People v. Zaldana ( 2019 )

Filed 12/17/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B295959
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA468653)
v.
BEDAVID ZALDANA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Mark S. Arnold, Judge. Affirmed and
remanded.
Vanessa Place, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Assistant Attorney General, Michael R. Johnsen and Blythe J.
Leszkay, Deputy Attorneys General, for Plaintiff and
Respondent.
__________________________
Following his conviction for six counts involving the
molestation of his two daughters when they were both under the
age of 14, defendant Bedavid Zaldana was sentenced to 75 years
to life, consisting of five consecutive terms of 15 years to life and
one 15-year-to-life term stayed. Five of the six counts fell within
the “One Strike” law, Penal Code section 667.61,1 because the
jury found the additional aggravating circumstance that more
than one victim was involved in each offense. (§ 667.61, subd.
(e)(4).) On appeal, Zaldana argues this “multiple victim” finding
can only justify two terms of 15 years to life, one for each victim.
We reject his contention, joining the line of cases that have found
the same argument lacked merit.
We conclude, however, Zaldana’s sentence was
unauthorized under section 667.61. Subdivision (j)(2) mandates
an indeterminate sentence of 25 years to life for an offense falling
within the One Strike law when the victim is under the age of 14.
The five One Strike counts against Zaldana fell within this
provision, so the trial court was required to impose five terms of
25 years to life. We find Zaldana had constitutionally sufficient
notice of this possible longer sentence from the information.
Because the court had discretion to run three of those 25-year-to-
life terms concurrently or consecutively, we remand for
resentencing.
BACKGROUND
The two victims in this case were Zaldana’s daughters,
Su.Z. and Sa.Z. Zaldana abused his younger daughter Sa.Z. once
when she was eight years old. They were watching T.V. when
1 All statutory citations refer to the Penal Code.
2
Zaldana touched her vagina beneath her dress and inserted one
finger.
He abused his older daughter Su.Z. multiple times when
she was ages nine through 11. The first time it happened, they
were watching T.V. when he rubbed her inner thigh. He touched
her in a similar way more than 20 times, every time she visited
him. He also touched her breast and rubbed her vagina over and
under her clothing. Once, while she was sleeping, he put a hand
over her mouth, touched her breast, and inserted his penis into
her vagina approximately three inches. On another occasion,
Su.Z. was changing clothes and Zaldana touched her bare breast.
The last incident occurred when Su.Z. was 12. Zaldana closed
her in a room and blocked the door with a shelf. When she tried
to open a window, he pinned her to a wall and touched her breast.
She kicked him and ran away.
The girls disclosed the abuse to their mother and brother
about three months after this last incident. Zaldana was
arrested and charged with six counts: oral copulation or sexual
penetration of Sa.Z. (§ 288.7, subd. (b), count 1); lewd act on Sa.Z.
(§ 288, subd. (a), count 2); forcible lewd act on Su.Z. (§ 288, subd.
(b)(1), counts 3 & 6); and lewd act on Su.Z. (§ 288, subd. (a),
counts 4 & 5). For counts 2 through 6, the information alleged,
“within the meaning of Penal Code section 667.61(b) and (e)(4),”
Zaldana “committed an offense specified in Section 667.61(c)
against more than one victim.”
Following trial, a jury found Zaldana guilty of all counts
and found the multiple victim allegation true as to the five counts
for violations of section 288, subdivisions (a) and (b). The court
sentenced him to 75 years to life, consisting of 15 years to life for
the violation of section 288.7 in count 1, 15 years to life for the
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violation of section 288, subdivision (b)(1) involving Sa.Z. in count
2 stayed pursuant to section 654, and four consecutive terms of
15 years to life for the violations of section 288, subdivisions (a)
and (b) involving Su.Z. in counts 3 through 6. At sentencing, the
trial court stated Zaldana “never deserves to be out in public
again” and “wish[ed]” his sentence “could be longer.”
