Filed 11/13/13 P. v. Morales CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B247913
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA 124649)
v.
JORGE MORALES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Michael A. Cowell, Judge. Affirmed.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, and Susan Sullivan Pithey,
Deputy Attorney General, for Plaintiff and Respondent.
******
Defendant Jorge Morales appeals from a judgment convicting him of four counts
of lewd acts upon a child, in violation of Penal Code section 288, subdivision (a), and one
count of child molestation, in violation of Penal Code section 647.6, subdivision (a)(1).1
Defendant contends the trial court erred in sentencing him to two consecutive terms of 15
years to life under the “one strike” law based on charges involving the same victim. We
disagree, and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The offenses charged in this matter occurred at various times between July 2005
and May 2012. The two victims, K. and J., are cousins who live in the same apartment
building. Defendant, who is the father of K.’s half-brother, regularly visited the family
home.
1. K. -- Counts 2, 5, 6, and 7
K. was 13 years old when she testified at trial.
Defendant’s first inappropriate contact with K. occurred when she was about six
or seven years old. K. was playing a game of hide and seek with J. Defendant joined the
game and looked for K. K. hid in a bedroom closet. Defendant came into the closet,
kneeled over her and touched her vagina with his hand over her jeans.
The second inappropriate contact occurred when K. was in the fifth grade. K. was
in the living room doing homework and watching television. Defendant approached K.
and touched her vagina over her clothes with his hand. At the time, K.’s mother was in
the shower and her younger brother was asleep on the couch.
The third inappropriate contact occurred when K. was in the sixth grade. This
time, K. was asleep on the couch. She awoke to defendant’s hand touching her vagina
over her clothes. K.’s mother was taking out the trash at the time of the incident.
While K. was in the sixth grade, defendant masturbated in her presence.
According to K., defendant unzipped his pants, pulled out his penis and masturbated in
1 Undesignated statutory citations are to the Penal Code.
2
the living room “a few times a week.” K. saw a white substance on defendant’s hands
when he stood up.
K. did not tell her mother about these incidents because she was afraid her mother
would not believe her. K. also believed defendant would hurt her mother. When the
police first interviewed K., she denied that defendant touched her inappropriately.
However, when the police later returned to look for defendant, K. revealed these
incidents to the police. The following day, K. told her mother about most of defendant’s
inappropriate contacts with her.
2. J. – Count 8
J. was nine years old and in the fourth grade at the time of her testimony.
J. occasionally went over to K.’s apartment to play with K. and her half-brother.
According to J., defendant visited K.’s home about two to three times a week.
Defendant’s first inappropriate contact with J. occurred when she was about six or
seven years old. J. was at K.’s house. She left the living room to enter the kitchen.
Defendant followed J. into the kitchen where he tried to grab her “bottom” from behind.
J. was able to get away before defendant was able to touch her anywhere else.
On a different day, defendant grabbed J. from behind and touched her vagina, on
“the front part [of] the bottom,” over her clothes. This occurred in K.’s kitchen.
According to J., defendant touched her vagina “mostly every week.”2 The
touching always occurred in the kitchen at K.’s house during the evening hours. K., her
half-brother and their mother were present in the living room during these incidents.
On one occasion, defendant unzipped his pants and took “out his thing” in the
living room. Although K. and her mother were in the living room at the time, neither saw
this occur.
J. did not reveal these incidents to anyone until a social worker came to her home.
J. told the social worker about the inappropriate touching by defendant. The social
worker relayed to J.’s mother what J. said. After J. told her mother what happened, her
2 J. testified that defendant touched her more than five, but less than 10, times.
3
mother called the police. When questioned by the police, J. told them about defendant’s
acts. J. never spoke to K. about the incidents and did not know K. was also touched
inappropriately.
3. Maria -- Evidence Code Section 1108 Witness
Maria was 21 years old at the time of trial.
Defendant’s improper contact with Maria occurred in 2007, when Maria was 16
years old.3 Defendant asked Maria to translate a letter about taxes. Maria opened the
envelope and read the handwritten letter, which said “[she] was good looking.” As she
read the note, defendant touched Maria between her legs. Defendant then touched her
vagina and continued towards her zipper. Maria moved and left the living room. She
went to her aunt’s house and told her what happened. Maria’s aunt confronted defendant
and then called the police.
