Filed 4/20/21 P. v. Vasquez CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C083816
Plaintiff and Respondent, (Super. Ct. No. 14F03259)
v.
JORGE VASQUEZ,
Defendant and Appellant.
A jury found defendant Jorge Vasquez guilty of three counts of lewd and
lascivious acts on a minor under 14 years but found not true that he committed the
offenses during a burglary; the jury acquitted him of burglary and of annoying and
molesting a different minor. After the trial court denied his motion for new trial based on
the court’s failure to instruct on the defense of mistake of fact, he was sentenced to 25
years in state prison.
Defendant raises his instructional error challenge again on appeal, contending the
trial court prejudicially erred by instructing the jury that “mistake of person” was not a
defense to a charge of committing a lewd and lascivious act on a child under the age of
1
14 under Penal Code section 288, subdivision (a).1 He further contends that the court
should have stayed the terms for two of the lewd conduct counts under section 654
because he engaged in a course of conduct with the singular intent of sexual gratification.
In supplemental briefing, defendant contends the one-year prior prison term enhancement
imposed under section 667.5, subdivision (b) must be stricken as he no longer qualifies
for an enhanced term based on a subsequent change in the law that became effective
while his appeal was pending.
Given the important policy considerations underlying section 288 and the well-
recognized special protections necessary for minors of tender age like the victim here, we
conclude mistake of fact based on a mistake in identity is not a defense to a section 288,
subdivision (a) charge. We also conclude defendant was properly punished for each lewd
conduct count, but that he no longer qualifies for the prior prison term enhancement
under newly enacted Senate Bill No. 136 (Senate Bill 136). We shall strike the one-year
enhancement and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2016, defendant was charged with three counts of lewd and lascivious
acts on Amber S., a child under the age of 14 years (§ 288, subd. (a)—counts one through
three), burglary (§ 459—count four), and annoying and molesting Kinsey Doe, a child
under 18 years of age (§ 647.6—count five). For counts one through three, it was alleged
that defendant committed the offenses during the course of a burglary. (§ 667.61, subds.
(e)(2) & (j)(2).) It was further alleged that defendant had suffered a prior strike (§§ 667,
subds. (b)-(i), 1170.12), and had served a prior prison term (§ 667.5, subd. (b)). The
following evidence was adduced at trial.
1 Undesignated statutory references are to the Penal Code.
2
A. The Kinsey Doe Incident
In January 2013, Kinsey Doe was in the sixth grade in Sacramento. On the
evening of January 30, Kinsey was on the school campus after hours to attend a drawing
class; not many people were on the campus at that time. She walked towards the front of
the school grounds and saw a Hispanic man, later identified as defendant, in a white car.
He asked her if she had seen his girlfriend who went to the school; Kinsey thought this
was strange because defendant appeared to be a lot older than other students at her
school. She did not recognize the name of defendant’s supposed girlfriend, and walked
away.
A short time later, Kinsey encountered defendant again on campus. Defendant
asked Kinsey if she could help him find his girlfriend, and she agreed. They began
walking back towards the direction of defendant’s car. Kinsey became uneasy and
stopped; she told defendant she had to retrieve a clipboard and turned around and ran.
Kinsey found an afterschool worker and told him that she was scared because defendant
had wanted her to follow him. The afterschool worker confronted defendant, and
defendant told him that he was on campus to pick up his seventh-grade sister from a
basketball game. The afterschool worker told defendant that the elementary school did
not have seventh graders and that he had to leave. Defendant then left the school.
B. The Amber S. Incident
In March 2013, B.D. lived in an upstairs, two-bedroom apartment in Sacramento
with her 12-year-old daughter, Amber, and her 21-year-old daughter, A.M. A.M.’s
boyfriend and her one-year-old son also lived in the apartment. B.D. and Amber shared
one bedroom, while A.M., her boyfriend, and her young son shared the other. At the
time, Amber was in the sixth grade, and she was about five feet tall and weighed almost
90 pounds; A.M. was about five feet four inches tall and weighed about 150 pounds.
Around 1:00 a.m. on March 3, 2013, B.D. was standing outside her apartment
downloading a movie for Amber, who was already asleep in bed. Defendant walked by
3
and asked her what she was doing.2 Defendant told her that the Wi-Fi connection was
better closer to the apartment complex clubhouse. B.D. and defendant walked to the
clubhouse, which was about 100 yards away from B.D.’s apartment. She did not lock the
apartment door.