DISCUSSION
I. Five “One Strike” Terms Were Permitted Based on
the Multiple Victim Aggravating Circumstance
The One Strike law creates an alternative, harsher
sentencing scheme of either 15 or 25 years to life for certain
enumerated sex offenses accompanied by additional specified
factual findings. (§ 667.61; see People v. Mancebo (2002)
27 Cal.4th 735, 738 (Mancebo).) Lewd conduct and forcible lewd
conduct on a child under the age of 14 in violation of section 288,
subdivisions (a) and (b) are included in the list of qualifying One
Strike crimes. (§ 667.61, subd. (c)(4), (8).) Subdivision (e)(4)
contains a multiple victim aggravating circumstance:
“The defendant has been convicted in the present case of
committing an offense specified in subdivision (c) against more
than one victim.” (§ 667.61, subd. (e)(4).)
Zaldana contends the court was prohibited under the
multiple victim aggravating circumstance from imposing more
than two One Strike terms, one for each victim. He was charged
with only one count against Sa.Z. that qualified under the One
Strike law,2 and the trial court imposed only a single One Strike
2 Count 1 for violating section 288.7 is not one of the
crimes qualifying as a One Strike offense in section 667.61,
subdivision (c).
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term for that victim. Restated more precisely, Zaldana’s chief
complaint is that the multiple victim circumstance cannot be
used to impose four One Strike terms for the offenses against
Su.Z. on four separate occasions. His contention fails.
“Every court that has ever considered this issue has
rejected defendant’s contention that section 667.61 does not
permit multiple life terms to be imposed based on the multiple-
victims circumstance.” (People v. Morales (2018) 29 Cal.App.5th
471, 483 (Morales); see People v. Andrade (2015) 238 Cal.App.4th
1274, 1305–1306 (Andrade); People v. Valdez (2011) 193
Cal.App.4th 1515, 1521–1524 (Valdez); People v. Murphy (1998)
65 Cal.App.4th 35, 40–41; People v. DeSimone (1998) 62
Cal.App.4th 693, 697–698.) In Valdez, for example, the court
rejected this precise argument because it “contradicts the
statute’s legislative intent as determined by the usual and
ordinary meaning of the words of the enactment.” (Valdez, supra,
at p. 1522; see Andrade, supra, at pp. 1307–1308 [“The plain
language of the One Strike law simply does not support a
limitation of single life term per victim.”]; see also People v.
Wutzke (2002) 28 Cal.4th 923, 931 [noting One Strike law
“contemplates a separate life term for each victim attacked on
each separate occasion”].)
We need not repeat the thorough analysis set forth in these
cases, except to say we agree with their reasoning. Zaldana was
convicted of molesting Sa.Z. on one occasion and Su.Z. on four
separate occasions. The multiple victim circumstance permitted
the trial court to impose five One Strike terms for those acts.
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II. The Trial Court Imposed an Unauthorized Sentence
Because the One Strike Law Required Five Terms of
25 Years to Life
Section 667.61, subdivision (b) mandates a 15-year-to-life
term for a qualifying offense “[e]xcept as provided in subdivision
(a), (j), (l), or (m).” (Italics added.) One of those identified
exceptions—subdivision (j)—requires the longer term of 25 years
to life when the same requirements are met from subdivision (b)
but the victim is a child under the age of 14. (§ 667.61, subd.
(j)(2) [“Any person who is convicted of an offense specified in
subdivision (c) under one of the circumstances specified in
subdivision (e), upon a victim who is a child under 14 years of
age, shall be punished by imprisonment in the state prison for 25
years to life.”].)
The trial court sentenced Zaldana to five 15-year-to-life
terms even though he qualified for five 25-year-to-life terms as
set forth in section 667.61, subdivision (j)(2): his five offenses
under section 288, subdivisions (a) and (b) were qualifying sex
offenses enumerated in section 667.61, subdivisions (c)(4) and (8);
the jury found true the multiple victim circumstance in section
667.61, subdivision (e)(4) for each offense; and the jury found
Sa.Z. and Su.Z. were both under the age of 14 when Zaldana
molested them.3 Neither the parties nor the trial court identified
3 Section 288 required the prosecution to prove the victims
were under the age of 14: “(a) Except as provided in subdivision
(i), a person who willfully and lewdly commits any lewd or
lascivious act, including any of the acts constituting other crimes
provided for in Part 1, upon or with the body, or any part or
member thereof, of a child who is under the age of 14 years, with
the intent of arousing, appealing to, or gratifying the lust,
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the possibility of sentencing Zaldana to five 25-year-to-life terms
under subdivision (j)(2), so we requested supplemental briefing
on the issue.
