Filed 11/23/20 P. v. Angeles CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B293739
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA144769)
v.
SEVERO PRUDENTE
ANGELES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Robert J. Higa, Judge. Affirmed.
C. Matthew Missakian, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Senior Assistant Attorney General, and Steven D. Matthews and
Ryan M. Smith, Deputy Attorneys General, for Plaintiff and
Respondent.
___________________
INTRODUCTION
Severo Prudente Angeles appeals from a judgment entered
after a jury convicted him of 11 counts of lewd acts on children
under the age of 14. (Pen. Code, § 288, subds. (a), (b)(1).)1
Angeles argues: (1) the evidence was insufficient to support his
convictions on the three counts of forcible lewd acts in violation
of section 288, subdivision (b)(1); (2) the trial court erred in
admitting Angeles’s entire audio recorded interview, including
the interrogating officer’s assertions of his guilt; and (3) the trial
court erred in imposing mandatory consecutive terms on two of
the section 288, subdivision (b)(1) counts without determining
whether the forcible lewd acts occurred on separate occasions.
We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. The Charges
In an amended information, Los Angeles County District
Attorney charged Angeles with eight counts of a lewd act on a
child under the age of 14 (§ 288, subd. (a); counts 2-5 and 8-11),
and three counts of a forcible lewd act on a child under the age
of 14 (§ 288, subd. (b)(1); counts 1, 6, and 7). The amended
information alleged that Angeles committed the offenses against
multiple victims within the meaning of section 667.61,
subdivisions (b) and (e), and section 1203.066, subdivision (a)(7).
The amended information further alleged that Angeles had
substantial sexual conduct with three of the victims within the
meaning of section 1203.066, subdivision (a)(8). Angeles pleaded
not guilty to each count and denied the enhancement allegations.
1 Undesignated statutory references are to the Penal Code.
2
B. The Prosecution’s Case-in-Chief
1. Acts Against Jennifer (Counts 1-3)
Angeles was married to Jennifer’s maternal aunt. Starting
at the age of four, Jennifer resided in a house in Pico Rivera with
her parents and younger sister, Stephanie. Angeles resided with
his wife and four children in a converted garage behind Jennifer’s
house. When Jennifer was five years old, she was alone with
Angeles in a closet inside his house. Angeles grabbed Jennifer by
her hair, pushed her head down, and made her “suck on his
penis.” One to two weeks later, Jennifer was in the bedroom of
Angeles’s son. Angeles showed Jennifer a pornographic videotape
depicting an act of oral copulation. While the videotape was
playing, Angeles grabbed Jennifer’s hands and tightly held them
so that she could not move away. Angeles then made Jennifer
“put [her] mouth on his penis.” On two other occasions, Angeles
placed his hand inside Jennifer’s underwear and touched her
vagina with his fingers.
When Jennifer was eight years old, Angeles took her to buy
a scooter. While Jennifer was in the back seat of Angeles’s van,
Angeles sat next to her and caressed her face. He then grabbed
Jennifer by the back of her neck and “tried to force [her] to kiss
him.” Although Jennifer attempted to push Angeles away, she
could not do so, and he put his tongue inside her mouth. On
another occasion when Jennifer was eight years old, she went
into an alley behind Angeles’s house to retrieve a ball. Angeles
grabbed Jennifer by the back of her neck “the same way he did
before” and “made [her] kiss him.” He then pulled down his
pants and “made [her] suck on his penis.” Jennifer also recalled
other occasions when Angeles caressed her face and kissed her on
the mouth.
3
When Jennifer was 15 years old, she told her mother that
Angeles made her feel uncomfortable, but did not disclose any
details at that time. The following year, one of Jennifer’s
teachers asked the students to write about something they had
never told anyone. Jennifer wrote about Angeles inappropriately
touching her when she was very young.
After Jennifer’s teacher reported Jennifer’s disclosure to
the police, Detective Cynthia Toone of the Special Victims Bureau
investigated the case. As part of her investigation, following
Angeles’s arrest, Detective Toone conducted an audio recorded
interview of Angeles at the Pico Rivera Sheriff’s Station.2 During
the interview, Angeles admitted that, when Jennifer was around
five years old, he inappropriately touched Jennifer on multiple
occasions, including touching her vagina, making her touch his
penis with her hand, and placing his penis inside her mouth.
2. Acts Against Stephanie (Counts 4-5)
Stephanie is Jennifer’s younger sister. When Stephanie
was five or six years old, Angeles was helping her get a bicycle
from the side of the house when he suddenly put his hand inside
her underwear. Angeles then inserted his finger into Stephanie’s
vagina, causing her pain. On another occasion, Angeles and
Stephanie were alone in the patio. Angeles placed his hand over
Stephanie’s pants and touched her vagina through her clothing.
Afterward, he told her to “forget about this.” Stephanie did not
disclose these incidents to anyone until she heard about what
2 Detective Toone conducted the interview in Spanish. As
part of their case, the People played the audio recording of the
interview and provided the jury with a transcript of the recording
translated from Spanish to English.
4
happened to Jennifer. In his interview with Detective Toone,
Angeles denied he ever inappropriately touched Stephanie.
3. Acts Against Crystal (Counts 6-9)
Crystal’s family is related to Angeles’s wife. As a young
child, Crystal often visited Angeles’s residence to attend family
gatherings and to play with Jennifer and Stephanie. When
Crystal was six years old, she was in the backyard behind
Angeles’s house. Angeles approached Crystal, slid his hand down
the back of her pants, and touched her buttocks. On another
occasion, Crystal was playing by herself in the backyard when
Angeles approached her. Angeles pulled down Crystal’s pants,
inserted his finger into her vagina, and “moved it around.”
There were also times when Angeles touched Crystal while
she was alone with him in his van. When Crystal was seven
years old, Angeles called her over to his van, which was parked in
the backyard. Once inside the van, Angeles slid his hand down
the front of Crystal’s pants and inserted his fingers into her
vagina. Crystal said “no,” but Angeles did not stop. When
Crystal was eight years old, Angeles again took her into his van.
He then pulled down Crystal’s pants and rubbed her vagina with
his hand.
On two occasions, Angeles forced Crystal to touch his penis.
When Crystal was seven years old, Angeles “grabbed [her] hand,”
“put it in his front pants,” and then “rubbed his . . . penis” with
her hand. On another occasion, Angeles pulled Crystal’s hand to
his penis and made her rub it. Although Crystal told Angeles to
stop, he “didn’t listen.” Crystal also tried pulling her hand away,
but Angeles kept her from doing so.
When Crystal’s family first asked her if Angeles had ever
touched her, she denied it because she did not think anyone
5
would believe her. Crystal later disclosed the molestation to her
sister and then to Detective Toone. In his interview with
Detective Toone, Angeles denied having any inappropriate
contact with Crystal.
