People v. Ramos CA4/1 ( 2022 )

Filed 4/26/22 P. v. Ramos CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
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purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078369
Plaintiff and Respondent,
v. (Super. Ct. No. RIF1805206)
GUILLERMO SAMANIEGO RAMOS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
John D. Molloy, Judge. Vacated and remanded.
Spolin Law and Aaron Spolin for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A.
Sevidal and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and
Respondent.
Guillermo Samaniego Ramos appeals a judgment sentencing him to
prison for 245 years to life after a jury found him guilty of sex crimes against
three minors. He contends the trial court coerced verdicts by directing the
jurors to deliberate further after they had repeatedly reported they were
deadlocked on most counts. We reject this contention. An error in
sentencing, however, requires we vacate the sentence and remand for
resentencing.
I.
BACKGROUND
A. Charges
The People charged Ramos with 29 crimes against three minors during
the period from 2002 through 2018:
• five counts of aggravated sexual assault by forcible sodomy of a child
under the age of 14 years (victim: Jane Doe 1);
• one count of aggravated sexual assault by forcible rape of a child under
the age of 14 years (victim: Jane Doe 1);
• 11 counts of forcible lewd and lascivious acts upon a child under the age
of 14 years (victims: Jane Doe 1 on 6 counts & Jane Doe 3 on 5 counts);
• four counts of rape of a child 14 years of age or older (victim: Jane Doe
1);
• two counts of forcible rape (victim: Jane Doe 1);
• one count of false imprisonment by menace, fraud, violence, or deceit
(victim: Jane Doe 3);
• three counts of oral copulation of a child 10 years of age or younger
(victim: Jane Doe 3); and
• two counts of nonforcible lewd or lascivious acts on a child under the
age of 14 years (victim: Jane Doe 2).
The People alleged Ramos qualified for sentencing under the One Strike law
because he had committed sex crimes against more than one victim. (Pen.
Code, § 667.61, subd. (e)(4); subsequent undesignated section references are
to this code.)
B. Trial Testimony
At trial, the victims testified about sex acts Ramos had committed
against them. Three other witnesses testified about sex acts Ramos had
committed against them when they were minors. Ramos denied he ever
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molested a child. His mother and niece, who lived with him during parts of
the time when the molestations occurred, testified they never heard any
reports he had molested a child.
C. Jury Deliberations
The jury began deliberations on a Tuesday and deliberated for
approximately three hours and 15 minutes before proceedings were
adjourned for the day.
On Wednesday, the jury resumed deliberations at 9:00 a.m.,
deliberated for about 35 minutes, and then requested the testimony of Jane
Doe 1, Jane Doe 2, and another witness be read back to them. The trial court
discussed the request with counsel outside the presence of the jury, and then
brought the jury into the courtroom and asked whether the jury wanted all or
only some of the testimony read back. After discussing the matter among
themselves, the jurors requested a readback of the entire testimony of Jane
Doe 1, Jane Doe 2, and another witness, as well as Ramos’s testimony about
Jane Doe 2. The court adjourned proceedings at noon.
On Thursday, proceedings resumed at 9:00 a.m., when the testimony
requested by the jurors was read back to them. The jury then resumed
deliberations and at 11:00 a.m. sent the trial court another request for more
testimony to be read back. Before the lunch break, the jury sent the court a
note stating: “We are not coming to an agreement. Doesn’t look like there
will be a full 12 jury agreement.” Around 2:00 p.m., in response to questions
from the court, the foreperson stated the jury had not reached a unanimous
verdict on any count after four or five votes; on some of the counts the jurors
split 11-1, 10-2, or 9-3; and the foreperson did not think there was anything
the court could do to help the jury reach a unanimous verdict. The court
nevertheless directed the jurors to continue deliberating after reminding
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them of the instruction that they should not hesitate to change their mind if
they became convinced they were wrong but not just because other jurors
disagreed with them. (See CALCRIM No. 3550.) The court stated it was
“certainly not suggesting that anybody should change their mind just because
they’re in the minority.”