We conclude the imposition of the longer 25-year-to-life
terms pursuant to subdivision (j)(2) was mandatory. Subdivision
(f) states, “If only the minimum number of circumstances
specified in subdivision (d) or (e) that are required for the
punishment provided in subdivision (a), (b), (j), (l), or (m) to apply
have been pled and proved, that circumstance or those
circumstances shall be used as the basis for imposing the term
provided in subdivision (a), (b), (j), (l), or (m) whichever is
greater . . . .” (§ 667.61, subd. (f), italics added.) Zaldana’s lesser
sentence of five terms of 15 years to life was therefore
unauthorized. (In re Vaquera (2019) 39 Cal.App.5th 233, 245,
review granted November 26, 2019, S258376 (Vaquera) [“Because
the Legislature used the word ‘shall,’ and because the prosecution
properly pleaded and proved multiple victim allegations for
qualifying sex offenses in which the victims were under 14 years
of age, the trial court was required to impose a 25-year-to-life
sentence under section 667.61, the One Strike law.”]; Morales,
supra, 29 Cal.App.5th at p. 485 [accepting defendant’s concession
that trial court erred in imposed 15-year-to-life terms when 25-
passions, or sexual desires of that person or the child, is guilty of
a felony and shall be punished by imprisonment in the state
prison for three, six, or eight years. [¶] (b)(1) A person who
commits an act described in subdivision (a) by use of force,
violence, duress, menace, or fear of immediate and unlawful
bodily injury on the victim or another person, is guilty of a felony
and shall be punished by imprisonment in the state prison for 5,
8, or 10 years.” (§ 288, subds. (a), (b)(1).)
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year-to-life terms were required].) Because he was given an
unauthorized sentence, we must correct it, even though the
corrected sentence could result in a longer term. (People v.
Vizcarra (2015) 236 Cal.App.4th 422, 432 (Vizcarra) [“[A]n
unauthorized sentence is subject to correction by an appellate
court ‘whenever the error comes to the attention of the court,
even if the correction creates the possibility of a more severe
punishment.’ ”].)
We also asked the parties to brief whether Zaldana had
constitutionally adequate notice that he could be subject to the
longer sentence in section 667.61, subdivision (j)(2). In the
information, the People cited section 667.61, subdivisions (b) and
(e) but did not specifically plead section 667.61, subdivision (j)(2).
Courts are split on whether this complies with due process notice
requirements. (Compare Vaquera, supra, 39 Cal.App.5th at pp.
240–241 [sufficient notice] with People v. Jimenez (2019) 35
Cal.App.5th 373, 395–397 (Jimenez) [insufficient notice].)
We agree with Vaquera’s detailed analysis finding this provided
adequate notice and reject Jimenez’s cursory reasoning
supporting the opposite conclusion.
“California law provides that: ‘In charging an offense, each
count shall contain, and shall be sufficient if it contains in
substance, a statement that the accused has committed some
public offense therein specified.’ (§ 952.) The accusatory
pleading does not have to state the number of the statute, it may
be ‘in any words sufficient to give the accused noticed of the
offense of which he is accused.’ [Citations.] Similarly, the
number of an enhancement statute does not have to be alleged, so
long as the accusatory pleading apprises the defendant of the
potential for the enhanced penalty and alleges every fact and
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circumstance necessary to establish its applicability.”
(Vaquera, supra, 39 Cal.App.5th at p. 239.)
Vaquera arose from a factual circumstance nearly identical
to this case. The defendant had been convicted of two counts of
violating section 288, subdivision (a) against two victims, both
alleged in the information to have been under the age of 14.
