be described in the instruction pertaining to the specific
offenses.
More importantly, even if the jury had somehow been misled to apply the general
intent instruction with respect to count 7, that instruction would still have required the
jury to find beyond a reasonable doubt that defendant intentionally performed the
physical act of penetration. As pointed out in Ngo and Saavedra, there are very few
circumstances in which a person would intentionally penetrate another for a purpose
other than sexual gratification, arousal, or abuse; and a jury could not rationally find
15 otherwise, absent some evidence to suggest an alternative intent.7 Like in Saavedra,
defendant offered no evidence to suggest an alternative intent but instead denied any
culpability, claiming that he never met N.S. and was not the person depicted in the
photographs.8
Under the facts of this case, no rational jury could have found the specific intent
element unproven once it found defendant intentionally committed the physical act of
penetrating N.S. As such, even if the trial court erred in initially including count 7 in a
list of general intent offenses, any such error was harmless beyond a reasonable doubt
and does not warrant reversal.
C. Defendant’s Sentence Must Be Modified To Stay Punishment on Counts 2, 4, 6, and 8
Defendant also contends that the trial court erred in failing to stay punishment
under section 654 for four counts of committing lewd acts (§ 288, subd. (a), counts 2, 4,
6, & 8), since each of these counts was based upon the same physical acts that supported
his convictions on counts 1, 3, 5, and 7. The People concede, and we agree, that the
sentences imposed for counts 2, 4, 6, and 8 must be stayed.
Generally, section 654 prohibits multiple punishments for a single act or an
indivisible course of conduct. (People v. Leonard (2014) 228 Cal.App.4th 465, 498.)
“Whether a defendant may be subjected to multiple punishment under section 654
7 This is particularly true where, as here, counts 1, 3, and 5 all involved penetration with defendant’s penis.
8 While C.L. testified that any interaction between defendant and N.S. was initiated by N.S. and not defendant, she equally denied that the physical act of penetration ever occurred.
16 requires a two-step inquiry, because the statutory reference to an ‘act or omission’ may
include not only a discrete physical act but also a course of conduct encompassing several
acts pursued with a single objective. [Citations.] We first consider if the different crimes
were completed by a ‘single physical act.’ [Citation.] If so, the defendant may not be
punished more than once for that act. Only if we conclude that the case involves more
than a single act—i.e., a course of conduct—do we then consider whether that course of
conduct reflects a single ‘ “intent and objective” ’ or multiple intents and objectives.”
(People v. Corpening (2016) 2 Cal.5th 307, 311.)
“ ‘The question of whether section 654 is factually applicable to a given series of
offenses is for the trial court, and the law gives the trial court broad latitude in making
this determination.’ [Citation.] A court’s expressed or implied findings on this point
must be upheld if supported by substantial evidence.” (People v. Kopp (2019)
38 Cal.App.5th 47, 91, review granted Nov. 13, 2019, S257844; see People v. Leonard,
supra, 228 Cal.App.4th at p. 499.)
As the People concede, the four photographs submitted in support of counts 1, 3,
5, and 7 were the same photographs submitted in support of counts 2, 4, 6, and 8 and each
photograph “depicted a single act captured during a single moment.” Where the separate
convictions are premised upon the same physical act, section 654 precludes the
imposition of multiple punishment.
We observe that during the pendency of this appeal, the Legislature amended
section 654 to provide the trial court with discretion to select which punishment to
impose when multiple punishments are prohibited. (§ 654, subd. (a).) “Absent evidence
17 to the contrary, amendments to statutes that . . . vest in trial courts the discretion to
impose a lesser penalty . . . apply to all defendants whose judgments are not final as of
the amendment’s effective date.” (People v. Jones (2019) 32 Cal.App.5th 267, 272.)
Nevertheless, remand is not required if “the record reveals a clear indication that the trial
court would not have reduced the sentence even if at the time of sentencing it had the
discretion to do so.” (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110.)
Here, at the time of sentencing, the trial court explicitly stated that there was
“absolutely no reason” to sentence defendant to “one day less than this defendant
deserves” and that there should be “no mitigation in any way to lessen the sentence by
even one day.” Such statements clearly indicate the trial court’s intent to impose the
most severe sentence available and that it would have reached the same conclusion
regardless of whether it had discretion to impose a lesser punishment under the newly
amended section 654. As a result, remand for resentencing is unnecessary, and the
proper remedy is to modify the judgment to provide that defendant’s four-year sentences
imposed on counts 2, 4, 6, and 8 (committing lewd acts, § 288, subd. (a)) are stayed.
D. The Record Does Not Show Any Reason To Remand for New Sentencing
Finally, defendant contends the matter must be remanded for resentencing because
the trial court abused its discretion in imposing consecutive sentences on all counts. In
making this claim, defendant does not argue that a decision to impose consecutive
sentences would not be supported by substantial evidence but instead claims the trial
court misunderstood the scope of its discretion because it purportedly believed that it had
18 no discretion to select concurrent sentences under section 1170.12. We find no support in
the record for this claim.
“It is well established that a trial court has discretion to determine whether several
sentences are to run concurrently or consecutively. [Citation.] In the absence of a clear
showing of abuse, the trial court’s discretion in this respect is not to be disturbed on
appeal.” (People v. Bradford (1976) 17 Cal.3d 8, 20.) An “abuse of discretion occurs
where the trial court was not ‘aware of its discretion’. . . .” (People v. Carmony (2004)
33 Cal.4th 367, 378.) However, to meet his burden on appeal, “the defendant must
‘affirmatively demonstrate that the trial court misunderstood its sentencing discretion.’ ”
(People v. Lee (2017) 16 Cal.App.5th 861, 866.) As we explain, defendant has failed to
meet this burden here.
