People v. Valenti

Filed 1/14/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B255727

Plaintiff and Respondent, (Los Angeles County

Super. Ct. Nos. MA057051,

v. MA058872 &3AV06372)

RENOIR VINCENT VALENTI,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County,

Daviann L. Mitchell, Judge. Affirmed in part, reversed in part, and remanded with

directions.

Richard D. Miggins, under appointment by the Court of Appeal, for Defendant

and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews,

Supervising Deputy Attorney General, and J. Michael Lehmann, Deputy Attorney

General, for Plaintiff and Respondent.

_______________________________________

INTRODUCTION

Defendant Renoir Vincent Valenti was convicted of continuous sexual abuse,

lewd act on a child, child molestation, forgery, and violating a court order—all relating

to his sexual abuse of 15 children over nearly 30 years. The jury found multiple-victim

and substantial-sexual-conduct allegations true.

On appeal, defendant contends there is insufficient evidence his continuous

sexual abuse of Denzel lasted at least three months or that he touched Jeremy or Bradley

with lewd intent; that we must reverse his six convictions for annoying or molesting

a child because there is insufficient evidence of objectively disturbing or offensive

conduct, the court erred by instructing the jury the People did not have to prove sexual

motive, and the instruction for those offenses misstated the law; and that the court erred

by failing to instruct the emotional support person not to influence the witnesses.

Defendant also contends his conviction for lewd act on Alexis is unauthorized; his

consecutive one-strike sentences are unauthorized and an abuse of discretion; and the

noneconomic restitution awards are unauthorized and unconstitutional.

We affirm in part, reverse in part, and remand with directions. We reverse the

convictions for counts 1, 5, and 10 for insufficient evidence, and count 14 for violating

the Ex Post Facto Clause; those counts may not be retried. We reverse the convictions

for counts 6 through 9 for failure to instruct on an element of the offense, and remand

for retrial. We vacate the indeterminate sentences imposed for counts 2 and 12, and

remand for resentencing without application of the One Strike Law. We reverse the

noneconomic restitution awards for all counts, and remand with directions to conduct

a restitution hearing for counts 15, 23, and 24 only. We direct the court, upon

resentencing, to recalculate defendant’s custody credit to reflect no more than

15 percent local conduct credit. In all other respects, we affirm.

PROCEDURAL BACKGROUND

Defendant was charged by fourth amended information with 20 counts related to

the sexual abuse of children who lived in his neighborhood and played on the soccer

teams he coached. The information charged him with five counts of continuous sexual

2

abuse, a felony (Pen. Code,1 § 288.5; counts 1 [Denzel M.], 2 [Garrett M.],

12 [Cory D.], 13 [Ammon C.], and 20 [Thomas C.]); three counts of lewd act on a child

younger than 14, a felony (§ 288, subd. (a); counts 15 [Jeremy S.], 23 [Justin B.], and

24 [Bradley T.]); one count of lewd act upon a 14- or 15-year-old child by a person

more than 10 years older, a felony (§ 288, subd. (c)(1); count 14 [Alexis K.]); six counts

of annoying or molesting a child, a misdemeanor (§ 647.6, subd. (a)(1); counts 5

[Ricardo S.], 6 [Larry S.], 7 [Hunter S.], 8 [Wyatt S.], 9 [Richard S.], and 10

[David S.]); four counts of recording a false or forged instrument, a felony (§ 115,

subd. (a); counts 16–19); and one count of violating a court order, a misdemeanor

(§ 166, subd. (a)(4); count 21).2

As to the charges of continuous sexual abuse (§ 288.5; counts 1–2, 12–13, and

20), the information alleged the crimes involved substantial sexual conduct with a child

younger than 14 (§ 1203.066, subd. (a)(8)) and defendant committed the offense against

1

All undesignated statutory references are to the Penal Code.

2

Defendant was ultimately tried for twenty counts, numbered 1–2, 5–10, 12–21,

and 23–24. Counts 1–19 were charged in the original information, filed October 15,

2012. On October 24, 2013, the first amended information added counts 20 and 21.

Count 20 had originally been charged as count 1 in case no. MA058872, filed April 9,

2013. That case was consolidated into this case on May 23, 2013. Counts 21 and 22

were duplicates. On September 26, 2013, defendant was charged with one count of

violating a court order (§ 166, subd. (a)(4)) in case no. 3AV06372. On October 24,

2013, the People filed a first amended information, charging that crime, violating

a court order, as count 21 in this case. On December 16, 2013, case no. 3AV06372 was

consolidated into case this case as count 22. The same day, the People amended the

information in this case to reflect the consolidation. On January 4, 2014, the People

dismissed count 22 as duplicative of count 21. The dismissal is reflected in the third

amended information, filed January 27, 2014, which does not contain a count 22.

On February 11, 2014, the People filed the fourth amended information, the

operative pleading in this case, which added counts 23 (§ 288, subd. (a); Justin) and

24 (§ 288, subd. (a); Bradley). The People then dismissed counts 3 (§ 647.6,

subd. (a)(1); Jeremy), 4 (§ 647.6, subd. (a)(1); Bradley), and 11 (§ 288.5; Justin) under

section 1385. The summary page of the fourth amended information reflects the

dismissals, but the body of the information does not.

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more than one victim (§ 667.61, subds. (b), (c), (e)(4)). As to the charges of lewd act on

a child (§ 288, subds. (a), (c); counts 14–15, 23–24), the information alleged defendant

committed the offense against more than one victim (§ 667.61, subds. (b), (c), (e)(4)).3

Defendant pled not guilty and denied the allegations. A jury found defendant

guilty of all remaining counts, and found all allegations true.

The court sentenced defendant to a determinate term of 10 years and eight

months, and a consecutive, indeterminate term of 120 years to life. For the determinate

sentence, the court selected count 14 (§ 288, subd. (c)(1)) as the base term, and imposed

the upper term of three years.4 The court imposed consecutive one-year terms for

counts 5 through 10 (§ 647.6, subd. (a)(1)) and 21 (§ 166, subd. (a)(4)), for a total of

seven years. The court imposed eight months—one-third the middle term of two

years—for count 16 (§ 115, subd. (a)), to run consecutive, and the middle term of two

years for counts 17, 18, and 19 (§ 115, subd. (a)), to run concurrent with the principal

term. For the indeterminate sentence, the court imposed eight consecutive terms of

15 years to life for counts 1, 2, 12, 13, and 20 (§ 288.5) and counts 15, 23, and 24

3

In 2010, the One Strike Law (§ 667.61) was amended and partially renumbered.

(Stats.2010, ch. 219 (A.B.1844), § 16.) Before the amendment, the multiple-victim

allegation appeared in subdivision (e)(5). (Stats.2006, ch. 337 (S.B.1128), § 33.) The

amended statute moved the allegation to subdivision (e)(4). (Stats.2010, ch. 219

(A.B.1844), § 16.) The original information, filed October 15, 2012, correctly charged

the multiple-victim allegation as a violation of section 667.61, subdivision (e)(4), under

the then-current version of the statute. However, the fourth amended information, filed

February 11, 2014, mistakenly charged the multiple-victim allegation under subdivision

(e)(5). After the 2010 amendment, subdivision (e)(5) read: “(5) The defendant engaged

in the tying or binding of the victim or another person in the commission of the present

offense.” (Stats.2010, ch. 219 (A.B.1844), § 16.) The (e)(5) allegation appears to be

a scrivener’s error that was carried over to the verdict forms and related minute orders.

Based on the record, defendant acknowledges he had notice of the intended charge—the

multiple-victim allegation set forth in section 667.61, subdivision (e)(4)—and waives

any error.

4

Because the offense was committed before the effective date of the One Strike

Law (§ 667.61, subds. (b)–(e)), the court determined the Law’s indeterminate

sentencing provisions did not apply to count 14.

4

(§ 288, subd. (a)) under the One Strike Law (§ 667.61, subds. (c), (i)). Defendant was

ordered to pay fines and assessments totaling $36,490, and restitution for noneconomic

damages (§ 1202.4, subd. (f)(3)(F)) totaling $450,000. Defendant received 1,241 days

pretrial custody credit—621 days actual credit and 620 days local conduct credit.

Defendant filed a timely notice of appeal.

FACTUAL BACKGROUND

In 1983, eight-year-old James K. met defendant at the Santa Monica Pier. James

liked to break dance with his friends in Santa Monica and Venice while his father fished

nearby. James approached defendant, who was photographing the break dancers, and

asked defendant to take pictures of James and his friends, who were hoping to book

a commercial. Defendant and James began to spend time together and soon, James’s

10-year-old sister, Alexis, asked to come along.

By 1986, defendant and Alexis had started dating. Alexis was 13 years old;

defendant was 24. They married the following year, on August 11, 1987. In 1991,

Alexis gave birth to the couple’s first child, Damien. In 1993, the young family moved

to Palmdale. Defendant told people his name was Renoir Vincent Valenti,5 and that he

was a soccer coach from England. In early 1994, Alexis gave birth to the couple’s

second child, Alex.

In 1995, defendant’s sons introduced him to Garrett, a five-year-old boy who

lived in the same apartment complex as the Valenti family. Defendant soon started

molesting Garrett. The abuse, which continued for nearly a decade, ultimately involved

thousands of episodes of molestation, including repeated oral copulation, masturbation,

and sodomy.

The same year, defendant began to coach boys’ soccer in Lancaster. He would

go on to coach Lancaster soccer from 1995 until 2006—primarily coaching teams of

boys younger than 10 or 12 years old.

5

Although he introduced himself as Renoir Valenti, defendant’s legal name is

Raynard Anthony Haylock.

5

Meanwhile, Alexis had grown unhappy in her marriage to defendant and jealous

of the time he spent with other people’s children. They separated on March 30, 1996;

a judgment of dissolution was entered on January 6, 1997. Despite the divorce, Alexis

and defendant continued to live together, and in April 1998, they moved to the nearby

Pavilion Apartments. Justin and Gary Q. lived in the complex.

In 1998, defendant’s apartment was “the place to be” for neighborhood boys like

Justin, Garrett, and Gary. He had stocked it with big screen televisions, video games,

food, and candy. Defendant also took Justin and his friends to the desert to shoot

BB guns. On the way, the boys took turns sitting on defendant’s lap to steer the car.

When Justin sat in his lap, defendant usually became aroused, and Justin felt him get an

erection. Sometimes, defendant also rubbed Justin’s inner thigh. On June 17, 1998,

Justin’s mother reported defendant to the police for child molestation. Defendant was

arrested on June 28, 1998, but the case was dismissed for insufficient evidence.

By 2001, defendant and Alexis had moved from Palmdale to an apartment in

Lancaster. That year, defendant met Cory. Like Garrett, whose abuse continued during

this period, Cory often spent the night at defendant’s home. Defendant frequently

hugged Cory, kissed him on the forehead and lips, and inserted his tongue into Cory’s

mouth. One evening, defendant brought Cory to his bedroom and fondled his penis.

In 2001 or 2002, Alexis finally moved out, leaving Damien with his father,

defendant. On January 31, 2003, Damien reached out to the Sheriff’s Department. He

told authorities defendant had been beating and molesting him for five years, along with

Garrett, Cory, and a boy named David. Sergeant Anna Fernandez investigated the

allegations, but no charges were ever filed. Damien later recanted.