In alleging the multiple victim circumstance in section 667.61,
subdivision (e)(4), the information referred to subdivision (b)
of the statute, but not subdivision (j)(2) providing for a 25-year-
to-life sentence. (Vaquera, supra, 39 Cal.App.5th at p. 235.)
The court found this provided adequate notice to the defendant
that he could be subject to the longer sentence in subdivision
(j)(2). Not only was the requisite fact that the victims were under
the age of 14 expressly pled, but subdivision (b) itself stated the
15-year-to-life term applied “[e]xcept as provided in
subdivision . . . (j)” (italics added), i.e., when the 25-years-to-life
term applied because the victims were under the age of 14.
(Vaquera, supra, at p. 245.)
Vaquera distinguished Mancebo, which addressed a
different notice question under section 667.61. In Mancebo, the
People had filed an information alleging 10 sex crimes involving
two victims, as well as three aggravating circumstances pursuant
to section 667.61 for kidnapping, gun use, and “tying or binding”
the victim. The information did not plead the multiple victim
circumstance or cite its numerical subdivision. (Mancebo, supra,27 Cal.4th at p. 740.) Despite this, the trial court substituted the
multiple victim circumstance for two gun use allegations and
imposed two consecutive 25-year-to-life terms. (Ibid.) The court
held this violated the pleading requirements contained within
section 667.61 itself: “The provisions of the One Strike law,
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taken as a whole, require that subdivision (e) qualifying
circumstances be ‘pled and proved’ [citation], and as elsewhere
provided, ‘be alleged in the accusatory pleading and either
admitted by the defendant in open court or found true by the
trier of fact.’ ” (Mancebo, supra, at p. 751.)
Unlike in Mancebo, the information in Vaquera “properly
alleged the two multiple victim aggravating circumstances under
their numerical subdivision, section 667.61, subdivision (e). . . .
Therefore, the information complied with the pleading
requirements listed under section 667.61, as interpreted by the
California Supreme Court in Mancebo [citation]. And further,
because the jury found Vaquera guilty of count two, and the jury
found the corresponding multiple victim aggravating
circumstance as pleaded in the information to be true, the trial
court properly imposed the required 25-year-to-life sentence.”
(Vaquera, supra, 39 Cal.App.5th at p. 243.)
Vaquera disagreed with Jimenez, which relied on Mancebo
to find insufficient notice under the same basic facts. In Jimenez,
the defendant had been charged with 19 counts of sex crimes
involving three child victims. For 13 counts, the information
alleged the multiple victim circumstance, citing section 667.61,
subdivisions (b) and (e). The trial court sentenced him to
consecutive 25-year-to-life terms pursuant to section 667.61,
subdivision (j)(2). (Jimenez, supra, 35 Cal.App.5th at pp. 377–
378.) In a brief analysis, the court of appeal found the
information provided insufficient notice of the longer One Strike
terms: “Here, the information only informed Jimenez he could be
sentenced to terms of 15 years to life under Penal Code section
667.61, subdivisions (b) and (e) for committing the alleged
offenses against multiple victims. The information did not put
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him on notice that he could be sentenced to terms of 25 years to
life under section 667.61(j)(2) for committing those offenses upon
multiple victims, at least one of whom was under 14 years of age.
Under these circumstances, imposition of sentence under section
667.61(j)(2) violated Jimenez’s constitutional right to due
process.” (Jimenez, supra, at p. 397, fn. omitted.)
As in both Jimenez and Vaquera, the information here
alleged, “within the meaning of Penal Code section 667.61(b) and
(e)(4), as to defendant, BEDAVID ZALDANA, as to count(s) 2, 3,
4, 5, and 6 that the following circumstances apply: The
defendant in the present case committed an offense specified in
Section 667.61(c) against more than one victim.” For each count,
the jury found the multiple victim circumstance true. In finding
this provided inadequate notice of the longer prison term in
subdivision (j)(2), Jimenez overlooked a critical fact: subdivision
(b) itself refers to subdivision (j), identifying it as an exception to
the shorter 15-year-to-life term. We agree with Vaquera that was
key to adequate notice—it specifically directed Zaldana to
subdivision (j)(2) and its longer prison term. Because the
information alleged both his daughters were under the age of 14
when he molested them, there was no doubt he was on notice that
he could be subject to subdivision (j)(2). We follow Vaquera and
conclude the information provided Zaldana adequate notice of the
longer possible prison term in subdivision (j)(2).