4. Acts Against Esperanza (Counts 10-11)
Esperanza is Angeles’s daughter. When Esperanza was 10
years old, Angeles twice touched her in a manner that made her
feel uncomfortable. One incident occurred while Esperanza was
sitting in the living room and doing schoolwork at her computer.
Angeles approached Esperanza from behind and briefly caressed
her breasts over her clothing with his hands. During the second
incident, Angeles was in a locked room with Esperanza and “had
pinned [her] down” on the floor. He touched her breasts and her
thigh with his hands. When Esperanza’s mother tried to enter
the room, she could not do so because the door was locked. Her
mother argued with Angeles over the incident and forced him to
move out. A few months later, Angeles returned home,
apologized to Esperanza, and “from there [they] just moved on.”
At trial, Esperanza testified that she had been close with
Jennifer and Stephanie, and they never told her about any abuse
by her father. She also stated that both girls acted comfortably
around Angeles until they made the recent allegations about him.
Esperanza stated that she knew Crystal, but rarely spoke to her.
She further testified that Crystal had only visited their house on
one or two occasions for large family gatherings.
Esperanza denied Angeles ever touched her vagina.
However, in his interview with Detective Toone, Angeles
admitted that he touched Esperanza’s vagina approximately
three times when she was four or five years old. He also stated
that, after Esperanza told her mother about the touching, he
6
apologized to Esperanza in front of her mother and promised
them he would never do it again.3
C. The Defense Case
Angeles denied touching any of the girls in a sexual
manner. He first learned of the accusations when Jennifer’s
mother told his family about the alleged touching of Jennifer.
The police arrested Angeles two weeks later and placed him in a
holding cell at a police station. At some point, the police took him
to an interview room where he met Detective Toone. According to
Angeles, he lied when he told Detective Toone that he had
inappropriately touched Jennifer and Esperanza. He falsely
admitted to those acts because Toone “promised [him] that she
would help [him] once the interview was over[;] she was going to
go to her house and [he] would go to [his].” Detective Toone made
this promise when Angeles entered the interview room and the
tape recorder was off. Angeles accepted the promise because
Detective Toone used “an intimidating manner against [him],”
and he was “easy prey” for her given that he had “never been in a
situation such as this” and “did not know if [he] . . . had any
right.” Angeles believed that certain adults who did not want
him to “make true the dreams that [he] was working on for [his]
family” convinced the girls to make false accusations against him.
On cross-examination, however, Angeles admitted Esperanza was
telling the truth when she testified about Angeles “groping” her
3 When Detective Toone interviewed Angeles, she was aware
of molestation allegations by Jennifer, Stephanie, and Crystal.
However, she did not know of any allegations involving
Esperanza until Angeles disclosed those acts in his interview.
7
breasts and “touching” her in a locked room before being
interrupted by his wife.
Angeles also called two other witnesses to testify. The
police officer who first interviewed Jennifer about her report
testified that, during her interview, Jennifer did not accuse
Angeles of touching her vagina. Angeles’s eldest son, Juan,
testified that, when Jennifer and Stephanie lived on the same
property as his family, the girls never appeared to be
uncomfortable around Angeles. Juan also testified that Crystal
only came over when there were parties attended by a lot of
people, and she was never alone with Angeles. None of the girls,
including Esperanza, ever complained about Angeles to Juan.
D. The People’s Rebuttal Case
On rebuttal, Detective Toone testified that the audio
interview recording comprised the complete record of her
interactions with Angeles. Detective Toone did not have any
conversation with Angeles before the recording started or after
it stopped, and she did not modify the recording in any way. She
did not promise Angeles he would be allowed to go home if he
simply answered yes to all of her questions.
E. The Jury Verdict and Sentencing
The jury found Angeles guilty on all 11 counts, and found
the enhancement allegations true. The trial court sentenced
Angeles to an aggregate term of 75 years to life in state prison
consisting of five consecutive terms of 15 years to life on counts 1,
4, 6, 7, and 10 and concurrent terms of 15 years to life on all
remaining counts.
Angeles timely appealed.
8
DISCUSSION
A. There Was Substantial Evidence To Support Angeles’s
Convictions for Committing Forcible Lewd Acts
Angeles challenges the sufficiency of the evidence
supporting his convictions for forcible lewd acts against Jennifer
(count 1) and Crystal (counts 6 and 7) under section 288,
subdivision (b)(1). Angeles contends his convictions on these
counts must be reversed because the evidence was insufficient
to establish that he had used the requisite physical force in
committing the lewd acts.
1. Standard of Review
“‘“When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record in
the light most favorable to the judgment to determine whether
it contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.” [Citation.] We determine “whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” [Citation.] In so doing,
a reviewing court “presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence.”’” (People v. Beck and Cruz (2019) 8 Cal.5th 548, 626.)
“[O]ur task is not to resolve credibility issues or evidentiary
conflicts, nor is it to inquire whether the evidence might ‘“‘be
reasonably reconciled with the defendant’s innocence.’”’
[Citations.] The relevant inquiry is whether, in light of all the
evidence, a reasonable trier of fact could have found the
9
defendant guilty beyond a reasonable doubt.” (People v. Gomez
(2018) 6 Cal.5th 243, 278.)
2. Substantial Evidence Supports the Convictions
a. Applicable Law
Section 288, subdivision (a), prohibits any person from
committing a lewd or lascivious act on a child under the age of 14
“with the intent of arousing, appealing to, or gratifying the lust,
passions, or sexual desires of that person or the child.” Section
288, subdivision (b)(1), further prohibits the commission of such
lewd or lascivious act “by use of force, violence, duress, menace,
or fear of immediate and unlawful bodily injury on the victim or
another person.” “‘Force, in this context, means physical force
that is “‘substantially different from or substantially greater than
that necessary to accomplish the lewd act itself.’”’” (People v.
Jimenez (2019) 35 Cal.App.5th 373, 391; accord, People v. Soto
(2011) 51 Cal.4th 229, 242 (Soto) [“[t]his formulation was, and
remains, an appropriate definition of the force required for an
aggravated lewd conduct conviction under section 288(b), now
section 288(b)(1)”].)4
“‘A defendant uses “force” if the prohibited act is facilitated
by the defendant’s use of physical violence, compulsion or
constraint against the victim other than, or in addition to, the
4 In Soto, the Supreme Court held, “Honoring the clear
legislative intent expressed in the plain language of section
288(b)(1), we hold that consent of the victim is not a defense to
the crime of aggravated lewd conduct on a child under age 14.
The prosecution need not prove that a lewd act committed by use
of force, violence, duress, menace, or fear was also against the
victim’s will.” (51 Cal.4th at p. 248.)
