Filed 10/1/20
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B301147
(Super. Ct. No. 16F-06179)
Plaintiff and Respondent, (San Luis Obispo County)
v.
MATTHEW ROLAND BETTS,
Defendant and Appellant.
The “One Strike” law (Pen. Code,1 § 667.61) mandates
indeterminate sentences for defendants who commit certain
sexual offenses under specified circumstances. (People v.
Carbajal (2013) 56 Cal.4th 521, 534.) The Legislature amended
the law in 2010 by adopting Assembly Bill No. 1844 (A.B. 1844),
which added subdivision (j)(2) to section 667.61. (See Stats. 2010,
* Pursuantto rules 8.1105(b) and 8.1110 of the California
Rules of Court, this opinion is certified for partial publication.
The portions of this opinion to be deleted from publication are
Factual and Procedural History and Parts 1, 3, 4, and 5 of the
Discussion.
1 Undesignated statutory references are to the Penal Code.
ch. 219, § 16; Legis. Counsel’s Dig., Assem. Bill No. 1844 (2009-
2010 Reg. Sess.).) This subdivision increased the penalties
imposed on defendants who commit certain sexual offenses
against minors. (Ibid.) The issue presented here is whether
convictions for committing lewd acts on a child are exempt from
the sentencing provisions of subdivision (j)(2). We conclude “that
the Legislature meant what it said” (People v. Gray (2014) 58
Cal.4th 901, 906 (Gray)), and that such convictions are subject to
the subdivision’s sentencing provisions.
A jury convicted Matthew Roland Betts of multiple
counts of sexual abuse against two children: three counts of oral
copulation or sexual penetration of a child under age 11 (§ 288.7,
subd. (b); counts 1, 3, & 7) and six counts of lewd acts on a child
under age 14 (§ 288, subd. (a); counts 2, 4, 5, 6, 8, & 9). The jury
also found true allegations that Betts committed his lewd acts
against more than one victim (§ 667.61, subd. (e)(4)) and that he
engaged in substantial sexual conduct when he committed the
crimes charged in counts 1 through 8 (§ 1203.066, subd. (a)(8)).
The trial court sentenced him to concurrent terms of 25 years to
life in state prison on counts 2, 4, 5, 6, 8, and 9 (§ 667.61, subd.
(j)(2)) and concurrent terms of 15 years to life on counts 1, 3, and
7 (§ 288.7, subd. (b)), for a total indeterminate term of 25 years to
life.
Betts contends: (1) the trial court prejudicially erred
when it admitted evidence on child sexual abuse accommodation
syndrome (CSAAS); (2) the sentences imposed on counts 2, 4, 5, 6,
8, and 9 were not authorized by section 667.61, subdivision (j)(2);
(3) the sentences imposed on counts 2, 4, 5, 6, and 8 violate the
prohibition against ex post facto laws; (4) the true findings on the
substantial sexual conduct allegations in counts 1, 2, 3, 5, 6, and
2
7 must be vacated; and (5) the abstract of judgment requires
correction. In the published portion of our opinion, we conclude
that the trial court properly sentenced Betts pursuant to section
667.61, subdivision (j)(2), for his convictions on counts 2, 4, 5, 6,
8, and 9. In the unpublished portion, we vacate the true findings
on six of the substantial sexual conduct allegations, order
correction of the abstract of judgment, and otherwise affirm.
FACTUAL AND PROCEDURAL HISTORY
Counts 1 – 8
Elly was born in September 2002. When she was
three or four years old, her mother, Victoria, began dating Betts.
Victoria and Betts dated until the end of 2012.
Betts frequently stayed at Victoria’s home. For a few
years, beginning when Elly was six or seven years old, Victoria
attended weekly Alcoholics Anonymous meetings. Betts would
watch Elly while Victoria went to the meetings.
According to Elly, on some of those evenings Betts
pulled down her pants and touched her vagina and buttocks. He
also digitally penetrated her. He put her hand on his penis. Elly
did not disclose what Betts had done to her until an eighth-grade
friend said that something similar had happened to her.
