Filed 8/25/21 P. v. Lopez CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B306060
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA460612)
v.
TEODORO LOPEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Henry J. Hall, Judge. Affirmed.
Benjamin Owens, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Jaime L. Fuster and Joseph P. Lee,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________
A jury convicted Teodoro Lopez of sex crimes against his
step-granddaughters. Lopez claims the terms imposed for two of
these crimes are unauthorized and must be reversed. We follow
People v. Zaldana (2019) 43 Cal.App.5th 527, review granted
March 18, 2020, S259731 (Zaldana), and affirm. Statutory
citations are to the Penal Code.
Lopez and the prosecution declined to brief the underlying
facts because this appeal concerns a legal sentencing issue. We
follow their lead. We note Lopez, who is over 70 years old, faces a
prison sentence of 125 years to life for his crimes against his step-
granddaughters.
Specifically, Lopez stands convicted of five counts of oral
copulation or sexual penetration with a child 10 years old or
younger in violation of section 288.7, subdivision (b) (counts 1
through 5), and two counts of continuous sexual abuse of a child
under 14 years old in violation of section 288.5, subdivision (a)
(counts 6 and 7). We focus on the latter two counts, which
involved two of the step-grandchildren.
For each of these counts, the jury found true the allegation
that Lopez committed the offense against more than one victim,
within the meaning of section 667.61, subdivisions (b) and (e).
The trial court sentenced Lopez under section 667.61, the
“One Strike” law. This statute provides an alternative, harsher
set of penalties for certain sex crimes (including violating section
288.5) committed under specified circumstances (including
committing the offense against multiple victims). (§ 667.61,
subds. (c)(9) & (e)(4); People v. Mancebo (2002) 27 Cal.4th 735,
738, 741–742 (Mancebo).) Depending on the circumstances, the
law provides for indeterminate sentences of 15 years to life or 25
years to life. (Mancebo, at p. 742.)
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For counts 6 and 7, the trial court imposed consecutive
terms of 25 years to life under section 667.61, subdivision (j)(2).
This subdivision provides for a prison term of this length where a
victim is a child under age 14. (§ 667.61, subd. (j)(2).)
Lopez claims this was error, and one that violated pleading
requirements and his due process rights, because the information
identified the penalty as 15 years to life and never mentioned
subdivision (j)(2).
Until our Supreme Court weighs in, our reasoning in
Zaldana forecloses Lopez’s argument. As in Zaldana, the
information here identified the circumstances that could subject
Lopez to the elevated term. It alleged: “within the meaning of
Penal Code section 667.61(b) and (e), as to defendant, TEODORO
LOPEZ, as to counts 6 and 7 [ ] the following circumstances
apply: ‘the defendant engaged in the present case or cases
committed an offense specified in Section 667.61(c) against more
than one victim.’ ”
By identifying section 667.61, subdivision (b), which in turn
references subdivision (j), the information notified Lopez the
longer prison term was possible. (Zaldana, supra, 43
Cal.App.5th at pp. 533–535, review granted.) The information
provided further notice of the applicability of subdivision (j)(2) by
charging Lopez with two counts of qualifying sex crimes involving
two child victims under age 14. (See Zaldana, at p. 535.)
Lopez says this case is unlike Zaldana because the
information does not identify the numerical subdivision for the
multiple victim circumstance: subdivision (e)(4) of section 667.61.
The information, however, described this circumstance
sufficiently. (See Mancebo, supra, 27 Cal.4th at p. 754 [an
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information can convey adequate notice by describing the
qualifying circumstance and referring to section 667.61].)
Lopez also argues his case is distinguishable because the
first page of the information—the “Information Summary” page—
identified “15 to Life State Prison” as the effect of the special
allegations. Critically, Lopez never argues this misidentification
of the possible sentence prejudiced or misled him in any way.
(See § 960 [defect in accusatory pleading that does not “prejudice
a substantial right of the defendant upon the merits” cannot
affect the judgment]; In re Vaquera (2019) 39 Cal.App.5th 233,
239, 242, review granted Nov. 26, 2019, S258376 [defendant
failed to demonstrate prejudice where he failed to show he would
have prepared or defended the case any differently]; People v.
Wilford (2017) 12 Cal.App.5th 827, 837 [“a variance between the
information and sentence generally does not offend due process
unless a defendant is misled to his prejudice in presenting a
defense”].)
Lopez relies heavily on Mancebo. But unlike that case, this
one cannot be characterized as turning on prosecutorial
discretion. (See Mancebo, supra, 27 Cal.4th at p. 749 [failure to
allege multiple victim circumstance deemed discretionary
charging decision]; see also People v. Anderson (2020) 9 Cal.5th
946, 954, 956–957 [following Mancebo].) In this case, the
prosecution expressly alleged multiple victim circumstances
under the One Strike law for qualifying offenses in which the
victims were under age 14. The jury’s findings on counts 6 and 7
thus made the higher 25-year-to-life terms mandatory. (Zaldana,
supra, 43 Cal.App.5th at pp. 529, 532, 536, review granted.)
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DISPOSITION
We affirm the judgment.
WILEY, J.
We concur:
GRIMES, Acting P. J.
STRATTON, J.
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