Before long, defendant had moved on to Ammon. Ammon met defendant

through his older brother, a friend of Damien’s and a member of the soccer team

defendant coached. Soon, Ammon joined the soccer team too. By 2004, eight-year-old

Ammon had started sleeping over at defendant’s house nearly every weekend—and

defendant molested him on nearly every visit. During those visits, defendant touched

6

Ammon’s penis, put his mouth on Ammon’s penis, and masturbated Ammon and

himself.

Ammon met Thomas in the fall of 2005, when they sat together in fourth grade.

In early 2006, defendant moved west to Quartz Hill. Sometime that winter or spring,

Ammon introduced Thomas to defendant. Thomas was nine years old. Thomas went to

defendant’s house two or three times each week until 2007, when he was scheduled to

start sixth grade. Every time Thomas visited defendant, defendant sat Thomas on his

lap, reached his hand into Thomas’s pants, and stroked his penis and buttocks.

Defendant put his fingers around Thomas’s anus and kissed his neck. The abuse

continued as long as Thomas spent time at defendant’s house.

In the summer of 2007, Thomas failed fifth grade, and Ammon moved to

Bakersfield for sixth grade. For Thomas, the abuse ended when Ammon moved away in

2007, and he stopped visiting defendant. Ammon’s abuse did not end, however.

Despite living in Bakersfield, Ammon continued to see defendant. In 2008, when

Ammon moved back to Lancaster for seventh grade, he joined defendant’s Manchester

United soccer team, and resumed his frequent visits to defendant’s house.

Meanwhile, brothers Enrique, Eduardo, and David had also joined Manchester

soccer. Along with their younger brother Ricardo, they began sleeping over at

defendant’s house nearly every weekend before their soccer games. During their

weekends with defendant, the brothers played soccer and video games, and defendant

took them to the movies, out to eat, and to amusement parks like Universal Studios,

Hurricane Harbor, Six Flags, and Magic Mountain. While defendant bought gifts for

some boys—like RC cars6 worth hundreds of dollars—he did not buy gifts for Enrique,

Eduardo, David, or Ricardo. He did, however, pay their soccer registration fees.

Defendant applied to coach soccer in Quartz Hills beginning in 2007, and was

assigned a team for the 2010 season. That summer, Manchester soccer disbanded, and

defendant began coaching the Red Devils—the soccer team he would coach through the

6

An RC car is a remote control car.

7

2010–2011 regular and all-star seasons. Ammon joined another soccer team; he stopped

going to defendant’s house, and the abuse ended. Enrique, Eduardo, and David

followed defendant to the Red Devils, where thirteen year-old Jeremy would become

defendant’s star player and the main focus of his attention.

Jeremy met defendant at the 2010 soccer tryouts. He sometimes visited

defendant’s house with the other boys, but mostly, defendant went to Jeremy’s house,

where he spent a lot of time with Jeremy’s family. Defendant played basketball with

Jeremy, his dad, and his brother; he played video games with them; he joined the family

for dinner and for his birthday. Sometimes Jeremy’s friend Bradley was there too.

Defendant, Jeremy, and Bradley went on adventures together—to the RC car racing

track, Mulligan Family Fun Center, or out to eat. For Christmas, defendant made

Jeremy a large photo collage, created a photo calendar, and bought him an Xbox.

Sometime after that, he bought Jeremy a $600 RC car. Defendant’s nightstand sported

a matted, framed photo of Jeremy, with the phrase “all the numbers” written on the mat.

“All the numbers” was an expression of defendant’s love for Jeremy, and defendant

frequently told Jeremy he loved him. Defendant also showed his love in other ways.

He cuddled with Jeremy on the couch, kissed him, held his hand in the car, sat Jeremy

on his lap to steer the car, and hugged him for inappropriately long periods. Defendant

also spent time with Jeremy at Bradley’s house, where he swam with the boys in the

pool. In 2011, defendant’s relationship with Jeremy’s family soured when he took

Jeremy to Littlerock Dam without the family’s permission. Though defendant begged

for forgiveness, Jeremy’s family would no longer let defendant see their son. However,

Jeremy continued to send defendant text messages; once, he asked defendant to bring

him food and donuts; another time, he asked for $20.

Meanwhile, sometime during this period, Ammon moved to Nevada. Before he

moved away, defendant delivered a letter to Ammon’s mother. “Hello son,” he wrote,

“I thought that I would get to see you grow up and graduate from middle school and

high school, teach you to drive, get you a car and see you off to college; however, it

8

seems, this is not to be. . . . I have and will always miss you every day, yesterday and

forever. I will never forget my Ammon. . . . I will always love you all the numbers.”

When the next soccer season began in August 2011, defendant had been banned

from coaching boys’ soccer in Palmdale, Lancaster, and Quartz Hills. In Palmdale and

Quartz Hills, defendant had tried to register boys to play soccer without their parents’

consent; the reasons for the Lancaster decision were not disclosed to the jury. By this

time, Ammon had moved away and Jeremy was off-limits, so defendant directed his

energies towards Bradley, repeating the pattern that had worked so many times before.

By May or June 2012, however, Bradley’s mother had ordered him to stop seeing

defendant. Bradley asked his father, James T., for permission—but James insisted on

interviewing defendant first. At their meeting, defendant told James that “his children

were grown and he liked hanging out with younger children.” James responded, “It

wasn’t going to happen then or at any time.” Bradley continued to contact defendant by

text message—but eventually, Bradley’s mother found out and grounded him. Now

Bradley, too, was off-limits. But Eduardo, Enrique, Ricardo, and David still spent the

weekends at defendant’s house—a house full of fun things for boys to do—and

defendant moved on to children in his neighborhood.

Nine-year-old Denzel, his older brother Gareth, and their mother, Monique, were

defendant’s next-door neighbors in Quartz Hills. In January 2012, Gareth started

spending time at defendant’s house with Enrique and Eduardo. Eventually, Denzel

joined him. Denzel usually played outside with the neighborhood kids. By May 2012,

however, Denzel had started spending more time inside defendant’s house, playing

video games, watching movies, and eating pizza. By June 2012, defendant was

a well-established presence in Denzel’s life. Sometime that summer, defendant called

Denzel into his bedroom and began to molest him. Defendant would call Denzel into

his bedroom, close the door, and lift him onto the bed. Then, using his hand, defendant

rubbed Denzel’s penis through his clothes. Other times, defendant sucked “around my

wiener area,” again through Denzel’s clothes. DNA tests confirmed the presence of

defendant’s saliva on Denzel’s shorts.

9

In late June 2012, Larry, Richard, and twin brothers Hunter and Wyatt (“Rachel’s

sons”) met defendant through their friend Denzel. Rachel arrived at Denzel’s house one

day to pick up him up for a sleepover with the twins; she was chatting with Monique

when defendant came over to introduce himself. Defendant picked Denzel up the

following day, and began turning up at Rachel’s house whenever Denzel was there. On

July 10, 2012, defendant appeared uninvited at a family birthday party for Rachel’s

nephew. The following day, Denzel told Monique that defendant had been molesting

him. On July 12, 2012, Monique reported defendant to the police, and no longer

allowed him to have contact with Denzel. At that point, defendant dramatically

increased the attention he paid to Rachel’s sons.

Cut off from Denzel, defendant started showing up at Rachel’s house almost

every day. As with the previous objects of his affection and abuse, defendant and

Rachel’s sons played video games and basketball, and raced RC cars. He took the boys

to the movies, to Mulligan’s, to the desert to shoot Airsoft pistols, and to the local pool.

He put them in his lap and let them steer the car. This time, however, his conduct

escalated quickly. Defendant tried to see the boys every day. He appeared at the house

uninvited—or invented a pretext to come over even when Rachel specifically told him

not to. He called the house to wish the boys goodnight, and asked Rachel to tell them

that he missed them, and that he loved them. Within weeks, defendant had overstayed

his welcome.

Finally, on August 6, 2012, authorities took defendant into custody.

CONTENTIONS

On appeal, defendant contends that count 14 (§ 288, subd. (c)(1); Alexis) was

barred by the statute of limitations, supported by insufficient evidence, based on

conduct that did not violate the statute, and based on sexual intercourse with his lawful

wife; that there was insufficient evidence the continuous sexual abuse in count 1

(§ 288.5; Denzel) lasted more than three months; that there was insufficient evidence of

lewd intent to support counts 15 and 24 (§ 288, subd. (a); Jeremy and Bradley); that in

counts 5 through 10 (§ 647.6, subd. (a)(1); Ricardo, Larry, Hunter, Wyatt, Richard, and

10

David), there was insufficient evidence of an objectively disturbing act, the court

improperly instructed the jury the prosecution did not have to prove motive, and

CALCRIM No. 1122 misstates the law; that the court prejudicially erred by failing to

instruct the emotional support person not to “prompt, sway, or influence the witness in

any way”; that the court did not understand it had the discretion under the One Strike

Law to impose concurrent life sentences for the convictions obtained for counts 1, 2, 12,

13, 15, 20, 23, and 24 (§ 667.61, subds. (b)-(e); Denzel, Garrett, Cory, Ammon, Jeremy,

Thomas, Justin, and Bradley); that the award of noneconomic restitution (§ 1202.4,

subd. (f)(3)(F)) to the victims of continuous sexual abuse charged in counts 1, 2, 12, 13,

and 20 (§ 288.5; Denzel, Garrett, Cory, Ammon, and Thomas) is unauthorized by

statute; and that the entire noneconomic restitution award is unsupported by substantial

evidence or a rational method of calculation, violates the Sixth Amendment, irrationally

distinguishes between two groups of child predators in violation of the Equal Protection

Clause, and violates the right to a civil jury trial under the California Constitution. In

response, the People agree the conviction for count 14 (§ 288, subd. (c); Alexis) should

be reversed, but only because it violates the Ex Post Facto Clause.

By letter, we invited the parties to file supplemental briefing on the issue of

whether application of the One Strike Law to the sentences for counts 2, 12, 13, and 20

violated the Ex Post Facto Clause. In response, the People and defendant agree that the

one-strike sentences for counts 2 and 12 violate the Ex Post Facto Clause, and defendant

contends his sentences for counts 13 and 20 also violate the Ex Post Facto Clause.

DISCUSSION

1. Sufficiency of the Evidence of Continuous Sexual Abuse of

Denzel (Count 1) and Lewd Intent Toward Jeremy

and Bradley (Counts 15 and 24)

Defendant contends we must reverse the conviction for count 1 (§ 288.5; Denzel)

because the evidence was insufficient to establish the abuse lasted at least three months,

and that we must reverse the convictions for counts 15 and 24 (§ 288, subd. (a); Jeremy

and Bradley) because the evidence was insufficient to establish sexual intent.