At the clubhouse, defendant asked B.D. if she wanted to smoke marijuana. She
responded that she did, and defendant said he would go get his marijuana and return so
they could smoke. He gave B.D. his cell phone number, and told her to call him so she
did not have to walk back to her apartment alone.
B.D. remained at the clubhouse for about 10 or 15 minutes. As she walked back
towards her apartment, she ran into defendant; he was carrying a small cigar box with
marijuana. They went back to her apartment to smoke. B.D. found Amber behind the
now locked front door extremely upset and hyperventilating. When Amber saw
defendant with her mother, she ran and locked herself in the bathroom; B.D. followed.
Amber told her mother that defendant had just touched her, although she did not
divulge in detail what he had done. B.D. then told defendant that he had to leave.
Defendant asked if she wanted him to talk to Amber, but B.D. declined and defendant left
the apartment. B.D. called the police.
Officers responding to the scene a short time later conducted a field show-up with
Joe Gomez, a man who lived in the apartment downstairs. Amber said Gomez was not
the man who had assaulted her.3 Later that morning, a sexual assault examination was
2 B.D. was unable to positively identify defendant at trial as the man who
approached her, although she testified that the man said his name was Jorge.
3 Officers conducted a separate field show-up with B.D.; she originally said that she
thought Gomez was the man she had talked to outside her apartment, but later said she
was not sure that was correct. Approximately a year later, after the DNA sample
recovered from Amber tentatively matched defendant’s DNA in a law enforcement
database, Detective Janine Lerose conducted separate photo lineups with Amber and her
4
conducted on Amber at the hospital and DNA swabs were taken. DNA taken from a
moist secretion from Amber’s genitalia matched defendant’s DNA; Gomez was excluded
as a potential contributor to the recovered DNA sample.4
Amber testified that the day before the incident, she and her mother were home,
and her sister, nephew, and her sister’s boyfriend were away visiting his family. She
went to bed that night fully clothed and climbed under the covers. The television was on,
and the bedroom door was slightly closed. The room was dark except for the light from
the television and some light from an outside streetlamp.
At some point, Amber sensed that someone had entered the room and she thought
it was her mother. She felt someone crawl on the bed, and then she fell back to sleep.
She awoke to someone licking her vagina. Her pants and underwear were pulled down,
and the blankets that had covered her were pushed to the side. She looked down and saw
defendant with his body half on the bed.
According to Amber, defendant also touched her breasts with his hands and
tongue. Defendant then moved off the bed, grabbed her hand, and tried to have her touch
his exposed penis. She pulled her hand away. Defendant also kissed Amber on the
mouth. At some point, he also touched her vagina with his hand.
mother; neither Amber nor B.D. were able to identify defendant in the photographic
lineup.
4 About a year after the assault, in February 2014, a forensic sexual assault
specialist trained in performing sexual assault examinations conducted a Special Assault
Forensic Evaluation (S.A.F.E.) interview with Amber. A video recording of the S.A.F.E.
interview was played for the jury. Following Amber’s S.A.F.E. interview, Detective
Lerose interviewed defendant in April 2014. A video recording of defendant’s interview
was also played for the jury. Neither video interview is included as part of the record on
appeal.
5
Defendant asked Amber how old she was, and she told him 12. According to her
trial testimony, defendant asked her age before he touched her breast.5 During cross-
examination, however, Amber testified that defendant left immediately after asking her
age. Defendant told Amber not to tell anyone or else he would go to jail for a long time.
She estimated that the entire assault lasted four or five minutes before defendant left the
apartment.
Amber had seen defendant before the incident hanging around Gomez’s
downstairs apartment with several other men in their twenties. On several occasions he
had made her feel uncomfortable, either calling out to her to come to the downstairs
apartment, watching her play, or following her through the apartment grounds. Amber
did not know defendant, and she never saw her mother interact with any of the men in the
downstairs apartment, although she did hear A.M. once ask them for broccoli.
A.M. testified that she was acquainted with the men in the downstairs apartment as
they would sometimes flirt with her when she walked by, but none had ever been to her
apartment. Gomez did most of the flirting, and she thought he was cute. She initially did
not remember ever asking defendant for broccoli, but later testified that she had asked
defendant for broccoli to use in a meal; she denied that the term broccoli was slang for
marijuana. A.M. also denied ever telling defendant that when her boyfriend’s truck was
gone, that they could do something together or party, or that he should bring marijuana to
her apartment.
5 Officer Jonathan Monroe, who responded to the scene and interviewed Amber,
testified that Amber did not report that any sex acts occurred after defendant had asked
her age.
