People v. Nevarez CA2/7

Filed 10/15/20 P. v. Nevarez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B299571

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA089364)
v.

EPIFANIO NEVAREZ,

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Los
Angeles County, Hayden Zacky, Judge. Convictions affirmed and
remanded for resentencing.
Edward H. Schulman, 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, Senior
Assistant Attorney General, Michael R. Johnsen, Supervising
Deputy Attorney General, and David E. Madeo, Deputy Attorney
General, for Plaintiff and Respondent.
 INTRODUCTION

Epifanio Nevarez appeals from the judgment entered after
the trial court, following a court trial, found he committed
multiple sexual offenses against his step-granddaughter,
Krystal C., beginning when she was nine years old. Nevarez
contends the court erred in denying his pretrial motion to dismiss
the charges as an impermissible multiple prosecution under
Penal Code section 654.1 He argues section 654 barred the
People from bringing the charges because, despite having the
necessary evidence, they did not bring them five years earlier
when they prosecuted him for—and he pleaded no contest to—
sexually abusing Krystal’s 13-year-old friend, Daisy O. Nevarez
also contends that, on one of his convictions in this case, the court
erroneously sentenced him under the one strike law,
section 667.61, and the Habitual Sexual Offender law,
section 667.71. We agree the court erred in sentencing Nevarez
on the conviction in question, but disagree section 654 barred this
prosecution. Therefore, we vacate the challenged sentences,
direct the trial court to resentence Nevarez, and affirm in all
other respects.

FACTUAL AND PROCEDURAL BACKGROUND

A. Nevarez Forms a Sex Club
In the summer of 2012, when Krystal and her classmate
Daisy were 13 years old, Krystal invited Daisy to go camping
with her family. On this trip Krystal told Daisy she was part of a
“sex club” that her grandfather, Nevarez, “was in charge of,” and
she asked Daisy if she wanted to join. Daisy eventually said yes.

1 Statutory references are to the Penal Code.

2
When school resumed in August, Krystal introduced Daisy to
Nevarez, who worked at the school as the girls’ softball coach.
Nevarez made clear to Daisy she should not say anything to
anyone about the club.
On August 16, 2012 Nevarez drove Krystal and Daisy to his
house after school. The three went to Nevarez’s bedroom, where
he told them to take off their clothes. Nevarez had sexual
intercourse with both girls and directed them to give him a “blow
job,” all while both girls were present. Approximately once a
week for the next four months, Nevarez drove Krystal and Daisy
to his house after school and had oral sex and sexual intercourse
with them. He repeatedly told Daisy that she could not tell
anyone about the sex club and that, if she did, he and Krystal
would say she was lying. Krystal confirmed to Daisy she would
deny anything ever happened. The last day Daisy had sex with
Nevarez was December 14, 2012.
In early March 2013 Daisy’s sister discovered an entry
Daisy had made on a personal electronic device: “August 16,
2012 is the day I lost my . . . .” She also saw on the device several
messages from Nevarez. When Daisy’s sister confronted her
about this discovery, Daisy told her about the four months of
Nevarez’s sexual activity with her. Daisy’s sister took her to the
police station, where Daisy reported what Nevarez had done to
her. She also reported that Nevarez had engaged in sexual
activity with Krystal.

B. The Police Investigate Nevarez, Who Pleads No
Contest in 2013 to Sexually Abusing Daisy
Detective Eliott Uribe investigated Daisy’s report. He
interviewed Nevarez, who at first denied any inappropriate
behavior with Daisy. After a polygraph test, however, Nevarez
changed his story. Although he continued to deny he ever had

3
sexual intercourse with Daisy, he admitted he kissed her four or
five times on the lips and on three or four occasions “grabbed her
ass.” He also admitted that “he allowed Daisy to rub his erect
penis” and that “there were times when he would rub his erect
penis against Daisy.” He admitted, too, that Daisy “excited” him
and that he pictured himself “doing shit to Daisy.”
Nevarez denied anything inappropriate had ever occurred
between him and Krystal. Krystal also told Detective Uribe that
Nevarez had never touched her “in any bad way,” and Detective
Uribe concluded he did not need to continue questioning her
because “she was so adamant that nothing had happened.”
Krystal also denied knowing about anything inappropriate
between Nevarez and Daisy. When Detective Uribe interviewed
Krystal’s mother (Nevarez’s stepdaughter), she stated that she
and Nevarez had a “good” “relationship,” that she had never seen
him behave inappropriately with Krystal or anyone else, and that
she felt “safe having Krystal around [him].”
Based on his sexual activity with Daisy, the People charged
Nevarez with four counts of committing a lewd or lascivious act
on a child under the age of 14 years (§ 288, subd. (a)). In
September 2013 Nevarez pleaded no contest to one of those
counts, and the court sentenced him to six years in prison.