11

In assessing the sufficiency of the evidence, we review the entire record to

determine whether any rational trier of fact could have found the defendant guilty

beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) “The

record must disclose substantial evidence to support the verdict—i.e., evidence that is

reasonable, credible, and of solid value—such that a reasonable trier of fact could find

the defendant guilty beyond a reasonable doubt.” (Ibid.) In applying this test, we

review the evidence in the light most favorable to the verdict and presume in support of

the judgment the existence of every fact the jury could reasonably deduce from the

evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) The same standard applies

where the conviction rests primarily on circumstantial evidence. (People v. Thompson

(2010) 49 Cal.4th 79, 113.) We may not reweigh the evidence or resolve evidentiary

conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) The testimony of a single

witness can be sufficient to uphold a conviction—even when there is significant

countervailing evidence, or the testimony is subject to justifiable suspicion. (People v.

Barnwell (2007) 41 Cal.4th 1038, 1052.) Accordingly, we may not reverse for

insufficient evidence unless it appears “ ‘that upon no hypothesis whatever is there

sufficient substantial evidence to support [the conviction].’ ” (People v. Bolin (1998)

18 Cal.4th 297, 331.)

1.1 There is insufficient evidence the continuous sexual abuse of

Denzel (count 1) lasted at least three months.

A violation of section 288.5 requires proof of the following elements:

1. The defendant lived with or had recurring access to a child;

2. The defendant engaged in three or more acts of substantial sexual conduct

or lewd or lascivious conduct with the child;

3. Three or more months passed between the first and last acts; and

4. The child was younger than 14 years old at the time of the acts.

(People v. Rodriguez (2002) 28 Cal.4th 543, 550 [statute “requires at least three acts of

sexual misconduct with the child victim over at least three months to qualify for

prosecution of persons who are either residing with, or have ‘recurring access’ to, the

12

child.”]; People v. Vasquez (1996) 51 Cal.App.4th 1277, 1284–1285 [at least three

months between first and last act of abuse].)

“[T]he prosecution need not prove the exact dates of the predicate sexual

offenses in order to satisfy the three-month element. Rather, it must adduce sufficient

evidence to support a reasonable inference that at least three months elapsed between

the first and last sexual acts. Generic testimony is certainly capable of satisfying that

requirement . . . [but] ‘the victim must be able to describe the general time period in

which these acts occurred (e.g., “the summer before my fourth grade,” or “during each

Sunday morning after he came to live with us”), to assure the acts were committed

within the applicable limitation period.’ [Citations.] That is, while generic testimony

may suffice, it cannot be so vague that the trier of fact can only speculate as to whether

the statutory elements have been satisfied.” (People v. Mejia (2007) 155 Cal.App.4th

86, 97 (Mejia).)

Defendant was charged with continuous sexual abuse of Denzel “[o]n or between

January 1, 2012 and July 11, 2012[.]” The testimony established that Denzel’s older

brother, Gareth, began spending time at defendant’s house sometime in January 2012,

six months before their mother, Monique, reported defendant to the police on July 12,

2012. Denzel first met defendant sometime after that, when he went next door to bring

Gareth home. Denzel told defendant he was there to pick up his brother; he did not go

inside the house. Denzel next went to defendant’s house “a long time later”—again, to

pick up Gareth. As on the first visit, he did not go inside. This is consistent with

Monique’s account: “In the beginning [Denzel] would go by himself to play outside out

in the front yard and practice soccer . . . . [H]e would go outside. Renoir spent most of

his time in the driveway and in the garage with the garage door open. So [Denzel]

would go outside and Renoir had a bag of soccer equipment right there by the garage

door, and the neighborhood kids felt free to come up enough that they would come and

play. So my son would do that and he would play in the grass in the front yard.”

However, it is unclear when Denzel started playing outside defendant’s house or how

long this period lasted.

13

“[A] long time” after the second visit, Denzel went to defendant’s house again.

He accompanied Gareth, and that time, he went inside; he stayed for about an hour,

played video games, and went home. “A couple weeks” after that, Denzel returned for

a fourth visit, again with his brother. At first, Denzel’s visits were short, and always at

times when other kids were there too; he went inside to play video games, watch

movies, and eat pizza. By May 2012, Denzel had started spending more time inside

defendant’s house. However, it was not until sometime that summer, “a couple months”

after his fourth visit, that defendant called Denzel into his bedroom and began to molest

him.

“Presuming in support of the judgment the existence of every fact the trier of fact

could reasonably deduce from the evidence, we find no reasonable, credible, solid

evidence to support a nonspeculative inference that the three-month minimum time

period element was satisfied.” (Mejia, supra, 155 Cal.App.4th at p. 94.) “[A]lthough

there was ample evidence that at least three sexual qualifying offenses occurred during

the charging period” (id. at p. 95), there is no evidence that at least one of those offenses

occurred before April 11, 2012—three months before the last possible incident. The

evidence established Denzel briefly met defendant sometime after mid-January 2012.

“A long time later,” Denzel briefly met defendant a second time. A “long time” after

that, Denzel went inside defendant’s house for an hour to play video games. “A couple

weeks” later, Denzel went back for another uneventful visit. After another “couple

months,” sometime during the summer, defendant molested Denzel for the first time.

Witness testimony established defendant paid excessive attention to Denzel, was well

enmeshed in his life, and began to molest him during the summer of 2012. But the

testimony does not establish that defendant touched Denzel before May 2012, or

support an inference that he did so in April 2012. To the contrary, the court’s careful

questioning of Denzel elicited unequivocal testimony that the abuse did not last for

more than one month. We therefore reverse the conviction for count 1.

14

1.2 There is sufficient evidence defendant touched Jeremy

and Bradley (counts 15 and 24) with lewd intent.

A violation of section 288, subdivision (a) requires proof of the following

elements:

1. The defendant willfully touched any part of a child’s body, either on the

bare skin or through the clothing;

2. The defendant committed the act with the intent of arousing, appealing to,

or gratifying the lust, passions, or sexual desires of himself or the child;

and

3. The child was younger than 14 years old at the time of the act.

(People v. Martinez (1995) 11 Cal.4th 434, 444 (Martinez).)

Section 288’s defining characteristic is “the defendant’s intent to sexually exploit

a child, not the nature of the offending act.” (Martinez, supra, 11 Cal.4th at p. 444.)

Accordingly, “[a]ny touching of a child under the age of 14 violates [section 288,

subdivision (a)], even if the touching is outwardly innocuous and inoffensive, if it is

accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator

or the victim.” (People v. Lopez (1998) 19 Cal.4th 282, 289 (Lopez), citing Martinez,

supra, at pp. 450–452, emphasis omitted.) Where, as in this case, the defendant’s

physical conduct might be consistent with a non-sexual purpose, the jury can look to

surrounding circumstances and rely on them to draw inferences about his intent.

(In re Mariah T. (2008) 159 Cal.App.4th 428, 440 [“Because intent for purposes of

Penal Code section 288 can seldom be proven by direct evidence, it may be inferred

from the circumstances.”]; cf. People v. Ortiz (2012) 208 Cal.App.4th 1354, 1365 [jury

could reasonably infer from the circumstances that defendants kidnapped the victims for

the dual purposes of taking them and their car].) In determining whether defendant

acted with lewd intent, the jury was entitled to consider the other charged counts and his

pattern of conduct. (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1381.)

It is undisputed that defendant kissed and hugged both Jeremy and Bradley. The

prosecution also presented ample evidence that defendant’s conduct with Jeremy and

15

Bradley—and his unusual attachment to both boys—mirrored the courtship phase of his

relationships with Garrett, Justin, Cory, Ammon, Thomas, and Denzel. Upon

consideration of the whole record, and based on defendant’s extraordinary focus on

these boys and strikingly similar methods of operation, the jury had sufficient evidence

from which it could conclude defendant touched Jeremy and Bradley with the required

intent. We affirm the convictions for counts 15 and 24.

2. Annoying or Molesting a Child (Counts 5 through 10)

Defendant was convicted of annoying or molesting six children, in violation of

section 647.6, subdivision (a)(1)—Ricardo (count 5), Larry (count 6), Hunter (count 7),

Wyatt (count 8), Richard (count 9), and David (count 10). A violation of section 647.6

requires proof of the following elements:

1. The defendant engaged in conduct directed at a child;

2. A normal person, without hesitation, would have been disturbed, irritated,

offended, or injured by the defendant’s conduct;

3. The defendant’s conduct was motivated by an unnatural or abnormal

sexual interest in the child or in children generally; and

4. The child was under age 18 at the time of the conduct.

(People v. Phillips (2010) 188 Cal.App.4th 1383, 1396.)

As to each count, defendant contends the evidence was insufficient to prove the

second element—objective irritation or offense, and in any event, the court prejudicially

erred by instructing the jury that the People did not have to prove the third

element--sexual motive. Alternatively, defendant contends motive is not an element of

section 647.6, subdivision (a)(1); that CALCRIM No. 1122 misstates the law; and that

the misstatement “altered the jury’s focus and analysis of the evidence with an element

that was not part of the charged offense,” thereby prejudicing defendant.

The People, in turn, contend there was sufficient evidence of objectively

irritating behavior. Rather than explaining how the defendant’s behavior was

objectively disturbing, however, the People point us to evidence of defendant’s mental

state, which we may not consider for this purpose, and the children’s subjective

16

discomfort, which is irrelevant. (Lopez, supra, 19 Cal.4th at pp. 290-291.) The People

also insist we should not consider the facts of other published cases on this topic

because doing so would amount to “this Court . . . substitut[ing] its own judgment (or,

rather appellant’s judgment) for that of the jury[.]” Finally, as to each claim of

instructional error, the People contend defendant forfeited the issue, the court did not

err, and any error was harmless.

We conclude the convictions for counts 5 and 10 are not supported by substantial

evidence of objectively irritating behavior. We conclude substantial evidence supports

the convictions for counts 6 through 9, but the conflicting jury instructions on sexual

motive violated defendant’s right to due process of law. Because we reverse on that

basis, we do not address defendant’s novel assertion that CALCRIM No. 1122 misstates

the law.

2.1 Sufficiency of the Evidence of Objectively Irritating or

Offensive Conduct

Unlike section 288 (lewd act on a child), section 647.6, subdivision (a)(1) does

not require a touching (Lopez, supra, 19 Cal.4th at p. 289), but does require conduct that

would unhesitatingly disturb or irritate a normal person (People v. Carskaddon (1957)

49 Cal.2d 423, 426 (Carskaddon)). “[T]o determine whether the defendant’s conduct

would unhesitatingly irritate or disturb a normal person, we employ an objective test[.]”

(Lopez, supra, at p. 290.) The defendant’s observable conduct, on its own, must

unhesitatingly irritate or disturb a reasonable person; in evaluating it, we may not

consider either the defendant’s intent or the child’s subjective discomfort. (Id. at

p. 291.)

a. Ricardo (count 5) and David (count 10)

For several years, Ricardo, David, and their older brothers, Eduardo and Enrique,

slept over at defendant’s house nearly every weekend. During these years, defendant

hugged David three times and once kissed Ricardo on the top of the head. Defendant

contends this behavior is not objectively disturbing. We agree.

17

As our colleagues in Division Seven have explored in detail, not all kisses are

sexual. (In re R.C. (2011) 196 Cal.App.4th 741, 750–751.) A kiss’s meaning changes

with the era, culture, and even the family in which it occurs. (Ibid.) Because kisses

possess such variety and meaning, In re R.C. hinged on whether the defendant kissed

the child with an open or closed mouth. “Unlike kissing without the use of tongues,

which is an important means of demonstrating parental love and affection for a child,

there can be no innocent or lovingly affectionate tongue kissing of a child by an adult.”