6
C. The Defense
Defendant testified on his own behalf.6 Regarding the incident with Kinsey,
defendant said that he was hanging out at Gomez’s apartment selling marijuana on
January 30, 2013, when his father called him and asked him to pick up his younger sister
at an unidentified school somewhere off Folsom Boulevard. He went to one school and
was told that his sister was not there; he then went to another school and saw Kinsey.
Defendant asked Kinsey if she knew a girl named Jennifer (his sister), and she said no but
that she would help him look for her. He denied ever telling Kinsey that he was 16 or
that he had a girlfriend at the school.
Regarding the incident involving Amber, defendant testified that A.M. would
sometimes flirt with him and the other men hanging out in Gomez’s apartment. On one
occasion, A.M. told defendant he was cute and that they should hang out. On another,
she asked him for “steamed broccoli,” which he understood to mean to smoke marijuana
with her. According to defendant, A.M. also told him that when her boyfriend’s truck
was not there, that it was “all good,” which he testified meant that “she could do pretty
much whatever she wanted with whomever she wanted . . . .”
In the early morning hours on March 3, 2013, defendant left Gomez’s apartment to
go home after a night of drinking at a nightclub and smoking marijuana. On the way to
his car, B.D. approached him and asked if he had any marijuana that they could smoke
together. Defendant returned to Gomez’s apartment to get marijuana. He did not return
to the clubhouse where B.D. was using the Wi-Fi to download a movie, however.
Instead, defendant went to B.D.’s apartment because he said he saw that A.M.’s
boyfriend’s truck was not at the apartment complex, and he figured based on his previous
6 During his testimony, defendant admitted that he had been convicted of a prior
felony attempted robbery and had been incarcerated for the offense.
7
conversations with A.M., that he was “good to go with her.” At the time, he intended to
have sex with A.M.
When he arrived at B.D.’s apartment he knocked on the door and it opened.
Defendant testified that he was calling A.M.’s name when he entered, and he heard “a
vague vocal sound” from one of the bedrooms. He walked through the kitchen and living
room, which were brightly lit, and into a “really dark” bedroom with the television on.
There, he saw a person in bed under the covers. He thought the person was A.M.
Defendant sat on the bed and asked whether he could get in bed; the person
responded yes. He got under the blankets and started kissing the person on the mouth.
According to defendant, the person “somewhat kissed me back.” Defendant told the
person that he could be her new boyfriend and come back whenever her actual boyfriend
was gone. She did not respond.
Defendant began to initiate sex by touching the person’s vagina. He then pulled
her pants down while she lifted her body to make it easier for him to pull her clothes off.
Defendant then began orally copulating the person. Defendant had trouble breathing
under the blankets, so he pushed them aside. At that point, defendant noticed that the
person was not a grown woman, but “a little girl.” Defendant testified that he was
shocked, and asked how old the girl (Amber) was. Amber responded that she was 12
years old, and defendant told her he was sorry. He told Amber not to tell anyone or else
he would go to jail for a very long time. He then left the apartment.
Defendant denied ever touching Amber’s breasts. He estimated he was in the
bedroom for about two to two and a half minutes. Although A.M. was several inches
taller than Amber and weighed nearly 50 pounds more than her, defendant testified that
he did not notice the difference in size when he engaged in sexual acts with Amber.
On cross-examination, defendant admitted that he did not have A.M.’s phone
number and that he had never been inside her apartment before. He conceded that he had
never talked to A.M. about coming to her apartment on March 3, but claimed based on
8
their previous conversation about her boyfriend’s truck that she was “locked in” and
ready to have sex with him.
Defendant conceded that he had lied to police when he was interviewed about the
incident, claiming that he had never been to the apartments and that he did not know
Gomez, B.D., or her daughters. Defendant also acknowledged that he never told officers
that he thought he was engaging in sexual acts with A.M. rather than Amber.
D. Closing Arguments and Jury Instructions
At closing, defense counsel argued that defendant was not guilty of the sexual
offenses against Amber because he mistakenly believed she was A.M. While he
conceded a mistake of fact as to a minor’s age was not a defense to such charges, he
asserted that a mistake in identity was a complete defense.
In rebuttal, the prosecutor argued that mistake of identity was not a defense to the
lewd and lascivious conduct charges involving Amber. Otherwise, a person could simply
touch a child but claim he was trying to touch an adult. The prosecutor encouraged the
jury to write the judge a note during deliberations asking whether mistake of a person
was a defense, and he predicted that the court would respond in the negative.