While the jury continued to deliberate, the trial court conferred with
counsel about whether additional argument on specific charges or topics
might be helpful to the jury. Ramos’s counsel objected on the ground it would
be hard for the jury to distinguish argument from evidence. The prosecutor
suggested the court could either ask the jurors in open court whether they
wanted additional argument and on what topics, or tell them about the
option, allow them to discuss it among themselves, and send a written
response to the court.
At about 3:00 p.m., the foreperson advised the court the jury had
reached verdicts on two counts and did not think additional deliberations
would lead to verdicts on the other 27 counts. The court advised the jury it
had the option to hear additional argument from counsel on any topic. After
discussing this option among themselves, the jurors sent a note to the court
stating they wanted to hear further argument on the testimony of Jane Doe 3
and her motive to lie. Over the objection of Ramos’s counsel that additional
argument would be “way too oppressive” and after clarification from the
foreperson that the jury wanted to hear argument about all of Jane Doe 3’s
testimony, including any motive she might have had to lie, both counsel
argued for a total of about 20 minutes. After completion of the additional
argument, the court directed the jurors to the instruction it had given on
assessment of witness credibility (CALCRIM No. 226) and reminded them:
“[I]t is your duty as jurors to talk with one another and to
deliberate in the jury room, so that is part of your job is to talk
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and to deliberate and I hope that you have not felt pressured by
anybody here in this courtroom to reach a verdict; I have said
multiple times and I will say it again your job is to reach a
verdict if you can and all we are doing today is giving you some
additional tools, some additional information to help you do your
job. If you can reach a verdict, that’s great. If you can’t reach a
verdict, that’s great. That’s what the system is all about. We
just want to give you every opportunity to reach a verdict if you
can.” (See CALCRIM No. 3550.)
The court then sent the jurors back to the jury room for further deliberations.
About 25 minutes later, at 4:20 p.m., the jury returned to the
courtroom. When the court asked whether any progress had been made, the
foreperson responded, “No,” and, “I believe we’re done.” The court told the
jurors they needed to return to court the next day to discuss “one other issue,
and then if that’s not helpful, then you’ll be done. You’ll be done tomorrow
one way or the other. . . . I know this is . . . not according to the plan, but we
need to finish this, so there is one more thing I need to talk to you about.”
The jury agreed to return to court at 8:30 a.m. the following day.
On Friday, the court announced its intention to give the jury an
instruction based on one approved in People v. Moore (2002) 96 Cal.App.4th
1105, 1118-1120 (Moore). Ramos’s counsel objected it was “too oppressive to
get the jury to keep deliberating.” In disagreeing with counsel, the court
noted Thursday was the only full day of deliberations, and the jury had
deliberated for about 90 minutes on Tuesday and three hours on Wednesday.
The court then instructed the jurors they must “carefully consider, weigh,
and evaluate all of the evidence presented at the trial, to discuss your views
regarding the evidence and to listen to and consider the views of your fellow
jurors.” The court again reminded the jurors they should not hesitate to
change their views if they became convinced they were wrong or to urge other
jurors to change their views if the jurors were convinced the others were
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wrong. The court further instructed: “It is your duty as jurors to deliberate
with the goal of arriving at a verdict on the charge, if you can do so, without
violence to your individual judgment.” The court suggested some methods
the jury could try, such as having different jurors lead the discussions and
having jurors on each side of an issue present and argue the other side’s
position. The court again cautioned the jurors not to change their minds just
because other jurors disagreed and ordered them to continue deliberations.
D. Verdicts
At approximately 10:20 a.m., the jury advised the court it had reached
verdicts. The court reviewed the verdicts, noted some inconsistencies (e.g.,
guilty and not guilty for the same counts), and sent the jurors back to the
jury room to correct the inconsistencies. The jury returned with corrected
verdicts finding Ramos guilty of five counts of forcible lewd and lascivious
acts against Jane Doe 3 (counts 19, 21, 23, 25 & 27); two counts of nonforcible
lewd and lascivious acts against Jane Doe 2 (counts 28 & 29); and six counts
of nonforcible lewd and lascivious acts, as lesser included offenses of forcible
lewd and lascivious acts, against Jane Doe 1 (counts 2, 4, 6, 8, 10 & 12). The
jury did not reach verdicts on the remaining 16 counts. As to each guilty
verdict, the jury found true the attached allegation Ramos committed
qualifying sex crimes against more than one victim for purposes of the One
Strike law.