C. The People Charge Nevarez in 2018 with Sexually
Abusing Krystal
In November 2016, 17-year-old Krystal told her mother
“she was raped several times by” Nevarez. She explained that,
because of a recently successful ballot proposition giving sexual
offenders the opportunity for early release, she was “scared” that
Nevarez “was going to get out of jail early” and that he would “do
the same things he did.” Krystal’s mother took her to the police
station, where Krystal told the police Nevarez molested her from

4
the time she was nine years old to the time she was 13. She
estimated Nevarez had sexual intercourse with her “over one
hundred times” during that period. She also described how
Nevarez had pressed her, when she was 13, to have Daisy join
“the club.”
In March 2018 the People charged Nevarez with various
crimes arising out of his sexual abuse of Krystal: two counts
(1 and 2) of having sexual intercourse or sodomy with a child
10 years old or younger (§ 288.7, subd. (a)) during the period
August 15, 2008 to August 14, 2010; two counts (3 and 4) of orally
copulating with or sexual penetrating a child 10 years old or
younger (§ 288.7, subd. (b)) during the period August 15, 2008 to
August 14, 2010; one count (5) of continuous sexual abuse of a
child under the age of 14 years (§ 288.5, subd. (a)) during the
period August 15, 2010 to August 14, 2012; and one count (6) of
committing a lewd or lascivious act on a child under the age of 14
years (§ 288, subd. (a)) during the period August 15, 2012 to
August 14, 2013. In connection with counts 5 and 6 the People
alleged Nevarez was previously convicted of a qualifying offense
under sections 667.61 and 667.71; namely, his 2013 conviction for
sexually abusing Daisy.

D. Nevarez Unsuccessfully Moves To Dismiss the 2018
Charges, and the Trial Court Convicts Him
Before trial Nevarez filed a motion to dismiss the charges
on the ground they came within the prohibition against multiple
prosecutions under section 654 and Kellett v. Superior Court
(1966) 63 Cal.2d 822 (Kellett). Nevarez argued, “The incidences
alleged in both cases [(the charges that stemmed from the abuse
of Krystal and the charges that stemmed from the abuse of
Daisy)] involve[d] basically the same time period and took place
when all 3 people were present at the same time, while engaging

5
in group sexual activity.” Nevarez argued that Daisy was a
credible, percipient witness who could have supplied the evidence
necessary to support charges against him in 2013 for the alleged
abuse of Krystal. He also argued that in 2013 the People did not
diligently investigate the alleged abuse of Krystal.
At a hearing on the motion, the prosecutor stated that she
was the filing deputy when the People brought charges against
Nevarez in 2013 and that there was not enough evidence at that
time to prove charges relating to Krystal beyond a reasonable
doubt. She explained that Krystal “flat out denied anything ever
happened to her” and that Nevarez denied any wrongdoing
relating to Krystal, whereas he admitted to criminal conduct with
Daisy. The prosecutor argued that “the majority of the conduct
charged involving Krystal stems from behavior that nobody ever
knew about until Krystal came to report to the police once
[Nevarez] was already incarcerated in prison.”
The trial court denied the motion, ruling Kellett did not bar
the People from prosecuting the current charges against Nevarez.
The court distinguished Kellett, observing it involved “two
separate prosecutions for possession of the same gun, [whereas]
this case involves separate and distinct victims, separate times
and different locations.” In addition, responding to the People’s
argument that, despite acting with due diligence, they were
unable to discover the evidence necessary to sustain a conviction
for Nevarez’s offenses against Krystal until she came forward in
2016, the court agreed that “the fact that law enforcement may
have suspected that the defendant victimized Krystal does not
mean that the current prosecution is barred by Kellett.” The
court found that “the People did investigate whether or not
Krystal was a victim. They confronted her. They asked her. She
denied it. They confronted [Nevarez] [and] asked him. He denied
it.”

