Filed 7/14/15 P. v. Carreon 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065896
Plaintiff and Respondent,
v. (Super. Ct. No. SCD245606)
HECTOR MANUEL CARREON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Lorna A.
Alksne, Judge. Judgment affirmed; remanded for resentencing.
Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H.
Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
The trial court found defendant Hector Carreon guilty of 16 counts of lewd acts on
a child, in violation of Penal Code1 section 288, subdivision (a), based on conduct
occurring in 2001 or 2002 in which he sexually assaulted two named victims on three
separate occasions. The court sentenced Carreon to 15 years to life on each count, to run
consecutively to each other, for a total term of 240 years to life, and ordered the sentence
to run concurrently with a sentence imposed in a federal case that arose, in part, from
Carreon's possession of a videotape depicting his three assaults on the victims.
On appeal, Carreon argues only one 15-year-to-life term per victim per occasion
was permissible under the pre-2006 version of the one strike law (former § 667.61), and
therefore the maximum permissible term was 45 years to life.2 He also asserts
California's statutory and constitutional double jeopardy protections barred prosecution
and sentencing in the state proceeding because he was already punished for the sexual
assaults in the federal proceeding. He finally claims remand for resentencing is necessary
because the trial court failed to consider his probation eligibility.
1 All further statutory references are to the Penal Code unless otherwise specified.
2 Carreon's opening brief also asserted a 240-year-to-life sentence violated the ban
on cruel and unusual punishment. However, because the People have conceded (and we
agree) he could not be sentenced to 240 years to life, Carreon withdraws that claim
because he acknowledges three consecutive 15-year-to-life terms would not violate the
ban on cruel and unusual punishment.
2
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts
In June 2012, the United States government executed a search warrant on
Carreon's home after authorities became aware his home internet connection was
involved with child pornography. Agents executed a search warrant on Carreon's home
and arrested him. During the search, they found a videotape, depicting Carreon
molesting his great-niece (A.), apparently filmed sometime in June 2012.
Three days later, Carreon's wife found additional materials, including a videotape
containing three clips depicting "three different scenes," which she turned over to federal
agents. In the first clip, which lasted approximately 51 minutes and was filmed in the
family home in approximately 2002), Carreon molested a niece (V.) and committed
multiple lewd acts against her. These acts formed the basis for the charges contained in
counts 1 through 7. In the second clip, lasting approximately 20 minutes and also filmed
in the family home in approximately 2001 or 2002, Carreon molested another niece (B.)
and committed multiple lewd acts against her. In the third clip, lasting approximately 12
minutes and also filmed in the family home in approximately 2001 or 2002, Carreon
again molested B. by committing multiple lewd acts against her. The lewd acts by
Carreon against B. depicted in the second and third clips formed the basis for the charges
contained in counts 8 through 16. The trial court, as trier of fact, watched the videotape
and found Carreon guilty of all 16 counts and all specially alleged facts.
3
B. The Sentence
The court sentenced Carreon to 15 years to life on each of the 16 counts, to run
consecutively to each other, for a total term of 240 years to life. It also ordered the
sentence to run concurrently with a sentence imposed in a federal case (U.S. v. Carreon
(S.D. Cal.) No. 12CR3419-JAH) that apparently arose, in part, from Carreon's possession
of child pornography.
II
ANALYSIS
A. The Trial Court Erroneously Imposed 16 Consecutive Terms
Carreon asserts, and the People agree, that under the version of the one strike law
in effect at the time of the crimes, our Supreme Court's decision in People v. Jones
(2001) 25 Cal.4th 98 makes clear the trial court was limited to imposing a single life term
for each separate attack, regardless of the number of discrete crimes committed against
the victim during that separate attack, because the evidence showed all of the charged
offenses occurred "during an uninterrupted time frame and in a single location." (Id. at
p. 107 ["sex offenses [occur] on a 'single occasion' if they were committed in close
temporal and spatial proximity"; held: only single life sentence, rather than three
consecutive life sentences, for a sequence of sexual assaults by defendant against one
victim occurring during uninterrupted time frame and in single location].) We vacate the
sentence and remand the matter for resentencing. On remand, the trial court is authorized
to impose one life term under former section 667.61 for any single occasion, and on
remand the trial court must determine which counts shall be sentenced pursuant to former
4
section 667.61, and sentencing on other counts shall be imposed as authorized under any
other law, including the then-existing section 667.6, if applicable.3 (Stats. 1998, ch. 936,
§ 9, p. 6876.) (See People v. Simmons (2012) 210 Cal.App.4th 778, 797-798.)
B. Sentencing for the Assaults Is Not Barred by California Law
Carreon asserts California's double jeopardy protections barred the present
prosecution and sentence because he was punished in the federal action for the same
conduct that was the subject of the present prosecution.