Based on CALCRIM No. 1110, the court instructed the jury that to find defendant
guilty of the three counts of lewd and lascivious acts on Amber under section 288,
subdivision (a), the prosecutor had to prove beyond a reasonable down that (1) defendant
willfully touched any part of a child’s body either on the bare skin or through the
clothing; (2) he committed the act with the intent of arousing, appealing to or gratifying
the lust, passions, or sexual desires of himself or the child; and (3) that the child was
under the age of 14 years at the time of the act. The court further instructed the jury that
someone commits an act willfully when he or she does it willingly or on purpose. It is
not required that he or she intend to break the law, hurt someone else or gain any
advantage. Actually arousing, appealing to or gratifying the lust, passions or sexual
9
desires of the perpetrator or child was not required, nor was it a defense that the child
may have consented to the act.
The trial court did not sua sponte instruct the jury as to mistake of fact regarding a
person’s identity, nor did defendant request such an instruction during the jury instruction
conference.
E. The Verdicts, New Trial Motion, and Sentencing
During deliberations, the jury sent question No. 1 stating: “We would like to
know if ‘Mistake of Person’ [is] a valid defense for counts 1, 2, 3. [¶] We reviewed jury
instructions.” The trial court responded that “[a] ‘mistake in person’ is not a defense to
the crime of violating [section] 288[, subdivision] (a), but can be considered on the issue
of intent as to the special findings attached to Counts 1 through 3.”
Shortly thereafter, the jury returned verdicts finding defendant guilty of counts one
through three, committing lewd and lascivious acts on Amber, and not guilty of the
remaining charges. The jury also found not true the burglary enhancements attached to
counts one through three. Defendant subsequently waived a trial on his prior conviction
and admitted that he had previously been convicted of attempted robbery, which qualified
as a strike and a prior prison term.
Prior to sentencing, defendant filed a new trial motion arguing that mistake of
identity, as opposed to mistake of age, was a defense to a charge of committing lewd and
lascivious acts on a child under 14 years of age, and that the court erred by not so
instructing the jury. At the hearing on the new trial motion, the court found that a
mistake of identity defense was not a defense to a section 288 charge; it also found
defendant’s testimony regarding his supposed arrangement to have sex with A.M.
whenever her boyfriend’s truck was not at the apartment complex was “ludicrous” and
not believable.
After denying the new trial motion, the court sentenced defendant to the aggregate
term of 25 years in state prison, including the upper term of eight years on count one,
10
doubled to 16 years for defendant’s strike prior, plus consecutive terms of two years each
for counts two and three (one-third the midterm), doubled to four years each for the strike
prior, plus a consecutive one year for defendant’s prior prison term. Defendant filed a
timely notice of appeal.
DISCUSSION
I
Alleged Instructional Error
Defendant contends the trial court erred and violated his federal and state
constitutional rights by failing to instruct the jury on a mistake of fact defense for the
lewd and lascivious conduct counts (counts one through three). He argues that mistake of
fact as to a person’s identity, rather than their age, is a defense to a charge of committing
a lewd and lascivious act on a child under 14 years of age. In his view, substantial
evidence supported giving a mistake of fact instruction because he testified that he
believed he was engaging in sexual acts with A.M. and not Amber, and the trial court
prejudicially erred in declining to so instruct the jury. He further contends that the court
engaged in an impermissible credibility determination when it found his testimony that he
thought Amber was actually A.M. not credible.
“In criminal cases, even in the absence of a request, a trial court must instruct on
general principles of law relevant to the issues raised by the evidence and necessary for
the jury’s understanding of the case.” (People v. Martinez (2010) 47 Cal.4th 911, 953;
People v. Breverman (1998) 19 Cal.4th 142, 154.) A trial court is required to instruct sua
sponte on any defense only when there is substantial evidence supporting the defense,
and the defendant is either relying on the defense or the defense is not inconsistent with
the defendant’s theory of the case. (People v. Gutierrez (2009) 45 Cal.4th 789, 824;
People v. Villanueva (2008) 169 Cal.App.4th 41, 49.) Evidence of a defense is
sufficiently substantial to trigger a trial court’s duty to instruct on it sua sponte if it is
sufficient for a reasonable jury to find in favor of the defense. (People v. Salas (2006)
11
37 Cal.4th 967, 982.) However, when a defendant presents evidence attempting to negate
or rebut the prosecution’s proof of an element of the offense, a defendant is not
presenting a special defense invoking sua sponte instructional duties. (People v.
Anderson (2011) 51 Cal.4th 989, 996-997.) While a trial court may have a duty to give a
pinpoint instruction relating the evidence to the elements of the offense and to the jury’s
duty to acquit a defendant if the evidence produces reasonable doubt, such a pinpoint
instruction is not required to be given sua sponte and must be given only upon request.