(Ibid.) Though the People ask us to hold that kissing a child on the top of the head is

always objectively disturbing, we agree with our colleagues in Division Seven that

without more, a closed-mouth kiss is not necessarily a sexual act.

Here, defendant hugged David and gave Ricardo a brief goodnight kiss on the

top of the head. There is no evidence suggesting the kiss or the hug were of any

significant duration, that defendant tried to touch either boy—or himself—in any way,

or that he became aroused then or later. Put simply, there is no evidence defendant’s

actions consisted of anything more than the briefest peck or embrace, such as might be

exchanged by friends or family members as an expression of nonsexual affection.

While Ricardo and David may have been uncomfortable, in light of defendant’s lengthy,

close relationship with their family, defendant’s actions were not objectively disturbing.

Because there is insufficient evidence to support the convictions involving Ricardo and

David, we reverse counts 5 and 10.

b. Richard, Wyatt, Hunter, and Larry (counts 6 through 9)

While defendant’s interactions with Ricardo and David were reasonable in light

of his close relationship with their family, the attention he paid to Rachel’s

sons--Richard, Wyatt, Hunter, and Larry—was alarming. Defendant kissed and hugged

the boys on their second meeting. He tried to see them every day. Defendant appeared

at Rachel’s house uninvited—or invented a pretext to come over despite her objections.

He called the house to wish the boys goodnight, and asked Rachel to tell them that he

missed them, and that he loved them. When defendant took the boys to the desert to

shoot Airsoft pistols, defendant put each of them in his lap and let them steer the car.

18

Indeed, the jury could have reasonably inferred defendant took Rachel’s sons on this trip

without Rachel’s knowledge; while all four boys testified to the outing, neither Rachel

nor her mother mentioned it. Rachel testified that defendant acted “like a teenage girl

[who] had a crush on a boy[.] . . . [He called] to see my children, four, five, six times

a day, after I would say no, we’re busy, now isn’t a good time, we’re preparing for

school. My kids are going to bed early. He wouldn’t take no for an answer, he still

would call to see what we were doing and what was going on, if he could come over.”

Defendant’s behavior was “totally inappropriate” and felt “like stalking”. He knew the

family for no longer than five weeks. We therefore conclude substantial evidence

supports the convictions for counts 6, 7, 8, and 9.

2.2 The court erred by instructing the jury that the People did not

have to prove motive, because motive was an element of the

charged offenses.

Defendant contends conflicting motive instructions allowed the prosecution to

convict him of annoying or molesting a child without proving every element of the

offense beyond a reasonable doubt. The People contend defendant forfeited the issue,

the court did not err, and any error was harmless. We find no forfeiture and conclude

the instructions violated defendant’s 14th Amendment right to due process of law.

Because the People have not proven beyond a reasonable doubt that the error was

harmless, we reverse the convictions for counts 6 through 9.

As a preliminary matter, we address the People’s argument that defendant

forfeited his claim of instructional error because he did not object to the instructions, or

seek their revision, at trial. (People v. Guiuan (1998) 18 Cal.4th 558, 569–570.)

Certainly, a criminal defendant has a right to accurate instructions on the elements of

a charged crime. (People v. Mil (2012) 53 Cal.4th 400, 409 (Mil).) And it is settled that

a defendant need not object to preserve a challenge to an instruction that affects his

substantial rights. (People v. Mackey (2015) 233 Cal.App.4th 32, 106; see § 1259 [we

“may also review any instruction given, refused or modified, even though no objection

was made thereto in the trial court if the substantial rights of the defendant were affected

19

thereby.”], § 1469 [same].) Because defendant contends CALCRIM No. 370 removed

an element of the offense from the jury’s consideration, the instructional error affected

his substantial rights. We therefore review the issue de novo despite his failure to object

below.7

a. The court erred by instructing the jury with an unmodified

version of CALCRIM No. 370.

The Due Process Clause “[protects] the accused against conviction except upon

proof beyond a reasonable doubt of every fact necessary to constitute the crime with

which he is charged.” (In re Winship (1970) 397 U.S. 358, 364 [90 S.Ct. 1068];

U.S. Const., 14th Amend.) Because due process principles require the prosecution to

prove every element of the crime beyond a reasonable doubt, jury “instructions

completely removing the issue of intent from the jury’s consideration may constitute

a denial of federal due process[.]” (People v. Lee (1987) 43 Cal.3d 666, 673.)

Conflicting intent instructions—where one instruction requires the prosecution to prove

intent while another instruction eliminates that requirement—can operate the same way.

(Id. at pp. 673–674.) Accordingly, “[i]f conflicting instructions on the mental state

element of an alleged offense can act to remove that element from the jury’s

consideration, the instructions constitute a denial of federal due process[.]” (People v.

Maurer (1995) 32 Cal.App.4th 1121, 1126–1128 (Maurer).) This is so even where the

court’s instructions on the offense itself correctly explain the required intent, because we

have “no way of knowing which of the two irreconcilable instructions the jurors applied

in reaching their verdict.” (Francis v. Franklin (1985) 471 U.S. 307, 322 [105 S.Ct.

1965]; People v. Gay (2008) 42 Cal.4th 1195, 1225–1226.) CALCRIM No. 1122 and

CALCRIM No. 370 are one such pair of conflicting instructions.

Motive is not generally an element of a criminal offense. But when it is an

element, the trial court errs by giving an unmodified version of CALCRIM No. 370, an

7

Because we conclude defendant did not forfeit this issue, we do not address his

additional contention that defense counsel was ineffective for failing to object.

20

optional instruction that tells the jury the prosecutor need not prove the defendant’s

motive to commit the charged crimes. (Maurer, supra, 32 Cal.App.4th at p. 1128; see

People v. Romo (1975) 14 Cal.3d 189, 196 [not error to refuse instruction on motive].)

To convict a defendant of violating section 647.6, the prosecution must prove the

defendant was motivated by an unnatural sexual interest in a particular child or in

children generally. (People v. Hillhouse (2002) 27 Cal.4th 469, 503–504.) Here, the

court instructed the jury with both CALCRIM No. 1122, which correctly instructs that

the prosecution must prove the defendant acted with sexual motive, and CALCRIM

No. 370, which incorrectly instructs that the prosecution does not have to prove motive.

(Compare CALCRIM No. 1122 [“People must prove that . . . [t]he defendant’s conduct

was motivated by an unnatural or abnormal sexual interest in the child”] with

CALCRIM No. 370 [“The People are not required to prove that the defendant had

a motive to commit any of the crimes charged.”].) When given together, the instructions

effectively “removed the mental state element” from the jury’s consideration. (Maurer,

supra, at pp. 1128–1129.) This was error, which we treat as a failure to instruct on an

element of the offense. (Ibid.)

b. The People have not proven the instructional error was harmless

beyond a reasonable doubt.

We assess federal constitutional errors under Chapman v. California (1967)

386 U.S. 18, 24 [87 S.Ct. 824] (Chapman). Under Chapman, we must reverse unless

the People “prove beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained.” (Ibid.) Where the trial court fails to instruct on an

element of the charged offense, however, the People must make a more substantial

showing. That showing is governed by Neder v. United States (1999) 527 U.S. 1, 17–19

[119 S.Ct. 1827] (Neder), and by the California Supreme Court’s decision interpreting

Neder, People v. Mil, supra, 53 Cal.4th 400—authority both parties fail to discuss.

“Neder instructs us to ‘conduct a thorough examination of the record. If, at the

end of that examination [we] cannot conclude beyond a reasonable doubt that the jury

verdict would have been the same absent the error—for example, where the defendant

21

contested the omitted element and raised evidence sufficient to support a contrary

finding—[we] should not find the error harmless.’ ” (Mil, supra, 53 Cal.4th at p. 417,

quoting Neder, supra, 527 U.S. at p. 19.) On the other hand, the error is harmless if the

People can prove beyond a reasonable doubt that the omitted element was uncontested

and supported by such overwhelming evidence that no rational juror could come to

a different conclusion. (Mil, supra, at pp. 417–419; accord, People v. French (2008)

43 Cal.4th 36, 53.)

Here, the People’s “analysis of the prejudicial effect of the instructional error

suggests” not only that they failed to apply Neder, but also that they “may have relied

instead on the less demanding standard of whether [the motive] finding was supported

by substantial evidence.” (Mil, supra, 53 Cal.4th at p. 417.) The People have not

addressed the evidence supporting the defense on the omitted element. Instead, as in

Mil, the People’s argument “focused exclusively on evidence that was favorable to the

verdict” and presented “the evidence in the light most favorable to the prosecution[.]”

(Id. at pp. 417–418.) In assessing prejudice, we must “determine ‘whether the record

contains evidence that could rationally lead to a contrary finding with respect to the

omitted element.’ ” (Id. at p. 417, quoting Neder, supra, 527 U.S. at p. 19.) Therefore,

our “task in analyzing the prejudice from the instructional error is” not to determine

whether a reasonable jury could have believed defendant acted with sexual motive, but

rather, “whether any rational fact finder could have come to the opposite conclusion.”

(Mil, at p. 418.) This is the converse of the substantial evidence test. If the record

shows some evidentiary basis for a finding in the defendant’s favor on the omitted

element, the People have not met their burden and we must reverse. (Id. at

pp. 417-419.)

Certainly, there was ample evidence defendant’s disturbing conduct in this case

was motivated by an unnatural sexual interest in children. However, under Mil, we

must determine whether there is substantial evidence supporting a contrary finding on

the omitted element. (Mil, supra, at pp. 417–419.) We therefore review the evidence in

the light most favorable to defendant; we may not reweigh the evidence or resolve

22

evidentiary conflicts. (Cf. People v. Young, supra, 34 Cal.4th at p. 1181 [substantial

evidence review].) The testimony of a single witness may be sufficient—even if there is

significant countervailing evidence, and the testimony is subject to justifiable suspicion.

(See People v. Barnwell, supra, 41 Cal.4th at p. 1052.) We conclude defendant’s

testimony was sufficient to support an alternative conclusion on the omitted element.

Defendant described hugging Hunter, Wyatt, Richard, and Larry in a nonsexual,

innocent way—“a simple expressing your feeling to a fellow human being” who had not

yet learned to fear feelings. If one of the boys scored a goal, defendant gave him

a celebratory hug. If one of them got in a fight, or got hurt, or cried, defendant gave

him a comforting hug. Defendant testified that his interactions with the brothers

showed a family friend’s “innocuous” affection for “good little kids.” He testified his

behavior was not motivated by anything “nefarious or sinister” and there were no

“sexual connotations attached to it.” This testimony, if believed, would have supported

a contrary finding on the omitted element. Because the People have not proven the

error was harmless beyond a reasonable doubt, we reverse the convictions for counts 6

through 9 and remand for retrial.