First, defendant has cited nothing in the record that suggests the trial court felt
constrained with respect to its decision to impose consecutive sentences. While
defendant asserts that “the trial court’s statements at sentencing indicate it was unaware it
could impose concurrent sentences under the three strikes law on some of the counts,”
and “the trial court’s remarks at sentencing did not reflect it understood it could order
some of the sentences to run concurrently,” he cites to nothing in the record in support of
these assertions. In essence, defendant suggests that this court should infer that the trial
court misunderstood the scope of its discretion because of the absence of an affirmative
statement otherwise. However, “remand is unnecessary if the record is silent concerning
whether the trial court misunderstood its sentencing discretion. Error may not be
presumed from a silent record,” and “ ‘ “[a] trial court is presumed to have been aware of
19 and followed the applicable law.” ’ ” (People v. Brown (2007) 147 Cal.App.4th 1213,
1229; see People v. Gutierrez (2009) 174 Cal.App.4th 515, 527 [“[W]e cannot presume
error where the record does not establish on its face that the trial court misunderstood the
scope of [its] discretion.”].) Thus, the absence of an affirmative statement by the trial
court does not, in itself, suggest an abuse of discretion requiring remand.
Second, the statements of the trial court actually suggest that the trial court fully
understood the discretionary nature of its sentencing choices. Specifically, the trial court
expressly addressed the issue of consecutive sentences, stating: “As to the consecutive
sentences, . . . this is an incredibly horrendous crime. There is absolutely no reason in
this Court’s mind one day less than this defendant deserves for the conduct in this case.
The amount of abuse imposed on this child is about as incredibly upsetting as could be
and legally offensive as could be. No mitigation in any way to lessen the sentence by
even one day.” It then stated that it was choosing to impose the determinate sentences
consecutively “based on the nature of the offenses,” and that it was choosing to impose
the indeterminate sentences consecutively “for the reason the court stated before.” Thus,
the trial court expressly stated its reasons for selecting consecutive, instead of concurrent,
sentences. In doing so, it made no statements referencing the three strikes law or
otherwise suggesting that it was prohibited from selecting a concurrent sentence.9
9 In reply, defendant points to a comment by the trial court that it intended to follow the probation report recommendations in order to impose “consecutive terms on all counts ‘within the confines of sentencing guidelines,’ ” and a second comment that “ ‘there is no digression as to the indeterminate sentences.’ ” However, the first comment is nothing more than a neutral statement that does not suggest the trial court felt [footnote continued on next page]
20 Third, the trial court expressly referenced section 1170.12 with respect to other
sentencing decisions. Specifically, the trial court stated that defendant’s sentences “will
be doubled, based on the admission of the prior strike, pursuant to 1170.12.” The fact
that the trial court expressly referenced the three strikes law with respect to other aspects
of its sentencing decision, but declined to do so with respect to its reasons for selecting
consecutive sentences, suggests it was not mistaken with respect to the application of the
three strikes law as defendant claims.
Additionally, we observe that, even if the trial court misunderstood the scope of its
discretion, the record clearly demonstrates that any error in this regard was harmless
beyond a reasonable doubt. While “ ‘ “[d]efendants are entitled to sentencing decisions
made in the exercise of the ‘informed discretion’ of the sentencing court,” ’ ” remand for
resentencing is not required where “ ‘the record “clearly indicates” that the trial court
would have reached the same conclusion “even if it had been aware that it had such
discretion.” ’ ” (People v. Flores (2020) 9 Cal.5th 371, 431-432 [remand not necessary
where trial court explicitly stated its intent to impose the most severe sentence
available].) As we have already noted, the trial court made multiple statements at the
time of sentencing expressing its view that there should be no mitigation to lessen the
restrained in the exercise of its discretion. Notably, immediately prior to this comment, the trial court specifically asked counsel whether they wanted to address any of the findings in the probation report with respect to “the sentence the Court has discretion to impose,” clearly suggesting that it understood its sentencing choices were discretionary. The second comment was made in reference to the imposition of indeterminate sentences and not in relation to the selection of consecutive versus concurrent sentences. Thus, neither comment supports defendant’s claim on appeal.
21 defendant’s sentence in any way. Such statements clearly indicate the trial court’s intent
to impose the most severe sentence available and that it would have reached the same
conclusion regardless of whether it fully understood that it had discretion to impose a
lighter sentence.
We conclude that defendant has not shown an abuse of discretion warranting
remand for resentencing. In the face of a silent record, we do not presume the trial court
misunderstood the scope of its discretion. More importantly, the statements actually
made by the trial court at the time of sentencing do not support defendant’s claims;
suggest the trial court was fully aware of its sentencing discretion; and also clearly
indicate that the trial court would have reached the same conclusion regardless of
whether it understood the scope of its discretion. Accordingly, remand for resentencing
on this basis is unwarranted.
22 IV. DISPOSITION
The judgment is modified to provide that defendant’s four-year sentences imposed
on counts 2, 4, 6, and 8 (committing lewd acts, § 288, subd. (a)) are stayed pending the
completion of service of the sentences on counts 1, 3, 5, and 7, respectively, with the
stays to become permanent upon the completion of the sentences on count 1, 3, 5, and 7.
The trial court is directed to prepare an amended abstract of judgment reflecting that the
sentences for counts 2, 4, 6, and 8 are stayed, not concurrent, to counts 1, 3, 5, and 7, and
to forward a certified copy to the Department of Corrections and Rehabilitation. As
modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS Acting P. J. We concur:
RAPHAEL J.
MENETREZ J.