6
 After a court trial, the trial court found Nevarez guilty on
all counts and found true the allegations he was previously
convicted of a qualifying offense under sections 667.61 and
667.71. The court sentenced Nevarez to an aggregate prison term
of 90 years to life as follows: consecutive terms of 25 years to life
on counts 1 and 2; a consecutive term of 15 years to life on
count 3; a concurrent term of 15 years to life on count 4; a
consecutive term of 25 years to life on count 5 under the one
strike law, plus a term of 25 years to life under the Habitual
Sexual Offender law, the latter imposed and stayed under
section 654; and a concurrent term of 25 years to life on count 6
under the one strike law, plus a term of 25 years to life under the
Habitual Sexual Offender law, the latter imposed and stayed
under section 654. Nevarez timely appealed.

DISCUSSION

A. The Trial Court Did Not Err in Denying Nevarez’s
Motion To Dismiss the Charges
Nevarez contends the trial court erred in denying his
motion to dismiss the charges in this case because the rule
against multiple prosecutions stated in Kellett, supra, 63 Cal.2d
822 precluded the People from bringing the charges. The rule
against multiple prosecutions did not apply, however, because the
“unavailable evidence” exception applied.

1. Applicable Law and Standard of Review
Section 654, subdivision (a), provides, “An act or omission
that is punishable in different ways by different provisions of law
shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the
act or omission be punished under more than one provision. An

7
acquittal or conviction and sentence under any one bars a
prosecution for the same act or omission under any other.” (See
People v. Goolsby (2015) 62 Cal.4th 360, 365-366; People v. Valli
(2010) 187 Cal.App.4th 786, 794.) “This provision thus bars
multiple prosecutions for the same act or omission where the
defendant has already been tried and acquitted, or convicted and
sentenced.” (People v. Davis (2005) 36 Cal.4th 510, 557 (Davis);
accord, People v. Linville (2018) 27 Cal.App.5th 919, 928.)
In Kellett, supra, 63 Cal.2d 822 the Supreme Court
addressed section 654’s bar on multiple prosecutions and held:
“When . . . the prosecution is or should be aware of more than one
offense in which the same act or course of conduct plays a
significant part, all such offenses must be prosecuted in a single
proceeding unless joinder is prohibited or severance permitted for
good cause. Failure to unite all such offenses will result in a bar
to subsequent prosecution of any offense omitted if the initial
proceedings culminate in either acquittal or conviction and
sentence.” (Kellett, at p. 827; accord, People v. Goolsby, supra,
62 Cal.4th at p. 366; Davis, supra, 36 Cal.4th at p. 557.) The
Supreme Court pointed out that, unlike section 654’s rule against
multiple punishment, which “does not apply when a single act of
violence causes injury to several persons” (Kellett, at p. 825), the
rule against multiple prosecution applies even to offenses against
multiple victims: “When there is a course of conduct involving
several physical acts, the actor’s intent or objective and the
number of victims involved, which are crucial in determining the
permissible punishment, may be immaterial when successive
prosecutions are attempted.” (Id. at p. 827.)
The Supreme Court has recognized, however, that “[t]he
Kellett rule applies only where ‘the prosecution is or should be
aware of more than one offense in which the same act or course of
conduct plays a significant part.’” (People v. Valli, supra,

8
187 Cal.App.4th at p. 796.) Thus, there is “an exception to the
multiple-prosecution bar where the prosecutor ‘“‘is unable to
proceed on the more serious charge at the outset because the
additional facts necessary to sustain that charge have not
occurred or have not been discovered despite the exercise of due
diligence.’”’” (Davis, supra, 36 Cal.4th at p. 558.) Under this
“‘unavailable evidence’ exception” (People v. Spicer (2015)
235 Cal.App.4th 1359, 1377 (Spicer)), “section 654 will not bar a
later prosecution when the government, despite reasonable
efforts, has been unable to discover the facts necessary to sustain
a conviction on the more serious crime. [Citation.] But this
exception applies only when the government ‘acted with due
diligence at the outset but was unable to discover the additional
facts necessary to sustain the greater charge.’” (Davis, at p. 558.)
“[T]he prosecution first possesses ‘facts necessary to sustain [the]
charge’ when it secures evidence supporting the objectively
reasonable belief that it ‘“will be able to promptly establish guilt
beyond a reasonable doubt.”’” (Spicer, at p. 1377; see id. at
p. 1376 [“the prosecution’s having possessed facts raising a
suspicion of ‘foul play’ prior to the defendants’ initial convictions
did not bar the application of the exception”].)
“We review de novo the legal question of whether
Section 654 applies.” (People v. Ochoa (2016) 248 Cal.App.4th 15,
29.) “To the extent appellant challenges the court’s
determinations of law regarding the application of the
‘unavailable evidence’ exception, we examine those
determinations de novo. [Citation.] To the extent appellant
challenges the court’s factual determinations relating to the
exception, we review those determinations for the existence of
substantial evidence.” (Spicer, supra, 235 Cal.App.4th at p. 1375;
see Ochoa, at p. 29 [“We review factual determinations under the
deferential substantial evidence test, viewing the evidence in the