3. Failure to Admonish the Victim Support Person

At trial, Denzel (count 1), Ricardo (count 5), Larry (count 6), Hunter (count 7),

Wyatt (count 8), Richard (count 9), Jeremy (count 15), Bradley (count 24), and Jeremy’s

brother, Ryan, testified with the support of a victim advocate employed by the District

Attorney’s office, as permitted by section 868.5, subdivision (a). Defendant contends

the court erred “by failing to admonish the witness advocate to not prompt, sway, or

influence any of the testifying witnesses in any way.” Though he acknowledges the

record contains no evidence the victim advocate behaved improperly, he contends the

omission “allowed for a distorted presentation of evidence as to the disputed

crimes, . . . and deprived appellant of the constitutional due process and fair trial rights

to which he was entitled.” We conclude defendant has forfeited this issue by failing to

object below. In any event, we conclude the trial court was not required to admonish

the victim advocate, and no discernible prejudice arose from the support system used

23

here. Accordingly, we also reject defendant’s claim that the failure to object amounted

to ineffective assistance of counsel.

3.1 Forfeiture and Ineffective Assistance of Counsel

Though nine witnesses testified with the support of a victim advocate, defendant

did not object below that the court failed to admonish them. Nor did defendant object to

any other aspect of the victim-support procedure used at trial. As such, defendant

forfeited this claim by failing to present it at trial. (People v. Myles (2012) 53 Cal.4th

1181, 1214 (Myles).) However, defendant also argues, “[i]f this court concludes the

argument is forfeited because of no objection, then a finding of ineffective assistance of

counsel must follow.” We disagree.

Under either the federal or state constitution, “[t]he benchmark for judging any

claim of ineffectiveness must be whether counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having

produced a just result.” (Strickland v. Washington (1984) 466 U.S. 668, 686 [104 S.Ct.

2052] (Strickland).) To establish ineffective assistance, defendant must satisfy two

requirements. (Id. at pp. 690–692.) First, he must show his attorney’s conduct was

“outside the wide range of professionally competent assistance.” (Id. at p. 690.) Then,

he must demonstrate the deficient performance was prejudicial—i.e., there is

a reasonable probability that but for counsel’s failings, the result of the proceeding

would have been different. (Id. at p. 694.) “It is not sufficient to show the alleged

errors may have had some conceivable effect on the trial’s outcome; the defendant must

demonstrate a ‘reasonable probability’ that absent the errors, the result would have been

different.” (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.) We “need not

determine whether counsel’s performance was deficient before examining the prejudice

suffered by the defendant as a result of the alleged deficiencies.” (Strickland, supra, at

p. 697.) We therefore turn first to the merits of defendant’s argument.

3.2 The Support

Before trial, the prosecutor moved in limine to allow a professional victim

advocate employed by the District Attorney’s office to sit with the minor witnesses

24

while they testified. At the Evidence Code section 402 hearing that followed, the court

explained the procedure it would use: “That’s fine. [The witnesses will] be advised

ahead of time they can’t talk with [the victim advocate], just the comfort of having her

be there should be good. With the minors, she [will] sit right behind them. The deputy

will help us if you just let us know on that day what we need to do. The deputy will

help us, get that set up.” The court then asked if defense counsel had any objections.

Counsel replied, “That’s fine.” On the record before us, it appears the court did not

advise the advocate of her role, function, duty, or behavior.

At trial, as the witnesses testified, the prosecutor alerted the court when a witness

would be testifying with the support of a victim advocate. Ultimately, Denzel, Ricardo,

Larry, Hunter, Wyatt, Richard, Bradley, Jeremy, and Jeremy’s brother, Ryan, used their

services. Neither party asked the court to explain the presence of the victim advocate or

her role to the jury.

3.3 No admonition was required under the statute.

In prosecutions for certain violent crimes and sex offenses, including violations

of sections 288, 288.5, and 647.6, every prosecuting witness8 “shall be entitled, for

support, to the attendance of up to two persons” while he testifies. (§ 868.5, subd. (a).)

Only one support person may accompany the witness to the stand. (Ibid.)

A witness is entitled to choose his own support person, and sometimes picks

another prosecuting witness. Although this procedure could cause logistical and legal

problems, subdivisions (b) and (c) impose additional requirements where a support

person is also a witness. (§ 868.5, subds. (b), (c).) In those cases, the court must

determine whether the support person’s attendance is necessary; in juvenile cases, the

8

Section 868.5 uses the term “prosecuting witness” to refer to a witness entitled to

an emotional-support person when testifying at a trial for a specified violent crime or

sex offense. Ryan, who testified about defendant’s interactions with his brother Jeremy,

was not an alleged victim in this case. But because the term “prosecuting witness”

encompasses non-victim minor witnesses, Ryan was properly provided with a victim

advocate during his testimony. (People v. Adams (1993) 19 Cal.App.4th 412, 433–434

& fn. 7.)

25

court must inform her that the proceedings are confidential; and “[i]n all cases,” the

judge must admonish her not to “prompt, sway, or influence the [supported] witness in

any way.” (§ 868.5, subd. (b).) Defendant contends the admonition not to “prompt,

sway, or influence” must be given to all support people—not just witnesses—and

should have been given here. As a matter of first impression, we conclude the

admonition applies only to support people who are also witnesses.9

The meaning of in all cases in subdivision (b) is a “question[] of statutory

interpretation that we must consider de novo.” (People v. Prunty (2015) 62 Cal.4th 59,

71.) In construing the statute, our fundamental task is “to ascertain and effectuate the

intended legislative purpose. [Citation.] The text of the statute is our starting point, and

‘generally provide[s] the most reliable indicator’ of the Legislature’s intended purpose.”

(Id. at p. 72.) “ ‘We give the language its usual and ordinary meaning, and “[i]f there is

no ambiguity, then we presume the lawmakers meant what they said, and the plain

meaning of the language governs.” [Citation.] If, however, the statutory language is

ambiguous, “we may resort to extrinsic sources, including the ostensible objects to be

achieved and the legislative history.” [Citation.] Ultimately we choose the construction

that comports most closely with the apparent intent of the lawmakers, with a view to

promoting rather than defeating the general purpose of the statute. [Citations.]’ ”

(Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 321.)

As discussed, section 868.5, subdivision (a) sets out the general rule that in

sex-crime cases, prosecuting witnesses are entitled to the support of two people—one of

whom may accompany the witness to the stand. Subdivision (b) adds additional

requirements: “If the person or persons so chosen are also witnesses, the prosecution

9

People v. Spence, which concerned whether a therapy dog is a “person” under

section 868.5, assumed—but did not hold—that the court must admonish the support

person regardless of whether she is also a prosecuting witness. (People v. Spence

(2012) 212 Cal.App.4th 478, 514 (Spence).) However, Spence does not explain this

view, and in any event, “ ‘an opinion is not authority for a proposition not therein

considered.’ ” (People v. Williams (2005) 35 Cal.4th 817, 827.)

26

shall present evidence that the person’s attendance is both desired by the prosecuting

witness for support and will be helpful to the prosecuting witness. Upon that showing,

the court shall grant the request unless [it would prejudice the defendant]. In the case of

a juvenile court proceeding, the judge shall inform the support person or persons that

juvenile court proceedings are confidential and may not be discussed with anyone not in

attendance at the proceedings. In all cases, the judge shall admonish the support person

or persons to not prompt, sway, or influence the witness in any way.” (§ 868.5,

subd. (b), emphasis added.)

“Words and phrases in a statute are construed according to the rules of grammar

and common usage.” (3 Sutherland Statutory Construction (7th ed., rev. Apr. 2014)

§ 59.8.) The requirements that the court admonish the support person in juvenile cases

and that it do so in all cases were added to the statute together when the Legislature

amended it in 1987, and are grammatically linked. (Stats.1987, ch. 704 (A.B. 1068),

§ 1.) Together, the sentences require the court: (1) in juvenile cases, to inform the

support person that the proceedings are confidential, and (2) in both juvenile cases and

non-juvenile cases, to admonish the support person not to influence the witness.

(Cf. Gutierrez v. Ada (2000) 528 U.S. 250, 254–255 [interpreting phrase “any election”

to mean any gubernatorial election, based on surrounding sentences].) In context, in all

cases distinguishes not the beginning of the paragraph (“If the [support] person . . . [is]

also a witness . . . ”), but the previous sentence. That is, the language differentiates not

the type of support person, but the type of case.

The statute’s structure supports this construction. Although we look first at the

words of a statute, we do not consider the statutory language in isolation; rather, we read

the statute “as a whole, harmonizing the various elements by considering each clause

and section in the context of the overall statutory framework.” (People v. Jenkins

(1995) 10 Cal.4th 234, 246.) We construe all parts of a statute together, without

according undue importance to a single or isolated portion. (Cooley v. Superior Court

(2002) 29 Cal.4th 228 (Cooley).) Subdivision (a) explains which witnesses are entitled

to support, who the support person may be, and how she may behave. For example,

27

a member of the press may not act as a support person unless she is closely related to

the witness, in which case the reporter may act as a support person but may not take

notes. (§ 868.5, subd. (a).) Subdivision (b) establishes additional pretrial procedures

where the support person is also a witness. Then, subdivision (c) creates trial

procedures for the testimony of the supported witness and supporting witness. Had the

Legislature wanted the court to admonish all support people, witness and non-witness

alike, it would have made little sense, logically or grammatically, to include that

requirement amidst the witness-specific provisions in subdivisions (b) and (c), rather

than with the general requirements in subdivision (a). (See People v. Johns (1997)

56 Cal.App.4th 550, 554–555 (Johns) [no showing of helpfulness required under

subd. (b) because victim advocate was not a witness].) Since the support people in this

case did not testify, the court did not err by failing to admonish them.

3.4. Defendant’s constitutional rights were not violated.

Notwithstanding the statutory language limiting the admonitions to support

persons who are also witnesses, the warnings may be more broadly required if they are

necessary to protect the constitutional rights of the accused. (People v. Patten (1992)

9 Cal.App.4th 1718, 1725–1727 (Patten).) However, we find the use of the victim

advocate in this case did not violate defendant’s constitutional rights. A support

person’s mere presence with a testifying witness does not violate the defendant’s due

process or Confrontation Clause rights. (Spence, supra, 212 Cal.App.4th at p. 514,

citing Myles, supra, 53 Cal.4th at pp. 1214-1215.) Certainly, we acknowledge there

may be a constitutional violation where the support person interferes with the witness’s

testimony in a way that adversely affects the jury’s ability to assess that testimony.

(Spence, supra, at p. 514.) For example, emotional displays or physical contact with the

witness may signal to the jury that the support person believes or endorses the witness’s

testimony. (Myles, supra, at pp. 1214–1215.) And though there is a split of authority on

the issue, at least one court has held the Confrontation Clause requires a case-specific

finding of need in every case. (Compare People v. Adams, supra, 19 Cal.App.4th at

pp. 437–444 [case-specific finding required in all cases] with Patten, supra,

28

9 Cal.App.4th at pp. 1725–1727 [finding not required in every case] and Johns, supra,

56 Cal.App.4th at pp. 554–555 [no showing of helpfulness required to justify presence

of non-witness support person].)