10
physical contact which is inherent in the prohibited act.’
[Citation.] ‘The evidentiary key to whether an act was forcible
is not whether the distinction between the “force” used to
accomplish the prohibited act and the physical contact inherent
in that act can be termed “substantial.” Instead, an act is forcible
if force facilitated the act rather than being merely incidental to
the act.’” (People v. Morales (2018) 29 Cal.App.5th 471, 480;
accord, People v. Jimenez, supra, 35 Cal.App.5th at p. 391; People
v. Garcia (2016) 247 Cal.App.4th 1013, 1024.) “[A]cts of
grabbing, holding and restraining that occur in conjunction with
the lewd acts themselves” are sufficient to support a finding that
the lewd act was committed by means of force.” (People v.
Alvarez (2009) 178 Cal.App.4th 999.) The court in Alvarez stated
that the defendant’s actions of resisting the victim’s attempts to
push him away when he attempted to kiss her, holding her while
he digitally penetrated her, and continuing to put her hand on his
penis whenever she moved it away were sufficiently distinct from
the lewd conduct to constitute use of force. The court concluded
this evidence supported the defendant’s conviction for committing
a forcible lewd act on a child. (Id. at p. 1005.)
Angeles concedes that, in committing the acts charged in
counts 1, 6, and 7, he “used some slight degree of force beyond
that which was absolutely necessary for and/or inherent in the
unlawful touching itself.” Citing People v. Schulz (1992) 2
Cal.App.4th 999 (Schulz) and People v. Senior (1992)
3 Cal.App.4th 765 (Senior), Angeles contends, however, that
“there was insufficient evidence that counts 1, 6, or 7 were
forcible because [he] did not use force ‘substantially different or
substantially greater than that necessary to accomplish the lewd
act itself.’” His reliance on these cases is misplaced.
11
In Schulz, supra, 2 Cal.App.4th 999, the evidence showed
the defendant “awakened the victim by grabbing her arm,
cornered her while she cried, held her arm, and touched her
breasts and vaginal area.” (Id. at p. 1004.) In concluding there
was insufficient evidence of force in the commission of the
lewd act, the Sixth District reasoned: “We do not regard as
constituting ‘force’ the evidence that defendant grabbed the
victim’s arm and held her while fondling her. [Citations.] The
‘force’ factor differentiates the charged sex crime from the
ordinary sex crime. Since ordinary lewd touching often involves
some additional physical contact, a modicum of holding and even
restraining cannot be regarded as substantially different or
excessive ‘force.’” (Ibid.)
Relying on Schulz, the Sixth District reached a similar
conclusion in Senior, supra, 3 Cal.App.4th 765. In that case, the
defendant engaged in multiple acts of oral copulation with the
victim during which she “tried to pull away,” but he “pulled her
back” and “held her shoulders.” (Id. at p. 771.) The court
concluded the evidence was insufficient to establish the requisite
use of force, explaining: “Since ordinary oral copulation and
digital penetration almost always involve some physical contact
other than genital, a modicum of holding and even restraining
cannot be regarded as substantially different or excessive ‘force.’
There was no evidence here of any struggle, however brief.”
(Id. at p. 774.) In both Schulz and Senior, the Sixth District
acknowledged that its interpretation of “force” was contrary to
precedent holding that acts of grabbing, holding, or restraining
can be sufficient to constitute a use of force within the meaning of
section 288, subdivision (b). (Schulz, supra, 2 Cal.App.4th at
p. 1004; Senior, at p. 774.)
12
The narrow definition of “force” set forth in Schulz and
Senior has been uniformly criticized. (People v. Aguilar (2019) 41
Cal.App.5th 1023, 1027; People v. Alvarez, supra, 178
Cal.App.4th at pp. 1004-1005; People v. Neel (1993) 19
Cal.App.4th 1784, 1789-1790, disapproved on other grounds in
Soto, supra, 51 Cal.4th at p. 248, fn. 12; People v. Babcock (1993)
14 Cal.App.4th 383, 388.) As one appellate court explained:
“[T]he fatal flaw . . . in the analyses in Schulz and Senior[ ] is in
their improper attempt to merge the lewd acts and the force by
which they were accomplished as a matter of law. Unlike the
court in Schulz, we do not believe that holding a victim who was
trying to escape in a corner is necessarily an element of the lewd
act of touching her vagina and breasts. Unlike the court in
Senior, we do not believe that pulling a victim back as she tried
to get away is necessarily an element of oral copulation.” (People
v. Babcock, supra, at p. 388.) Even the Sixth District has since
rejected this aspect of its analyses in Schulz and Senior, stating:
“we respectfully disagree with the interpretation of the ‘force’
requirement of section 288, subdivision (b) discussed in Schulz
and Senior. . . . ‘. . . As used in that subdivision, “force” means
“physical force substantially different from or substantially
greater than that necessary to accomplish the lewd act itself.”’”
(People v. Bolander (1994) 23 Cal.App.4th 155, 160-161,
disapproved on other grounds in Soto, at p. 241, fn. 12; accord,
People v. Aguilar, supra, 41 Cal.App.5th at p. 1027 [“Shulz’s
contrary conclusion is mystifying . . . Senior followed Shulz and
is just as baffling. . . . We reject Shulz and Senior”]; see People v.
Morales, supra, 29 Cal.App.5th at p. 480 [“this court’s brief
discussion of force in [Shulz] was dicta since this court held that
there was substantial evidence of duress”].)
13
Accordingly, as California courts repeatedly have
recognized, “‘[a]cts of grabbing, holding and restraining that
occur in conjunction with the lewd acts themselves’ are sufficient
to support a finding that the lewd act was committed by means
of force.” (People v. Morales, supra, 29 Cal.App.5th at p. 480
[“defendant’s ‘grabbing, holding, and restraining’ of Jane Doe 1 to
facilitate his lewd act was substantial evidence of the requisite
force”]; accord, People v. Jimenez, supra, 35 Cal.App.5th at p. 393
[jury reasonably could infer defendant used physical force where
victim “testified that she tried pushing [defendant] away, and
although that would make him stop, ‘he would try again and try
again’ right away”]; People v. Garcia, supra, 247 Cal.App.4th at
p. 1024 [the defendant’s acts of grabbing the victim’s hands to
keep her from moving while he touched her vagina and holding
her on the floor with his body while he placed his penis on her
vagina supported conviction for forcible lewd conduct]; People v.