9
light most favorable to the prosecution.”].) “Whether the
government exercised due diligence is a question of fact” we
review for substantial evidence. (Davis, supra, 36 Cal.4th at
p. 558.)

2. The Unavailable Evidence Exception Applied
As Nevarez recognizes, the trial court ruled the unavailable
evidence exception applied based on the court’s finding that in
2013, despite exercising due diligence, the People did not have
the evidence necessary to sustain charges against Nevarez for his
sexual abuse of Krystal. Substantial evidence supported that
finding. In 2013 the People had Daisy’s report that Nevarez had
engaged in sexual activity with her and Krystal. But whereas
Nevarez’s admission he inappropriately touched Daisy and
fantasized about having sex with her corroborated Daisy’s report
of his sexual activity with her, the prosecution had no
corroborating evidence Nevarez engaged in sexual activity with
Krystal. In fact, both Nevarez and Krystal unequivocally denied
the latter, and Krystal’s mother further vouched for Nevarez.
Nor, unlike Daisy, had Krystal documented her sexual activity
with Nevarez. This lack of corroborating evidence, particularly
given the consistency of contrary evidence, supported the trial
court’s finding that in 2013 the People did not have evidence to
support an objectively reasonable belief they would promptly be
able to establish Nevarez was guilty beyond a reasonable doubt of
sexually abusing Krystal. (See Spicer, supra, 235 Cal.App.4th at
p. 1374 [“‘“[p]rosecutors are under no duty to file charges as soon
as probable cause exists but before they are satisfied they will be
able to establish the suspect’s guilt beyond a reasonable
doubt”’”].)
Nevarez suggests the People did not exercise due diligence
in 2013 when they investigated Daisy’s assertion he engaged in

10
sexual activity with Krystal. But he does not specify what more
the People should have done. In any event, substantial evidence
supported the trial court’s finding the People exercised due
diligence. In 2013 Detective Uribe interviewed Krystal to
investigate Daisy’s report, and because Krystal so adamantly
denied Nevarez had done nothing inappropriate to her, Uribe
concluded he did not “need to go and continue to ask her over and
over and over again.” The detective also concluded it was not
necessary to refer Krystal for a forensic interview,2 something he
would have done if “at any point” he felt she was “uncomfortable”
talking to him. Detective Uribe also interviewed Krystal’s
mother, who did not point him to any evidence of abuse, but
instead provided evidence of Nevarez’s good character. This
evidence of “ordinary diligence” in the People’s 2013 investigation
supported the trial court’s finding. (Spicer, supra, 235
Cal.App.4th at p. 1376.) The trial court did not err in denying
Nevarez’s motion to dismiss the charges in this case based on the
unavailable evidence exception.

B. The Trial Court Erred in Sentencing Nevarez on
Count 5 Under the One Strike Law and the Habitual
Sexual Offender Law
Nevarez contends the trial court erred in sentencing him on
count 5 under the one strike law and the Habitual Sexual
Offender law, both of which provide for sentences of 25 years to
life where a defendant convicted of a qualifying sexual offense
has been previously convicted of another qualifying sexual
offense. (See §§ 667.61, subds. (a), (d)(1), 667.71, subds. (a)-(b).)

2 Detective Uribe explained that a forensic interview is
where the police “take a minor to a facility that has a forensic
nurse and they will interview and record [it].”