Maria has not seen defendant since the 2007 incident. She never spoke to J. or K.
about the incident.
4. Defense Evidence
Defendant did not testify and presented no evidence at trial.
5. Procedural History
On February 14, 2013, a second amended information was filed, charging
defendant with four counts of lewd acts upon a child, in violation of section 288,
subdivision (a), one count of continuous sexual abuse, in violation of section 288.5,
subdivision (a), and one count of child molesting, in violation of section 647.6,
subdivision (a)(1). The information further alleged that the “multiple victims”
circumstance, within the meaning of section 667.61, subdivision (b), applied.
Prior to submitting the case to the jury, the prosecution moved for and the court
granted the dismissal of count 3, the continuous sexual abuse of J., in violation of section
288.5, subdivision (a).
3 At the time, defendant was married to Maria’s aunt and lived with Maria and her
family.
4
On February 14, 2013, a jury returned a verdict, finding defendant guilty on the
remaining counts. As to each count of lewd act upon a child, the jury found true the
special allegation that defendant committed the offense against multiple victims pursuant
to the “one strike” law provided in section 667.61, subdivision (b). The prosecution filed
a sentencing memoranda urging the court to sentence defendant to four consecutive terms
of 15 years to life for counts 2, 6, 7, and 8.4 However, the trial court sentenced defendant
to two consecutive terms of 15 years to life on counts 2 and 6, both of which alleged
defendant committed lewd acts upon K., in violation of section 288, subdivision (a).
Defendant also received two concurrent terms of 15 years to life for counts 7 (lewd acts
upon K., in violation of § 288, subd. (a)) and 8 (lewd acts upon J., in violation of § 288,
subd. (a)). As to count 5, which alleged defendant committed the crime of child
molesting, in violation of section 647.6, subdivision (a)(1), against K., defendant was
sentenced to one year in state prison.
DISCUSSION
Defendant’s sentence included two indeterminate terms under section 667.61, both
of which were based upon a finding of multiple victims. On appeal, defendant now
argues the trial court erred in applying the one strike law in counts 2 and 6 because both
counts involved the same victim, K. Defendant asserts the multiple-victim provision may
be imposed only once for each victim but cites no cases that support his contention.
Defendant recognizes that People v. Valdez (2011) 193 Cal.App.4th 1515 rejected the
argument that the multiple-victim circumstance can be imposed only once for each
victim, but argues Valdez was wrongly decided.
Section 667.61 states, in pertinent part, that “any person who is convicted of an
offense specified in subdivision (c) under one of the circumstances specified in
subdivision (e) shall be punished by imprisonment in the state prison for 15 years to life.”
4 Counts 2, 6, and 7 alleged defendant committed lewd acts upon K., in violation of
section 288, subdivision (a). Count 8 charged defendant with committing lewd acts upon
J., in violation of section 288, subdivision (a).
5
(§ 667.61, subd. (b).) The subdivision (e) circumstance that was alleged and proved here
states the “defendant has been convicted in the present case or cases of committing an
offense specified in subdivision (c) against more than one victim.” (§ 667.61, subd.
(e)(4).) Here, it is undisputed that defendant’s convictions for lewd acts upon a child
qualify as subdivision (c) crimes. (§ 667.61, subd. (c)(8).) The jury also found true the
special circumstance of multiple victims that triggered the application of the 15 years to
life punishment under section 667.61, subdivision (e). Defendant nevertheless argues the
“imposition of multiple 15-to-life terms for each offense committed against the same
victim in the absence of other enumerated qualifying One Strike circumstances should be
foreclosed . . . .”5 We disagree.