(Ibid.)
Section 26 codifies the defense of mistake of fact. It “provides in pertinent part
that persons who ‘committed the act or made the omission charged under an ignorance or
mistake of act, which disproves a criminal intent,’ are not criminally liable for the act.
Put another way, people do not act unlawfully if they commit acts based on a reasonable
and honest belief that certain facts and circumstances exist which, if true, would render
the act lawful. [Citations.]” (People v. Reed (1996) 53 Cal.App.4th 389, 396.)
The mistake of fact defense, as a matter of public policy, does not apply to the
commission of a lewd act on a child under the age of 14 years, the crime of which
defendant was convicted here. (People v. Olsen (1984) 36 Cal.3d 638, 647-648 (Olsen).)
While the Supreme Court has recognized that an accused’s good faith, reasonable belief
that a victim was 18 years or more of age was a defense to a charge of statutory rape
(People v. Hernandez (1964) 61 Cal.2d 529, 536), Olsen declined to extend the defense
to section 288 charges. (Olsen, at p. 647.) In doing so, the court explained that
Hernandez had cautioned that its holding was not “ ‘indicative of a withdrawal from the
sound policy that it is in the public interest to protect the sexually naive female from
exploitation.’ ” (Olsen, at p. 644.) Extending a mistake of age defense to section 288,
the court reasoned, would undermine that important public policy of protecting children
under the age of 14 who are particularly in need of special protection given their tender
years. (Olsen, at pp. 647-648.)
12
The fact that under common law “ ‘ “ ‘an honest and reasonable belief in the
existence of circumstances, which, if true, would make the act for which the person is
indicted an innocent act, ha[d] always been held to be a good defense[,]’ ” ’ ” did not
convince the court that the same rule should apply to section 288 charges; instead, it
found that the strong public policies underlying section 288 compelled a different rule for
such violations. (Olsen, supra, 36 Cal.3d at p. 649.) “The legislative purpose of section
288 would not be served by recognizing a defense of reasonable mistake of age. Thus,
one who commits lewd or lascivious acts with a child, even with a good faith belief that
the child is 14 years of age or older, does so at his or her peril.” (Ibid.)
Defendant attempts to distinguish Olsen by arguing that the case dealt only with a
mistake of age and not a mistake in the victim’s identity. He cites no California authority
directly on point, and, in fact, defendant acknowledges that in People v. Tober (1966)
241 Cal.App.2d 66, 67-68, 72-73 (Tober), which the Supreme Court cited with approval
in Olsen (Olsen, supra, 36 Cal.3d at p. 647), the court upheld the defendant’s conviction
for violating section 288 under strikingly similar circumstances to those present in the
instant case. Like defendant did here, the defendant in Tober testified that he entered a
dark bedroom where a person (the minor victim) was lying in bed; he believed the victim
to be a different person who was an adult woman. (Tober, at p. 68.) The defendant
pulled up the person’s nightgown and placed his finger in her vagina to obtain sexual
satisfaction. (Ibid.) After he did so, the person uncovered her face and the defendant saw
it was a child; he immediately withdrew his finger, asked her age, and was told that she
was 10 years old. (Ibid.)
The Tober court noted that the defendant’s arguments on appeal were almost
entirely based upon the theory that if he in good faith believed that the 10-year-old child
was a different and adult person, he could not be held guilty of the crime of committing
lewd and lascivious acts upon the body of a child under the age of 14 years with the
intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of himself or the
13
child. (Tober supra, 241 Cal.App.2d at pp. 72-73.) After “giv[ing] careful, thorough
consideration to defendant’s contentions predicated upon a claimed belief that the person
sexually molested by him was a mature woman,” the court “[did] not accept the premise
that sexually motivated fondling of the private parts of a 10-year-old child may be
indulged in under a claimed good faith belief that the child is either an adult or has
reached the age of 14 years.” (Id. at p. 73.) “The very refusal to distinguish between a
child of tender years and an adult may be said to be characteristic of some of those who
engage in the sort of conduct of which [the] defendant has been convicted.” (Ibid.)