Victoria and Elly eventually moved to Hawaii, but
returned to California in 2016 to visit. During the visit, they had
dinner with Betts. Betts also gave Elly rides and exchanged
messages with her about her boyfriend.
Around this time, Victoria noticed that Elly was
having behavioral problems, and took her to see a counselor. Elly
told the counselor what Betts had done to her, and the counselor
told Victoria, who notified the police. Elly initially told police
that the incidents with Betts had happened when she was nine or
3
10 years old. She later remembered that, when she was seven
years old, she had oral surgery and was afraid the anesthesia
would make her say something about what Betts had done to her.
This led her to believe that Betts may have started abusing her
earlier than she originally thought.
Count 9
Keely was born in July 2007. Betts was friends with
Keely’s father, Robert. In March 2016, Betts went to Robert’s
home to watch a presidential debate. At one point during the
debate Betts touched Keely’s thigh. Keely moved his hand away.
As the debate continued Betts touched the area around Keely’s
vagina. She again moved his hand away. Robert saw what Betts
had done and told him to leave. After he left, Keely told Robert
what had happened. They reported the incident to police.
Police interviewed Betts the following month. He
denied Keely’s allegations. He said he may have accidentally
touched her shoulder or knee, but did not touch her
inappropriately.
Charges and allegations
Prosecutors charged Betts with eight counts related
to his abuse of Elly between September 2012 and September
2013: three counts of oral copulation or sexual penetration of a
child under age 11 (counts 1, 3, & 7), and five counts of lewd acts
on a child under age 14 (counts 2, 4, 5, 6, & 8). They charged him
with a single count of lewd acts on a child for touching Keely
(count 9). They also alleged that Betts committed lewd acts
against multiple victims, and that he engaged in substantial
sexual conduct when committing counts 1, 2, 3, 4, 7, and 8.
4
CSAAS evidence
Prior to trial, prosecutors moved to admit expert
testimony about CSAAS and the common behaviors of child
sexual abuse victims. The trial court ruled that prosecutors could
present testimony about CSAAS, but testimony regarding
percentages was not admissible.
Betts moved to exclude any prosecution witnesses
from opining about witness credibility. The court granted Betts’s
motion, but said that it would entertain specific objections on a
question-by-question basis.
At trial, Dr. Anthony Urquiza explained that CSAAS
evidence is not intended to determine whether a sexual abuse
allegation is true. Rather, such evidence helps to explain many of
the common behaviors of child victims. He said that “most
[abused] children are sexually abused by someone . . . they know
and [with whom] they have some type of ongoing relationship
. . . . And . . . that person . . . is usually somebody who is bigger,
older, stronger, more knowledgeable, in a position of power or
control or authority.” Victims thus tend to keep quiet about the
abuse for a long time, especially “if the people who are assigned
to keep the kids safe . . . are in some way impaired [sic] in that
activity.”
Dr. Urquiza said that “most kids have difficulty
remembering details about what happened” to them. But “[d]oes
that mean they can’t remember? No, absolutely not.” He also
testified that “[i]t’s sometimes puzzling to people that they may
want to be around somebody who’s sexually abusing them. . . .
[¶] But if you understand that sometimes kids have a
relationship that they enjoy or that they like, and in a family-
base[d] situation maybe even love that person, even though they
5
are also being sexually abused, then they might want to be part
of that relationship that they like, especially if they can
accommodate or cope with the experience of sexual abuse, being
sexually abused. That seems like an unusual thing, but it
happens all the time.”
DISCUSSION
1. CSAAS evidence
Betts first contends the trial court prejudicially erred
when it permitted prosecutors to present irrelevant and
prejudicial testimony from Dr. Urquiza. But because Betts did
not object to the testimony on these grounds at trial, his
contention is forfeited. (People v. Merriman (2014) 60 Cal.4th 1,
84.)