Alvarez, supra, 178 Cal.App.4th at p. 1005 [sufficient evidence of
force where defendant “grabbed [victim’s] hand and made her
hold his penis,” and “[w]henever she let go, he took her hand and
brought it back to his genital area”]; People v. Bolander, supra, 23
Cal.App.4th at p. 159 [“we conclude that defendant’s acts of
inhibiting Ryan from pulling his shorts back up, bending Ryan
over, and pulling Ryan towards him constitute force within the
meaning of subdivision (b) of section 288”]; People v. Neel, supra,
19 Cal.App.4th at p. 1790 [“defendant’s acts of forcing the victim’s
head down on his penis when she tried to pull away and grabbing
her wrist, placing her hand on his penis, and then ‘making it go
up and down’ constitute force” within meaning of section 288,
subdivision (b)]; People v. Babcock, supra, 14 Cal.App.4th at
p. 386 [substantial evidence supported defendant’s convictions for
14
forcible lewd acts where “evidence demonstrate[d] defendant
grabbed [victims’] hands and forced them to touch his genitals”].)
Consistent with these authorities, we conclude Angeles’s
convictions under counts 1, 6, and 7 are supported by substantial
evidence.
b. Jennifer
As to count 1 involving Jennifer, the People’s theory at
trial was that Angeles used force in committing a lewd act either
(1) when he grabbed Jennifer’s face and pulled her toward him
to forcibly kiss her, or (2) when he grabbed Jennifer’s head and
pulled it to make her orally copulate him. With respect to the
first incident, Jennifer testified that, when she was eight years
old, she was alone with Angeles in the back seat of his van after
he took her to buy a scooter. While sitting next to Jennifer,
Angeles “grabbed [her] by the back of [her] neck,” he then “came
in closer,” and “tried to force [her] to kiss him.” Jennifer
described the “grabb[ing]” as “throwing [her].” Jennifer “tried to
push away, but [she] couldn’t.” Angeles then “came in to kiss
[her] with his tongue” in “[her] mouth.” With respect to the
second incident, Jennifer recounted that, on another occasion
when she was eight years old, Angeles approached her in an alley
behind his house and pulled down his pants. He “grabbed
[Jennifer] from the back of [her] neck . . . the same way he did
before.”5 Angeles then “made [her] kiss him and he made [her]
suck on his penis.”
5 Regarding the prior incident, Jennifer testified: “he had his
pants down . . . he had my hands . . . my hands were in his palms,
so he grabbed me . . . I couldn’t do anything . . . I had like to put
my mouth on [his penis] cause I didn’t know what he would do to
me. So I put my mouth on his penis. . . . He had my hands, so I
15
Jennifer’s testimony provided substantial evidence that
Angeles used physical force in conjunction with these lewd acts
that was substantially different from or substantially greater
than that necessary to accomplish the lewd act itself. In forcibly
kissing Jennifer, Angeles grabbed her by the back of her neck and
pulled her toward him even as she resisted by trying to push him
away. In forcing Jennifer to orally copulate him, Angeles again
grabbed Jennifer by the back of her neck and made her put her
mouth on his penis. Her hands were in his palms as in the prior
oral copulation incident. Because the grabbing and restraining of
Jennifer “facilitated” Angeles’s lewd acts “rather than being
merely incidental to the act,” it is sufficient to constitute force
within the meaning of section 288, subdivision (b)(1).
Accordingly, sufficient evidence supported Angeles’s conviction
under section 288, subdivision (b)(1). (People v. Jimenez, supra,
35 Cal.App.5th at p. 391; People v. Morales, supra, 29
Cal.App.5th at p. 480.)
c. Crystal
As to counts 6 and 7 involving Crystal, the People’s theory
was that Angeles used force in committing a lewd act on the two
occasions when he grabbed Crystal’s hand, placed it on his penis,
and made her use her hand to rub his penis. At trial, Crystal
testified that, when she was seven years old, Angeles “grabbed
[her] hand, put it in his front pants and then he rubbed his
[penis]” with her hand. Although Crystal tried “to pull [her]
hand away,” Angeles “didn’t let [her].” Angeles was “holding
[her] hand in his pants.” Crystal was not strong enough to pull
couldn’t move away. . . . I couldn’t [move away] ‘cause he held on
tight.”
16
her hand away. Crystal further testified that, on another
occasion, he did “the same thing.” Angeles again “put [her] hand
[on] his penis,” and made her rub his penis with her hand.
Crystal was “telling [Angeles] no” as he did this, but “he still
didn’t listen.” Crystal tried to pull away, but she “wasn’t able to”
because Angeles “pulled [her] hand and kept it there.” Crystal
testified “it was hard” to pull her hand away. On both occasions,
Angeles forced Crystal to “rub” his penis with her hand.
From this evidence, the jury reasonably concluded that
Angeles used force in committing the lewd acts charged in counts
6 and 7. On each occasion that Angeles forced Crystal to touch
his penis, Crystal tried to resist him by pulling her hand away
and/or telling him no. Angeles was able to overcome Crystal’s
resistance by pulling her hand back toward his genital area,
holding it in place, and then rubbing his penis with her hand.
Angeles’s act of grabbing, holding, and manipulating Crystal’s
hand to make her rub his genitals was a use of physical force
beyond that necessary to accomplish the lewd act itself. (People
v. Alvarez, supra, 178 Cal.App.4th at p. 1005; People v. Neel,
supra, 19 Cal.App.4th at p. 1790; Babcock, supra, 14 Cal.App.4th
at p. 385.) Substantial evidence therefore supports Angeles’s
convictions for forcible lewd acts in violation of section 288,
subdivision (b)(1).
B. The Trial Court Did Not Err in Admitting Detective
Toone’s Entire Interview With Angeles, and Any Error
Was Harmless
Angeles asserts the trial court prejudicially erred in
admitting the entire audio recorded interview with Detective
Toone. He argues the trial court should have excluded Detective
17
Toone’s statements in the interview expressing her certainty
about the victims’ credibility and Angeles’s guilt.
1. Relevant Proceedings
Prior to the start of trial, Angeles’s counsel objected to the
admission of the complete, unedited audio recording of Angeles’s
interview with Detective Toone. While acknowledging that
Angeles’s own statements in the interview were admissible,
Angeles argued that Detective Toone’s statements that Angeles
was lying and the victims were telling the truth should be
redacted because they constituted improper “vouching for the
credibility of witnesses in the case” and could infringe upon the
jury’s independent assessment of witness credibility. Angeles
also objected to Detective Toone’s statements in the interview
about what the victims said to her on the ground that they were
inadmissible hearsay.
The People responded that it would be difficult to redact
the challenged portions of the recording “without making [it]
unintelligible” because Toone’s statements were interspersed
throughout the interview. The People also argued that Detective
Toone’s remarks that she had spoken to the victims and believed
what they said did not reflect improper vouching, but rather were
part of a permissible interrogation technique. In addition, the
People asserted that the complete interview was admissible
because it provided necessary context for the jury to understand
that Angeles “wasn’t somehow manipulated, coerced into saying
these things.”