E. Sentencing
At the sentencing hearing, the court dismissed the counts on which the
jury had not reached verdicts. It sentenced Ramos to prison for five
consecutive terms of 25 years to life each for the convictions of forcible lewd
and lascivious acts against Jane Doe 3, plus eight consecutive terms of 15
years to life each for the convictions of nonforcible lewd and lascivious acts
6
against Jane Doe 1 and Jane Doe 2, for an aggregate prison term of 245 years
to life.
II.
DISCUSSION
A. Jury Coercion
Ramos complains the trial court coerced verdicts by directing the jurors
to continue deliberating after they reported they were deadlocked, by
allowing the additional round of arguments concerning the testimony of Jane
Doe 3 requested by the jury, and by giving the instruction based on Moore,
supra, 96 Cal.App.4th 1105. The People contend the court acted within its
discretion in taking the actions challenged by Ramos and did not in any way
pressure the jury to reach verdicts. As we shall explain, the People are
correct.
We begin by setting out general principles on the trial court’s authority
to assist a jury that has reached an impasse. Once a case has been submitted
to a jury for decision, the jurors generally cannot be discharged until they
have agreed upon a verdict unless the parties consent or “unless, at the
expiration of such time as the court may deem proper, it satisfactorily
appears that there is no reasonable probability that the jury can agree.”
(§ 1140.) When the jury reports it cannot agree on a verdict, the trial court
has discretion to declare a hung jury or to order further deliberations.
(People v. Lopez (2018) 5 Cal.5th 339, 364.) Among the authorized tools for
helping the jury to overcome an impasse are giving additional instructions
and permitting additional closing arguments by counsel. (Cal. Rules of
Court, rule 2.1036(b)(1), (3).) “However, a court must exercise its power
under section 1140 without coercing the jury, and ‘avoid displacing the jury’s
independent judgment “in favor of considerations of compromise and
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expediency.” ’ ” (People v. Brooks (2017) 3 Cal.5th 1, 88 (Brooks).) “Any claim
that the jury was pressured into reaching a verdict depends on the particular
circumstances of the case.” (People v. Pride (1992) 3 Cal.4th 195, 265
(Pride).)
Turning to the particular circumstances of this case, we review the
course of events during deliberations to determine whether the trial court
exerted undue pressure on the jury to reach a verdict. When the jury
foreperson first notified the court it did not appear all 12 jurors would agree
on a verdict and the foreperson did not think the court could do anything to
help, the jury had deliberated for a total of about eight hours over the course
of three days. Given the relatively short period of deliberations on 29 charges
involving three victims, the court did not, as Ramos argues, inappropriately
refuse to accept the foreperson’s opinion that a verdict was unlikely and to
discharge the jury. The court was “ ‘not bound to take as final the statement
of the [jurors] that they cannot agree upon a verdict’ ” (People v. Valdez
(2012) 55 Cal.4th 82, 159), and reasonably could order further deliberations
based on the brief period of prior deliberations relative to the complexity of
the charges (People v. Breaux (1991) 1 Cal.4th 281, 320). After the court
reminded the jurors of the instruction that they should not hesitate to change
their minds if they became convinced they were wrong but not just because
other jurors disagreed with them, the jury was able to reach verdicts on two
counts. “The fact the jury was able to reach a verdict relatively quickly after
being further instructed reflects the court properly exercised its discretion.”
(Moore, supra, 96 Cal.App.4th at p. 1122.)
That progress was not enough to warrant still further deliberations,
argues Ramos, because when the foreperson reported two verdicts had been
reached, she also stated she did not think additional deliberations would
8
result in agreement on the other 27 counts. Ramos contends the court should
have accepted the deadlock on those counts, but instead continued to prod the
jury over defense counsel’s objections and compounded the error by allowing
further closing argument. We disagree. “[W]hen a jury informs the trial
court it has reached an impasse, the trial court ‘must do more than
figuratively throw up its hands and tell the jury it cannot help. It must at
least consider how it can best aid the jury.’ ” (People v. Salazar (2014) 227
Cal.App.4th 1078, 1086.) Here, the trial court offered the jury the option of
hearing additional argument from counsel on any topic it wanted, and, after
discussing the offer among themselves, the jurors accepted the offer by
requesting argument on the testimony of Jane Doe 3 and her credibility. The
court acted within its discretion by allowing additional argument limited to
the topic selected by the jury. (Cal. Rules of Court, rule 2.1036(a), (b)(3);
Salazar, at p. 1089.)