Alternatively, Betts claims counsel provided
ineffective assistance when he did not object to Dr. Urquiza’s
testimony. This claim requires Betts to show that counsel
performed deficiently and that that deficient performance
resulted in prejudice. (People v. Hoyt (2020) 8 Cal.5th 892, 958.)
He fails to make the first of these showings here.
Expert testimony on CSAAS is inadmissible to prove
that a child has been sexually abused. (People v. McAlpin (1991)
53 Cal.3d 1289, 1300 (McAlpin).) But it is admissible to
rehabilitate the child’s credibility where the defendant suggests
that their conduct is inconsistent with their claims of abuse.
(Ibid.) “‘Such expert testimony is needed to disabuse jurors of
commonly held misconceptions about child sexual abuse, and to
explain the emotional antecedents of abused children’s seemingly
self-impeaching behavior.’” (Id. at p. 1301.)
Here, the evidence showed that both Elly and Keely
delayed reporting Betts’s abuse, that their initial reports were
6
not fully consistent with their later discussions, and, in Elly’s
case, that she continued to interact with Betts after his abuse.
The trial court therefore did not abuse its discretion when it
allowed Dr. Urquiza’s testimony to rehabilitate their credibility
and to explain misconceptions about their reactions to the abuse
they endured. (McAlpin, supra, 53 Cal.3d at pp. 1299-1302.)
Betts thus cannot show that counsel performed deficiently.
(People v. Anderson (2001) 25 Cal.4th 543, 587 [counsel need not
lodge futile objection].)
This case is unlike People v. Julian (2019) 34
Cal.App.5th 878, on which Betts relies. In Julian, Dr. Urquiza
repeatedly referred to statistics on the likelihood of false sexual
abuse allegations. (Id. at pp. 885-887.) This improper testimony
“tipped the scales” in prosecutors’ favor given the conflicts in the
evidence, the “serious” inconsistencies in the victims’ recollections
of the defendant’s alleged abuse, and the fact that the case was
essentially a credibility contest between the defendant and the
alleged victims. (Id. at pp. 887-888.) Here, in contrast, Dr.
Urquiza did not cite any statistics on the falsity of sexual abuse
allegations. And the evidence against Betts was much stronger
than in Julian, with fewer evidentiary conflicts and the existence
of non-victim witnesses—including Keely’s father, Robert—to
some of his abuse.
2. Section 667.61, subdivision (j)(2)
Betts contends the sentences on counts 2, 4, 5, 6, 8,
and 9 must be reduced to 15 years to life because section 667.71,
subdivision (j)(2), does not apply to convictions for lewd acts on a
child under age 14. We disagree.
The application of section 667.71, subdivision (j)(2),
presents an issue of statutory interpretation for our independent
7
review. (People v. Tran (2015) 61 Cal.4th 1160, 1166.) Our
fundamental task is to ascertain the Legislature’s intent when it
enacted the subdivision. (Smith v. Superior Court (2006) 39
Cal.4th 77, 83.) We begin with its words, giving them their plain,
commonsense meanings. (People v. Gonzalez (2017) 2 Cal.5th
1138, 1141.) We interpret those words in the context of section
667.61 as a whole (People v. Blackburn (2015) 61 Cal.4th 1113,
1123), harmonizing them with the section’s other provisions
whenever possible (People v. Valencia (2017) 3 Cal.5th 347, 357-
358 (Valencia)). If no ambiguity appears, “we presume that the
Legislature meant what it said, and the plain meaning of the
[subdivision] controls.” (Gray, supra, 58 Cal.4th at p. 906.) We
will follow that meaning unless doing so would lead to absurd
results the Legislature did not intend. (People v. Ledesma (1997)
16 Cal.4th 90, 95.)
If we conclude that the meaning of subdivision (j)(2)
is ambiguous, we may examine the legislative history to
determine the Legislature’s intent. (People v. Scott (2014) 58
Cal.4th 1415, 1421.) We may also consider the impact of an
interpretation on public policy and the consequences that may
flow from it. (Mejia v. Reed (2003) 31 Cal.4th 657, 663.) But we
cannot insert words into the subdivision that the Legislature has
omitted. (People v. Guzman (2005) 35 Cal.4th 577, 587
(Guzman); see Code Civ. Proc., § 1858.) Our job is not to rewrite
a statute to conform to an assumed intent that does not appear
from its language. (People v. Superior Court (Pearson) (2010) 48
Cal.4th 564, 571.)