To the extent admonishing a support person not to “prompt, sway, or influence

the witness in any way” helps the court avoid potential constitutional pitfalls,

admonitions would have been appropriate in this case. However, as Spence observed,

“[a]lthough it would have been the better practice for the trial court to expressly make

standard admonitions under section 868.5 that this support person should not do

anything to sway or influence the witness, the court could logically have assumed that it

was not necessary to do so, because the non[-]witness victim advocate from the District

Attorney’s office was presumably familiar with courtroom decorum rules.” (Spence,

supra, 212 Cal.App.4th at pp. 517–518.) Here, it was understandable that the court

focused on instructing the children, who presumably had much less experience with

court procedures than the professional victim advocate employed by the District

Attorney’s office. We find no constitutional violation.

3.5 Any error was harmless.

Even assuming the failure to explain courtroom decorum to a professional victim

advocate could “deprive[] appellant of the constitutional due process and fair trial rights

to which he was entitled,” defendant has failed to show error in this case. To establish

a due process violation, the record must clearly identify the support person, where she

sat, and how she behaved during the witness’s testimony. (Myles, supra, 53 Cal.4th at

pp. 1214–1215.) Defendant acknowledges the record in this case does not contain the

required information, but makes no effort to explain how the omission harmed him.

Instead, defendant launches into a lengthy non sequitur that juxtaposing the terms

“People” and “defendant” prejudicially implies the accused is non-human. We note that

any objections to the nomenclature used at trial should have been raised below. If

defendant wished to be called by some other term, the proper procedure was to bring

a motion in limine. (See, e.g., Giarrusso, The General and Captain Justice (2014)

61 La. B.J. 392 [suggesting “Citizen Accused” and “that innocent man” as alternatives

29

to “defendant”].) In any event, we conclude there is no reasonable probability the result

in this case would have been different if the court had admonished the support person.

(See Strickland, supra, 466 U.S. at pp. 694, 697.) Accordingly, counsel was not

ineffective for failing to object. (Id. at pp. 690–694.)

4. Defendant’s conviction for count 14, and sentences for counts 2

and 12 violate the Ex Post Facto Clause.

The parties agree that defendant’s count 14 conviction for committing a lewd act

on a child (§ 288, subd. (c)(1); Alexis), and the one-strike sentences imposed for

continuous sexual abuse as charged in counts 2 and 12 (§ 288.5; Garrett and Cory)

violate the ex post facto clauses of the United States and California constitutions.

Defendant also contends the one-strike sentences imposed for continuous sexual abuse

as charged in counts 13 and 20 (§ 288.5; Ammon and Thomas) are unauthorized. The

People argue that because counts 13 and 20 concern conduct that continued after the

One Strike Law was amended in 2006 to include violations of section 288.5, they fall

within the straddle-offense exception to the Ex Post Facto Clause. Neither party notes

that the failure to submit the question to the jury violated defendant’s Sixth Amendment

right to a jury trial under Apprendi v. New Jersey and its progeny. (Apprendi v.

New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348] (Apprendi).) We nevertheless

conclude the People have proven the error was harmless beyond a reasonable doubt.

Accordingly, as we explain below, we reverse defendant’s conviction for

count 14, affirm the sentences for counts 13 and 20, vacate the indeterminate sentences

imposed for counts 2 and 12, and remand with directions to sentence defendant to

authorized determinate terms for counts 2 and 12.

4.1 The Ex Post Facto Clause

The United States Constitution and the California Constitution proscribe ex post

facto laws. (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9.) Under both constitutions,

“[l]egislatures may not retroactively alter the definition of crimes or increase the

punishment for criminal acts.” (Collins v. Youngblood (1990) 497 U.S. 37, 42–43

[110 S.Ct. 2715]; People v. Grant (1999) 20 Cal.4th 150, 158 (Grant).) We interpret the

30

California Constitution’s Ex Post Facto Clause coextensively with its federal

counterpart. (People v. Snook (1997) 16 Cal.4th 1210, 1220.)

We may correct an unauthorized sentence on appeal despite failure to object

below. (People v. Scott (1994) 9 Cal.4th 331, 354.) A sentence is unauthorized if “it

could not lawfully be imposed under any circumstance in the particular case.” (Ibid.)

4.2 Section 288, subdivision (c) did not exist on June 8, 1988,

the last day on which defendant could have committed the crime.

Defendant was charged in count 14 with committing a lewd act on Alexis when

she was 14 or 15 years old and he was more than 10 years older than she (§ 288,

subd. (c)(1)). The prosecution alleged the lewd act occurred on or between June 9, 1983

and June 8, 1988. Defendant contends his conviction for count 14 was barred by the

statute of limitations, supported by insufficient evidence, based on conduct that did not

violate the statute, and based on sexual intercourse with his lawful wife. In response,

the People concede the count 14 conviction should be reversed, but only because the

charged crime did not exist on June 8, 1988, and the conviction therefore violates the

Ex Post Facto Clause.10

Before September 27, 1988, section 288 comprised two distinct crimes—

subsections (a) and (b), both of which prohibited lewd acts on children younger than 14.

(§ 288 (West 1988).) Subdivision (c) was added to punish lewd acts on 14- or

15-year-old children; it was approved on September 26, 1988, and filed the next day.

(Stats.1988, ch. 1398 (A.B. 3835), § 1.) Therefore, on June 8, 1988—the day before

Alexis’s 16th birthday, and the last day on which defendant could have violated

10

Because we agree with the People on this point, we do not address defendant’s

additional challenges to his count 14 conviction, including his allegations that the

prosecutor abused the charging function and misstated the law during argument, and

that defense counsel was ineffective for failing to object. In not addressing these

additional challenges, we do not condone what happened here. We are always troubled

when a criminal defendant is charged with and convicted of a crime that did not exist

when it was allegedly committed. A statute’s effective date is not a mere technicality; it

is fundamental to due process.

31

subdivision (c)—subdivision (c) did not yet exist. Because section 288 did not prohibit

defendant’s conduct until after Alexis’s 16th birthday, we conclude defendant’s count 14

conviction violates the Ex Post Facto Clause. We therefore reverse the conviction for

count 14. It may not be retried.

4.3 Section 288.5 did not become a one-strike offense until 2006.11

Enacted in 1994, California’s One Strike Law, section 667.61, requires

indeterminate life sentences for enumerated sex offenses committed under certain

aggravating circumstances. (§ 667.61, subd. (b).) Effective September 20, 2006, the

One Strike Law was amended to apply to defendants convicted of continuous sexual

abuse of a child (§ 288.5). (Stats.2006, ch. 337 (S.B.1128), § 33.) However, before

2006, section 288.5 was not a one-strike offense. (See Stats.1993–94, 1st Ex.Sess.,

ch. 14 (S.B.26), § 1 [1994 version]; Stats.1997, ch. 817 (A.B.59), § 6 [1997 version];

Stats.1998, ch. 936 (A.B.105), § 9 [1998 version].) The indeterminate life sentences

now prescribed by section 667.61 greatly exceed the determinate sentences of 6, 12, or

16 years previously available for violations of section 288.5.12 Thus, the Ex Post Facto

Clause prohibits sentencing defendants under the One Strike Law for section 288.5

violations committed before September 20, 2006. (See People v. Hiscox (2006)

136 Cal.App.4th 253, 257–262 [applying Ex Post Facto Clause to § 288 violations].)

Here, the jury convicted defendant of five counts of continuous sexual abuse of

a child (§ 288.5), and found multiple-victim allegations true for each count. The

prosecutor requested, and the court imposed, five consecutive terms of 15 years to life

under the One Strike Law. However, four of the five counts concerned conduct that

11

At our request, the parties submitted letter briefs discussing this issue after the

normal briefing period had expired.

12

Section 288.5 was adopted in 1989 with a sentencing triad of 6, 12, or 16 years.

(Stats.1989, ch. 1402, § 4.) Though it has been amended since then, the determinate

sentencing triad has not changed. (See People v. Riskin (2006) 143 Cal.App.4th 234,

246.)

32

entirely (counts 2 and 12) or partially (counts 13 and 20) occurred before the 2006

amendment.

a. Offenses Committed Before 2006

In count 2, defendant was convicted of continuous sexual abuse of Garrett “[o]n

or between January 1, 1994 and December 31, 2004.” In count 12, defendant was

convicted of continuous sexual abuse of Cory “[o]n or between January 1, 1997 and

December 1, 2004.” Defendant argues, and the People concede, that because these

crimes could not have occurred after the 2006 amendment to section 667.61, the

one-strike sentences imposed for those counts are unauthorized. (See People v. Palmer

(2001) 86 Cal.App.4th 440, 443 [noting § 288.5 was not a qualifying offense in 2001].)

We therefore vacate the indeterminate sentences imposed for counts 2 and 12, and

remand for imposition of authorized determinate terms.

b. Offenses Committed Before and After 2006

Count 13 charged defendant with continuous sexual abuse of Ammon “[o]n or

between November 7, 2001 and November 6, 2010.” Count 20 charged defendant with

continuous sexual abuse of Thomas “[o]n or between September 27, 2005 and

September 26, 2007.” Because he could have completed these acts before the 2006

amendment to the One Strike Law, defendant contends his indeterminate sentences for

those counts violate the Ex Post Facto Clause. The People argue that because

section 288.5 prohibits a continuous course of conduct rather than a series of individual

acts, the crimes were incomplete until the abuse ended; because the sexual abuse of

Ammon and Thomas continued after the One Strike Law was amended in 2006,

counts 13 and 20 fall under the straddle-offense exception to the Ex Post Facto Clause.

In general, “a law is retroactive only if it attaches new legal consequences to, or

increases a party’s liability for, an event, transaction, or conduct that was completed

before the law’s effective date. [Citations.] Thus, the critical question for determining

retroactivity usually is whether the last act or event necessary to trigger application of

the statute occurred before or after the statute’s effective date.” (People v. Grant, supra,

20 Cal.4th at p. 157.) “ ‘A continuous course of conduct offense cannot logically be

33

“completed” until the last requisite act is performed. Where an offense is of

a continuing nature, and the conduct continues after the enactment of a statute, that

statute may be applied without violating the ex post facto prohibition.’ ” (Id. at p. 159)

Section 288.5 punishes a continuous course of conduct, not three or more constituent

acts. (Id. at p. 159.) Therefore, in Grant, the court found no ex post facto violation

where the continuous sexual abuse began before, and continued after, the effective date

of section 288.5. (Id. at pp. 157–159.) The Grant court was able to make that

determination because the trial court instructed the jury that it could not convict unless

at least one act of abuse occurred after the statute’s effective date. (Id. at pp. 157–158.)

Unlike the jury in Grant, however, the jury in this case was not instructed that at least

one act of abuse must have occurred after the 2006 amendment to the One Strike Law.

This was error.

In Apprendi, the United States Supreme Court held, “[o]ther than the fact of

a prior conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” (Apprendi, supra, 530 U.S. at p. 490.) In Blakely v. Washington, the Court

explained that the “ ‘statutory maximum’ for Apprendi purposes is the maximum

sentence a judge may impose solely on the basis of the facts reflected in the jury verdict

or admitted by the defendant.” (Blakely v. Washington (2004) 542 U.S. 296, 303

[124 S.Ct. 2531] (Blakely).) And, in Alleyne v. United States, the Court extended that

reasoning to mandatory minimum sentences like those required under the One Strike

Law, holding, “[a]ny fact that increases the mandatory minimum is an ‘element’ that

must be submitted to the jury and found beyond a reasonable doubt.” (Alleyne v.