When the additional argument did not help the jury reach additional
verdicts and the foreperson told the trial court, “I believe we’re done,” Ramos
insists the court should have accepted that statement, but again coerced the
jury by stating it had “one more thing to talk to [the jury] about” on the
following morning, namely, the instruction based on Moore, supra, 96
Cal.App.4th 1105. Ramos contends the jurors reasonably could have
interpreted the court’s additional statement that “we need to finish this,”
made without a reminder that it would be okay for them not to reach verdicts
on the 27 outstanding counts, as a requirement that they reach verdicts on
those counts. Again, we disagree. The court neither told the jury it had to
reach a verdict on any count nor otherwise constrained its deliberations. (See
People v. Debose (2014) 59 Cal.4th 177, 209; Pride, supra, 3 Cal.4th at
pp. 265-266.) Rather, the court assured the jurors they would “be done
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tomorrow one way or the other”; and, after ordering them to return to court
the following morning, said, “We’ll finish this up tomorrow; I promise.”
(Italics added.) When the trial court’s statement that “we need to finish this”
is considered in the context of its entire conversation with the jury, as it must
be (Brooks, supra, 3 Cal.5th at pp. 88-89; People v. Peoples (2016) 62 Cal.4th
718, 783 (Peoples)), no coercion appears. Rather, by promising the jurors they
would be done with deliberations the following day “one way or the other,”
the court indicated its willingness to accept the deadlock if the instruction
based on Moore and further deliberations did not enable the jurors to agree
on verdicts. (Cf. Debose, at p. 209 [no coercion when court “simply told the
jury that if after an additional period of time it found further discussions
fruitless and there was nothing else the court could do to assist the jury in
reaching a decision, ‘then so be it’ ”].)
The following morning, the deadlock was partially broken when, after
receiving the instruction based on Moore, supra, 96 Cal.App.4th 1105, and
deliberating for about 90 minutes, the jurors reached verdicts on 11 of the 27
counts on which they could not agree the previous day. Ramos argues the
speed with which the jurors reached the verdicts “clearly suggests the
verdict[s] w[ere] coerced and not based on proper and good faith
deliberations,” and the erroneous submission of both guilty and not guilty
verdicts for some of the counts “suggests that the jury was simply trying to
reach a verdict so they could go home.” We are not persuaded. The
erroneous completion of verdicts on some counts is not unexpected given the
number of verdicts the jury had to fill out. When the court noticed the error,
it ordered the jurors back to the jury room to correct the error, and about 10
minutes later they returned with corrected verdicts. This record does not
indicate the jury acted with the improper motive Ramos attributes to it.
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Rather, “[t]he jury’s short deliberation after discovering its error indicates
that the jury had merely filled out the wrong form and quickly corrected the
mistake.” (People v. Keating (1981) 118 Cal.App.3d 172, 182.) Nor does the
jury’s ability to reach verdicts on 11 additional counts after receiving the
instruction based on Moore and deliberating for 90 minutes show coercion.
The court instructed the jurors to reexamine their views; reminded them each
juror must assess the case individually, with the goal of arriving at a verdict
if that could be done “without violence to [each juror’s] individual judgment”;
and suggested techniques they could use to help them better understand the
differing positions. “[T]he jury was never directed that it was required to
reach a verdict, nor were any constraints placed on any individual juror’s
responsibility to weigh and consider all the evidence presented at trial.”
(Moore, at p. 1121; accord, Peoples, supra, 62 Cal.4th at p. 784.) The court
did not “urge the jury to come to an agreement on [any] of the counts,” and
repeatedly told the jury “it was each juror’s duty to act individually.” (People
v. Thomas (1991) 231 Cal.App.3d 299, 303.) The trial court ultimately
received the jury’s verdicts on 13 counts, accepted its deadlock on 16 others,
and discharged the jury, just as it had promised it would do the previous day.