The trial court admitted the entirety of the interview,
consisting of a one-hour and 39-minute audio recording and an
80-page transcript. The trial court also instructed the jury: “You
have been presented with a recorded interrogation which
18
included statements made by Detective Toone about the
credibility of witnesses in this case. The recorded statements
made by Detective Toone during the interrogation were presented
for the sole purpose of giving context to the defendant’s
responses. You are not to consider these statements for any other
purpose.”
2. Standard of Review
A trial court is vested with broad discretion in ruling on the
admissibility of evidence. (People v. Fayed (2020) 9 Cal.5th 147,
189.) “‘We review a trial court’s decision to admit or exclude
evidence “for abuse of discretion, and [the ruling] will not be
disturbed unless there is a showing that the trial court acted
in an arbitrary, capricious, or absurd manner resulting in a
miscarriage of justice.”’” (People v. Young (2019) 7 Cal.5th 905,
931.) “‘The admission of relevant evidence will not offend due
process unless the evidence is so prejudicial as to render the
defendant’s trial fundamentally unfair.’” (People v. Jones (2013)
57 Cal.4th 899, 949.) “Absent fundamental unfairness, state law
error in admitting evidence is subject to the traditional . . . test
[set forth in People v. Watson (1956) 46 Cal.2d 818, 836]: The
reviewing court must ask whether it is reasonably probable the
verdict would have been more favorable to the defendant absent
the error.” (People v. Partida (2005) 37 Cal.4th 428, 439; accord,
People v. Powell (2018) 5 Cal.5th 921, 951 [“[w]hen evidence is
erroneously admitted, we do not reverse a conviction unless it is
reasonably probable that a result more favorable to the defendant
would have occurred absent the error”].)
19
3. There Was No Prejudicial Error in the Admission of
Angeles’s Interview with Toone
Angeles contends the trial court improperly admitted
Detective Toone’s hearsay statements made during the interview
in which she offered her opinion that the victims’ claims were
credible and Angeles’s denials were false. Angeles argues that, in
making these statements, Detective Toone “went beyond the
common practice of an interrogator telling a suspect he is clearly
guilty and therefore should confess” by “invoking her decades of
experience interviewing victims and suspects in sex abuse cases
to explain how she knew, based on the way the girls spoke, looked
and cried, that they were speaking the truth, and that she knew,
based on looking at Mr. Angeles’s face and eyes, that . . . he was
guilty.”6 Angeles further claims the erroneous admission of this
6 Angeles points to Detective Toone’s statements: (1) “I do
believe what Jennifer is saying because she gave me a lot of
details”; (2) “I read people. . . . And to me, I notice in your face
that you know exactly what you did”; (3) “No, I know you do
remember, I know. Seeing the look on your face right now, it’s
that you do remember”; (4) “I know that [Jennifer] is telling me
the truth! One hundred percent! One hundred percent!”; (5)
“Look, like I tell you, I know that [Jennifer] is telling me the
truth”; (6) “I know that these things happened”; (7) “You not
only did it with Jennifer, I know you did it with Stephanie and
with Cr[y]stal”; (8) “[Crystal] didn’t want to tell, but she knew
that she had to tell the truth. And in talking with her, children
don’t shed false tears”; (9) “I know in my heart that everything
that [Jennifer] told me is true!”; (10) “[W]hen I saw in her eyes,
and her pain and her tears, I knew that [Jennifer] was telling me
the truth”; (11) “And that is when I know one hundred percent or
two hundred percent that the abuse really did happen.”
20
evidence rendered his trial fundamentally unfair, requiring the
reversal of each of his convictions.
“[G]enerally a lay witness may not express an opinion
about the veracity of another person’s statement because the
statement’s veracity is for the jury to decide.” (People v. Houston
(2012) 54 Cal.4th 1186, 1221; see also People v. Melton (1988) 44
Cal.3d 713, 744 [“[l]ay opinion about the veracity of particular
statements by another is inadmissible on that issue”].) For
instance, a testifying officer generally may not offer a personal
opinion regarding the credibility of the defendant or a witness.
(People v. Stitely (2005) 35 Cal.4th 514, 546; People v. Smith
(1989) 214 Cal.App.3d 904, 915; People v. Sergill (1982) 138
Cal.App.3d 34, 40.) Similarly, “[a] witness may not express an
opinion on a defendant’s guilt.” (People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 77.) The Supreme Court has explained:
“With limited exceptions, the fact finder, not the witnesses, must
draw the ultimate inferences from the evidence. Qualified
experts may express opinions on issues beyond common
understanding [citations] but lay views on veracity do not meet
the standards for admission of expert testimony.” (People v.
Melton, at p. 744.) “[A] lay opinion about the veracity of
particular statements . . . has no ‘tendency in reason’ to
disprove the veracity of the statements.” (Ibid.)
An officer’s statements to a defendant during an interview,
however, may be admissible to provide context for the defendant’s
answers. (People v. Maciel (2013) 57 Cal.4th 482, 524 (Maciel).)
In Maciel, the defendant argued the trial court prejudicially erred
when it failed to redact the interrogating officers’ statements that
implied unidentified informants had reported that the defendant
was responsible for arranging the crimes at issue. (Id. at p. 523.)
21
In rejecting this argument, the Supreme Court held: “[C]ontrary
to defendant’s assertion, the officers’ statements that defendant
had ‘set . . . up’ the murders in this case were not ‘inadmissible
hearsay.’ Rather, they served the nonhearsay purpose of giving
context to defendant’s responses. [Citation.] Moreover, the court
instructed the jury that law enforcement officers were permitted
to misrepresent evidence in their possession in order to motivate
a suspect to confess, and that the officers’ ‘allegation[s]’ in this
case were ‘not received for the truth of any allegation but because
it is part of the statement and helps you judge the response of the
defendant.’ . . . Thus, there is no reasonable likelihood the jury
‘would consider [the] investigators’ statements on the [tape] as
substantive evidence of [defendant’s] guilt.’” (Id. at p. 524; see
People v. Riccardi (2012) 54 Cal.4th 758, 801, fn. 21 [detective’s
statements in recorded interview were properly “admitted for the
nonhearsay purpose of giving context to [the interviewee’s]
answers”], overruled on other grounds in People v. Rangel (2016)
62 Cal.4th 1192, 1216.)
Here, Detective Toone’s statements in the interview
expressing that she knew the witnesses were telling the truth
and Angeles was lying did not constitute inadmissible hearsay.
Rather, the statements were offered for the nonhearsay purpose
of providing the jury with context for Angeles’s responses, which
evolved over the course of the interview from vehement denials of
any wrongdoing to substantial admissions that he committed
multiple lewd acts against Jennifer and his daughter, Esperanza.