Double Jeopardy Principles
"Both the United States and California Constitutions provide that a person may not
twice be placed in jeopardy for the same offense." (People v. Scott (1997) 15 Cal.4th
1188, 1201.) Although prosecution for the same act by different sovereigns is not barred
by the Fifth Amendment to the United States Constitution guarantee against double
jeopardy, states may provide greater double jeopardy protection than is afforded by the
federal Constitution. (People v. Lazarevich (2001) 95 Cal.App.4th 416, 421.) In
California, the relevant protections are contained in sections 793 and 656. (Lazarevich, at
p. 421.) Section 793 provides that "[w]hen an act charged as a public offense is within
the jurisdiction of the United States, or of another state or territory of the United States,
as well as of this state, a conviction or acquittal thereof in that other jurisdiction is a bar
to the prosecution or indictment in this state." Section 656 similarly provides that
3 As previously noted (see fn. 2, ante), our disposition renders moot Carreon's
subsidiary claim that a 240-year-to-life sentence violates the ban on cruel and unusual
punishment. Additionally, our determination that the matter requires remand for
resentencing also renders moot Carreon's claim that remand is necessary based on the
court's failure to articulate why it did not consider Carreon's eligibility for probation.
5
"[w]henever on the trial of an accused person it appears that upon a criminal prosecution
under the laws of the United States, or of another state or territory of the United States
based upon the act or omission in respect to which he or she is on trial, he or she has been
acquitted or convicted, it is a sufficient defense." "The difference between sections 793
and 656 'is of no legal significance; neither statute provides greater protection than the
other.' " (Lazarevich, at p. 421, quoting People v. Walker (1981) 123 Cal.App.3d 981,
985, fn. 1.)
To determine whether a defendant has been placed once in jeopardy in another
jurisdiction, the court must consider the physical elements of each crime. (People v.
Lazarevich, supra, 95 Cal.App.4th at p. 421.) "Construing the words ' "act or omission" '
as they are used in section 656, the Supreme Court in People v. Belcher (1974) 11 Cal.3d
91, 99 . . . explained that 'a defendant may not be convicted after a prior acquittal or
conviction in another jurisdiction if all the acts constituting the offense in this state were
necessary to prove the offense in the prior prosecution [citation]; however, a conviction
in this state is not barred where the offense committed is not the same act but involves an
element not present in the prior prosecution.' " (People v. Davis (2011) 202 Cal.App.4th
429, 437 (Davis).)
Ordinarily, it is the defendant's burden to establish the facts demonstrating he or
she has been placed in double jeopardy by reason of a prior conviction or acquittal.
(People v. Burkhart (1936) 5 Cal.2d 641, 643; People v. Morales (2003) 112 Cal.App.4th
1176, 1187; People v. Mason (1962) 200 Cal.App.2d 282, 285.) On appeal, "[w]hen the
double jeopardy question requires the trial court to resolve disputed facts, the appellate
6
court reviews the case under the substantial evidence standard. [Citation.] But, when the
facts are uncontradicted and different inferences cannot be drawn, the question of former
jeopardy is one of law for the court to decide. [Citation.] Moreover, determination of
whether double jeopardy applies in a case involving separate prosecutions of the same or
similar conduct in different jurisdictions requires the court to compare and construe the
applicable criminal statutes from both jurisdictions. [Citations.] The construction of a
statute is also a question of law. [Citation.] On appeal, we review questions of law de
novo." (Davis, supra, 202 Cal.App.4th at p. 438.)
Analysis
The record indicates Carreon's federal convictions were not predicated on the same
acts constituting the offenses charged in the present case,4 and he does not contend to the
contrary. This ordinarily would be fatal to a double jeopardy claim, because " 'a
conviction in this state is not barred where the offense committed is not the same act but
involves an element not present in the prior prosecution.' " (Davis, supra, 202
Cal.App.4th at p. 437.)
Carreon instead predicates his claim of a double jeopardy violation on his
contention that, because the sentence imposed by the federal court was enhanced based in
4 Carreon's showing falls short of satisfying his burden of establishing the facts
demonstrating he has been placed in double jeopardy by reason of the federal conviction.
Instead, the record at most shows he was convicted in the federal action of six counts,
five of which were alleged to have occurred between 2010 and 2012, and the sixth
alleged to have occurred in 2004. In contrast, the physical acts underlying the present
convictions were apparently based on conduct in approximately 2002 to 2003 as to victim
V., and between 2001 and 2002 as to victim B. Carreon has failed to satisfy his burden
of showing the factual basis for the federal convictions involved the same physical acts as
the acts underlying the present convictions.
7
part on the molestations he committed in 2001 and 2002, he was punished by the federal
court for the same conduct that underlay the present action. We are not persuaded by his
argument, for two reasons. First, it is Carreon's burden to establish the facts
demonstrating the alleged double jeopardy violation (People v. Burkhart, supra, 5 Cal.2d
at p. 643; People v. Morales, supra, 112 Cal.App.4th at p. 1187), and he has not done so
here. Although the transcript from the sentencing hearing in federal court5 does indicate
the sentencing judge "increased the base offense level" because of Carreon's "sexual
contact with the victim," the transcript does not identify which victim the court was
adverting to, or when such sexual contact occurred, and therefore Carreon has not
demonstrated the sentencing judge increased the base offense level based on the same
sexual contact with the same victims as was involved in the criminal charges brought in
the present case.6
More importantly, even if his federal sentence was elevated by consideration of
the same facts forming the basis for his convictions here, Carreon cites no authority
suggesting that selection of a sentence for a distinct crime based on such facts would
trigger either federal or California double jeopardy protections. The United States
5 We have granted Carreon's request to take judicial notice of the reporter's
transcript of the sentencing hearing in the federal action.