On this record, “we see no impropriety in the court’s management of the
impasse in the jury’s deliberations.” (Id. at p. 304.)
Finally, we are not persuaded to reach a different conclusion by any of
the cases cited by Ramos. In Jenkins v. United States (1965) 380 U.S. 445,
446, when the jury informed the district court it could not reach a verdict, the
court told the jury, “ ‘You have got to reach a decision in this case.’ ” The trial
court here, by contrast, never told the jury it had to reach verdicts and, after
trying several options, accepted the jury’s failure to do so on the majority of
the counts. Nor, as in United States v. Flannery (1st Cir. 1971) 451 F.2d 880,
11
883-884, and People v. Gainer (1977) 19 Cal.3d 835, 847-852, did the court
here admonish only minority jurors to reconsider the reasonableness of their
views, tell the jurors the case must at some time be decided, or suggest it was
more important the jury reach verdicts quickly rather than thoughtfully. To
the contrary, the court repeatedly instructed the jurors each must assess the
case individually; they should not hesitate to change their minds if they
became convinced they were wrong, but not just because other jurors
disagreed with them or they were in the minority; and the jurors should try
to agree on verdicts if they could do so without surrendering their individual
judgment. (See CALCRIM No. 3550; Moore, supra, 96 Cal.App.4th at
pp. 1118-1119.) “In short, it is clear the trial court took great care in
exercising its power ‘without coercing the jury into abdicating its independent
judgment in favor of considerations of compromise and expediency . . . .
Nothing in the trial court’s comment[s] in the present case properly may be
construed as an attempt to pressure the jury to reach a verdict . . . .’ ”
(Moore, at p. 1121.)
B. Sentencing Error
In reviewing the record, we noticed a sentencing error and requested
supplemental briefs from the parties on whether the trial court erred by
imposing a prison term of 15 years to life instead of 25 years to life on each of
the eight convictions of nonforcible lewd and lascivious acts and, if so, what is
the appropriate remedy. Ramos contends the court did not err because the
accusatory pleading did not provide adequate notice of his exposure to prison
terms of 25 years to life; and if the court did err, the sentence must be
vacated and the matter remanded for resentencing. The People contend the
trial court erred and this court should correct the error by modifying the
prison terms of 15 years to life to 25 years to life without remanding for
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resentencing, because remarks of the trial court at sentencing indicate it
would impose the maximum prison term. As we shall explain, Ramos was
given adequate notice he was subject to punishment under the One Strike
law, but changes to the law that occurred during the period in which Ramos
committed his crimes require imposition of different prison terms on the
convictions of nonforcible lewd and lascivious acts and remand for
resentencing.
In his supplemental brief, Ramos does not challenge the prison terms of
25 years to life that were imposed on each of the five convictions of forcible
lewd and lascivious acts or the terms of 15 years to life that were imposed on
each of the eight convictions of nonforcible lewd and lascivious acts, but
contends “imposition of terms of 25 years to life on each of the eight relevant
counts would violate [his] due process rights.” He relies on People v. Jimenez
(2019) 35 Cal.App.5th 373, 377-378, 394, where the Court of Appeal held the
defendant was not subject to prison terms of 25 years to life under section
667.61, subdivision (j)(2) when the People had alleged he committed
qualifying sex crimes against more than one victim “ ‘within the meaning of
Penal Code section 667.61[, subdivision ](b) and (e)’ ” and one of the victims
was younger than 14 years. Subdivision (b) provides a penalty of 15 years to
life in prison for a defendant who commits a crime listed in subdivision (c)
under one of the circumstances listed in subdivision (e), and subdivision (j)(2)
increases the penalty to 25 years to life if the victim is under the age of 14
years. The Jimenez court stated: “[T]he information only informed Jimenez
he could be sentenced to terms of 15 years to life under . . . section 667.61,
subdivisions (b) and (e) for committing the alleged offenses against multiple
victims. The information did not put him on notice that he could be
sentenced to terms of 25 years to life under section 667.61[, subdivision ](j)(2)
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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[, subdivision ](j)(2) violated Jimenez’s
constitutional right to due process.” (Jimenez, at p. 397, italics and fn.