The Legislature enacted the One Strike law to
increase the penalties imposed on defendants who commit certain
sexual offenses under specified circumstances. (Sen. Bill. No. 26,
8
Stats. 1993-1994, ch. 14, § 1.) The more serious circumstances
were listed in subdivision (d) of section 667.61, the less serious in
subdivision (e). (People v. Lopez (2004) 119 Cal.App.4th 355,
360.) The penalty imposed depended on the number and
seriousness of those circumstances: If a defendant committed an
offense “under one or more of the circumstances specified in
subdivision (d) or under two or more of the circumstances
specified in subdivision (e),” they were to be sentenced to 25 years
to life in state prison. (Former § 667.61, subd. (a).) If they
committed their offense under just one of the circumstances
specified in subdivision (e), however, they were to be sentenced to
15 years to life in prison. (Former § 667.61, subd. (b).) The age of
the victim was not a factor under this scheme.
The One Strike law has been amended several times,
including to increase the number of offenses to which its
provisions apply and to mandate consecutive sentences for
defendants convicted of certain offenses. (See Prop. 83, Gen.
Elec. (Nov. 7, 2006), § 12; Senate Bill No. 1128, Stats. 2006, ch.
337, § 33.) The most recent substantive amendments were made
in 2010, when the Legislature increased the penalties imposed on
defendants convicted of sexual offenses against minors. (See
Stats. 2010, ch. 219, § 16; Legis. Counsel’s Dig., A.B. 1844 (2009-
2010 Reg. Sess.).) Under the current version of the law, the
penalty imposed on a defendant depends not only on the
circumstances underlying their offense but also on the nature of
the offense itself and the ages of the victim and the defendant.
A defendant is now subject to the One Strike law’s
sentencing provisions if they commit one of nine listed sexual
offenses. (See § 667.61, subd. (c).) Three of those offenses require
proof that the victim was under 14 years of age at the time of the
9
offense: lewd acts on a child, in violation of section 288,
subdivision (a); forcible lewd acts on a child, in violation of
section 288, subdivision (b); and continuous sexual abuse of a
child, in violation of section 288.5. (§ 667.61, subds. (c)(4), (c)(8),
& (c)(9).) With one exception, the law mandates the harshest
penalties for defendants convicted of one of these offenses, or one
of the other six offenses listed in subdivision (c) if the victim was
under 14 years of age: “Any person who is convicted of an offense
specified in subdivision (c), with the exception of a violation of
subdivision (a) of [s]ection 288, upon a victim who is a child under
14 years of age under one or more of the circumstances specified
in subdivision (d) or under two or more of the circumstances
specified in subdivision (e), shall be punished by imprisonment in
the state prison for life without the possibility of parole. Where
the person was under 18 years of age at the time of the offense,
the person shall be punished by imprisonment in the state prison
for 25 years to life.” (Id., subd. (j)(1).) “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.” (Id., subd.
(j)(2).) The law mandates the same penalties for defendants
whose victims are minors 14 years of age or older, but only if they
were convicted of one of a more narrow list of offenses. (Id.,
subds. (l), (m), & (n).)
A straightforward application of section 667.61’s
provisions reveals no sentencing error here. Lewd or lascivious
acts against a child under age 14 is an offense specified in
subdivision (c)(8). Committing that offense against multiple
victims is a circumstance specified in subdivision (e)(4). Thus,
10
pursuant to subdivision (j)(2), the trial court properly imposed
sentences of 25 years to life in prison on counts 2, 4, 5, 6, 8, and 9.