While defendant argues that Tober rejected defendant’s claims solely on the
ground that the courts would not countenance a claim as to the mistake of the age of the
victim, we do not believe Tober can be read so narrowly. The court was well aware that
the defendant claimed he believed the child victim was another woman in the house at
the time, who happened to be an adult. (Tober, supra, 241 Cal.App.2d at pp. 72-73
[describing the defendant’s theory that he had a good faith belief the child “was a
different and adult person”].) Thus, the thrust of his argument was not that he was
mistaken as to the child’s age, but that he was mistaken as to her identity—the claim
defendant raises here. Although the court did not directly address whether the mistake of
identity defense was available (Id. at pp. 68-72), the court’s analysis appears to reject the
notion that a mistake of identity is a defense to a section 288, subdivision (a) charge.7
7 The defendant in Tober raised the following issues on appeal: whether the trial
court committed reversible error when it stated during voir dire that the defendant had the
presumption of innocence until that presumption was dispelled by the introduction of
evidence by the People; whether the court erred in allowing the prosecutor to ask leading
questions of the minor victim; the admissibility of a statement the defendant made to an
officer after being advised of his rights; whether the court improperly interfered during
the defendant’s cross-examination of the officer; whether the court erred in failing to give
an instruction on voluntary admissions or confessions; and whether the court erred in
refusing to give a requested instruction on the applicable burden of proof. (Tober, supra,
241 Cal.App.2d at pp. 68-72.)
14
To support his position, defendant relies primarily on United States v. Adams
(C.M.A. 1991) 33 M.J. 300 (Adams), a decision from the United States Court of Military
Appeals. While defendant concedes that Adams is not binding on this court, he argues
the case is persuasive authority for extending the mistake of fact defense based on a
mistake in a person’s identity to section 288 charges.
In Adams, the appellate court set aside a soldier’s guilty plea to having carnal
knowledge of his 15-year-old niece as improvident after finding that a mistake as to his
sex partner’s identity was a viable defense to the carnal knowledge charge. (Adams,
supra, 33 M.J. at pp. 300-301.) According to the providence inquiry, the soldier went
home after a long duty shift, consumed alcohol, and fell asleep in his own bed in a dark
room; his wife was at work at the time. (Id. at pp. 300, 302.) The soldier’s 15-year-old
niece, who lived in his home, entered his bedroom and slipped into his bed, intending to
have sexual relations with him. (Id. at pp. 300-301.) In a state of semi-awareness, the
soldier believed his wife was in their bed with him and was initiating sex. (Ibid.) As he
usually did under the circumstances, the soldier turned over and engaged in intercourse.
(Id. at p. 301.) Once he realized it was his niece, he immediately stopped. (Ibid.)
The military appellate court found that the facts reasonably raised an unresolved
issue of mistake of fact, and it concluded that such a mistake as to a sex partner’s identity
was a legal defense to the crime of carnal knowledge. (Adams, supra, 33 M.J. at p. 301.)
Because the court found that the soldier’s version of events was not so outlandish as to be
absurd, his claim could not be rejected as unreasonable as a matter of law; instead, that
evaluation was one for the trier of fact. (Id. at p. 303.)
Adams is distinguishable. There, the niece who initiated sexual relations with her
uncle while he was asleep in his own bed was not a minor of tender years. (Adams,
supra, 33 M.J. at pp. 300-301.) The military court thus had no occasion to consider the
important public policy considerations underlying section 288 in recognizing the viability
of a mistake in identity defense to the carnal knowledge charge involving a minor who
15
was not of tender years. Like in Olsen, we are not convinced that the same rule should
apply for lewd and lascivious conduct with a child under 14 years; instead, the strong
public policies for protecting children of tender years compels a different result. (Olsen,
supra, 36 Cal.3d at p. 649.)
Nor are we persuaded by defendant’s argument that In re Jennings (2004)
34 Cal.4th 254 (Jennings) supports reaching a contrary conclusion. At issue in Jennings
was whether a mistake of fact as to age defense was available for a violation of Business
and Professions Code section 25658, subdivision (c), which prohibits the purchase of an
alcoholic beverage for someone under 21 years old who then causes great bodily injury or
death to another. (Jennings, at p. 259.) There, the defendant provided a 19-year-old
work colleague with beer; the work colleague got into a car accident injuring people after
leaving the defendant’s house. (Id. at pp. 259-260.) The Supreme Court held that even
though knowledge of the person’s age was not an element of the crime, the defendant was
entitled to assert a mistake of fact as to age to defend against the charge. (Id. at p. 259.)
A violation of Business and Professions Code section 25658 is a misdemeanor
punishable in county jail for a minimum of six months, by a fine of up to $1,000, or both.