While the better practice would have been to excise certain of
Detective Toone’s statements, given Angeles’s confession, the
trial court reasonably could have concluded that the entirety of
the recorded interview should be admitted to allow the jury to
22
evaluate the context of the incriminating statements that
Angeles made in response to Detective Toone’s assertions about
his guilt. Indeed, Angeles argues while he “eventually made
inculpatory admissions,” “his claim that he had been pressured
into admitting something was not entirely implausible.” He
further asserts, “His initial admissions were consistent with his
defense, that he was just acceding to pressure and trying to
admit to whatever it was that Detective Toone believed he had
done.” It would have been difficult for the jury to evaluate
Angeles’s admissions during the interview without hearing both
sides of the conversation. Under these circumstances, although it
would have been an easy matter and the better practice to limit
Detective Toone’s statements, the trial court could have
reasonably concluded that it was necessary for the jury to hear
the entire interview to determine whether Detective Toone
“pressured” Angeles into making the “admissions.”
Moreover, as in Maciel, supra, 57 Cal.4th 482, the trial
court instructed the jury that Detective Toone’s interview
statements “were presented for the sole purpose of giving context
to the defendant’s responses,” and the jury was “not to consider
these statements for any other purpose.” We presume the jury
followed the court’s instruction. (Maciel, at p. 524; see People v.
Case (2018) 5 Cal.5th 1, 37 [detectives’ statements in a witness
interview “express[ing] their belief that defendant had committed
the crimes was not unduly prejudicial because the court carefully
instructed the jurors they were not to consider this evidence for
its truth, but only to demonstrate [the witness’s] state of mind”].)
In addition, Detective Toone testified at trial that her interview
statements were part of an interrogation technique designed to
elicit a confession, and at the time of interview, she had not yet
23
had an opportunity to speak with each complaining witness to
assess their credibility. Under these circumstances, there was no
reasonable likelihood the jury would have considered Toone’s
statements as substantive evidence of either the witnesses’
veracity or Angeles’s guilt.
4. Any Error Was Harmless
Finally, even assuming any specific portions of Detective
Toone’s interview statements should have been redacted, any
error in admitting the statements was harmless. We review the
erroneous admission of evidence under the harmless error
standard of People v. Watson, supra, 46 Cal.2d at p. 836. (People
v. DeHoyos (2013) 57 Cal.4th 79, 118; People v. Houston (2012) 54
Cal.4th 1186, 1222; People v. Fuiava (2012) 53 Cal.4th 622, 671;
People v. Sanchez (2014) 228 Cal.App.4th 1517, 1535.) Under
Watson, “‘[t]he reviewing court must ask whether it is reasonably
probable the verdict would have been more favorable to the
defendant absent the error.’” (People v. Watson (2008) 43 Cal.4th
652, 686; accord, People v. Partida (2005) 37 Cal.4th 428, 439.)
As discussed, Angeles ultimately confessed in the interview that
he had sexually molested Jennifer and Esperanza. With respect
to Jennifer, Angeles admitted the molestation included touching
her vagina, making her touch his penis with her hand, and
placing his penis inside her mouth. With respect to Esperanza,
Angeles admitted he inappropriately touched his daughter’s
vagina on multiple occasions when she was four or five years old,
and that he stopped when he was caught in the act by his wife.
Although Angeles denied that he ever touched Stephanie or
Crystal, their descriptions at trial were similar in many respects
to Jennifer’s testimony. In each case, the molestation began
when the girls were between the ages of four and six, involved
24
similar lewd acts, and generally took place in Angeles’s van or
secluded areas of his backyard. The four victims provided
graphic and independent accounts of Angeles’s lewd acts. Given
the overwhelming evidence of guilt, any error in admitting
Detective Toone’s interview statements did not render the trial
fundamentally unfair, nor it is reasonably probable that Angeles
would have obtained a more favorable result had the Detective
Toone’s statements been excluded. (DeHoyos, at p. 118; People v.
Watson, supra, 43 Cal.4th at p. 686; see Evid. Code, § 353, subd.
(b).)7
C. The Trial Court Did Not Err in Imposing of
Consecutive Sentences on Counts 6 and 7
Angeles challenges the trial court’s decision to impose
consecutive terms of 15 years to life on counts 6 and 7 for
committing forcible lewd acts against Crystal. Angeles contends
the trial court failed to determine whether Angeles committed
the forcible lewd acts in counts 6 and 7 on separate occasions
within the meaning of sections 667.6 and 667.61. Angeles argues
remand is necessary because, if the acts in those counts occurred
on a single occasion, the trial court has the discretion to impose a
concurrent or a consecutive sentence.
7 Angeles’s reliance on People v. Smith (1989) 214 Cal.App.3d
904 and People v. Sergill (1982) 138 Cal.App.3d 34 is misplaced
because the trial courts permitted in-court lay opinion testimony
about the victim’s veracity. There was no audio recorded
confession in which the defendant admitted his guilt, and the
interrogator’s statements were needed to understand the context
of those admissions.
25
1. Applicable Sentencing Scheme
Section 667.61 mandates an indeterminate term of 15 years
to life when the defendant is convicted of committing certain
enumerated sex offenses against more than one victim, including
forcible lewd act in violation of section 288, subdivision (b).
(§ 667.61, subds. (b), (e)(4).) The statute further provides that,
for the offense of forcible lewd act in violation of section 288,
subdivision (b), “the court shall impose a consecutive sentence for
each offense that results in a conviction under this section if the
crimes involve separate victims or involve the same victim on
separate occasions as defined in subdivision (d) of Section 667.6.”
(§ 667.61, subd. (i).)8 Section 667.6, subdivision (d), in turn
provides that “[i]n determining whether crimes against a single
victim were committed on separate occasions under this
subdivision, the court shall consider whether, between the
commission of one sex crime and another, the defendant had a
reasonable opportunity to reflect upon his or her actions and
nevertheless resumed sexually assaultive behavior. Neither
the duration of time between crimes, nor whether or not the
defendant lost or abandoned his or her opportunity to attack,
8 Section 667.61, subdivision (i), provides: “For any offense
specified in paragraphs (1) to (7), inclusive, of subdivision (c), or
in paragraphs (1) to (6), inclusive, of subdivision (n), the court
shall impose a consecutive sentence for each offense that results
in a conviction under this section if the crimes involve separate
victims or involve the same victim on separate occasions as
defined in subdivision (d) of Section 667.6.” (§ 667.61, subd. (i).)