Betts disagrees. He points out that, unlike most of
the other offenses listed in subdivision (c), a conviction for lewd
acts on a child already requires the victim to be under 14 years
old. Applying the penalty mandated by subdivision (j)(2) to such
a violation, he argues, renders that subdivision’s phrase “upon a
victim who is a child under 14 years of age” mere surplusage. To
Betts, this shows that the Legislature intended to exempt lewd
acts on a child convictions from this subdivision’s provisions, as it
did with subdivision (j)(1). (Cf. Valencia, supra, 3 Cal.5th at p.
357 [a “‘construction making some words surplusage is to be
avoided’”].)
The rule against surplusage is not so rigid. (In re
J. W. (2002) 29 Cal.4th 200, 209.) Betts is correct that applying
subdivision (j)(2) to lewd acts on a child convictions renders some
of the language in the subdivision surplusage. But the same is
true when the subdivision is applied to convictions for forcible
lewd acts on a child and continuous sexual abuse of a child. And
for defendants who commit one of those three offenses under the
circumstance specified in subdivision (d)(7). (See § 667.61, subd.
(d)(7) [infliction of bodily harm on a victim “under 14 years of
age”].) Exempting these offenses from the One Strike law’s
harsher penalties for defendants who commit sexual offenses
against children would require us to elevate the rule against
surplusage over legislative intent. That we cannot do. (People v.
Rizo (2000) 22 Cal.4th 681, 687 [minor redundancies permissible
when they effectuate legislative intent].)
Betts also argues that applying subdivision (j)(2) to
lewd acts on a child convictions renders subdivision (b)
11
surplusage. This argument confuses surplusage with
inapplicability. Simply because a sentencing provision does not
apply to certain convictions does not mean that that provision is
surplusage; surplusage results when a provision does apply. By
its very terms (“[e]xcept as provided in subdivision (a), (j), (l), or
(m)”), subdivision (b) does not apply when subdivision (j)(2) does.
Next, Betts claims that a straightforward
interpretation of subdivision (j)(2) creates an anomaly between
the sentencing scheme for lewd acts on a child and that for all
other offenses listed in subdivision (c). A defendant convicted of
lewd acts on a child will be sentenced to 25 years to life in prison
no matter whether they committed their crime under one or more
of the circumstances specified in subdivision (d) or one or more of
the circumstances specified in subdivision (e). (§ 667.61, subds.
(a) & (j)(2).) But a defendant convicted of forcible lewd acts on a
child or continuous sexual abuse of a child is subject to two
possible sentences: 25 years to life if the offense was committed
under one subdivision (e) circumstance, or life without the
possibility of parole if it was committed under one or more of the
circumstances specified in subdivision (d) or two or more of the
circumstances specified in subdivision (e).2 (Id., subds. (j)(1) &
(j)(2).) And if the defendant is convicted of one of the six other
offenses listed in subdivision (c), they are subject to a sentence
ranging from 15 years to life in prison (id., subd. (b)) to 25 years
to life (id., subds. (a), (j)(1), (j)(2), (l), & (m)) to life without the
possibility of parole (id., subds. (j)(1) & (l)), depending on the
2 The consequences are different if the forcible lewd acts on
a child or continuous sexual abuse of a child was committed by a
minor: 25 years to life, regardless of the circumstances.
(§ 667.61, subds. (j)(1) & (j)(2).)
12
nature of the offense, the circumstances under which it was
committed, the age of the victim, and the age of the defendant.