6 There is some evidence of a videotape involving sexual conduct with a different
great-niece (A.), and that there was sexual misconduct with A. occurring in 2012.
Because the federal record does not identify who the "victim" mentioned by the
sentencing judge was that suffered from the sexual contact, it is unclear that Carreon's
federal sentence was in fact "elevated" based on the same sexual contact that was the
basis for the state convictions.
8
Supreme Court explained in U.S. v. Watts (1997) 519 U.S. 148 that a sentencing court,
when calculating a sentence under the United States Sentencing Guidelines Manual,
could properly consider the facts underlying a charge on which the jury returned a verdict
of not guilty without violating the federal double jeopardy clause, reasoning those
"sentencing enhancements do not punish a defendant for crimes of which he was not
convicted, but rather increase his sentence because of the manner in which he committed
the crime of conviction." (Watts, at p. 154.)
The Watts court relied on its prior decision in Witte v. U.S. (1995) 515 U.S. 389,
which appears indistinguishable from the facts presented here. In Witte, the defendant
suffered a prior conviction and was subjected to an enhanced sentence in that first
proceeding based on certain facts. The defendant was subsequently indicted for crimes
based on those same facts, and the defendant moved to dismiss, arguing he had already
been punished for the newly charged offenses because the drugs involved in those
transactions had been considered as relevant conduct at sentencing for the prior offense.
(Id. at pp. 393-395.) The Witte court, noting its prior decisions had "specifically . . .
rejected the claim that double jeopardy principles bar a later prosecution or punishment
for criminal activity where that activity has been considered at sentencing for a separate
crime" (Witte, at p. 398, citing Williams v. Oklahoma (1959) 358 U.S. 576), adhered to its
approach and ruled that "[b]ecause consideration of relevant conduct in determining a
defendant's sentence within the legislatively authorized punishment range does not
constitute punishment for that conduct, the instant prosecution does not violate the
Double Jeopardy Clause's prohibition against the imposition of multiple punishments for
9
the same offense." (Id. at p. 406.) Accordingly, and as explained by Watts, "a sentencing
court could, consistent with the Double Jeopardy Clause, consider uncharged [criminal
acts] in imposing a sentence on [a separate charge] that was within the statutory range,
without precluding the defendant's subsequent prosecution for the [uncharged criminal
acts]." (U.S. v. Watts, supra, 519 U.S. at pp. 154-155.) The analysis in Witte and Watts
is fatal to Carreon's double jeopardy argument under the federal Constitution.
Carreon nevertheless argues that, because states may provide greater double
jeopardy protections than are afforded under the federal Constitution (People v. Homick
(2012) 55 Cal.4th 816, 839), the California proscriptions against double jeopardy bar this
prosecution. However, he cites no pertinent California cases supporting his claim, and
the analogous authorities appear to foreclose this argument. In People v. Johnson (2015)
60 Cal.4th 966, the defendant asserted the state could not introduce (during the penalty
phase of a capital prosecution) evidence he was guilty on a prior murder charge dismissed
pursuant to defendant's negotiated no-contest plea to voluntary manslaughter because it
would violate the proscription against double jeopardy. Rejecting that claim, Johnson
observed " '[t]he presentation of evidence of past criminal conduct at a sentencing hearing
does not place the defendant in jeopardy with respect to the past offenses. He is not on
trial for the past offense, is not subject to conviction or punishment for the past offense,
and may not claim either speedy trial or double jeopardy protection against introduction
of such evidence.' [Quoting People v. Visciotti (1992) 2 Cal.4th 1, 71.]" (People v.
Johnson, supra, 60 Cal.4th at p. 995.) The Johnson court also cited with approval its
prior opinion in People v. Melton (1988) 44 Cal.3d 713, in which it observed that "one is
10
not placed 'twice in jeopardy for the same offense' when the details of misconduct which
has already resulted in conviction and punishment, or in dismissal pursuant to a plea
bargain or for witness unavailability, are presented in a later proceeding on the separate
issue of the appropriate penalty for a subsequent offense." (Melton, at p. 756, fn. 17.)
Because these cases make clear the presentation of evidence of past criminal
conduct at a sentencing hearing or other proceeding for purposes of determining whether
an elevated sentence may be imposed for a current crime does not place the defendant in
jeopardy with respect to the past offenses under California's double jeopardy protections,
the federal court's consideration of Carreon's criminal conduct toward V. and B. at the
federal sentencing hearing (and imposition of an enhanced sentence based thereon) did
not bar the present prosecution under California's double jeopardy protections.
DISPOSITION
The judgment of conviction is affirmed. The sentence is vacated and the matter is
remanded to the trial court for resentencing in accordance with this opinion.
McDONALD, J.
WE CONCUR:
HALLER, Acting P. J.
McINTYRE, J.
11