(Bus. & Prof. Code, § 25658, subd. (e)(3).) By contrast, committing lewd acts on a child
under 14 years of age under section 288 is a felony punishable by three, six, or eight
years. (§ 288, subd. (a).) This drastic difference in punishment, we believe, shows that
the Legislature has deemed protecting children of a tender age—those under 14 years—
from lewd sexual conduct by exploitive persons a much graver concern than providing an
alcoholic beverage to someone below the legal drinking age, such as the 19-year-old
work colleague in Jennings. This is so even if that underage drinker causes serious
bodily harm or death. (Bus. & Prof. Code, § 25658, subds. (c), (e)(3).)
While both statutes have laudable goals of protecting young persons from various
ills of society, the Legislature has chosen to punish lewd and lascivious conduct against a
child under 14 years of age much more harshly. That choice is indicative of the
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important public policy of providing special protection to young, naive children from
lewd conduct or other sexual trauma, which can have a lasting, negative impact on a
young person. (Olsen, supra, 36 Cal.3d at pp. 647-648.)
Adopting defendant’s position would undermine the purpose the Legislature
sought to achieve by enacting section 288, subdivision (a). In light of these important
public policies, and consistent with Olsen and Tober, we conclude defendant was not
entitled to an instruction on mistake of fact based on mistake of identity as it related to
the three counts of committing lewd and lascivious acts on Amber, who was 12 years old.
(See, e.g., People v. Paz (2000) 80 Cal.App.4th 293, 298 [noting that “the public policy
rationale of Olsen for rejecting good faith mistake of age in section 288 cases involving
victims under age 14 holds true for victims of ages 14 and 15 as well—‘to protect
children against harm from amoral and unscrupulous [adults] who prey on the
innocent’ ”]; see also People v. Richards (2017) 18 Cal.App.5th 549, 564 [“The defense
of mistake of fact is not appropriate where its recognition would excuse behavior that
violates a strong public policy”].) The trial court did not err or violate defendant’s
constitutional rights by refusing to give a mistake of fact instruction, nor did it err by
instructing the jury that mistake of person was not a defense to counts one through three
or by denying the new trial motion on that same basis.8
II
Penal Code Section 654
Defendant contends that section 654 precluded punishment on counts two and
three because he engaged in a continuous course of conduct with Amber with the single
intent of sexual gratification. We conclude the trial court properly punished defendant
for all three counts of lewd and lascivious conduct.
8 Given our conclusion, we need not decide whether substantial evidence supported
giving a mistake of fact instruction had it been available.
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Section 654 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. . . .” (§ 654, subd. (a).) “Whether a course of
criminal conduct is divisible and therefore gives rise to more than one act within the
meaning of section 654 depends on the intent and objective of the actor. If all of the
offenses were incident to one objective, the defendant may be punished for any one of
such offenses but not for more than one.” (Neal v. State of California (1960) 55 Cal.2d
11, 19, disapproved on other grounds in People v. Correa (2012) 54 Cal.4th 331.)9
“However, if the defendant harbored ‘multiple or simultaneous objectives, independent of
and not merely incidental to each other, the defendant may be punished for each violation
committed in pursuit of each objective even though the violations share common acts or
were parts of an otherwise indivisible course of conduct.’ ” (People v. Jones (2002)
103 Cal.App.4th 1139, 1143.) In determining whether section 654 applies, the trial court
exercises its discretion, and its findings will not be reversed on appeal if there is any
substantial evidence to support them. (Ibid.)
In sex crime cases, even if a defendant has but one objective—sexual
gratification—section 654 will not apply unless the crimes were either incidental to or the
means by which another crime was accomplished. (People v. Siko (1988) 45 Cal.3d 820,
826 [separate punishment for lewd conduct impermissible where it was the very basis for
the defendant’s rape and sodomy convictions]; People v. Perez (1979) 23 Cal.3d 545,
553; People v. Madera (1991) 231 Cal.App.3d 845, 855 [“section 654 would bar separate
9 People v. Correa, supra, 54 Cal.4th 331, disapproved of applying section 654 to
multiple punishment for multiple violations of the same provision of law, concluding
Neal’s footnote to the contrary (Neal v. State of California, supra, 55 Cal.2d at p. 18, fn.
1) was dictum (Correa, at p. 344), but that this “new rule” applied prospectively only.
(Id. at pp. 344-345.)
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punishment for applying lubricant to the area to be copulated”].) As our Supreme Court
has stated, “[M]ultiple sex acts committed on a single occasion can result in multiple
statutory violations. Such offenses are generally ‘divisible’ from one another under
section 654, and separate punishment is usually allowed. [Citations.]” (People v. Scott
(1994) 9 Cal.4th 331, 344, fn. 6.) If the rule were otherwise, “the clever molester could
violate his victim in numerous lewd ways, safe in the knowledge that he could not be
convicted and punished for every act.” (Id. at p. 347.) Particularly with regard to
underage victims, it is inconceivable the Legislature would have intended this result.