We perceive no anomaly in this multi-tiered
sentencing scheme. As set forth above, the purpose of A.B. 1844
was to increase the penalties imposed on defendants who
committed sexual offenses against minors. The bill did just that:
It increased the penalty from 25 years to life to life in prison
without the possibility of parole for a defendant who committed
any one of six listed offenses on a minor under one or more
subdivision (d) circumstances or two or more subdivision (e)
circumstances. (Compare former § 667.61, subd. (a) with current
§ 667.61, subds. (j)(1) & (l).) It increased the penalty from 25
years to life to life without the possibility of parole for a
defendant who committed either of two additional offenses on a
child under 14 under one subdivision (d) circumstance or two
subdivision (e) circumstances. (Compare former § 667.61, subd.
(a) with current § 667.61, subd. (j)(1).) It increased the penalty
from 15 years to life to 25 years to life for a defendant who
committed any of six listed offenses on a minor under one
subdivision (e) circumstance. (Compare former § 667.61, subd.
(b) with current § 667.61, subds. (m) & (j)(2).) And it increased
the penalty from 15 years to life to 25 years to life for a defendant
who committed any of three listed offenses on a child under 14
under one subdivision (e) circumstance. (Compare former
§ 667.61, subd. (b) with current § 667.61, subd. (j)(2).)
That A.B. 1844 did not similarly increase the penalty
for a defendant who committed lewd acts on a child under one
subdivision (d) circumstance or two subdivision (e) circumstances
does not suggest that the Legislature intended for the exception
set forth in subdivision (j)(1) (“with the exception of a violation of
13
subdivision (a) of [s]ection 288”) to also apply to subdivision (j)(2).
Were that the case, A.B. 1844 would not have increased the
penalty for committing lewd acts on a child at all; it would still be
subject to subdivisions (a) and (b) rather than (a) and (j)(2).
Betts argues that subjecting lewd acts on a child
convictions to subdivision (j)(2)’s sentencing provisions means
that such convictions will never be subject to the sentencing
provisions of subdivisions (a) and (b). The opposite is true: lewd
acts on a child is the only offense listed in section 667.61 that can
be committed against a minor and be subject to subdivision (a)’s
sentencing provisions. Every other listed offense committed
against a minor is subject to the stricter sentencing provisions of
subdivisions (j)(1), (j)(2), (l), and (m).
Betts also claims that subjecting lewd acts on a child
convictions to subdivision (j)(2) would incentivize a defendant to
commit their crime in a more heinous manner since they would
receive the same sentence no matter how many circumstances
listed in subdivisions (d) and (e) were found true. But many of
the circumstances listed in those subdivisions—inflicting
mayhem or torture or other bodily injury on the victim, tying or
binding the victim, using a deadly weapon—would elevate the
offense from lewd acts on a child to forcible lewd acts on a child,
subjecting the defendant to the harsher sentencing provisions of
subdivision (j)(1). And while we presume that all people know
the law (Arthur Andersen v. Superior Court (1998) 67
Cal.App.4th 1481, 1506-1507), we question whether that
presumption applies to “‘Byzantine’” sentencing laws that can be
“‘bewildering in [their] complexit[ies]’” (People v. Winslow (1995)
40 Cal.App.4th 680, 684, fn. 1).
14
Finally, Betts argues the “rule of lenity” requires us
to exempt lewd acts on a child convictions from the provisions of
subdivision (j)(2). But as our Supreme Court has stated, “‘“the
rule of lenity applies ‘only if two reasonable interpretations of the
statute stand in relative equipoise.’”’” (People v. Cornett (2012)
53 Cal.4th 1261, 1271.) It “‘has no application where, “as here, a
court ‘can fairly discern a contrary legislative intent.’”’
[Citations.]” (Ibid.)
We conclude that lewd acts on a child convictions are
not exempt from the sentencing provisions of section 667.61,
subdivision (j)(2). We accordingly decline Betts’s invitation to
insert the exemption contained in subdivision (j)(1) into
subdivision (j)(2). (Guzman, supra, 35 Cal.4th at p. 587.)