The plain meaning of the statutory language does not support the interpretation
suggested by defendant under section 667.61. “When the minimum number of former
subdivision (d) or (e) circumstances were pled and proved, the sentencing court should
have used them ‘as the basis for imposing the term provided in subdivision (a) or (b)
rather than . . . to impose the punishment authorized under any other law, unless another
law provides for a greater penalty.’” (People v. Valdez, supra, 193 Cal.App.4th at
p. 1522.) As recognized in Valdez, nothing in the statute “even hints at an intent to limit
the imposition of the subdivision (b) one strike life term, based on the multiple-victim
circumstance. Rather, it evinces the intent to ensure the greatest possible punishment
5 Relying on People v. Scott (1994) 9 Cal.4th 331, respondent argues defendant
forfeited his claim on appeal when defendant failed to object to the trial court’s
sentencing choices during the sentencing hearing. We disagree. In Scott, our Supreme
Court held that “complaints about the manner in which the trial court exercises its
sentencing discretion and articulates its supporting reasons cannot be raised for the first
time on appeal.” (Id. at p. 356.) The court opined that, “claims deemed waived on
appeal involve sentences which, though otherwise permitted by law, were imposed in a
procedurally or factually flawed manner.” (Id. at p. 354.) Here, defendant does not argue
the trial court abused its discretion in sentencing, or erred in its articulation in support of,
multiple indeterminate terms. Defendant’s claim involves a question of whether the
multiple victim circumstance can be applied to offenses involving a single victim.
Therefore, we reject respondent’s assertion of forfeiture.
6
under that sentencing scheme.” (Id. at p. 1523) We agree with the reasoning articulated
in Valdez.
In People v. Stewart (2004) 119 Cal.App.4th 163, the defendant was convicted of
multiple sex offenses, three of which involved the same victim. On appeal, the defendant
argued the court erred in applying the one strike law, claiming the court could not
“bootstrap offenses committed . . . against multiple victims onto the charges that arose
from his crimes against [one of the victims] alone.” (Id. at p. 170.) The court, however,
found no error. (Id. at pp. 171-172.) Even where the multiple-victim circumstance did
not apply, the court explained that where “a qualifying offense has been committed
against more than one victim, the criminal conduct is considered equally severe and that
conduct merits application of the statute so long as those offenses are prosecuted ‘in the
present case or cases.’” (Id. at p. 171, italics added.)
Here, defendant’s convictions included three counts of lewd acts upon K. (counts
2, 6, & 7), and one count of lewd act upon J. (count 8). The fact that defendant’s
indeterminate sentences were based upon offenses committed against the same victim,
K., does not render the multiple-victim circumstance inapplicable. To accept defendant’s
interpretation of the statute would cause “this circumstance [to] rarely, if ever, exist.”
(People v. Stewart, supra, 119 Cal.App.4th at p. 171.) Each charge against defendant
qualified as a subdivision (c) offense. All of the qualifying offenses were prosecuted in a
single case, and defendant was found guilty on those counts in the same trial. Like in
Stewart, the trial court properly applied the one strike law to counts 2 and 6 because
“there were multiple victims of defendant’s criminal acts and the offenses against each of
those victims were tried together in the present case.” (Id. at p. 172.)
Defendant argues the holding of People v. Jones (2001) 25 Cal.4th 98 should be
“limited to the type of offender whose conduct qualifies for One Strike treatment based
on aggravating circumstances attending the means of committing the underlying
qualifying and violent offenses . . . rather than the nature of the offender . . . .” This
argument is futile. The holding of Jones is irrelevant to the issue here. In Jones, the
court discussed the meaning of two specific phrases: (1) “single occasion” in section
7
667.61, former subdivision (g), and (2) “in the commission” in section 12022.3,
subdivision (a), and section 667.61, former subdivision (e)(4), for purposes of
determining whether a deadly weapon was used in the commission of a sex crime.6
(People v. Jones, supra, at pp. 103, 108.) Neither of these two issues shed any light on
whether the multiple victim circumstance applies when the offenses are committed
against a single victim. We decline to limit the holding of Jones as defendant requests.
In sum, we find no error in defendant’s sentence of two consecutive terms of 15
years to life.
DISPOSITION
The judgment is affirmed.
FLIER, J.
WE CONCUR:
BIGELOW, P. J.
GRIMES, J.
6 The Jones court held that sex offenses committed in “close temporal and spatial
proximity” occurred on a “single occasion” for purposes of section 667.61, former
subdivision (g). (People v. Jones, supra, 25 Cal.4th at p. 107.) In addition, the Jones
court concluded “ ‘a broad construction of the phrase “in the commission of” advances
the purpose of enhancements which provide for additional punishment when a weapon is
used . . . .’” (Id. at p. 111.)
8