11
Pointing out that the People in count 5 charged him for conduct
occurring between August 15, 2010 and August 14, 2012 and that
his September 2013 conviction was for conduct occurring between
August 16, 2012 and December 14, 2012, Nevarez argues the one
strike law and Habitual Sexual Offender law did not apply
because he committed the offense for which he was previously
convicted after he committed the offense charged in count 5. The
People do not dispute Nevarez’s chronology, but disagree with his
interpretation of the statutes. We agree with Nevarez the
statutes did not apply.

1. Applicable Law and Standard of Review
“‘In construing a statute, our task is to determine the
Legislature’s intent and purpose for the enactment. [Citation.]
We look first to the plain meaning of the statutory language,
giving the words their usual and ordinary meaning. [Citation.]
If there is no ambiguity in the statutory language, its plain
meaning controls; we presume the Legislature meant what it
said. [Citation.] “However, if the statutory language permits
more than one reasonable interpretation, courts may consider
various extrinsic aids, including the purpose of the statute, the
evils to be remedied, the legislative history, public policy, and the
statutory scheme encompassing the statute.”’” (People v. Yartz
(2005) 37 Cal.4th 529, 537-538; see People v. Cornett (2012)
53 Cal.4th 1261, 1265.) “Statutory interpretation is ‘“an issue of
law, which we review de novo.”’” (People v. Wilson (2020)
53 Cal.App.5th 42, 47.)

12
 2. The One Strike Law Did Not Apply
Section 667.61, subdivision (a), provides in relevant part
that “any person who is convicted of an offense specified in
subdivision (c) under one or more of the circumstances specified
in subdivision (d) . . . shall be punished by imprisonment in the
state prison for 25 years to life.” Among the offenses subdivision
(c) specifies are “[l]ewd or lascivious act, in violation of
subdivision (b) of Section 288,” and “[c]ontinuous sexual abuse of
a child, in violation of Section 288.5.” (§ 667.61, subd. (c)(4), (9).)
Among the circumstances subdivision (d) specifies is the
“defendant has been previously convicted of an offense specified
in subdivision (c).” (§ 667.61, subd. (d)(1).)
Nevarez does not dispute that the offense for which the
trial court convicted him in count 5 (continuous sexual abuse of
Krystal) and the offense for which he was convicted in 2013
(committing a lewd or lascivious act against Daisy) are qualifying
offenses under section 667.61, subdivision (c). But he contends
the 25-years-to-life sentence required by section 667.61,
subdivision (a), did not apply to count 5 “[b]ecause the underlying
misconduct resulting in [his] prior conviction occurred subsequent
to the conduct supporting the trial court’s verdicts as to count 5.”
In support of his contention, Nevarez cites People v. Huynh
(2014) 227 Cal.App.4th 1210 (Huynh), which held the phrase
“previously convicted” in the circumstance described in
subdivision (d)(1) means “a defendant’s qualifying conviction
must chronologically precede the currently charged felony.”3
(Huynh, at p. 1215.) The People concede that Huynh, if correctly

3 Nevarez does not contend Huynh, supra, 227 Cal.App.4th
1210 requires reversal of the one strike sentence on count 6 or
challenge his sentence on count 6 on any other ground.

13
decided, would require reversal of the one strike, 25-years-to-life
sentence on count 5, but they argue Huynh was wrongly decided.
We agree with the result in Huynh, although not all of the Huynh
court’s analysis.
In Huynh, supra, 227 Cal.App.4th 1210 the People argued
that the language of section 667.61, subdivisions (a) and (d)(1),
unambiguously “requires only a prior conviction and not a prior
conviction that preceded the currently charged offense.” (Huynh,
at p. 1214.) The People argued that this interpretation was
consistent with the Legislative intent because section 667.61 “is
not an antirecidivist statute but instead an alternative
sentencing scheme designed to separate an incurable class of
people from society.” (Huynh, at p. 1214.) The court in Huynh
agreed the statutory language was unambiguous, but disagreed
with the People about what that language unambiguously meant.
The court concluded that, giving the words of the statute their
usual and ordinary meaning, “[t]he word ‘previously’ [in
subdivision (d)(1)] can only be interpreted to mean a defendant’s
qualifying conviction must chronologically precede the currently
charged felony” and that “the order of the commission of the
offenses is material.” (Huynh, at p. 1215.) The court stated its
conclusion was “buttressed by extrinsic aids.” (Ibid.) In
particular, the court cited cases indicating that, although the one
strike law “cannot be classified wholly as an antirecidivism
statute, section 667.61, subdivision (d)(1), certainly can be
classified as an antirecidivism subdivision.” (Huynh, at p. 1216,
citing People v. Acosta (2002) 29 Cal.4th 105, 127 and People v.
DeSimone (1998) 62 Cal.App.4th 693, 697.) The court in Huynh
stated: “Because section 667.61, subdivision (d)(1), is an
antirecidivism subdivision that exposes a defendant to 25 years