(Ibid.)
In this case, defendant rubbed Amber’s vagina with his fingers, pulled down his
own pants and tried to force her to fondle his penis, and also pulled down Amber’s pants
and orally copulated her. While defendant insists the interaction constituted a brief
interlude that was an indivisible course of conduct, the trial court could reasonably have
concluded otherwise. As the trial court found, each lewd act was separate and distinct,
and none of the acts were necessary to accomplish the others.10 Punishing defendant for
all three lewd conduct counts was commensurate with his culpability. The trial court thus
did not err in refusing to stay the sentences on counts two and three under section 654.
III
Senate Bill 136
When defendant was sentenced, the version of section 667.5, subdivision (b) in
effect required a one-year enhancement for each prior prison term served for “any
10 Defendant’s reliance on People v. Jones (2012) 54 Cal.4th 350 and People v.
Corpening (2016) 2 Cal.5th 307 is misplaced. In each of those cases, the defendant
committed a single act that violated multiple statutes—in Jones the defendant possessed a
single firearm on one occasion, and in Corpening the defendant carjacked a van that
happened to have rare coins inside. (Jones, at pp. 352-353; Corpening, at pp. 309, 315.)
Nothing similar occurred here; defendant committed three distinct lewd acts.
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felony,” with an exception not applicable here. (§ 667.5, former subd. (b).) While
defendant’s appeal was pending, the Legislature passed Senate Bill 136, which amended
section 667.5, subdivision (b) to limit a prior prison term enhancement to people who
have served a sentence for certain sexually violent offenses. (Stats. 2019, ch. 590, § 1,
eff. Jan. 1, 2020.) The amended provision states: “Except where subdivision (a) applies,
where the new offense is any felony for which a prison sentence or a sentence of
imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not
suspended, in addition and consecutive to any other sentence therefor, the court shall
impose a one-year term for each prior separate prison term for a sexually violent offense
as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code,
provided that no additional term shall be imposed under this subdivision for any prison
term served prior to a period of five years in which the defendant remained free of both
the commission of an offense which results in a felony conviction, and prison custody or
the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or
any felony sentence that is not suspended.” (§ 667.5, subd. (b).)
The parties agree, and we concur, that Senate Bill 136 applies retroactively to
cases not yet final on appeal because it ameliorates punishment for serving a prior prison
term. (Accord, People v. Matthews (2020) 47 Cal.App.5th 857, 864-865 [Senate Bill 136
applies retroactively because it lessens punishment for a person who no longer qualifies
for the enhancement]; People v. Lopez (2019) 42 Cal.App.5th 337, 340-342 [Senate Bill
136 applies retroactively to cases not yet final on appeal]; People v. Jennings (2019) 42
Cal.App.5th 664, 680-682 [same]; In re Estrada (1965) 63 Cal.2d 740, 745-748.) We
also agree with the parties that defendant no longer qualifies for the one-year prior prison
term enhancement because he admitted he served a prior prison term for attempted
robbery, which is not a sexually violent offense.
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Although the People concede defendant is entitled to have the enhancement
stricken, they ask us to remand to the trial court so it may resentence defendant “within
the parameters of the maximum sentence.” We reject the People’s remand request.
While we are cognizant of the “full resentencing rule” (see People v. Buycks
(2018) 5 Cal.5th 857, 893) where a trial court has imposed the maximum possible
sentence, there is no reason to remand for resentencing. (See id. at p. 896, fn. 15; People
v. Winn (2020) 44 Cal.App.5th 859, 872-873.) Here, the trial court already imposed the
maximum possible sentence; the court imposed the upper term of eight years on count
one, doubled to 16 years for defendant’s strike prior, plus consecutive terms of two years
each for counts two and three (one-third the midterm), doubled to four years each for the
strike prior, plus a consecutive one year for defendant’s prior prison term. Accordingly,
we will strike the one-year enhancement, modify the sentence, and affirm the judgment
as modified.
DISPOSITION
We modify the judgment to strike defendant’s one-year prior prison enhancement
imposed pursuant to section 667.5, subdivision (b). As so modified, the judgment is
affirmed. The superior court clerk is directed to prepare an amended abstract of
judgment and forward a certified copy thereof to the Department of Corrections and
Rehabilitation.
/s/
BLEASE, J.
We concur:
/s/
RAYE, P. J.
/s/
ROBIE, J.
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