omitted.) Two other Courts of Appeal have expressly disagreed with Jimenez
and held an accusatory pleading that alleged the defendant committed
qualifying sex crimes against a child under the age of 14 years and also
alleged the multiple-victim circumstance of section 667.61, subdivision (e) in
conjunction with subdivision (b) provided adequate notice the defendant was
subject to imprisonment for 25 years to life, in part because subdivision (b)
references subdivision (j)(2) as an exception to the prescribed prison term of
15 years to life. (In re Vaquera (2019) 39 Cal.App.5th 233, 236, 244, review
granted Nov. 26, 2019, S258376; People v. Zaldana (2019) 43 Cal.App.5th
527, 530, 534-536 (Zaldana), review granted Mar. 18, 2020, S259731.) As
noted, the Supreme Court of California has granted review to resolve the
conflict.
We need not take a side in the conflict to resolve Ramos’s appeal.
Unlike the accusatory pleadings involved in the cases discussed in the
preceding paragraph, the information at issue here did not mention section
667.61, subdivision (b), and thus could not have misled Ramos into thinking
he faced prison terms of 15 years to life rather than 25 years to life. (Cf.
Jimenez, supra, 35 Cal.App.5th at pp. 395, 397; In re Vaquera, supra, 39
Cal.App.5th at p. 240, review granted; Zaldana, supra, 43 Cal.App.5th at
pp. 534-535, review granted.) The information did not reference any penalty-
specifying subdivision of section 667.61, although it did identify the range of
possible penalties as “15-L, 25-L, LWOP.” The only subdivision listed in the
information is (e)(4), the multiple-victim circumstance. That is the only
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reference the law requires to trigger applicability of One Strike law penalties,
as we explain below.
In its current version and in all prior versions, the One Strike law has
provided its penalties “shall apply only if the existence of any circumstance
specified in subdivision (d) or (e) is alleged in the accusatory pleading.”
(§ 667.61, subd. (o).)1 “A defendant [also] has a due process right to fair
notice of the allegations that will be invoked to increase the punishment for
his or her crimes.” (People v. Houston (2012) 54 Cal.4th 1186, 1227; accord,
People v. Anderson (2020) 9 Cal.5th 946, 953 (Anderson); People v. Mancebo
(2002) 27 Cal.4th 735, 747 (Mancebo).) Fair notice requires the pleading
allege “the qualifying statutory circumstance or circumstances that are being
pled, proved, and invoked in support of One Strike sentencing. Adequate
notice can be conveyed by a reference to the description of the qualifying
circumstance (e.g., kidnapping, tying or binding, gun use) in conjunction with
a reference to section 667.61 or, more specifically, 667.61, subdivision (e), or
by reference to its specific numerical designation under subdivision (e), or
some combination thereof.” (Mancebo, at p. 754.) Hence, as long as the
factual circumstance is alleged in conjunction with a reference to section
667.61, the associated penalty-prescribing provision need not also be alleged.
1 See former section 667.61, subdivision (o), as amended by Statutes
2018, chapter 423, section 68; former section 667.61, subdivision (o), as
amended by Statutes 2011, chapter 361, section 5; former section 667.61,
subdivision (o), as amended by Statutes 2010, chapter 219, section 16; former
section 667.61, subdivision (j), as amended by Proposition 83, section 12, as
approved by voters in the November 7, 2006, General Election; former section
667.61, subdivision (j), as amended by Statutes 2006, chapter 337, section 33;
former section 667.61, subdivision (i), as amended by Statutes 1998, chapter
936, section 9; former section 667.61, subdivision (i), as amended by Statutes
1997, chapter 817, section 6; former section 667.61, subdivision (i), as enacted
by Statutes 1993-1994, 1st Extraordinary Session, chapter 14, section 1.