14
to life for a ‘previous conviction,’ we conclude that to impose
increased punishment for recidivism requires that the ‘prior
conviction’ chronologically precede the currently charged offense.”
(Huynh, at p. 1216.)
We are not certain we agree with the court in Huynh that
the language of section 667.61 is unambiguous. There does seem
to be some ambiguity in subdivision (a) of the statute, which
refers to “any person who is convicted of an offense specified in
subdivision (c) under one or more of the circumstances specified
in subdivision (d).” Does the phrase “under one or more of the
circumstances” relate to the verb “is convicted,” or does it further
modify the phrase “an offense specified in subdivision (c)”? When
considered in relation to subdivision (d)(1), the question becomes:
Is it the present conviction that must occur under the
circumstance that the defendant was previously convicted of a
qualifying offense, or is it the present qualifying offense that
must occur under the circumstance that the defendant was
previously convicted of a qualifying offense? Considering the
purpose of section 667.61, subdivision (d)(1), as well as other
extrinsic aids, we agree with the court in Huynh that the latter is
the correct interpretation.
As the court in Huynh observed, and contrary to the
People’s insistence here, although section 667.61 is not entirely
an antirecidivist statute, subdivision (d)(1) is an antirecidivist
provision. As the Supreme Court explained in People v. Acosta,
supra, 29 Cal.4th 105, where it examined the “separate
objectives” of the three strikes law4 and the one strike law: “The

4 The three strikes law (§ 667, subds. (b)-(i)) “provides for
enhanced sentencing for recidivist felons.” (People v. Hammer
(2003) 30 Cal.4th 756, 766.)

15
‘unambiguous purpose’ of the Three Strikes law ‘is to provide
greater punishment for recidivists. [Citation.]” [Citation.] The
purpose of the One Strike law is to provide life sentences for
aggravated sex offenders, even if they do not have prior
convictions.” (Acosta, at p. 127.) But as the Supreme Court
stated, in examining more specifically the individual provisions of
the one strike law: “None of the seven circumstances that trigger
the 15-year minimum term of the One Strike law’s life sentence
relate to recidivism; they all relate to the manner in which the
defendant committed the specified sex offense. [Citations.] As to
the 25-year minimum term, three of the four triggering
circumstances similarly relate to the manner in which the
defendant committed the specified sex offense; only one [i.e., the
one in subdivision (d)(1)] relates to recidivism.”5 (Acosta, at

5 Although the Supreme Court did not refer explicitly to
“subdivision (d)(1),” the reference is clear from the context. At
that time section 667.61, subdivision (d), identified four (now
seven) “triggering circumstances” for the 25-years-to-life term:
“(1) The defendant has been previously convicted of an offense
specified in subdivision (c), including an offense committed in
another jurisdiction that includes all of the elements of an offense
specified in subdivision (c)”; “(2) The defendant kidnapped the
victim of the present offense and the movement of the victim
substantially increased the risk of harm to the victim over and
above that level of risk necessarily inherent in the underlying
offense in subdivision (c)”; (3) The defendant inflicted aggravated
mayhem or torture on the victim or another person in the
commission of the present offense in violation of Section 205 or
206”; and “(4) The defendant committed the present offense
during the commission of a burglary, as defined in subdivision (a)
of Section 460, with intent to commit an offense specified in
subdivision (c).” (Former § 667.61, as amended by Stats. 1998,
ch. 936, § 9.)