3. The prohibition against ex post facto laws
Betts contends the sentences on counts 2, 4, 5, 6, and
8 violate the prohibition against ex post facto laws because the
jury did not determine that he committed these offenses after the
Legislature enacted section 667.61, subdivision (j)(2). (See People
v. White (2017) 2 Cal.5th 349, 360 [“A statute violates the
prohibition against ex post facto laws if it . . . increases the
punishment for a crime after it is committed.”].) But A.B. 1844
went into effect in September 2010. (Stats. 2010, ch. 219, § 29.)
The amended information stated that Betts committed counts 2,
4, 5, 6, and 8 between September 2012 and September 2013. And
the verdict forms stated that the jury found Betts guilty of the
charges “as alleged . . . in the amended information.” The jury
thus necessarily determined that Betts committed his crimes at
least two years after the Legislature added subdivision (j)(2) to
section 667.61.
15
4. Substantial sexual conduct allegations
Betts contends, and the Attorney General concedes,
that the true findings on the substantial sexual conduct
allegations tied to counts 1, 2, 3, 5, 6, and 7 must be vacated. We
agree.
A defendant convicted of violating section 288 or
288.5 is ineligible for probation if they had “substantial sexual
conduct with a victim . . . under 14 years of age.” (§ 1203.066,
subd. (a)(8).) “‘Substantial sexual conduct’ means penetration of
the vagina or rectum of either the victim or the [defendant] by
the penis of the other or by any foreign object, oral copulation, or
masturbation of either the victim or the [defendant].” (Id., subd.
(b).) Subject to an exception not relevant here, section 1203.066
applies only “if the existence of any fact required in [subdivision
(a)(8)] is alleged in the accusatory pleading and is either admitted
by the defendant in open court, or found to be true by the trier of
fact.” (Id., subd. (c)(1).)
Here, the substantial sexual conduct allegation did
not apply to counts 1, 3, and 7 because those counts charged
violations of 288.7, not section 288 or section 288.5. (§ 1203.066,
subd. (a)(8).) The allegation did not apply to count 2 because the
act underlying that charge—when Betts grabbed Elly’s
buttocks—does not meet the definition of “substantial sexual
conduct.” (Id., subd. (b).) And it did not apply to counts 5 or 6
because prosecutors did not allege it in conjunction with those
charges in the information. (Id., subd. (c)(1).) The true findings
on these allegations must accordingly be vacated.
16
5. Abstract of judgment
Finally, Betts contends, and the Attorney General
again concedes, that the abstract of judgment must be corrected.
We agree.
When an abstract of judgment does not accurately
reflect the trial court’s oral pronouncement of sentence, an
appellate court may order correction of the error. (People v. Myles
(2012) 53 Cal.4th 1181, 1222, fn. 14.) The court below sentenced
Betts to concurrent terms of 25 years to life in prison on counts 2,
4, 5, 6, 8, and 9, and concurrent terms of 15 years to life on counts
1, 3, and 7. But the abstract of judgment does not list the
sentence on count 1 as concurrent. It does not list the conviction
on count 2. And it does not specify the length of the sentences
imposed on counts 8 and 9. These errors and omissions must be
corrected.
DISPOSITION
The true findings on the substantial sexual conduct
allegations tied to counts 1, 2, 3, 5, 6, and 7 are vacated. The
matter is remanded to the trial court with directions to order the
clerk of the court to prepare a new abstract of judgment that: (1)
omits those six findings, (2) states that the sentence imposed on
count 1 is to run concurrently with those imposed on all other
counts, (3) includes Betts’s conviction on count 2, and (4) specifies
the lengths of the sentences imposed on counts 8 and 9. After
preparing the new abstract, the clerk shall forward a certified
17
copy to the Department of Corrections and Rehabilitation. In all
other respects, the judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION.
TANGEMAN, J.
We concur:
YEGAN, Acting P. J.
PERREN, J.
18
Matthew G. Guerrero, Judge
Superior Court County of San Luis Obispo
______________________________
Joshua L. Siegel, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Paul M. Roadarmel, Jr. and
Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff
and Respondent.