While a violation of section 288, subdivision (b) falls within this
sentencing provision (id., subd. (c)(4)), a violation of section 288,
subdivision (a) does not (id., subd. (c)(8).) (See People v. Zaldana
(2019) 43 Cal.App.5th 527, 536.)
26
shall be, in and of itself, determinative on the issue of whether
the crimes in question occurred on separate occasions.”
Accordingly, when the defendant is convicted of multiple
counts of forcible lewd acts in violation of section 288, subdivision
(b), against the same victim, the trial court is required to impose
a mandatory consecutive term for each count if it determines the
crimes occurred on separate occasions. (§ 667.61, subds. (i), (c)(4);
People v. Zaldana, supra, 43 Cal.App.5th at p. 536.) If, however,
the court determines the crimes occurred on a single occasion, it
retains the discretion to impose concurrent or consecutive terms.
(People v. Rodriguez (2012) 207 Cal.App.4th 204, 214; People v.
Valdez (2011) 193 Cal.App.4th 1515, 1524.) A reviewing court
will not reverse a trial court’s determination that the defendant
committed the offenses in question on separate occasions unless
“‘no reasonable trier of fact could have decided the defendant
had a reasonable opportunity for reflection after completing an
offense before resuming his assaultive behavior.’” (People v. King
(2010) 183 Cal.App.4th 1281, 1325; see People v. Garza (2003)
107 Cal.App.4th 1081, 1092.)
2. The Trial Court Did Not Err Because There
Was No Evidence that Angeles Committed the
Offenses in Counts 6 and 7 on the Same
Occasion
The trial court sentenced Angeles to consecutive terms of
15 years to life on counts 1, 4, 6, 7, and 10, and concurrent terms
of 15 years to life on all remaining counts pursuant to section
667.61. Angeles does not contend there was insufficient evidence
to conclude that the offenses in counts 6 and 7 involving Crystal
“did occur on separate occasions.” Rather, he claims the trial
court failed to exercise its discretion to determine whether the
27
offenses occurred on separate occasions, and if they did not,
whether consecutive or concurrent terms should be imposed
because consecutive sentences “were discretionary if [the forcible
lewd acts] involved the same victim on the same occasion.” The
People respond that Angeles forfeited this claim by failing to
timely object, and that even if the claim was preserved, the trial
court properly gave mandatory consecutive terms for counts
6 and 7.
“Ordinarily, an appellate court will not consider a claim of
error if an objection could have been, but was not, made in the
lower court. [ Citation.] The reason for this rule is that ‘[i]t is
both unfair and inefficient to permit a claim of error on appeal
that, if timely brought to the attention of the trial court, could
have been easily corrected or avoided.’” (People v. French (2008)
43 Cal.4th 36, 46.) The rule applies with equal force to claims
the trial court failed to properly make a discretionary sentencing
choice. (People v. Scott (1994) 9 Cal.4th 331, 356 [“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”]; People v. Quintanilla (2012) 170
Cal.App.4th 406, 412 [defendant forfeited claim that trial court
failed to properly articulate its discretionary sentencing choices
under section 667.6 by failing to object at time of sentencing].)
Here, Angeles did not raise any objection at his sentencing
hearing or request that the trial court explain how it made its
sentencing decision. He nevertheless asserts the forfeiture
doctrine does not apply because the trial court completely failed
to exercise the statutory discretion when it imposed consecutive
terms on counts 6 and 7 without first determining whether
Angeles committed those offenses on separate occasions. (See
28
In re Sean W. (2005) 127 Cal.App.4th 1177, 1182 [“‘“[f]ailure to
exercise a discretion conferred and compelled by law constitutes a
denial of a fair hearing and a deprivation of fundamental
procedural rights, and thus requires reversal”’”]; People v.
Downey (2000) 82 Cal.App.4th 899, 912 [“‘[a] ruling otherwise
within the trial court’s power will nonetheless be set aside where
it appears from the record that in issuing the ruling the court
failed to exercise the discretion vested in it by law”].)
Alternatively, Angeles argues that, if his claim was forfeited, he
received ineffective assistance of counsel because his trial
attorney failed to raise a timely objection to the sentence in the
trial court. We need not decide, however, whether Angeles
forfeited his claim of error on appeal because even assuming it
was preserved, the claim lacks merit.
At trial, Crystal testified that Angeles forced her to touch
his penis on two occasions. On the first occasion, Angeles
“grabbed [Crystal’s] hand,” “put it in his front pants,” and then
“rubbed his . . . penis” with her hand. On the second occasion,
Angeles “put [Crystal’s] hand [on] his penis” as she was telling
him “no,” “used his other hand to pull down his pants,” and then
made her rub his penis. In her testimony, Crystal gave
descriptions of a “first time” and a “second time.” Further,
Crystal responded “yes” to the question, “there were two
occasions when [Angeles] had you touch his penis with your
hand.” Detective Toone also stated that she interviewed Crystal
about her allegations. When asked how many times Crystal
reported that Angeles had forced her to touch his penis, Detective
Toone answered: “On two separate occasions.” There was no
evidence the two incidents occurred on the same occasion. In
closing argument, the prosecutor argued: “As to the other two
29
288 (b)s charged in this case, they relate to Crystal. And you’ll
recall Crystal’s the one who testified the defendant took her hand
on two separate occasions−and that’s the two counts−and
dragged it over to his penis and moved it up and down on his
penis and that she tried to pull away, but she couldn’t, she wasn’t
strong enough, and he used force to keep it there.”
In their sentencing memorandum, the People argued the
trial court was required to impose consecutive terms on counts 6
and 7 pursuant to section 667.6, subdivision (d), and section 269,
subdivision (c).9 In support, the People noted that Crystal had
testified about “eight occasions in which [Angeles] touched her
vagina and two incidents in which [he] forced her to masturbate
his penis with her hand.” The People asserted that, given this
testimony, “there is clearly sufficient evidence for the court to
find that the convictions were based on conduct committed by the
defendant against the same victim on separate occasions.”
In Angeles’s sentencing memorandum, he “respectfully
request[ed] that the Court exercise its discretion in sentencing
him to 15 years to life consecutively on Counts 1, 6 and 7, and 15
years to life concurrent to that sentence on the remaining counts,
totaling 45 years to life in prison.” Angeles argued: “Penal code
section 667.61(i) further dictates that, for violations of Penal
Code section 288(b)(1) (lewd or lascivious act using force or fear,
as alleged in counts 1, 6, and 7), the court shall impose a
consecutive sentence for each offense that results in a conviction
9 Section 269, subdivision (c), states: “[T]he court shall
impose a consecutive sentence for each offense that results in a
conviction under this section if the crimes involve separate
victims or involve the same victim on separate occasions as
defined in subdivision (d) of Section 667.6.”