United States (June 17, 2013) __ U.S. __ [133 S.Ct. 2151, 2155] (Alleyne).)

Under Apprendi, Blakely, and Alleyne, any fact that increases a defendant’s

minimum or maximum sentence is an element of the offense that must be submitted to

the jury. (See Alleyne, supra, 133 S.Ct. at pp. 2155, 2157–2158.) Under Grant,

defendant is eligible for one-strike sentencing only if the continuous sexual abuse of

Ammon and Thomas continued beyond September 20, 2006 the effective date of the

34

2006 amendment; if the abuse ended before that date, defendant’s indeterminate

sentence violates the Ex Post Facto Clause. Because the date of the last act of sexual

abuse increased defendant’s mandatory minimum and maximum sentences, the date was

an element of each charged crime. The court’s failure to instruct that at least one

instance of sexual abuse had to occur on or after September 20, 2006, therefore, is

federal constitutional error comparable to the omission of an element, and is subject to

Chapman-Neder harmless error review. (Washington v. Recuenco (2006) 548 U.S. 212,

222 [126 S.Ct. 2546].)

As discussed, under Mil and Neder, the failure to instruct on an element of the

offense is harmless if the People prove beyond a reasonable doubt that no substantial

evidence supports a contrary finding on the omitted element. (Mil, supra, 53 Cal.4th

pp. 417–419; Neder, supra, 527 U.S. at pp. 17–19.) We conclude the People have

carried their burden. There is overwhelming evidence the abuse of both boys continued

well after the 2006 amendment to the One Strike Law—and though defendant denied

molesting Thomas and Ammon, he did not contest the dates of abuse. Therefore, he did

not contest the omitted element of the crimes charged in counts 13 and 20.

In count 13, the information charged defendant with continuous sexual abuse of

Ammon “[o]n or between November 7, 2001 and November 6, 2010.” In 2004, Ammon

was sleeping over at defendant’s house nearly every weekend—and defendant molested

him on nearly every visit. During those visits, defendant touched Ammon’s penis, put

his mouth on Ammon’s penis, and masturbated Ammon and himself. Ammon testified

that the abuse continued after defendant moved to Quartz Hills in early 2006, and lasted

until at least 2010, when defendant began coaching the Red Devils.

Defendant’s testimony is consistent with Ammon’s account. Defendant testified

that he sent Ammon a letter sometime before Ammon moved to Las Vegas. In the letter,

defendant wrote that he would always love Ammon “all the numbers,” an expression

defendant says he invented with Jeremy. Thus, under defendant’s version of events, the

letter must have postdated defendant’s summer 2010 acquaintance with Jeremy.

Defendant also testified that he wrote the letter because he hurt Ammon’s feelings by

35

spending more time with Enrique, Eduardo, and their brothers, and less time with

Ammon: “Shortly after this period [when defendant rejected him], [Ammon] had to

move away and I didn’t want him to move away having this ill feeling towards me.” In

sum, because defendant’s testimony establishes the letter was written “shortly after” he

rejected Ammon, and could not have been written before summer 2010, when he met

Jeremy, defendant could not have rejected Ammon before September 20, 2006.

Therefore, defendant did not present substantial evidence to support a contrary finding

on the omitted element—i.e., that the abuse ended before the 2006 amendment to the

One Strike Law. Because the People have “prove[n] beyond a reasonable doubt that the

error complained of did not contribute to the verdict obtained” (Chapman, supra,

386 U.S. at p. 24), we affirm the one-strike sentence for count 13.

Count 20 of the information charged defendant with continuous sexual abuse of

Thomas “[o]n or between September 27, 2005 and September 26, 2007.” Thomas met

defendant when he was nine years old, and in Ammon’s fourth grade class—sometime

between October 2005 and June 2006. He went to defendant’s house two or three times

each week until sixth grade, which he was scheduled to begin in 2007. Every time

Thomas visited defendant, defendant sat Thomas on his lap, reached his hand into

Thomas’s pants, and stroked his penis and buttocks. Defendant put his fingers around

Thomas’s anus and kissed his neck. The abuse continued as long as Thomas spent time

at defendant’s house; when Thomas stopped going to see defendant, the abuse stopped.

In 2007, Thomas failed fifth grade, and Ammon moved away. Thomas did not visit

defendant without Ammon.

Defendant testified Thomas visited his house only once, and defendant never

touched him inappropriately. However, the jury could not have convicted defendant of

continuous sexual abuse of Thomas without finding at least three sexual acts—and there

was no basis for the jury to find three acts without also determining defendant molested

Thomas until he lost touch with Ammon in 2007. Accordingly, we conclude defendant

did not present sufficient evidence to support a finding that the abuse ended before the

2006 amendment to the One Strike Law, and the People have “prove[n] beyond

36

a reasonable doubt that the error complained of did not contribute to the verdict

obtained.” (Chapman, supra, 386 U.S. at p. 24.)

5. The court properly imposed consecutive one-strike sentences.

At sentencing, the court imposed consecutive terms of 15 years to life for

defendant’s convictions of continuous sexual abuse in counts 1, 2, 12, 13, and 20

(§ 288.5; Denzel, Garrett, Cory, Ammon, and Thomas) and lewd act on a child younger

than 14 in counts 15, 23, and 24 (§ 288, subd. (a); Jeremy, Justin, and Bradley).

Defendant contends, “[i]n imposing the consecutive sentences on these counts, there is

nothing in the record from which it may be reasonably concluded . . . the trial court

wasn’t simply acquiescing to what it perceived as a mandatory sentence rather than

exercising its discretion.” Because we reverse count 1 for insufficient evidence and

conclude the One Strike Law does not apply to counts 2 and 12, defendant’s argument is

moot as to those counts. As to counts 13, 15, 20, 23, and 24, we conclude defendant has

forfeited this claim. (Scott, supra, 9 Cal.4th at p. 353 [forfeiture rule applied to claim

the trial court failed “to properly make or articulate its discretionary sentencing

choices”].) We also conclude the record contains abundant evidence that the court

exercised its discretion to impose the maximum allowable sentence. Because it is not

reasonably probable the result would have been different if counsel had objected,

counsel was not ineffective for failing to do so. (Strickland, supra, 466 U.S. at pp. 694,

697.)

Defendant is correct that the court had discretion to impose concurrent, rather

than consecutive, one-strike sentences in this case. (People v. Valdez (2011)

193 Cal.App.4th 1515, 1524.) However, defendant is mistaken that we must reverse

because the record does not affirmatively show the court understood this discretion.

“The general rule is that a trial court is presumed to have been aware of and followed

the applicable law.” (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) This

“presumption of regularity of judicial exercises of discretion appl[ies] to sentencing

issues.” (Ibid.) Indeed, in every case defendant cites, the record affirmatively

demonstrated the trial court’s misunderstanding of its discretionary sentencing options.

37

(See, e.g., People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1260–1261 [court

expressed its belief that it lacked discretion to impose concurrent one-strike sentences].)

Here, the record contains no indication the court believed it lacked discretion to impose

concurrent sentences.

To the contrary, the sentencing transcript reveals the court’s sentencing choices

were guided by empathy for the victims and grounded in the court’s view, “[b]ased on

the defendant’s actions supported by the jury’s verdicts, defendant Renoir Valenti poses

a serious threat to the safety of not only the Antelope Valley, but to all young people.”

The court’s concern for the victims is reflected in the care it took to assure defendant

would appear in court to hear the eight victim-impact statements presented at

sentencing. The judge warned defendant in advance, “Every one [of] these people have

an opportunity and have a right to make a victim impact statement, and I want you to be

here so they can look at you and say what they have to say, if they choose to do

so. . . . These people have been through a lot for many, many years, and they deserve to

have you present for them to make their victim impact statements.” The court also

signed a conditional extraction order, which allowed the sheriff to bring defendant to

court by force if he refused to come voluntarily.

After hearing the victims’ statements and counsel’s arguments, the court

addressed defendant at length. The remarks expressed deep compassion for the victims,

and concluded, “You, sir, I would hope for the rest of your days, learn how to try to

understand how you could hurt so many and use the many years that you will find

yourself in prison making something of yourself in a productive manner and hopefully

never harm another person again. In this case you will have a lifetime in prison to

figure that out.”

On this record, there is no reasonable probability that the court would have

imposed any sentence other than the maximum allowable term if counsel had objected.

(Strickland, supra, 466 U.S. at p. 694.) We conclude counsel was not ineffective.

38

6. Noneconomic Restitution (§ 1202.4, subd. (f)(3)(F))

At sentencing, the court awarded noneconomic restitution to each victim of

defendant’s continuous sexual abuse (§ 288.5; counts 1–2, 12–13, 20) and lewd acts

(§ 288, subd. (a); counts 15, 23, 24) under section 1202.4, subdivision (f)(3)(F).

Defendant contends the restitution order is improper in five related ways—the statute

deprives him of the right to a civil jury trial under the California Constitution; the

statute deprives him of his Sixth Amendment right to a jury trial under Apprendi; the

statute violates the Equal Protection Clause by irrationally distinguishing between child

predators; the sums awarded are not sufficiently related to the victims’ individual losses;

and as to the section 288.5 counts, noneconomic restitution is not authorized by statute.

The People concede, and we agree, that section 1202.4, subdivision (f)(3)(F)

does not authorize noneconomic damage awards to the section 288.5 victims (counts 1

[Denzel], 2 [Garrett], 12 [Cory], 13 [Ammon], and 20 [Thomas]). As to the remaining

noneconomic damage awards (counts 15 [Jeremy], 23 [Justin], and 24 [Bradley]), we

conclude the People did not present sufficient evidence to justify the awards. We

therefore reverse the entire noneconomic restitution order and remand with directions to

hold a restitution hearing to determine appropriate victim-specific damages for counts

15, 23, and 24.

6.1 Proceedings Below

In requesting noneconomic restitution, the prosecutor argued: “Pursuant to

People v. Smith [(2011) 198 Cal.App.4th 415 (Smith)] and the Penal Code, the court is

allowed to award restitution to victims in 288 type cases based upon noneconomic

damages or it’s akin to punitive damages in the amount of at least $50,000 per year of

sexual abuse. [¶] The court can make a determination based upon the witnesses’

testimony at trial. And this court and this judge heard the testimony of these individuals

and based upon their testimony and based upon the abuse and the emotional damage he

caused upon those victims, those are the amounts we’d ask for the victims.” The

defense objected: “I’m not opposed to restitution. I think the law allows for it.

However, I think the figures that Mr. [Prosecutor] has given us are arbitrary. We have

39

no foundation for the amounts. So I don’t know how he’s arrived at those amounts or

how the court is going to arrive at an amount, but these are just figures that are thrown

out with no basis. [¶] So based upon that, I would object to—not the idea of restitution,

but the amounts as proposed.”