16
p. 127; see People v. Hammer (2003) 30 Cal.4th 756, 768
[referring to “those aspects of the One Strike law that . . . address
the problem of recidivism” when construing section 667.61,
subdivision (d)(1)]; People v. DeSimone, supra, 62 Cal.App.4th at
p. 697 [“One of the circumstances listed in the One Strike law
[i.e., subdivision (d)(1)] relates not to the method of committing
the present offense, but to the defendant’s status as a
recidivist.”].)
The court in Huynh correctly concluded that, to serve the
provision’s antirecidivist purpose, the previous conviction
referred to in section 667.61, subdivision (d)(1), must
“chronologically precede the currently charged offense.” (Huynh,
supra, 227 Cal.App.4th at p. 1216.) This is because the
“presumed rationale” of laws providing harsher penalties for
recidivists “is that an offender undeterred by his prior brushes
with the law deserves more severe criminal treatment.”
(People v. Balderas (1985) 41 Cal.3d 144, 201; see In re Coley
(2012) 55 Cal.4th 524, 531 [“Petitioner’s conduct . . .
demonstrated that, despite the significant punishment petitioner
had incurred as a result of his prior serious offenses, he was still
intentionally unwilling to comply with an important legal
obligation, and thus his triggering criminal conduct bore both a
rational and substantial relationship to the antirecidivist
purposes of the Three Strikes law.”]; People v. Rojas (1988)
206 Cal.App.3d 795, 799 [“it is difficult to envision how one can
‘relapse’ into criminal behavior within the meaning of an habitual
criminal statute before one’s prior conduct has been adjudicated
as criminal and resulted in punishment”]; People v. Diaz (1966)
245 Cal.App.2d 74, 77, fn. 1 [“the reason for the infliction of
severer punishment for a repetition of offenses is not so much

17
that defendant has sinned more than once as that he is deemed
incorrigible when he persists in violations of the law after
conviction of previous infractions” (italics omitted)].)
Our interpretation of section 667.61 is further supported by
the Supreme Court’s decision in People v. Hammer, supra,
30 Cal.4th 756. Although the Supreme Court in Hammer did not
decide the precise issue in this case, the Supreme Court was
construing aspects of the one strike law, which the Supreme
Court described as mandating “a sentence of 25 years to life when
a defendant commits a qualifying offense after he or she ‘has
been previously convicted of an offense specified in
subdivision (c) . . . .” (Hammer, at p. 762, italics omitted.) The
Supreme Court described the issue in that case as, in relevant
part, “whether defendant committed [his] qualifying present
offenses under circumstances specified in the One Strike
law . . . . ” (Ibid.) These statements suggest the phrase “under
one or more of the circumstances” modifies the phrase “an offense
specified in subdivision (c).”
In addition, “[t]he Legislature is presumed to be aware of
judicial interpretations of a statute,” and “[i]f the Legislature
amends or reenacts the statute without changing the
interpretation placed on that statute by the courts, ‘“the
Legislature is presumed to have been aware of, and acquiesced
in, the courts’ construction of that statute.”’” (People v. Brown
(2016) 247 Cal.App.4th 1430, 1436; see People v. Bouzas (1991)
53 Cal.3d 467, 475.) At the conclusion of its opinion in Huynh,
supra, 227 Cal.App.4th 1210, the court “invite[d] the Legislature
to . . . amend section 667.61, subdivision (d)(1), to allow a
‘previous conviction’ that occurred subsequent to the current
charged offenses if that is what the Legislature intended.”

18
(Huynh, at p. 1218.) The Legislature has since amended section
667.61, making only minor changes that do not affect the Huynh
court’s interpretation of the statute. (See Stats. 2018, ch. 423,
§ 68.) We therefore presume the interpretation the court in
Huynh adopted correctly reflects the Legislature’s intent.
Citing People v. Rogers (2013) 57 Cal.4th 296, the People
argue section 667.61, subdivision (d)(1), does not require the
previous conviction to precede the commission of the current
offense. Rogers, however, is distinguishable. In Rogers the
Supreme Court considered language in section 190.2, subdivision
(a)(2), that mandates a sentence of death or life without the
possibility of parole for a defendant convicted of first degree
murder if the defendant ‘“was convicted previously of murder in
the first or second degree.”’ (Rogers, at p. 343.) The Supreme
Court, relying on the “‘unambiguous language and purpose of’”
the statute, held the “‘order of the commission of the homicides is
immaterial.’” (Ibid.) The Supreme Court observed that section
190.2, subdivision (a)(2), “‘refers simply and unequivocally to
previous convictions.’” (Rogers, at p. 343.) The Supreme Court
added: “‘The function of section 190.2(a)(2) is also clear—to
circumscribe, as the Eighth Amendment requires [citation], the
classes of persons who may properly be subject to the death
penalty. . . . Unlike recidivism statutes, . . . section 190.2(a)(2) is
directed neither to deterring misconduct nor to fostering
rehabilitation.” (Rogers, at p. 343.) Because section 667.61,
subdivision (d)(1), unlike section 190.2, subdivision (a)(2), is an
antirecidivism provision, the holding in Rogers is inapplicable.