30
under this section if the crimes involve separate victims or
involve the same victim on separate occasions. The Penal Code
has no such provision of mandatory consecutive sentences for
multiple violations of Penal Code section 288(a)(1), as alleged in
Counts 2-5 and 9-11. Put simply, the Penal Code requires that
multiple violations of PC 288(b) be run consecutively, but allows
for concurrent sentences for multiple violations of PC 288(a). In
the present case, the defendant was convicted of forcible lewd
acts pursuant to Penal Code Section 288(b) in Counts 1, 6, and 7.
The remaining counts had no force allegations, and are not
subject to mandatory consecutive terms.”
At the sentencing hearing, the trial court stated it had
“read and considered the probation report” and the “stat[utory]
99 report.” After the trial court stated that it had also “read [the]
defense sentencing memorandum . . . [and] the prosecutor’s
sentencing memorandum,” the People submitted on their
sentencing memorandum. In submitting on Angeles’s sentencing
memorandum, his counsel argued, “I would also submit on my
sentencing memorandum requesting the minimum which would
be 45 years to life in this case which I believe is substantial.”10
After imposing a term of 15 years to life on count 1, the trial
court then imposed separate consecutive terms of 15 years to life
on counts 6 and 7: “On count 6, which is also mandatory
consecutive sentencing, full term consecutive, you’re sentenced to
the state prison for 15 year to life consecutive to Count 1. Count
7, which is also a mandatory full term consecutive, you’re
10 The computation of counsel’s recommended “minimum”
sentence was based on mandatory consecutive 15-year terms on
counts 6 and 7, along with same consecutive sentence for count 1.
31
sentenced to the state prison for 15 years to life. And that’s
consecutive to counts 1 and 6.” While the trial court did not
expressly state that Angeles committed the offenses in counts 6
and 7 on separate occasions, the trial court implicitly made that
determination when it separately pronounced that count 6 and
count 7 were subject to “mandatory full term consecutive”
sentences.
The trial court’s pronouncement was consistent with the
language of section 667.6, subdivision (d), which mandates a “full,
separate, and consecutive term” if the crimes at issue “involve separate
victims or the same victim on separate occasions.” (§ 667.6, subd. (d);
see also § 667.61, subd. (i) [“the court shall impose a consecutive
sentence for each offense that results in a conviction under this section
if the crimes involve separate victims or involve the same victim on
separate occasions”].) The consecutive sentences for counts 6 and 7
were also consistent with all the evidence at trial. The evidence
showed that Angeles committed a forcible lewd act against Crystal on
two separate occasions. In their closing argument, the People made an
election tying the “two separate occasions” on which Angeles forced
Crystal to rub his penis to counts 6 and 7.11 Indeed, both the People
and Angeles agreed in their sentencing memoranda that counts 6 and 7
were subject to mandatory consecutive terms under the statutory
sentencing scheme. Also, immediately before the trial court imposed
the consecutive sentences on counts 1, 6, and 7, Angeles’s counsel
reiterated that the trial court should impose “the minimum which
11 The prosecution makes an election by “tying each specific count
to specific criminal acts elicited from the victims’ testimony,” typically
in opening statement and/or closing argument. (People v. Diaz (1987)
195 Cal.App.3d 1375, 1382; accord, People v. Jantz (2006) 137
Cal.App.4th 1283, 1292; People v. Mayer (2003) 108 Cal.App.4th 403,
418-419; People v. Hawkins (2002) 98 Cal.App.4th 1428, 1455.)
32
would be 45 years to life. . . .” Angeles’s requested minimum sentence
included consecutive terms on counts 6 and 7. There was no evidence
at trial that Angeles committed the offenses in counts 6 and 7 on the
same occasion. This explains why the trial court stated at the
sentencing hearing that it was imposing “mandatory consecutive”
terms on counts 6 and 7 without further elaboration of its reasoning.
Given the trial testimony establishing two occasions, the parties’
sentencing memoranda, and the lack of any evidence supporting a
single occurrence of both incidents, there was no issue presented
whether Angeles committed the offenses in question on the same
occasion.
In sum, Angeles’s contention that the trial court “did not
realize that if counts 6 and 7 occurred on the same occasion then
they could be concurrent” is unsupported. To conclude that the
trial court imposed consecutive terms without considering the
proper criteria would require this court to presume, without
evidence, that the trial court erred rather than followed law,
which we cannot do. (Ross v. Superior Court (1977) 19 Cal.3d
899, 913-914.) Because there was no dispute that Angeles
committed the offenses in counts 6 and 7 on separate occasions,
under section 667.6, subdivision (d), the trial court was required
to sentence Angeles to consecutive indeterminate terms of 15
years to life on both counts. There was no discretion that the
trial court failed to exercise because the trial court had no
discretion to do otherwise. (§ 667.61, subds. (b), (c)(4), (e)(4).)
People v. Zaldana, supra, 43 Cal.App.5th at p. 536.) On this
record, Angeles failed to demonstrate error in the trial court’s
sentencing decision.
33
D. Correction to the Amended Abstract of Judgment
Angeles contends, and the People concede, that the abstract
of judgment should be corrected to address an ambiguity with
respect to count 7. The original abstract of judgment filed on
November 13, 2018 stated at the bottom of the first page in
section 6(a) that Angeles was sentenced to 15 years to life on
counts 1, 4, 6 and 7. An attachment page to the original abstract
of judgment reflects that Angeles was sentenced to consecutive
terms of 15 years to life on counts 7 and 11 and to concurrent
terms of 15 years to life on counts 8, 9, and 10.
The trial court filed an amended abstract of judgment on
August 6, 2020. The amended abstract of judgment corrected a
prior error by properly reflecting that the sentence imposed on
count 10 was consecutive and the sentence imposed on count 11
was concurrent. However, the amended abstract of judgment
includes the same references to count 7 on the bottom of the first
page and on the attachment page. Angeles asserts these multiple
references to the 15-years-to-life term imposed on count 7 create
an ambiguity in the abstract of judgment about the aggregate
sentence imposed. Angeles requests, and the People agree, that
we order the reference to count 7 on the bottom of the first page
in section 6(a) stricken because the sentence imposed on count 7
is accounted for on the attachment page. We agree this
extraneous reference to count 7 should be stricken and order
the amended abstract of judgment corrected accordingly. (People
v. Myles (2012) 53 Cal.4th 1181, 1222, fn. 14.)
34
DISPOSITION
The judgment of conviction is affirmed. The superior court
is directed to prepare a corrected abstract of judgment striking
the reference to count 7 contained at the bottom of the first page
in section 6(a) and to forward the corrected abstract of judgment
to the Department of Corrections and Rehabilitation.
*
DILLON, J.
We concur:
PERLUSS, P. J.
FEUER, J.
*
Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
35