Then, without further argument or explanation, the court ordered defendant to

pay $450,000 in noneconomic restitution. “[B]ased on People v. Smith,

198 Cal.App.4th 415, a 2011 case, and Penal Code section 1202.4,” the court ordered

“the following restitution to the victims as noneconomic damages based on their pain

and suffering, and from what the court heard as to their pain and suffering as well as the

consideration of statements made on behalf of their family members: [¶] Garrett M.,

$100,000. Justin B., $50,000. Cory D., $50,000. Ammon C., $50,000. Jeremy S.,

$50,000. Thomas C., $50,000. Justin B., $50,000. Bradley T., $50,000.” In awarding

noneconomic damages, the trial court inadvertently omitted Denzel (§ 288.5; count 1),

but awarded $50,000 to Justin twice. On April 13, 2015, the court realized its error and

corrected it nunc pro tunc by deleting the duplicative Justin entry and replacing it with

a $50,000 award to Denzel.

6.2 Restitution for Noneconomic Losses

Article I, section 28, subdivisions (b)(13)(A)–(C) of the California Constitution

require “that restitution must [be] imposed ‘in every case . . . in which a crime victim

suffers a loss[.]’ ” (People v. Giordano (2007) 42 Cal.4th 644, 655 (Giordano).) To

implement this broad mandate, “ ‘[t]he Legislature has enacted, and frequently

amended, a bewildering array of responsive statutes’ ” (id. at p. 652), but typically,

“[a] restitution order reimburses only for economic losses [citation], not noneconomic

losses, which can be recoverable in a civil judgment.” (Vigilant Ins. Co. v. Chiu (2009)

175 Cal.App.4th 438, 445 (Chiu).) However, there is one exception. Section 1202.4,

subdivision (f)(3)(F) requires trial courts to order restitution where victims have

suffered “[n]oneconomic losses, including, but not limited to, psychological harm, for

felony violations of Section 288.” Defendant contends, and the People concede, victims

40

of continuous sexual abuse are ineligible for noneconomic restitution under this

provision. We agree.

The plain language of section 1202.4, subdivision (f)(3)(F) limits noneconomic

restitution awards to “felony violations of Section 288.” It does not include

section 288.5. Defendant was charged with and convicted of continuous sexual abuse of

Denzel, Garrett, Cory, Ammon, and Thomas, in violation of section 288.5. He was not

charged with or convicted of violating section 288. “Sections 288 and 288.5 are

not . . . interchangeable statutes.” (People v. Palmer, supra, 86 Cal.App.4th at p. 445;

see id. at pp. 443–446 [rejecting argument that One Strike Law’s inclusion of

section 288 implicitly includes section 288.5].) Therefore, contrary to the prosecutor’s

representations below, the court was not “allowed to award restitution to victims in

288[-]type cases.” “It is not our job to insert language in a statute which is not there.

Had the Legislature wanted to include section 288.5” in the restitution statute, “it was

capable of doing so. It did not. The People’s remedy lies with the Legislature and that

body’s power to amend the law, not with us, because we are charged with enforcing

statutes as they are written,” not as the prosecutor wishes they were written. (Id. at

p. 446.) We therefore reverse the restitution awards for noneconomic damages to

Garrett, Cory, Ammon, and Thomas.13

6.3 There is no rational basis for the court’s $50,000 awards to

Jeremy, Justin, and Bradley.

Section 1202.4 does not provide guidelines for evaluating a child victim’s

noneconomic damages for sexual abuse. Unlike economic damages, which encompass

“objectively verifiable monetary losses” (Civ. Code, § 1431.2, subd. (b)(1)),

noneconomic damages compensate the victim for “subjective, nonmonetary losses

including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional

distress, loss of society and companionship, loss of consortium, injury to reputation and

13

This issue is moot as to Denzel because we reverse defendant’s count 1

conviction for insufficient evidence.

41

humiliation.” (Civ. Code, § 1431.2, subd. (b)(2); see Smith, supra, 198 Cal.App.4th at

p. 431.) The trial court has broad discretion to choose a method for calculating the

amount of restitution, but it must employ a procedure that is rationally designed to

determine the victim’s losses. (Giordano, supra, 42 Cal.4th at pp. 663–664.) The court

“must demonstrate a rational basis for its award, and ensure that the record is sufficient

to permit meaningful review. The burden is on the party seeking restitution to provide

an adequate factual basis for the claim.” (Id. at p. 664.)

Here, the People’s sentencing memorandum cited to Smith and listed the

requested sums, apparently reached by multiplying each victim’s years of abuse by

$50,000. The People did not submit any support for the figures, or attempt to explain

why the same formula should apply to each victim, despite their vastly different

experiences. The record contains no victim declarations, independent documentation, or

professional evaluations. The only current information about Jeremy, Bradley, and

Justin was filtered through their parents and conveyed in the probation report or in

a statement at sentencing. None of these statements provided a basis for the court’s

$50,000 award.

Jeremy’s mother told the probation officer she “thanked God her son (victim) did

not sustain actual child abuse.” She believed that ultimately learning defendant had

a sexual interest in him was confusing to Jeremy, and made him feel betrayed and

embarrassed. However, Jeremy had not expressed his true feelings or discussed them

with his mother. At sentencing, Jeremy’s mother suggested Jeremy “will suffer

ramifications,” from his parents’ poor judgment, but did not expand on that belief.

Bradley was “doing fine.” The probation officer reported his mother had “not

noticed any emotional scars. Thankfully she believes the defendant never committed

sexual abuse on him and only hugged him, it may have been nothing inappropriate. He

is not attending counseling and [she] believes he has moved on from this.” Bradley’s

father told the probation officer and the court that he did not know how defendant’s

actions would impact Bradley, but was committed to getting Bradley any help he might

need in the future. At sentencing, Bradley’s father expressed his own feelings of failure

42

as a parent, and emphasized that Bradley did not need defendant to provide him with

a better life.

The probation officer did not speak with Justin’s family because the family’s

contact “information was not provided[,] as it is the District Attorney’s desire to afford

the victims as much privacy as possible.” However, at the sentencing hearing, Justin’s

mother said her son was “excellent,” and defendant had not succeeded in destroying him

or their family.

Based on this record, the court’s only apparent basis for awarding $50,000 to

Jeremy, Bradley, and Justin was the Third District’s opinion Smith. In that case, after

a contested restitution hearing, the trial court ordered the defendant to pay the victim

$750,000 as noneconomic restitution for 15 years of abuse—or $50,000 per year.

(Smith, supra, 198 Cal.App.4th at p. 432.) The evidence at trial had established the

defendant molested the victim, and the evidence at the restitution hearing proved that

from the time the she was eight years old until she left home as an adult, the defendant

isolated her and took advantage of a position of trust. (Ibid.) Critically, the Smith

victim also established serious, non-speculative, emotional harm. At age 30, the victim

was still having nightmares and flashbacks to the abuse. (Ibid.) She had spent years in

therapy, could not keep a job, and had still not finished her education at Folsom Lake

College; she had twice attempted suicide by overdosing on pills. (Ibid.) Based on that

evidence, the Smith court upheld the $750,000 restitution award. Contrary to the

representations of the prosecutor in this case, however, Smith did not hold that all

victims in “288[-]type cases” are entitled to noneconomic restitution of “at least

$50,000 per year of sexual abuse.” Nor did Smith hold that noneconomic damages are

“akin to punitive damages.” To the contrary, the Smith court concluded noneconomic

restitution is not punishment.

In sum, the court in this case did not find facts, cite reliable evidence, or even

explain how it arrived at the amount of restitution awarded to each victim. There was

no evidence, either through direct testimony or victim-impact statements, that the

children suffered nightmares or flashbacks, that they were having trouble in school or

43

problems making friends, that they had considered harming themselves or others, or that

they had sought or received counseling in any form. In fact, all three families were

relieved that their sons had not “actually” been abused. Because the court did not

“demonstrate a rational basis for its award” or “ensure that the record is sufficient to

permit meaningful review,” we reverse the awards for counts 15, 23, and 24, and

remand with directions to hold a restitution hearing. (Giordano, supra, 42 Cal.4th at

p. 664.)14

7. Defendant is limited to 15% local conduct credit.

A sentence is unauthorized “where it could not lawfully be imposed under any

circumstance in the particular case [such as] . . . where the court violates mandatory

provisions governing the length of confinement.” (Scott, supra, 9 Cal.4th at p. 354.)

A sentence that awards custody credits exceeding statutory limits is unauthorized, and

may be corrected whenever the error is discovered. (People v. Acosta (1996)

48 Cal.App.4th 411, 428, fn. 8.)

Defendant was awarded 1,241 days of pretrial custody credit—621 days actual

credit and 620 days local conduct credit. Under section 2933.1, if the defendant is

convicted of a “violent felony” listed in section 667.5, subdivision (c) and is sentenced

to state prison, both pre-sentence and post-sentence conduct credits are limited to

15 percent. (§ 2933.1, subd. (c) [15% limit on conduct credits where defendant

convicted of a violent felony]; People v. Ramos (1996) 50 Cal.App.4th 810, 816–817

[15% limited to largest whole number; no credit for partial days].) Sections 288.5 and

288, subdivision (a) are both violent felonies. (§ 667.5, subds. (c)(6), (16).) Likewise,

any defendant “required to register as a sex offender” is excluded from enhanced credit

14

Because after holding a restitution hearing on remand, the court might not award

noneconomic restitution, we do not reach defendant’s additional challenges to

section 1202.4, subdivision (f)(3)(F), including his constitutional claims. (People v.

Brown (2003) 31 Cal.4th 518, 534 [“It is well established that we do not reach

constitutional questions unless absolutely required to do so to dispose of the matter

before us.” (internal quotation marks omitted)].)

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provisions. (§ 4019, subds. (b)(2), (c)(2); § 2933, subd. (e)(3).) Because, by its terms,

section 2933.1 applies to the offender rather than the offense, the statute limits a violent

felon’s conduct credits for all counts of conviction, regardless of whether every count

falls under section 667.5. (People v. Palacios (1997) 56 Cal.App.4th 252.) Under

section 2933.1, subdivision (c), defendant was entitled to local conduct credit of only

15 percent, and should have been awarded 714 days, rather than 1,241 days, total credit

(621 days actual credit + 93 days local conduct credit = 714 days total credit for time

served). We are confident the court will correctly recalculate defendant’s custody credit

upon resentencing. (See In re Martinez (2003) 30 Cal.4th 29, 32–37.)

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DISPOSITION

The convictions for counts 1, 5 through 10, and 14 are reversed. Counts 1, 5, 10,

and 14 cannot be retried. The matter is remanded for retrial on counts 6 through 9.

The sentences imposed for counts 2 and 12 are vacated. The matter is remanded

for resentencing without application of the One Strike Law (§ 667.61).

The order for noneconomic damages (§ 1202.4, subd. (f)(3)(F)) is reversed. The

matter is remanded with directions to conduct a restitution hearing to determine

noneconomic damage awards, if any, for counts 15, 23, and 24.

In all other respects, the judgment is affirmed.

Upon resentencing, the court is instructed to recalculate defendant’s custody

credit to reflect no more than 15 percent local conduct credit, amend the abstract of

judgment to reflect defendant’s new sentence, and forward a copy of the amended

abstract of judgment to the California Department of Corrections and Rehabilitation.

CERTIFIED FOR PUBLICATION

LAVIN, J.

WE CONCUR:

*

EDMON, P. J. JONES, J.

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant

to article VI, section 6 of the California Constitution.

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