Zaldana’s contrary arguments are unpersuasive. He points
to a passage in Mancebo quoted in Jimenez that adequate notice
of possible penalties is critical because “ ‘[i]n many instances a
defendant’s decision whether to plea bargain or go to trial will
turn on the extent of his exposure to a lengthy prison term.’ ”
(Jimenez, supra, 35 Cal.App.5th at p. 397, quoting Mancebo,
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supra, 27 Cal.4th at p. 752.) That is certainly true. But as we
have explained, the allegations in the information adequately
informed Zaldana of the maximum possible penalty for his
offenses under the One Strike law, so he could have considered it
in the plea-bargain process.
Zaldana also contends the prosecution must have exercised
charging discretion in citing section 667.61, subdivision (b) rather
than subdivision (j)(2). His argument goes: violations of section
288, subdivisions (a) and (b) require proof the victim was under
the age of 14, and section 667.61, subdivision (j)(2) applies when
the victim in the crimes listed in subdivision (c) is under the age
of 14. Both provisions apply to Zaldana’s crimes, so the
prosecutor must have consciously selected to charge the shorter
term by citing section 661.67, subdivision (b) instead of
subdivision (j)(2).
Vaquera rejected a similar argument, labeling it
“fundamentally mistaken. Section 667.61, subdivision (b),
requires a sentence of 15 years to life ‘[e]xcept as provided in
subdivision . . . (j) . . . .’ (Italics added.) And section 667.61,
subdivision (j)(2), requires that any person coming under its
provisions ‘shall be punished by imprisonment in the state prison
for 25 years to life.’ (Italics added.) Because the Legislature used
the word ‘shall,’ and because the prosecution properly pleaded
and proved multiple victim allegations for qualifying sex offenses
in which the victims were under 14 years of age, the trial court
was required to impose a 25-year-to-life sentence under section
667.61, the One Strike law.” (Vaquera, supra, 39 Cal.App.5th at
p. 245; see § 661.67, subd. (f).)
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III. We Will Remand for Resentencing
While we have authority to correct Zaldana’s sentence
(Vizcarra, supra, 236 Cal.App.4th at p. 432), the better course in
this case is to remand for resentencing. On remand, the trial
court is required to impose five 25-year-to-life terms, but it
retains discretion to run three of those terms concurrently or
consecutively. Section 667.61, subdivision (i) provides: “For any
offense specified in paragraphs (1) to (7), inclusive, of subdivision
(c), or in paragraphs (1) to (6), inclusive, of subdivision (n), the
court shall impose a consecutive sentence for each offense that
results in a conviction under this section if the crimes involve
separate victims or involve the same victim on separate occasions
as defined in subdivision (d) of section 667.6.” Section 288,
subdivision (b) falls within this subdivision—it is listed in section
667.61, subdivision (c)(4)—so the two 25-year-to-life terms for
violating section 288, subdivision (b) on separate occasions must
run consecutively. But section 288, subdivision (a) does not fall
within this subdivision—it is listed in section 667.61, subdivision
(c)(8)—so the court retains discretion to impose concurrent or
consecutive 25-year-to-life terms for the three violations of
section 288, subdivision (a). (See Valdez, supra, 193 Cal.App.4th
at p. 1524.)
Although the trial court stated at sentencing Zaldana
“never deserves to be out in public again” and it “wish[ed]” his
sentence “could be longer,” we cannot be sure how much longer.
Remand is therefore appropriate. Except for the components of
Zaldana’s sentence that are legally required, nothing in this
opinion should be interpreted to indicate how the trial court
should exercise this discretion at resentencing.
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DISPOSITION
The matter is remanded for resentencing consistent with
this opinion. In all other respects, the judgment is affirmed.
CERTIFIED FOR PUBLICATION
BIGELOW, P. J.
We concur:
STRATTON, J.
WILEY, J.
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