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(See People v. Tirado (2022) 12 Cal.5th 688, 698 [“unless the Legislature
requires otherwise, the ‘accusatory pleading need not specify by number the
statute under which the accused is being charged’ ”]; Anderson, at p. 957 [“We
do not mean to suggest that an information that fails to plead the specific
numerical subdivision of an enhancement is necessarily inadequate.
[Citation.] Neither the relevant statutes nor the due process clause requires
rigid code pleading or the incantation of magic words.”].)
The information against Ramos contained 29 counts. As to 22 of the
counts, including all those on which Ramos was convicted, it was specifically
alleged the victim was “under the age of fourteen years” or, in some counts,
“10 years of age or younger.” Immediately after the 29 counts is a
“SPECIAL ALLEGATION” stating that “in the present case and cases
defendant committed a qualifying sex offense against more than one victim
as listed in Penal Code section 667.61, subdivision (e)(4). [15-L, 25-L,
LWOP].” As required by due process and by the One Strike law, the age of
the victim and the circumstance specified in subdivision (e), on which the
People relied for imposition of One Strike law penalties, were alleged in the
information. (Mancebo, supra, 27 Cal.4th at p. 754.) Ramos was thus given
fair notice he faced those penalties “ ‘ “in order that he may have a reasonable
opportunity properly to prepare a defense and avoid unfair surprise at
trial.” ’ ” (Anderson, supra, 9 Cal.5th at p. 953.)
Having determined Ramos was given sufficient notice he was subject to
punishment under the One Strike law, we must determine what the
appropriate punishment is for each of his convictions. That determination is
complicated by the fact that section 667.61 was amended several times
during the 17-year period during which Ramos committed his crimes. (See
fn. 1, ante.) The amendment that added the provision specifying a penalty of
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25 years to life when the defendant commits a lewd or lascivious act on a
victim younger than 14 years under one of the circumstances specified in
subdivision (e) did not take effect until September 9, 2010. (Former § 667.61,
subds. (b), (c)(4), (8), (j)(2), as amended by Stats. 2010, ch. 219, § 16.) Before
then, the penalty was 15 years to life. (Former § 667.61, subds. (b), (c)(4), (7),
as enacted by Stats. 1993-1994, 1st Ex. Sess., ch. 14, § 1, eff. Nov. 30, 1994;
former § 667.61, subds. (b), (c)(4), (7), as amended by Stats. 1997, ch. 817, § 6,
eff. Jan. 1, 1998; former § 667.61, subds. (b), (c)(4), (7), as amended by Stats.
1998, ch. 936, § 9, eff. Sept. 28, 1998; former § 667.61, subds. (b), (c)(4), (8),
as amended by Stats. 2006, ch. 337, § 33, eff. Sept. 20, 2006; former § 667.61,
subds. (b), (c)(4), (8), as amended by Prop. 83, § 12, as approved by voters,
Gen. Elec. (Nov. 7, 2006), eff. Nov. 8, 2006.) The constitutional prohibitions
against ex post facto laws (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9)
permit imposition of the increased penalty only on crimes committed after
the amendment increasing the penalty took effect. (People v. Valenti (2016)
243 Cal.App.4th 1140, 1173-1175 (Valenti); People v. Hiscox (2006) 136
Cal.App.4th 253, 257; People v. Alvarez (2002) 100 Cal.App.4th 1170, 1178-
1179.)
Thus, for the six convictions of nonforcible lewd and lascivious acts
against Jane Doe 1 (counts 2, 4, 6, 8, 10 & 12), which were based on acts that
occurred from April 20, 2002, through April 19, 2008, the statutorily
prescribed punishment for each conviction is 15 years to life in prison, which
is the term the trial court imposed. For the two convictions of nonforcible
lewd and lascivious acts against Jane Doe 2 (counts 28 & 29), which were
based on acts that occurred from July 2016 through July 2018, the statutorily
prescribed punishment for each conviction is 25 years to life in prison, not the
15 years to life the trial court imposed. For the five convictions of forcible
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lewd and lascivious acts against Jane Doe 3 (counts 19, 21, 23, 25 & 27),
which were based on acts that occurred from December 2016 through August
2018, the statutorily prescribed punishment for each conviction is 25 years to
life in prison, which is the term the trial court imposed.