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 3. The Habitual Sexual Offender Law Did Not
Apply
Section 667.71, subdivision (b), provides that “[a] habitual
sexual offender shall be punished by imprisonment in the state
prison for 25 years to life.” Section 667.71, subdivision (a),
defines a “habitual sexual offender” as “a person who has been
previously convicted of one or more of the offenses specified in
subdivision (c) and who is convicted in the present proceeding of
one of those offenses.” The list of offenses in subdivision (c)
includes “[c]ontinuous sexual abuse of a child, in violation of
Section 288.5,” and committing a “[l]ewd or lascivious act, in
violation of subdivision (a) . . . of Section 288.” (§ 667.71,
subd. (c)(4), (6).)
Similar to his argument regarding the one strike law,
Nevarez contends the 25-years-to-life sentence under the
Habitual Sexual Offender law did not apply to count 5 because,
properly interpreted, the statute’s definition of a habitual sexual
offender requires that the previous conviction for a qualifying
offense occur before the commission of the present qualifying
offense. The People do not dispute Nevarez’s interpretation of
the statute. In fact, the People do not address it, apparently, as
the People state, “[b]ecause appellant’s sentence under the One
Strike Law is sound, and because the trial court stayed any
punishment under the Habitual Sex Offender Law.” Nevarez’s
interpretation of the statute is correct.
Although “‘“[w]e begin by examining the statute’s words,
giving them a plain and commonsense meaning,”’” we “‘“do
not . . . consider the statutory language ‘in isolation.’ [Citation.]
Rather, we look to ‘the entire substance of the statute . . . in order
to determine the scope and purpose of the provision . . . .

20
[Citation.]’ [Citation.] That is, we construe the words in question
‘“in context, keeping in mind the nature and obvious purpose of
the statute . . . .”’”’” (People v. Gonzalez (2014) 60 Cal.4th 533,
537.)
The People concede that, when the Legislature enacted the
Habitual Sexual Offender law, the statute “was specifically aimed
at ‘repeat sex offenders’ and applied to those who had previously
served a prison term for specified sex offenses.” Indeed, the
Supreme Court has stated that, in contrast to the one strike law,
the Habitual Sexual Offender law “is designed to address solely
recidivism.” (People v. Hammer, supra, 30 Cal.4th at p. 768; see
People v. Murphy (2001) 25 Cal.4th 136, 155 [“as defendant
points out, ‘the purpose of section 667.71 is not to punish
especially aggravated instances of a particular crime,’ but to
‘serve[ ] the same purpose as the “Three Strikes” law, which is to
punish recidivism’”]; People v. McQueen (2008) 160 Cal.App.4th
27, 38, fn. 14 [section 667.71 is “concerned with ‘the fact of
defendant’s recidivism’” (italics omitted)].)
Given that the purpose of section 667.71 is to punish
recidivism, the definition of a habitual sexual offender in
section 667.71 requires that the defendant’s previous conviction
for a qualifying offense occur before the commission of the
present qualifying offense. (See People v. Hammer, supra,
30 Cal.4th at p. 766 [“the Habitual Sexual Offender Law . . . is
designed to target repeat sexual offenders, by imposing a
sentence of 25 years to life in prison on those who commit a
specified offense . . . after having previously been convicted of a
specified offense”]; People v. Murphy, supra, 25 Cal.4th at p. 155
[section 667.71 establishes an alternate and elevated penalty
“when a recidivist defendant has served a prior term in a penal

21
institution for a listed offense”].) The trial court therefore erred
in sentencing Nevarez on count 5 under the Habitual Sexual
Offender law.

DISPOSITION

The convictions are affirmed. The sentences on count 5
under sections 667.61 and 667.71 are vacated, and the trial court
is directed to resentence Nevarez on all counts.6

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.

6 See People v. Buycks (2018) 5 Cal.5th 857, 893 (“when part
of a sentence is stricken on review, on remand for resentencing ‘a
full resentencing as to all counts is appropriate, so the trial court
can exercise its sentencing discretion in light of the changed
circumstances’”); People v. Bell (2020) 48 Cal.App.5th 1, 24
(same).

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