Lastly, we must decide on the appropriate remedy for the sentencing
error on counts 28 and 29. Ramos contends any sentencing error requires a
remand for resentencing so that the trial court may exercise its discretion to
impose concurrent or consecutive prison terms on all the convictions of
nonforcible lewd and lascivious acts. The People urge us to modify the
sentence by imposing the required terms of 25 years to life. They say a
remand would be an idle act based on the following remarks of the court at
sentencing:
“So for purposes of the sentence, if any of the decisions are later
determined to be discretionary, the Court would exercise his discretion
in arriving at precisely the same verdict [sic]. This is an
extraordinarily aggravating case. Every one of the victims was
extraordinarily vulnerable. . . . [Y]ou were in a position of trust with
respect to every one of the victims, and the victimization was repeated.
This is indeed one of the more aggravated sexual assault cases that the
Court has reviewed, and so the Court would exercise its discretion.”
We agree with Ramos.
The One Strike law “contemplates a separate life term for each victim
attacked on each separate occasion.” (People v. Wutzke (2002) 28 Cal.4th 923,
931; accord, People v. Valdez (2011) 193 Cal.App.4th 1515, 1523-1524.) The
25-year-to-life prison terms for the five convictions of forcible lewd and
lascivious acts against Jane Doe 3 must be imposed consecutively. (Former
§ 667.61, subds. (c)(4), (e)(4), (i), (j)(2), as amended by Stats. 2011, ch. 361,
§ 5; People v. Andrade (2015) 238 Cal.App.4th 1274, 1281, 1307-1308.) The
15-year-to-life prison terms for the six convictions of nonforcible lewd and
lascivious acts against Jane Doe 1 and the 25-year-to-life terms for the two
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convictions of the same offense against Jane Doe 2 may be imposed
consecutively or concurrently. (Former § 667.61, subds. (b), (c)(7), (e)(5), (g),
as amended by Stats. 1998, ch. 936, § 9; former § 667.61, subds. (b), (c)(8),
(e)(5), (i), as amended by Stats. 2006, ch. 337, § 33; former § 667.61, subds.
(b), (c)(8), (e)(5), (i), as amended by Prop. 83, § 12, as approved by voters, Gen.
Elec. (Nov. 7, 2006); former § 667.61, subds. (c)(8), (e)(4), (i), (j)(2), as
amended by Stats. 2011, ch. 361, § 5; Valenti, supra, 243 Cal.App.4th at
p. 1178; People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262.) Because the
trial court was unaware it had to impose a term of 25 years to life rather than
15 years to life on each of the two convictions of nonforcible lewd and
lascivious acts against Jane Doe 2 (counts 28 & 29), we cannot determine
whether the court would have structured Ramos’s sentence differently had it
known imposition of the longer term was required. Although the court stated
the case was “extraordinarily aggravating,” the victims were “extraordinarily
vulnerable,” and it would exercise any discretion it had to arrive at the 245
years to life sentence it imposed, our correction of the sentencing error in the
manner urged by the People would increase Ramos’s aggregate prison term to
265 years to life. We therefore decline to modify the sentence in the manner
requested by the People and instead remand the matter to allow the trial
court to exercise its discretion to impose concurrent or consecutive terms on
the eight convictions of nonforcible lewd acts and to arrive at an aggregate
prison term it deems suitable. (See Zaldana, supra, 43 Cal.App.5th at p. 536,
review granted; People v. Morales (2018) 29 Cal.App.5th 471, 484-485.)
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III.
DISPOSITION
The sentence is vacated and the matter is remanded to the trial court
with directions: (1) to impose a consecutive prison term of 25 years to life on
each of the convictions on counts 19, 21, 23, 25, and 27; (2) to impose a prison
term of 25 years to life on each of the convictions on counts 28 and 29; (3) to
impose a prison term of 15 years to life on each of the convictions on counts 2,
4, 6, 8, 10, and 12; and (4) to exercise its discretion on whether to run the
prison terms on counts 2, 4, 6, 8, 10, 12, 28, and 29 concurrently or
consecutively.
IRION, J.
WE CONCUR:
AARON, Acting P. J.
DATO, J.
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